author: BEAR, J.

text:
    NATALE RUISI v. TIMOTHY O’SULLIVAN, EXECUTIVE DIRECTOR, THE LAWYERS’ FUND FOR CLIENT PROTECTION
    (AC 32912)
    Beach, Bear and Peters, Js.
    Argued September 23
    officially released November 1, 2011

      Charles J. Quackenbush, assistant attorney general of New York, with whom, on the brief, was Eric T. Schneiderman, attorney general of New York, for the appellant (defendant).

      Natale Ruisi, pro se, the appellee (plaintiff).
   Opinion

BEAR, J.

The defendant, Timothy O’Sullivan, executive director of the Lawyers’ Fund for Client Protection of the state of New York (fund), appeals from the judgment of the trial court denying his motion to strike the complaint of the plaintiff, Natale Ruisi, on the ground of sovereign immunity. On appeal, the defendant claims that the court erred in denying his motion and in declining to consider his claim of sovereign immunity. We conclude that the court improperly declined to consider the merits of the defendant’s sovereign immunity defense, and, accordingly, we set aside the judgment and remand the case to the trial court for further proceedings.

The record reveals the following undisputed facts and procedural history. The plaintiff, who is a self-represented party, filed an action in the Connecticut Superior Court against the defendant, claiming that the fund mishandled its monetary award to the plaintiff arising from the malfeasance of one or more of his former attorneys and that the award was not sufficient given the amount of the damages sustained by the plaintiff. The plaintiff claimed, inter alia, that the actions of the fund caused him to suffer substantial monetary losses and stress.

The defendant first filed a motion to dismiss, alleging that the court lacked (1) subject matter jurisdiction over the action because the plaintiffs claims were barred by the doctrine of sovereign immunity and (2) personal jurisdiction over the defendant because of improper service of process. The court denied that motion, holding that the papers properly had been served and that a claim of “sovereign immunity is best raised by special defense.” The defendant then filed a motion to strike, in which he again alleged that the plaintiffs claims were barred by the doctrine of sovereign immunity and that the court did not have personal jurisdiction. In its memorandum of decision, the court denied the defendant’s motion, stating in relevant part that “[a]ll of the allegations in the motion to strike can be raised in the answer and special defenses, and a judge or jury would have the opportunity to find the law and the facts as are necessary.” The defendant appeals from that ruling.

Because the court’s ruling on the issue of personal jurisdiction is not a final judgment; see Chrysler Credit Corp. v. Fairfield Chrysler-Plymouth, Inc., 180 Conn. 223, 226-27, 429 A.2d 478 (1980); the sole issue before us on appeal is whether the court should have considered the defendant’s claim that the plaintiffs action was barred by the doctrine of sovereign immunity and, therefore, that the court was without subject matter jurisdiction. “The general rule is that the denial of a motion to dismiss is an interlocutory ruling and, therefore, is not a final judgment for purposes of appeal. . . . [Our Supreme Court has] concluded [however] that the denial of a motion to dismiss based on a colorable claim of sovereign immunity is an immediately appealable final judgment because the order or action so concludes the rights of the parties that further proceedings cannot affect them.” (Citations omitted; internal quotation marks omitted.) Flanagan v. Blumenthal, 265 Conn. 350, 352 n.4, 828 A.2d 572 (2003). After considering the record before us, we conclude that the court improperly (1) instructed the defendant to raise the issue of sovereign immunity as a special defense; see Carrubba v. Moskowitz, 81 Conn. App. 382, 398-99, 840 A.2d 557 (2004) (unlike qualified quasi-judicial immunity and governmental immunity, which should be raised by special defense, sovereign immunity, which implicates subject matter jurisdiction, should be raised by motion to dismiss), aff'd, 274 Conn. 533, 877 A.2d 773 (2005); and (2) declined to determine whether it had subject matter jurisdiction over this case. See, e.g., D’Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005) (question regarding subject matter jurisdiction must be disposed of regardless of form in which it is presented and court must resolve question before proceeding further with case). Accordingly, we set aside the judgment and remand the matter to the trial court for further proceedings.

Our law regarding sovereign immunity and its interrelationship with the trial court’s subject matter jurisdiction is clear. “[T]he doctrine of sovereign immunity implicates subject matter jurisdiction .... A determination regarding a trial court’s subject matter jurisdiction is a question of law. . . . When issues of fact are necessary to the determination of a court’s jurisdiction, [however] due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses. . . . When an evidentiary hearing is required to determine the trial court’s subject matter jurisdiction, we engage in a two part inquiry. . . . We determine first whether the facts found by the court were clearly erroneous and then conduct a plenary review of the court’s legal conclusions.” (Citations omitted; internal quotation marks omitted.) Gordon v. H.N.S. Management Co., 272 Conn. 81, 92-93, 861 A.2d 1160 (2004). In this case, however, the trial court did not make the necessary factual findings, nor did it determine whether it had subject matter jurisdiction over the plaintiffs action. Instead, it improperly ruled that the defendant should raise this jurisdictional question as a special defense. “An evidentiary hearing is necessary [when] a court cannot make a critical factual [jurisdictional] finding based on memoranda and documents submitted by the parties.” (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 653-54, 974 A.2d 669 (2009), quoting Coughlin v. Waterbury, 61 Conn. App. 310, 315, 763 A.2d 1058 (2001).

In Dolnack v. Metro-North Commuter Railroad Co., 33 Conn. App. 832, 834, 639 A.2d 530 (1994), an issue before this court was whether a New York “public benefits corporation” was an arm of the state that was entitled to raise sovereign immunity as a defense. Relying on cases from other jurisdictions, we identified several factors to be considered in making this determination, including whether: (1) the entity was created by the state; id., 836; (2) the entity was subject to control by the state; id.; (3) the entity performed the work of the state; id., 836-37; (4) the state had a pecuniary interest or a substantive right in need of protection; id., 836; and whether (5) the entity was financially dependent on the state. Id., 837. We concluded that “all of the above characteristics must be examined before a trial court can conclude that a governmental body is entitled to sovereign immunity.” Id. Having identified these criteria, we concluded that the factual record in Dolnack had not been adequate for the trial court to have made such a determination. Id., 838-39.

Relying in part on Dolnack, our Supreme Court in Gordon v. H.N.S. Management Co., supra, 272 Conn. 98-100, determined that “the criteria for determining whether a corporate entity is an arm of the state entitled to assert sovereign immunity as a defense are whether: (1) the state created the entity and expressed an intention in the enabling legislation that the entity be treated as a state agency; (2) the entity was created for a public purpose or to carry out a function integral to state government; (3) the entity is financially dependent on the state; (4) the entity’s officers, directors or trustees are state functionaries; (5) the entity is operated by state employees; (6) the state has the right to control the entity; (7) the entity’s budget, expenditures and appropriations are closely monitored by the state; and (8) a judgment against the entity would have the same effect as a judgment against the state.” The court also explained that “[t]o establish that an entity is an arm of the state, an entity need not satisfy every [criterion]. Rather, [a]ll relevant factors are to be considered cumulatively, with no single factor being essential or conclusive. . . . We recognize that these criteria are somewhat interrelated and overlapping. For example, a determination that an entity is completely financially dependent on the state could lead to an inference that the entity is controlled by the state. Similarly, a determination that the state has the right to control the entity could lend support to a determination that a judgment against the entity would affect the state.” (Citation omitted; internal quotation marks omitted.) Id., 100.

Because the issue of subject matter jurisdiction must be addressed when raised and cannot be waived, we conclude that the court in the present case was required to make the necessary factual inquiry to determine whether it had jurisdiction. Although we are mindful that there are times when the question of jurisdiction is intertwined so intimately with the merits of the case, such that a resolution of the jurisdictional question cannot be made until there is a full trial on the merits; see Conboy v. State, supra, 292 Conn. 654; there is no indication that the court was faced with such a circumstance here.

The judgment is set aside and the case is remanded to the trial court for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Although the plaintiffs claims primarily are directed against the fund, the plaintiff named only O’Sullivan, as the executive director of the fund, in the complaint Therefore, in this appeal, we refer to O’Sullivan as the defendant.

       The record does not contain any information about the plaintiffs right to bring an action against the fund or to appeal from its decision, and, if such rights existed, whether the plaintiff exercised them in the appropriate New York courts.

       The second time the defendant asserted his defense of sovereign immunity, he did so improperly via a motion to strike. See Egri v. Foisie, 83 Conn. App. 243, 247, 848 A.2d 1266 (“The motion to dismiss is governed by Practice Book §§ 10-30 through 10-34. Properly granted on jurisdictional grounds, it essentially asserts that, as a matter of law and fact, a plaintiff cannot state a cause of action that is properly before the court. Third Taxing District v. Lyons, 35 Conn. App. 795, 803, 647 A.2d 32, cert. denied, 231 Conn. 936, 650 A.2d 173 [1994]; see Practice Book § 10-31. By contrast, the motion to strike attacks the sufficiency of the pleadings. Practice Book § 10-39; see also 1 E. Stephenson, Connecticut Civil Procedure [3d Ed. 1997] § 72 [a], pp. 216-17.”), cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). The court, nonetheless, should have considered whether it had subject matter jurisdiction in the case. See generally Markley v. Dept. of Public Utility Control, 301 Conn. 56,63-64,23 A.3d 668 (2011) (although issue raised again via motion to strike, court properly considered whether it had subject matter jurisdiction in case and properly dismissed case upon concluding it lacked jurisdiction); D’Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005) (“[o]nce the question of lack of [subject matter] jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented” [internal quotation marks omitted]).

       In Dolnack, we noted that the application by this state of the doctrine of sovereign immunity to a foreign state or its agencies is not mandated by the United States constitution: “The principle that a state’s sovereign immunity from tort liability extends into a sister state is no longer a required tenet under the United States constitution. Nevada v. Hall, 440 U.S. 410, 99 S. Ct. 1182, 59 L. Ed. 2d 416 (1979).” (Emphasis added.) Dolnack v. Metro-North Commuter Railroad Co., supra, 33 Conn. App. 837 n.19. We further noted that “[t]he Hall court reasoned that ‘[i]t may be wise policy, as a matter of harmonious interstate relations, for States to accord each other immunity or to respect any established limits on liability. They are free to do so.' Nevada v. Hall, supra, 426. Some states have declined jurisdiction as a matter of comity and public policy. See Newberry v. Georgia Dept. of Industry & Trade, 286 S.C. 574, 336 S.E.2d 464 (1985); Simmons v. State, 206 Mont. 264, 670 P.2d 1372 (1983).” Dolnack v. Metro-North Commuter Railroad Co., supra, 838 n.19. In the present case, the plaintiffs complaint is drawn inartfully. If the trial court deems it necessary, on remand, it also may have to determine whether the plaintiffs one count complaint as currently pleaded alleges a tort, breach of contract or some other theory before considering the question of sovereign immunity.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    TWIN OAKS CONDOMINIUM ASSOCIATION, INC. v. RODVALD E. JONES ET AL.
    (AC 32029)
    DiPentima, C. J., and Lavine and Espinosa, Js.

      Argued September 6
    officially released November 1, 2011

      Wayne A. Francis, for the appellant (plaintiff).

      John A. Sodipo, for the appellee (named defendant).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Twin Oaks Condominium Association, Inc., appeals from the judgment of the trial court in favor of the defendant Rodvald E. Jones on his negligence counterclaim. The plaintiff claims that the court improperly (1) concluded that the plaintiff was negligent and (2) calculated the amount of damages. We affirm the judgment of the trial court.

The court found the following facts. The plaintiff is a nonstock corporation, and Imagineers, LLC, is a real estate management company that the plaintiff hired to oversee the maintenance and general management of the common elements of the condominiums. The defendant is a unit owner and therefore a member of the common interest community.

In November, 2003, the defendant experienced heating problems in his unit and, after he called Imagineers, LLC, to complain about the lack of heat, MAREC Heating & Air Conditioning, Inc., came to the defendant’s unit to repair the problem. The defendant paid MAREC Heating & Air Conditioning, Inc., $555.86 for replacing his heating valve-thermostat and then attempted, without success, to contact Art Boothby, then property manager for the plaintiff, to discuss reimbursement. Ultimately, the defendant withheld his monthly condominium association fees in the amount of $555.86, to offset the costs he incurred for the repairs. The defendant then resumed paying his monthly fees in full every month. In addition to the heating problems, the defendant suffered water damage to his ceiling and personal property. The defendant also experienced several problems with the plaintiff’s management, including the plaintiffs failure to hold regular board meetings and its failure to provide him with notice and a hearing prior to initiating foreclosure proceedings.

In October, 2004, the plaintiff commenced a foreclosure action against the defendant for delinquent common area charges. Subsequent to the filing of the foreclosure action, the plaintiff rejected most of the defendant’s payments of his monthly condominium association fees and charged fees equal to the $555.86 that the defendant withheld, as well as late fees. On August 15,2008, the defendant filed a seven count counterclaim, asserting breach of contract, violation of the Common Interest Ownership Act, General Statutes § 47-200 et seq., violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., statutory theft, breach of the implied covenant of good faith and fair dealing, conversion and negligence. On February 10,2009, the plaintiff withdrew its foreclosure action after receiving payment from CitiMortgage, Inc., the holder of the defendant’s mortgage. On January 22, 2010, the court rendered judgment in favor of the defendant on his negligence counterclaim only, in the amount of $25,000. The plaintiff then filed a motion to reargue or reconsider, which was denied on February 19, 2010. This appeal followed.

I

The plaintiff first claims that the court improperly concluded that it was negligent. Specifically, the plaintiff argues that it did not breach its duty of care owed to the defendant and that the defendant did not prove causation. We address each of the plaintiffs claims in turn.

We first set forth the legal principles governing our review. “[T]he conclusion of negligence is necessarily one of fact . . . .” (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). “Accordingly, the court’s finding of negligence will be upheld unless it is clearly erroneous.” Michalski v. Hinz, 100 Conn. App. 389, 401, 918 A.2d 964 (2007). “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. . . . Because it is the trial court’s function to weigh the evidence ... we give great deference to its findings.” (Internal quotation marks omitted.) Reiner, Reiner & Bendett, P. C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006).

A

The plaintiff claims that the court erroneously concluded that it breached its duty of care owed to the defendant. We disagree. “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 139, 2 A.3d 859 (2010).

The court found that the plaintiff breached its duty by failing to hold annual meetings, failing to provide notice and a hearing before initiating foreclosure proceedings against the defendant, denying him a right to appeal, and failing to maintain the heating system and roof. First, the declaration of Twin Oaks Condominiums (declaration), § 19.9, provides that “[i]n the event of default for a period of ten (10) days by any Unit Owner in the payment of any Common Expense assessment levied against his or her Unit, the Executive Board shall have the right, after Notice and Hearing, to declare all unpaid assessments for the pertinent fiscal year to be immediately due and payable.” (Emphasis added.) The plaintiff did not provide notice and a hearing to the defendant. The plaintiff argues that “[n]othing in the Declarations and or Bylaws prevented [the defendant] as a unit owner from requesting a hearing himself.” The declaration, however, places the duty to provide notice and a hearing squarely on the plaintiff.

Second, the plaintiff denied the defendant a right to appeal under § 24.3 of the declaration, which provides that “[a]ny Person having a right to Notice and Hearing shall have the right to appeal to the Executive Board . . . .” Here, the plaintiff never provided the defendant with an initial hearing and, as a result, he was not able to file a notice of appeal. Finally, the court found that the plaintiff breached its duty by failing to maintain properly the heating system and the roof. Under the bylaws of Twin Oaks Condominiums (bylaws), § 2.2 (h), the plaintiff has a duty to “regulate the use, maintenance, repair, replacement and modification of the Common Elements . . . .” The declaration, § 1.5, defines common elements as “[a]ll portions of the Common Interest Community other than the Units.” The court found that “[i]n October, 2001, the [plaintiff] knew that the roof of the building needed to be replaced. The [plaintiff] did not hold regular annual meetings between 2001 and 2005, when the roof was finally replaced. Failure to hold annual meetings violates § 3.1 of the bylaws.” The record supports the court’s conclusion that the plaintiff breached its duty of care to the defendant.

B

The plaintiff also claims that the court improperly concluded that the plaintiff’s actions caused the defendant’s injuries. We disagree. “[A] plaintiff must establish that the defendant’s conduct legally caused the injuries. . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. . . . The second component of legal cause is proximate cause. . . . [T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiffs injuries. . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants’ conduct]. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection. . . . This causal connection must be based upon more than conjecture and surmise.” (Internal quotation marks omitted.) O’Donnell v. Feneque, 120 Conn. App. 167, 172, 991 A.2d 643, cert. denied, 297 Conn. 909, 995 A.2d 637 (2010).

The court found that “[t]he evidence demonstrates that the [plaintiff] set in motion a chain of events that led to [the defendant’s] injuries and losses. ... Its conduct was a substantial factor in bringing about the damages.” Here, the court found that the defendant suffered a lack of heat as a result of the plaintiffs failure to maintain the common elements of the heating system. The court also found a causal connection between the plaintiffs failure to provide notice and hearing and the defendant’s damages resulting from the foreclosure action. Additionally, the court found a causal connection between the plaintiffs failure to maintain properly the roof and the property damage to the defendant’s roof and personal property. The court’s findings are supported by the evidence. Accordingly, the court properly concluded that the plaintiff was the proximate cause of the defendant’s injuries.

II

The plaintiff next claims that the court improperly calculated the amount of damages. We are not persuaded. “The plaintiff has the burden of proving the extent of the damages suffered. . . . Although the plaintiff need not provide such proof with [mathematical exactitude . . . the plaintiff must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate. ... As we have stated previously, the determination of damages is a matter for the trier of fact . . . .” (Citations omitted; internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 65, 717 A.2d 77 (1998).

In a trial to the court, “[t]he trial court has broad discretion in determining damages.” (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn. App. 509, 527, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009). “[WJhether the decision of the trial court is clearly erroneous . . . 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. ... In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.” (Internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 68-69, 717 A.2d 724 (1998).

In this case, the court concluded that “[t]he preponderance of the evidence demonstrates that [the defendant’s] losses resulting from the [plaintiffs] breach of duty include paying for repairs to his heating valve/ thermostat, experiencing a lack of heat for several months, being subject to a foreclosure action without notice and hearing, paying for water damage to his unit’s ceiling and suffering water damage to his personal property. . . . Consequently, the court awards damages in the amount of $25,000.” On February 9, 2010, the plaintiff filed a motion to reargue or reconsider, seeking clarification of the court’s assessment of damages. The court denied the plaintiffs motion to reargue on February 19, 2010, and the plaintiff never filed a motion for articulation pursuant to Practice Book § 66-5 after appealing to this court.

The court did not state explicitly the method by which it calculated the defendant’s damages. “In the absence of a motion for articulation, we read an ambiguous trial record to support, rather than to undermine, the judgment.” St. John Urban Development Corp. v. Chisholm, 111 Conn. App. 649, 653, 960 A.2d 1080 (2008); see also Benedetto v. Wanat, 79 Conn. App. 139, 154, 829 A.2d 901 (2003) (“In the absence of a motion to articulate, we will not speculate as to the reasons why the court found a damages award of $75,000 to be appropriate. We simply conclude that the damages award as found by the court was not clearly erroneous.”). The evidence in the record, however, supports the court’s finding that the defendant was entitled to $25,000 in damages on his negligence counterclaim. Therefore, the court’s award of damages was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Other encumbrancers were named as defendants but are not parties to this appeal. We therefore refer in this opinion to Jones as the defendant.

       The defendant withheld his March and April, 2004 fees and then made a partial payment in May, 2004.

       The plaintiff does not dispute that it owes a duty of care to the defendant. “A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.” (Internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium. Assn., Inc., 76 Conn. App. 306, 318, 819 A.2d 844 (2003). Under § 2.3 of the bylaws of Twin Oaks Condominiums, the officers and directors of the executive board are “required to exercise the care required of fiduciaries of the Unit Owners, if appointed by the Declarant, and ordinary and reasonable care if elected by the Unit Owners.”

         The court found that the foreclosure action was initiated because the defendant had an account balance of $20,692.32 as of January 1, 2009, but three years earlier the balance was only $4623.60. The court explained that the defendant was charged late fees even though he continued to tender monthly fees and after a lien was placed on his unit. Moreover, the court found that, as a result of the payment to the plaintiff by CitiMortgage, Inc., the defendant’s mortgage balance was increased from approximately $21,000 to $42,000.

       The defendant argues that the plaintiff did not preserve its challenge to the court’s determination of damages on the record. The defendant argues that because he testified without objection by the plaintiff, the plaintiff failed to preserve its claim for review. Practice Book § 60-5 provides that “[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Here, the court’s determination of damages was set forth in its memorandum of decision. Moreover, the plaintiff filed a motion to reargue, seeking in part clarification of the court’s assessment of damages, which was denied on February 19, 2010. Thus, the plaintiffs claim is preserved for review.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. RICHARD D. READ
    (AC 32972)
    Gruendel, Beach and Robinson, Js.
    Argued September 16
    officially released November 1, 2011

      G. Douglas Nash, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

Following a shooting in the late hours of October 21, 2005, the defendant was arrested and charged with the murder of Brian Raboin. A criminal trial followed, at which the defendant orally moved to suppress certain testimony of Detective Gary Dorman of the Bristol police department pertaining to statements made by the defendant during the April 14, 2006 execution of a search warrant at his home. The court conducted a suppression hearing outside the presence of the jury, at the conclusion of which it found that a reasonable person in the defendant’s position would not have believed that he was in police custody at the time the statements in question were made. The jury thereafter found the defendant guilty of murder, and the court sentenced him to a term of fifty years incarceration. This appeal followed.

The defendant claims that the court improperly determined that he was not in custody at the time of his statements to Dorman. Accordingly, he maintains that the failure to provide Miranda warnings at that time mandated suppression of his statements. We disagree.

“It is well established that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination. . . . [T]he United States Supreme Court has adopted an objective, reasonable person test for determining whether a defendant is in custody. . . . Thus, in determining whether Miranda rights are required, the only relevant inquiry is whether a reasonable person in the defendant’s position would believe that he or she was in police custody of the degree associated with a formal arrest. ... In making this claim, [t]he defendant bears the burden of proving that he was in custody for Miranda purposes.” (Citations omitted; internal quotation marks omitted.) State v. Edwards, 299 Conn. 419, 426-27, 11 A.3d 116 (2011).

“As a general matter, the standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [H]owever, when a question of fact is essential to the outcome of a particular legal determination that implicates a defendant’s constitutional rights, and the credibility of witnesses is not the primary issue, our customary deference to the trial court’s factual findings is tempered by a scrupulous examination of the record to ascertain that the trial court’s factual findings are supported by substantial evidence. . . . Where the legal conclusions of the court are challenged, [our review is plenary, and] 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 ....

“The question of whether a defendant is in custody for purposes of a custodial interrogation involves a two step inquiry. The trial court first makes a factual determination of the circumstances surrounding the alleged interrogation and then applies those facts to an objective test as to whether a reasonable person would have felt that he or she was not at liberty to leave. . . . The first inquiry is factual and will not be overturned unless, after a scrupulous examination of the record, we find that it is clearly erroneous. . . . The second question calls for application of the controlling legal standard to the historical facts [which is a question of law]. . . . The ultimate determination of whether a defendant was subjected to a custodial interrogation, therefore, presents a mixed question of law and fact, over which our review is de novo.” (Internal quotation marks omitted.) State v. Bridges, 125 Conn. App. 72, 78-79, 6 A.3d 223 (2010), cert. denied, 300 Conn. 931, 17 A.3d 68 (2011). Applying that standard, we agree with the court that a reasonable person would not have believed that he was in police custody of the degree associated with a formal arrest at the time the statements in question were made.

In its oral ruling, the court expressly credited the suppression hearing testimony of Dorman, as is its exclusive prerogative. See State v. Lawrence, 282 Conn. 141, 156, 920 A.2d 236 (2007) (noting “fundamental distinction” between function of fact finder to make credibility determinations and to find facts and function of appellate tribunal to review, and not to retry, proceedings of trial court). Dorman testified that he executed a search warrant on 2 Maple Avenue in Plymouth, where the defendant resided with Edson Cleveland, his uncle and owner of the property. Upon his arrival, Dorman first met with Cleveland, who was outside preparing for a flower sale at the front of the property. Dorman showed him the search warrant, and Cleveland thereafter walked Dorman and a second detective inside, explaining that the defendant was taking a shower upstairs at the time. Dorman initially spoke to the defendant from outside the bathroom door and testified that the defendant “appeared to recognize my voice because we had spoken many times before that. ” The defendant exited the bathroom, and the detectives explained the purpose of their visit. They showed the defendant the search warrant, which he examined. The detectives then explained to him that he needed to be outside the residence during the search. Once dressed, the detectives escorted the defendant out of the residence to ensure that he left without contaminating the scene. They further informed the defendant and Cleveland that “they were both free to come and go as they pleased.”

The execution of the search warrant lasted approximately eight to ten hours. At no point was the defendant handcuffed. Rather, the defendant “walked around the property. He smoked cigarettes, drank coffee.” More specifically, the defendant repeatedly walked over to a parking lot and general store located on the property approximately thirty to fifty yards to the right of the residence. The search warrant did not authorize a search of either the general store or the parking lot, In addition, the defendant testified at the suppression hearing that he walked to the flower sale at the front of the property multiple times to converse with relatives and dine on donuts and coffee. Notably, the defendant testified that the officers were not by his side throughout the search. As he acknowledged: “If we were there for ten hours, I’d say they were within speaking distance for eight of it. . . . [F]or at least two hours, the officers weren’t within twenty feet of [me].” During one of the defendant’s visits to the general store that day and after Dorman had informed him that he was free to leave the scene, the defendant made certain statements to Dorman, which form the basis of this appeal. The court also heard testimony from Cleveland, who observed the proceedings on his property on April 14, 2006, and who testified that it appeared to him that the defendant was free to leave the area.

In its oral ruling, the court accepted Dorman’s testimony that he informed the defendant at the outset of the search that he was free to come and go as he pleased. See State v. Greenfield, 228 Conn. 62, 71 n.10, 634 A.2d 879 (1993) (important factor distinguishing consensual encounter from seizure is whether police expressly informed defendant that he was free to leave at outset of interview). Second, the court found that the defendant’s movement was not restricted by the police and that “he walked about freely.” See, e.g., State v. Britton, 283 Conn. 598, 612, 929 A.2d 312 (2007) (court deems it relevant that defendant “not handcuffed or subjected to force”); State v. Doyle, 104 Conn. App. 4, 14, 931 A.2d 393 (court deems it relevant that defendant not physically restrained in any way), cert. denied, 284 Conn. 935, 935 A.2d 152 (2007); contra United States v. Craighead, 539 F.3d 1073, 1089 (9th Cir. 2008) (“[e]scorted to a storage room in his own home, sitting on a box, and observing an armed guard by the door, [the defendant] reasonably believed that there was simply nowhere for him to go”). The court further credited Cleveland’s opinion that the defendant’s movement was not restricted by the police. As the sole arbiter of the credibility of witnesses, the court was free to believe that testimony. See State v. Smith, 99 Conn. App. 116, 136, 912 A.2d 1080, cert. denied, 281 Conn. 917, 917 A.2d 1000 (2007). The court also emphasized that it was “taking into consideration the history” between the defendant and Dorman, opining that “you’re more intimidated by strangers who you don’t know.” Last, the court found that the defendant did in fact leave the area of the search. It stated: “[The defendant] went to an area that was not subject to the search, a general store .... He interacted with his relatives, had coffee and a donut. . . . [0]ver the course of eight or ten hours, walking about freely, interacting with your relatives, going to a public flower sale .... Strictly speaking, he did leave.”

In light of those findings, all of which are supported by the record, we agree that a reasonable person in the defendant’s position would not have believed that he was in police custody of the degree associated with a formal arrest at the time of his statements to Dorman. Accordingly, the court properly denied the motion to suppress.

The judgment is affirmed.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Dorman testified that he had met with the defendant “six or seven times, and I also spoke to him on the phone several times” in the months prior to the April 14, 2006 execution of a search warrant on his home.

       To be clear, we are not applying the “free to leave test” discussed in State v. Hasfal, 106 Conn. App. 199, 206-207, 941 A.2d 387 (2008). Rather, we simply are considering the court’s factual finding that Dorman informed the defendant that he was free to come and go as he pleased during the execution of the search warrant as one factor in our analysis of whether a reasonable person would not have believed that he was in police custody of the degree associated with a formal arrest at the time the statements in question were made.


text:
    CHRISTOPHER HASFAL v. COMMISSIONER OF CORRECTION
    (AC 32098)
    Beach, Bear and Peters, Js.
    Argued September 23
    officially released November 8, 2011

      Edward G. McAnaney, special public defender, for the appellant (petitioner).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Erika L. Brookman, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

Formally, the issue in this appeal from the denial of a petition for habeas corpus is whether the petitioner was prejudiced by the failure of his appellate counsel to argue that he had been deprived of his right to a speedy trial in the underlying criminal prosecution, in violation of General Statutes § 54-82c. Underlying this formal challenge to the validity of the petitioner’s conviction is his contention that we should reexamine the prevailing law that determines when the speedy trial clock starts running. We decline to undertake such a reexamination and affirm the judgment of the habeas court.

On May 14, 2009, the petitioner, Christopher Hasfal, filed an amended two count petition for a writ of habeas corpus, challenging the validity of his conviction of criminal violation of a protective order, in violation of General Statutes § 53a-223, and possession of narcotics, in violation of General Statutes § 21a-279 (a). See State v. Hasfal, 106 Conn. App. 199, 941 A.2d 387 (2008). The second count of the petition alleged that the petitioner’s constitutional rights had been violated by the failure of his appellate counsel to protect his right to a speedy trial. On February 26, 2010, after a hearing, the habeas court denied the petition in its entirety. With the court’s permission, the petitioner has appealed. We affirm the judgment of the court.

The facts underlying the petitioner’s speedy trial claims are undisputed. On November 8, 2004, the petitioner delivered to the warden a signed form requesting a trial within 120 days of the pending charges for criminal violation of a protective order and possession of narcotics. In accordance with the requirements of § 54-82c, the warden forwarded the form to the state’s attorney’s office, where it was received on November 12, 2004, and to the appropriate court, where it was received on November 24, 2004.

On January 12, 2005, the petitioner requested a competency examination pursuant to General Statutes § 54-56d. On March 1,2005, after a hearing, the parties stipulated to the petitioner’s competency. On March 15,2005, the next scheduled court date, new counsel caused the trial to be continued until April 5,2005, for reconsideration of a plea offer. On April 6, 2005, the petitioner filed a motion for dismissal in which he claimed that his speedy trial rights had been violated. Jury selection for the petitioner’s criminal trial began on April 21, 2005.

In fight of this factual record, the habeas court found that the petitioner had not been prejudiced by his appellate counsel’s failure to raise a claim that the petitioner’s right to a speedy trial had been violated. In this appeal, the petitioner challenges the validity of the court’s determination on two grounds. He maintains that the court (1) miscalculated the expiration date of the 120 day speedy trial period set forth in § 54-82c and (2) misapplied the statute to start the speedy trial calculation at a time subsequent to the petitioner’s initiation of his speedy trial request. We are not persuaded.

I

At the outset, we must identify the applicable standard of review. “The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts. . . . Although the right to a speedy trial is fundamental, it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact both on the accused and on society.” (Citation omitted; internal quotation marks omitted.) State v. Lacks, 58 Conn. App. 412, 417, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000).

As the trial court did when it denied the petitioner’s speedy trial motion, the habeas court addressed the merits of the petitioner’s claim by considering the period of time that elapsed between November 12,2004, the date the state’s attorney’s office received the petitioner’s speedy trial request, and the commencement of trial on April 21, 2005. We agree, however, with the respondent, the commissioner of correction, and conclude that the speedy trial period did not begin until November 24, 2004, the date the court received the petitioner’s speedy trial request. In the absence of any claim of ambiguity in § 54-82c, we are persuaded that the petitioner’s right to a speedy trial did not accrue until he fully had complied with the statute, which requires notification both of the state’s attorney and of the court. See General Statutes § 54-82c (a) and (b).

The issue to be decided is, therefore, under the circumstances of this case, whether the petitioner’s criminal trial, which commenced on April 21, 2005, took place within 120 days of November 24,2004. Resolution of that issue depends, in turn, on the effect of the petitioner’s request for a competency evaluation. It is undisputed that, pursuant to § 54-56d (d) and (e), the period of time required for resolution of this request must be excluded from the 120 day speedy trial period.

The parties disagree, however, about the manner in which this exclusion is to be calculated. The petitioner argues that the exclusion should be limited to the precise times stipulated by the statutes for the filing of the competency report and the holding of a competency hearing, regardless of actual compliance with these time periods. The respondent maintains that the exclusion should encompass the entire period between the date of the order granting the petitioner’s request for a competency hearing and the next scheduled court date, on which the court held the competency hearing and issued its ruling.

We agree with the respondent. We cannot envisage how a trial reasonably could have been commenced until the petitioner’s competency to stand trial had been determined. Indeed, Practice Book § 43-40 (1) (D) expressly provides for the exclusion of time “between the commencement of the hearing on any pretrial motion and the issuance of a ruling on such motion . . . .” See also State v. Mish, 110 Conn. App. 245, 253-54, 954 A.2d 854 (delay occasioned by defendant’s competency examination and related proceedings excluded from speedy trial calculation under § 54-82c), cert. denied, 289 Conn. 941, 959 A.2d 1008 (2008).

II

In addition to his contention that the habeas and trial courts misapplied § 54-82c, the petitioner argues that, as drafted and as previously construed, the statute fails to provide an effective method for protecting a prisoner’s constitutional right to a speedy trial. The petitioner maintains that, because a prisoner has no control over a warden’s processing and forwarding of his speedy trial request, the proper starting date for the 120 day period during which his trial must be commenced should be the date on which aprisoner hands his speedy trial request to a prison representative.

This argument requires little discussion. The petitioner has not offered any basis for distinguishing the decisions of our Supreme Court that directly have addressed this issue and found § 54-82c to be to the contrary and controlling. See State v. McCarthy, 197 Conn. 166, 169-71, 496 A.2d 190 (1985); State v. Springer, 149 Conn. 244, 250, 178 A.2d 525 (1962) (“It is the completed delivery of both the request and the supplemental information which starts the running of the period of 120 days within which the prisoner must be brought to trial. ... No provision is made ... for fixing the date on which the notice and request is ‘given or sent’ by the prisoner to his custodian.”). The petitioner has not identified any ambiguity in the statute that would provide a basis for departing from its mandate. This court, therefore, lacks the authority to take the action that the petitioner proposes.

The judgment is affirmed.

       General Statutes § 54-82c provides in relevant part: “(a) Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state’s attorney or assistant state’s attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. For good cause shown in open court, the prisoner or his counsel being present, the court may grant any necessary or reasonable continuance. . . .
      “(b) The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent by the prisoner to the warden, Community Correctional Center Administrator or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested. . . .”

       The petitioner withdrew, with prejudice, the first count of the amended petition, which alleged ineffective assistance of trial counsel.

       The amendedpetition also challenged the propriety of appellate counsel’s failure to challenge one of the trial court’s jury instructions. Although the habeas court rejected this claim as well, the petitioner has not renewed it on appeal to this court.

       The petitioner has advanced no claim that his federal or state constitutional rights were violated in this case.

       Before the trial court, the parties stipulated to a start date of November 12, 2004. The habeas court accepted this stipulation, but noted that “this court thinks that’s an error on the part of [the trial court judge].”

       We note that, as far as the record in this case indicates, there is no claim and no evidence that the warden failed to implement the provisions of § 54-82c in timely fashion.


author: ALVORD, J.

text:
    DENISE E. BROWN v. WILLIAM A. BROWN
    (AC 32622)
    (AC 32928)
    Alvord, Bear and Pellegrino, Js.

      Argued September 8
    officially released November 8, 2011

      Reuben S. Midler, with whom, on the brief, were Wayne D. Effron and Yakov Pyetranker, for the appellant (plaintiff).

      Janet A. Battey, with whom were Gaetano Ferro and, on the brief, Livia D. Bamdollar, for the appellee (defendant).

      Leslie I. Jennings-Lax, with whom, on the brief, was Kenneth B. Rubin, for the minor children.
   Opinion

ALVORD, J.

The plaintiff-mother, Denise E. Brown, appeals from two separate orders of the trial court regarding modifications to pendente lite visitation orders. In her appeal of the trial court’s May 18, 2010 order (first appeal), the mother claims that the court abused its discretion by improperly (1) utilizing a “future best interests” standard in awarding increased visitation to the defendant-father, William A. Brown, and (2) making certain findings with respect to the parties’ eldest child. In her appeal of the trial court’s October 21, 2010 order (second appeal), the mother claims that the trial court abused its discretion by (1) making findings placing blame on her, (2) failing to consider the factors listed in General Statutes § 46b-56 (c), and (3) improperly considering the guardian ad litem as a neutral party, crediting the guardian ad litem’s testimony, and following the guardian ad litem’s recommendation. We dismiss the first appeal as moot. In the second appeal, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the mother’s appeals. There have been three appeals from pendente lite orders in this marriage dissolution action, which commenced twenty-four months ago. Prior to filing the second appeal, the parties had filed more than fifty motions at the trial level, the majority of which dealt with issues concerning access to their children. Since that appeal was filed, they have filed more than fifty additional motions with the trial court. The dissolution action has yet to proceed to a full trial on the merits.

Among its myriad findings, orders and rulings, the trial court issued an order on May 18, 2010, adopting, with some modifications, the parenting plan proposed by the attorney for the minor children. In this order, the court expressed hope that the father could one day reconcile with his eldest daughter, with whom he was not having visitation at that time, and additionally, that there could be a gradual reintroduction of the father into full participation in the lives of his younger daughters. Following the court’s order, the mother filed a motion to open the order. The court denied the motion, and the mother appealed that denial. The parenting plan was modified again on June 16, 2010. On October 20, 2010, the parents returned to court for a hearing on the father’s amended motion for modification of parenting time. The impetus for the father’s motion was the recommendation of the guardian ad litem, Dr. Elizabeth Bergen, that the younger daughters have overnight visitation with him. On October 21, 2010, the trial court modified its prior orders to provide increased visitation to the father in the form of alternate weekend overnights with the two younger daughters. The second appeal followed. Additional facts will be set forth as necessary.

I

In evaluating the mother’s appeal of the May 18,2010 order, we turn to an issue raised by the father, both in his appellate brief and during oral argument, that this first appeal is rendered moot because the trial court issued superseding modification orders on June 16 and October 21, 2010. We agree.

“Mootness implicates [the] court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. . . . Because mootness implicates subject matter jurisdiction, it presents a question of law over which our review is plenary.” (Citation omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 502, 506-507, 970 A.2d 578 (2009).

As is not unusual in cases of this nature, there have been at least two modifications to the May 18, 2010 order, including the October 21, 2010 order, our second appeal, providing overnight visitation to the father with the two younger daughters. Thus, we are asked to reverse the trial court even though the order in question has been superseded. Because there is no actual controversy to resolve regarding the May 18, 2010 order and there is no practical relief that we can grant regarding that order, we dismiss the first appeal as moot.

II

The mother also appeals from the court’s October 21, 2010 order that the two younger daughters have alternate weekend overnight visits with the father. First, she claims that the court abused its discretion by blaming the mother and the father equally for the contentiousness of the divorce and then relying on that finding in making its decision to modify the visitation order. Second, she claims that the court, when determining the best interests of the children, ignored the factors outlined in § 46b-56 (c) including the preferences of the minor children. Finally, she claims that the court abused its discretion by improperly considering the guardian ad litem to be neutral, crediting the guardian ad litem’s testimony, and relying on the guardian ad litem’s recommendation in modifying the visitation order to include alternate weekend overnights with the father.

“Our standard of review of a trial court’s decision regarding custody, visitation and relocation orders is one of abuse of discretion. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . Further, [t]he trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant.” (Internal quotation marks omitted.) McKechnie v. McKechnie, 130 Conn. App. 411, 421, 23 A.3d 779, cert. denied, 302 Conn. 931, 28 A.3d 345 (2011).

“In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... 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.) Krystyna W. v. Janusz W., 127 Conn. App. 586, 590, 14 A.3d 483 (2011).

A

The mother claims that the trial court improperly made a factual finding blaming her for putting pressure on the middle daughter, which led the court to improperly award alternate overnight weekly visits to the father against the best interests of the children. We disagree.

The record does not reveal that the court ever made a finding blaming the mother for pressuring the middle daughter. Instead, the court thoughtfully opined that it was “not a one-sided situation” but that it was “the conflict, the ongoing conflict, unresolved between Mr. and Mrs. Brown that is the problem.” The court emphasized, to both mother and father, the harmful effects of the ongoing conflict on their daughters: “So the message to you is, is that it’s in your hands how you wish to use this legal power which is awesome. . . . You can have a fight to the death or you can use [your attorneys] to craft something that is fair and to stop this conflict because that conflict is hurting your children . . . .” The court did not abuse its discretion in making these statements which are verbal dicta, not findings.

B

The mother next claims that the trial court abused its discretion by granting alternate weekend overnight visitation with the father which was not in the best interests of the children because the court failed to consider the various criteria listed in § 46b-56 (c), specifically the preferences of the minor children. We disagree.

“It is statutorily incumbent upon a court entering orders concerning custody or visitation or a modification of such order to be guided by the best interests of the child.” (Internal quotation marks omitted.) McKechnie v. McKechnie, supra, 130 Conn. App. 420. Although § 46b-56 (c) states that the trial court shall consider the best interests of the child in modifying visitation orders, it also states that it “may consider, but shall not be limited to” a host of possibly relevant factors. (Emphasis added.) General Statutes § 46b-56 (c).

The mother and the attorney for the minor children argue that the court failed to take into account “the informed preferences of the child” under § 46b-56 (c) (3). “The ultimate concern of the trial court is to decide what is in the best interests of the child. . . . Although the child’s wish is one factor for the court to consider in making that decision, it is certainly not the only one.” (Citation omitted.) Knock v. Knock, 224 Conn. 776, 789, 621 A.2d 267 (1993). There is every indication, however, that, although it was not required to do so, the court took the children’s preferences under very serious consideration and, in its discretion, decided against honoring the preferences of the children: “And what happens, in this particular instance, we have to get [the middle child] off the fulcrum. In other words, she can’t be the one that is making the decisions here.” The record reflects that the court considered the entirety of the evidence before it and, weighing many of the § 46b-56 (c) factors, made a determination consistent with the best interests of the children. The court was well within its discretion, and its findings were not clearly erroneous. By contrast, the predictable high conflict, overlitigated posturing of the parties in this case cannot be in the children’s best interests. See Strobel v. Strobel, 73 Conn. App. 428, 436, 808 A.2d 698 (2002), appeal dismissed, 267 Conn. 901, 838 A.2d 209 (2003).

C

The mother next claims that the trial court abused its discretion by considering the guardian ad litem to be “neutral,” crediting the guardian ad litem’s testimony over the mother’s testimony, and following the guardian ad litem’s recommendation. As a result, the mother claims that her due process rights were violated. We disagree.

General Statutes § 45a-132 (d) provides in relevant part that “if it appears to the judge or magistrate that it is for the best interests of a minor having a parent or guardian to have as guardian ad litem some person other than the parent or guardian, the judge or magistrate may appoint a disinterested person to be the guardian ad litem.” (Emphasis added.) “Disinterested” is defined as “unbiased by personal interest or advantage; not influenced by selfish motives.” Random House Webster’s Unabridged Dictionary (2d Ed. 2001). Webster’s Dictionary lists the following synonyms for the word “disinterested”: “impartial,” “neutral,” “unprejudiced,” “dispassionate,” and “fair.” Id. “It is well established that the role of the guardian ad litem is to speak on behalf of the best interest of the child.” In re Tayquon H., 76 Conn. App. 693, 704, 821 A.2d 796 (2003). We have adopted the following list of duties of the guardian ad litem among others: “investigation of the facts necessary to get a clear picture of the child’s situation, a determination of the child’s best interest, frequent communication with the child and the court, and the making of recommendations to the court through testimony.” (Emphasis added.) Id.

The mother noted at trial that the guardian ad litem, Dr. Bergen, was a “seasoned veteran and a competent professional” with “no ax to grind.” The attorney for the minor children professed that “clearly the court is well served by its guardian ad litem in this case.” Thus, by all accounts, Bergen was fulfilling the responsibilities required of her by the court. She had met with the children and had corresponded with the parties, the appropriate school officials, the parents’ therapists and the children’s therapists. Bergen spoke to the children’s therapists via telephone sixteen times over the course of the case. She was called as a witness by the father, and all three attorneys had fair opportunity to cross-examine her after she made her recommendation to the court that the minor children visit with their father on alternate overnight weekends.

“In pursuit of its fact-finding function, [i]t is within the province of the trial court ... to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. ... An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom.” (Internal quotation marks omitted.) Blum v. Blum, 109 Conn. App. 316, 329, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008).

The trial court was well within its discretion to credit the testimony of the guardian ad litem because a guardian ad litem, who is not a parent, is appointed specifically for the reason that she is disinterested, so that she may make recommendations to the court regarding the best interests of the children. The fact that the guardian ad litem is a disinterested or neutral witness does not require the court to adopt the guardian ad litem’s recommendation. The court must still determine the credibility of all witnesses and weigh testimony and other evidence accordingly. Thus, Bergen’s role was to provide her recommendation as a neutral party for the court to consider, with all of the other evidence before it, and that is precisely what occurred here.

The appeal in AC 32622 is dismissed as moot; the judgment in AC 32928 is affirmed.

In this opinion the other judges concurred.

       The mother also claims that the court denied her due process when it considered the father’s amended motion for modification, dated October 18, 2010, although the motion had been filed only two days prior to the hearing. The record shows that the court allowed the motion to be heard because both the amended motion and the original motion alleged that a change in the visitation schedule was warranted based on the best interests of the children and because the court had provided notice to the parties at their previous court date that it would be reviewing the visitation orders. The court stated: “So we’re here. We need to be here. Everybody knew that. On May 18, when I entered my order, everybody knew we were going to come back. So there was a huge heads up at that particular time, and we’re here. ... So we need to address this, and I’m finding it hard to believe— and, you know, given my knowledge of [the guardian ad litem and the children’s attorney], that everybody hasn’t been brought into the loop on this — in other words, that this is real surprise because knowing how they operate, knowing my experience with this particular case is, is that everybody is in the loop. Everybody knew if there’s a change of position or a new recommendation or whatnot.” The mother had ample notice that these issues would be raised, and, therefore, we conclude that her argument that her due process rights were violated is meritless.

       In addition to the present appeals, the father appealed from the trial court’s June 16,2010 modification order, and the mother cross appealed. The cross appeal was dismissed on October 20,2010, and the father subsequently withdrew his appeal on December 10, 2010.

       We note that the mother renewed her claim at oral argument that the trial court inappropriately referenced the eldest daughter in the May 18, 2010 order. Yet, coincident with that argument, the attorney for the minor children advised us that the eldest daughter has been engaging in noncourtordered visitation with her father.

       The parties did not present a mootness argument regarding the second appeal despite the fact that there have been several modification orders since the October 21, 2010 order and the mother admitted at oral argument that the report of the custody study of John Collins, a psychologist, which was not available to the trial court at the relevant modification hearings, has since been issued and even modified prior to the time of oral argument. The fact that this report exists, and that it is not part of the record, is another compelling reason that we recognize the trial court’s key role in determining sequential modification of visitation orders. Because Collins’ findings are not in the record on appeal, we cannot consider them here. The appropriate path for counsel to have followed was to file additional modification motions, and, indeed, the trial court in the present case encouraged the parties to so do. These appeals were premature, at best, because the parties were “being given the opportunity to be heard and to vindicate [their] rights with respect to the temporary orders . . . .” Strobel v. Strobel, 73 Conn. App. 428, 435, 808 A.2d 698 (2002), appeal dismissed, 267 Conn. 901, 838 A.2d 209 (2003).


author: ROBINSON, J.

text:
    DEBORAH SANTORO v. GLENN SANTORO
    (AC 32634)
    Lavine, Robinson and Flynn Js.

      Argued September 7
    officially released November 8, 2011

      Christopher P. Norris, with whom, on the brief, was William R. Donaldson, for the appellant (plaintiff).

      Deborah L. Grover, for the appellee (defendant).
   Opinion

ROBINSON, J.

The plaintiff, Deborah Santoro, appeals from the judgment of the trial court denying her motion for order, in which she requested that the court set off her payment obligations to the defendant, Glenn Santoro, due to his alleged improper business solicitation in violation of the court’s order. On appeal, the plaintiff claims that the court improperly denied her motion for order because the defendant violated the court’s order by soliciting and selling insurance in the Danbury area to (1) North Street Properties, LLC, (2) DGS Realty, LLC, and (3) himself. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs claims. The plaintiff sought dissolution of her marriage to the defendant by a complaint filed on February 2, 2007. A trial was held to resolve the parties’ custody and financial issues. During the trial, there was a substantial disagreement between the parties based on the disposition of All Risk, Inc., an insurance agency business that the couple owned during their marriage. After completion of the trial, the court dissolved the marriage between the plaintiff and the defendant on February 18, 2009. The court issued an order awarding the plaintiff sole ownership of the insurance agency business. In return, the court ordered the plaintiff to execute a promissory note in favor of the defendant in the amount of $255,000, paid quarterly in installments of $9107.14, on an amortized basis over seven years.

In its memorandum of decision, the trial court found that both the plaintiff and the defendant were “skilled in the insurance industry” and that, if the defendant competed with All Risk, Inc., it would diminish the value of the company “in the range of 80 to 90 percent . . . .” The court decided, however, not to issue a non-compete or a nonsolicitation order. Instead, the court ordered that the promissory note was to include a provision that stated, “if in the next fifteen months from the date of these orders, the defendant shall, on his own, or working for a company, solicit business to sell insurance to any individual or business within Danbury or any contiguous town or city, then the plaintiff shall be entitled to a setoff of no more than five quarters of payments from her obligations under this paragraph, plus reasonable attorney’s fees. The right of setoff shall exist for only those quarters in which the defendant has, on his own, or working for a company, solicited business to sell insurance to any individual or business within Danbury or any contiguous town or city.”

On April 12, 2010, the plaintiff filed a motion for order, alleging that the defendant had violated the court’s February 18, 2009 order by soliciting to sell insurance within Danbury or any contiguous town or city. Due to this alleged violation, the plaintiff sought relief from making at least one payment of $9107.14 to the defendant, along with attorney’s fees.

On July 21, 2010, a hearing was held on the motion. At the hearing, the defendant testified that he owned 50 percent of North Street Properties, LLC, and that Don Longo and Linda Longo owned the other 50 percent. The defendant admitted that, on April 11, 2009, he sold insurance to North Street Properties, LLC, despite the fact that the order prohibited him from soliciting business to sell insurance in the Danbury area during that period of time. The defendant testified that the business is registered with the secretary of the state as a Ridgefield business and that the Longos reside in Redding, both of which towns are contiguous to Danbury.

The defendant further testified that, on April 6, 2009, he sold an insurance policy to DGS Realty, LLC, which is located in Danbury. The defendant testified that he is the sole owner of DGS Realty, LLC. The defendant admitted that he sold this policy during the period in which the order prohibited him from soliciting business to sell insurance in the Danbury area. See footnote 2 of this opinion.

In addition, the defendant testified that he sold insurance to himself within the period of time provided under the order. See id. The defendant admitted that, in September, 2009, he sold automobile insurance to himself to cover his “classic cars” located at his residence in Ridgefield.

At the conclusion of the hearing, the court denied the motion for order. The court stated, “[t]he court is not finding the . . . [defendant’s] placing his own businesses and cars under his own insurance company to be in . . . violation of that order.” In response to the plaintiffs assertion that the order prohibits soliciting to sell to any business or individual, the court responded, “[s]o, it states and it’s clearly got to be taken within some reasonable intent on the part of the court. The court does not find that it was the intent of the order that [the defendant] be barred from providing his own insurance through his own company.”

On August 10, 2010, the plaintiff filed a motion to reargue the motion for order. The court denied the motion on August 16, 2010. This appeal followed.

The plaintiff claims that the court improperly denied her motion for order because the defendant solicited and sold insurance to North Street Properties, LLC, DGS Realty, LLC, and to himself in violation of the court’s February 18, 2009 order. The plaintiff asserts that in denying her claim, the trial court “carved out an exception” to the underlying order. We disagree and address each claim in turn.

I

The plaintiff first asserts that the trial court erred when it denied her motion for order determining that she was not entitled to a setoff of quarterly payments on her note payable to the defendant because he “solicit[ed] business to sell” insurance to North Street Properties, LLC. The plaintiff argues that the business, although 50 percent owned by the defendant, is located within the Danbury area and, as a result, falls within the scope of the court’s order. The plaintiff argues that the order does not provide for an exception in situations in which the defendant has a partial interest in the business.

We first set forth the relevant standard of review. “Because [t]he construction of [an order or] judgment is a question of law for the court . . . our review . . . is plenary. As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment. . . . The interpretation of [an order or] judgment may involve the circumstances surrounding [its] making. . . . Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The [order or] judgment should admit of a consistent construction as a whole.” (Internal quotation marks omitted.) Bauer v. Bauer, 130 Conn. App. 185, 189, 21 A.3d 964 (2011).

As a preliminary matter, we note that the record does not contain either a written memorandum of decision or a transcribed copy of an oral decision signed by the trial court stating its reasons for denying the plaintiff’s motion for order. See Practice Book § 64-1. “It is well established that [i]t is the appellant’s burden to provide an adequate record for review.” (Internal quotation marks omitted.) Miller v. Miller, 124 Conn. App. 36, 40, 3 A.3d 1018 (2010). “In cases in which the requirements of Practice Book § 64-1 have not been followed, this court has declined to review the claims raised on appeal due to the lack of an adequate record. ” State v. Brunette, 92 Conn. App. 440, 446, 886 A.2d 427 (2005), cert. denied, 277 Conn. 902, 891 A.2d 2 (2006). This court has held, however, that despite an inadequate record, such claims may be reviewed if the certified transcript provides the basis of the trial court’s decision. State v. Olson, 115 Conn. App. 806, 809 n.2, 973 A.2d 1284 (2009). Furthermore, on claims involving questions of law, the court’s review is plenary, and “the precise legal analysis undertaken by the trial court is not essential to the reviewing court’s consideration of the issue on appeal.” (Internal quotation marks omitted.) Niehaus v. Cowles Business Media, Inc., 263 Conn. 178, 184, 819 A.2d 765 (2003).

Due to the fact that the issues presented are questions of law, and the unsigned certified transcript provides an adequate basis for the trial court’s decision, the plaintiffs failure to comply with the requirements of Practice Book § 64-1 does not hamper our ability to review her claim.

The trial court found that the defendant’s “placing his own businesses” under his own insurance company was not a violation of the order. That finding applies to North Street Properties, LLC, which is 50 percent owned by the defendant. Because we have plenary review in construing the language of the court order, we are not precluded from considering alternative grounds for affirmance when we do not agree with the court’s interpretation. See State v. Salmond, 69 Conn. App. 81, 91, 797 A.2d 1113, cert. denied, 260 Conn. 929, 798 A.2d 973 (2002).

We begin our analysis with the text of the order. The order provides: “if in the next fifteen months from the date of these orders, the defendant shall, on his own, or working for a company, solicit business to sell insurance to any individual or business within Danbury or any contiguous town or city, then the plaintiff shall be entitled to a setoff of no more than five quarters of payment from her obligations under this paragraph, plus reasonable attorney’s fees.” (Emphasis added.) In drafting the order, the trial court chose to use the term “solicit” when attempting to limit the defendant’s insurance sales. Thus, our analysis involves examining this term in the context of the underlying facts. “To ascertain the commonly approved usage of a word, it is appropriate to look to the dictionary definition of the term.” (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 539, 791 A.2d 489 (2002). The definition of the term solicitation is “[t]he act or an instance of requesting or seeking to obtain something; a request or petition . . . .” Black’s Law Dictionary (9th Ed. 2009) p. 1520.

On the basis of our review of the transcript, although the trial court was presented with evidence that the defendant sold insurance to North Street Properties, LLC, the plaintiff did not present any evidence to the trial court that the defendant “solicit[ed]” North Street Properties, LLC, for the purpose of selling insurance to the business. We are not convinced by the plaintiffs argument that the mere fact of a sale proves that there was a solicitation for that sale.

We note that what the order prohibits is the defendant’s requesting, importuning or entreating a certain geographic class of customers to buy insurance from him. It does not, however, prohibit those same customers from seeking or importuning the defendant to write them insurance policies.

When bringing a motion seeking relief for an opposing party’s violation of an order, the plaintiff has the burden of demonstrating, “the existence of a court order and noncompliance with that order.” See Statewide Grievance Committee v. Zadora, 62 Conn. App. 828, 832, 772 A.2d 681 (2001). Because the plaintiff did not meet her burden of production and proof as to the issue of solicitation before the trial court, we conclude that the plaintiff has not demonstrated that the trial court erred in determining that the defendant did not violate the February 18, 2009 order.

II

The plaintiff next asserts that the trial court erred when it denied the plaintiffs motion for order for the sale of insurance to DGS Realty, LLC. The plaintiff contends that although the business is wholly owned by the defendant, it is still a business located in the Dan-bury area and, thus, falls under the scope of the court order. We disagree.

At the hearing on the motion for order on July 21, 2010, the trial court determined that it was not “the intent of the order that [the defendant] be barred from providing his own insurance through his own company.” On the basis of our review of the court’s February 18, 2009 order, we agree with the trial court’s conclusion. The court intended the February 18, 2009 order to protect the plaintiff from the defendant’s competition with All Risk, Inc., as the defendant’s competition could devalue the business by as much as 80 to 90 percent. Although the court declined to issue a noncompete or a nonsolicitation order, the court was attempting to use the promissory note in a fashion similar to those orders. It is apparent that the order was implemented to protect the plaintiff from losing current or potential clients through the actions of the defendant and not simply to prevent the defendant from selling insurance to a personally owned business. The purpose of the order, which is to protect the plaintiff from the defendant’s competition, was not impaired by the defendant’s actions.

Furthermore, this court simply cannot ignore the trial court’s use of the phrase “solicit business to sell” in the February 18, 2009 order. It is undisputed that the defendant sold insurance to DGS Realty, LLC. In rendering the February 18, 2009 order, however, the court chose the phrase “solicit business to sell,” which demonstrates an intention to require the defendant to take some type of action in an attempt to solicit the sale of insurance. Although a limited liability company is a separate business entity and, thus, is considered separate from the defendant, the defendant was the sole owner of this business, with full authority to make decisions. As the decision maker, the defendant could not solicit himself in order to sell insurance to the company. The court easily could have restricted the defendant from selling insurance to himself by implementing specific language in the order, but it chose not to. On the basis of our examination of the language of the order and the circumstances surrounding its making, we conclude that the court did not intend to prevent the defendant from selling insurance to a company he solely owned. Therefore, we find no error.

Ill

The plaintiff next asserts that the court erred when it denied her motion for order for the sale of insurance to the defendant to cover his “classic cars.” The plaintiff contends that the order covers the sale of insurance to any individual or business located within the Danbury area, that the defendant is an individual within that vicinity and, as a result, is covered under the order. We disagree.

As detailed previously, the court intended the order to protect the plaintiff from losing current or potential clients to the defendant, not to prevent the defendant from selling insurance to himself. Furthermore, the court’s use of the term “solicit” in the order indicates that the order was not intended to apply in this type of situation. The defendant, as the owner of the classic cars, is the one who decides what type of insurance, and from whom, he may wish to purchase. In order to make such a decision, as already noted, he cannot engage in the act of soliciting — that is requesting or seeking to obtain something — when he is the one who is both selling and making the decision to purchase the insurance in question. Thus, through the use of the phrase “solicit business to sell,” the court did not intend the February 18, 2009 order to prevent the defendant from selling insurance to himself personally. Therefore, the court finds no error.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original order provided the amount paid to be $9017.14. It appears, however, that this amount was subsequently corrected to $9107.14.

       We note that at the July 21, 2010 hearing, the plaintiffs attorney questioned the defendant concerning his alleged violation of the court’s February 18, 2009 order. The plaintiffs attorney asked the defendant if he had sold insurance to North Street Properties, LLC, “during the period of time you weren’t allowed to sell it to any business or individual in Danbury or any attached town without penalty, correct?” The plaintiff responded that this was correct. We note that the inquiring attorney used the term “sell” instead of the phrase “solicit business to sell” as used in the court’s February 18, 2009 order, and, as such, we do not construe the defendant’s response to be an admission that he violated the court’s order.

       The plaintiffs exhibit 1 from the July 21, 2010 hearing lists the dwelling insured by North Street Properties, LLC, as located in Danbury and lists the company’s post office box as located in Bethel.

       The Plaintiffs exhibit 2 from the July 21, 2010 hearing lists the post office box of DGS Realty, LLC, as located in Bethel; however, the location of the insured building is listed as Danbury.

       We recognize that Zadora stands for the proposition that the movant has this burden in a civil contempt proceeding. We have determined, however, that the motion for order in the present case is analogous to a contempt proceeding, because in both instances the court is construing an underlying order to determine if there has been a violation. The only difference between the two motions is that in the present case, the remedy for a violation has been predetermined by the court.


author: BISHOP, J.

text:
    JASON CZAR ET AL. v. GARY RUOT ET AL.
    (AC 32789)
    Bear, Espinosa and Bishop, Js.

      Argued September 13
    officially released November 8, 2011

      Paul J. Ganim, for the appellants (plaintiffs).

      Brian S. Frank, with whom, on the brief, was Heather Q. Wallace, for the appellee (defendant Redding Appraisal Group).
   Opinion

BISHOP, J.

The plaintiffs, Jason Czar and Beth Ann Czar, appeal from the summary judgment rendered in favor of the defendant, Redding Appraisal Group. On appeal, the plaintiffs claim that the trial court improperly determined that their action was barred by General Statutes § 36a-755 because the appraisal was not rendered in conjunction with seeking a mortgage from, or at the behest of, a financial institution within the meaning of the statute. We agree and, therefore, reverse the judgment of the trial court.

The plaintiffs purchased residential property in Milford from Gary Ruot and Jennifer Ruot, pursuant to a contract of sale dated May 21, 2006. The plaintiffs engaged United Mortgage Financial Group (United), a mortgage broker, to secure the best mortgage available to them. On May 31, 2006, United contracted with the defendant to perform an appraisal of the subject property. On June 2, 2006, the defendant performed the appraisal and, thereafter, did not have any further involvement with the plaintiffs or the subject property. The plaintiffs closed on the property on June 28, 2006. A few months after they moved into the property, the plaintiffs experienced flooding of a portion of the property.

On May 8, 2008, the plaintiffs commenced this litigation in which they claim, in part, that the defendant negligently and carelessly performed the appraisal and, consequently, failed to consider important factors that negatively impacted the value of the property. The defendant filed a motion for summary judgment asserting that the plaintiffs claim against it was barred by General Statutes § 36a-755 (d) because the appraisal was commissioned by United, and there was no privity of contract between it and the plaintiffs in this regard. In opposition, the plaintiffs responded that, in 2006, United was not a financial institution as defined in General Statutes (Rev. to 2005) § 36a-755 (a) (2), and, therefore, their transaction did not fall within the ambit of § 36a-755. In other words, they argued that, in 2006, § 36a-755 did not confer blanket immunity from suit to all appraisers but, rather, pertained only when an appraisal was done either directly or indirectly at the behest of a financial institution and that, because United was not then a financial institution as defined by the statute, its provisions were inapplicable. The court granted the defendant’s motion for summary judgment, concluding that the plaintiffs’ action was barred by § 36a-755 (d) and that no issue of fact existed in that the agreement to perform the appraisal was between the defendant and United, not the plaintiffs. The plaintiffs subsequently asked the court to reconsider its decision on the basis that they had submitted to the court a postargument brief and affidavits, and they believed that those documents were not considered by the court in issuing its decision. The court denied the motion for reconsideration. This appeal followed.

On appeal, the plaintiffs claim that the court improperly concluded that their claim was barred by § 36a-755 (d). They contend that their claim is not subject to the provisions of § 36a-755 because, in 2006, United was not a financial institution as defined in § 36a-755 (a) (2). We agree.

We first set forth the applicable standard of review of a trial court’s ruling on a motion for summary judgment. “Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 786-87, 967 A.2d 1 (2009).

The question of whether § 36a-755 relates only to appraisals done directly or indirectly at the behest of a financial institution or to any appraisal commissioned by any party presents a question of statutory interpretation, over which we exercise plenary review in accordance with well established principles set forth in General Statutes § l-2z. See Nyenhuis v. Metropolitan District Commission, 300 Conn. 708, 719, 22 A.3d 1181 (2011). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning ... § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 825, 14 A.3d 982 (2011).

In accordance with § l-2z, we begin with the text of § 36a-755 (d) (formerly General Statutes § 36-9h), which is a subsection of the statute entitled “Mortgage appraisal practices.” Section 36a-755 (d) provides that: “Any person who prepares such appraisal report shall not be liable to any person with whom the preparer has not contracted to make such appraisal report for opinions or facts stated in or omitted from such appraisal report, unless such statement or omission results from intentional misrepresentation.”

Reading subsection (d) by itself, it is not clear that it pertains only to appraisals requested by financial institutions. In the context of the entirety of § 36a-755, however, it is clear that subsection (d) applies only to appraisals that are performed in conjunction with securing a mortgage from a financial institution. This is made evident by the reference in subsection (d) to “such appraisal,” which logically and reasonably must be read to refer back to subsections (b) and (c), both of which pertain only to appraisals performed when a financial institution has imposed a fee. On that basis, we conclude that the language of § 36a-755 (d) unambiguously applies only to appraisals performed in conjunction with obtaining a mortgage from a financial institution and commissioned either directly or indirectly by such financial institution. Thus, in order to determine whether or not the plaintiffs’ action was barred by subsection (d), it must first be determined if United is a financial institution as that term was then statutorily defined.

At the time that the appraisal was performed, in 2006, § 36a-755 (a) (2) defined a financial institution as “a bank, out-of-state bank, Connecticut credit union, federal credit union, out-of-state credit union, secondary mortgage loan licensee and first mortgage lender licensee . . . ,” In conjunction with their opposition to the defendant’s motion for summary judgment, both of the plaintiffs submitted affidavits in which they alleged that they engaged United as a “mortgage broker ... to help negotiate the best deal [it] could with a ‘financial institution’ . . . .” The plaintiffs averred that United is a broker that does not lend money and was, therefore, not a financial institution as defined in § 36a-755 (a) (2). We agree. By the plain language of § 36a-755 (a) (2), a financial institution is one that is in the business of lending money. There is no claim in this case that United was in such a business; rather, it appears undisputed that United acted solely as a mortgage broker. Because United is not a financial institution as then defined in § 36a-755 (a) (2), we conclude that the court improperly rendered summary judgment in favor of the defendant on the basis that the plaintiffs’ claim was barred by § 36a-755 (d).

The judgment is reversed and the case is remanded with direction to the trial court to deny the defendant’s motion for summary judgment and for further proceedings according to law.

In this opinion the other judges concurred.

       The plaintiff also named as defendants Gary Ruot, Jennifer Ruot, Century 21 Access America and Stephanie Ellison. Because those parties are not parties to this appeal, we refer to Redding Appraisal Group as the defendant.

       The plaintiffs also contend that the court improperly determined that they had no privity with the defendant as required by § 36a-755 (d). Because we conclude that that statute does not apply to the circumstances of this case, we need not address that claim.

       All references to § 36a-755 (a) (2) are to the 2005 revision unless otherwise indicated.

       Public Acts 2008, No. 08-176, § 75, effective July 1, 2008, redefined “ ‘[fjinancial institution’ ” to include references to “mortgage correspondent lender” and “mortgage broker.” Due to the timing of that amendment, however, it has no bearing on the issue before us.