author: LANDAU, J.

text:
    HARTFORD INSURANCE COMPANY v. COLONIA INSURANCE COMPANY
    (AC 18752)
    Lavery, Landau and Dupont, Js.

      Argued January officially
    officially released May 30, 2000

      Stuart G. Blackburn, for the appellant (plaintiff).

      Michael S. Taylor, with whom were Mark R. Cramer and, on the brief, Daniel P. Scapellati, for the appel-lee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

LANDAU, J.

The plaintiff, the Hartford Insurance Company, appeals from the judgment of the trial court rendered in favor of the defendant, the Colonia Insurance Company. The plaintiff brought the present action pursuant to General Statutes § 38a-321 to recover for damage caused by the defendant’s insured, Paul Swat-sell, to a building insured by the plaintiff. On appeal, the plaintiff claims that the court improperly assessed the burden of proof required to show lack of prejudice where the defendant’s insured failed to give the defendant timely notification of the claim against him. The plaintiff further claims that the court improperly determined that the plaintiff had not met its burden.

The following facts are relevant to the resolution of this appeal. Bayview Health Care, Inc. (Bayview), operated a health care facility in a building owned by J.A.G. Realty Partnership (partnership). Both Bayview and the partnership were insured by the plaintiff. Swat-sell entered into a contract with Bayview and began work to repair the roof of the building. Swatsell and his roofing contracting business were insured by the defendant under a policy of general liability insurance when he abandoned work on the roof, leaving it susceptible to damage from the elements. On November 28, 1993, a storm damaged the roof and water entered the building, causing interior damage as well.

Bayview and the partnership brought an action to recover damages from Swatsell. Despite notification of the action, Swatsell did not respond to the allegations and failed to appear. Accordingly, a judgment of default was entered against him in March, 1996, and damages were assessed in the amount of $264,141.29 plus reasonable costs. At no time did Swatsell notify the defendant of the action brought against him as required under his insurance policy.* * In the present action, the defendant claimed by way of special defenses that Swatsell’s failure to notify discharged the defendant from liability.

The court concluded that the defendant’s special defense of failure to notify did not discharge liability, but rather placed the burden on the plaintiff to prove that the defendant was not prejudiced by the late notification. The court found that the defendant was deprived of its ability to conduct its own investigation into the matter because of the failure to notify and that the plaintiff had, therefore, “failed to meet its burden of proof on the issue of lack of prejudice to the defendant.” Judgment was rendered in favor of the defendant, and this appeal followed.

The plaintiff claims that the court improperly assessed the burden of proof required for the plaintiff to show that the defendant was not prejudiced by the failure of Swatsell to give timely notification of the claim against him. The plaintiff also claims that the court improperly concluded that the plaintiff had not met its burden of proof. We disagree.

The resolution of this claim is governed by Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 538 A.2d 219 (1988). In that case, the plaintiff insurer sought to recover for damages caused by the defendant to a building insured by the plaintiff. Id., 410. The defendant’s insurance company, which had been impleaded as a third party defendant, successfully moved for summary judgment on the ground that the defendant had failed to notify it of the claim in a timely manner as required in the insurance contract. Id.

On appeal, the defendant claimed that he should have been allowed to recover from his insurance company despite the late notification because the insurance company had not been prejudiced by the delay. Id., 411. The court held that in the absence of material prejudice, an insurer’s duty to provide coverage is not discharged by the failure of its insured to give timely notice of the claim. Id., 418. The court further held that “the burden of establishing lack of prejudice must be borne by the insured . . . [because it] is the insured who is seeking to be excused from the consequences of a contract provision with which he has concededly failed to comply.” Id., 419-20.

In this case, the court concluded that the plaintiff had established its right of action under § 38a-321 because it had obtained a judgment against Swatsell, who was insured by the defendant when the claim arose. Having so concluded, the court then turned to the defendant’s special defense of failure to notify. Following the reasoning of Aetna Casualty & Surety Co., the court undertook to determine whether the defendant had been materially prejudiced by the failure of Swatsell to notify it of the claim. The court concluded that the plaintiff had not sustained its burden of proving lack of material prejudice and that the defendant was prejudiced by the failure to notify.

“[0]ur function [on appeal] is not to examine the record to see if the trier of fact could have reached a contrary conclusion. . . . Rather, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Twachtman v. Hastings, 52 Conn. App. 661, 668, 727 A.2d 791, cert. denied, 249 Conn. 930, 733 A.2d 851 (1999).

Our Supreme Court has held that “a proper balance between the interests of the insurer and the insured requires a factual inquiry into whether, in the circumstances of a particular case, an insurer has been prejudiced by its insured’s delay in giving notice of an event triggering insurance coverage.” Aetna Casualty & Surety Co. v. Murphy, supra, 206 Conn. 417-18. In this case, the plaintiff asks that we review the court’s conclusion to determine whether it legally and logically follows from the subordinate facts, and the defendant asserts that the correct standard to apply is whether the court’s determination was clearly erroneous. Even if we were to agree with the plaintiff, the facts in this case are that the defendant’s insured gave absolutely no notification of the claim against him to his insurer, the defendant. The defendant did not learn of the judgment against Swatsell until several months after it was rendered. The court found that this complete failure to notify deprived the defendant of its opportunity to investigate the possibility that the damage was caused by the negligence of another roofer who followed Swat-sell on the job. Our Supreme Court has stated that the opportunity to investigate serves a further purpose, that is, “ ‘if the insurer is thus given the opportunity for a timely investigation, reasonable compromises and settlements may be made, thereby avoiding prolonged and unnecessary litigation.’ ” Id., 417, quoting 8 J. Appleman & J. Appleman, Insurance Law and Practice (Rev. Ed. 1981) § 4731, p. 5. The defendant was, therefore, additionally prejudiced by being deprived of the opportunity to pursue a compromise or settlement. We conclude that the court’s determination that the plaintiff failed to prove lack of prejudice could legally and logically have been drawn from the subordinate facts. Thus, we cannot say that the decision of the court was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 38a-321 provides in relevant part: “Upon the recovery of a final judgment against any person, firm or corporation by any person, including administrators or executors, for loss or damage on account of bodily injury or death or damage to property, if the defendant in such action was insured against such loss or damage at the time when the right of action arose and if such judgment is not satisfied within thirty days after the date when it was rendered, such judgment creditor shall be subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.”

       Mark W. Dietz, the attorney who represented Bayview and the partnership in the action against Swatsell, became aware of the defendant’s insurance policy in May, 1996, several months after the judgment had entered. Dietz’s subsequent letter to the defendant demanding reimbursement was the first notice that the defendant received of the underlying action.

       Prejudice to the insurer is presumed where the insured fails to meet a contractual lime limitation with respect to notice of claim. Hotkowski v. Aetna Life & Casualty Co., 224 Conn. 145, 148-49, 617 A.2d 451 (1992).


source: Caselaw Access Project

author: HEALEY, J.

license: Public Domain

text:
    IAN FENTON v. CONNECTICUT HOSPITAL ASSOCIATION WORKERS’ COMPENSATION TRUST ET AL.
    (AC 18751)
    Foti, Spear and Healey, Js.
    Argued November 29, 1999
    officially released May 30, 2000

      Charles D. Ray, with whom were Edward Gallant and Fiona Greaves, for the appellant (plaintiff).

      Andrew A. Cohen, for the appellees (defendants).
   Opinion

HEALEY, J.

The plaintiff, Ian Fenton, appeals from the judgment of the trial court rendered on the denial of his application for an order permitting him to execute on a voluntary workers’ compensation agreement (voluntary agreement) for weekly payments entered into by the plaintiff and the defendant employer and approved by the trial commissioner. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In early 1995, while employed as a graphics arts teacher at a vocational school in Hamden operated by the defendant Area Cooperative Educational Services (school), the plaintiff sustained injuries when he tried to stop a fight between students. The plaintiff filed a workers’ compensation claim and was granted temporary total disability benefits for an injury to his neck.

Approximately seven months later, on September 7, 1995, the defendants submitted a form 36 to the commissioner, stating that the plaintiff no longer was entitled to benefits for his neck injury. The form 36 was approved by a commissioner on September 27, 1995, thereby allowing the defendants to discontinue payments to the plaintiff. The plaintiff never sought a formal hearing to dispute this discontinuation of benefits.

In July, 1997, the defendants asked the plaintiff to sign a voluntary agreement. The voluntary agreement form lists the plaintiffs neck as the injured part of his body, but goes on to note that “[d]isc, teeth, heart, hip and upper leg are additional injuries still in dispute.” The plaintiff signed the voluntary agreement on July 11, 1997, and it was approved by a commissioner on July 18, 1997.

On May 1, 1998, more than two and one-half years after the approval of the form 36, the plaintiff filed in the Superior Court a pleading titled, “Motion That Execution be Ordered in Compliance With an Approved Workers’ Compensation Agreement.” The defendants thereafter filed a “Motion to Dismiss and Objection to Plaintiffs Motion for Order of Execution.” The court, after a hearing, denied the plaintiffs motion in a memorandum of decision, stating, inter alia, that “[t]he matter continues to be the subject of contested proceedings before the workers’ compensation commission, which has not rendered any final decision in the matter. . . . This court declines to operate as a kind of court of interlocutory appeals for workers’ compensation matters.”* ** 4 This appeal followed.

At the outset, the plaintiff claims that the court, in denying his motion for an order of execution, improperly concluded that “it had no power to consider it.” The defendants, however, contend that the court’s decision was “statutorily left” to the court’s discretion and that its exercise of that discretion should not be disturbed unless that discretion was abused. We agree with the defendants.

In making his argument on this threshold issue, the plaintiff maintains that the court had “not only the right, but also the duty, to exercise its jurisdiction and render a decision on the merits of [his] application to enforce the final and binding voluntary agreement,” as it had sole jurisdiction over the matter and its jurisdiction had been invoked properly. He also argues that the court’s authority to hear and determine the merits of his motion is derived from two provisions of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., i.e., General Statutes §§ 31-296 and 31-300. He contends further that “[t]aken together, these statutes allow a claimant to enforce accrued but unpaid benefits that are due under an approved voluntary agreement, either by an action at law or by execution, in the same manner as a Superior Court judgment.”

We begin by noting that the Superior Court has subject matter jurisdiction over the issuance of executions on a judgment of the Superior Court. For example, under General Statutes § 52-350Í authority is given for the enforcement of a money judgment as applied to the act. Section 31-296, titled, “Voluntary Agreements,” provides in relevant part: “[The workers’ compensation commissioner] shall retain the original [voluntary] agreement, with his approval thereof, in his office and, if an application is made to the superior court for an execution, he shall, upon the request of said court, file in the court a certified copy of the agreement and his statement of approval thereof. . . .” In relevant part, § 31-300 provides that in the event that either party does not appeal from the commissioner’s decision within ten days after the decision has been made, “such award shall be final and may be enforced in the same manner as a judgment of the Superior Court. The [Superior] court may issue execution upon any uncontested or final award of a commissioner in the same manner as in cases of judgments rendered in the Superior Court; and, upon the filing of an application to the court for an execution, the commissioner in whose office the award is on file shall, upon the request of the clerk of said court, send to him a certified copy of such findings and award. . . .” (Emphasis added.) There is no question, therefore, that the Superior Court has subject matter jurisdiction in this matter and may issue an order of execution as provided for in § 31-300. The Superior Court “has ‘general subject matter jurisdiction. Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 195, 629 A.2d 1116 (1993).’ ” Second Injury Fund v. Lupachino, 45 Conn. App. 324, 345, 695 A.2d 1072 (1997).

“The construction of a judgment is a question of law for the court. See 49 C.J.S., Judgments § 436; see also Grasso v. Frattolillo, 111 Conn. 209, 212, 149 A. 838 (1930); see generally Jordan, Marsh & Co. v. Patterson, 67 Conn. 473, 479, 35 A. 521 (1896). As a general rule, judgments are to be construed in the same fashion as other written instruments. Scoville v. Scoville, 179 Conn. 277, 282, 426 A.2d 271 (1979) (Healey, J., dissenting); Grasso v. Frattolillo, supra, 212; 46 Am. Jur. 2d, Judgments § 73; 49 C.J.S., Judgments, supra; 3 Stephenson, Conn. Civ. Proc. (Tait & Adomeit 1978) § 351e. The determinative factor is the intention of the court as gathered from all parts of the judgment. Scoville v. Scoville, supra; 3 Stephenson, supra. The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. Christiano v. Christiano, 131 Conn. 589, 592, 41 A.2d 779 [1945]. Garguilo v. Moore, 156 Conn. 359, 365, 242 A.2d 716 (1968); Nauss v. Pinkes, 2 Conn. App. 400, 411, 480 A.2d 568 [cert. denied, 194 Conn. 808, 483 A.2d 612] (1984); see also Viglione v. Viglione, 171 Conn. 213, 217, 368 A.2d 202 (1976); 46 Am. Jur. 2d, Judgments, supra; 49 C.J.S., Judgments, supra. Effect must be given to that which is clearly implied as well as to that which is expressed. Cooper v. Cooper, 158 N.W.2d 712, 713 (Iowa 1968), quoting Whittier v. Whittier, 237 Iowa 655, 663, 23 N.W.2d 435 (1946). The judgment should admit of a consistent construction as a whole. Riley v. Liquor Control Commission, 153 Conn. 242, 245, 215 A.2d 402 (1965).” (Internal quotation marks omitted.) Lashgari v. Lashgari, 197 Conn. 189, 196-97, 496 A.2d 491 (1985).

It is evident that the court was aware that the agreement stated, in prominent print, “THIS IS NOT A FINAL SETTLEMENT,” and that the matter continued to be pending before the commissioner, who, as the court stated in its memorandum of decision, “[had] not rendered any final decision in the matter.” This being so, the court further stated that “this court declines to operate as a kind of court of interlocutory appeals for workers’ compensation matters.” The “NOT A FINAL SETTLEMENT” language is that of a “disclaimer,” which has been defined as a “ ‘refusal to recognize the existence of an obligation. Ballentine’s Law Dictionary (3d Ed. 1969).’ ” Mattegat v. Klopfenstein, 50 Conn. App. 97, 103, 717 A.2d 276, cert. denied, 247 Conn. 922, 722 A.2d 810 (1998). Significantly, this language was on the very document that the plaintiff claims embodies the “defendants’ admitted liability” for his neck injury, “which had been conclusively established by execution and approval by the voluntary agreement.” The plaintiff, however, has not demonstrated the impact of this “NOT A FINAL SETTLEMENT” language.

Our standard for review of the court’s action is whether it abused its discretion in denying the issuance of the requested execution. Morgan v. East Haven, 208 Conn. 576, 588, 546 A.2d 243 (1988); Goodlatte v. Liberty Mutual Ins. Co., 27 Conn. Sup. 382, 385, 239 A.2d 546 (1967). It is true that the Superior Court was the appropriate entity to grant or deny the execution, and in being the appropriate entity to do so it had discretion. This is because the procedural vehicle for allowing the Superior Court to grant or deny an order of execution is found in § 31-300 of the act. Not only does § 31-300 use the words “shall” and “may” interchangeably in a number of places, but those words also appear in the very portion of § 31-300 that states that the Superior Court “may” issue an order of execution in an appropriate case. “[The] use of ‘shall’ and ‘may’ in the same statute, which is commonly mandatory and directory in connotation, is a factor that evidences affirmative selectivity of terms with specific intent to be distinctive in meaning. The words ‘shall’ and ‘may’ must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings. Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978); Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428-29, 226 A.2d 380 (1967).” (Internal quotation marks omitted.) Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 304-305, 545 A.2d 530 (1988). Our Supreme Court, in an appeal involving an application for an order of execution under § 31-300, stated that a trial judge has the authority to deny an application for an order of execution. Morgan v. East Haven, supra, 588. The deferential “may” employed by the legislature in the relevant portion of § 31-300 referred to recognizes the legislative intent to permit the Superior Court the discretion to grant or deny such an application.

The court in this case did exercise its discretion. In recognizing that this matter continues to be the subject of contested proceedings before the commissioner, the court stated in its memorandum of decision that it “declines to operate as a kind of court of interlocutory appeals.” We note the significance of that statement when taken in context. First, in stating that it “declines to operate as a kind of court of interlocutory appeals,” the court indicated that it had affirmatively acted in the matter before it and demonstrated that it exercised the discretion that it has. The court then used that discretion to deny the motion for execution. Next, the court refused to act in an “interlocutory” fashion. Black’s Law Dictionary (7th Ed. 1999) defines “interlocutory” to mean “not constituting a final resolution of the whole controversy.” The court was asked by the plaintiff to act favorably in a matter in which it was patently declared on the face of the document that the agreement was “NOT A FINAL SETTLEMENT.” “Judges are presumed to know the law . . . and to apply it correctly.” (Internal quotation marks omitted.) Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md. App. 583, 591-92, 374 A.2d 419 (1977). We can, therefore, presume that the court knew that the act provided the opportunity for further proceedings with potential relief for the plaintiff. Such potential appropriately may be considered in the matter before us when we remember that the construction of a judgment not only involves the consideration of “circumstances surrounding the making of the judgment,” but also that “[e]ffect must be given to that which is clearly implied as well as to that which is expressed.” (Internal quotation marks omitted.) Lashgari v. Lashgari, supra, 197 Conn. 196-97. It can, therefore, be said that in adverting to the interlocutory or nonfinal nature of the voluntary agreement for which the plaintiff sought an order of execution, the court implied, and we believe correctly, that the act itself provided the relief the plaintiff sought, which first needed to be exhausted.

Turning first to General Statutes § 31-278 of the act, which is titled, “Power and duties of commissioners,” it provides in relevant part that “[t]he Superior Court, on application of a commissioner or the chairman . . . may enforce, by appropriate decree or process, any provision of the chapter or any proper order of a commissioner or this chairman rendered pursuant to any such provision. . . .” (Emphasis added.) The legislative choice to include the word “process” is instructive when accepted definitions of that term are considered. Its use in § 31-278 is strongly suggestive of another avenue by which a plaintiff may utilize the act in the first instance in an enforcement context. General Statutes § 31-323 of the act provides that under certain circumstances a “commissioner may issue a writ of attachment [against employers who have not paid benefits due under the act] in the manner and form of writs of attachment in civil actions and shall be vested with the same jurisdiction as authorities authorized to issue writs of attachment in civil actions. ...”

The plaintiff claims that the legislature has provided the remedy in § 31-300, which permits him to go directly into the Superior Court to seek an order of execution on the voluntary agreement without any necessity that he consider doing anything further under the act. We disagree.

If we assume for the moment that the voluntary agreement is of the quality and kind that the Superior Court could properly consider to be the subject of an execution, the plaintiff could have addressed the commissioner under § 31-278 and asked that the commissioner make an “application” to the Superior Court to enforce his order. It is no answer for the plaintiff to claim, as he does, that the legislature provided the route he sought to take. Rather, it should be pointed out that there are good reasons for exhausting available administrative remedies under the act before seeking judicial review. “Foremost among those reasons is the policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the [workers’ compensation commissioner’s] findings and conclusions.” Silverman v. New Haven, 19 Conn. App. 360, 366, 562 A.2d 562, cert. denied, 212 Conn. 812, 565 A.2d 537 (1989). “We have recognized that a party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if: recourse to the administrative remedy would be futile or inadequate . . . .” (Internal quotation marks omitted.) Johnson v. Statewide Grievance Committee, 248 Conn. 87, 103, 726 A.2d 1154 (1999). The plaintiff’s remedy offered by § 31-278 was adequate; invoking it would have put him in the position to get the relief he wanted, i.e., money. After all, “It is not the [plaintiffs] preference for a particular remedy that determines whether the remedy . . . is adequate . . . and an administrative remedy, in order to be ‘adequate,’ need not comport with the [plaintiff’s] opinion of what a perfect remedy would be.” Connecticut Mobile Home Assn., Inc. v. Jensen’s, Inc. 178 Conn. 586, 590, 424 A.2d 285 (1979); see Hunt v. Prior, 236 Conn. 421, 434, 673 A.2d 514 (1996); Savoy Laundry, Inc. v. Stratford, 32 Conn. App. 636, 642, 630 A.2d 159, cert. denied, 227 Conn. 931, 632 A.2d 704 (1993).

The plaintiff also asserts that the court “did not understand the role it was being asked to assume.” He claims that the court was not being asked to engage in “appellate” review of the voluntary agreement, but rather, the plaintiff sought enforcement only of what was “a final and binding agreement between the parties . . . which under [McIntyre v. Standard Oil Co. of New York, Inc., 126 Conn. 491, 12 A.2d 544 (1940)] was enforceable as to payments that had already accrued but had not yet been paid.” The premise of his claim, the plaintiff argues, “was that the voluntary agreement represented a final, binding contract between the parties, for which he sought an execution on amounts that had already become due, but had not yet been paid.”

On the other hand, the defendants claim that (1) the voluntary agreement is not an enforceable final judgment and is not subject to an order of execution, as was the case in McIntyre, and (2) even if a voluntary agreement may create a right to payment in some circumstances, they have no obligation to pay here because the form 36 already had been approved by the commissioner and remained legally viable and, thus, rendered the voluntary agreement ineffective.

Certain additional circumstances should be set out. In addition to the language in the voluntary agreement, approved by the commissioner on July 18, 1997, and which prominently states in boldface print the caveat, “THIS IS NOT A FINAL SETTLEMENT,” other language in the document is significant. The voluntary agreement also contains a section conspicuously titled, “IF INJURY CAUSES,” which plainly is in “condition precedent” language. There also is a space in the document for the specific, basic weekly compensation rate depending on the type of incapacity or injury, which clearly is subject to and conditioned on the “IF INJURY CAUSES” language. On this printed form the amount $631.35 is printed in box 17 as the weekly “basic compensation.” Box 17, in printed form, also contains after “$631.35 per week” the following: “Employer pays to employee (Section 31-307). . . .” We note that § 31-307 (a), titled, “Compensation for total incapacity,” contains this prefatory language: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation equal to . . . .” (Emphasis added.) This language from § 31-307 underscores the caveat of the “IF INJURY CAUSES” section of the voluntary agreement.

The voluntary agreement was signed on July 7, 1997, and approved by the commissioner on July 18, 1997. The voluntary agreement includes no provision for the payment of any fixed sum, but rather, sets out the applicable weekly benefit rate, i.e., $631.75 “IF INJURY CAUSES” total incapacity. Causation still remains to be proven by the plaintiff as to his neck injury. On September 27, 1995, the commissioner approved the defendants’ previously filed form 36, in which they had sought to discontinue payment of benefits to the plaintiff. In the form 36, the defendants alleged that the plaintiff had been released to return to light duty work on July 10, 1995, and was, therefore, no longer entitled to receive temporary total benefits. There is nothing in the record before the court to indicate that the form 36 has been revoked, withdrawn, amended or changed in any fashion by a commissioner. The plaintiff, although he was entitled to do so under § 31-296, never requested a hearing on the defendants’ discontinuance of payments.

In McIntyre, the employee entered into a “voluntary compensation agreement” with the employer for $6800, which was agreed to be “an advance commuted payment of compensation into a single lump sum.” (Internal quotation marks omitted.) McIntyre v. Standard Oil Co. of New York, Inc., supra, 126 Conn. 492-93. The commissioner approved the agreement. Id., 493. Subsequently, the employee complained to the commissioner that the employer had not paid pursuant to the terms of the agreement. Id. Still later, the employer discharged the employee and paid him certain moneys pursuant to a “voluntary special allowance,” which the employer claimed was in place of the $6800 due under the earlier compensation agreement. Id., 493-94. The employee then brought an action against the employer, alleging that the earlier compensation agreement and the voluntary allowance that the employer itself decided to award him were two separate transactions and that he was entitled to receive the compensation award as well as the voluntary special allowance. Id., 494. Our Supreme Court affirmed the employee’s entitlement to both. In so doing, the court stated that under the statutes, the $6800 compensation agreement was a commutation of the employee’s compensation for the entire period involved and that immediate payment of the commuted lump sum was contemplated. Id., 496. The McIntyre court then went on to state: “An obvious purpose of commutation into a single lump sum is in effect an immediate determination of the rights of the employee and the liability of the employer as to the entire compensation by fixing the amount to be paid and accepted, with a single payment thereof instead of the usual weekly instalments or other periodical payments extending over the compensation period, due allowance, as by discount, being made for the advantages accruing thereby to the employee. When, as here, the award is so commuted and made presently payable, it thereupon becomes a final judgment. O’Keefe v. Elmer Automobile Co., [112 Conn. 370, 379, 152 A. 280 (1930)]. As such it is enforceable as provided in § 5251 of the General Statutes, at least in the absence of motion to reopen it.” McIntyre v. Standard Oil Co. of New York, Inc., supra, 126 Conn. 496; see also Hyatt v. Milford, 26 Conn. App. 494, 498, 600 A.2d 5 (1991), appeal dismissed, 224 Conn. 441, 619 A.2d 450 (1993) (following McIntyre). McIntyre thereby concluded that the compensation agreement was a final judgment entitled to be enforced under § 5251 as a final judgment.

That is not the situation in this case. Here, the plaintiff received neither a commuted and currently payable monetary award nor a lump sum award. McIntyre, therefore, does not control. What the plaintiff and the defendants agreed to was that the plaintiff had a neck injury that arose out of and in the course of his employment, and a setting of the weekly rate of his compensation “if injury causes total incapacity” of his neck. That is what the commissioner ordered on a form that not only was marked, “NOT A FINAL SETTLEMENT,” but which also, not once, but twice, stated the caveat, “If injury causes total disability.” By signing the agreement, the defendants were not agreeing to be liable for any total incapacity of the plaintiffs neck, as causation remained to be proven by the plaintiff. Rather, the defendants claim that they sought the execution of the “NOT A FINAL SETTLEMENT” agreement for the purpose of avoiding any waiver or threatening of their right to transfer liability for the neck injury to the second injury fund, pursuant to General Statutes § 31-349 (b). The defendants claim further that the document involved no agreement “whatsoever . . . that the plaintiff was presently incapacitated because of his neck injury and certainly not that plaintiff would receive payment for such an alleged incapacity.”

The plaintiff, on the other hand, maintains that on July 7, 1997, nearly two years after the discontinuation of his benefits, the defendants, through counsel, “revived” his entitlement to benefits by proposing the voluntary agreement to compensate him for his neck injuries. Under this agreement, the plaintiff argues, the defendant employer agreed to pay him $631.35 per week. Despite approval of the voluntary agreement on July 18,1997, by the commissioner, according to statute, the defendants, notwithstanding repeated demands by the plaintiff, made no payments. Accordingly, the plaintiff sought an order of execution in the Superior Court, the denial of which is before us now.

This case does not present, as the plaintiff claims, a voluntary agreement that is a final and enforceable judgment. Moreover, it does not, as the plaintiff claims, fit within the rationale of McIntyre to be the subject of consideration for an order of execution. In McIntyre, it expressly appeared from the voluntary agreement that there was a commutation of compensation into a single lump sum and that immediate payment was contemplated such that there was a final judgment. McIntyre v. Standard Oil Co. of New York, Inc., supra, 126 Conn. 496. That is not so in this case. The plaintiff, quite apart from his not properly explaining the “NOT A FINAL SETTLEMENT” language in the context of the entire voluntary agreement, also has not persuasively demonstrated the impact of the “IF INJURY CAUSES” language, which appears not once, but twice in the voluntary agreement. In addition, the plaintiff has not demonstrated by analysis that the “IF INJURY CAUSES” language does not mean exactly what it says, that is, that the causation element of the injury still remains to be proven. The word “if” is “[a] word implying a condition; showing that the expectation of a fulfillment is uncertain, and presupposing that it may not occur.” Ballentine’s Law Dictionary (3d Ed. 1969); see 17A Am. Jur. 2d, Contracts § 466 (1991). The word “if,” as used in this context, unambiguously resonates in the sense of that which is precedent to the right and duty to immediate performance; it is that which is not at all final. The plaintiff suggests that he is entitled to have an order of execution issue so that he may obtain the payments that have “accrued” and constitute the amount of his final judgment. This is not persuasive because that which is “accrued” is that which “[comes] into existence as an enforceable claim or right”; Black’s Law Dictionary (7th Ed. 1999); and the plaintiff, at this juncture, has not proven any enforceable claim or right.

Next, the plaintiff dismisses the significance of the form 36, which the commissioner approved before the execution of the voluntary agreement. He does this by simply stating, without analysis or authority, that the defendants “revived [his] entitlement to benefits by proposing a voluntary agreement to compensate him for his neck injuries.” Relying on § 31-296-1 of the Regulations of Connecticut State Agencies, the plaintiff argues that “[a]s a matter of contract law—based on the specific terms of the agreement—the voluntary agreement in this case conclusively established the defendants’ acceptance of liability for payments based on [the plaintiffs] neck injuries.” (Emphasis added.) See Regs., Conn. State Agencies § 31-296-1. We do not interpret § 31-296-1 as does the plaintiff. Rather, we read it to mean that the “voluntary agreement” mentioned in the regulation is to be prepared in cases where there is no dispute that the employee has “suffered an accident and injury arising out of and in the course of his employment causing either temporary partial or temporary total disability beyond the three-day waiting period.” Id. In this case, the execution of the voluntary agreement means that the defendants conceded that the plaintiff injured his neck during the “accident” involved and that it caused some disability in the past beyond the three-day waiting period. It does not conclusively establish the defendants’ acceptance of liability for the plaintiffs neck injury.

Furthermore, the plaintiff has not demonstrated how the execution of the voluntary agreement has “revived” his claimed entitlement to benefits. He has not demonstrated that the commissioner’s order approving the form 36 prior to the voluntary agreement has been somehow revoked, amended, set aside or in any way diminished in its legal viability from that which it possessed when originally entered. In recognizing the con-clusivity that it was according to the approval of a discontinuance of or a reduction in benefits by means of an approved form 36, the legislature in § 31-296 imposed strict requirements of notification on the employer, the opportunity for the employee to request a hearing on the proposed discontinuance or reduction within ten days after receiving notice and mandated that any such request for a hearing “be given priority over requests for hearings on other matters. ...” General Statutes § 31-296. The plaintiff did not request a hearing before the commissioner. The plaintiff cannot bypass the effect of the duly ordered approval of the form 36, which operates to discontinue his benefits. This effect of the form 36 supports the defendants’ claim that the execution of and later approval by the commissioner of the 1997 voluntary agreement were for the purpose of preserving their ability to transfer their potential liability to the second injury fund.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the Area Cooperative Educational Services, which operated the vocational school at which the plaintiff was employed, and the Connecticut Hospital Association Workers’ Compensation Trust, the school’s workers’ compensation insurer.

       The plaintiffs motion stated in relevant part:
      “The undersigned respectfully represents:
      “1. The Plaintiff in the above-captioned matter is the Claimant in the ongoing workers’ compensation claim, titled, Ian Fenton v. Area Cooperative Educational Services (AGES) and The Connecticut Hospital Association Workers’ Compensation Trust (CHAWCT), WCC File No. 300024947.
      “2. The Defendants in the above-captioned matter, ACES and CHAWCT, the employer and its workers’ compensation insurer, respectively, are the Respondents.
      “3. On July 18,1997, the Honorable George Waldron, Commissioner, Workers’ Compensation Commission, Third District, approved a Voluntary Agreement entered into by the parties, wherein the Defendants agreed to pay to the Plaintiff the sum of Six Hundred Thirty One and 35/100 Dollars ($631.35) weekly as a Total Temporary Incapacity Benefit. . . .
      “4. The Defendants acknowledged the neck injury and agreed to said weekly benefit and payment therefor, but reserved their right to deny certain additional injuries claimed by the Plaintiff.
      “5. The approved Voluntary Agreement has not been reduced nor discontinued, nor has such action been approved as is required by Conn. Gen. Stat. § 31-296, by a workers’ compensation commissioner to date of this motion. Said agreement continues in full force and effect.
      “6. Said weekly benefit payments, as provided for in Conn. Gen. Stat. § 31-296 . . . and § 31-303, despite both oral and written demands therefor by the Plaintiff to the Respondents, have not been made. . . .
      “7. A Property Execution Proceedings Application and Execution form JD-CV-5 Rev. 12-90 is on file before this court.”

       The defendant’s motion stated:
      “Plaintiff is a claimant in a pending workers’ compensation case who, by way of mot ion, has asked this Court for ‘execution’ of a voluntary agreement approved last July by a workers’ compensation commissioner. Defendants are his employer and its insurer—the Respondents in that workers’ compensation proceeding. Defendants object to plaintiffs motion and ask the Court to dismiss this case on the following grounds: (1) The Court lacks subject matter jurisdiction over this case because plaintiff has failed to exhaust his administrative remedies; (2) even if concurrent jurisdiction exists between this Court and the Workers’ Compensation Commission, the Court should defer to the Commission under the doctrine of primary jurisdiction on a matter that it is within the Commission’s expertise; and (3) plaintiff is not entitled to execution in this matter because the voluntary agreement is not a final, enforceable judgment and because the Commission has approved the discontinuation of benefits by defendants.”

       The court’s memorandum of decision stated:
      “In this unusual proceeding, the plaintiff has moved for a property execution against the defendant to enforce a ‘voluntary agreement’ in a pending workers’ compensation case.
      “The plaintiff is a claimant in apending workers’ compensation proceeding as a result of an injury he claims he suffered at work in 1995. In July of 1997, the claimant and the employer reached an agreement under which the employer agreed to a basic compensation rate of $631.35 per week. The agreement on a preprinted state of Connecticut workers’ compensation commission form contains a large legend at the top, which reads, THIS IS NOT A FINAL SETTLEMENT. The agreement was approved by the workers’ compensation commission third district on July 18, 1997.
      “The matter continues to be the subject of contested proceedings before the workers’ compensation commission, which has not rendered any final decision in the matter.
      “Nonetheless, the plaintiff now comes to this court requesting that it issue a property execution for accrued, unpaid benefits under the agreement, notwithstanding the continued pendency of the case before the commission.
      “This court declines to operate as a kind of court of interlocutory appeals for workers’ compensation matters. The plaintiff has failed to point this court to any appellate or, indeed, trial court decision which approves the procedure he is urging the court to undertake.
      “The motion that execution be ordered is denied.”

       General Statutes § 31-296 provides in relevant part: “If an employer and an iqjured employee, or in case of fatal injury his legal representative or dependent, at a date not earlier than the expiration of the waiting period, reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, he shall so approve it. A copy of the agreement, with a statement of the commissioner’s approval thereof, shall be delivered to each of the parties and thereafter it shall be as binding upon both parties as an award by the commissioner. The commissioner’s statement of approval shall also inform the employee or his dependent, as the case may be, of any rights the individual may have to an annual cost-of-living adjustment or to participate in a rehabilitation program under the provisions of this chapter. He shall retain the original agreement, with his approval thereof, in his office and, if an application is made to the superior court for an execution, he shall, upon the request of said court, file in the court a certified copy of the agreement and his statement of approval thereof. Before discontinuing or reducing payment on account of total or partial incapacity under any such agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments, with the date of such proposed discontinuance or reduction and the reason therefor, and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner. The employee may request a hearing on any such proposed discontinuance or reduction within ten days of receipt of such notice. Any such request for a hearing shall be given priority over requests for hearings on other matters. The commissioner shall not approve any such discontinuance or reduction prior to the expiration of the period for requesting a hearing or the completion of such hearing, whichever is later. In any case where the commissioner finds that an employer has discontinued or reduced any payments made in accordance with this section without the approval of the commissioner, such employer shall be required to pay to the employee the total amount of all payments so discontinued or the total amount by which such payments were reduced, as the case may be, and shall be required to pay interest to the employee, at a rate of one and one-quarter per cent per month or portion thereof, on any payments so discontinued or on the total amount by which such payments were reduced, as the case may be, plus reasonable attorney’s fees incurred by the employee in relation to such discontinuance or reduction. Such notice of intention to discontinue or reduce payments shall be in substantially the [form included in the statute] ....
      * ** Ms
      “The employee may request a hearing by the compensation commissioner on the discontinuance or reduction set forth in this notice within ten days of receipt of this notice.”

       General Statutes § 31-300 provides in relevant part: “As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his findings and award. The commissioner shall, as part of the written award, inform the employee or his dependent, as the case may be, of any rights the individual may have to an annual cost-of-living adjustment or to participate in a rehabilitation program under the provisions of this chapter. He shall retain the original findings and award in his office. If no appeal from his decision is taken by either party within ten days thereafter, such award shall be final and may be enforced in the same manner as a judgment of the Superior Court. The court may issue execution upon any uncontested or final award of a commissioner in the same manner as in cases of judgments rendered in the Superior Court; and, upon the filing of an application to the court for an execution, the commissioner in whose office the award is on file shall, upon the request of the clerk of said court, send to him a certified copy of such findings and award. ...”

       In Morgan, the court stated that although the issuance of an execution ordinarily is a ministerial act, this should “not be construed to mean that it is always a ministerial process.” (Emphasis in original; internal quotation marks omitted.) Morgan v. East Haven, supra, 208 Conn. 588.

       Although the court did not explicitly develop in its memorandum of decision the meaning of the “NOT A FINAL SETTLEMENT” language, it is clear that the court perceived that the matter for which execution was sought was intermediate and tentative, as opposed to final. Our analysis, as we discuss in this opinion, leads us to conclude that the agreement lacked the legal quality the plaintiff contends it has.

       It is not quite correct, therefore, to state, as the plaintiff does, that the commissioner had “absolutely no authority to grant the relief [the plaintiff] requested” because an application for enforcement of the plaintiffs claim under § 31-278 of the act, if sought and favorably acted on by the Superior Court, ultimately would yield the same result as a.n execution rendered by the Superior Court, i.e, money for the plaintiff.

       This “If Injury Causes” section appears on both sides of the “THIS IS NOT A FINAL SETTLEMENT” form and is identical on both sides of the form except for the box numbers. This section was as follows:
      “IF INJURY CAUSES:
      “17. TOTAL INCAPACITY/BASIC COMPENSATION RATE: $631.35
      “Per Week: Employer pays to employee, (Section 31-307). Line 3, reverse side.
      “18. PARTIAL INCAPACITY
      “Per Week: Employer to pay 80% of the difference between present net weekly wage in employee’s usual work and employee’s post injury net weekly wage (Section 31-308). Line 4, reverse side.
      “19. SPECIFIC INJURY/BASIC COMPENSATION RATE
      “Involving permanent - total or permanent partial loss or loss of use of particular members or parts of the body, resulting from injury. EMPLOYER TO PAY TO EMPLOYEE amount limited at left in addition to the payments provided in 17 and 18, after maximum improvement for the number of weeks listed below, Section 31-308. Line 5, reverse side.
      “20. NO. OF WEEKS
      “21. SPECIFIC INJURY/DATE MAXIMUM IMPROVEMENT
      “(Fill in 20 and 21 only when specific injury is included)”

       The “voluntary special allowance” was given to the plaintiff in accordance with a custom of many years, pursuant to which the defendant made such payment to those employees “whose services had commended themselves to their superiors and whose employment was terminated without fault on their side.” McIntyre v. Standard Oil Co. of New York, Inc., supra, 126 Conn. 493.

       General Statutes § 31-349 (b) provides in relevant part: “As a condition precedent to the liability of the Second Injury Fund, the employer or its insurer shall: (1) Notify the custodian of the fund ... no later than ninety days after completion of payments for the first one hundred and four weeks of disability . . . of its intent to transfer liability for the claim to the Second Injury Fund; (2) include with the notification . . . (C) copies of all findings, awards and approved voluntary agreements . . . and (F) such other material as the custodian may require. . .

       We find it significant that the record does not disclose, since the approval of the form 36 in September, 1995, that the plaintiff filed with the commissioner any motion to set aside or modify that approval.

       There is no indication on the record before us, however, that any of those demands were made in the forum of the workers’ compensation commissioner.

       Section 31-296-1 of the Regulations of Connecticut State Agencies provides: “A voluntary agreement shall be prepared by the employer or his insurer in connection with all cases concerning which there is no dispute that the claimant suffered an accident and injury arising out of and in the course of his employment causing either temporary partial or temporary total disability beyond the three-day waiting period. The voluntary agreement shall be submitted to the claimant for execution by him and forwarded by tlie employer or its insurer to the commissioner having jurisdiction within three weeks after the employer has actual knowledge of the accident and that the disability will extend beyond the three-day waiting period. Failure of the employer to furnish the insurer with a wage statement for the computation of the proper compensation rate shall not excuse failure to comply with the provisions of this section. Failure or inability of the employer to secure a medical report shall not excuse failure to file a voluntary agreement whenever the employer or the insurer has actual knowledge, or with reasonable diligence could have secured knowledge, that the claimant was actually disabled by a compensable accident. Noncompliance with this section is subject to the penalty provided in section 31-288 of the general statutes.”


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. DAMON PERRY
    (AC 18153)
    O’Connell, C. X, and Hennessy and Dupont, Js.

      Argued November 2, 1999
    officially released May 30, 2000

      Richard Hustad Miller, special public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Francis J. McQuade, supervisory assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

O’CONNELL, C. J.

The defendant, Damon Perry, appeals from the judgments of conviction, following a jury trial, of three counts of sale of cocaine in violation of General Statutes § 21a-278 (b). The defendant claims that (1) his federal and state constitutional rights to due process and equal protection were violated when the state’s attorney on cross-examination asked two defense witnesses about the defendant’s employment, business practices and income tax returns in an effort to have the jury infer that drug sales were the defendant’s only means of supporting himself, (2) the state’s attorney engaged in prosecutorial misconduct that deprived the defendant of his constitutional rights to a fair trial and an impartial jury and (3) the trial court improperly accepted a verdict from the jury based on insufficient evidence. We affirm the judgments of the trial court.

The following facts and procedural histoiy are relevant to our resolution of this appeal. The defendant was charged in five separate informations with selling cocaine to an undercover police officer five times between October 30, 1995, and December 5, 1995, in violation of § 21a-278 (b). During trial, the defendant presented several alibi witnesses.

I

The defendant first claims that the state’s attorney, on cross-examination of two defense witnesses, improperly asked questions concerning the defendant’s employment, business practices and income tax returns in an effort to have the jury infer that drug sales were his only means of supporting himself. The defendant contends that this line of inquiry constituted improper and discriminatory use of his economic status to prejudice the jury against him, thereby denying him his constitutional right to equal protection of the law under article first, §§ 1 and 20, and amendments five and twenty-one of the constitution of Connecticut and under the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. We decline to review this claim.

Because this claim was not preserved at trial, the defendant seeks review in this court under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. Practice Book § 60-5; see State v. Quinones, 56 Conn. App. 529, 531, 745 A.2d 191 (2000). It is well established that “[ujnder Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Internal quotation marks omitted.) State v. Connelly, 46 Conn. App. 486, 509, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998).

This is not a claim of first impression. We previously have held that questions designed to show that a defendant is poor and, thus, might have a motive to commit a crime are not of constitutional magnitude and, accordingly, do not satisfy the second prong of Golding. State v. Hansen, 39 Conn. App. 384, 394, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). Accordingly, we conclude that the defendant is not entitled to Golding review of this claim.

The defendant does not fare better on his claim for review under the plain error doctrine. Practice Book § 60-5. Review under the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987).

“Numerous courts have recognized that evidence of an imminent financial burden on the defendant is admissible for the puipose of proving motive.” United States v. Reed, 700 F.2d 638, 643 (11th Cir. 1983). Financial condition and employment status may be relevant to a defendant’s motive to commit a crime and, thus, are admissible on purely nonconstitutional evidentiary grounds. We conclude, therefore, that the state’s attorney’s line of inquiry regarding the defendant’s impecuni-osity did not affect the fairness of the trial and, thus, did not constitute plain error. Accordingly, we decline to review this claim under both Golding and the plain error doctrine.

II

The defendant’s next claim, which also was unpre-served at trial, is that the state’s attorney engaged in misconduct throughout the trial that effectively deprived the defendant of his rights to due process of law and an impartial jury under article first, § 8, of the constitution of Connecticut, and the fifth and fourteenth amendments to the United States constitution. He claims that the state’s attorney engaged in a “seamless web” of misconduct by making improper inflammatory comments and intentionally portraying the defendant as a criminal whose incarceration was necessary to protect society. We do not agree.

Because the defendant neither objected at trial nor filed a motion for a mistrial, he seeks review under Slate v. Golding, supra, 213 Conn. 239-40, and the plain error doctrine. Practice Book § 60-5. It is well established that “[w]e will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Williams, 231 Conn. 235, 246, 645 A.2d 999 (1994); see State v. Atkinson, 235 Conn. 748, 769, 670 A.2d 276 (1996).

The defendant asserts that the elicitation of the following evidence by the state’s attorney constituted a pervasive pattern of prosecutorial misconduct warranting reversal of the judgments of conviction: The defendant (1) was not employed; (2) made no profit from legitimate private endeavors; (3) had no taxable income during 1995; (4) despite his lack of income, he had assets such as a car and an apartment; (5) was targeted because he was a lieutenant in an organized drug selling operation; and (6) lived in a high crime area. This evidence was introduced properly either to establish the defendant’s motive to sell drugs or to test the knowledge or credibility of his alibi witnesses. Accordingly, there was no prosecutorial misconduct in the elicitation of this evidence, and the defendant is therefore unable to establish the clear violation of a constitutional right for purposes of Golding review.

The defendant also claims that the state’s attorney on cross-examination improperly asked a defense witness how many times the witness had heard the defendant’s beeper go off during an earlier occasion when the witness and the defendant watched a videotape. The defendant asserts that this question prejudiced the jury against him because of the inference that drug dealers carry beepers. The basis for the question, however, was to test the credibility of the witness. Because there was a legitimate basis for the question, the state’s attorney did not commit misconduct. Furthermore, the court sustained the defendant’s objection to the question and instructed the jury to disregard it.

Finally, the defendant claims that by commenting during his closing argument that the defendant failed to present evidence of gainful employment or of an alibi for a particular drug transaction, the state’s attorney violated the defendant’s right against compelled self-incrimination.* ** As we discussed previously, however, evidence regarding the defendant’s financial status was relevant to the issue of motive, and the defendant based his defense on alibi witnesses. The state’s attorney did not assert or imply that the jury should draw a negative inference from the defendant’s failure to testify, but rather, he pointed out that the defendant’s witnesses did not testify as to an alibi for the date in question or to counter the state’s arguments concerning the defendant’s lack of income. See State v. Forde, 52 Conn. App. 159, 173-74, 726 A.2d 132, cert. denied, 248 Conn. 918, 734 A.2d 567 (1999) (state’s attorney permitted to bring to jury’s attention evidence that stands uncontradicted). The remarks of the state’s attorney, therefore, represented reasonable comments on weaknesses in the defendant’s case, including his failure to contradict the state’s evidence and to support his theory of defense and, accordingly, were not comments on the defendant’s failure to testify.

After reviewing the defendant’s claim that the state’s attorney engaged in a pervasive pattern of misconduct, we conclude that the behavior of the state’s attorney did not constitute misconduct, much less a pervasive pattern of misconduct. Accordingly, the state’s attorney did not violate the defendant’s rights to due process and an impartial jury.

Because there was no constitutional violation, this claim fails the third prong of Golding. We also conclude that the conduct of the state’s attorney does not constitute plain error. The defendant therefore can not prevail on this claim.

Ill

The defendant’s final claim is that the evidence was insufficient for the jury to find him guilty beyond a reasonable doubt. He argues that because the state relied on the testimony of the police officer who purchased the drugs to establish the defendant’s identity for all five of the charged drug transactions, the jury’s verdict in favor of the defendant as to two of the infor-mations necessarily means that the jury rejected the officer’s testimony entirely and, therefore, there was insufficient evidence from which the jury could convict the defendant as to the remaining charges in the other three informations. We do not agree.

Our review of claims of insufficiency of the evidence involves a two part analysis: “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994).

The gravamen of the defendant’s argument is that if reasonable doubt was found to exist as to two of the charged offenses, it necessarily must exist as to all of the charged offenses. He argues that to render a verdict in favor of the defendant as to the charges in two of the informations and against him as to the charges in the other three informations, the jury necessarily would have to believe the police officer’s testimony as to some of the dates of the drug purchases and disbelieve him as to others. This, the defendant argues, creates a material inconsistency that renders the jury’s verdict improperly based on insufficient evidence.

Construed in the light most favorable to sustaining the verdict, however, the evidence presented at trial was sufficient to establish beyond a reasonable doubt that the defendant committed the charged crimes. We note at the outset that the defendant was charged in five separate informations, rather than in one information charging him with five separate counts, and that the drug transactions at issue occurred on several days rather than being several separate transactions that occurred on the same day.

In view of the police officer’s testimony that he purchased drugs from the defendant on the dates in question, the jury reasonably could have concluded that the defendant was the individual who sold the drugs to the undercover police officer on those dates. If the jury believed that testimony, the verdicts properly would be based on sufficient evidence. See State v. Caballero, 49 Conn. App. 486, 492, 714 A.2d 1254, cert denied, 247 Conn. 924, 719 A.2d 1170 (1998) (single witness sufficient to support finding of guilt beyond reasonable doubt). It was the exclusive duty of the jury to resolve any inconsistencies in the testimony, to evaluate the credibility of witnesses and to assess whether the defendant was the person who engaged in the drug transactions. See State v. Smith, 46 Conn. App. 600, 608, 700 A.2d 91, cert. denied, 243 Conn. 935, 702 A.2d 642 (1997). The fact that the jury rendered guilty verdicts as to three of the charged offenses indicates that the jury believed the testimony of the state’s identification witness over that of the defendant’s witnesses as to those charges.

The guilty verdicts, therefore, were supported by the evidence. Accordingly, the defendant cannot prevail on his claim of evidentiary insufficiency.

The judgments are affirmed.

In this opinion the other judges concurred.

       The jury acquitted the defendant of two additional counts of sale of cocaine in violation of § 21a-278 (b).

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       The defendant also argues that the state’s attorney improperly vouched for the credibility of the state’s chief witness, and elicited and discussed evidence that the defendant had, at one time, been in police custody. The defendant did not adequately brief these claims and, therefore, he is deemed to have abandoned them. State v. Quinones, supra, 56 Conn. App. 532 (declining review of issue inadequately briefed); Brunswick v. Inland Wetlands Commission, 29 Conn. App. 634, 638, 617 A.2d 466 (1992) (“[cjlaims mentioned but not adequately briefed are deemed abandoned”).

       Even if we were to conclude differently, i.e., that the state’s attorney did commit isolated misconduct, the result would be the same for the defendant because there was no “pervasive” misconduct so as to make the trial unfair. See State v. Tweedy, 219 Conn. 489, 510, 594 A.2d 906 (1991) (claim of prosecutorial misconduct, unpreserved at trial, fails on appeal where challenged conduct “ ‘unrepresentative of a pattern of conduct repeated throughout the trial’ ”).


author: ZARELLA, J.

text:
    KRISTINE PINCHBECK v. ZONING BOARD OF APPEALS OF THE TOWN OF GUILFORD ET AL.
    (AC 18852)
    O’Connell, C. J., and Zarella and Dupont, Js.

    Argued January 12
    officially released May 30, 2000

      Thomas E. Crosby, for the appellant (plaintiff).

      Charles A. Andres, for the appellee (named defendant).

      Marjorie Shansky, for the appellees (defendant Gary Friedlaender et al.).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ZARELLA, J.

The plaintiff, Kristine Pinchbeck, appeals from the judgment of the trial court dismissing her appeal from the February 25, 1998 decision of the defendant zoning board of appeals of the town of Guil-ford (board). The plaintiff claims that the court improperly granted the motion to dismiss filed by the defendants Gary Friedlaender and Linda Friedlaender, which alleged that the court lacked subject matter jurisdiction because the plaintiff failed to exhaust her administrative remedies. We reverse the judgment of the trial court.

The following facts are necessary for a resolution of this appeal. The Friedlaenders own a home in the town of Guilford adjacent to the plaintiff’s home. The Fried-laenders’ home was constructed prior to the adoption of zoning regulations regarding street line and side yard setback requirements. On July 1, 1997, the Friedlaen-ders filed with the board an application seeking a vari-anee to the street line setback requirements to permit them to build an addition to their home. The Friedlaen-ders wanted to add a second floor along with other improvements, the effect of which was to extend a portion of the home closer to the street. Because the construction would expand a nonconforming use, a street line setback variance was required. On the variance application, in the same section describing the requested variance, was the statement that the “Enforcement officer indicated that side yard [variance] for height increase is not required.”

The notice of the public hearing on the variance request set forth that the applicant was seeking an eight foot variance from the street line setback requirements. On July 23, 1997, a public hearing was held on the application. The minutes of the meeting indicate that a real estate appraiser appeared, as a representative of the plaintiffs husband, and expressed concerns about the effect that the proposed addition would have on the septic systems and wells in the area. At the close of the public hearing, the board unanimously granted the variance, finding that the proposed addition would not have an adverse impact on the comprehensive plan and would satisfy all health codes. No appeal was taken from the board’s decision.

On October 15, 1997, the plaintiffs counsel sent a letter to the town zoning enforcement officer, requesting a written opinion concerning the necessity for a side yard variance. On October 23,1997, the zoning enforcement officer replied by letter, stating that “the addition of a second story, over an existing structure, conforming to the same footprint, when said existing structure is legally nonconforming is not considered to be an increase in a nonconformity. In such an event, provided all other elements of zoning are met, a permit would be issued.”

On November 6, 1997, the plaintiff appealed to the board pursuant to General Statutes § 8-6. On February 25,1998, a public hearing was held, and the board, after specifically finding that it had jurisdiction to entertain the appeal, denied the plaintiffs appeal from the zoning enforcement officer’s October 23, 1997 letter.

The plaintiff appealed to the Superior Court, claiming that the denial of the appeal by the board was improper. On May 26, 1998, the Friedlaenders moved to dismiss the appeal for lack of jurisdiction over the subject matter. They claimed in the motion that the plaintiff had failed to exhaust her administrative remedies.

At the hearing on the motion to dismiss, the plaintiff and the Friedlaenders stipulated to the admission of certain documents into evidence. The plaintiff placed in evidence the October 15, 1997 letter to the zoning enforcement officer seeking a decision on the issue of the need for a side yard variance. The plaintiff also introduced the zoning enforcement officer’s reply. The Friedlaenders placed in evidence, inter alia, their application for a variance dated July 1,1997, and the minutes of the board’s hearing on the variance dated July 23, 1997. Neither party presented testimony, but counsel argued their clients’ positions to the court.

On August 7, 1998, the court granted the motion to dismiss, finding that the plaintiff had failed to exhaust her administrative remedies. The court found that the plaintiff “had notice of the Friedlaenders’ position at some time prior to July 23, 1997, had notice of the Friedlaenders’ position regarding the need for a side yard variance, had the opportunity to be heard on July 23 on that issue and to state [her] position, had the right to appeal at that time [from] any decision by the defendant [board] on that issue or appeal [from] the [defendant board’s] refusal to address that issue, were that to be the case, and had the right to take an appeal within the statutory time limit. Plaintiff forbore to do so.”

The plaintiff claims that the court improperly granted the motion to dismiss because the handwritten note on the variance application regarding the side yard requirement did not constitute a decision of the zoning enforcement officer. Further, the plaintiff claims that no administrative action was taken by the zoning enforcement officer until his October 23, 1997 response to the plaintiffs request for a ruling.

“A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiffs] claim.” (Citations omitted; internal quotation marks omitted.) Johnson v. Dept. of Public Health, 48 Conn. App. 102, 107-108, 710 A.2d 176 (1998). “We first note that, because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999).

At the hearing on the motion to dismiss, no evidence was offered to establish that the zoning enforcement officer had issued an order, requirement or decision with regard to the need for a side yard variance at or before the July 23, 1997 hearing. The court was presented only with the Friedlaenders’ architect’s representation contained on the application that the zoning enforcement officer had “indicated” that no variance was needed at some undisclosed prior date. The court was correct in characterizing the application as having been a statement of the position of the Friedlaenders with respect to the need for a side yard variance. The court, however, did not find, nor could it find on the basis of the evidence presented, that the zoning enforcement officer had made such a decision.

Section 8-6 provides in relevant part that the zoning board of appeals shall have the power and duty “[t]o hear and decide appeals where it is alleged that there is an error in any order, requirement or decision made by the official charged with the enforcement of the this chapter . . . .” General Statutes § 8-7 provides in relevant part: “An appeal may be taken to the zoning board of appeals by any person aggrieved or by any officer, department, board or bureau of any municipality aggrieved and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days . . . .” “[T]he thirty day limit of General Statutes § 8-7 is mandatory in nature and . . . any appeal not taken within thirty days is invalid.” (Internal quotation marks omitted.) Bosley v. Zoning Board of Appeals, 30 Conn. App. 797, 800, 622 A.2d 1020 (1993). The threshold issue therefore is whether an order, requirement or decision by the zoning enforcement officer was in fact made, thus triggering the statutory framework for appealing from that decision. No evidence was presented to support this necessary finding.

The judgment of the trial court is reversed and the case remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendants are the zoning board of appeals of the town of Guilford, and Gary Friedlaender and Linda Friedlaender.

       The letter stated in part: “However, I understand that [the Friedlaenders] are in the process of expanding their nonconforming building by increasing the building footprint by 192 square feet and adding a thirty-five foot second-floor structure.
      The structure’s additional height increases the side yard’s nonconformity, which necessitates a side yard variance. My review of the. [Friedlaenders’ application to the board] reflects that no such variance was sought or granted. In fact, their application states that ‘enforcement officer indicated that side yard for height increase is not required.’ ”


text:
    MARTHA SCHLICHER v. KENNETH SCHWARTZ
    (AC 19655)
    Lavery, Zarella and Spallone, Js.

    Argued January 24
    officially released June 6, 2000

      Jonathan J. Klein, for the appellant (defendant).

      Kevin J. Daly, Jr., with whom were Thomas F. Upson and, on the brief, Shaun M. McGrath, for the appel-lee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ZARELLA, J.

The defendant, Kenneth Schwartz, appeals from the judgment of strict foreclosure rendered by the trial court on May 11, 1999. On appeal, the defendant claims that the court improperly (1) found that under the terms of the agreement that was secured by the mortgage, the defendant owed a duty to develop certain property within a reasonable time and that he breached that obligation, (2) found the amount secured by the mortgage to be $288,829.76 and (3) ordered a strict foreclosure of the mortgage. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. In January, 1989, the plaintiff, Martha Schlicher, owned approximately sixty-four acres of real property on Smith Road in Thomaston. The defendant, a licensed architect who also holds himself out as a real estate planner, advised the plaintiff that he wanted to develop and sell the property. The defendant was a close friend of the plaintiffs family for more than thirty years. The plaintiff, who was seventy-eight years old, intended to use the funds from the sale to support herself.

On January 29, 1989, the plaintiff and the defendant entered into a purchase and sale agreement for the sixty-four acre property. The parties agreed to a contract price of $400,000. The defendant paid a $15,000 deposit and an additional $85,000 at the time of closing on February 14, 1989. The plaintiff took back a note for the remaining $300,000 secured by a mortgage.

The defendant did not develop the property between 1989 and 1993. He also failed to make any of the principal payments called for under the note. As a result, the parties renegotiated the original contract and entered into a new agreement dated May 21, 1993. The new agreement provided that the plaintiff would discharge the original $300,000 debt and release the mortgage due her from the defendant. In return, the plaintiff obtained a new first mortgage on the property securing the May 21, 1993 agreement, and the defendant obligated himself to pay the plaintiff $15,000 upon the sale of each home or lot on the property, as well as to share with the plaintiff the profits on any home sold. The new agreement further provided that the arrangement would terminate upon total payment of $300,000 to the plaintiff. The May 21,1993 agreement was necessary for the defendant to obtain Connecticut Housing Finance Authority (housing authority) financing that would allow him to develop the property.

Prior to 1989, the sixty-four acre parcel had been subdivided into three residential building lots in addition to the remaining acreage. On January 26, 1996, the plaintiff, at the defendant’s request, subordinated the 1993 mortgage to a mortgage to the housing authority in the amount of $100,000 with respect to one of the lots. On February 2, 1996, the plaintiff executed a release of the mortgage she held as to lots 2A and 4B for which she was paid $30,000. This payment was consistent with the terms of the May 21, 1993 agreement. The defendant built a home on lot 4B, sold the home and utilized a portion of the funds to satisfy the housing authority mortgage. The plaintiff received no additional payment for the sale of that home, as the proceeds were insufficient to warrant any additional payment under the contract. After selling the home, the defendant made no additional payments to the plaintiff. At the time of trial, there was a partially completed home on lot 2A and a foundation on lot 2B. The housing authority, which had loaned additional amounts to the defendant for construction on lot 2A, no longer is loaning the defendant money because he failed to complete the construction by the agreed date. Eventually, the defendant defaulted on the housing authority mortgage and now owes $67,776.19 to the housing authority.

The defendant also failed to pay the property taxes on the real estate. On February 11, 1997, the town of Thomaston (town) instituted a foreclosure action naming the plaintiff and the defendant as parties. The town obtained a judgment of foreclosure by sale on June 17, 1997. On the following day, the plaintiff paid the property taxes to the town in the sum of $18,829.76, thus terminating the foreclosure action. The defendant has made only partial payments on the taxes to the town subsequent to the plaintiffs payment. The defendant has neither gained the necessary governmental approvals for further subdivision or construction nor commenced construction beyond that previously discussed.

On October 23,1997, the plaintiff initiated the present foreclosure action against the defendant. At trial, Neil Scala, the Thomaston building inspector, testified that he considered the project abandoned and had revoked the building permit. Samuel Barto, the Thomaston town planner, zoning enforcement officer and inland wetlands officer, described his dealings with the defendant regarding inland wetlands issues as frustrating and exasperating. Further, he testified that the inland wetlands commission had issued numerous show cause orders relative to the property. On March 2, 1998, the property was appraised at a fair market value of $40,000 for lot 2B and $210,000 for the remainder of the property. The court rendered judgment of strict foreclosure, and the defendant appealed.

I

The defendant first challenges the nature of his obligations under the agreement secured by the mortgage. The defendant contends that the court incorrectly found that he was required under the contract to develop the property. We find this claim to be without merit.

The court concluded that the defendant did not develop the property in an orderly fashion and within a reasonable period of time and, therefore, did not fulfill his obligations under the mortgage agreement. The court rendered a judgment of strict foreclosure on the property, including lot 2B and the remaining 61.5 acres of undeveloped property, finding the amount of the debt to be $288,829.76 plus costs and attorney’s fees.

“The construction of a contract to ascertain the intent of the parties presents a question of law when the contract or agreement is unambiguous within the four corners of the instrument. Issler v. Issler, [250 Conn. 226, 235, 737 A.2d 383 (1999)]. [T]he construction of a written contract is a question of law for the court. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179, 544 A.2d 1185 (1988); Sacharko v. Center Equities Ltd. Partnership, 2 Conn. App. 439, 445, 479 A.2d 1219 (1984). The scope of review in such cases is plenary. Branch v. Occhionero, 239 Conn. 199, 205, 681 A.2d 306 (1996); Hammond v. Commissioner of Correction, 54 Conn. App. 11, 16, 734 A.2d 571, cert. granted, 251 Conn. 919, 742 A.2d 358 (1999). Because our review is plenary, involving a question of law, our standard for review is not the clearly erroneous standard used to review questions of fact found by a trial court.” (Internal quotation marks omitted.) Amodio v. Amodio, 56 Conn. App. 459, 470, 743 A.2d 1135 (2000).

“A contract is to be construed as a whole and all relevant provisions will be considered together.” Lar-Rob Bus Corp. v. Fairfield, 170 Conn. 397, 407, 365 A.2d 1086 (1976); see Blatt v. Star Paper Co., 160 Conn. 193, 200, 276 A.2d 786 (1970); 17 Am. Jur. 2d, Contracts § 258 (1990). “In giving meaning to the terms of a contract, we have said that [a] contract must be construed to effectuate the intent of the contracting parties.” (Internal quotation marks omitted.) Sturman v. Socha, 191 Conn. 1, 10, 463 A.2d 527 (1983); Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 598, 424 A.2d 277 (1979); Ginsberg v. Mascia, 149 Conn. 502, 506, 182 A.2d 4 (1962). “In ascertaining intent, we consider not only the language used in the contract but also the circumstances surrounding the making of the contract, the motives of the parties and the purposes which they sought to accomplish.” Connecticut Co. v. Division 425, 147 Conn. 608, 616, 164 A.2d 413 (1960); Marcus v. Marcus, 175 Conn. 138, 141, 394 A.2d 727 (1978).

The court’s finding that the defendant contracted to develop the property is supported by a plain reading of the May 21, 1993 agreement. One of the recitals in the agreement provides that “[t]he [plaintiff] desires to reach an agreement with the [defendant] to develop the said property.” Additionally, the defendant agreed in the contract to pay to the plaintiff a portion of the profit from the sale of homes constructed on the property or of lots sold. It is clear from the four comers of the agreement that the intent of the parties was that the defendant would develop the property.

The defendant next challenges the court’s finding that the defendant failed to develop the land within a reasonable time. The contract is silent as to the time of performance. “Where no time for the performance of a contract is contained within its terms, the law presumes that it is to be performed within a reasonable time. Texas Co. v. Crown Petroleum Corporation, 137 Conn. 217, 227, 75 A.2d 499 [1950]; Santoro v. Mack, 108 Conn. 683, 689, 145 A. 273 [1929]. Benassi v. Harris, 147 Conn. 451, 458, 162 A.2d 521 (1960); see also Central New Haven Development Corporation v. LaCrepe, Inc., 177 Conn. 212, 216, 413 A.2d 840 (1979). What is a reasonable length of time is ordinarily a question of fact for the trier. International Tool & Gauge Co. v. Borg, 145 Conn. 644, 648, 145 A.2d 750 [1958]; Loomis v. Norman Printers Supply Co., 81 Conn. 343, 347, 71 A. 358 [1908]. Parkway Trailer Sales, Inc. v. Wooldridge Bros., Inc., 148 Conn. 21, 26, 166 A.2d 710 (1960).” (Internal quotation marks omitted.) Martin v. Martin’s News Service, Inc., 9 Conn. App. 304, 308-309, 518 A.2d 951 (1986), cert. denied, 202 Conn. 807, 520 A.2d 1287 (1987). The defendant does not challenge the court’s conclusion that if no time for performance is set out in the contract, the law presumes a reasonable time was intended. Rather, the defendant challenges the court’s finding as to what a reasonable time was under the circumstances.

The standard of review with respect to a court’s findings of fact is the clearly erroneous standard. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... 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.” (Internal quotation marks omitted.) United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996).

The court had a sufficient basis in the evidence to determine that the defendant did not develop the property in a reasonable time between 1993 and 1997. The defendant had sold only two of the three lots, failed to subdivide the remaining sixty acres, built only one home, lost his housing authority construction financing and had the building permits revoked. All of this occurred despite the fact that a strong real estate market existed during this time frame. There is sufficient evidence to support the court’s finding that the defendant failed to perform under the contract within a reasonable time.

II

The defendant’s second claim is that the court improperly found the amount due under the agreement to be $288,829.76. The defendant claims that the only debt due the plaintiff is the $18,829.76 in taxes that she paid to the town. We disagree.

“In an action for breach of contract, the general rule is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that he would have been in had the contract been performed.” Lar-Rob Bus Corp. v. Fairfield, supra, 170 Conn. 404-405.

The court based its damage calculation on the expectation that twenty lots would be sold and the plaintiff would be due $15,000 per lot or $300,000. The defendant had sold two lots and paid the plaintiff $30,000. Thus, the court found that due to the defendant’s breach of the agreement, the plaintiff was damaged in the amount of $270,000. In addition, the plaintiff was due the $18,829.76 that she paid in real estate taxes and is entitled, pursuant to General Statutes § 49-2 (a), to add that amount to the debt secured by the mortgage.

The court properly found that the plaintiff was due $288,829.76.

Ill

The defendant’s final claim is that the court improperly ordered a strict foreclosure of the mortgage and that a foreclosure by sale would have been appropriate. We disagree.

The defendant’s claim is premised on his insistence that $18,829.76 was the amount due to the plaintiff. Having held that the court was correct in establishing the debt in the amount of $288,829.76, plus costs and reasonable attorney’s fees, we now consider the appropriateness of the order for strict foreclosure in light of that holding.

The court has the discretion to determine whether a mortgage is to be foreclosed by sale or strict foreclosure, and the standard of review is whether the court has abused its discretion. See Hartford Federal Savings & Loan v. Tucker, 196 Conn. 172, 184, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). Having determined that the fair market value of the property was less than the amount of the mortgage debt, the court concluded that strict foreclosure was appropriate. In so finding, there was no abuse of discretion.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       The defendant made four interest payments totaling approximately $22,000.

       The May 21, 1993 agreement provides in part:
      “4. Upon the sale of any lot, the costs of dividing or sub-dividing said lot including survey costs, permit fees and closing costs shall be deducted first and then the [plaintiff] shall receive $15,000.00 with the balance due the [defendant]. At such time as the [defendant] has received the aggregate of $100,000.00 the parties agree to divide the proceeds of any lot sale after the aforementioned costs.
      “5. In the event that the [defendant] builds a home for sale on any lot, the net profit of said sale after deducting the costs enumerated in paragraph 4 of this agreement and after paying the [plaintiff] $15,000.00 shall be divided equally between the parties.”

       Approximately three and one-half acres of the property had been subdivided prior to 1989 into three lots for residential single-family homes. Any construction was subject to the approval of the Thomaston inland wetlands commission. These lots are identified as lots 2A, 2B and 4B. The remaining 61.5 acres has never been subdivided and remains unimproved land.

       The defendant did not challenge at trial or on appeal the validity of the mortgage. The defendant limited his challenge to the issue of the scope of the obligation under the agreement secured by the mortgage. Therefore, we limit review to the issue raised.

       The $288,829.76 represents a principal debt of $270,000 plus the $18,829.76 in taxes paid by the plaintiff.

       The court also found that at the time of entering into the agreement, the defendant represented that he intended to develop the property quickly.

       The defendant takes issue with one sentence in the court’s memorandum of decision, which states: “From the date of the first mortgage agreement in 1989 to the second mortgage agreement in 1993, [the defendant] did nothing.” The defendant claims that the court incorrectly considered this time frame, as this original time frame preceded the 1993 agreement. In the very next sentence, however, the court outlined in detail the lack of performance by the defendant from 1993 to 1997. The court’s discussion of the time frame between 1989 and 1993 merely put 1he relevant facts of this dispute into historical context.

       The court found, on the basis of the defendant’s testimony, that the property could be subdivided into twenty lots.

       General Statutes § 49-2 (a) provides: “Premiums of insurance, taxes and assessments paid by the mortgagee and payments of interest or instalments of principal due on any prior mortgage or lien by any subsequent mortgagee or lienor of any property to protect his interest therein, are a part of the debt due the mortgagee or lienor.”

       See part II of this opinion.