author: LAVERY, J.

text:
    PACK 2000, INC. v. EUGENE C. CUSHMAN
    (AC 30540)
    Lavine, Beach and Lavery, Js.

      Argued September 16, 2010
    officially released February 1, 2011

      Andrew J. O’Keefe, with whom, on the brief, was Joseph M. Busher, Jr., for the appellant (defendant).

      Andrew Brand, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The plaintiff, Pack 2000, Inc., brought these actions against the defendant, Eugene C. Cush-man, seeking specific performance of two options to purchase realty that the plaintiff had leased from the defendant. After a trial to the court, the court rendered judgments in favor of the plaintiff. The defendant then filed this appeal, claiming that the court was required to apply a strict compliance standard in determining whether the plaintiff had satisfied the conditions precedent to its exercise of the options and improperly determined that the plaintiff had retained its right to exercise the options. We agree with the defendant and, accordingly, reverse the judgments of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s claim on appeal. In July, 2002, the plaintiff, the defendant and ARCO Corporation (ARCO), a corporation controlled by the defendant, entered into a business transaction in which two Midas muffler shops (shops) were to be transferred from ARCO to the plaintiff. As part of the transaction, the parties executed a number of agreements, including two lease agreements, under which the defendant leased the realty where the shops are located to the plaintiff; a management agreement, under which the plaintiff assumed responsibility for the management and operation of the shops from ARCO; a letter of intent; and two promissory notes.

Each lease agreement contains a clause in paragraph 2 that provides the plaintiff with an option to purchase the leased realty subject to certain terms and conditions. The language of the two clauses is essentially identical. Each clause provides in relevant part: “So long as [the plaintiff] has been in compliance with the terms and conditions of this Lease, the Letter of Intent, and Management Agreement . . . and is in compliance with such instruments when the option is exercised, [the plaintiff] shall have the option to purchase the real estate subject to this lease. . . . The option shall be exercised by [the plaintiff] giving [the defendant] three months advanced notice, in writing. The option may be exercised by giving the aforesaid notice between the date of this Lease [July 25, 2002] and the fifth anniversary of [the] same.”

The management agreement also refers to the plaintiffs options to purchase the defendant’s realty and contains the following language in paragraph 10 as it relates to the options: “The [plaintiff] shall be given an option to purchase the real estate upon which the shops are located. Said option shall be by separate agreement and signed by the titleholder and the party designated by [the plaintiff] to take title. Such option shall cite separate consideration and shall contain the terms as generally outlined herein, (a) Such option may be exercised between [the] date of commencement herein and the fifth anniversary of [the] same. . . . (f) [The plaintiff] must be in full compliance with this agreement and any lease agreement at the time of exercise.”

In addition to the two lease agreements and the management agreement, the letter of intent also contains language that refers to the options. It provides in relevant part: “[The plaintiff] has the option to purchase from [the defendant] the buildings and the land housing the Shops, if this agreement and the . . . Management Agreement are executed. The option is for five years from the date of the Management Agreement. The price will be as appraised.”

Under the terms of the two lease agreements, the management agreement and the promissory notes, the plaintiff was required to make a number of periodic payments both to the defendant and to certain third parties in order to exercise the options. Specifically, the plaintiff was required to pay rent to the defendant by the first day of each month during the term of the lease, to make payments on both promissory notes by the eighth day of each month until the notes were fully paid and to pay all accounts, including, but not limited to, utilities, telephone service, real estate taxes, and hazard and liability insurance as well as an equipment lease. At trial, the defendant testified that timely payment of the aforementioned accounts was vital and that he informed the plaintiff that untimely payments would jeopardize his franchise agreements with Midas and his mortgages on the two shops.

Nevertheless, the record reveals that the plaintiff was often late in making the aforementioned payments. Specifically, the record reveals that the following payments were late: the rent payment due on May 1, 2004; three payments on the promissory notes due on February 8, 2003, and May 8 and June 8, 2006; one payment to Groton Utilities, which resulted in a shutoff notice that the defendant forwarded to the plaintiff on January 23, 2003; several payments to a telephone company, which resulted in several collection letters and telephone calls that the defendant received in late 2002 and early 2003 as well as a threat to terminate telephone service to the defendant’s unrelated business in March, 2003; two real estate tax installments on the New London shop due January 1,2005, and January 1,2007; one real estate tax installment on the Groton shop due July 1, 2007; twelve hazard and liability insurance installments between November, 2002, and January, 2004, that resulted in cancellation notices issued on July 30, 2003, and November 29,2004; twenty health insurance installments between October, 2002, and September, 2005; and several installments under the terms of an equipment lease that resulted in several collection calls to the defendant in 2002 and 2003.

On August 22, 2003, the plaintiffs vice president, M. Paulina Anderson, faxed a letter to the defendant in which she stated that she wanted “to finalize the purchase of the shops and exercise the optionfs] to purchase the real estate by the end of 2003.” On August 29, 2003, Anderson sent a second letter to the defendant in which she sought information about a possible appraisal and indicated that Banterra Bank (bank) could not commit to financing the purchase until it had ascertained the value of the defendant’s realty.

On September 2, 2003, the defendant, on behalf of ARCO, sent a letter to Anderson in which he stated that the plaintiff was not in compliance with the terms and conditions of the management agreement. Specifically, the letter stated: “The installment payment regarding the . . . Management Agreement which was due September 1,2003 has not been received. Per the provisions of said agreement, the monthly installments are due on the first day of each month. Your monthly payments have been consistently late and have required telephone calls from [ARCO] nearly every month in order to prompt the payment. Timely payment of the note was and is a material condition of the agreement. As you have known from the inception, ARCO ... is dependent upon timely payments from you in order to remain in compliance with its obligations concerning various mortgages. Your late payment for August put ARCO . . . in default with one of its mortgagees. This is an intolerable circumstance. You are hereby put on notice that this late payment, and all of the prior late payments, and any future late payments puts you out of compliance with the terms and conditions of the Management Agreement. Subsequent acceptance of the September, 2003 payment (or any future payment tendered after the date due) will not cure the non-compliance, nor does ARCO . . . waive any rights or consequences which flow from your non-compliance.” There is no record of the plaintiff having specifically responded to this letter.

On May 16 and 19, 2006, the plaintiff again sought to exercise the options to purchase the defendant’s realty. At that time, however, the payment on one of the promissory notes that was due on May 8, 2006, had not been paid.

On July 17, 2006, the plaintiff commenced these actions against the defendant claiming that it was entitled to specific performance of the options to purchase the defendant’s realty. In its disclosure of defense, filed on August 4, 2006, the defendant argued that the plaintiffs claim was without merit because, among other things, the plaintiff had not complied with the terms of one of the promissory notes and the conditions of the lease at the time of its attempt to exercise the options, and, therefore, the options had been forfeited or terminated by the plaintiffs fault or noncompliance. As of the date of trial, the plaintiff had paid the defendant in excess of $600,000 in rent under the terms of the lease agreements, $700,000 under the terms of the promissory notes and was not in arrears on its financial obligations under the terms of any of the aforementioned agreements.

On August 11, 2008, the trial court rendered judgments in favor of the plaintiff. The court determined that the plaintiff had retained the right to exercise the options because it had substantially complied with the terms and conditions of the options. The court also determined that the plaintiff had effectively exercised the options on August 22, 2003, and was entitled to specific performance. The court, therefore, ordered the defendant to sell the realty at issue to the plaintiff under the terms of their agreements. On August 28, 2008, the defendant filed a motion to open the judgments and for reconsideration, which the court denied on November 5, 2008. This appeal followed.

On appeal, the defendant claims that the court applied an improper standard in finding that the plaintiff had complied with the conditions precedent to its exercise of the options and improperly determined that the plaintiff had retained its right to exercise the options. Specifically, the defendant contends that the plaintiff could have maintained its right to exercise the options only by strict compliance with the conditions precedent to its exercise of the options and that the plaintiff had lost its right to exercise the options because it had failed to satisfy this strict compliance standard. We agree.

We begin by setting forth the applicable standards of review. The defendant’s appeal challenges the validity of the trial court’s judgments with respect to its fact-finding and legal conclusions. “Our basic standard of review of such claims is well established. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Johnson Electric Co. v. Salce Contracting Associates, Inc., 72 Conn. App. 342, 344, 805 A.2d 735, cert. denied, 262 Conn. 922, 812 A.2d 864 (2002). Our standard of review when the court has granted or denied the remedy of specific performance of a contract to sell land is abuse of discretion because specific performance “is a remedy which rests in the broad discretion of the trial court depending on all of the facts and circumstances when viewed in light of the settled principles of equity.” (Internal quotation marks omitted.) Hill v. Raffone, 103 Conn. App. 737, 742, 930 A.2d 788 (2007).

Our Supreme Court has determined, albeit implicitly, that when a lease provides the lessee with the option to purchase realty subject to certain terms and conditions, the right of the lessee to exercise the option is contingent on the lessee’s strict compliance with those terms and conditions. See Brauer v. Freccia, 159 Conn. 289, 268 A.2d 645 (1970). The facts in Brauer are similar to the facts in the present case. In Brauer, the plaintiffs and the defendants entered into a lease that provided the plaintiffs with an option to purchase the defendants’ property on the condition that, among other things, the plaintiffs pay rent to the defendants by the first day of each month during the term of the lease. Id., 291 n.l. At the time that the plaintiffs attempted to exercise their option, they had failed to make a number of the required rent payments. Id., 292. It was on that basis that the defendants refused to convey their property to the plaintiffs. Id. Our Supreme Court ruled in favor of the defendants and found that the language of the lease “clearly indicate [d] that the defendants’ duty to comply with the terms of the option was conditioned upon the plaintiffs’ punctual performance of their obligations under the lease.” Id., 293-94. The court further determined that “[a] tenant who fails to meet the named conditions of his lease defeats his right to rely on it when he makes an effort to purchase the property pursuant to the option in the lease. Lake Shore Country Club v. Brand, 339 Ill. 504, 522, 171 N.E. 494 [1930].” Brauer v. Freccia, supra, 294. The court concluded, therefore, that “since the plaintiffs had failed to perform their obligations under the lease, the right to enforce the option to purchase was not in existence and the defendants were under no obligation to convey the property.” Id.

A review of Lake Shore Country Club, which our Supreme Court cited in Brauer, is instructive. In Lake Shore Country Club, the Supreme Court of Illinois found that the lessee had failed to comply with a number of the conditions of an option to purchase real property. The lessors, citing the lessee’s noncompliance, refused to convey their property to the lessee. Lake Shore Country Club v. Brand, supra, 339 Ill. 512. The court, in rendering its decision in favor of the lessors, determined that because an option contract is unilateral, and “[b]ecause but one party is bound thereby and the other is not, courts will exercise their discretion with great care in determining whether such a unilateral contract has been converted into a bilateral contract.” (Citation omitted.) Id., 521. “[UJnless the [lessee] has met the conditions of the option contract or the conditions have been waived, it is not entitled to exercise the option.” Id., 522. In subsequent decisions, Illinois courts have interpreted the Lake Shore Country Club decision as requiring that a party must comply strictly with the conditions precedent to its right to exercise an option. See, e.g., Epton v. CBC Corp., 48 Ill. App. 2d 274,284-85, 197 N.E.2d 727 (1964).

On appeal, the plaintiff claims that the court properly applied the doctrine of substantial compliance in determining that it had retained the right to exercise the options at issue. The plaintiff correctly asserts that the “general rule with respect to compliance with contract terms ... is not one of strict compliance, but substantial compliance.” (Internal quotation marks omitted.) Borelli v.H&H Contracting, Inc., 100 Conn. App. 680,692 n.6,919 A.2d 500 (2007), appeal dismissed, 285 Conn. 553, 940 A.2d 787 (2008), quoting 15 S. Williston, Contracts (4th Ed. Lord 2000) § 44:52, pp. 217-18. The doctrine of substantial compliance is closely intertwined with the doctrine of substantial performance. “The doctrine of substantial performance shields contracting parties from the harsh effects of being held to the letter of their agreements. Pursuant to the doctrine of substantial performance, a technical breach of the terms of a contract is excused, not because compliance with the terms is objectively impossible, but because actual performance is so similar to the required performance that any breach that may have been committed is immaterial.” (Internal quotation marks omitted.) Borelli v. H & H Contracting, Inc., supra, 692 n.6, quoting 15 S. Williston, supra, § 44:52, pp. 221-22.

While the doctrine of substantial compliance is the general rule with respect to bilateral contracts, it is not the general rule with respect to options. An option, unlike a bilateral contract to buy and sell real estate, is unilateral in nature. See 15 S. Williston, supra, § 44:52, pp. 217-20. “The distinction ... is that the contract to purchase and sell creates a mutual obligation on the one party to sell and on the other to purchase, while an option merely gives the right to purchase within a limited time without imposing any obligation to purchase.” (Internal quotation marks omitted.) Harley v. Indian Spring Land Co., 123 Conn. App. 800, 815-16, 3 A.3d 992 (2010).

In light of our Supreme Court’s decision in Brauer, we conclude that a party retains its right to exercise an option to purchase realty only by strict compliance with the conditions precedent to its exercise of the option. We also find it persuasive that strict compliance is now the rule in many American jurisdictions. See, e.g., Pear v. Davenport, 67 Mass. App. 239, 244-45, 853 N.E.2d 206 (2006); Le Baron Homes, Inc. v. Pontiac Housing Fund, Inc., 319 Mich. 310, 315, 29 N.W.2d 704 (1947); Raanan v. Tom’s Triangle, Inc., 303 App. Div. 2d 668, 669, 758 N.Y.S.2d 343 (2003); Zeidman v. Davis, 161 Tex. 496, 499, 342 S.W.2d 555 (1961); Buchannon v. Billings, 127 Vt. 69, 74-75, 238 A.2d 638 (1968); see also 77A Am. Jur. 2d 158, Vendor and Purchaser § 40 (2006); 92 C.J.S. 144-45, Vendor and Purchaser § 171 (2010); 25 S. Williston, Contracts (4th Ed. Lord 2002) § 67:84, pp. 499-502.

The defendant claims that the plaintiff has lost its right to exercise the options at issue because it has not strictly complied with the conditions precedent to the defendant’s duty to perform. “A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. . . . Whether the performance of a certain act by a party to a contract is a condition precedent to the duty of the other party to act depends on the intent of the parties as expressed in the contract and read in the light of the circumstances surrounding the execution of the instrument.” (Citation omitted; internal quotation marks omitted.) Brauer v. Freccia, supra, 159 Conn. 293.

In the present case, the two lease agreements provide that the defendant’s duty to perform under the terms of the options is conditioned on the plaintiffs “compliance with the terms and conditions of [the] Lease, the Letter of Intent, and Management Agreement . . . .” Additionally, the management agreement provides that the plaintiff must be in “full compliance with [the management agreement]” in order to exercise the options to purchase the defendant’s realty. Under the terms of these agreements, the plaintiff is required to make periodic payments to the defendant and to certain third parties by specified deadlines. We conclude, therefore, that the plaintiffs right to exercise the options is subject to a condition precedent — namely, the timely submission of the aforementioned payments.

Upon our review of the record, we find ample support for the court’s finding that the plaintiff was often late in making the required payments. Accordingly, we agree with the court’s conclusion that the plaintiff did not strictly comply with the terms and conditions of its agreements with the defendant. We conclude, therefore, that the plaintiff did not have the right to exercise the options to purchase the defendant’s realty because the plaintiff was not in strict compliance with the contracts that set forth the terms of the options.

The judgments are reversed and the cases are remanded with direction to render judgments for the defendant.

In this opinion the other judges concurred.

       The defendant also claims that (1) assuming that the doctrine of substantial performance applies to option contracts, the trial court improperly determined that the plaintiff had substantially complied with the terms and conditions of the options at issue and (2) that the court improperly determined that the plaintiff had demonstrated that it was able to perform by purchasing the defendant’s realty. Because we reverse the judgments rendered in favor of the plaintiff due to its failure to comply strictly with the conditions precedent to its exercise of the options, we do not address these claims on appeal.

       ARCO was not a party to these actions and, accordingly, is not a party to this appeal.

       A third shop, located in Westerly, Rhode Island, was part of the transaction but is not at issue in this appeal.

       Two additional individuals, Kent H. Childs and M. Paulina Anderson, personally guaranteed the transaction. Neither of them, however, is a party to this appeal.

       The leased equipment for automobile emissions testing was located in the Westerly, Rhode Island shop. Although the ownership of that shop is not in dispute in the present case, the timely payment of the equipment lease was required by the management agreement, which applied to all three shops.

       The defendant also testified that timely payment was “the only consideration [that he received] for giving [the plaintiff] the option[s] . . . .”

       The lease at issue in Brauer provided in relevant part that “IT IS FURTHER MUTUALLY AGREED THATif the Lessees shall have duly and punctually fulfilled all of the provisions, agreements, covenants and conditions of this lease . . . the Lessor . . . will convey the leased premises to the lessees . . . (Internal quotation marks omitted.) Brauer v. Freccia, supra, 159 Conn. 291 n.l.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ROBERT KENNY v. TOWN OF ORANGE
    (AC 31985)
    Alvord, Bear and West, Js.
    Argued December 10, 2010
    officially released February 1, 2011

      John M. Gesmonde, for the appellant (plaintiff).

      Michael J. Domey, with whom, on the brief, was Michael G. Caldwell, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Robert Kenny, appeals from the judgment of the trial court in favor of the defendant, the town of Orange. The trial court declined, inter alia, to order the defendant to commence immediately payment of the plaintiffs deferred vested pension benefit. On appeal, the plaintiff claims that the court erred in concluding that he was not entitled to the payment of his deferred vested pension benefit until March 1, 2019, his normal retirement date. We affirm the judgment of the trial court.

After examining the record on appeal and considering the briefs and the arguments of the parties, we conclude that the judgment of the trial court should be affirmed. Because the court’s memorandum of decision resolves properly the issue raised in this appeal, we adopt the court’s comprehensive and well reasoned decision as a statement of the facts and the applicable law on the issue. See Kenny v. Orange, 51 Conn. Sup. 506, 11 A.3d 744 (2010). Any further discussion by this court would serve no useful purpose. See, e.g., Socha v. Bordeau, 289 Conn. 358, 362, 956 A.2d 1174 (2008).

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. RONALD ROJAS
    (AC 31260)
    Harper, Beach and Borden, Js.

      Argued October 27, 2010
    officially released February 1, 2011

      Frank P. Cannatelli, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Brian J. Leslie, assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Ronald Rojas, appeals from the judgment of conviction, rendered following a jury trial, of criminal violation of a protective order in violation of General Statutes § 53a-223 (a). The defendant claims that the evidence did not support the jury’s verdict. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found that the defendant and Alima Bryant had been in a romantic relationship for several years prior to June, 2007. During their relationship, the defendant and Bryant resided together in East Haven and had a son. After the relationship ended, Bryant resided in Guilford with their son. Bryant began a romantic relationship with Wuilmor Rios, who had been a close friend of the defendant. On July 9, 2007, Bryant obtained a protective order that prohibited the defendant from, inter alia, restraining, threatening, harassing, attacking or assaulting her.

At approximately 10:55 p.m. on July 31, 2007, Bryant was operating an automobile and was leaving the driveway of her Guilford residence. Rios was in the passenger seat and Bryant’s three year old son was in a child safety seat in the back of the automobile. Bryant observed the defendant’s automobile drive by her residence. Shortly thereafter, Bryant observed the defendant’s automobile approach the rear of her automobile. The defendant’s automobile then struck the rear of her automobile and proceeded to push her automobile down the street, causing her to lose control of it briefly. She attempted to stop it, to no avail, and, fearing for her son’s safety, screamed for the driver to stop.

Although Bryant did not observe the driver of the defendant’s automobile, after it stopped pushing her automobile, she observed the defendant and his brother approach her automobile. One of the men opened the passenger door of her automobile, and a violent physical attack upon Rios ensued. The defendant and his brother struck Rios repeatedly while he was in the passenger seat of Bryant’s automobile. Bryant attempted to stop the assault but was not successful. Rios exited Bryant’s automobile but shortly thereafter was restrained by the defendant’s brother. The defendant quickly entered his automobile, positioned it in front of Bryant’s automobile and exited the automobile carrying a glass bottle.

Bryant attempted to restrain the defendant, but he approached his brother and Rios with the bottle. One of the men struck Rios in the head with the bottle, causing it to shatter. The strike caused a head injury that entailed a significant loss of blood. After the defendant and his brother delivered additional blows to Rios, striking him with their fists and kicking him, the defendant instructed his brother that it was time to go. The defendant got into the driver’s seat of his automobile, and his brother got into the passenger seat of the automobile. The defendant drove from the scene to his residence in East Haven. In a frantic emotional state, Bryant called 911 to report the incident.

The defendant challenges the sufficiency of the evidence to support his conviction. He does not dispute that, prior to the incident, a protective order had been issued against him that would have precluded the type of conduct at issue. Instead, he argues that there was no evidence upon which the jury reasonably could have found that (1) he was present at the scene of the crime and (2) he had violated the protective order. The state bore the burden of proving beyond a reasonable doubt that a protective order had been issued against the defendant and that he violated the order by “intendfing] to perform the activities that constituted the violation of the protective order.” (Internal quotation marks omitted.) State v. Osimanti, 299 Conn. 1, 16 n.15, 6 A.3d 790 (2010).

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Hedge, 297 Conn. 621, 656-57, 1 A.3d 1051 (2010).

We readily reject the defendant’s claim. Along with presenting other evidence that supported the verdict, the state presented testimony from Bryant, who identified the defendant in court and described his activities at the crime scene. She stated that there was no doubt in her mind regarding her identification of the defendant and the relevant facts. The jury reasonably could have found that Bryant’s identification of the defendant was reliable; there was evidence that she was intimately familiar with him prior to the crime and had an ample opportunity to observe him at the crime scene. See, e.g., State v. Smith, 110 Conn. App. 70, 77, 954 A.2d 202 (eyewitness identification of defendant may be reliable even if witness observed defendant for only seconds), cert. denied, 289 Conn. 954, 961 A.2d 422 (2008). Furthermore, Bryant unambiguously described the defendant’s activities at the crime scene as well as his flight from the scene. Such testimony amply supported a reasonable inference that the defendant intended to engage in the conduct that occurred at the scene, which clearly violated the protective order.

In his brief, the defendant attempts to discredit Bryant’s credibility. Such an attempt is inconsequential to our analysis. See, e.g., State v. Moody, 121 Conn. App. 207, 217, 994 A.2d 702 (challenge to credibility of state’s witnesses unrelated to sufficiency of evidence), cert. denied, 297 Conn. 920, 996 A.2d 1193 (2010). Also, the defendant raises arguments that call upon this court to give weight to evidence favorable to his version of the events of July 31, 2007, and to draw inferences from the evidence that are favorable to him. These arguments are unavailing, for “[o]n appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilt.” State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994).

Furthermore, we are not persuaded by the defendant’s argument that the jury’s verdict of not guilty with regard to several crimes of which he stood charged casts doubt upon the sufficiency of the evidence. First, the defendant has not demonstrated that the verdict returned by the jury in this case is in any way inconsistent. Second, even if the defendant was able to demonstrate that an inconsistency existed, our case law is clear that such an inconsistency, whether deemed factual, logical or legal in nature, is permissible and that claims related to such an inconsistency are not reviewable on appeal. See State v. Alberto M., 120 Conn. App. 104, 113, 991 A.2d 578 (2010).

The judgment is affirmed.

       For the defendant’s conviction of criminal violation of a protective order, the court imposed a total effective sentence of three years imprisonment, execution suspended after one year, followed by an eighteen month term of probation with special conditions. The defendant also was charged with, but found not guilty of, the crimes of attempt to commit assault in the first degree, assault in the second degree, risk of injury to a child, conspiracy to commit assault in the second degree and stalking in the second degree. These offenses, of which the defendant was found not guilty, allegedly occurred during the incident that underlies the offense for which the defendant stands convicted.

       The protective order, submitted as an exhibit, provided in relevant part that the defendant “shall refrain from threatening, harassing, stalking, assaulting, molesting, sexually assaulting or attacking [Bryant].” The order also prohibited the defendant from entering Bryant’s residence or restraining Bryant.

       The evidence supported a finding that the automobile was owned by the defendant’s brother but that Bryant was using the automobile with his permission. For convenience in discussing the relevant facts, we refer to the automobile as Bryant’s automobile.

       See footnote 1 of this opinion.


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. RICKY OWEN
    (AC 31021)
    Harper, Beach and Schaller, Js.
    Argued October 18, 2010
    officially released February 1, 2011

      Katherine C. Essington, special public defender, for the appellant (defendant).

      Linda Currie-Zeffiro, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Joseph T. Corradino, senior assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, Ricky Owen, appeals from the judgment of conviction, rendered following a jury trial, of carrying a pistol without a permit in violation of General Statutes § 29-35 (a) and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. The defendant claims that the court improperly denied his motion to suppress certain evidence. We affirm the judgment of the trial court.

The record reveals that, prior to trial, the defendant filed a motion to suppress “any and all evidence, whether tangible or intangible, and including statements and identifications . . . seized or obtained illegally, without a warrant or probable cause, or in violation of the Connecticut or United States [c]onstitution[s].” In June, 2008, the court held a hearing on the motion. Thereafter, the court, in a memorandum of decision, denied the motion. In that decision, the court set forth the following findings of fact: “In the early morning hours of March 4, 2008, Sergeant Robert Mag-nuson was parked in his patrol car on Fifth Street in Bridgeport approximately thirty to fifty feet from its intersection with Stratford Avenue. The front of his patrol car faced Stratford Avenue. Sometime prior to 2:52 a.m., another patrol car, occupied by Officers [Luigi] Tucciarone and [Sam] Leon drove from Stratford Avenue onto Fifth Street and stopped next to Sergeant Magnuson’s car. This second patrol car was facing away from Stratford Avenue. At the comer of Stratford Avenue and Fifth Street was a building occupied by Pett-way’s Store. This building blocked the officers’ line of sight up Stratford Avenue.

“At approximately 2:52 a.m., the officers heard three to four gunshots. The [gun]shots were coming from the right of Sergeant Magnuson, somewhere in front of Pettway’s Store. Sergeant Magnuson believed that the [gun]shots had come from a location twelve to twenty feet from him.

“After hearing the [gun]shots, Sergeant Magnuson immediately put his car in gear and turned right onto Stratford Avenue. As Sergeant Magnuson proceeded the wrong way up Stratford Avenue, he saw four persons in front of a residence. Three of those persons crossed Stratford Avenue and the fourth walked through a gate, up the stairs and into 1050 Stratford Avenue.

“Officer Tucciarone had followed Sergeant Magnu-son onto Stratford Avenue. He also saw the four persons outside 1050 Stratford Avenue. Three of the persons ran across Stratford Avenue to Fourth Street, and the fourth went inside 1050 Stratford Avenue.

“The officers’ observations of the four men occurred within seconds of the gunshots. Other than those four, there were no other persons on the street.

“The police pursued the three persons who had crossed Stratford Avenue. Two were stopped by Sergeant Magnuson and Officer Leon. After a foot chase, the third person was stopped by Officer Tucciarone. All three were patted down, and no guns or other weapons were found.

“The police now believed that the shooter was the fourth person who had entered 1050 Stratford Avenue. Sergeant Magnuson directed that the building be surrounded. He then went on to the porch and knocked at the front door. At this point, approximately five minutes had elapsed from the time that the police had seen the fourth man enter the building.

“After repeatedly knocking on the front door, the door was opened by Wanda Smith. She was obviously pregnant. Sergeant Magnuson explained that [gun]shots had been fired in the area and that a person had been seen entering her house. She said that the only persons inside were her and her child. Ms. Smith initially resisted the police request to enter her home. A conversation went on for some minutes with the police emphasizing to Ms. Smith that they needed to check the house for safety purposes. Ultimately, Ms. Smith agreed to let the police officers in [with the] condition that she remain with the police during the search.

“Sergeant Magnuson advised other officers who had arrived on the scene that ‘she gave us the okay,’ and the police then entered 1050 Stratford Avenue. To the right of the front door in a sitting-living room area, the police found the defendant in his underwear, on a couch. He was detained. Almost simultaneously, an officer discovered a .357 magnum revolver on the floor of one of the bedrooms. The gun was located within seconds of the police entry. Upon inspection, the gun was found to contain four spent shell casings and two live rounds. After the gun was located, the defendant was arrested.”

Initially, the court concluded that the defendant had standing to challenge the warrantless entry into the residence because he “had at least the status of an overnight guest at 1050 Stratford Avenue . . . .’’In making this determination, the court found that the defendant resided at the residence with the permission of Smith, who leased the residence. The court found, however, that Smith was unaware of the defendant’s presence at the time of the search. Thereafter, the court concluded that the warrantless entry was lawful because Smith had consented to the police search of the residence. As an alternative justification for the search, the court concluded that exigent circumstances justified the warrantless entry into the residence and that, while lawfully present in the residence, the police properly seized the defendant’s gun, which was in plain view of the police. In this regard, the court concluded that “[t]he situation presented sufficient exigent circumstances to justify immediate police action in order to protect human life, prevent destruction of evidence and apprehend a suspect who had fled the police.” The defendant claims that the court’s legal determinations are in error and, thus, that the search violated the prohibition against unreasonable search and seizure guaranteed by the fourth amendment to the United States constitution.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... We undertake a more probing factual review when a constitutional question hangs in the balance.” (Internal quotation marks omitted.) State v. Jenkins, 298 Conn. 209, 222, 3 A.3d 806 (2010).

Although, as set forth previously, the court determined that the search and seizure passed constitutional muster on several diverse grounds, we will confine our analysis to reviewing the court’s conclusion that the search and seizure was lawful under the exigent circumstances doctrine. As it relates to this specific rationale, the defendant does not appear to challenge the court’s findings of fact regarding the facts integral to the search.

“It is indisputable that the home is afforded heightened protection under the fourth amendment. We have long acknowledged that entry by government into a person’s home is the chief evil against which the wording of the [f]ourth [a]mendment is directed. . . . The [f]ourth [a]mendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home— a zone that finds its roots in clear and specific constitutional terms: The right of the people to be secure in their . . . houses shall not be violated. [U.S. Const., amend. IV.] That language unequivocally establishes the proposition that [a]t the very core [of the fourth amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. . . . [I]n terms that apply equally to seizures of property and to seizures of persons, the [¶] ourth [a]mendment has drawn a firm line at the entrance to the house.” (Citations omitted; internal quotation marks omitted.) State v. Mann, 271 Conn. 300, 314, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125 S. Ct. 1711, 161 L. Ed. 2d 527 (2005).

“Ordinarily, police may not conduct a search unless they first obtain a search warrant from a neutral magistrate after establishing probable cause. [A] search conducted without a warrant issued upon probable cause is per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions. . . . These exceptions have been jealously and carefully drawn . . . and the burden is on the state to establish the exception.” (Internal quotation marks omitted.) State v. Johnson, 286 Conn. 427,434, 944 A.2d 297, cert. denied, 555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008). Our law recognizes that “there will be occasions when, given probable cause to search, resort to the judicial process will not be required of law enforcement officers. [For example], where exigent circumstances exist that make the procurement of a search warrant unreasonable in light of the dangers involved ... a warrant will not be required.” (Internal quotation marks omitted.) State v. Spencer, 268 Conn. 575, 585-86, 848 A.2d 1183, cert. denied, 543 U.S. 957, 125 S. Ct. 409,160 L. Ed. 2d 320 (2004).

“The term, exigent circumstances, does not lend itself to a precise definition but generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.” (Internal quotation marks omitted.) State v. Gant, 231 Conn. 43, 63-64, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995). “It is well established in Connecticut . . . that the test for the application of the doctrine is objective, not subjective, and looks to the totality of the circumstances. . . . Specifically, [t]he test of exigent circumstances for the making of an arrest for a felony without a warrant ... is whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others. This is an objective test; its preeminent criterion is what a reasonable, well-trained police officer would believe, not what the arresting officer actually did believe. . . . The reasonableness of a police officer’s determination that an emergency exists is evaluated on the basis of facts known at the time of entry.” (Citations omitted; internal quotation marks omitted.) State v. Aviles, 277 Conn. 281,293-94,891 A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166 L. Ed. 2d 69 (2006).

As this court has observed, “[t]he terms exigent circumstances and emergency doctrine are often used interchangeably when discussing warrantless entries into ahorne. The term exigent circumstances, however, generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization. . . . The emergency exception refers to another type of warrantless entry that evolves outside the context of a criminal investigation and does not involve probable cause as a prerequisite for the making of an arrest or the search for and seizure of evidence.” (Citations omitted; internal quotation marks omitted.) State v. Klauss, 19 Conn. App. 296, 300, 562 A.2d 558 (1989).

As a preliminary matter, we conclude that the police had probable cause to enter the residence, 1050 Stratford Avenue, at the time of the entry. “Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched. ... In determining the existence of probable cause to search, the issuing magistrate assesses all of the information set forth in the warrant affidavit and should make a practical, nontechnical decision whether . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. . . . Probable cause, broadly defined, [comprises] such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law. . . . The trial court’s determination on [that] issue, therefore, is subject to plenary review on appeal.” (Internal quotation marks omitted.) State v. Ruscoe, 119 Conn. App. 834, 844-45, 989 A.2d 667, cert. denied, 296 Conn. 903, 992 A.2d 330 (2010).

Here, the evidence readily would persuade a reasonable person to believe that criminal activity had occurred in that three police officers, at 3 a.m., heard the sound of multiple gunshots close to their location in a residential area. The evidence also would lead a reasonable person to believe that there was a fair probability that contraband or evidence of a crime would be found in 1050 Stratford Avenue. Within moments of hearing the sound of gunshots, the officers arrived at the location of the gunshots. They observed four men fleeing the scene, which was an otherwise deserted city street. A reasonable person would infer that their presence in the area of the gunshots, the early hour and their flight was consistent with their involvement in criminal activity related to the gunshots. The three men who did not flee into the residence were apprehended, searched and found to be unarmed. On these facts, a reasonable person would suspect that the fourth man, who was observed fleeing into the residence, was in possession of evidence of a crime, to wit: the gun used in the incident. Upon knocking at the door of the residence, the police did not learn any facts that would dispel their suspicions, but spoke with Smith, who provided them with facts concerning who was present in the residence. These representations, however, contradicted what the police officers themselves had witnessed moments earlier, thus heightening in the mind of a reasonable person a suspicion that criminal activity was afoot in the residence.

On the basis of all of these facts known to the police, it was reasonable for the police to suspect that a man who was involved in the shooting had fled into the residence. Because the police had not located a gun in their apprehension of the three men on the street, and a gun necessarily had been used in the criminal activity that they had heard, it was reasonable for the police to suspect that the gun was inside the residence. On these facts, it was proper for the court to find that probable cause existed to search any part of the residence where the defendant or the gun might be present.

Furthermore, it was reasonable for the court to conclude that exigent circumstances existed to support a lawful warrantless entry into the residence. On the basis of firsthand observations, the police had a reason to suspect that four men had participated in criminal activity involving the discharge of multiple gunshots. The police observed these four men fleeing the scene upon their arrival very shortly thereafter. One of the men fleeing the scene, and thus engaging in conduct that was consistent with the evasion of apprehension or arrest by the police, was seen hurriedly entering the residence. Responding to the knocking at the door, Smith did not state that any adult male was present but informed the police that she was in the residence with her child. Upon being presented with information that a shooting had occurred in front of her residence and that a suspect had fled into her residence, Smith initially was reluctant to let the police search the residence.

These facts known to the police at the time of entry gave the police a very strong basis to suspect that a fleeing suspect was hiding from them in the residence. As the court found, approximately five minutes had elapsed from the time that the police observed the man enter the residence and the time that Magnuson knocked on the door of the residence. Knowing that a suspect who likely was armed had entered the residence and considering the fact that Smith did not provide a plausible explanation for what they had observed, it was reasonable for the police to believe that they were close to making an arrest. Under these facts, it was objectively reasonable for the police to believe that the suspect had entered the residence unlawfully, or at least unbeknownst to Smith, or that Smith was helping the suspect evade the police. In any event, just minutes into their investigation, it was reasonable for the police to believe that the delay necessary to obtain a search warrant would have left them unable or unlikely to effectuate an arrest. Stated otherwise, the police had ample reason to believe that, absent swift action in entering and searching the residence, there was a significant risk of the defendant secreting or destroying evidence linking him to criminal activity or otherwise hampering their ability to apprehend him.

For the foregoing reasons, the court properly concluded that the search was lawful under the exigent circumstances exception. Accordingly, the court properly denied the defendant’s motion to suppress evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant waived his right to a jury trial with regard to a part B information charging him with having committed an offense while released on bond in violation of General Statutes § 53a-40b and being a persistent serious felony offender as defined in General Statutes § 53a-40 (c). The court found against the defendant and enhanced his sentence based on these charges. The court imposed a total effective sentence of seven years incarceration followed by three years of special parole.

       At trial, the defendant couched his motion to suppress in terms of his rights under the state and federal constitutions. likewise, in his appellate brief, the defendant refers to his rights under the state and federal constitutions. Beyond asserting that states are “free to afford higher levels of protection” against unreasonable search and seizure, the defendant does not independently analyze any aspect of his claim under the state constitution or demonstrate that our state constitution afforded him greater protection than its federal counterpart. Accordingly, we will tailor our analysis to the relevant protection afforded by the federal constitution. See, e.g., State v. Ortiz, 95 Conn. App. 69, 77 n.2, 895 A.2d 834, cert. denied, 280 Conn. 903, 907 A.2d 94 (2006).

       With regard to the court’s reliance on the doctrine of consent, the defendant claims that the court’s factual finding that Smith had agreed to the police entering and searching her residence was not supported by the evidence. Also, the defendant claims that, insofar as the court concluded that the police entered the residence lawfully under the emergency doctrine, the court’s reliance on that doctrine was not supported by the facts of the case. The outcome of this appeal depends only on a finding that the police conduct at issue was constitutional under one of the alternate theories on which the court relied. Because we reach that determination by upholding the court’s reliance on the exigent circumstances doctrine, we need not and do not address the claims pertaining to consent or the emergency doctrine.
      We note that, apart from arguing that the exigent circumstances doctrine did not apply, the defendant asserts that the state did not argue specifically at the suppression hearing that the search and seizure was legally justified under that doctrine to prevent the destruction of evidence or to pursue and to apprehend the defendant. At the suppression hearing, the court heard evidence that upon their arrival at the Stratford Avenue scene, the police began canvassing the area for a gun. There was evidence that, after the police entered the residence, they discovered the defendant, lying on a couch, near the front door. Seconds later, the police discovered a gun in a bedroom in the residence. The transcript of the suppression hearing reflects that at the suppression hearing the state unambiguously relied on the exigent circumstances exception to the warrant requirement, asserting that it was proper under the circumstances for the police to enter the residence to locate the defendant and the gun. Thus, the record is clear that the state relied on the exception and the court, likewise, relied on it in denying the motion to suppress.

       In contesting the court’s determination that exigent circumstances permitted the entry, the defendant, referring to the testimony of the police officers at the scene, suggests that the police had an ample opportunity to secure the residence while obtaining a search warrant. This argument, however, presumes that the only interest of the police was in preventing the suspect from fleeing the residence. As our analysis reflects, the police had a legitimate interest in preventing the defendant from hiding or destroying evidence of criminal activity that would have supported his arrest. Certainly, the police at the scene reasonably could have determined that time was of the essence, such that any appreciable delay in searching the residence would have afforded the defendant an opportunity effectively to conceal or to destroy the gun used in the shooting incident overheard by the police.


author: WEST, J.

text:
    UNIFUND CCR PARTNERS v. ELLEN A. SCHAEPPI ET AL.
    (AC 30474)
    Harper, Robinson and West, Js.

      Argued November 20, 2009
    officially released February 1, 2011

      Scott Dellaventura, with whom, on the brief, was Joseph M. Tobin, for the appellant (plaintiff).

      Kirk D. Tavtigian, Jr., for the appellees (named defendant et al.).
   Opinion

WEST, J.

In this foreclosure action, the plaintiff, Uni-fund CCR Partners, appeals from the judgment rendered by the trial court in favor of the defendants Ellen A. Schaeppi and Ernest A. Schaeppi. The plaintiff claims on appeal that the trial court improperly granted the defendants’ motion for summary judgment. Specifically, the plaintiff argues that the court improperly (1) granted the defendants’ motion for summary judgment because it lacked the requisite memorandum of law accompanying it pursuant to Practice Book § 11-10 and (2) concluded that the judgment hen that formed the basis of the foreclosure action was invalid because it sought to secure a money judgment of no amount. We disagree and, accordingly, affirm the judgment of the trial court.

The following undisputed facts and procedural history are necessary for our resolution of the plaintiffs appeal. On July 27, 2004, the plaintiff filed a complaint seeking to collect credit card debt allegedly owed by the defendants. A hearing was held on October 31,2005, before an attorney fact finder. In his January 5, 2006 report, he recommended judgment in favor of the defendants because the plaintiff had failed to establish that the credit card debt had been assigned to the plaintiff. The plaintiff objected to the acceptance of the findings of fact on February 6, 2006. The court, Miller, J., remanded the matter to the attorney fact finder for a rehearing on the issue of whether there had been a valid assignment of the credit card debt. After the hearing on remand was held on March 27, 2006, the attorney fact finder recommended, in a report dated March 30, 2006, that judgment enter in favor of the plaintiff. On June 19, 2006, the court rendered judgment in favor of the plaintiff, stating: “Judgment shall enter in favor of the plaintiff on the fact finder’s report as revised after remand.” The plaintiff placed a judgment lien on real property owned by the defendants, which was recorded in the Glastonbury land records on July, 18, 2006. The plaintiff then filed with the court a motion for an order of weekly payments on August 25, 2006, seeking payments of $35 per week. On September 11, 2006, the court, Miller, J., granted the motion and set payments of $25 per week to commence on October 11, 2006.

By complaint filed on November 13,2006, the plaintiff then sought foreclosure on the judgment lien. On September 10, 2007, the plaintiff filed a motion for partial summary judgment as to liability. By memorandum of decision filed March 20, 2008, the court, Hon. Robert Satter, judge trial referee, denied the motion. The court reasoned that the “issue of what portion of the defendants’ interest in their property is exempt and what portion [is] nonexempt [under General Statutes §§ 52-352a and 52-352b] gives rise to an issue of fact, which, in this case, precludes the granting of [the] plaintiffs motion for summary judgment.” The court also concluded that the value of the defendants’ property was in doubt, and, therefore, the plaintiffs summary judgment motion should be denied. The court went on to state that there was another ground on which the plaintiffs motion for summary judgment “must be denied . . . .” The court indicated it had taken judicial notice of and examined the court file of the debt collection action that formed the basis of the foreclosure action. It concluded from that examination that no money judgment had entered in that case because the attorney fact finder had made no finding as to the amount of debt. Moreover, the court continued, Judge Miller had subsequently ordered that judgment enter in favor of the plaintiff on the basis of the attorney fact finder’s report without stating the amount of the judgment. Judge Satter reasoned that, because General Statutes § 52-350f provides in relevant part that a “money judgment may be enforced, by execution or by foreclosure of a real property lien, to the amount of the money judgment,” and General Statutes § 52-380a (a) provides in relevant part that “[a] judgment lien, securing the unpaid amount of any money judgment, including interest and costs, may be placed on any real property,” the judgment lien underlying the foreclosure action was “of questionable validity.” The court, however, acknowledging that the only motion before it was the plaintiffs motion for summary judgment, declared that it was making no such ruling.

On March 28, 2008, the plaintiff filed a motion with the court, Miller J., seeking clarification of its June 19, 2006 judgment. The court held a hearing on the matter on May 12, 2008, during which the plaintiff indicated that it was seeking to have the court clarify the dollar amount of the judgment. After hearing from both parties, the court concluded that there never was a finding as to the amount of the debt and that “the judgment should have not been allowed to enter without a finite dollar amount.” As a result, the court further concluded, there never was a money judgment entered in the action, and, therefore, under the unique circumstances of the case, there was no basis for the court to clarify the judgment.

On July 31, 2008, the defendants filed a motion for summary judgment, attaching Judge Satter’s March 20, 2008 memorandum of decision addressing the plaintiffs motion for partial summary judgment. On August 5, 2008, the defendants filed a memorandum of law in support of its motion, which, except for the heading, was identical to its July 31,2008 motion. After a hearing was held on the matter, Judge Satter, by memorandum of decision filed October 15, 2008, granted the motion, concluding that, as a matter of law, a judgment of no amount, underlying a judgment lien in an incorrect amount cannot form the basis of a foreclosure action. This appeal timely followed. Further facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly granted the defendants’ motion for summary judgment because it lacked the requisite memorandum of law accompanying it pursuant to Practice Book § 11-10. Specifically, the plaintiff claims that it was unduly prejudiced by the lack of an adequate memorandum of law supporting the defendants’ motion for summary judgment. We disagree.

It is clear that the defendants did not file a contemporaneous supporting memorandum of law with their July 31, 2008 motion and merely attached a copy of Judge Satter’s March 20, 2008 memorandum of decision. The defendants, on August 5, 2008, however, did file a duplicate of that motion entitled “Memorandum of Law in Support of Defendants’ Motion for Summary Judgment,” also with Judge Satter’s memorandum of decision attached. The defendants contend that those attachments met the requirements of Practice Book § 11-10 by “briefly outlining the claims of law and authority pertinent thereto . . . .” Practice Book § 11-10. Moreover, the defendants claim that the plaintiff has failed to establish any prejudice from the defendants’ actions. We agree.

The following is the relevant portion of Judge Satter’s March 20, 2008 memorandum of decision that addressed the issues underlying the defendants’ motion. “There is another ground upon which the plaintiffs motion for summary judgment must be denied, and that goes to the merits of the plaintiffs case. The plaintiff allege[d] . . . that ‘[o]n July 19, 2006, the plaintiff obtained a judgment in [this] court against the defendants in the amount of $11,143.36 and $302 in costs.’ Further the plaintiff a!lege[d] that ‘on July 21, 2006, said judgment being unsatisfied, the plaintiff caused a certificate of judgment hen to be filed in the office of the town/city clerk in said town/city of Glastonbury.’ Attached to the complaint [was] the judgment hen certifying [that the] ‘[p]laintiff ... did obtain a judgment in its favor against the defendants for the sum of $9382.05 principal damages, plus prejudgment interest as awarded by the court and costs of suit.’ . . . This court has the right to take judicial notice of and, in fact, has examined the file of Unifund CCR Partners v. Schaeppi [Superior Court, judicial district of Hartford, Docket No. CV-04-4000979-S (Miller, J.)]. Such an examination reveals that no such money judgment claimed by the plaintiff was entered in that case.

“On July 28, 2004, the plaintiff initiated an action to recover an alleged credit card debt owed by the defendants to the original creditor ... in the amount of $9382.05 together with interest. The debt was subsequently allegedly assigned to the plaintiff. [The] [defendants interposed an answer. On [October 31, 2005] a hearing was held before [a] fact finder .... [The plaintiff was] represented by [its] present attorney, and the defendants appeared pro se. In the course of the fact finder’s reciting the evidence in the case, he noted [that] ‘[a]s of August 29, 2002, the defendants owed [the issuer of the credit card] $9382.05 (Plaintiff’s Exhibit I).’ However, in its report dated January 5, 2006, the fact finder reviewed the evidence of the assignment to [the] plaintiff and concluded that the plaintiff had failed to prove the validity of its assignment. The conclusion was as follows: ‘Based on the findings of fact, it is recommended to the court that a finding in favor of the defendants be entered without prejudice.’ The plaintiff objected to the acceptance of the fact finder’s report. Judge Miller entered an order: ‘The matter is hereby remanded to [the] fact finder . . . for a rehearing on the issue of whether or not there was a valid assignment to the plaintiff of the account in question.’

“A second hearing was held on March 30,2006, where [the] fact finder determined that a valid assignment had been made, and he also stated: ‘Accordingly, the defendants are liable to the plaintiff for the amount of the credit card charges made on [the credit card] account no. 549 . . . with interest.’ His conclusion was: ‘Based on the findings of fact, it is recommended to the court that a finding in favor of the plaintiff be entered.’ Judge Grant Miller, on June 19, 2006 entered the following judgment: ‘Judgment shall enter in favor of the plaintiff on the fact finder’s report as revised after remand.’

“General Statutes § 52-549r states that ‘[a fact finder] shall proceed to determine the matters in controversy submitted to them, and shall prepare and sign a finding of fact, which shall include an award of damages if applicable.’ In the instant case, the fact finder made no finding as to the amount of the debt. Recitation of the evidence with reference to an exhibit is not a finding of fact. The court construes the phrase ‘an award of damages’ in the above statute to mean a precise dollar amount. [The] [f]act finder . . . found the defendants liable for the amount of the credit card charges made on the specific account number but did not state that amount. Judge Grant Miller on June 19, 2006, ordered that judgment enter in favor of the plaintiff on the fact finder’s report, again without stating the amount of the judgment.

“[Section 52-350f] states: ‘The money judgment may be enforced, by execution or by foreclosure of a real property lien, to the amount of the money judgment . . . .’ (Emphasis added.) [Section] 52-380a (a) provides: ‘A judgment hen, securing the unpaid amount of any money judgment, including interest and costs, may be placed on any real property by recording, in the town clerk’s office in the town where the real property lies, a judgment lien certificate, signed by the judgment creditor or his attorney . . . containing ... the original amount of the money judgment and the amount due thereon . . . .’ (Emphasis added.) [Because] no money judgment was entered in the underlying case ... in the amount stated in the judgment hen, signed and recorded by [the] plaintiffs attorney, that lien is of questionable validity. However, this court is not making such a ruling. The only motion before it is [the] plaintiffs for summary judgment.”

The memorandum of decision attached to the July 31, 2008 motion was not entitled a memorandum of law; however, we conclude that it more than adequately provided the brief outline of the claims of law and authority pertinent to the defendants’ motion as required under our rules of practice. Judge Satter discussed in detail the undisputed facts underlying the issue in his memorandum of decision on the plaintiffs motion for partial summary judgment. He also set out the law supporting his conclusion that no money judgment had entered against the defendants in the underlying case before he rightfully indicated that he would not then rule on the matter. Moreover, even assuming arguendo that the defendants’ use of Judge Satter’s memorandum of decision in this manner indicates that they failed to comply with our rules of practice, the plaintiff has failed on appeal to demonstrate how it was prejudiced thereby. It is clear from our review of the record that the plaintiff was aware of the facts and the law on which the defendants were relying in their motion, and, therefore, the plaintiff has failed to establish that it was prejudiced under these circumstances. Moreover, the summary judgment was rendered on a matter of law that was not the subject of any factual dispute. Accordingly, we conclude that it was not improper for the court to grant the defendants’ motion for summary judgment because it lacked the requisite memorandum of law accompanying their motion for summary judgment. See Weigold v. Patel, 81 Conn. App. 347, 359-60, 840 A.2d 19 (summary judgment for defendant appropriate without supporting memorandum when rendered as matter of law, no facts in dispute and plaintiff aware of facts and law on which defendant relied), cert. denied, 268 Conn. 918,847 A.2d 314 (2004).

II

The plaintiff next claims that the court improperly concluded that the judgment lien that formed the basis of the foreclosure action was invalid as a matter of law because it sought to secure a money judgment of no amount. The plaintiff makes two arguments in favor of that claim. The plaintiff first argues that the June 19, 2006 judgment was a full and final judgment as to liability and damages because the amount of the judgment was ascertainable from the record. Second, the plaintiff argues alternatively that the order of weekly payments entered by the court on September 11, 2006, was a money judgment for a sum certain and, therefore, not a judgment for no amount. After setting forth the applicable standard of review, we address each argument in turn.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).

A

The plaintiff first argues that the June 19, 2006 judgment was a full and final judgment as to liability and damages because the amount of the judgment was ascertainable from the record. We disagree.

“A judgment hen, securing the unpaid amount of any money judgment, including interest and costs, may be placed on any real property . . . .” General Statutes § 52-380a (a). “To be conclusive on the parties and to terminate litigation, a judgment must be definitive and not ambiguous or uncertain; otherwise it is defective. . . . Particularly, [a] money judgment must specify with certainty the amount for which it is rendered, or if the amount is not stated, it must be ascertainable from the record or by mere mathematical computation. ... 46 Am. Jur. 2d 455, Judgments § 82 (2006) . . . .” (Citations omitted; internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn. App. 541, 560-61 n.19, 905 A.2d 1214, cert. denied, 280 Conn. 942, 943, 912 A.2d 479 (2006). The plaintiff argues that the amount of the judgment is ascertainable because the fact finder reports incorporated into the judgment, when read together, show that the fact finder found in favor of the plaintiff in the amount of $9382.05. The court, however, concluded that the June 19, 2006 judgment was for no amount, and, that as a matter of law, a judgment for no amount, underlying a judgment lien for another specific amount, cannot be the basis of a foreclosure action. Our plenary review of this claim, as well as the record and briefs, in the light most favorable to the plaintiff, leads us to the same conclusion as the court.

In his January 5, 2006 report, the fact finder stated: “As of August 29, 2002, the defendants owed [the issuer of the credit card] $9382.05. (Plaintiffs Exhibit I).” This statement, the plaintiff argues, forms the basis of the amount of the June 19, 2006 judgment. Even assuming arguendo that this was a finding of fact by the fact finder and not merely a recitation of the evidence, as the court, Hon. Robert Satter, judge trial referee, concluded, we cannot conclude that it is sufficiently definitive to form the basis of a money judgment against the defendant. We first note that the statement was made in a report that recommended that the court enter a finding in favor of the defendants. That recommendation concluded that the plaintiff had failed to establish that the alleged debt had been assigned to it. In order for it to have made such a finding, the fact finder need not have determined what, if any, damages were owed by the defendants; therefore, it remains uncertain that the amount cited by the plaintiff was, indeed, a determination of damages. Moreover, the date cited by the fact finder as of when that amount was owed by the defendants was some three and one-half years prior to his January 5, 2006 report. Last, the judgment that eventually was entered in favor of the plaintiff was entered “on the fact finder’s report as revised after remand.'1'’ (Emphasis added.) That report is bereft of any finding whatsoever as to the amount of damages. Under these circumstances, we conclude that the judgment entered against the defendants on June 19, 2006, was not definitive, unambiguous or certain as to the amount of damages owed. See Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., supra, 97 Conn. App. 560-61 n.19. Accordingly, we cannot conclude that the court improperly determined that the judgment lien that formed the basis of the foreclosure action was invalid because it sought to secure a money judgment of no amount.

B

The plaintiff argues alternatively that the order for weekly payments entered by the court on September 11, 2006, was a money judgment, and, therefore, the court improperly concluded that the judgment lien was made on the basis of a judgment for no amount of money. Specifically, the plaintiff argues that the September 11, 2006 order was a money judgment pursuant to General Statutes § 52-350a (13) that validly supported the judgment lien. The plaintiffs argument has no merit.

It is axiomatic that for a judgment lien to be valid, there must have been, at the time of the recording of the judgment hen, a judgment entered against the judgment debtor. See General Statutes § 52-380a; see also PNC Bank, N.A. v. Kelepecz, 289 Conn. 692, 700-701, 960 A.2d 563 (2008) (judgment hen method of appropriating in satisfaction of judgment real estate that could by law be taken on execution of such judgment). Here, the order for weekly payments was entered more than three weeks after the plaintiff recorded the judgment lien. As a result, it is impossible, regardless of the whether the order was a “money judgment” pursuant to § 52-350a (13), for the validity of the judgment hen to be grounded in the September 11,2006 order. Accordingly, this claim fails. The trial court properly rendered summary judgment in favor of the defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

       Surrey Hill Homeowners Association H, Inc., also is a defendant in this action but is not a party on appeal. We therefore refer in this opinion to Ellen Schaeppi and Ernest Schaeppi as the defendants.

       We note that § 52-352a was amended by Public Acts 2010, No. 10-181, § 4. That amendment, however, is not relevant to this appeal. We therefore refer to the current revision of the statute in this opinion. General Statutes §§ 52-352a and 52-352b provide the basic rules to determine what property of a debtor is unavailable to a creditor seeking to enforce a debt, including a judgment debt, by way of judicial process or court order. Sienkiewicz v. Sienkiewicz, 178 Conn. 675, 680, 425 A.2d 116 (1979).

       Practice Book § 11-10 provides in relevant part: “A memorandum of law briefly outlining the claims of law and authority pertinent thereto shall be filed and served by the movant with the following motions ... (5) motions for summary judgment. . . .”

       General Statutes § 52-350a (13) provides in relevant part: “ ‘Money judgment’ means a judgment, order or decree of the court calling in whole or in part for the payment of a sum of money, other than a family support judgment. . .

       Because the disposition of this case does not require this court to resolve whether the September 11, 2006 order was a money judgment pursuant to § 52-350a (13), we express no opinion in that regard.