author: O’Connell, J.

text:
    State of Connecticut v. Fernando Reis
    (11572)
    O’Connell, Foti and Landau, Js.

      Argued October 26, 1993
    decision released February 1, 1994

      John R. Gulash, Jr., for the appellant (defendant).

      C. Robert Satti, Jr., with whom, on the brief, were Donald A. Browne, state’s attorney, and Brian C. Roche, law student intern, for the appellee (state).
   O’Connell, J.

The defendant appeals from his conviction, after a jury trial, of criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1991) § 53a-217 (a). The defendant claims that the trial court improperly (1) precluded him from cross-examining the victim concerning his pending civil action, (2) ruled on the granting of immunity for a potential defense witness, (3) refused to admit a statement against penal interest into evidence, and (4) interpreted the sentencing provision of General Statutes § 53a-217. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On July 20, 1991, the defendant and Steven Carloto were involved in a dispute in Nanny Goat Park in Bridgeport. After a heated oral exchange, the two started wrestling on the ground. During this skirmish, Officer Robert Blanchard of the Bridgeport police department approached them and asked if there was a problem. Both the defendant and Carloto responded that they were only joking around. Blanchard then left, at which point the argument between the two resumed in earnest, culminating with the defendant’s shooting Carloto in the foot.

The defendant sought to show that Carloto brought the gun to the scene and, therefore, that the defendant was not guilty of criminal possession of a pistol or revolver. In support of this defense, the defendant claimed that he had taken the gun from Carloto just before Blanchard arrived and that it accidentally discharged when the two resumed wrestling after Blanchard left. Additional relevant facts are included in the analysis of individual issues.

I

The defendant first claims that the trial court improperly precluded him from cross-examining the victim concerning the damages he was seeking from the defendant in a civil action. The civil action arose out of the same circumstances that precipitated the criminal charges for which the defendant was on trial. More specifically, the defendant argues that the court violated his constitutional right to confrontation by limiting his cross-examination of Carloto concerning Carloto’s bias, pecuniary interest and motive to lie.

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him .... The primary interest secured by the confrontation clause of the sixth amendment is the right to cross-examination. . . . Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. . . . The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. . . . The denial or undue restrictions of the right can at times constitute constitutional error. ... To comport with the constitutional standards embodied in the confrontation clause the defendant in exercising his right of cross-examination must be allowed to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Milum, 197 Conn. 602, 608-609, 500 A.2d 555 (1985).

On cross-examination, Carloto testified that he had retained a lawyer to sue the defendant in order to get his bills paid and to be compensated for his pain and suffering. The defendant contends, however, that he was also entitled to expose the extent of Carloto’s pecuniary interest by cross-examination concerning the amount of damages Carloto was seeking.

“[A]s a general rule cross-examination of the prosecuting witness should be allowed to show the pendency, existence and status of civil action . . . arising out of the same set of circumstances as those which served as the basis for the criminal prosecution. . . .” (Citations omitted; internal quotation marks omitted.) Id., 610. In applying the general rule to the present case, we must examine the specific question posed by the defendant. Defense counsel was first allowed to bring out that Carloto had instituted a civil action against the defendant and that in addition to reimbursement for medical expenses he was also seeking damages for pain and suffering. Thereafter, defense counsel asked, “Did you put any dollar amount on this lawsuit that you discussed with your lawyer?” The trial court sustained the state’s objection on the ground that “what [the defendant] did with his lawyer is not for the courtroom at this point.” The defendant excepted to the ruling but made no effort to pursue the matter through further examination of Carloto or other witnesses or other evidence (e.g., seeking to have the court take judicial notice of Carloto’s pending lawsuit). See 1B. Holden & J. Daly, Connecticut Evidence (1988) § 25.

“Cross-examination [to elicit facts tending to show] motive, bias, interest and prejudice is a matter of right and may not be unduly restricted.” State v. Milum, supra, 609; State v. Lubesky, 195 Conn. 475, 482, 488 A.2d 1239 (1985). “[Restrictions on the scope of cross-examination are within the sound discretion of the trial judge . . . but this discretion comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment.” (Citations omitted.) State v. Gaynor, 182 Conn. 501, 508, 438 A.2d 749 (1980).

Here, the defendant was allowed to show that the victim had contacted a lawyer and had brought suit against the defendant for injuries arising from the same conduct that resulted in the criminal charges. The defendant elicited that the victim hoped that as a result of his civil action he would be reimbursed for his medical bills and compensated for his pain and suffering. The only evidence excluded by the trial court was a conversation between the victim and his lawyer regarding the dollar amount of the suit. Despite this restriction, the issue of the victim’s bias arising from his civil suit against the defendant was adequately covered by other questions allowed by the court. Consequently, our review of the defendant’s entire cross-examination reveals that it was sufficient to satisfy the sixth amendment in that the jury was provided an adequate basis from which it could “ ‘appropriately draw inferences relating to the reliability of the witness.’ ” State v. Milum, supra; State v. Roma, 199 Conn. 110, 116, 505 A.2d. 717 (1986). Moreover, it was well within the trial court’s discretion to exclude evidence of the dollar amount of the suit. See State v. Ballas, 180 Conn. 662, 677, 433 A.2d 989 (1980). Accordingly, the trial court’s exclusion in this case was not in abuse of its discretion and did not unconstitutionally restrict the defendant's right of cross-examination.

II

The defendant’s next claim concerns his attempt to obtain immunity from prosecution for Antonio Gomes, whom he wanted to call as a defense witness. In an offer of proof out of the jury’s presence, Gomes asserted his fifth amendment privilege against self-incrimination, whereupon the defendant sought a grant of immunity from the state’s attorney. The state’s attorney refused.

General Statutes § 54-47a empowers a state’s attorney to grant immunity from prosecution in order to obtain testimony from a reluctant witness. The defendant argues that although historically the statute has been used only for prosecution witnesses, it should also be used to grant immunity to a defense witness. This is not a new or novel argument and there is no record of its having been successful in this state. The defendant acknowledges that the courts have routinely rejected similar claims. State v. McIver, 201 Conn. 559, 566-68, 518 A.2d 1368 (1986); State v. McLucas, 172 Conn. 542, 561, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977); State v. Simms, 170 Conn. 206, 210-11, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 1959 (1976). This court will not reexamine or reevaluate Supreme Court precedent. Whether a Supreme Court holding should be reevaluated and possibly discarded is not for this court to decide. Caulfield v. Amica Mutual Ins. Co., 31 Conn. App. 781, 788, 627 A.2d 466, cert. denied, 227 Conn. 913, 632 A.2d 688 (1993).

Following his lack of success at obtaining immunity for Gomes from the state’s attorney, the defendant moved that the trial court order the state to grant Gomes immunity or, in the alternative, that the court itself grant the immunity. The court denied both requests. Whether the court ordered the state to grant the immunity or granted it directly to the witness amounts to a direct grant of immunity by the trial court. The short answer to the defendant’s claim is that Connecticut case law clearly holds that courts have no authority to grant immunity to a witness. State v. McIver, supra, 567; State v. McLucas, supra; State v. Simms, supra, 211; State v. Watkins, 14 Conn. App. 67, 73, 540 A.2d 76, cert. denied, 208 Conn. 804, 545 A.2d 1102 (1988).

III

The defendant’s third claim implicates the declaration against penal interest exception to the hearsay evidence rule. He argues that the trial court improperly refused to admit into evidence exculpatory statements given to the defendant’s investigator by an unavailable witness. That witness, Gomes, was unavailable to testify because he invoked his privilege against self-incrimination. See State v. Mayette, 204 Conn. 571, 577, 529 A.2d 673 (1989); State v. DeFreitas, 179 Conn. 431, 452, 426 A.2d 799 (1980). The defendant asserts that the exclusion of that testimony, which directly contradicted Carloto’s claim that the defendant brought the gun in question into the park on the evening of July 20,1990, violated his constitutional rights to compulsory process, a fair trial and due process.

Gomes spoke with the defendant’s investigator on two occasions, three months and nine months after the Nanny Goat Park incident. The defendant sought to have the investigator testify that Gomes told him that he had given a .38 caliber gun to Carloto two days before the occurrence in question. The defendant posits that this would support the defendant’s testimony that Carloto introduced the gun into the altercation and that in a struggle over its possession it accidentally discharged.

In ruling Gomes’ declarations untrustworthy and therefore inadmissible, the trial court found that the statements were given a significant length of time after the occurrence and to a person with whom Gomes did not share a confidential relationship. Moreover, the court found that Gomes’ two statements lacked sufficient corroboration.

“A trustworthy third party statement exculpatory of the accused and against the penal interest of the declarant is admissible at the trial of the accused if the declarant is unavailable. . . . The determination of whether such a statement is sufficiently trustworthy to be admitted into evidence at trial lies within the sound discretion of the trial court.” (Citations omitted; emphasis in original.) State v. Rosado, 218 Conn. 239, 243-44, 588 A.2d 1066 (1991).

“Four considerations have been deemed relevant when examining the trustworthiness of declarations against penal interest: (1) the time of the declaration and the party to whom the declaration was made; (2) the existence of corroborating evidence in the case; (3) the extent to which the declaration is really against the declarant’s penal interest; [and] (4) the availability of the declarant as a witness. . . .” (Citations omitted; internal quotation marks omitted.) Id., 244-45. “No single factor in the test for determining trustworthiness is necessarily conclusive . . . the factors are reflective of the fact that there can be no precise formulation of the proof which would constitute sufficient evidence of the trustworthiness of such declarations.” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 204 Conn. 377, 392, 528 A.2d 66 (1987).

We agree with the trial court’s determination, based on an analysis of the four factors outlined in Rosado, that Gomes’ declarations against penal interest were untrustworthy and therefore properly excluded from evidence. The state concedes that Gomes’ statements were against his penal interest and that Gomes was unavailable as a witness because he had invoked his fifth amendment privilege against self-incrimination. As such, our analysis is limited to the time of the declarations and the parties to whom they were made, and the evidence corroborating the statements.

Under the first factor, the trial court found that Gomes’ statements were given a significant length of time after the occurrence in question. While this delay alone does not taint the trustworthiness of Gomes’ statement, the trial court properly viewed it as weighing against the reliability of his statement. State v. Mayette, supra, 578. Moreover, Gomes’ statements were not made spontaneously, but rather in response to direct questioning by the defendant’s investigator. Similarly, Gomes’ statements were not made to a person with whom he shared a close, confidential relationship, an important factor in a trial court’s assessment of trustworthiness. See State v. Payne, 219 Conn. 93, 115, 591 A.2d 1246 (1991); State v. Hernandez, supra, 392.

In assessing the second factor, the trial court correctly noted that since third party statements exculpating an accused are inherently suspect, any evidence corroborating the statements must clearly indicate the trustworthiness of the proffered statement. See State v. Rosado, supra, 249; State v. DeFreitas, supra, 450-51. In this case, the trial court explicitly found that while Gomes’ statements might corroborate the fact that Carloto allegedly possessed a gun when he entered the park, there was no evidence corroborating Gomes’ declaration that he gave the gun to Carloto.

We conclude that the trial court did not abuse its discretion in finding Gomes’ declaration untrustworthy and subsequently excluding those statements from evidence at trial.

IV

In his final claim, the defendant contends that the trial court incorrectly determined that under the pen-ally provision of General Statutes § 53a-217 (b) it lacked discretion to impose a sentence other than incarceration. General Statutes (Rev. to 1991) § 53a-217 (b) provides: “Criminal possession of a pistol, revolver or electronic defense weapon is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court.” (Emphasis added.) The defendant was sentenced to a term of five years, execution suspended after two years of incarceration, with a three year period of probation.

The legislature has the authority to impose a mandatory minimum sentence for a specific crime. State v. Darden, 171 Conn. 677, 680, 372 A.2d 99 (1976). A trial court’s power to impose a particular sentence is defined by statute, and the constitution does not require that the judiciary be given discretion in sentencing. State v. Lopez, 197 Conn. 337, 353, 497 A.2d 390 (1985).

The defendant argues that the two year nonsuspendable minimum sentence is mandated only if the court first determines that a term of incarceration is an appropriate sentence. The defendant contends that General Statutes § 53a-217 (b) does not prohibit the court from imposing a fine or a conditional discharge. In this case, the trial court’s decision to incarcerate the defendant, rather than to impose a fine or conditional discharge, was based on the specific circumstances facing the court at sentencing. In its sentencing remarks, the trial court expressly stated that it was rejecting a fine because it would take money away from the defendant’s family.

In addition, the trial court indicated that the defendant’s fifteen prior convictions weighed very heavily in its determination of a proper sentence. It compared a person’s life to a bank account full of credits with every conviction’s being an expenditure of some of those credits. Because of the defendant’s numerous convictions, the trial court commented that “he’s run out of credits.” Moreover, the trial court told the defendant that his conduct typically leads to a jail sentence, and immediately before imposing the sentence remarked that “my feeling in this case is that the length of the incarceration is probably less important than the fact of incarceration.”

Even if we agreed with the defendant that § 53a-217 (b) permits a court to exercise its discretion and to impose a sentence other than incarceration, this would avail the defendant nothing because the trial court affirmatively declared, “I think the sentence is appropriate. I am not sentencing him to something that I think is inappropriate.” In view of the sentencing comments, we cannot agree with the defendant’s argument that the trial court was of the opinion that it was bound by the statute to impose a mandatory period of incarceration.

Because we conclude that the trial court felt that the facts justified a term of incarceration, we do not reach the issue of whether General Statutes § 53a-217 (b) mandated a two year, nonsuspendable sentence. See State v. Carpenter, 19 Conn. App. 48, 51 n.1, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989).

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of assault in the second degree with a firearm and the lesser included offense of assault in the third degree.

       General Statutes (Rev. to 1991) § 53a-217 provides in relevant part:
      “(a) A person is guilty of criminal possession of a pistol [or] revolver . . . when he possesses a pistol [or] revolver . . . and has been convicted of [certain enumerated felonies]. . . .
      “(b) Criminal possession of a pistol [or] revolver . . . is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 54-47a (a) provides in relevant part: “Whenever in the judgment of the chief state’s attorney, a state’s attorney or the deputy chief state’s attorney, the testimony of any witness or the production of books, papers or other evidence of any witness (1) in any criminal proceeding involving . . . felonious crimes of violence . . . is necessary to the public interest, the chief state’s attorney, the state’s attorney, or the deputy chief state’s attorney, may, with notice to the witness, after the witness has claimed his privilege against self-incrimination, make application to the court for an order directing the witness to testify or produce evidence subject to the provisions of this section.”

       The alleged transfer of the gun to the defendant was unlawful because Gomes admitted that his own possession thereof violated General Statutes § 29-35 (a).


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    State of Connecticut v. Joseph Dube
    (11408)
    Lavery, Heiman and Spear, Js.

      Argued December 8, 1993
    decision released February 8, 1994

      Richard M. Marano, with whom was Gena M. Iannucci, for the appellant (defendant).

      David J. Sheldon, deputy assistant state’s attorney, with whom, on the brief, was John M. Bailey, chief state’s attorney, and Stephen Preleski, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant, Joseph Dube, appeals from the judgment of conviction of attempt to commit assault in the first degree, two counts of attempt to commit assault in the second degree, robbery in the first degree, conspiracy to commit robbery in the first degree and carrying a pistol without a permit. The defendant’s sole claim on appeal is that the trial court improperly admitted evidence of prior uncharged misconduct. We affirm the judgment of the trial court.

This case arose from a robbery of The Corner Store in Bristol on February 19, 1991. The jury could reasonably have found the following facts. The store owner, Dorothy Church, and her landlord, Jennie Chawoneck, were both working in the store at approximately 7 a.m. Church had just finished placing the store’s receipts in a deposit bag and had left them on the deli counter, when the defendant entered the store, carrying a gun. Church knew the defendant well because he had worked for her in the past. In fact, she had banned him from the store after he admitted stealing approximately $100 in quarters. The defendant shot Church as she dialed 911; next he shot Chawoneck. He then mistakenly grabbed a bag of grinder rolls sitting near where Church had placed the deposit bag and fled. The defendant returned after realizing his error, again shot Chawoneck, and fled with the deposit bag.

At trial, the state offered the testimony of various witnesses regarding the defendant’s prior theft from Church’s store. At least two years before the robbery, the defendant admitted stealing ten rolls of quarters from the store when the clerk was absent. The trial court admitted the evidence over the defendant’s objection for the limited purpose of identification. Each time the incident was referred to, the trial court instructed the jury that the evidence was to be used solely for the purpose of identification. The court reiterated this limitation during the charge.

Generally, evidence of guilt of other crimes or misconduct is inadmissible due to its prejudicial nature. State v. Baldwin, 224 Conn. 347, 354, 618 A.2d 513 (1993). Such evidence is admissible, however, where it is particularly probative of intent, identity, malice, motive or a system of criminal activity. Id. The trial court must determine in the exercise of judicial discretion that its probative value outweighs its prejudicial tendency. Id. Reversal is required only in a case of abuse of discretion or manifest injustice. Id., 354-55.

In this case, the state introduced the testimony about the defendant’s prior theft to prove identification. The defendant claimed that he was not the man who robbed the store and shot the women. The state sought to establish the basis on which Church identified the defendant. Church’s prior experience with the defendant left a strong impression on her and enabled her to recognize him when he entered the store more than two years later. The trial court found that Church claimed to have observed the defendant enter the store and immediately recalled his prior theft, which was relevant to and probative of Church’s ability to identify the defendant.

Once prior misconduct evidence has been found relevant, the trial court must exercise judicial discretion to determine whether its probative value outweighs its prejudicial tendency. Id., 354. “Evidence is prejudicial ‘when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence.’ ” Id., 357, quoting United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980). The trial court’s discretion to admit prior misconduct evidence must be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. State v. Baldwin, supra. Here again, reversal is appropriate only upon abuse of discretion or manifest injustice. Id., 354-55.

The record reflects that the evidence of the defendant’s prior theft was not prejudicial. The two crimes were distant in time and dissimilar in character: the violent robbery of which the defendant was convicted occurred at least two years after the first theft, which involved no violence or weapons. Further, the nature of the earlier theft, ten rolls of quarters stolen while the clerk was absent, was unlikely to inflame the passions of the jury. Finally, the evidence of the prior theft was introduced solely for the purposes of identification, and the court gave specific limiting instructions each time the evidence was introduced and in its final charge.

Accordingly, we conclude that the trial court did not abuse its discretion in determining that the probative value of the testimony outweighed any prejudicial effect it might have had on the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was acquitted of stealing a firearm.


author: Freedman, J.

text:
    Marilynn B. Collucci v. Carmen C. Collucci
    (11730)
    Landau, Heiman and Freedman, Js.
    Argued November 29, 1993
    decision released February 8, 1994

      John R. Williams, for the appellant (plaintiff).

      James R. Greenfield, for the appellee (defendant).
   Freedman, J.

The plaintiff, Marilynn B. Collucci, appeals from the judgment of the trial court dissolving the marriage of the parties. The plaintiff claims that the trial court “abused its discretion, misconstrued the evidence and ignored statutory standards in its rulings respecting alimony and the division of property.” We affirm the judgment of the trial court.

The parties were married on November 25, 1976. There were no children issue of this marriage. Both parties had been married previously and each had children from their previous marriages, all of whom have reached their majority. On June 19,1992, the trial court issued its memorandum of decision dissolving the marriage. In its memorandum of decision, after a recitation of some of the background and history of the marriage, the trial court found that “the plaintiff was the cause of the breakdown of the marriage.” In addition, the trial court ordered the plaintiff to vacate the marital residence within sixty days, awarded her $25,000 in lump sum alimony and $250 per week as periodic alimony for a period of seven years, ordered the defendant to pay $10,000 in counsel fees to the plaintiffs attorney, ordered the defendant to provide the plaintiff with an automobile of her choosing at a cost not to exceed $10,000, and ordered that the plaintiff be entitled to coverage under the defendant’s medical insurance, at her expense, for as long as such coverage was available “under applicable law.”

After the plaintiff filed this appeal, the defendant filed a motion with the trial court seeking an articulation as to (1) whether the trial court “considered all relevant statutory criteria in reaching its decision” and (2) “the basis of the court’s award of time limited alimony for the particular duration which the court established in awarding alimony to the plaintiff for a period of seven years.” The trial court responded by stating that in making the award of alimony and in determining its duration, it considered the criteria set forth in General Statutes § 46b-82. The court further elaborated its reasons for the award of periodic alimony and its duration. The trial court did not articulate the basis for any of its other awards. The defendant neither filed a request for further articulation nor sought review from this court regarding the adequacy of the trial court’s articulation. See Practice Book § 4054. The plaintiff filed no postappeal motion for articulation.

The plaintiff attacks the trial court’s award of periodic alimony and division of property as being “so completely out of line with the undisputed economic realities of this case, without any attempt to analyze statutory criteria that an abuse of discretion is manifest.” The plaintiff also argues that since the trial court did not specifically refer to General Statutes § 46b-81 in either its memorandum of decision or its articulation that it was “not even aware of § 46b-81 and the limitations it imposes on the division and distribution of marital assets.” We do not agree.

It is the duty of the appellant to provide this court with an adequate record to review. Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993). Here, the plaintiff-appellant claims that the trial court did not consider the criteria enumerated in General Statutes § 46b-81 because the trial court did not specifically refer to that section in either its memorandum of decision or in its articulation. Although preferable, the trial court need not specifically refer to statutory sections in its memorandum of decision. Nor is it necessary for the trial court to make express findings as to each of the statutory criteria. Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). All that is required is that the trial court consider all of the statutory criteria. The trial court “is free to weigh the relevant statutory criteria without having to detail what importance it has assigned to the various statutory factors. . . .’’(Citations omitted.) Katreczko v. Katreczko, 1 Conn. App. 686, 688, 475 A.2d 323 (1984).

As for the articulation, the trial court responded only to the defendant’s request regarding the award of periodic alimony. The trial court did not respond to the defendant’s request as to “whether [it] considered all relevant statutory criteria in reaching its decision . . . .’’It was not the obligation of the defendantappellee to present us with an adequate record for review; it was the obligation of the plaintiff-appellant. A party cannot sit quietly by when the response to an articulation filed by the opposing party does not contain the information necessary to create an adequate record for review, file no proper motions of her own, and then base an appeal on the missing information. The fact that a trial court fails to respond to a motion for articulation does not alone give rise to any inference as to whether the trial court either did, or did not, consider the subject matter referred to in the motion for articulation. We cannot conclude from an examination of the record and the memorandum of decision that the trial court “was not even aware of § 46b-81 and the limitation it imposes on the division and distribution of marital assets.”

“[T]he trial court’s factual findings may not be rejected merely because we might personally disagree with the conclusions or would have found differently had we been sitting as the finder of fact. . . . The scope of our review of the trial court’s exercise of its broad discretion in domestic relations cases is limited to a determination of whether the court’s conclusions were correct on the law and reasonably reached on the evidence. . . . The trial court has the best opportunity to observe the parties, pass on the credibility of witnesses, and weigh and interpret the evidence. . . . We will indulge every reasonable presumption that the court’s action was correct. . . .” (Citations omitted.) Bonelli v. Bonelli, 22 Conn. App. 248, 251-52, 576 A.2d 587 (1990).

From our review of this matter, we conclude that the trial court’s factual findings are supported by the evidence, and its conclusions and orders are in accordance with applicable law. Absent an abuse of discretion, which we do not find here, we will not intrude upon the province of the trial court.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court’s articulation of its reasons for the award of periodic alimony and its duration was as follows: “The court’s award of periodic alimony was in the amount of $250 per week for seven years. The court based this limited award on the fact that the plaintiff had only a few capabilities of earning a living and undoubtedly would require training to enhance these capabilities before looking for work. The court also took judicial notice of the present economic situation in the state which has caused the elimination of many jobs, even in the plaintiff’s field of work, or the shortening of hours available for such jobs as were not eliminated. The court’s award was based on the consideration that the plaintiff might be able to get some training in another source of available work, before she could find work, or that, if the plaintiff chooses to stay in her field of work, the economic situation in the state will gradually improve so that some job will become available to her.”

       After the decision of the trial court but before taking this appeal, the plaintiff filed a motion for articulation with the trial court. The motion was denied. The plaintiff took no further action to obtain an articulation.

       The plaintiff could have filed her own motion for articulation. In addition, Practice Book § 4054 provides in pertinent part: “Any party aggrieved by the action of the trial judge as regards . . . articulation under Sec. 4051 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. . . .” (Emphasis added.)


author: Schaller, J.

text:
    Local 1183 of Council No. 4, AFSCME, AFL-CIO v. State Board of Labor Relations et al.
    (12080)
    Dupont, C. J., Heiman and Schaller, Js.
    Argued November 5, 1993
    decision released February 8, 1994

      J. William Gagne, Jr., with whom on the brief, was Barbara J. Collins, for the appellant (plaintiff).

      Joseph M. Celentano, general counsel, with whom, on the brief, was E. Stephen Briggs, for the appellee (named defendant).

      Dennis G. Ciccarillo, for the appellee (defendant town of Wallingford).
   Schaller, J.

This action concerns the distribution of overtime hours pursuant to a contract between the plaintiff, Local 1183 of Council No. 4, AFSCME, AFL-CIO, and the defendant town of Wallingford. The union appeals from the judgment of the trial court affirming the decision of the named defendant, the State Board of Labor Relations (labor board), which determined that the town had fully complied with an arbitration award issued by the State Board of Mediation and Arbitration (arbitration board). The issue presented on appeal is whether the trial court improperly affirmed the decision of the labor board.

The following facts are relevant to this appeal. The union and the town entered into a labor contract in 1985. Article 5, § 14, of that contract stated: “All overtime work shall be distributed as equally as possible among employees within classifications during each calendar year provided they are qualified.” In 1986 or 1987, the union filed a grievance with the arbitration board pursuant to General Statutes § 7-472, part of the Municipal Employees Relations Act, claiming that the town had violated the contract with regard to the distribution of overtime.

The arbitration board rendered the following decision on September 11,1989: “The Town did violate the Contract with regard to the distribution of overtime. The Town shall pay those grievants who would have been entitled excluding those out on Workers’ Compensation during the entire period at issue, but including any portion that an injured employee was returned to work at full capacity, the overtime to which they were entitled under the equalizing clause of the Contract.”

In November, 1989, the town notified each grievant of the amount of overtime pay due, as well as the method of calculating that pay. The town determined the total number of overtime hours worked by employees in a particular classification, and then divided that amount by the number of employees within that classification. The resulting quotient was the average overtime hours for each employee within that classification. If an employee worked more overtime hours than the average, he was allowed to keep all his pay, as he had actually worked those extra hours. If an employee worked fewer overtime hours than the average, the difference between the average and the hours that he actually worked was calculated, and the employee was compensated for the difference.

On December 7, 1989, the union filed a complaint with the labor board pursuant to General Statutes (Rev. to 1989) § 7-471 (4), alleging that the town had committed a prohibited practice as set forth in General Statutes § 7-470 (a) (6), by failing to comply with the award made by the arbitration board. Before the labor board addressed that complaint, the union also filed a complaint with the arbitration board on February 1,1990, claiming that the town had not complied with the original award and that the parties differed as to the meaning of the award with regard to the method by which the town was to calculate the overtime pay, and requesting that the arbitration board clarify its award pursuant to § 31-91-50 of the Regulations of Connecticut State Agencies. The town opposed any “clarification” on the bases that it had complied with the award, and that the award was clear and unambiguous. On May 16,1990, the arbitration board, however, issued a clarification of its award, stating in pertinent part: “Each person in each classification should be awarded the same amount of overtime at the end of the year as the top person in his classification. Overtime situations occur throughout the year. The Town should equalize it by offering it on a rotating basis to all employees within a given classification. If the employee refuses because he does not wish to take advantage of the overtime opportunity or he is unable to perform the overtime work then he will be charged with the hours.”

On February 5, 1991, the labor board finally heard the union’s complaint that had been filed in December, 1989. The labor board dismissed that complaint on March 31,1992, on grounds that the original award by the arbitration board was clear, the arbitration board lacked the jurisdiction to “reopen a hearing and reconsider the merits of the original award,” the clarification was, therefore, a nullity, and the town had complied with the original award. The union then filed an administrative appeal to the Superior Court pursuant to General Statutes § 4-183. The trial court affirmed the decision of the labor board dismissing the union’s complaint, determining that the arbitration board’s original award was clear and unambiguous, and that the town had complied with that award. The court also acknowledged that although the arbitration board had the power in general to issue clarifications of its awards, the arbitration board did not have the power to change the substance of its award. The court determined that the arbitration board’s “ ‘clarification’ . . . cannot have the effect of changing the plain meaning of the Contract and the original award.” The union now appeals to this court.

The union contends that the labor board lacked the authority to nullify the “clarified” award of the arbitration board. The union asserts that the labor board, pursuant to § 7-470, could determine only whether the town had complied with the award as “clarified.” Then, when the union appealed the case to the Superior Court, the court should have exercised its review with regard to the labor board’s determination of whether the town had complied with the “clarified” award.

We note at the outset that the arbitrator apparently misunderstood the nature of the union’s request for a clarification. The union asked that the arbitration board issue a “clarification of this award,” (emphasis added) implying that the intention of the union was to have the arbitration board explain the existing award. Rather than explain the original award, however, the arbitrator filed a clarification that contained totally prospective language. The clarification contains language indicating that the town “should” rather than “shall” do certain things, suggesting that the “clarification” was not an explanation of how to calculate lost overtime, but, instead, a primer as to how to deal with the distribution of overtime in the future.

We now examine the actions of the labor board in dismissing the union’s complaint. Under General Statutes § 7-740 (a) (6), the labor board was asked to determine whether the town had complied with the award of the arbitrator. To assess compliance, the labor board had to interpret the arbitrator’s award. In examining the arbitrator’s award, the labor board determined that the original award, without any clarification, governed its assessment. The labor board decided that the original award of the arbitration board was clear and unambiguous, the town had complied with the original award, and the arbitration board had no power to “clarify” the unambiguous award.

“The standard of judicial review of administrative agency rulings is well established. Lieberman v. State Board of Labor Relations, 216 Conn. 253, 261, 579 A.2d 505 (1990); Board of Education v. State Employees Retirement Commission, 210 Conn. 531, 540, 556 A.2d 572 (1989).” Tomlinson v. Board of Education, 226 Conn. 704, 712, 629 A.2d 333 (1993). General Statutes § 4-183 (j) “permits modification or reversal of an agency’s decision if substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) [i]n violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. . . . [T]he [reviewing] court may not retry the case or substitute its judgment for that of the agency on the weight of the evidence or questions of fact. . . . Rather, an agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. ... On the other hand, it is the function of the courts to expound and apply governing principles of law. . . . Lieberman v. State Board of Labor Relations, supra, 262-63.” (Citations omitted; internal quotation marks omitted.) Tomlinson v. Board of Education, supra, 712-13.

The union alleged that the labor board improperly ruled that the town had not committed a prohibited labor practice. A key component of this inquiry is whether the labor board properly determined that the original award governed the dispute. It is unclear whether the labor board’s determination that the original award was unambiguous, thus rendering the “clarified” award a nullity, involves a question of fact or law, as there is no direct authority to guide us in this determination. We need not decide this issue here, because, under either circumstance, the trial court properly affirmed the decision of the labor board.

A review of the record reveals ample support for the labor board’s determination that the original award was unambiguous. The original award refers to the equalization clause, which clearly requires that authorized overtime work be divided as evenly as possible between employees in a particular classification. The town had failed to comply with that clause when dividing the available overtime. The original award states that the grievants had the right to receive payment for the overtime to which they were entitled under the equalization clause. The original award plainly means that the grievants were entitled to receive payment for overtime work that they would have been offered and would have been available to accept had the town divided the authorized hours of overtime as evenly as possible in compliance with the equalization clause.

“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. ...” (Citations omitted; internal quotation marks omitted.) Ballato v. Board of Education, 33 Conn. App. 78, 89-90, 633 A.2d 323 (1993). If we assume that this issue is a question of fact, the trial court could not properly have concluded that the labor board’s determination that the original award was unambiguous was clearly erroneous.

“[JJudicial review of administrative conclusions of law is limited to a determination of whether, in light of the evidence, those conclusions are unreasonable, arbitrary, illegal or an abuse of discretion. Fleischman v. Board of Examiners in Podiatry, 22 Conn. App. 181, 184, 576 A.2d 1302 (1990).” Foti v. Richardson, 30 Conn. App. 463, 466, 620 A.2d 840 (1993). If we assume that this issue is a question of law, the trial court could not properly have concluded on the basis of the record that the labor board’s conclusions were unreasonable, arbitrary, illegal, or an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff union represents at least three classifications of municipal employees, including “Working Crew Leader,” “Maintainer II,” and “Maintainer III.”

       General Statutes § 7-472 provides in pertinent part: “(a) The services of the state board of mediation and arbitration shall be available to municipal employers and employee organizations for purposes of mediation of grievances or impasses in contract or contract reopener negotiations and for purposes of arbitration of disputes over the interpretation or application of the terms of a written agreement . . . .”

       General Statutes (Rev. to 1989) § 7-471 (4) provides in pertinent part: “Whenever a question arises as to whether a practice prohibited by sections 7-467 to 7-477, inclusive, has been committed by a municipal employer or employee organization, the [labor] board shall consider that question . . . . (D) For the purposes of hearings and enforcement of orders under sections 7-467 to 7-477, inclusive, the board shall have the same power and authority as it has in sections 31-107, 31-108 and 31-109, and the municipal employer and the employee organization shall have the right of appeal as provided therein. . . .”

       General Statutes § 7-470 provides in pertinent part: “(a) Municipal employers or their representatives or agents are prohibited from ... (6) refusing to comply with a grievance settlement, or arbitration settlement, or a valid award or decision of an arbitration panel or arbitrator rendered in accordance with the provisions of section 7-472.”

       Section 31-91-50 of the Regulations of Connecticut State Agencies provides: “Any request by either party for a clarification of an award shall be forwarded to the secretary of the board for transmittal to the panel and notice of such a request will be given to the non-requesting party. The response to such a request will be made by the panel.”

       General Statutes § 4-183 provides in pertinent part: “(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court . . . .”

       The labor board sent a letter to the administrator of the arbitration board on January 29,1990, requesting that the board clarify its award. The letter stated in pertinent part:
      “The Union has filed a complaint with the Connecticut State Board of Labor Relations . . . . At the informal hearing conducted on January 10, 1990 it was discussed between the parties the method that should be used in calculating the way the overtime hours should be paid.
      “The Union and the Town are still in disagreement on this subject. Therefore, the Union is requesting that your Board give us a clarification of this award as provided under Section 31-91- 50 of the Rules and Procedures of the State Board of Mediation and Arbitration.”

       A review of appellate case law indicates that the courts have either “found” ambiguities or “concluded” that ambiguities exist on many occasions without meaningful distinction.


author: Heiman, J. Lavery, J.,

text:
    The Dime Savings Bank of Wallingford v. Carl Cornaglia et al.
    (12098)
    O’Connell, Lavery and Heiman, Js.

      (One judge dissenting)

    Argued November 9, 1993
    decision released February 8, 1994

      Donald C. Lunt, for the appellant (defendant Rose Marie Cornaglia).

      Bruce A. Fontanella, for the appellee (plaintiff).
   Heiman, J.

The defendant Rose Marie Cornaglia appeals from an order denying, in part, her motion to open and modify the judgment of foreclosure by sale rendered in favor of the plaintiff. The defendant claims that the trial court improperly refused to order that the plaintiff (1) seek satisfaction of the underlying debt from the property of the defendants Carl Cornaglia and Lucy Cornaglia before seeking recourse against her property, and (2) assign the debt and mortgage underlying the foreclosure action to her upon payment by her to the plaintiff of the amount of the judgment. We affirm the judgment of the trial court.

The plaintiff filed a complaint for foreclosure dated January 9,1992. The complaint alleged that, on January 30,1989, the defendants Carl Cornaglia and Lucy Cornaglia by their note, promised to pay the plaintiff the sum of $150,000 together with interest. The complaint further alleged that, as security for the note, the defendants Carl Cornaglia and Lucy Cornaglia mortgaged to the plaintiff two properties, parcel B and the North Branford Road property, both located in Wallingford. The complaint also alleged that, as further security for the note, the defendant Rose Marie Cornaglia mortgaged to the plaintiff property known as the South Main Street property, also located in Wallingford. None of the defendants filed an answer to the complaint or special defenses. See Practice Book § 236.

On April 20, 1992, the trial court rendered a judgment of foreclosure by sale of all the mortgaged properties. The sale was set for October 17, 1992. On October 7,1992, the defendant Rose Marie Cornaglia filed a motion to open the judgment, pursuant to Practice Book § 326, to extend the sale date of her property so that parcel B might be sold privately to satisfy the debt. The trial court granted the motion on October 13,1992, and set January 23,1993, as a new sale date for the properties. On December 15, 1992, the defendant filed a second motion to open that requested the trial court (1) to apply the fair market value of parcel B against the debt of Carl Cornaglia and Lucy Cornaglia, (2) to enter judgment against her for the amount remaining unpaid after parcel B had been sold, and (3) to extend the sale date to allow parcel B to be sold. On January 12, 1993, she filed amended prayers for relief that requested that the trial court order the plaintiff (1) to seek satisfaction of the debt from the properties owned by Carl Cornaglia and Lucy Cornaglia and (2) to assign the debt and mortgage underlying this action to her upon payment by her to the plaintiff of the amount of the judgment. The amended prayer for relief further requested that the sale date be extended to March 13,1993, so that parcel B could be sold. The trial court granted only the defendant’s request to extend the sale date. The new sale date was set for March 20, 1993. This appeal followed.

On January 26, 1993, the defendant filed a motion for articulation, pursuant to Practice Book § 4051, that requested the trial court to state the reasons that it denied her claims for relief in her amended prayer for relief. The trial court denied the motion on January 26, 1993. The defendant failed to file a motion for review with this court. See Practice Book § 4054. Since we cannot afford review of the defendant’s claims, we affirm the judgment of the trial court.

I

The duty to provide us with a record adequate to afford review rests with the appellant. Practice Book § 4061; Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993); Gelormino v. Blaustein, 31 Conn. App. 750, 751, 626 A.2d 1325 (1993). The defendant did not fulfill her duty to provide us with an adequate record for review. The trial court rendered an oral decision on January 12,1993, after all parties to the action had an opportunity to present evidence and arguments to the court. The trial court did not file a written memorandum of decision and failed to cause its oral decision to be transcribed and signed pursuant to Practice Book § 4059. Further, even if we felt permitted to afford review based on the transcript itself, here it would be unavailing, since the trial court failed to place on the record its reasons for denying the two amended prayers for relief for which the defendant seeks review. The trial court limited itself to stating that a party and the defendant have entered into a bona fide purchase and sale agreement and that the parties have an opportunity to bring this contract to fruition. There was thus a total failure to comply with Practice Book § 4059.

The defendant filed a motion for articulation, pursuant to Practice Book § 4051, that asked the trial court to set forth the grounds for its denial of her requested relief in the motion to open. The trial court denied the motion. The defendant then did nothing to perfect the record. “[S]he could have sought review by this court of the adequacy of the trial court’s response pursuant to Practice Book § 4054.” Holmes v. Holmes, supra, 321. She elected not to do so. The defendant also had the ability to compel compliance with Practice Book § 4059. “Upon proper application, this court has the power, pursuant to Practice Book § 4183, to compel the trial court to comply with the mandate of this provision.” Holmes v. Holmes, supra, 321-22; State v. Rios, 30 Conn. App. 712, 718-19, 622 A.2d 618 (1993) (O’Connell, J., concurring).

“[U]nder normal circumstances we will not remand a case to correct a deficiency the appellant should have remedied.” (Internal quotation marks omitted.) J.M. Lynne Co. v. Geraghty, 204 Conn. 361, 376-77, 528 A.2d 786 (1987); Holmes v. Holmes, supra, 322. “The [defendant] failed to follow the relatively simple rules established to guarantee the presentation to this court of a record appropriate to review.” Holmes v. Holmes, supra. “As an appellate tribunal, either we adhere to the letter of the rules or create judicial anarchy, whereby, on an ad hoc basis, we decide cases, the outcome of which will turn on the mindset of the panel hearing the appeal.” Id.; State v. Deptula, 31 Conn. App. 140, 152, 623 A.2d 525, cert. granted, 226 Conn. 911, 628 A.2d 984 (1993) (Heiman, J., dissenting). Accordingly, we decline to afford review of the defendant’s claims.

II

The defendant also failed to disclose any defense pursuant to Practice Book § 236. The claims on appeal, in essence, dispute her liability in the foreclosure action. The dissent indicates that she had no defense to assert prior to the bank’s pressing its right to collect the debt owed from her. The dissent, however, fails to address the fact that the complaint alleges that the defendant was liable for the debt. Our rules place the burden on defendants to assert all defenses in a timely manner. A failure by the defendant to disclose a defense to liability in a timely manner, after a request pursuant to Practice Book § 236, precludes her from raising it later in the trial court. See Suffield Bank v. Berman, 25 Conn. App. 369, 373, 594 A.2d 493, cert. denied, 220 Conn. 913, 914, 597 A.2d 339 (1991); D. Caron, Connecticut Foreclosures (2d Ed. 1991 Sup.) § 5.01 E. Claims not properly raised before the trial court will not be reviewed on appeal. Saradjian v. Saradjian, 25 Conn. App. 411, 419, 595 A.2d 890 (1991); Goold v. Goold, 11 Conn. App. 268, 282, 527 A.2d 696, cert. denied, 204 Conn. 810, 528 A.2d 1156 (1987). Accordingly, we will not review these claims on appeal.

The judgment is affirmed.

In this opinion O’Connell, J., concurred.

Lavery, J.,

dissenting. Because the facts of this case, established by the record, reveal manifest injustice, I respectfully dissent.

The facts of this case are undisputed. The defendant Rose Marie Cornaglia mortgaged her home to The Dime Savings Bank of Wallingford so that her son, Carl, and his wife, Lucy, could buy property in Wallingford known as parcel B. Although Carl and Lucy signed a note promising to pay the bank $150,000, Rose never signed the note. Rose mortgaged her home because the bank wanted more security than the mortgages on parcel B and Carl and Lucy’s house at 58 North Branford Road in Wallingford.

After Carl and Lucy failed to repay the note, the bank began foreclosure proceedings against all three pieces of property. Lucy, Carl and Rose were defaulted and the trial court ordered a foreclosure by sale on April 20, 1992.

In early June, the bank filed two judgment liens on parcel B, immediately subsequent in priority to the bank’s mortgage. A few days later, on June 12,1992, Carl and Lucy filed for chapter 11 bankruptcy protection. The automatic bankruptcy stay protected both parcel B and Carl and Lucy’s residence from the bank’s foreclosure proceeding. The bank continued foreclosure proceedings against Rose’s home, while moving in bankruptcy court to lift the stay partially so it could foreclose on parcel B to satisfy its judgment liens. The bank, however, did not request the bankruptcy court to lift the stay as to its first mortgage on parcel B.

Because the bank refused to subrogate Rose or to proceed against the Carl and Lucy’s property first, Rose moved to open the judgment in October, 1992, seeking to have the court order the bank to subrogate her or proceed against the other property first. The trial court granted only Rose’s request to extend the sale date of parcel B, and specifically ordered that the bank was not required to subrogate Rose. Thus, although Rose mortgaged her property to secure another’s debt with the knowledge that the borrower’s property would be the primary security, the bank was permitted to use parcel B to satisfy its two judgment liens subsequent in time to its first mortgage on the property and take Rose’s property to satisfy the mortgage. This appeal resulted.

The facts as alleged in the bank’s complaint alone establish, as a matter of law, that Rose was a surety. See Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 350, 579 A.2d 1054 (1990) (appellate review absent a finding limited to determining whether record established status as matter of law); Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 296, 533 A.2d 208 (1987) (plaintiff’s factual allegations constitute judicial admissions that appellate courts can use to review trial court’s ruling). Suretyship results where one mortgages property to secure the debt of another. Cross v. Allen, 141 U.S. 528, 534, 12 S. Ct. 67, 35 L. Ed. 843 (1891); A. Stearns, Law of Suretyship (5th Ed. Elder 1951) § 2.2; E. Spencer, Suretyship (1913) § 9; Restatement of Security (1941) § 82, comment h; 72 C.J.S. Principal and Surety (1987) § 36; 74 Am. Jur. 2d Suretyship (1974) § 12; see also Quinnipiac Brewing Co. v. Fitzgibbons, 73 Conn. 191, 197, 47 A. 128 (1900) (husband who mortgaged his own property to secure loan to wife is surety); Ayres v. Husted, 15 Conn. 504, 517 (1843) (wife who mortgaged her own property to secure husband’s debt is surety). In this case, Rose mortgaged her home to secure Carl and Lucy’s debt. Rose neither signed the note nor received any money from the bank. By her pledge Rose became a surety as a matter of law.

As a surety, Rose was entitled to be subrogated to all of the securities held by the bank against Carl and Lucy upon payment of the debt. See Spitz v. Century Indemnity Co., 129 Conn. 396, 398, 28 A.2d 874 (1942); Restatement, Security (1941) § 141; Restatement, Suretyship (Council Draft No. 2 1993) §§ 23 and 24; A. Stearns, supra, § 11.1; L. Simpson, Suretyship (1950) § 47. Once subrogated, Rose also had the right to the same priority accorded the debt when held by the bank. See American Surety Co. of New York v. Bethlehem Bank, 314 U.S. 314, 317, 62 S. Ct. 226, 86 L. Ed. 241 (1941); Restatement, Security, supra, § 141, comment a; Restatement, Suretyship, supra, § 25; A. Stearns, supra, § 11.1; L. Simpson, supra, § 47.

Rose’s status as a surety also entitled her to insist that the bank collect first from Carl and Lucy’s property before resorting to her home provided that (1) failure to do so threatened hardship to Rose, (2) Rose paid off the debt and (3) Carl and Lucy’s property was available. See Restatement, Security, supra, § 131; E. Spencer, Suretyship (1913) § 133; 72 C.J.S., Principal and Surety (1987) § 219 (b); 74 Am. Jur. 2d, Suretyship (1974) § 203. The first two conditions were met because Rose risked losing her home and offered to pay the judgment in its entirety, but the bank itself ensured that Carl and Lucy’s property was unavailable. By seeking relief in bankruptcy court only as to its two judgment liens, and ignoring its own prior mortgage on the property, the bank could collect its judgment liens from parcel B and profess to the trial court that parcel B was not amenable to foreclosure. The bank’s own tactical maneuvering was the sole reason it could not foreclose on Carl and Lucy’s property.

Foreclosure is an equitable proceeding in which the goal is complete justice. Virginia Corp. v. Galanis, 223 Conn. 436, 448, 613 A.2d 274 (1992). “One who seeks equity must also do equity and expect that equity will be done for all.” Gelinas v. West Hartford, 225 Conn. 575, 587, 626 A.2d 259 (1993). Although Rose had a right to subrogation, the bank refused to subrogate her. Thus, the bank sought equity without doing equity.

Moreover, those that come into equity must come with clean hands. Poliveri v. Peatt, 29 Conn. App. 191, 202, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992). By preventing itself from foreclosing on parcel B, the bank thwarted Rose’s equitable right to have the bank seek satisfaction of the debt from Carl’s property before resorting to her home. By violating an equitable principle, the bank comes to equity with unclean hands.

Thus, we are presented with the following: the bank seeks the equitable relief of foreclosure but refuses to do equity, as it must, and comes to equity with unclean hands, as it must not. Rose is forced to choose either to become a surety for the bank’s judgment liens and pay off the mortgage debt and the judgment liens or to lose her home. The trial court denied Rose her equitable rights as a surety and granted an undeserving party equitable relief but refused to explain its reasoning. Finally, the majority permits justice to be strangled by procedure even though the bank’s complaint recites the basis of suretyship.

It is clear from the record as it now stands that Rose was a surety and, therefore, deserved certain rights. It is equally clear that she was deprived of the protection of those rights by the trial court in favor of the bank which refused to do equity or to permit equity to be done. This court has the authority to look to the plaintiffs factual allegations that constitute judicial admissions to review the trial court’s decisions. Stroiney v. Crescent Lake Tax District, supra. I would, therefore, reverse the judgment and remand the case for a new hearing.

Alternatively, I would remand for further articulation because the record lacks an explanation for the trial court’s actions. Although we do not remand for articulation “under normal circumstances”; J.M. Lynne Co. v. Geraghty, 204 Conn. 361, 367-77, 528 A.2d 786 (1987); our appellate courts do remand for articulation, even where the appellant has failed to satisfy our rules regarding perfection of the record. See, e.g., State v. Patterson, 227 Conn. 448, 455, 629 A.2d 1133 (1993); Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 163, 622 A.2d 536 (1993); Lauer v. Zoning Commission, 220 Conn. 455, 470, 600 A.2d 310 (1991); Associated Catalogue Merchandise, Inc. v. Chagnon, 210 Conn. 734, 751, 557 A.2d 525 (1989); State v. Garrison, 199 Conn. 383, 388, 507 A.2d 467 (1986); State v. Lafferty, 191 Conn. 73, 76, 463 A.2d 238 (1983); Grunschlag v. Ethel Walker School, 189 Conn. 316, 321, 455 A.2d 1332 (1983); Kaplan v. Kaplan, 185 Conn. 42, 46, 440 A.2d 252 (1981); State v. Ostroski, 184 Conn. 455, 460-61, 440 A.2d 166 (1981); Powers v. Powers, 183 Conn. 124, 125, 438 A.2d 845 (1981); North Park Mortgage Services, Inc. v. Pinette, 27 Conn. App. 628, 633-34, 608 A.2d 714 (1992).

By refusing to remand and allowing Rose’s appeal to die a procedural death, the majority breaks with the precedent established by our Supreme Court in Connecticut Bank & Trust Co. v. Winters, supra. In that case, our Supreme Court reviewed a trial court’s ruling in a foreclosure action in which the appellant failed to perfect the record as required by the rules of practice. The court exercised its “authority to order a remand because this case required the trial court . . . to exercise its equitable powers to achieve substantial justice among the parties, and the present record provides an insufficient basis upon which to review that exercise of equitable discretion.” Id. We should follow the example of our Supreme Court and remand for articulation where, as here, it is our duty to review the equitable discretion of the trial court.

The majority complains that the only alternative to this unduly harsh result is anarchy. Our precedents, however, guide this court in deciding when to remand for articulation. Although remand is unavailable in “normal circumstances,” remand is appropriate where necessary for the interests of justice; Sadloski v. Manchester, 228 Conn. 79, 85, 634 A.2d 888 (1993); where required for our review of equitable discretion; Connecticut Bank & Trust Co. v. Winters, supra; where serious civil penalties hang in the balance; Carothers v. Capozziello, 215 Conn. 82, 114, 574 A.2d 1268 (1990); and where the appellant had attempted in good faith to perfect the record. North Park Mortgage Services, Inc. v. Pinette, supra. In this case, complete justice, the goal of all equitable proceedings, requires that we remand for articulation.

Finally, the spirit of the rules of appellate procedure dictates that we remand for articulation. Practice Book § 4187 requires that the rules be interpreted liberally where failure to do so would result in injustice. Section 4187 also states explicitly that the rules are designed to facilitate business and advance justice. Although the majority’s solution certainly facilitates business, it certainly does not advance justice.

“[T]his court does not favor unyielding adherence to rules of procedure where the interests of justice are thereby disserved . . . .” (Internal quotation marks omitted.) State v. Hall, 213 Conn. 579, 593, 569 A.2d 534 (1990). It is clear that a remand for articulation is necessary, within our power, envisioned and intended by our rules of appellate procedure, supported by our precedent and imperative to achieve justice in this case. I would, therefore, reverse and remand for a new hearing in light of the record establishing Rose’s surety status and her right to the relief requested, or in the alternative, remand this case for articulation.

       The defendants in this action were Carl Cornaglia, Lucy Cornaglia, Rose Marie Cornaglia, The Dime Savings Bank of Wallingford and Colony Savings Bank. Only Rose Marie Cornaglia is a party to the appeal and we refer to her in this opinion as the defendant.

       The dissent states that, as a matter of law, this allegation creates a surety. The case law cited in the dissent, however, does not support this assertion. Every case cited in the dissent involves a suretyship between a husband and wife, a contract to which a different legal standard applies. The law controlling surety transactions among persons other than spouses is not affected by the law controlling such transactions between husbands and wives that was developed to protect the sanctity of marriage. See 5 S. Williston, Contracts (4th Ed. 1993) § 11 et seq.

       Default judgments were entered against the defendants Lucy Cornaglia and Colony Savings Bank for failure to appear. Default judgments were entered against the defendants, Carl Cornaglia, Rose Marie Cornaglia and The Dime Savings Bank of Wallingford for failure to disclose a defense.
      We do not dispute the dissent’s assertion that Rose Cornaglia, if found by the trial court to be a surety, was entitled to claim that the bank first collect from Carl Cornaglia. Rose Cornaglia, however, never filed a special defense asserting such a right nor did she ever make a timely claim for this relief.

       Practice Book § 236 provides: “In any action to foreclose or discharge any mortgage or lien or to quiet title, or in any action upon any written contract, in which there is an appearance by an attorney for any defendant, the plaintiff may at any time file and serve in accordance with Sec. 120 a written demand that such attorney present to the court, to become a part of the file in such case, a writing signed by him stating whether he has reason to believe and does believe that there exists a bona fide defense to the plaintiff’s action and whether such defense will be made, together with a general statement of the nature or substance of such defense. If the defendant fails to disclose a defense within five days of the filing of such demand, the plaintiff may file a written motion that a default be entered against the defendant by reason of the failure of the defendant to disclose a defense. If no disclosure of defense has been filed, the court may order judgment upon default to be entered for the plaintiff at the time the motion is heard or thereafter, provided that in either event a separate motion for such judgment has been filed. The motions for default and for judgment upon default may be served and filed simultaneously but shall be separate motions.”

       Practice Book § 326 provides in pertinent part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. The parties may waive the provisions of this paragraph or otherwise submit to the jurisdiction of the court. . . .”

       Practice Book § 4051 provides in pertinent part: “Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues or for the proper presentation of questions reserved; or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the appeal is ready to be assigned for hearing and only by leave of the supreme court or the appellate court thereafter. The action of the trial judge as regards such a correction or addition may be reviewed by the court in which the appeal is pending under Sec. 4054. Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based.”

       Practice Book § 4054 provides in pertinent part: “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. If the motion depends upon a transcript of evidence or proceedings taken by a court reporter, the procedure set forth in Sec. 4053 shall be followed. . . .”

       Practice Book § 4061 provides in pertinent part: “It is the responsibility of the appellant to provide an adequate record for review.”

       Practice Book § 4059 provides: “Except in small claims actions and as provided in Sec. 4060, when rendering judgments in trials to the court and in criminal cases, in ruling upon motions to dismiss under Sec. 814 and motions to suppress under Sec. 820, the court shall, either orally or in writing, state its decision on the issues in the case and, if there are factual issues, the factual basis of its decision. The court shall include in its decision its conclusion as to each claim of law raised by the parties. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court within ten days of the filing of the appeal. If written, the decision shall be stated in a memorandum of decision, which shall be filed with the clerk.”
      In this case Practice Book § 4059 applies because the proceedings to determine the motion to open constituted a trial to the court which rendered a judgment.

       See footnote 6.

       See footnote 7.

         “Our rules provide a vehicle for a party to create an adequate record for appeal. In the absence of the plaintiffs compliance with our rules, our role is not to throw a life preserver based upon merciful hope. We are a court of appeals, not of refuge.” Holmes v. Holmes, 32 Conn. App. 317, 321 n.6, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993).

       See footnote 9.

       Practice Book § 4183 provides in pertinent part: “The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed, or earlier, if appropriate, and, except as otherwise provided in these rules, any motion the purpose of which is to complete, correct or otherwise perfect the trial court record for presentation on appeal shall be made to the court in which the appeal is pending. The court may, on its own motion, modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal. It may also, for example, on its own motion or upon motion of any party, (1) order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal . . . .”

       See footnote 3.

       The complaint states: “As further security for the payment of said note [signed by Carl and Lucy], the Defendant, Rose Marie Cornaglia, and one Basil Cornaglia, mortgaged to the plaintiff by their mortgage deed” her residence at 123 South Main Street in Wallingford. The complaint further states that Basil Cornaglia, Rose’s husband, died on April 19, 1988. Rose succeeded to his interest in the residence.

       Rose’s prayer for relief sought “(1) That the [bank] be ordered to first seek satisfaction of the debt underlying this action from the property of the defendants Carl and Lucy Cornaglia, before having recourse to the property of the defendant Rose Marie Cornaglia; or, in the alternative
      “(2) That the [bank] be ordered to assign the debt and mortgage underlying this action, and the judgment herein, to the defendant Rose Marie Cornaglia upon payment by the said defendant to the [bank] of the amount of the judgment herein, plus interest and costs, including the Committee’s reasonable fees and expenses; and
      “(3) That the sale date be extended to March 13,1993 to afford the defendants a reasonable time within which to obtain permission from the Bankruptcy Court to proceed with a private sale of Parcel B, as proposed herein, or to obtain the funds to pay the judgment, as aforesaid.”

       Rose offered to pay the full judgment rendered against her, plus interest and costs. See footnote 2.

       The majority asserts that Rose denies liability for the debt in this appeal. This statement, however, is unsupported by the record. Rose necessarily admits her liability by asserting her status as a surety. By seeking to assert her equitable rights pertaining to sureties, she admits that, as a surety, she is liable for the mortgage debt.
      Rose disclosed no defense to the foreclosure action because she had no defense to her liability for the mortgage debt. Further, Rose acted properly by not appealing the judgment of foreclosure by sale because she had no basis for appeal. Her equitable rights were first infringed when the bank sought selective relief from the stay and refused to subrogate her to the mortgage.


text:
    2830 Whitney Avenue Corporation v. Heritage Canal Development Associates, Inc., et al.
    (11874)
    O’Connell, Lavery and Heiman, Js.

      Argued November 1, 1993
    decision released February 8, 1994

      Charles A. Sherwood, for the appellant (defendant Quality Associates, Inc.).

      Christopher Rooney, for the appellee (plaintiff).
   O’Connell, J.

In this mortgage foreclosure action, the third party plaintiff, Quality Associates, Inc. (Quality), appeals from a summary judgment dismissing its amended cross complaint. The issues are (1) whether Quality met its burden of demonstrating that the trial court improperly granted summary judgment, and (2) whether the trial court improperly struck Quality’s cross complaint from the jury list. We affirm the judgment of the trial court.

On April 21, 1988, Heritage Canal Development Associates, Inc. (Heritage), executed a $4,500,000 promissory note to People’s Bank (People’s) to secure a construction mortgage deed. Pursuant to the note and mortgage deed, People’s advanced $4,123,714 to Heritage. When Heritage defaulted on its interest payments, People’s instituted this foreclosure action. Heritage raised no defenses to the foreclosure.

Quality was included as a party defendant because of its status as a subsequent encumbrancer by virtue of a recorded mechanic’s lien which recited that it had commenced work on the mortgaged premises on June 6,1988. Quality filed an answer, special defenses and cross complaint in which it sought to foreclose its mechanic’s lien. Because its mechanic’s lien refers to the commencement of work two months after People’s mortgage was recorded, the trial court granted People’s motion to strike the special defenses and cross complaint on October 15, 1990. While the motion to strike was pending before the trial court, People’s filed an application to discharge Quality’s mechanic’s lien and to substitute a bond pursuant to General Statutes § 49-37. The trial court granted People’s motion to discharge Quality’s mechanic’s lien upon substitution of a bond on February 11, 1991. People’s posted a bond and proceeded to a judgment of strict foreclosure with law days set to commence on March 18, 1991.

After rendition of the judgment of strict foreclosure, but prior to the first law day, People’s assigned all of its right, title and interest in the mortgage to the 2830 Whitney Avenue Corporation (Whitney Avenue). Accordingly, when the final law day elapsed without redemption, title vested in Whitney Avenue. Crane v. Lomis, 128 Conn. 697, 700, 25 A.2d 650 (1942). With title to the property now vested in Whitney Avenue, Quality filed a second cross complaint seeking to invalidate People’s mortgage and to foreclose on the bond posted by People’s. This second cross complaint became the operative pleading between Quality and Whitney Avenue as People’s assignee.

Whitney Avenue filed an answer and special defenses on December 17,1991. Quality claimed its foreclosure cross complaint to a jury and the trial court granted Whitney Avenue’s motion to strike the case from the jury list on the ground that this was an action in equity.

Thereafter, Whitney Avenue filed a motion for summary judgment. Following oral argument, the court granted summary judgment in favor of Whitney Avenue. Quality appeals the granting of the summary judgment and also the striking of the case from the jury list.

We first consider the issue of whether the trial court properly granted summary judgment. A party moving for summary judgment must show that it is clear what the truth is and must exclude any real doubt as to the existence of any genuine issue of material fact. Practice Book § 384; Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982). “The test is whether a party would be entitled to a directed verdict on the same facts. . . . ‘[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.’ ” (Citation omitted.) Batick v. Seymour, supra.

The trial court granted summary judgment in favor of Whitney Avenue. Quality now asserts that Whitney Avenue bears the burden on appeal of proving that the trial court’s decision to grant the summary judgment was not clearly erroneous. Quality cites Plouffe v. New York, N.H. & H. R. Co., 160 Conn. 482, 488, 280 A.2d 359 (1971), in support of that claim.

Quality confuses the burden of proof on a motion for summary judgment in the trial court with the burden of proof on appeal from the granting of a summary judgment. In the trial court, the movant bears the burden of demonstrating that there is no genuine issue of material fact; Practice Book § 384; Batick v. Seymour, supra; and the opposing party “must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991). The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence. Kasowitz v. Mutual Construction Co., 154 Conn. 607, 613, 228 A.2d 149 (1967). A material issue of fact is one that will affect the outcome of the case. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Practice Book § 381.

On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). On appeal, we review the affidavits to determine whether the opposing party sustained that burden.

Quality filed two affidavits. The first was that of Quality’s attorney averring that he had conferred with opposing counsel concerning replies to interrogatories. Even if we ignore the principle that generally an affidavit by a party’s attorney should not be used to oppose a summary judgment motion; Farrell v. Farrell, 182 Conn. 34, 37 n.2, 438 A.2d 415 (1980); this affidavit is irrelevant to the issue of the existence of an issue of fact.

The second affidavit was executed by Stephen Russo, Quality’s president. The affidavit contains seven initial paragraphs identifying the parties and the nature of the action, none of which provides any substantive support of Quality’s claims. Eleven of the remaining twenty-one paragraphs are hearsay, while six other paragraphs contain self-serving, unsubstantiated speculation by Russo regarding People’s alleged mishandling of the loan. Simply put, Russo’s averments do not amount to competent evidence supporting the claims in Quality’s cross complaint.

Hearsay statements are insufficient to contradict facts offered by the moving party; McColl v. Pataky, 160 Conn. 457, 459, 280 A.2d 146 (1971); Sheridan v. Board of Education, 20 Conn. App. 231, 240, 565 A.2d 882 (1989); and if an affidavit contains inadmissible evidence it will be disregarded. New Haven Tobacco Co. v. O’Brien, 37 Conn. Sup. 815, 819, 438 A.2d 440 (1981). “If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof.” Id. In the present case, Whitney Avenue’s affidavits satisfied the movant’s burden of proof. In support of its motion for summary judgment Whitney Avenue submitted, among other evidence, the following: the assignment agreement between People’s and Whitney Avenue, the certificate of mechanic’s lien filed by Quality and the mortgage deed between People’s and Heritage. In addition, Whitney Avenue submitted the sworn affidavit of People’s vice-president, Christopher T. Arnold, who negotiated and administered the loan to Heritage. In that affidavit, Arnold swore that there was no agreement between People’s and Heritage to eliminate subsequent lienors. As analyzed in footnote two, Quality offered nothing by way of factual proof inconsistent with Whitney Avenue’s considerable evidence.

Because Whitney Avenue’s affidavits were adequate and not countered by affidavits or other documentary proof showing a genuine issue of material fact, Quality has not sustained its appellate burden of showing that the trial court’s decision granting summary judgment was erroneous in law.

Because we conclude that the trial court properly granted summary judgment, we do not reach the defendant’s claim concerning striking the case from the jury list.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 49-37 provides in relevant part: “(a) Whenever any mechanic’s lien has been placed upon any real estate pursuant to sections 49-33, 49-34 and 49-35, the owner of that real estate, or any person interested in it, may make an application to any judge of the superior court that the lien be dissolved upon the substitution of a bond with surety, and the judge shall order reasonable notice to be given to the lienor of the application. . . .”

       Quality’s cross complaint included a litany of claims against People’s. First, Quality claimed that People’s did not have priority over its mechanic’s lien and that the description of the terms in the original mortgage between People’s and Heritage was too indefinite to be effectual. Notwithstanding Quality’s claims, it is undisputed that People’s mortgage was recorded two months prior to the commencement of Quality’s work at the mortgaged premises. Moreover, the terms of the mortgage between People’s and Heritage are the exact language suggested in General Statutes § 49-3 (a) relating to mortgages securing future advancements. Accordingly, Quality’s claim is without merit. Second, Quality advanced the claim that People’s conspired with Heritage and the cosigners of the note and deed to destroy any security interest Quality had in its mechanic’s lien. Quality’s allegations of a conspiracy are purely speculative and wholly unsubstantiated and are thus without merit. Finally, Quality claimed that People’s was unjustly enriched by and through Quality’s installation of plumbing at the property used to secure the note. As the holder of a mortgage recorded prior to Quality’s commencing work on the site, People’s has a right on default to foreclose on the property securing the note. Quality provides no support, legal or factual, for its claim that People’s was unjustly enriched. See Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d 379 (1971).
      On appeal, Quality argued that People’s owed, to third parties like itself, a duty of good faith in the continued administering of the loan to Heritage. Because Quality alleged the issue of bad faith for the first time on appeal, we decline to review it. Lopiano v. Stamford, 22 Conn. App. 591, 594, 577 A.2d 1135 (1990).

       A motion to strike is the proper method to attack a counteraffidavit that does not comply with the rules. See McCourt v. Anemostat Corp., 25 Conn. Sup. 462, 207 A.2d 585 (1965). In the present case, however, the counteraffidavit was delivered to Whitney Avenue’s counsel during the course of argument, thereby depriving them of an opportunity to file a proper motion to strike. See Practice Book §§ 154 and 155.


text:
    David A. Altschuler Trust v. Andrew Blanchette et al.
    (12070)
    O’Connell, Landau and Heiman, Js.
    Argued December 2, 1993
    decision released February 8, 1994

      Edward J. Dolan, with whom on the brief was Kent Harvey, for the appellants (defendants).

      Paul J. Dorsi, for the appellee (plaintiff).
   O’Connell, J.

This is an action to recover rent in which, following a trial to the court, judgment was rendered in favor of the plaintiff. On appeal, the defendants raise the following issues: (1) Did the trial court improperly hold that the defendants breached their contractual obligations to the plaintiff? (2) Did the lease provide a covenant to renew or a covenant to extend the lease? (3) Is the doctrine of part performance applicable to the case? (4) What is the effect of the plaintiff’s failure to reply to special defenses? We reverse the judgment of the trial court.

The following facts are necessary for the disposition of this appeal. The plaintiff, David A. Altschuler Trust, is a family trust, the sole asset of which is a commercial building in West Haven. On November 28, 1984, the plaintiff leased approximately 640 square feet to Allstate Insurance Company. The lease was for a three year term “commencing December 1,1984 and expiring November 31 [sic], 1987.” Allstate, with the plaintiff’s consent, assigned its leasehold interest to the defendants, three Allstate insurance agents who moved into the premises and conducted business therefrom. When the lease expired on November 30, 1987, the defendants did not move out but remained in occupancy until August, 1989.

The trial court held the defendants liable on the basis of an extension of the lease to another three year term, expiring November 30, 1990. After crediting rent received in mitigation of damages from a new tenant, the trial court rendered judgment for the plaintiff.

The central issue is the status of the defendants when they remained in possession of the premises after the lease expired on November 30,1987. Paragraphs sixteen and thirty-two of the lease are relevant. Paragraph thirty-two provided for renewal of the lease for another three year term, and paragraph sixteen established the legal relationship between the plaintiff-lessor and the defendant-lessees in the event the lessees remained in the premises without having executed a new written lease.

The defendants argue that the option in paragraph thirty-two constituted a covenant to renew the lease whereas the plaintiff contends that paragraph thirty-two created a covenant to extend the lease. Our case law recognizes a technical distinction between a covenant to renew a lease and a covenant to extend a lease. Johnson v. Mary Oliver Candy Shops, Inc., 116 Conn. 86, 89, 163 A. 606 (1933); City Coal Co. v. Marcus, 95 Conn. 454, 459, 111 A. 857 (1920). A covenant to renew a lease requires a new written instrument, whereas a new written instrument is not required by a covenant to extend because the original lease operates as a continuous one. City Coal Co. v. Marcus, supra. This distinction is particularly important if a question of satisfaction of the statute of frauds is involved.

In the present case, we do not reach the question of whether the lease created a covenant to renew or a covenant to extend. Paragraphs sixteen and thirty-two both require a writing if the landlord-tenant relationship is to be continued for another three years. Whether it is called an extension or a renewal, it had to be in writing. Because there was no writing of any kind executed by the parties, the terms of the lease have not been satisfied.

Paragraph sixteen contemplated the possible creation of this situation wherein lessees remained in occupancy without a new written document. Under paragraph sixteen, the plaintiff had a choice of (1) immediately evicting the lessees or (2) treating them as month-to-month tenants. The plaintiff elected the second option and a month-to-month tenancy ensued. Moreover, paragraph sixteen expressly provided that “[n]o such holding over shall give rise, whether by operation of law or otherwise, to any other term or tenancy . . . .” This paragraph is consistent with General Statutes § 47a-3d, which provides that “[h]olding over by any lessee after the expiration of the term of his lease, shall not be evidence of any agreement for a further lease.”

Following the November, 1987 expiration, the defendants paid rent in the amount required by paragraph thirty-two as if they had renewed the lease. The trial court concluded that this payment of increased rent demonstrated that the defendants had exercised their option to extend the lease. This is not the law. In Johnson v. Mary Oliver Candy Shops, Inc., supra, 90, our Supreme Court held that a tenant’s continued occupancy after expiration of a lease and payment of increased rent required by a renewal option is not evidence of an agreement for a future lease.

In its oral ruling and special finding, the trial court concluded that the plaintiff had waived the written notice requirement under paragraph thirty-two, thus binding the defendants to an additional three year lease. According to the trial court, since the writing requirement under paragraph thirty-two existed for the benefit of the landlord, it could be waived by the landlord at anytime. Our case law is clear that a landlord may be deemed to have waived the notice requirements for a renewal or extension option in circumstances where the tenant is seeking to hold the landlord to an extension of the term. Adam v. Consolini, 135 Conn. 321, 324, 64 A.2d 44 (1949); Johnson v. Mary Oliver Candy Shops, Inc., supra; Perrotti v. Chiodo, 21 Conn. App. 288, 290, 573 A.2d 342 (1990). There is, however, no support in our law for the plaintiff s position that a landlord may waive the notice requirements in a lease in an attempt to bind the tenant to an extension of the lease. “The lease gives . . . no such right [to the plaintiff,] the option of an extension or renewal being solely that of the tenant.” Johnson v. Mary Oliver Candy Shops, Inc., supra.

Because our conclusion that the defendants were month-to-month tenants pursuant to paragraph sixteen of the lease is dispositive of this appeal, we do not reach any of the defendants’ other issues or any of the issues raised by the plaintiff in its counterstatement of issues.

The judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       We will treat this obvious scrivener’s error as intending to refer to November 30, 1987.

       “RENEWAL
      “32. Lessee, at its option shall be entitled to one successive renewal hereof, for a term of three years upon the same terms and conditions as set forth herein except that the rental rate shall be as described below. Said option to be exercised in tvriting at least 90 days prior to the expiration of the original or succeeding terms.
      a. First year of renewal: $9,600.00 per year, $800 per month:
      b. Second year of renewal: $10,200.00 per year, $850 per month:
      c. Third year of renewal: $10,800.00 per year, $900 per month.” (Emphasis added.)

       “HOLDING OVER BY LESSEE
      “16. If Lessee shall remain in the demised premises after the expiration of this lease without having executed a new written lease, then Lessor shall have the option to treat Lessee either (a) as one not lawfully entitled to possession of the premises, and shall thereupon be entitled to take all lawful action, for Lessee’s immediate removal therefrom, or (b) as a tenant for the next ensuing calendar month and for each separate ensuing calendar month thereafter, in which case said tenancy may be terminated by either Lessor or Lessee at the end of any calendar month upon thirty days’ prior written notice, and Lessee shall pay monthly rent at the rate herein specified for each such month. No such holding over shall give rise, whether by operation of law or otherwise, to any other term or tenancy than that set forth in this paragraph.” (Emphasis added.)

       See footnotes 2 and 3.

       The plaintiff cites Zuckerman Group v. Raveis, 4 Conn. App. 568, 495 A.2d 300, cert. dismissed, 197 Conn. 811, 499 A.2d 62 (1985), in support of its claim that a landlord may properly waive the notice requirements in an option to extend and hold the tenant to an extension of the term. The plaintiffs reliance on Zuckerman Group is misplaced. Zuckerman Group stands for the proposition that the issue of whether an option to extend has been exercised is a question of fact for the trial court. Zuckerman Group v. Raveis, supra, 571. Waiver of the writing requirement was not before the court.

       The plaintiff’s counterstatement of issues is as follows:
      “I. Whether clause #32 provided an option to extend the lease as opposed to a covenant to renew the lease.
      “II. Whether the trial court correctly held that any ambiguity should be interpreted in the plaintiff’s favor.
      “III. Whether evidence and case law supports the trial court’s finding that the defendants exercised their option to extend the lease.
      “TV. Whether the plaintiff failed to answer the defendants’ special defense, and whether the defendants’ failure to properly serve the plaintiff bars any such claim the defendants may have had.” (Emphasis in original.)