text:
    JOHN P. KENDALL ET AL. v. BRUCE D. AMSTER ET AL.
    (AC 26191)
    Lavine, Robinson and Stoughton, Js.

      Argued March 17
    officially released June 10, 2008

      Thomas C. C. Sargent, with whom was Daniel Jacobs, for the appellants (defendant Colton Amster et al.).

      Michael P. Shea, with whom were Thomas J. O'Neil and, on the brief, Thomas D. Goldberg, for the appellees (plaintiffs).
   Opinion

ROBINSON, J.

The defendants Colton Amster and Red Line Restorations, LLC (Red Line), appeal from the judgment of the trial court granting a prejudgment remedy in favor of the plaintiffs, John P. Kendall and Carl Jenkins. On appeal, the defendants claim that the court improperly (1) found that there was probable cause to grant the prejudgment remedy, and (2) issued a prejudgment remedy attaching $5.6 million of Red Line’s property or assets and $650,000 of Amster’s property or assets. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. On December 22,1999, the Massachusetts Superior Court rendered judgment in favor of Kendall and against Bruce D. Amster and certain entities controlled by him. This judgment stemmed from a failed business relationship between Kendall and Bruce Amster. Bruce Amster, through his business, Hyannis Restorations, had purchased and restored vintage automobiles for Kendall. The jury found that Bruce Amster had acted in a fraudulent manner with respect to his dealings with Kendall. The total amount of the judgment, including interest and costs, exceeded $5.5 million.

On March 12, 2000, the Massachusetts court entered a receivership order and appointed Jenkins as the receiver. The order required Bruce Amster and Hyannis Restorations to transfer to Jenkins, on a weekly basis, all real and personal property received in the course of their personal or business affairs, including any income, assets, revenues, things of value, classic automobiles, commissions, broker’s fees or payment for restoration or automobile dealer work. The order further instructed Bruce Amster and Hyannis Restorations to cooperate with Jenkins and not to take “any action, directly or indirectly to hinder, obstruct, or otherwise interfere with [Jenkins] in the conduct of [his] duties or to interfere in any manner, directly or indirectly, with the custody, possession, management, or control by [Jenkins] of the funds, assets, and premises . . . .”

On December 5, 2000, the Massachusetts court found Bruce Amster and Hyannis Restoration in contempt for violations of the receivership order. Specifically, the court determined that Amster had set up a “straw corporation,” Hyannisport Restorations, to which Bruce Amster had transferred the assets and good will of Hyannis Restorations, engaged in improper financial transactions, including withdrawing and transferring assets, and obstructed Jenkins from performing as the receiver. The “straw man” of Hyannisport Restorations was Bruce Amster’s father. The court subsequently modified the receivership order to include Hyannisport Restorations, as well as any other corporate entity controlled by Bruce Amster. The court later found the corporate entities, Bruce Amster and his accountant, to be in wilful contempt.

Following the Massachusetts proceedings, Bruce Amster moved to Connecticut. He and his son, Colton Amster, were employed by Pray Automotive Restoration Corporation (Pray). During this time, Bruce Amster endorsed his paychecks from Pray over to Colton Amster, who cashed them. This income was not reported to Jenkins as required by the receivership order. At some point, Colton Amster incorporated Red Line, and Bruce Amster worked there five to six hours per day. The court expressly found that Red Line “is a continuation of the business that Bruce Amster conducted through Hyannis Restorations, which consists in restoring rare, very expensive, vintage automobiles . . . .” The court further found that Bruce Amster diverted his customers from Hyannis Restorations and directed them to Red Line. Several of his former customers tendered payments to Bruce Amster, who then turned them over Colton Amster. The receiver was not made aware of these payments.

On November 22, 2004, the plaintiffs filed an ex parte application for a prejudgment remedy to secure the assets of Bruce Amster, Colton Amster and Red Line. The complaint attached to the application alleged violations of the Uniform Fraudulent Transfer Act, General Statutes § 52-552a et seq., common-law fraud, aiding and abetting common-law fraud and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The court granted the application. The defendants subsequently moved to dissolve or to modify the prejudgment remedy. A hearing on the attachment was held on December 13 and 20, 2004. Following the hearing, the court issued a memorandum of decision and concluded that “there is probable cause that judgment will be rendered in favor of the plaintiffs, and the prejudgment remedy previously granted shall remain in effect.” This appeal followed.

Pursuant to a motion for articulation filed by the defendants, the court, on October 27, 2006, modified its previous order. The court declined to articulate its order with respect to Bruce Amster or Red Line. With respect to Colton Amster, the court decreased the amount of the prejudgment attachment to $650,000.

As a preliminary matter, it will be helpful to set forth the following legal principles that will aid in the resolution of the defendants’ appeal. “In Connecticut, a prejudgment attachment is a provisional remedy afforded to a claimant to secure satisfaction of a judgment in the future.” Shawmut Bank v. Brooks Development Corp., 46 Conn. App. 399, 410, 699 A.2d 283 (1997). This type of remedy “is unknown to the common law and is founded on and regulated by our statutory law.” Ledgebrook Condominium Assn., Inc. v. Lusk Corp., 172 Conn. 577, 582, 376 A.2d 60 (1977); see also General Statutes §§ 52-278a to 52-278n. Further, we note that “[t]he adjudication made by the court on [an] application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiffs cause of action. It is independent of and collateral thereto . . . .” (Internal quotation marks omitted.) Marlin Broadcasting v. Law Office of Kent Avery, 101 Conn. App. 638, 647, 922 A.2d 1131 (2007).

Our Supreme Court recently stated: “A prejudgment remedy means any remedy or combination of remedies that enables a person by way of attachment ... to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment .... A prejudgment remedy is available upon a finding by the court that there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff .... Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence. . . . The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. . . . Under this standard, the trial court’s function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits. . . .

“As for our standard of review, we have stated: This court’s role on review of the granting of a prejudgment remedy is very circumscribed. ... In its determination of probable cause, the trial court is vested with broad discretion which is not to be overruled in the absence of clear error. . . . [W]e have consistently enunciated our standard of review in these matters. In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses. . . . [On appeal], therefore, we need only decide whether the trial court’s conclusions were reasonable under the clear error standard.” (Citations omitted; internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 136-38, 943 A.2d 406 (2008); Benton v. Simpson, 78 Conn. App. 746, 750-52, 829 A.2d 68 (2003); see also Doe v. Rapoport, 80 Conn. App. 111, 116, 833 A.2d 926 (2003) (appellate court entitled to presume trial court acted properly and considered all evidence). With these principles in mind, we turn to the defendants’ specific claims.

I

The defendants first claim that the court improperly found that there was probable cause to grant the prejudgment remedy. Specifically, they argue that the plaintiffs failed to establish the elements of a violation of the Uniform Fraudulent Transfer Act; that is, that the customer payments endorsed over to Colton Amster were the assets of Bruce Amster, that the transfers were intended to hinder or to delay Kendall, or that the transfers were made without consideration or less than a return of fair value. We are not persuaded that the court’s finding of probable cause constituted clear error.

In their appellate brief, the defendants assert that “[r] educed to their most elemental terms, the factual allegations of the complaint sound in fraud under . . . § 52-552e (a) (1).” The defendants’ argument, however, fails to account for the CUTPA claim set forth in the plaintiffs’ complaint. We note that the court, in denying the defendants’ motion to dissolve or to modify the prejudgment remedy, expressly stated that “the plaintiffs . . . have demonstrated probable cause that judgment will enter against the defendants for violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.” (Emphasis added.)

Additionally, we note that the plaintiffs alleged, as part of their CUTPA cause of action, that Red Line was created as a successor corporation to the Massachusetts corporate entities that previously had been controlled by Bruce Amster. They further alleged that the “assets and good will” of Hyannis Restorations had been transferred to Red Line to avoid detection by and payment to the plaintiffs. The plaintiffs also maintained that substantial sums of money were withdrawn from the bank accounts of both Colton Amster and Red Line on behalf of Bruce Amster. Such moneys should have been turned over to Jenkins. Finally, as a result of this diversion from Hyannis Restorations to the successor corporation in Connecticut, Jenkins was forced to wind up the affairs of the Massachusetts businesses and to liquidate their assets.

“CUTPA, by its own terms, applies to a broad spectrum of commercial activity. The operative provision of the act . . . states merely that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Trade or commerce, in turn, is broadly defined as the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state. . . . The entire act is remedial in character . . . and must be liberally construed in favor of those whom the legislature intended to benefit.” (Citations omitted; internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 42, 717 A.2d 77 (1998); see also Ostrowski v. Avery, 243 Conn. 355, 378-79, 703 A.2d 117 (1997).

Whether a practice is unfair and constitutes a violation of CUTPA is a question of fact. See Scrivani v. Vallombroso, 99 Conn. App. 645, 650, 916 A.2d 827, cert. denied, 282 Conn. 904, 920 A.2d 309, aff'd after remand, 102 Conn. 668, 927 A.2d 920 (2007). Our Supreme Court has explained that “[i]t is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]. . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy. ... In order to enforce this prohibition, CUTPA provides a private cause of action to [a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a [prohibited] method, act or practice . . . .” (Citations omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 19, 938 A.2d 576 (2008). We conclude that there was ample evidence before it for the court to conclude that there was probable cause that the defendants, by way of ignoring the receivership order and transferring assets and good will from Hyannis Restorations to Red Line, have violated CUTPA and that judgment will be rendered in favor of the plaintiffs with respect to that cause of action.

The couit found probable cause that the judgment will be rendered in favor of the plaintiffs with respect to the CUTPA claim. The defendants, however, focused their attack on the counts alleging that the Uniform Fraudulent Transfer Act has been violated. We conclude that the court’s determination regarding the CUTPA count was proper and that the defendants have failed to demonstrate that it was clear error for the court to grant the plaintiffs’ application for a prejudgment remedy.

II

The defendants next claim that the court improperly issued a prejudgment remedy attaching $5.6 million of Red Line’s property or assets and $650,000 of Colton Amster’s property or assets. Specifically, they argue that “the magnitude of the prejudgment remedies issued against Colton Amster and Red Line cannot be logically justified by the underlying financial transactions upon which they were based.” We conclude that the court’s decision was not clear error, and, therefore, we decline to disturb it.

A

We first address the prejudgment remedy as applied to Red Line. In their proposed complaint, the plaintiffs set forth the following allegation: “In further execution of their scheme to defraud [the plaintiffs], Bruce Amster and Colton [Amster] formed Red Line ... on October 23, 2003. On information and belief, from its inception Red Line’s business was identical to the business of Hyannis Restorations and the other corporate entities through which Bruce Amster operated his vintage car business prior to the Receivership Order. Accordingly, all proceeds thereafter received by Red Line were required by law to be turned over to [Jenkins]. However, at no time have any such funds been transferred to [Jenkins]. Instead, payments to Red Line were routinely deposited into an account that Colton [Amster] opened in Red Line’s name at the same branch of the . . . [b]ank at which [Colton Amster’s] account was held.”

After considering the prejudgment remedy application, the court ordered that the property and assets of Red Line be attached and secured in the amount of $5.6 million. After hearing the evidence over the course of the two day hearing, the court found that neither Bruce Amster nor Colton Amster was credible. It further found that Bruce Amster had diverted customers from his prior Massachusetts business to the new business in Connecticut and that payments were diverted to Colton Amster without notifying Jenkins. The court then made a specific finding regarding Red Line, concluding that it was “a continuation of the business that Bruce Amster conducted through Hyannis Restorations, which consists in restoring rare, very expensive, vintage automobiles, and Bruce Amster has worked at Red Line approximately five to six hours a day.” Finally, it noted that although Red Line had a checking account, the company paid its employees’ salaries and for its supplies and parts in cash, and that this was indicative of an “attempt at deception . . . .” Further, this practice was identical to what had occurred with Hyannisport Restorations and what the Massachusetts court described as “an illegitimate business practice that . . . was adopted to skim cash out of [the business] to benefit [Bruce Amster].”

“Facts enabling the court to establish the amount of damages involved must be alleged in ... an affidavit.” Essex Group, Inc. v. Ducci Electric Co., 181 Conn. 524, 525, 436 A.2d 16 (1980); see also Mullai v. Mullai, 1 Conn. App. 93, 94, 468 A.2d 1240 (1983) (plaintiff must establish probable amount of damages involved). We have stated that the amount of damages in an application for a prejudgment remedy need not be determined with mathematical precision. Rafferty v. Noto Bros. Construction, LLC, 68 Conn. App 685, 693, 795 A.2d 1274 (2002). “Afair and reasonable estimate of the likely potential damages is sufficient to support the entry of a prejudgment attachment. . . . Nevertheless, the plaintiff bears the burden of presenting evidence which affords a reasonable basis for measuring [its] loss.” (Citation omitted; internal quotation marks omitted.) Id.

The court found that Red Line was a continuation of Hyannis Restorations controlled by Bruce Amster. Red Line was in the same business, restoring rare, expensive, vintage automobiles; used the same personnel, namely, Bruce Amster and Colton Amster; and had the same customers. “The mere transfer of the assets of one corporation to another corporation or individual generally does not make the latter liable for the debts or liabilities of the first corporation except where the purchaser expressly or impliedly agrees to assume the obligations, the purchaser is merely a continuation of the selling corporation... or the transaction is entered into fraudulently to escape liability. . . . Under the continuity of enterprise theory, [successor liability attaches where] the successor maintains the same business, with the same employees doing the same jobs, under the same supervisors, working conditions, and production processes, and produces the same products for the same customers.” (Citations omitted; emphasis added; internal quotation marks omitted.) Chamlink Corp. v. Merritt Extruder Corp., 96 Conn. App. 183, 187-88, 899 A.2d 90 (2006).

There was evidence that the combined total of damages, statutory interest, attorney’s fees and costs owed by Bruce Amster and Hyannis Restorations to Kendall totaled approximately $5.5 million. On the basis of the finding that Red Line was nothing more than a continuation of Hyannis Restorations, and thus subject to successor liability, we cannot say that it was clear error for the court to order a prejudgment remedy in the form of an attachment in the amount of $5.6 million against Red Line.

B

We next address the prejudgment remedy as applied to Colton Amster. Following the defendants’ motion for articulation, the court vacated its earlier decision as to the amount attached with respect to Colton Amster, approximately $5.6 million, and reduced it to $650,000. We conclude that it was not clear error for the court to order the attachment in that amount.

1

Before reaching the merits of Colton Amster’s claim, we must address the argument offered by the plaintiffs. They claim, as an alternate basis for disposing of the appeal as to Colton Amster, that we should dismiss this portion of the appeal for lack of subject matter jurisdiction on the ground that the appeal is moot. Specifically, the plaintiffs contend that because the order that the appeal challenges is no longer in existence, there is no actual controversy and thus the appeal from that order is now moot. Due to the specific facts and circumstances of the present case, we conclude that the claim as to Colton Amster is not moot.

At the outset, we set forth the standard of review applicable to the plaintiffs’ claim. We begin with the well settled general rule that “the existence of an actual controversy is an essential requisite to appellate jurisdiction. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. . . . Mootness implicates this court’s subject matter jurisdiction, raising a question of law over which we exercise plenary review.” (Internal quotation marks omitted.) Windels v. Environmental Protection Commission, 284 Conn. 268, 279, 933 A.2d 256 (2007).

In response to the defendants’ motion for articulation, the court altered its prior order with respect to the amount of the attachment as to Colton Amster. As noted, the court initially had authorized an attachment of the property or assets of Bruce Amster, Colton Amster or Red Line in the aggregate amount securing $5.6 million. It subsequently altered those terms, leaving the $5.6 million attachment, unapportioned as to Bruce Amster and Red Line, and authorized an attachment of the property or assets of Colton Amster in the amount of $650,000. Our case law establishes that any substantive modification of a judgment constitutes an opening of the judgment. See Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 705, 894 A.2d 259 (2006). Because the court reduced the amount of the attachment as to Colton Amster by approximately $5 million, we conclude that the original judgment was modified substantively, and, accordingly, the judgment was opened.

We now address the effect of the court’s opening of the judgment on the pending appeal. We turn to our Supreme Court’s decision in RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 899 A.2d 586 (2006), for guidance. In that case, the court stated: “In considering the effect of the opening of a judgment on a pending appeal . . . the appropriate question is whether the change to the judgment has affected the issue on appeal. If, in opening the judgment, the trial court reverses itself and resolves the matter at issue on appeal in the appellant’s favor, it is clear that the appeal is moot as there is no further practical relief that may be afforded. . . . Conversely, if the judgment is opened to address issues entirely unrelated to the appeal, the opening of the judgment has had no effect on the availability of relief. A more difficult question may be presented if the trial corut addresses the matter at issue on appeal, but does not entirely afford the appellant the relief sought. In such cases, the extent to which the trial court alters the judgment may require either a new appeal or an amended appeal. See Practice Book §§ 61-9 and 63-1 (c) (3). As [t]he determination of whether a claim has become moot is fact sensitive . . . the facts of each case similarly must dictate the appropriate procedure to follow.” (Citations omitted; internal quotation marks omitted.) RAL Management, Inc. v. Valley View Associates, supra, 691-92.

The present case falls within the third scenario. In other words, the court altered its judgment as to a matter at issue on appeal, namely, the amount of the attachment as to Colton Amster, but did not entirely afford the relief sought. Although the better procedure may have been for the defendants to file an amended appeal form; see Practice Book § 61-9; we conclude, under the specific facts and circumstances of this case, that the appeal has not been rendered moot. Colton Amster has not been granted full relief as to his claim that the attachment amount was too high. An actual controversy between the parties remains, and we are not precluded from granting practical relief to Colton Amster. Accordingly, we reject the plaintiffs’ argument that this claim is moot, and we proceed to the merits of his claim.

2

We now address the prejudgment remedy as applied to Colton Amster. He argues that the evidence adduced during the prejudgment remedy hearing demonstrates that, at most, his liability would be $322,419 and not the $650,000 as found by the court. We conclude that it was not clear error for the court to issue an attachment in the amount of $650,000 as to Colton Amster.

The court stated that the plaintiffs demonstrated damages as follows. First, Bruce Amster fraudulently turned over his salary from Pray in the amount of $70,000. Neither of the plaintiffs was aware of these transactions, which were completed with the assistance and knowledge of Colton Amster. Second, prior to the formation of Red Line, Colton Amster assisted Bruce Amster in concealing payments of former customers totaling approximately $251,156. Third, Colton Amster assisted in the concealment of $322,238 in payments to Red Line from former customers of Hyannis Restorations. The total of these transactions is approximately $650,000.

We have reviewed the entire record, including the affidavit of Jenkins that was included with the attachment application. The plaintiffs have provided a reasonable basis that supports an attachment of $650,000, Moreover, this amount finds further support in light of the court’s finding of probable cause that the actions of Colton Amster violated CUTPA by assisting the fraudulent concealment of money from the plaintiffs. Given our limited scope of review, and the fact that damages in an application for a prejudgment remedy need not be determined with mathematical precision, we cannot conclude that the decision of the court to order an attachment in the amount of $650,000 as to Colton Amster constituted clear error.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant Bruce D. Amster is not a party to this appeal. Accordingly, we refer to Colton Amster and Red Line as the defendants.

       Kendall is a judgment creditor of Bruce D. Amster and of certain Massachusetts business entities that had been controlled by Bruce Amster. Jenkins is the receiver appointed by the Massachusetts Superior Court.

       Bruce Amster was the owner of two companies, Hyannis Restorations International Sales, Inc., and Hyannis Auto Restorations, Inc., which did business as Hyannis Restorations.

       In its memorandum of decision, the Massachusetts Superior Court stated: “Based upon the jury’s findings, as well as the evidence presented by the parties at trial, this court found that [Bruce] Amster and Hyannis Restorations employed and engaged in unfair, deceptive acts when they intentionally, knowingly, willfully and with the intent to defraud Kendall: (a) misrepresented the purchase prices of the automobiles, and converted for their own personal use the difference between what Kendall paid for the automobiles and what was actually paid to the sellers of the automobiles; (b) submitted false credit card statements in order to obtain reimbursement for personal expenses; (c) submitted false or inflated invoices for insurance obtained in connection with the transatlantic shipment of one of the automobiles; (d) submitted false or inflated invoices in order to obtain reimbursement for sales tax and registration fees which had not been paid; and (e) submitted false or inflated invoices in connection with the restoration of certain automobile parts and components. These acts were immoral and unethical and caused substantial injury to Kendall in violation of [Mass. Gen. Laws] c. 93A. Moreover, this court found the conduct of Hyannis Restorations and [Bruce] Amster to be so unscrupulous as to subject them to exemplary damages pursuant to ... c. 93A, § 9 (3). Further, this court found the conduct of [Bruce] Amster in cheating Kendall was so egregious as to shock the conscience of any reasonable person, thereby warranting treble damages.”

       A “straw man” or “straw parly” is defined as “[a] front; a third party who is put up in name only to take part in a transaction. Nominal party to a transaction .... Person who purchases property for another to conceal identity of real purchaser, or to accomplish some purpose otherwise not allowed.” (Internal quotation marks omitted.) Black’s Law Dictionary (6th Ed. 1990).

       Specifically, in a decision dated June 19, 2001, the court stated: “The Amster defendants, led by Bruce D. Amster, have systematically conspired to defraud the judgment creditor Kendall, and have contumaciously flouted the court’s injunctive and receivership orders: they have dissipated funds to friends and relatives in violation of this court’s orders; they have incorporated a straw company for the purpose of transferring the assets and good will of Hyannis Auto Restorations, Inc.; they opened up a secret bank account and deposited $100,000 to that account, unlawfully circumventing the court’s receivership order; and they have willfully withheld documents from the court’s receiver. All these acts were designed by Bruce D. Amster to hinder, delay and defeat the judgment creditor from assets he was entitled to lawfully levy upon.”

       See General Statutes § 52-278e.

       Pursuant to General Statutes § 52-2781 (a), the granting of a prejudgment remedy is a final judgment for purposes of appeal. See Marlin Broadcasting, LLC v. Law Office of Kent Avery, LLC, 101 Conn. App. 638, 641 n.1, 922 A.2d 1131 (2007).

       General Statutes § 52-552e (a) provides: ,-A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, if the creditor’s claim arose before the transfer was made or the obligation was incurred and if the debtor made the transfer or incurred the obligation: (1) With actual intent to hinder, delay or defraud any creditor of the debtor; or (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor (A) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction, or (B) intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due.”

       Because the plaintiffs’ argument concerns subject matter jurisdiction, it is a threshold matter requiring resolution. See Kondrat v. Brookfield, 97 Conn. App. 31, 37, 902 A.2d 718, cert. denied, 280 Conn. 926, 908 A.2d 1087 (2006).

       It is clear, however, that the defendants filed their appeal challenging the initial order of attachment. See General Statutes § 52-2781.


source: Caselaw Access Project

author: HARPER, J. DUPONT, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. SADIKI BLAKE
    (AC 27694)
    DiPentima, Harper and Dupont, Js.

      Argued November 27, 2007
    officially released June 10, 2008

      Mary Beattie Schairer, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, former state’s attorney, and Robin D. Krawczyk, senior assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Sadiki Blake, appeals from the judgments of the trial court revoking his probation pursuant to General Statutes § 53a-32. The defendant claims that (1) the evidence did not support the court’s finding that he had violated his probation and (2) the court violated his right to allocution. We affirm the judgments of the trial court.

In August, 2001, the defendant was convicted on separate informations of two counts of sale of narcotics. The court imposed a total effective sentence of four years imprisonment, execution suspended, and four years of probation. In December, 2004, while the defendant was on probation, he was arrested on charges of attempt to commit murder, assault in the first degree, burglary in the first degree and criminal possession of a firearm. As a result of these charges, the defendant also was charged, in two informations, with violating the terms of his probation. The state later withdrew the charge of attempt to commit murder and, during the criminal trial, the court granted the defendant’s motion for a judgment of acquittal with regard to criminal possession of a firearm. The court declared a mistrial as to the assault and burglary counts after the jury was unable to return a unanimous verdict with regard to those counts. The court subsequently held a hearing related to the violation of probation charges.

On the basis of evidence presented during the trial and at the hearing, the court revoked the defendant’s probation and committed him to the custody of the commissioner of correction for four years. In its oral ruling, the court found that the state had presented reliable and probative evidence and had proven by a preponderance of the evidence that the defendant had violated his probation by committing the crimes of assault in the first degree and burglary in the first degree. Later, after a new trial, the jury found the defendant not guilty of those crimes. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence did not support the court’s finding that he had violated his probation. We disagree.

“A trial court initially makes a factual determination of whether a condition of probation has been violated. In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . Our review is limited to whether such a finding was clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Faraday, 268 Conn. 174, 185, 842 A.2d 567 (2004); State v. Fowler, 102 Conn. App. 154, 165-66, 926 A.2d 672, cert. denied, 284 Conn. 922, 933 A.2d 725 (2007).

At the end of the adjudicative phase of the violation of probation hearing, the court set forth its findings, in relevant part, as follows: “The court credits the testimony of all the state’s witnesses and finds that the evidence adduced at the violation of probation hearing was rehable and probative and established, by a preponderance of the evidence, that the defendant ... on November 30, 2003, at 55 Oakland Terrace, Hartford, Connecticut, committed the crimes of assault in the first degree and burglary in the first degree and thus violated the first condition of probation, that is, that he not violate any criminal law of this state.”

After noting the stipulation of the parties that the defendant was on probation at the time in question and was aware of the terms of his probation, the court stated: “The court finds that the testimony of La-Trice Grant was reliable and probative. The court credits her entire testimony. The court finds that the defendant went to Ms. Grant’s third floor apartment at approximately 4:15 a.m. and knowingly and unlawfully entered and remained in her dwelling with the intent to commit a crime therein, that is, to assault Jimmy Ball, and that at that time, he was armed with a deadly and dangerous instrument, that is, a gun .... Entering Ms. Grant’s apartment at that time of morning when the defendant reasonably would have known that the occupants would be asleep and that he was armed with a handgun is strong evidence that the defendant intended to commit a crime in the apartment. The defendant entered and remained in Ms. Grant’s apartment without permission.

“Once unlawfully in the apartment, the defendant approached Ms. Grant at the door of her bedroom and stated, T told you, anyone else but him.’ The defendant proceeded to intentionally cause serious physical injury to Jimmy Ball by repeatedly hitting him about four times in the head and face with a gun, a dangerous weapon and dangerous instrument, while . . . Ball was asleep in Ms. Grant’s bed. The defendant caused serious physical injury to Mr. Ball as stated by Dr. Manuel Lorenzo, who treated him at St. Francis Hospital and Medical Center, and as reflected in Mr. Ball’s medical records

“The court credits the testimony of Lorenzo regarding the extent of Mr. Ball’s injuries. Lorenzo testified that Mr. Ball had, among other injuries, a skull fracture, fracture to his cheekbone and traumatic brain injury. He also testified that without medical intervention, the injuries the defendant inflicted upon Mr. Ball would have caused his death. Accordingly, the court finds that the totality of evidence establishes that the defendant violated the conditions of probation by committing the crimes of assault in the first degree . . . and burglary in the first degree ... on November 30, 2003, at the third floor apartment of Ms. Grant at 55 Oakland Terrace, Hartford, Connecticut.”

A

Grant was the only witness who positively identified the defendant as the perpetrator of the crimes that occurred in her residence on November 30, 2003. The defendant argues: “[T]he lack of credibility of the sole witness who identified [him] as the assailant was so strong that the court’s decision that her testimony was credible was not reasonable or logical and leaves one with the definite and firm conviction that a mistake has been committed and was thus clearly erroneous. Without that testimony, the evidence against the defendant was insufficient as a matter of law.” (Internal quotation marks omitted.)

The defendant has set forth numerous reasons as to why the court should not have relied on Grant’s testimony. First and foremost, he suggests that Grant intentionally misidentified him as the perpetrator of these crimes. The defendant asserts that Grant’s trial testimony with regard to some points differed from that of other witnesses, as well as from her initial statement to the police, thus rendering it unreliable. The defendant also casts doubt on Grant’s testimony insofar as it suggested as a motive that there was a “love triangle” between himself, Grant and Ball. The defendant posits that the version of events related by Grant “left a lot of unanswered questions” as to why he would have committed the crimes and what transpired at the scene after the crimes were committed. Finally, the defendant deems it relevant that the court declared a mistrial with regard to these crimes after the jury could not reach a verdict and that, later, a different jury found him not guilty of these crimes. The defendant states that these factors should give this court “reason to pause” and invites us to conclude that they reflect poorly on Grant’s credibility as a witness.

We have reviewed Grant’s testimony in its entirety. It suffices to observe that Grant unambiguously identified the defendant as the man who entered her apartment, uninvited and armed with a gun, and attacked Ball. Grant testified that, as a result of their prior relationship, she was familiar with the defendant. She testified that she observed the defendant, heard the words he spoke to her and struggled with him in an unsuccessful effort to fend off his violent conduct. There was also evidence that, shortly after the incident, Grant identified the defendant to the police as the perpetrator and that, the following day, she identified him from a photographic array.

Grant’s testimony amply supported the court’s factual findings. The defendant does not claim that those findings, if reasonable, were insufficient to support the judgments. At trial, the defendant vigorously challenged Grant’s credibility and attempted to discredit the state’s version of events. Those efforts, reflected in the arguments raised before this court, are properly made before the trier of fact, not this court. It is not the function of this court to reevaluate the cold record of Grant’s testimony to determine whether it was plausible that Grant was mistaken or, as the defendant asserts, had fabricated her testimony. “As the sole finder of fact in the probation revocation proceeding . . . the court was entitled to arrive at its own conclusion regarding the witnesses’ credibility and what weight to afford their testimony.” State v. Gauthier, 73 Conn. App. 781, 787, 809 A.2d 1132 (2002), cert. denied, 262 Conn. 937, 815 A.2d 137 (2003). None of the arguments raised by the defendant cast doubt on the propriety of the court’s favorable assessment of Grant’s testimony. The defendant’s efforts to convince us that the court mistakenly relied on such testimony simply are not persuasive.

B

The defendant also argues that the trial court’s statement that it “credits the testimony of all of the state’s witnesses” should lead this court to conclude that it mistakenly assessed the evidence. The defendant posits that the court could not reasonably or logically have credited all of the testimony presented by the state because it “conflicted in many respects.” The defendant accurately notes, for example, that the state’s witnesses differed in their testimony with regard to who was present when the police arrived on the scene, where the victim was located when police arrived, the description of the crime scene, the nature of the relationship between Grant and Ball, whether there had been gunshots at the time of the incident and whether Grant had been “evasive” in her dealings with the police investigating the incident.

As a preliminary matter, we note that in reaching its decision, the court relied almost exclusively on Grant’s observations of the defendant’s violent criminal conduct in her apartment. The court expressly indicated in its decision that it had relied on Grant’s “entire testimony.” For these reasons, we question whether the defendant can demonstrate that his claim of error concerning other witnesses, if accurate, was of any consequence to the court’s judgments.

Nevertheless, we reject on its merits the premise of the claim raised. The defendant would have us interpret in isolation the court’s statement concerning the state’s witnesses to mean that the court accepted as fact each and every detail recounted by all of the state’s witnesses. In light of its statement concerning Grant’s testimony, it is reasonable and logical to interpret the court’s words to convey that the court had determined that all of the witnesses presented by the state had testified truthfully and that it had relied on portions of the testimony of each of these witnesses. To the extent that they existed, inconsistencies in testimony between and among several witnesses do not necessarily reflect that any witness had testified untruthfully. Inconsistent evidence is not necessarily evidence that has been fabricated. Human experience teaches that different factors, such as varying abilities of witnesses to recall events, might reasonably and logically explain such inconsistencies. Further, it is fair to assume that the court relied on some of this testimony and, consistent with its role as fact finder, resolved any conflicts in the testimony to reach the logical version of events, which was amply supported by the evidence, that it articulated in its decision. “It is the [fact finder’s] right to accept some, none or all of the evidence presented. . . . Moreover, Evidence is not insufficient . . . because it is conflicting or inconsistent. [The court] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [finder of fact’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses.” (Internal quotation marks omitted.) State v. Marcisz, 99 Conn. App. 31, 36, 913 A.2d 436, cert. denied, 281 Conn. 922, 918 A.2d 273 (2007). We are not persuaded that the court’s general assessment of the state’s witnesses in any way reflected that a mistake was made.

II

The defendant next claims that the court violated his right to allocution when it denied his request for a continuance of the dispositional phase of the violation of probation hearing. We do not reach the merits of this claim.

The following facts underlie the defendant’s claim. On March 22, 2006, immediately after the conclusion of the adjudicative phase of the hearing, the court took up the issue of the proper disposition of the violation of probation charges. The defendant’s attorney informed the court that he “need[ed] time to prepare an argument for sentencing.” The court granted a continuance until the following morning. The next day, the defendant’s attorney addressed the court as follows: “I would like to formally object to proceeding with sentencing on the violation of probation. ... As the court is aware, [the defendant], at this stage, in a violation of probation proceeding, has a right of allocution. . . . [T]he criminal charges upon which the violation is based have not been disposed of yet because of a mistrial. He also has an operative right against self-incrimination. To proceed, at this point, would cause or have the effect on [the defendant] of having to elect between those two rights. Frankly, with what is at stake in the two cases, that would, at least by my advice, cause him to waive his right of allocution. But I don’t think he should be placed in that position and I, therefore, request that the court, again, consider not proceeding at this time and wait until the criminal charges are, in some manner, disposed of.”

The court asked the defendant’s attorney to elaborate with regard to his request. The defendant’s attorney explained his concern that if, during allocution, the defendant wanted to express some remorse or responsibility for the criminal acts that formed the basis of the violation of probation charges, such statements could be viewed as incriminatory and be used against him during any new trial related to those charges. The court asked the defendant’s attorney: “Well, how about if the court orders that whatever [the defendant] says can’t be used against him at the trial?” The defendant’s attorney responded that he would not feel comfortable advising his client to proceed on that basis “unless the prosecution joins in that.”

The court responded: “The court does not feel that [the defendant] cannot speak because of the fact that the case is pending against him. There are many things he can say. And, certainly, if his position is that, I didn’t do it, then that’s something he should say if he wants to. There are a lot of things he can say without incriminating himself. So, if he doesn’t want to speak on his own behalf, that’s his right. He has the opportunity to do so.” The defendant’s attorney responded that the issue was not whether the defendant had an opportunity to address the court, but whether he was “free to fully exercise the right.” After the colloquy between the defendant’s attorney and the court concluded, the prosecutor stated: “If [the defendant] wants to show remorse by admitting his culpability on the underlying charges, I’ll state on the record that I won’t use that admission against him at the retrial of the criminal charges.”

The defendant’s attorney conversed briefly with the defendant, then stated: “[The defendant] has concerns now with the manner in which I’m handling his case. His concerns are that his probation officer should be here to speak to how he was otherwise doing on probation prior to the violation being lodged against him. And he is concerned by the court’s findings in terms of there being a violation of probation, particularly with regard to the findings about him being in possession of a . . . gun, in light of the court’s earlier granting of the motion [for a] judgment of acquittal [on the possession of a firearm charge]. It’s his concern that that demonstrates some bias on the part of the court in terms of further hearing the matter.”

The court addressed the defendant. The court stated that, because the violation of probation was based on his substantive offenses, testimony from the defendant’s probation officer concerning other matters would be irrelevant. The court informed the defendant that it was its role to make factual findings concerning his conduct and that he had a right to appeal from the court’s decision. Finally, the court stated that the defendant’s attorney “[had] done an excellent job” and that “he is certainly capable of proceeding” in this matter.

The following colloquy between the defendant and the court then occurred:

“[The Defendant]: I would like to address the court.

“The Court: All right. You should understand that anything you say can be used against you.

“[The Defendant]: Yeah, I understand that. First of all, I need a continuance for ample time to find better representation. I don’t feel my lawyer has my best interest on hand. And, secondly, Your Honor, with all due respect to the court, I want to file an oral motion for you to recuse yourself on the grounds of bias and prejudice. And also I need copies of my transcript from the first day of my probation hearing.

“The Court: All right. Your request for a lawyer is denied. Your request that I recuse myself is denied as having not complied with the proper procedure of the rules. And what was the last one you said?

“[The Defendant]: I also needed a copy of the transcript of the first day of my probation hearing.

“The Court: That will be done for any appeal purposes. If you file an appeal, you’ll get a transcript or your lawyer will get a transcript.”

The court then invited the defendant’s attorney to address the court with regard to sentencing. After the defendant’s attorney addressed the court concerning that matter, the court stated to the defendant: “All right. Now . . . then, do you not want to say anything on your own behalf about sentencing?” The defendant responded, “No.” The court, noting that the “defendant [had] exercised his right not to be heard at sentencing,” thereafter found that the beneficial aspects of probation were no longer being served, revoked the defendant’s probation and imposed sentence.

The defendant reiterates the argument that he initially raised at trial, asserting that he had a right to allocution at the time of sentencing in this case but that the court deprived him of a “meaningful allocution” because “sentencing was held before the disposition of the underlying charges . . . .” The defendant argues that “because [he] was told that anything he said could be used against him, the fear that was instilled in him created an atmosphere that made it impossible for [him] to speak effectively and persuasively.” The defendant also asserts, for the first time on appeal, that “[t]here are logistical benefits to deferring allocution until after disposition of the underlying charges.” According to the defendant, if the state were to enter a nolle prosequi as to such charges or if he were ultimately acquitted of them, he could discuss such matters during allocution as part of a meaningful plea for mercy.

Absent an appellant’s proper resort to an extraordinary means of review, “[this] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .’’Practice Book § 60-5. “The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial—after it is too late for the trial court or the opposing party to address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party.” (Internal quotation marks omitted.) State v. Dalzell, 282 Conn. 709, 720, 924 A.2d 809 (2007); see also State v. Randolph, 284 Conn. 328, 374, 933 A.2d 1158 (2007). “[O]ur rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him.” (Internal quotation marks omitted.) State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007).

At trial, the defendant put forth several reasons why the court should not proceed with the dispositional phase of the proceeding on March 23, 2006. To the extent that the defendant argues that there were “logistical benefits” to continuing the proceeding so that he could discuss during allocution the final resolution of the pending charges, he failed to assert such ground at any time before the trial court. Thus, the claim for relief on this ground is unpreserved, and we decline to address it here.

A defendant’s right to allocution applies to the dispositional phase of a violation of probation proceeding. State v. Strickland, 243 Conn. 339, 354, 703 A.2d 109 (1997). At trial, the defendant initially claimed that he could not exercise his right to allocution until the pending charges against him were resolved. Essentially, the defendant claimed that his right to allocution encompassed a right to speak absent any fear that what he said in allocution could be used against him during subsequent proceedings related to the pending charges. In this vein, the defendant’s attorney clearly described what was, in his view, a tension that existed between the defendant’s right against seh-incrimination and his right to allocution. Responding to the distinct claim raised by the defendant and in an attempt to alleviate the concern expressed, the court suggested that it could “order” that any statements made by the defendant during allocution could not be used against him during another trial. In response, the defendant’s attorney stated that he would not recommend such a course of action “unless the prosecution joins in that.” (Emphasis added.) In response to this assertion, the prosecutor flatly stipulated that, if the defendant wanted to express remorse or admit culpability with regard to the charges, “I’ll state on the record that I won’t use that admission against him at the retrial of the criminal charges.”

The record reveals that the defendant’s attorney expressed a specific concern that the court addressed. The court suggested a way to resolve the issue raised, and the defendant’s attorney conveyed that his concern would be allayed if the state agreed not to use any statements made by the defendant during allocution against the defendant in another trial. After the prosecutor met this request, stipulating that any incriminating statements made by the defendant would not be used by the state during another trial, the defendant’s attorney did not pursue the matter. The defendant’s attorney did not ask the prosecutor to elaborate with regard to his stipulation, did not ask the court to address the matter in any greater detail and did not discuss further the issue of allocution. At no time did the prosecutor withdraw his stipulation, and the defendant never questioned it. Instead, the defendant’s attorney and, later, the defendant personally, raised other unrelated reasons why the court should grant a continuance.

On this record, we must conclude that the issue pertaining to allocution initially raised by the defendant was timely addressed by the court and resolved in a manner consistent with his wishes. That the defendant ultimately did not exercise his right to allocute does not affect our analysis. Under these circumstances, it would be fundamentally unfair for the defendant to argue on appeal that such resolution of the issue raised was in any way prejudicial to him. Thus, we decline to review this issue in any further detail.

The judgments are affirmed.

In this opinion DiPENTIMA, J., concurred.

DUPONT, J.,

dissenting in part. I respectfully dissent from part II of the majority decision. Although I agree that the trial court correctly concluded that the defendant, Sadiki Blake, had violated the conditions of his probation, (1) I do not agree that we need not address the merits of his second claim, namely, whether the dispositional phase of his violation of probation hearing should have been continued in order to allow him to meaningfully exercise his right of allocution, and (2) I would address the merits of that claim and hold that because his right of allocution was impaired, he is entitled to another dispositional hearing, although not, as he has argued, before a different court.

The transcript of the sentencing or dispositional phase of the defendant’s violation of probation hearing indicates that the defendant wanted “to formally object to proceeding with sentencing . . . .” His counsel stated that the defendant had “a right of allocution” and that the underlying charges of which he had been accused had not yet been disposed of because of a mistrial and that he was requesting the court “not [to proceed] at this time and wait until the criminal charges are, in some manner, disposed of.” The court stated that “it’s obvious here [that] you don’t want him to be sentenced today, and that’s the bottom line. If he has the right of allocution, if he doesn’t want to exercise it, it’s his right.” Defense counsel responded: “But it’s not a question of his ability to speak; it’s a question of his ability to speak and be effective in it. . . . [T]he question is whether [the defendant] is fully able to exercise that right.” The court stated that all the defendant was entitled to was the opportunity to speak. The state acknowledges in its brief that the defendant “requested a continuance until after the retrial of the underlying case in order to advocate meaningfully in mitigation of sentence, a continuance to find another attorney to represent him, that the court recuse itself on grounds of bias and prejudice and that he needed a transcript of the March 22, 2006 proceedings.” The state claims that the defendant is asserting new bases for continuances on appeal that are unpreserved, namely, that at the time the motion was made, there was a possibility that the underlying charges pending against him “would be nolled or that he could be acquitted in the retrial of the underlying criminal charges.”

I do not conclude from the colloquy at the dispositional phase of the defendant’s revocation of probation hearing or from the defendant’s brief that the defendant is making an argument not asserted at that hearing. At the hearing and on appeal, the defendant was, and is, claiming that his right to allocution was impaired and violated because the court refused to delay sentencing for the violation of a condition of his probation until after the disposition of the criminal charges underlying that violation. It is this question that is preserved for our review, and I think the defendant is entitled to a review of it on the merits. The specific question that we must answer is whether Practice Book § 43-10 (3) and decisions such as State v. Strickland, 243 Conn. 339, 703 A.2d 109 (1997), in light of the particular facts of this case, required a continuance of the dispositional phase of the defendant’s revocation of probation hearing in order to preserve his right to a meaningful allocution.

Because I would review the defendant’s claim on its merits, the question becomes what standard of review should be used. The defendant claims our review should be plenary because it is a question of law to be determined by an interpretation of Practice Book § 43-10 (3) and decisional law. The state claims that the standard of review is whether the trial court abused its discretion.

The difficulty involved in a resolution of which standard of review should apply in this case arises because a motion for a continuance traditionally involves the discretion of a trial court that will not ordinarily be disturbed absent a clear abuse of discretion; State v. Fabricatore, 89 Conn. App. 729, 734-35, 875 A.2d 48 (2005), aff'd, 281 Conn. 469, 915 A.2d 872 (2007); whereas the basis for the particular motion in this case was the exercise of a right, allocution, which is based on the rules of practice, as well as decisional law, a basis that ordinarily requires plenary review. The resolution of the question is further compounded by the fact that allocution is not a discretionary right to be given or withheld by a trial court but one that exists, as of right, tempered only by how and when the allocution is to occur. In this case, regardless of the standard of review applied to the defendant’s claim that he was deprived erroneously of a continuance to assert his nondiscretionary right of allocution, the conclusion would, in my opinion, be the same. The defendant was denied a “reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence” as a matter of law under decisional law and Practice Book § 43-10 (3), and the denial was also an abuse of discretion.

The case of State v. Bronson, 55 Conn. App. 717, 740 A.2d 458 (1999), rev’d, 258 Conn. 42, 779 A.2d 95 (2001), is instructive. In that case, as in the present one, a motion for a continuance was denied. The basis for the motion was the need for a continuance to prepare for a hearing to be held pursuant to a statute, whereas in the present case, the need for the continuance is outlined in a rule of practice. The standard of review used in Bronson was abuse of discretion. The Appellate Court’s decision that the motion for a continuance was denied properly was overruled by the Supreme Court in State v. Bronson, 258 Conn. 42, 779 A.2d 95 (2001), but nothing in the Supreme Court’s decision casts doubt on the standard of review to be accorded a trial court’s action on a motion for a continuance or on the factors involved in determining if discretion was abused. When the denial of the continuance is related to specific language of our mies of practice or a statute, as in Bronson, the question of whether there was an abuse of discretion includes whether the court correctly applied the law and reasonably could have concluded as it did. See State v. Bronson, supra, 739-40. The court’s “discretion in granting or denying a request for a continuance should be exercised to accomplish the ends of substantial justice.” State v. Hamilton, 30 Conn. App. 68, 83, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994). Factors involved in the mling on a motion for a continuance include the likely length of the delay, the age and complexity of the case, prior continuances, the impact of the delay on the participants in the trial, the perceived legitimacy of the reason for the delay, the defendant’s responsibility for the timing of the request and the likelihood that a denial would substantially impair the defendant’s rights. State v. Bronson, supra, 723. How a court balances the equities is discretionary but if, in balancing those equities, a trial court draws conclusions of law, our review is plenary. See Wasko v. Manella, 269 Conn. 527, 542-43, 849 A.2d 777 (2004).

The answer to the issue in this case is aided by a brief review of the right of allocution as preserved in decisions and Practice Book § 43-10 (3). State v. Strickland, supra, 243 Conn. 339, made it clear that in Connecticut, there is a right of allocution during a probation revocation proceeding. The historical undeipinnings of the right are that a defendant has a right to make a statement to the court in his behalf and to present information in mitigation of sentence, which right relates back to at least 1689. Id., 343. The right preserves an opportunity to plead for mercy and to enable our system of justice to ensure that sentencing is particularized and reflects individual circumstances. Id. It is the defendant’s opportunity to participate meaningfully in sentencing and to present a plea in mitigation of punishment. Id., 345.

Practice Book § 43-10 (3) provides that before imposing sentence, a judicial authority shall allow a defendant a reasonable opportunity to make a “personal statement in his or her own behalf and to present any information in mitigation of the sentence.” The words of the rules of practice are interpreted in accordance with the same principles that guide interpretation of our General Statutes. State v. Strickland, supra, 243 Conn. 347. The right does not involve defense counsel's right to plead for mercy on behalf of his or her client, no matter how artfully. Green v. United States, 365 U.S. 301, 304-305, 81 S. Ct. 653, 5 L. Ed. 2d 670 (1961). A defendant must personally be allowed the opportunity to address the court, which right is to be liberally construed. Id.

Revocation of probation is a possible continuing consequence of an original conviction in which probation was granted. A violation of probation hearing has two parts. The first concerns whether the defendant has violated his probation and the second, the punishment to be given to the defendant, in the event of a violation. State v. Strickland, supra, 243 Conn. 339. In this case, the court found that the defendant had violated his probation, a conclusion with which I agree, and revoked the defendant’s probation, committing him to the custody of the commissioner of correction for four years, a conclusion with which I do not agree because the defendant was not afforded a continuance in order to assert his right to allocution meaningfully.

In the words of Strickland, allocution involves an “opportunity to meaningfullyparticipate” in sentencing, with timing being an important element of the right. Id., 345. The right of the defendant to allocution should provide an opportunity for a defendant to provide significant facts relating to his sentencing. Such facts may include those that might affect punishment or the exercise of mercy. Id. We are not concerned here with whether the defendant had such a right but, rather, with the issue of when the right should be exercised in order to provide the defendant with meaningful participation in his sentencing, as outlined in Strickland. Although the fact that the jury eventually did not find the defendant guilty of the underlying charges that led to the hearing on the violation of probation is not necessary to conclude that a condition of probation was or was not violated, the jury’s action is relevant to consider whether a defendant may be entitled to the mercy of the court when the court is considering the penalty to be imposed during the dispositional phase of a probation revocation hearing. Knowledge of the acquittal that eventually resulted could affect the decision of a court as to whether to revoke probation, or its decision as to the amount of punishment the defendant should serve for the violation of probation, although it might not change the finding that he violated a condition of probation because of the different standard of proof between a criminal trial and a probation revocation hearing. See State v. Durant, 94 Conn. App. 219, 892 A.2d 302 (2006), aff'd, 281 Conn. 548, 916 A.2d 2 (2007).

The reason why the punishment to be given the defendant might be affected by the outcome of his future trial on the underlying charges is that the facts and circumstances of the case, including the defendant’s motive, as elicited during the trial, could involve the degree of culpability of the defendant and whether the conditions of his probation continued to serve their original purpose. This is information that relates to his “reasonable opportunity to make a personal statement in mitigation of his sentence” as provided by the rules of practice. Allocution not only gives the defendant a right to participate in the sentencing process but the right to participate “meaningfully.” State v. Strickland, supra, 243 Conn. 353. An adjective, such as “meaningful” implies that the important qualities of the noun modified are utilized in determining what “meaningful” means in the particular phrase. See Household Finance Corp. v. Nival, 37 Conn. Sup. 606, 612, 430 A.2d 1311 (1981). If a word such as “meaningful” has not yet been defined by our Supreme Court in a particular decisional context, we may refer to its dictionary definition. State v. Bronson, supra, 55 Conn. App. 728. “Meaningful” is defined in Webster’s New World Dictionary (2d College Ed.) as “full of meaning, having significance or purpose.”

A court is vested with broad discretion during the disposition phase of a revocation hearing. It could require the defendant to serve any or all of his remaining sentence or continue probation or modify or enlarge its conditions. State v. Strickland, supra, 243 Conn. 353. I conclude that the denial of a continuance was improper, and another dispositional phase of the defendant’s probation revocation hearing is required because the defendant was deprived of a meaningful right to allocution.

The defendant seeks a dispositional phase to be held before a different trial court in the event that he is entitled to another hearing. Although I would grant him a new dispositional hearing for the foregoing reasons, I would not remand his resentencing to a different judge, as he has argued should be done.

Remanding to a different trial court is an extraordinary remedy to be reserved for an extraordinary case. United States v. Li, 115 F.3d 125, 134 (2d Cir. 1997), citing Sobel v. Yeshiva University, 839 F.2d 18, 37 (2d Cir. 1988), cert. denied, 490 U.S. 1105, 109 S. Ct. 3154, 104 L. Ed. 2d 1018 (1989). Resentencing before a different judge is appropriate only when the original judge would have “substantial difficulty in putting out of her mind her previously expressed views, or where reassignment is advisable to preserve the appearance of justice.” (Internal quotation marks omitted.) United States v. Li, supra, 134. In this case, reassignment would not be appropriate. The transcript of the hearing is devoid of any special circumstances that suggest that the trial judge would be unable to follow Practice Book § 43-10 (3) or unable to afford the defendant a fair resentencing. We rely on the trial judge to give “careful consideration to any mitigating comments that [the defendant] might offer during her allocution.” United States v. Li, supra, 134.

I would set aside the judgments of revocation of probation and the sentence of the defendant and remand the case to the trial court for another dispositional phase of his probation revocation proceeding in order to afford him a meaningful right of allocution. The judgments that the defendant violated his probation should be affirmed.

       The defendant also claims that, because he ultimately was acquitted of the crimes that gave rise to the violation of probation charges, he could not be found in violation of his probation. The merit of the defendant’s claim was dependent on our Supreme Court’s resolution of the issue raised in State v. Durant, 281 Conn. 548, 916 A.2d 2 (2007), which had not been released at the time that the defendant filed his principal appellate brief but was released thereafter. The defendant acknowledged at the time of argument before this court, and we agree, that Durant is dispositive and resolves this claim adversely to him.

       Ball testified that he remembered waking up in a hospital after the assault but was unable to recall any of the details of the assault itself.

       Contrary to the defendant’s assertion, it is of no consequence to our analysis that one jury could not reach a verdict with regard to the underlying charges and that, later, another jury found him not guilty of these crimes. It suffices to observe that, unlike a criminal prosecution, in a violation of probation proceeding, the state has the burden of proving its case by a lair preponderance of the evidence, not beyond a reasonable doubt. State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994).

       In his reply brief, the defendant asserts that neither the court nor the prosecutor had the authority to “grant immunity to the defendant for statements made during his allocution alter a violation of probation determination.” The defendant further argues that, if such authority existed and was properly exercised, it nevertheless would have applied to admissions only, and not “other statements ... of a personal nature which might have harmed him in other ways during the retrial.” The defendant did not raise these concerns before the court, and, thus, they are not grounds preserved for appeal.

       As evidence that the court had infringed on or hampered his right to allocution, the defendant asserts that the court expressly warned him that anything he said could be “used against” him. Although the court did so advise the defendant, the record clearly reflects that the court made this statement when he indicated that he wanted to discuss issues related to his request for a continuance. The court did not make this statement in the context of allocution or when it invited the defendant to speak on his behalf prior to sentencing. Further, neither the defendant nor his attorney objected to the court’s admonition or asked the court to explain it. Instead, after this statement was made, the defendant promptly addressed the court with regard to issues unrelated to allocution, such as asking for a different attorney, forthe trialjudge to recuse herself andfor transcripts of the proceeding. Thus, we are not persuaded by the defendant’s assertion that the court’s statement in any way was, or reasonably could have been interpreted to be, a limitation of his right to allocution.

       Practice Book § 43-10 (3) provides: “The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence.”

       In State v. Strickland, supra, 243 Conn. 354, the case was summarily remanded, without discussion, to a trial court other than the court that revoked the defendant’s probation with direction to conduct another disposition phase of his probation revocation proceeding. Nothing in the decision itself, however, addresses the special circumstances that required that result.


author: BEACH, J.

text:
    ASSELIN AND CONNOLLY, ATTORNEYS, LLC v. CATHERINE HEATH
    (AC 28459)
    Bishop, Beach and Borden, Js.
    Argued March 18
    officially released June 10, 2008

      Conrad Ost Seifert, with whom, on the brief, was Gilbert Shasha, for the appellant (defendant).

      Richard E. Joaquin, for the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant, Catherine Heath, appeals from the judgment of the trial court denying her motion to vacate an arbitration award and granting the application to confirm the award filed by the plaintiff law firm, Asselin & Connolly, Attorneys, LLC. The dispositive issue in this appeal is whether the court had subject matter jurisdiction over the defendant’s motion to vacate. Because we answer that question in the negative, we reverse the judgment in part and remand the case to the trial court with direction to dismiss the defendant’s motion to vacate for lack of subject matter jurisdiction.

The following facts and procedural history are relevant to the defendant’s appeal. In 2001, the defendant hired the plaintiff to represent her in connection with a marriage dissolution action. On November 30, 2001, she signed an attorney-client retainer agreement with the plaintiff that provided that all fee disputes would be settled by binding arbitration. After the defendant failed to pay attorney’s fees to the plaintiff, the court ordered the parties, on April 19, 2004, to proceed to arbitration. One of the issues before the arbitrator was the defendant’s motion to dismiss for lack of subject matter jurisdiction. In her motion, the defendant argued that the arbitration clause was invalid and that the American Arbitration Association’s rules were inapplicable to disputes arising out of the attorney-client relationship. On September 17, 2004, an arbitration hearing on the matter was held. The defendant did not attend. On the same day, the arbitrator issued a decision and award, stating in relevant part: “The [defendant’s] motion for dismissal [of] the arbitration is denied. . . . Accordingly, I award as follows: The [defendant] shall pay to the [plaintiff] the total sum of $34,239.23.”

On April 12, 2005, the plaintiff filed an application to confirm the award. Shortly thereafter, on May 6, 2005, the defendant filed both an objection to the plaintiffs application to confirm the award and a motion to vacate the award. In her motion, the defendant renewed her arguments as to the arbitrability of the dispute. In a later supplemental motion, the defendant further argued that enforcement of the arbitration clause would violate public policy. On June 22, 2006, the plaintiff filed a motion to dismiss the defendant’s motion to vacate as, inter alia, untimely pursuant to General Statutes § 52-420 (b).

On December 8, 2006, the court issued a memorandum of decision denying the defendant’s motion to vacate and granting the plaintiffs application to confirm the arbitration award. In its decision, the court first addressed the question of subject matter jurisdiction. Specifically, as to the court’s ability to review the defendant’s claim that the agreement was not arbitrable, it found that it “has jurisdiction to review claims that an arbitration award violates public policy, as the thirty day limitations period of § 52-420 (b) does not apply to the common-law grounds for challenging an arbitration award. Alternatively, the court has jurisdiction under General Statutes § 52-408, which permits a party to challenge a contract’s arbitration clause where ‘there exists sufficient cause at law or in equity for the avoidance of written contracts generally.’ Accordingly, where a party claims that an arbitration clause is void or voidable under § 52-408, the six year statute of limitations governing contract actions under General Statutes § 52-576 applies. In the present case, the parties entered into the attorney-client retainer agreement on November 11, 2001. Therefore, the defendant’s challenge to the validity of the arbitration clause is timely.” The court then found, on the merits, that the arbitration agreement did not violate public policy. It further noted that as to the defendant’s additional argument that she entered into the agreement under “ ‘coercive circumstances’ involving ‘duress’ . . . the defendant has failed to provide the court with any legal analysis or citation to authority that would support a claim for avoidance of the arbitration clause contained within the retainer agreement. Accordingly, the court finds that any claims relating to the avoidance of the written contract have been abandoned.” This appeal followed.

The defendant’s primary claim on appeal is that enforcement of arbitration clauses in attorney-client retainer agreements violates the state’s public policy concerning the ethical conduct of attorneys in relation to their clients. The record reveals, however, that the defendant’s motion to vacate the award was not filed within the thirty days following the receipt of notice of the arbitration award, as required by § 52-420 (b). The timeliness of the defendant’s motion to vacate implicates the court’s subject matter jurisdiction. See, e.g., Middlesex Ins. Co. v. Castellano, 225 Conn. 339, 344, 623 A.2d 55 (1993).

The legal principles concerning subject matter jurisdiction are well settled. Our Supreme Court has “long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . .” (Internal quotation marks omitted.) Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, 285 Conn. 278, 286, 939 A.2d 561 (2008).

The legal principles regarding arbitration are also well settled. “[T]he law in this state takes a strongly affirmative view of consensual arbitration. . . . Arbitration is a favored method to prevent litigation, promote tranquility and expedite the equitable settlement of disputes. ... As a consequence of our approval of arbitral proceedings, our courts generally have deferred to the award that the arbitrator found to be appropriate. . . . The scope of review for arbitration awards is exceedingly narrow. . . . Additionally, every reasonable inference is to be made in favor of the arbitral award and of the arbitrator’s decisions. . . .

“[Cjourts recognize three grounds for vacating arbitration awards. ... As a routine matter, courts review de novo the question of whether any of those exceptions apply to a given award. . . . The first ground for vacating an award is when the arbitrator has ruled on the constitutionality of a statute. . . . The second acknowledged ground is when the award violates clear public policy. . . . Those grounds for vacatur are denominated as common-law grounds and are deemed to be independent sources of the power of judicial review. . . . The third recognized ground for vacating an arbitration award is that the award contravenes one or more of the statutory proscriptions of [General Statutes] § 52-418.” (Internal quotation marks omitted.) International Brotherhood of Police Officers, Local 361 v. New Milford, 81 Conn. App. 726, 729-30, 841 A.2d 706 (2004).

In reaching our conclusion as to the effect of the untimeliness of the defendant’s motion to vacate, we find our Supreme Court’s recent decision in Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, supra, 285 Conn. 278, to be controlling. In that case, the plaintiff employer moved to vacate the arbitration award on the ground that it violated the state’s public policy encouraging honesty among the state’s police forces. Id., 279-80. The plaintiff, however, filed its application to vacate more than thirty days following the issuance of the arbitration award. Id., 280. Our Supreme Court concluded that the trial court did not have subject matter jurisdiction over the matter because “the thirty day filing period set forth by § 52-420 (b) applies to an application to vacate an arbitration award on the ground that it violates public policy.” Id., 292.

In reaching its conclusion, the court interpreted the language of § 52-420 (b), which provides: “No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.” The court reasoned that the statute’s “broad language plainly states that the limitations period applies regardless of the grounds for the motion to vacate. It is neither qualified by, nor limited to, any particular grounds for the application and is not, therefore, ambiguous because, when read in context, [it] is [not] susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Id., 287. More specifically, the court reasoned that § 52-420 (b) does not limit the thirty day filing period to applications arising out of the grounds for vacatur enumerated in § 52-418, but also applies to common-law grounds, such as a claimed violation of public policy. Id., 287-88. “Indeed, a conclusion that public policy claims are not subject to the thirty day limitations period would undermine the legislature’s well established support of arbitration as a mechanism for the inexpensive and expedient resolution of private disputes.” Id., 290; see also Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 271 Conn. 474, 493, 857 A.2d 893 (2004), cert. denied, 544 U.S. 974, 125 S. Ct. 1826, 161 L. Ed. 2d 723 (2005).

In concluding that the present case is controlled by Bloomfield, we distinguish the circumstances here from those in MBNA America Bank, N.A. v. Boata, 283 Conn. 381, 926 A.2d 1035 (2007). In MBNA America Bank, N.A., our Supreme Court held that a defendant’s objection to the confirmation of an arbitration award on the ground that there was no existing arbitration agreement between the parties, which objection was filed more than thirty days after the issuance of the award, was not barred by § 52-420 (b) because that ground for vacatur is not enumerated in § 52-418. Id., 395. Our Supreme Court in Bloomfield, however, narrowed its holding in MBNA America Bank, N.A., by observing that “[MBNA America, Bank, N.A.] stands only for the proposition that § 52-420 (b) will not preclude an otherwise untimely objection to the confirmation of an award on the ground that the parties had not conferred upon the arbitrator the legal authority to issue that award in the first place.” Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, supra, 285 Conn. 290.

We conclude that there is no question as to whether the parties here agreed to arbitrate and, for that reason, our Supreme Court’s decision in MBNA America Bank, N.A., does not apply to the present circumstances. In MBNA America Bank, N.A., the defendant cardholder argued that he never received written notice of an amendment to his agreement with the plaintiff bank providing for binding arbitration. MBNA America Bank, N.A. v. Boata, supra, 283 Conn. 383-84. Because he allegedly never received notice of the amendment, the defendant claimed that he “never agreed under any contractual relationship to arbitrate his disputes with [the plaintiff] . . . [and] is not bound by the [arbitration] [agreement presented by the [plaintiff] . . . .” Id., 384. This court, in MBNA America Bank, N.A. v. Bailey, 104 Conn. App. 457, 934 A.2d 316 (2007), applied the holding in MBNA America Bank, N.A. v. Boata, supra, 381, to a case with similar factual circumstances. In MBNA America Bank, N.A. v. Bailey, supra, 459-60, the defendant cardholder argued that he had never executed an agreement with the plaintiff bank as to arbitration, and, because there was no signed and dated agreement, the arbitrator had no jurisdiction to enter an award in favor of the plaintiff. Here, the record contains a copy of the defendant’s signed and dated agreement with the plaintiff. Accordingly, because the agreement in this case itself provided a jurisdictional framework for arbitration, the circumstances of both MBNA America Bank, N.A., cases are different from those of this case. Here, the claimed malady is not that the agreement does not exist but, rather, that it violated public policy.

We also note that the language of § 52-408, which was relied upon in part by the court in its finding that it had jurisdiction over the defendant’s claims, does not defeat the agreement to arbitrate in the present circumstances. Section 52-408 provides in relevant part: “An agreement in any written contract ... to settle by arbitration any controversy thereafter arising out of such contract ... or an agreement in writing between the parties to a marriage to submit to arbitration any controversy between them with respect to the dissolution of their marriage, except issues related to child support, visitation and custody, shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.” (Emphasis added.) First, the language of this statute does not, on its face, limit the enforcement of arbitration agreements contained in attorney-client retainer agreements, as it does regarding issues related to child support, visitation and custody. Rather, its language lends support to the state’s policy of encouraging the efficient resolution of disputes through arbitration. Second, the defendant’s public policy argument does not fall within the category of defenses to written contracts generally, as do the contractual defenses present in both MBNA America Bank, N.A., cases. For that reason, support for the court’s jurisdiction in MBNA America Bank, N.A. v. Boata, supra, 283 Conn. 381, was drawn, at least in part, from § 52-408. See MBNA America Bank, N.A. v. Boata, supra, 393 (our Supreme Court “long has recognized the right of a party to assert common-law contract defenses to attack the validity of an agreement to arbitrate”).

As we have already noted, the defendant contends that her attorney-client retainer agreement with the plaintiff is not arbitrable because it violates our state’s public policy encouraging ethical relations between attorneys and their clients. It is undisputed, however, that the defendant’s objection to the confirmation of the award on that ground, as well as her motion to vacate, were not raised before the court until seven months after the defendant received notice of the issuance of the arbitration award. Our Supreme Court unambiguously has stated that “the thirty day filing period set forth by § 52-420 (b) applies to an application to vacate an arbitration award on the ground that it violates public policy.” Bloomfield v. United Electrical, Radio & Machine Workers of America, Connecticut Independent Police Union, Local 14, supra, 285 Conn. 292. “If the motion [to vacate] is not filed within the thirty day time limit, the trial court does not have subject matter jurisdiction over the motion.” Middlesex Ins. Co. v. Castellano, supra, 225 Conn. 344. Because the defendant’s motion to vacate the arbitration award on the ground of a public policy violation was untimely pursuant to § 52-420 (b), the court lacked subject matter jurisdiction and improperly reached the merits of the defendant’s motion to vacate.

The form of the judgment is improper, the judgment is reversed only as to the defendant’s motion to vacate and the case is remanded with direction to render judgment dismissing that motion for lack of subject matter jurisdiction. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Because we resolve the appeal on the ground ol' subject matter jurisdiction, we do not reach the merits of the defendant’s claims on appeal. See, e.g., Bailey v. Medical Examining Board for State Employee Disability Retirement, 75 Conn. App. 215, 216 n.4, 815 A.2d 281 (2003).

       The agreement’s arbitration clause states: “The Client and the Firm agree to submit to binding arbitration all disputes and/or claims either may have against the other including, but not limited to disputes regarding the amount of and/or payment of fees and/or expenses and any claims of legal malpractice. The Client and the Firm further agree to utilize the services of the American Arbitration Association for this purpose, and that the arbitrators’ findings and awards must comply with the law of the State of Connecticut."

       General Statutes § 52-420 (b) provides: “No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.”

       General Statutes § 52-408 provides: “An agreement in any written contract, or in a separate writing executed by the parties to any written contract, to settle by arbitration any controversy thereafter arising out of such contract, or out of the failure or refusal to perform the whole or any part thereof, or a written provision in the articles of association or bylaws of an association or corporation of which both parties are members to arbitrate any controversy which may arise between them in the future, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, or an agreement in writing between the parties to a marriage to submit to arbitration any controversy between them with respect to the dissolution of their marriage, except issues related to child support, visitation and custody, shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.”

       General Statutes § 52-418 (a) provides: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       We note that the defendant argued before the court that her agreement with the plaintiff was signed under duress. The court found, however, that her argument on that ground was deemed abandoned due to inadequate briefing. One of the defendant’s claims on appeal is that the court’s finding in that regard was improper. On the basis of our review of the record, the court’s finding was not an abuse of discretion. See Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 85, 942 A.2d 345 (2008). We also note that the defendant’s duress claim was raised in a supplemental memorandum of law and not in either the objection to the application to confirm or in the motion to vacate.

       Procedurally, courts have treated an objection to an application to confirm as the equivalent of a motion to vacate an arbitration award. See, e.g., MBNA America Bank, N.A. v. Boata, supra, 283 Conn. 385; Wu v. Chang, 264 Conn. 307, 310 n.4, 823 A.2d 1197 (2003).