author: SCHALLER, J.

text:
    IN RE ANGELLICA W.

    (AC 16886)
    Schaller, Hennessy and Sullivan, Js.

      Argued February 27
    officially released July 28, 1998

      William J. Shea, for the appellant (respondent).

      Robin Murdock Meggers, with whom was Julia Morris Paul, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book (1998 Rev.) § 79-3, the names of the parties involved in this appeal axe not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

SCHALLER, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights and appointing the petitioner father as the sole parent and guardian of the minor child, Angellica W. The respondent claims on appeal that the trial court improperly (1) allowed the petitioner to amend his petition to allege that there was no ongoing parent-child relationship, (2) admitted into evidence a report prepared by the department of children and families (department) that detailed the facts and circumstances concerning the respondent’s children other than Angellica and (3) found by clear and convincing evidence that the respondent had abandoned her child pursuant to General Statutes (Rev. to 1995) § 45a-717 (f) (1), that there was no ongoing parent-child relationship and that to allow further time for the establishment of a parent-child relationship would be detrimental to the child. We affirm the judgment of the trial court.

The trial court found the following facts relevant to this appeal. The respondent and the petitioner were married in 1989. Angellica was bom on April 7, 1990. The respondent and the petitioner lived briefly with the respondent’s mother during the early months of Angellica’s life. In September, 1990, however, the respondent, the petitioner and Angellica moved into a low income residence known as the Executive Motor Lodge (motor lodge). At that time, the respondent and the petitioner were involved with alcohol and drugs, including cocaine. The respondent and the petitioner argued frequently about the petitioner’s failure to help the respondent, his failure to care for Angellica and his “partying” with friends. The respondent testified that during this period, she was “bored, alone, frustrated, depressed and angry.” In December, 1990, the respondent took Angellica and left the area with a seventeen year old friend named Gary, without telling the petitioner where they were going or when they would return.

Approximately ten days later, the respondent called the petitioner from Virginia, saying that she was coming back to Connecticut and that she wanted a separation. Within a week, the respondent returned to Connecticut with Angellica. The petitioner observed that when Angellica returned to Connecticut, she was hungry, her diapers were soaked, she had a rash and there were blisters in her genital area.

The respondent indicated to the petitioner that she planned to take Angellica with her to Florida to stay with her grandparents. The petitioner informed the respondent that because she was on probation and because he had reported that she had left the state, there was a warrant issued for her arrest. The petitioner convinced the respondent that under these circumstances, Angellica might end up in a foster home and, therefore, it was better if she left Angellica with him. In January, 1991, the respondent agreed to leave Angellica in the petitioner’s care and never again had custody of the child. The petitioner left the motor lodge and moved in with his mother in January, 1991. He lived with his mother until September, 1992. During that period, the respondent visited occasionally with Angellica.

On April 29, 1992, the petitioner applied to the Manchester Probate Court for custody of Angellica. The petitioner also sought to have the respondent removed as Angellica’s guardian, alleging that Angellica had been abandoned by the respondent. The petitioner had cared for Angellica since January, 1991, with the assistance of a friend, Tracy. The petitioner and Tracy married in 1994. The department conducted an investigation and concluded that the allegations of abandonment were unsubstantiated because the respondent had been visiting Angellica occasionally. The court awarded custody to the petitioner and granted visitation rights to the respondent.

On March 9,1993, the department submitted a second report to the Manchester Probate Court. That report stated that the respondent had made only one visit with Angellica since August, 1992. On March 9, 1993, the petitioner filed for divorce from the respondent in the Superior Court in Rockville. The court granted a dissolution of marriage on June 21, 1993. The respondent did not contest the divorce and, despite having been served, did not appear in court for the final hearing. The court granted the petitioner sole custody of Angellica, with no visitation rights to the respondent.

In February, 1994, the respondent filed a pro se motion to modify the court’s order to allow visitation rights. At a hearing on March 14, 1994, in which the petitioner appeared with counsel and the respondent appeared pro se, the matter was referred to a family services officer. The officer declined involvement in the case because he was informed that a termination of parental rights action had been filed and was pending. Absent a recommendation from family services, no action was taken on the motion to modify the decree of dissolution. The respondent proceeded to Probate Court in Manchester the same day and obtained a statement from the clerk, verifying that no action for the termination of parental rights had been filed in that court. On March 21, 1994, the petitioner filed an action to terminate the respondent’s parental rights in the Probate Court for the District of Andover one week after the respondent had sought visitation rights. The matter was subsequently transferred to the Superior Court for Juvenile Matters at Rockville and later tried in the Child Protection Session at Middletown.

Initially, the petitioner requested a termination of the respondent’s parental rights based on abandonment, pursuant to § 45a-717 (f) (l). On October 9, 1996, however, the petitioner moved to amend the petition to include the allegation that “there is no ongoing parent-child relationship as defined in General Statutes § 45a-717 (f), and to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interest of the child.”

Since 1991, the respondent has spent much of her time impaired by drugs and alcohol. She has made attempts to establish visitation with Angellica. These attempts, however, have been thwarted by the petitioner, the judicial system and her own self-destructive behavior. The petitioner and Tracy intended that upon the termination of the respondent’s parental rights, Tracy would be in a position to adopt Angellica. The respondent acknowledged that Angellica views Tracy as her mother and that the child’s current living arrangements are better than what she could provide. The respondent did not claim that the petitioner and Tracy should not continue to raise Angellica. Instead, the respondent argued that her parental rights should not be terminated.

The last time that the respondent saw Angellica was at a meeting planned by Tracy in July, 1993. There were no visits by the respondent in the years 1994, 1995 and 1996. At the time of trial, there was a parent-child relationship between Tracy and Angellica. At that time, there was no ongoing parent-child relationship between the respondent and Angellica.

The trial court also found the following facts relevant to the disposition of the case. On September 29, 1991, the respondent gave birth to a son, Joshua. The department immediately removed this child from the respondent and placed him in foster care. The respondent failed to visit Joshua for four months even though she was permitted to do so. Joshua was kept in foster care until January 29, 1994, when he was returned to the respondent under the protective supervision of the department. After Joshua’s return, the respondent failed to abstain from substance abuse and, as a consequence, the respondent’s mother became Joshua’s guardian.

In June, 1995, the respondent entered Coventry House, a home for pregnant women with drug and alcohol related problems. The respondent’s fifth child, a daughter named Skyla, was bom on June 28, 1995. In November, 1995, however, after she had left the Coventry House program, the respondent fled the state with Skyla and went to Tennessee. The respondent left the state after she learned that the department intended to remove Skyla from her care. The respondent remained in Tennessee until August, 1996.

On November 2, 1996, the respondent gave birth to her sixth child, Briana. The respondent maintains that she has been sober since June, 1995. At the time of trial, the respondent was living with her eighteen month old daughter, Skyla, and her two month old daughter, Briana.

I

The respondent first claims that the trial court improperly allowed the petitioner to amend his petition to allege that there was no ongoing parent-child relationship. We are not persuaded.

The respondent argues that Connecticut case law militates against the granting of a termination petition based on the lack of an ongoing parent-child relationship where no effective visitation rights exist. In re Valerie D., 223 Conn. 492, 526-35, 613 A.2d 748 (1992); In re Kelly S., 29 Conn. App. 600, 616-18, 616 A.2d 1161 (1992). The trial court, however, correctly pointed out that “actually, it’s a matter of proof, really, rather than whether they have the right to amend. I think they have the right to amend, to allege whatever they want and the burden is on them to prove whatever they allege.” Furthermore, Practice Book § 1055.1, now Practice Book (1998 Rev.) § 35-1, provides that amendments to the petition may be made at any time prior to a final adjudication. We will not disturb the trial court’s decision to allow amendments to the petition unless there has been an abuse of discretion. In re Carl O., 10 Conn. App. 428, 437-38, 523 A.2d 1339, cert. denied, 204 Conn. 802, 525 A.2d 964 (1987). Since the rules of practice allow amendment, we cannot say that the trial court abused its discretion in this case by allowing amendment of the termination petition.

II

The respondent next claims that the trial court improperly admitted into evidence a report prepared by the department that detailed the facts and circumstances concerning the respondent’s children other than Angellica. The respondent argues that the information contained in that report was not relevant to the termination petition and was prejudicial because the court interpreted and applied the facts in the report against the respondent. The respondent contends that the circumstances concerning her and her other children “contribute nothing in determining the certainty or probability of the issues of abandonment, ongoing parent-child relationship or best interests.” We disagree.

The trial court, in its memorandum of decision, referred to the facts surrounding the respondent and her other children as bearing upon the parent-child relationship. In admitting into evidence the report prepared by the department, the trial court concluded that the report was relevant and not prejudicial to the respondent. We note at the outset that any mandated department social study reports submitted for the court’s use in the dispositional phase; see Practice Book §1043.1, now Practice Book (1998 Rev.) §§ 33-5 and 33-6; may be “filed or considered by the court or used by counsel during the adjudicatory phase of the hearing.” In re Tabitha P., 39 Conn. App. 353, 368, 664 A.2d 1168 (1995). “ ‘Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.’ ” (Citations omitted.) State v. Billie, 47 Conn. App. 678, 683-84, 707 A.2d 324, cert. granted on other grounds, 244 Conn. 933, 717 A.2d 231 (1998). Furthermore, “[o]ur standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Annecharico v. Patterson, 44 Conn. App. 271, 275, 688 A.2d 1341 (1997).

We conclude that the trial court did not abuse its discretion in determining that the evidence was relevant and that the probative value of the report outweighed any prejudicial effect.

III

The respondent next claims that the trial court improperly terminated her parental rights pursuant to § 45a-717 (f). To prevail, the respondent must successfully challenge both of the bases of the judgment terminating her parental rights. In re Kezia M., 33 Conn. App. 12, 17, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993). If either of the grounds on which the trial court relied are upheld on appeal, the termination of parental rights must stand. Id. We conclude that the trial court’s decision to terminate the respondent’s parental rights was proper.

Before analyzing the respondent’s specific claims, we note our standard of review. “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Internal quotation marks omitted.) In re David E., 4 Conn. App. 653, 656, 496 A.2d 229 (1985).

A

The respondent first claims that the trial court improperly determined that she had abandoned Angellica. We disagree.

We have stated that “[abandonment focuses on the parent’s conduct. ... A lack of interest in the child is not the sole criterion in determining abandonment. . . . Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child. . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare.” (Citations omitted; internal quotation marks omitted.) In re Kezia M., supra, 33 Conn. App. 17-18.

Moreover, we have identified the minimal parental obligations for determination of whether abandonment has occurred. “The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.” (Internal quotation marks omitted.) Id., 18.

In support of its conclusion, the trial court noted the following facts: the respondent tried to contact Angellica only sporadically during the child’s infancy; long periods elapsed when the respondent made no significant attempt to see the child; the respondent allowed the petitioner to assume full-time responsibility for Angellica during the first two years of Angellica’s life; the respondent pursued her personal, romantic and substance abuse interests with greater devotion and vigor than she engaged in establishing or maintaining a relationship with Angellica; the respondent completely abdicated her parental role; the respondent is contesting this case to satisfy her own needs and not those of the child with whom she has no relationship; when granted court-ordered visitation, the respondent did not follow through in a diligent, purposeful and consistent manner; and the respondent has rarely, if ever, sent the child gifts or cards in the five years since 1991.

The trial court found, by clear and convincing evidence, that the respondent had abandoned Angellica. In light of the facts found concerning the respondent’s conduct, it is evident that she failed to manifest a reasonable degree of interest, responsibility or concern for Angellica’s welfare. The findings of fact amply support the trial court’s conclusion on the issue of abandonment.

B

The respondent next claims that the trial court improperly determined that there was no ongoing parent-child relationship and to allow further time for the establishment of such a relationship would be detrimental to the child. With respect to this claim, we note that the respondent did not challenge the first prong of this ground under § 45a-717 (f) (3), and that the sole challenge on the second ground is that the trial court “improperly relied on facts and opinions not in evidence” by referring to a textbook in its memorandum of decision. The trial court stated: “Common sense and the literature suggest that [Angellica] should have permanency in her placement as soon as possible and that further delay would be detrimental to her. See generally J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child (1979) p. 99.” Contrary to the respondent’s argument, the trial court’s passing reference to the text concerning the concept of permanency in placement did not involve consideration of the text as evidence nor did it refer to any specific statements in the text. No abuse of discretion resulted. See Hunte v. Blumenthal, 238 Conn. 146, 165, 680 A.2d 1231 (1996), and Newman v. Newman, 235 Conn. 82, 106, 663 A.2d 980 (1995), for examples where this text was utilized as secondary authority by our Supreme Court.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 45a-717 (f) provides in relevant part:
      “[T]he court may approve the petition terminating the parental rights . . . if it finds, upon clear and convincing evidence that the termination is in the best interest of the child and that . . . over an extended period of time which . . . shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; or . . . (3) there is no ongoing parent-child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the child. . . The standard contemplated “is not whether the parents have shown some interest in their children. Common sense dictates that a parent’s obligations toward his or her child go further than a minimal interest.” (Emphasis in original.) In re Rayna M., 13 Conn. App. 23, 36-37, 534 A.2d 897 (1987).

       Angellica is the respondent’s third child, the first and second children having died at four and two months of age.

       Practice Book § 1055.1 (3), now Practice Book (1998 Rev.) §35-1 (c), provides in relevant part: “A petition may be amended at any time by the court on its own motion or in response to the motion of any party prior to any final ac(judication. . . .”

       The report was a supplemental study prepared by the department in response to a request made by the assistant attorney general, who is not a party to this action. The study, dated June 24, 1996, detailed the circumstances and events concerning the respondent’s other children. There was no information in the report, however, concerning Angellica

       Practice Book §1043.1, now Practice Book (1998 Rev.) §§ 33-5 and 33-6 provides in relevant part: “(2) Said study shall be marked as an exhibit subject to the right of any party to require that the author, if available, appear for cross-examination.
      “(3) The mandated social study or any other written report or evaluation made available to the court shall be made available for inspection to all counsel of record and, in the absence of counsel, to the parties themselves. ...”

       It should be noted that the In re Kezia M. court cited General Statutes § 17a-112 (b) as ground to decide the issue of whether a court should terminate parental rights. This section is analogous to § 45a-717 and applies to proceedings in the Superior Court, whereas § 45a-717 applies to proceedings in the Probate Court.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. EDWARD KRUELSKI, JR.
    (AC 16967)
    O'Connell, C. J., and Schaller and Healey, Js.
    Argued April 29
    officially released July 28, 1998

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

      Robert L. Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of the trial court denying his motion to dismiss the charge of violating the Home Improvement Act (act), General Statutes § 20-427 (b) (5). He claims that the trial court improperly concluded that the prosecution was not barred by the doctrine of double jeopardy. We affirm the judgment of the trial court.

The history of this case discloses that the state commenced a prosecution on August 24, 1994, alleging that the defendant had contracted to perform home improvements without being registered, as required by the act. At the conclusion of all the evidence, the trial court granted a judgment of acquittal on the ground that the prosecution was barred by the one year statute of limitations. General Statutes § 54-193. With the court’s permission, the state appealed to this court. General Statutes § 54-96. We reversed the trial court’s judgment and remanded the case for further proceedings on the ground that the trial court improperly granted the motion for judgment of acquittal because the timely issuance of the arrest warrant tolled the statute of limitations. State v. Kruelski, 41 Conn. App. 476, 677 A.2d 951, cert. denied, 238 Conn. 903, 677 A.2d 1376 (1996).

Following the remand, the state commenced the present prosecution against the defendant, and the defendant moved to dismiss, arguing that further proceedings would constitute a second prosecution for the same offense following an acquittal. The trial court denied the motion, holding that “the court’s prior order granting the defendant’s motion for a judgment of acquittal was based on an unrelated legal issue and was not based on a resolution in the defendant’s favor of some or all of the factual elements of the offense charged.” This appeal followed.

The defendant argues that further prosecution is barred by his constitutional right not to be placed in jeopardy twice because, in the former trial, the court ordered a judgment of acquittal based on a determination that the defendant had proven all the essential elements of a statute of limitations defense. Specifically, the defendant claims that despite being reversed by this court, the acquittal was a judgment of the trial court that represented a factual resolution of some of the elements of the charged offense, sufficient to invoke the double jeopardy bar.

In United States v. Scott, 437 U.S. 82, 97, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978), the United States Supreme Court held that “a defendant is acquitted only when ‘the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.'' ” (Emphasis added.)

The defendant maintains that because the resolution of the statute of limitations defense involved a level of inquiry that constituted a factual determination as to whether there was unreasonable delay in the service of the arrest warrant, the trial court was required to assess the facts surrounding the defendant’s arrest. The defendant contends that those facts necessarily included facts related to his guilt or innocence and, according to double jeopardy principles, he cannot be the subject of a second prosecution for the same offense. We disagree.

The Scott court determined that when a defendant deliberately chooses to “seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, [he] suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant. . . . Rather, [the Supreme Court] conclude [d] that the Double Jeopardy Clause, which guards against Government oppression, does not reheve a defendant from the consequences of his voluntary choice,” which ends a prosecution with neither a conviction nor an acquittal. Id., 98-99.

The Scott court further held that when a defendant is acquitted after proving ah the elements of an affirmative defense, double jeopardy operates to bar successive prosecution only when the defense is one that “arises from ‘the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a proscribed offense’. . .where other facts established to the satisfaction of the trier of fact provide a legally adequate justification for otherwise criminal acts. Such a factual finding does ‘necessarily establish the criminal defendant’s lack of criminal culpability’ .... By contrast, [a successful defense such as] preindictment delay represents a legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation.” (Citations omitted; emphasis in original.) Id., 97-98.

In the present case, the defendant deliberately sought to terminate the proceeding against him by using a statute of limitations defense. A statute of limitations defense is not a defense that, when proven, negates an essential element of a charged offense or establishes a legally adequate justification for an otherwise criminal act. Instead, this type of defense “represents a legal judgment that a defendant, although criminally culpable, may not be punished because of a supposed constitutional violation.” Id., 98.

Moreover, in ruling on the defense in question, the trial court limited its factual determination to whether the arrest warrant was delivered to the proper law enforcement authorities in a timely manner. The court’s judgment of acquittal was based solely on the conclusion that such delivery was, in fact, outside the one year statute of limitations period, and the court did not resolve in the defendant’s favor any of the factual elements of the offense charged. There is nothing in the trial court’s memorandum of decision to suggest that it considered the defendant’s guilt or lack of guilt when ruling on the motion for judgment of acquittal.

In this case, the defendant successfully avoided a conviction by persuading the trial court to dispose of the action on a basis that did not depend on guilt or lack of guilt. He was, thus, neither acquitted nor convicted. “He has not been ‘deprived’ of his valued right to go to the first jury; only the public has been deprived of its valued right to ‘one complete opportunity to convict those who have violated its laws.’ ” Id., 100. We conclude that the defendant was never “acquitted,” but that the case had been improperly dismissed. Accordingly, proceeding with this prosecution does not violate the defendant’s privilege against double jeopardy.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 20-427 (b) provides in pertinent part: “No person shall ... (5) offer to make or make any home improvement without having a current certificate of registration under this chapter . . .

       In his statute of limitations defense, the defendant contended that there had been an unreasonable delay in executing the arrest warrant.


text:
    STANTON ZEBROSKI ET AL. v. MARINA BAY ASSOCIATION, INC., ET AL.
    (AC 17385)
    O’Connell, C. X, and Lavery and Spear, Js.
    Argued June 3
    officially released July 28, 1998

      David J. Ordway, for the appellants (plaintiffs).

      Jeffrey W. Kennedy, for the appellees (defendants).
   Opinion

O’CONNELL, C. J.

The plaintiffs instituted this action against the defendant Marina Bay Association, Inc. (association), alleging that the association wrongfully withheld proceeds from a check issued by its common elements insurer for water damage sustained by the plaintiffs’ residence in unit seventy-three of the association. In connection with the action, the plaintiffs applied for a prejudgment remedy.

In their complaint, the plaintiffs alleged that the plaintiff Stanton Zebroski was the constructive and beneficial owner of unit seventy-three. The association moved to dismiss the prejudgment remedy application, claiming that the plaintiffs lacked standing because they were not the record owners of unit seventy-three. The trial court granted the motion, and the plaintiffs now appeal from the trial court’s dismissal of their application for a prejudgment remedy. We dismiss the appeal as moot.

In their brief, the plaintiffs state that the issue on appeal is whether the trial court improperly concluded that the plaintiffs lacked standing to seek insurance moneys paid to the defendants for repairs to unit seventy-three because neither plaintiff was the record title owner of unit seventy-three. During oral argument before this court, the plaintiffs informed us that subsequent to the taking of this appeal, they acquired record title in fee simple to unit seventy-three. Accordingly, the grounds on which the trial court denied the application no longer exist. For us to adjudicate whether condominium occupants who possess only beneficial and not legal ownership of their units have standing to seek a prejudgment remedy would be an academic exercise.

“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. ... In the absence of an actual and existing controversy for us to adjudicate . . . the courts of this state may not be used as a vehicle to obtain judicial opinions upon points of law . . . and where the question presented is purely academic, we must refuse to entertain the appeal. . . . Goodson v. State, 228 Conn. 106, 114-15, 635 A.2d 285 (1993), on appeal after remand, 232 Conn. 175, 653 A.2d 177 (1995).

“Courts are established to decide actual controversies and an appellate court has no jurisdiction to adjudicate cases that are not justiciable. State v. Nardini, 187 Conn. 109, 111, 445 A.2d 304 (1982). 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.” (Citation omitted; internal quotation marks omitted.) B & D Associates v. Board of Examiners for Professional Engineers & Land Surveyors, 41 Conn. App. 827, 830, 677 A.2d 982 (1996). When the plaintiffs acquired record title to unit seventy-three, the issue of the right of a beneficial condominium owner to obtain a prejudgment remedy became academic. At best, a decision by this court on that issue would be an advisory opinion for other similarly situated condominium owners.

The appeal is dismissed as moot.

In this opinion the other judges concurred.

       Sequoia Property Management Corporation, employed by the association as its property manager, is also a defendant in this action.

       Stanton Zebroski’s wife, Sylvia Zebroski, is the other plaintiff in this action. In addition to alleging that Stanton was the constructive and/or beneficial owner of the unit, the plaintiffs alleged that they were both in possession and occupancy of the unit.


author: PER CURIAM.

text:
    FREDERICK PAYNE, SR. v. COMMISSIONER OF CORRECTION
    (AC 17354)
    O’Connell, C. J., and Lavery and Spear, Js.
    Argued June 3
    officially released July 28, 1998

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      Toni M. Smith-Rosario, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Chrislopher A. Alexy, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

After a review of the record and briefs, and after hearing from the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right. Further, he has failed to sustain his burden of persuasion that either the denial of certification to appeal was a clear abuse of discretion or an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s dismissal of the petitioner’s petition was predicated on a factual review of the petitioner’s claim and a determination that the petitioner had failed to rebut the strong presumption that “counsel’s conduct [fell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992).

The petitioner claims that trial counsel was ineffective because he did not personally interview a codefendant or call the codefendant as a defense witness. The petitioner also claims that trial counsel failed to investigate properly, and to analyze marks that were on the doorway of the building that the defendant and his codefendant were convicted of attempting to burglarize.

The trial court heard testimony from the codefendant as to what he would have testified to at trial and found the testimony to be fabricated and dishonest. Moreover, trial counsel’s decision not to call as a witness the codefendant, who had pleaded guilty to the charge of attempted burglary, was undoubtedly a sound tactical decision. The trial court also found that the investigation was sufficient as to the marks on the doorway because trial counsel had had an investigator examine and photograph both the doorway and the marks.

We conclude that the habeas court had before it sufficient evidence to find as it did, and it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.


author: DUPONT, J.

text:
    SKW REAL ESTATE LIMITED PARTNERSHIP v. ANTHONY H. GALLICCHIO ET AL.
    (AC 17134)
    Foti, Spear and Dupont, Js.

      Argued May 4
    officially released July 28, 1998

      Richard P. Weinstein, with whom, on the brief, was Nathan A. Schatz, for the appellants (defendants).

      Houston Putnam Lowry, for the appellee (plaintiff).
   Opinion

DUPONT, J.

The defendants appeal from the judgment of strict foreclosure of a mortgage rendered in favor of the plaintiff. On appeal, the defendants claim that (1) the plaintiff failed to offer competent evidence to establish its entitlement to enforce the promissory note secured by the underlying mortgage, (2) the trial court improperly overruled the defendants’ special defenses based on the discrepancies between the terms in the promissory note and the terms in the mortgage commitment letter of the lender bank, (3) the trial court lacked competent evidence regarding the amount of the debt and (4) the trial court incorrectly rendered judgment for specific items of damages. We affirm the judgment of the trial court as to the first three claims and reverse as to the last claim.

The following facts are relevant to this appeal. On or about April 14,1987, Home Bank and Trust Company issued a mortgage commitment letter (commitment letter) to the defendant Anthony H. Gallicchio, a partner in the defendant P & G Enterprises Limited Partnership (P & G), indicating that Home Bank and Trust Company had approved P & G’s application for a mortgage loan in the amount of $2,100,000, subject to the various terms and conditions as set forth in the letter. On June 10, 1987, Shawmut Home Bank, successor in interest to Home Bank and Trust Company, loaned $2,100,000 to P & G. This loan was evidenced by a promissory note (note) executed by the three general partners of P & G. The note was secured by a mortgage of real property located at 306 Industrial Park Road in Middletown. An assignment of leases and rentals was also executed, and each of the three individual defendants personally guaranteed the note.

Shawmut Home Bank eventually merged into Connecticut National Bank, which changed its name to Shawmut Bank Connecticut N.A. Shawmut Bank Connecticut N.A., now Fleet Bank, transferred the required payments on the loan from P & G’s checking account to the bank on a monthly basis. Monthly statements were rendered to P & G reflecting all payments. Shawmut Bank Connecticut N.A. sold the P & G loan to the plaintiff SKW Real Estate Limited Partnership on June 24, 1993. After making monthly payments on the note to the plaintiff for approximately nineteen months with no objection as to ownership of the note, P & G failed to make the payment due on the loan in March, 1995, and thereafter failed to make any further payments. On May 16,1995, the note was accelerated, and the plaintiff brought this foreclosure action on June 9, 1995. Other facts will be noted as they become relevant.

The trial court held that the plaintiff was a holder in due course for value received and was entitled to enforce the note and mortgage, and that there was a default of payment on the note. The court rendered a judgment of strict foreclosure of the mortgage on April 10, 1997. In a subsequent articulation, the court found the principal amount of the debt to be $1,911,694.71, accrued interest to be $476,420.47, late charges in the amount of $23,474.56 and reasonable attorney’s fees of $35,000, and established 12 percent as the applicable rate of interest upon default.

I

The defendants first claim that the plaintiff failed to establish properly its entitlement to enforce the note because the allonge, by which the plaintiff claims to have acquired its right to collect the balance due on the note, was not properly authenticated.

The note in this case is made payable to Shawmut Home Bank, and no endorsement to the plaintiff appears on the note. The plaintiff claims to have acquired its ownership of the note by way of an allonge, which was attached to the note and admitted into evidence over the defendants’ objection. Whether the plaintiff is the proper party to enforce the note and seek foreclosure of the mortgage turns on the admissibility of the note and allonge by which the plaintiff claims to have acquired its interest in the note. If the allonge and note were improperly admitted into evidence, the plaintiff has failed to prove that it is entitled to enforce the note and, correspondingly, would not be entitled to foreclose on the mortgage because of the defendants’ failure to pay the note.

The following additional facts are necessary to a proper resolution of this claim. A witness for the plaintiff, Russell Church, testified that he worked as an asset manager for Archon Group, the entity responsible for servicing all of the assets of the plaintiff. In that position, Church testified that he personally became responsible for the P & G loan some time during the summer of 1996. Church further testified that he first; saw the original note with the attached allonge two weeks before trial, when the plaintiffs counsel presented it to him, and that he had no personal knowledge regarding the execution of the allonge or how or when it came to be attached to the note. In the upper left comer of the note and allonge are multiple staple holes, indicating that the two documents had been stapled and separated on several occasions prior to trial. The allonge does not, on its face, make any reference to the note, but a computer generated sticker affixed to the upper right comer of the allonge does refer to the defendant partnership. Church testified that he had no knowledge regarding either who attached the sticker or when the sticker was affixed to the allonge.

The defendants objected to the admissibility of the allonge on the ground that Church could not testify as to its authenticity. The trial court admitted the allonge conditionally, indicating that the defendants could move to strike the exhibit if the plaintiff failed to tie the allonge properly to the note. Church testified, over objection, that the loan from P & G was acquired by the plaintiff in 1993 as part of a pool of loans purchased from Shawmut Bank Connecticut N.A. He further testified that he was not an officer or employee of the plaintiff, and that he was not involved in any way with the acquisition of the note from Shawmut. No other documents were introduced into evidence regarding the purchase of the loans. At the close of the plaintiff’s evidence, the defendants moved to strike the allonge. The trial court denied the defendants’ motion and determined, on the basis of the allonge, that the note was endorsed and delivered properly to the plaintiff, making the plaintiff a holder in due course entitled to enforce the note.

It is undisputed that the defendant P & G borrowed $2,100,000 from Shawmut Home Bank and that P & G executed a promissory note in favor of Shawmut Home Bank. It is further undisputed that P & G has not paid in full the obligation owed on the note and that the outstanding debt remains owed to the legal holder of the note.

The plaintiff was in possession of the original note with the endorsed allonge stapled to it. The testimony of Church was that although he was not involved directly with the purchase of the P & G loan by the plaintiff, he became responsible for the servicing of the P & G loan on behalf of the plaintiff at some point after the purchase. The evidence was that the defendants made payments on this note to the plaintiff without objection for nineteen months.

The trial court concluded on the evidence that the plaintiff was a holder in due course. That finding is a question of fact. We must determine whether that conclusion was warranted on the basis of the subsidiary facts of this case. If the finding is not clearly erroneous, it cannot be disturbed.

A holder in due course must prove his taking of the instrument for value, in good faith, and “ ‘without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.’ Funding Consultants, Inc. v. Aetna Casualty & Surety Co., 187 Conn. 637, 640-41, 447 A.2d 1163 (1982).

The defendants claim that the plaintiff is not entitled to enforce the note because the plaintiff has not proved that the note was transferred to it by a delivery, the purpose of which was to give the plaintiff the right to enforce the note. See General Statutes §§ 42a-3-301 (i), 42a-3-201, and 42a-3-203 (b). It is difficult to draw any other inference from the facts here except that the note must have been delivered by Shawmut Bank to the plaintiff, who was in possession of both it and the original mortgage of the original payee. The testimony was that the plaintiff had bought the note. It is reasonable to infer that the note was purchased so that the plaintiff could enforce it by collecting the balance due on it. The sticker affixed to the allonge included the name of the debtor, and there is nothing in the evidence to indicate that the defendants had executed some other note to Shawmut Home Bank to which this allonge had become mistakenly attached.

“The possession by the bearer of a note indorsed in blank imports prima facie that he acquired the note in good faith for value and in the course of business, before maturity and without notice of any circumstances impeaching its validity. The production of the note establishes his case prima facie against the makers and he may rest there. ... It was for the defendant to set up and prove the facts which limit or change the plaintiffs rights.” (Citations omitted.) Garris v. Calechman, 118 Conn. 112, 115, 170 A. 789 (1934). The defendants here did not establish that the title of any holder who negotiated the note to the plaintiff was defective. Here, even without endorsement, when the plaintiff had lawful possession of the note and mortgage, and the defendants made payments according to the terms of the note to the plaintiff for nineteen months, the plaintiff was entitled to enforce the note. See Warman v. Delaney, 148 Conn. 469, 172 A.2d 188 (1961).

We conclude that the plaintiff has established its standing or right to sue on the note, and that the court correctly admitted the note and its allonge and correctly concluded that the plaintiff was a holder in due course. See Donnelly v. Garvan, 111 Conn. 626, 630, 151 A. 168 (1930).

II

The defendants next claim that the trial court improperly overruled their special defenses that were based on the unexplained discrepancies between the terms of the note and those of the commitment letter. Specifically, the defendants asserted that the note was rendered unenforceable because its interest rate provisions do not accurately reflect the interest rate terms agreed to by the parties and set forth in the commitment letter.

There are two primary differences between the terms of the commitment letter and the terms of the note with respect to the interest rate to be applied to the loan. Both the commitment letter and the note specify that the loan would bear a fixed interest rate of 10 percent per year for the first five years of the ten year term and that beginning in the sixth year and then every year thereafter, the rate would be adjusted to prime plus 2.25 percent per year with a ceiling of 13 percent. The note, however, also provided for an interest rate floor of 10 percent and a yearly cap of 2 percent on the amount the rate could change from the prior year, neither of which were provided for in the commitment letter. There was no evidence before the trial court to explain why the terms of the note varied from the terms of the commitment letter.

The trial court ruled that the defendants’ special defense relating to the variance as to the interest rate was “without merit . . . because all parties signed the note, which is evidence of the debt. The commitment letter is not evidence of any debt, but of the parties’ general contemplations at the time it was issued. The terms of the note are unambiguous, clear and in accordance with the parties’ agreement at the time it was signed.”

The terms of the note clearly and unambiguously set forth the interest rate provisions of the loan, including the interest rate floor and rachet. The defendants signed the note without objecting to the interest rate provisions. Although the commitment letter stated that the loan was “subject to the following terms and conditions,” those conditions included the preparation of the note and mortgage deed. Further, while the commitment letter provides for the survival of its terms, there is no requirement that the commitment letter contain all of the terms of the loan. In this case, the terms of the commitment letter did survive the closing of the loan. The note contained additional terms, but did not change the terms of the commitment letter.

“[A] promissory note is nothing more than a written contract for the payment of money” and, as such, contract law applies. Appliances, Inc. v. Yost, 181 Conn. 207, 210, 435 A.2d 1 (1980). There is no ambiguity in the interest rate terms in the note, and any contrary intent on the part of the parties that could be impliedly construed from the terms of the commitment letter because of the absence of a rate interest floor or the absence of a rate interest rachet cannot alter the terms of the written contract, the note, as it was subsequently executed. See Greene v. Scott, 3 Conn. App. 34, 36, 484 A.2d 474 (1984).

The defendants’ argument that the commitment letter itself constituted a contract between the parties that was breached when the lender charged interest in accord with the terms of the note rather than the terms of the commitment letter is also to no avail. First, the commitment letter clearly anticipated the preparation of further loan documents and was conditioned on the parties’ execution of those documents in the future. Second, while the commitment letter authorized the loan to the defendants “subject to the following terms and conditions,” there was no requirement that the commitment letter contain all of the terms and conditions regarding the loan or that no other terms could be added. The defendants, who were represented by counsel at the closing, signed the note that unambiguously set forth the interest terms of the loan. The commitment letter provided in paragraph sixteen, titled, “Documentation,” that all documents, including but not limited to the mortgage deed and note, shall be “reviewed by borrower’s counsel,” giving his name and telephone number.

We agree with the trial court that the note is an enforceable contract between the parties, which sets forth the terms of the agreement of the parties with respect to the interest rate to be applied to the loan, and we therefore affirm the trial court’s conclusion that the defendants’ special defenses cannot prevail.

III

The defendants next claim that the trial court lacked competent evidence to determine the amount of the mortgage debt properly. The trial court based its findings regarding the amount of the debt on the following evidence.

The plaintiff offered the testimony of David Stem, an asset analyst with the Archon Group, and introduced through Stem a computer generated document reflecting the amount of the debt. The computer document showed a total outstanding balance as of March 13,1997, as follows: a principal balance of $1,911,694.17; interest owed of $436,819.47, with a per diem rate of $557.58; and late charges of $23,474.56. Stern testified that the computer generated loan history was prepared in the ordinary course of business, that it was the ordinary course of business to make such records and that it was made contemporaneously with the events described therein. Stern further testified, however, that he was not responsible for the development or input of the computer information, nor was he responsible for supervising the computer input or handling the accuracy of the information. Stern testified that the loan servicing department of the Archon Group is responsible for entering the data into the computer and generating the payment histoiy documents.

The defendants contend that the trial court improperly relied on this evidence to establish the amount of the debt because the evidence lacked proper foundation and was inadmissible hearsay. The trial court overruled this objection as going to the weight of the evidence and admitted the computer generated reconstructed payment history under the business record exception to the hearsay rule. Under the statutory exception, business records may be admitted into evidence if it is proven that (1) the record was made in the ordinary course of business, (2) it was the ordinary course of the business to make such records and (3) the record was made at the time of the transaction or event or shortly thereafter. It is not necessary for the witness through whom the business records are entered into evidence to have made the actual recordation or to have personal knowledge of the transaction. Rather, “entries in business records must be based either on the personal knowledge of the entrant or on the information of others with personal knowledge who are under a business duty to transmit such information to the entrant.” American Oil Co. v. Valenti, 179 Conn. 349, 358, 426 A.2d 305 (1979) (witness without detailed knowledge of computer generated reports could properly testily records made in ordinary course of business). In assessing the credentials of a witness whose testimony is the foundation for the admission of computer generated business records, our Supreme Court has held that “[w]hat is crucial is not the witness’ job description but rather his knowledgeability about the basic elements that afford reliability to computer printouts.” Id., 360.

It is not improper to admit into evidence an adjustment sheet and computer printout as evidence of the principal due on a note. Shadhali, Inc. v. Hintlian, 41 Conn. App. 225, 227, 675 A.2d 3, cert. denied, 237 Conn. 926, 677 A.2d 948 (1996). A trial court has discretion to determine if General Statutes § 52-180 is satisfied, and an appellate court should construe the statute liberally when reviewing an abuse of discretion claim. River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 794-95, 595 A.2d 839 (1991).

Stem testified as to all of the statutory requirements for the business record exception to the hearsay mle. Lie stated that the computer records admitted were generated in the ordinary course of business, that it was the ordinary course of the business of the Archon Group to make such records and that the records were made contemporaneously with the transaction. Although Stern did not have personal knowledge of the generation of the report, he testified that he was familiar with the procedures used to generate the report, that he had conducted an extensive audit of the report to verify the accuracy of the information and that he used such records on a daily basis in his job. Stem further testified that the beginning balance used to generate the report came from the sales agreement between Shawmut Bank Connecticut N.A. and the plaintiff when the note was assigned to the plaintiff, and was in turn provided to the Archon Group in connection with the loan services it provided to the plaintiff. The court reasonably could have concluded that Shawmut Bank Connecticut N.A. had a legitimate business duty to provide the information used to generate the payment history. The failure of the plaintiff to produce a witness who made the record or a witness who had personal knowledge of recorded payments or to show that such witnesses were unavailable may affect the weight of the evidence. Such failure does not, however, affect the admissibility of the payment history report. General Statutes § 52-180 (b). We conclude that the payment history report was properly admitted into evidence under the business record exception to the hearsay rule.

IV

The defendants finally claim that even if the trial court did have evidence before it sufficient to establish the amount of the debt, the court’s award of interest, late fees and attorney’s fees was not supported by the evidence or by applicable law.

A

The defendants claim that the note in this case does not support the trial court’s award of interest. The court applied the applicable interest rates set forth in the note and as indicated on the computer generated loan histoiy, and applied a 12 percent default interest rate as was required by the note. The court determined that the per diem interest charge to be applied was $637.73.

The note in this case has a variable interest rate that is tied to “the prime rate in effect at Shawmut Home Bank on the [annual] adjustment date.” Stem testified, however, that he had no knowledge as to whose prime rate was used after Shawmut Home Bank became Fleet Bank and was not certain if it was the prime rate of Fleet Bank. The computer records, however, which were admitted into evidence, do indicate the prime percentage rate that was applied. “When a variable interest rate is based on the rate of a failed institution, the trial court must determine whether the substitute rate is reasonable by examining the documents and testimony offered by the plaintiff.” Central Bank v. Colonial Romanelli Associates, 38 Conn. App. 575, 578, 662 A.2d 157 (1995); see also Federal Deposit Ins. Corp. v. Keating, 44 Conn. App. 556, 560, 690 A.2d 429 (1997). In the latter case, there was no evidence as to what interest rate a successor to a failed institution used in calculating the interest and if that rate was reasonable. In Central Bank, both the interest rate and its source were known, but there was no evidence that the rate was reasonable. Central Bank v. Colonial Romanelli Associates, supra, 578-79. Both cases required remands for the proper establishment of a prime rate.

The plaintiff argues that the law regarding an interest rate based on a failed institution does not apply here, where Shawmut Home Bank did not “fail” but merged with another bank. We conclude that this distinction is of no import. After the merger, or name change, the prime rate of Shawmut Home Bank no longer existed. Furthermore, even if the prime rate of the successor institution, Fleet Bank, is the proper rate to be applied, the trial court had no evidence before it that the rate of Fleet Bank was indeed the rate that was applied. In the present case, while the computer generated loan history admitted into evidence provided the trial court with evidence of the rate that was applied to the loan after Shawmut Home Bank merged with and eventually became Fleet Bank, there was no evidence offered regarding which institution’s prime rate was applied to compute the variable interest rate and no evidence as to the reasonableness of the rate that was used. Accordingly, the judgment of the trial court must be reversed on this issue and the case remanded to the trial court for a hearing to determine the proper prime rate to be applied to the loan after Shawmut Home Bank ceased to exist.

B

The defendants claim that the trial court improperly awarded late charges after the acceleration of the note. The trial court found that the plaintiff sent notice of default to P & G on May 16,1995, declaring acceleration of the note and demanding payment in full. Late charges of $1908.30 had accrued on the note as of May 16, 1995. The trial court, however, awarded the plaintiff late charges in the amount of $23,474.56, which included late charges that had accrued between May, 1995, and the date of trial. In Federal Deposit Ins. Corp. v. NapertBoyer Partnership, 40 Conn. App. 434, 443, 671 A.2d 1303 (1996), and again in Shadhali, Inc. v. Hintlian, supra, 41 Conn. App. 229-30, we held that a plaintiff may not recover late charges once a promissory note has been accelerated and demand for payment has been made. Given this precedent, and in light of the concession of both parties at oral argument that the trial court’s award of late charges should not have included late charges after the acceleration of the note, we conclude that the trial court improperly determined that the plaintiff was entitled to those late charges and order that the plaintiffs award of damages be modified to reflect the reduction of late charges by $21,566.26 to total $1908.30.

C

The defendants claim that the trial court improperly awarded attorney’s fees when there was no claim for attorney’s fees in the plaintiffs complaint and no evidence with respect to the amount of attorney’s fees incurred by the plaintiff presented at trial. The trial court awarded the plaintiff $35,000 in attorney’s fees based on the representation of plaintiffs counsel in its posttrial brief.

The note in this case expressly provided for the payment of attorney’s fees upon default. Further, the plaintiffs prayer for relief specifically requested “[s]uch other and further relief as this court deems just and equitable.” The defendants’ claim that the plaintiffs failure to make a specific demand for attorney’s fees in its prayer for relief is, therefore, to no avail. We agree, however, with the defendants that the plaintiff failed to present any evidence at trial to satisfy the “ ‘undisputed requirement that the reasonableness of attorney’s fees and costs must be proven by an appropriate evidentiary showing.’ ” Barco Auto Leasing Corp. v. House, 202 Conn. 106, 121, 520 A.2d 162 (1987); see also Family Financial Services, Inc. v. Spencer, 41 Conn. App. 754, 771, 677 A.2d 479 (1996). In Barco, our Supreme Court specifically held that the plaintiff, who addressed the issue of attorney’s fees only in its posttrial brief, and was given no opportunity to address the issue at trial was “denied the undisputed right to litigate fully the reasonableness of the attorney’s fees sought by the defendants’ counsel.” Barco Auto Leasing Corp. v. House, supra, 121. Likewise, on this record, we conclude that the defendants were not afforded an opportunity to litigate the reasonableness of the award of attorney’s fees, and therefore the award must be set aside.

The judgment is reversed only as to the awards of late charges, interest and attorney’s fees and the case is remanded with direction to award late charges in the amount of $1908.30, and for further proceedings to determine the proper prime rate to be applied to the loan after Shawmut Home Bank ceased to exist, to make any corrections in the judgment as to interest that might be necessitated by the finding of the proper prime rate and to determine the amount of reasonable attorney’s fees.

In this opinion the other judges concurred.

       The defendants in this case are Anthony H. Gallicchio, DanielR. Gallicchio, Bhupen N. Patel and P & G Enterprises Limited Partnership. The individual defendants are the partners of P & G Enterprises Limited Partnership.

       The discrepancies related to a variance between the rates of interest in the promissory note and the commitment letter. In a separate action, filed in July, 1994, before the institution of this action, the defendants in this case sued the plaintiff in this case for recovery of any money arising from overpayment of interest. P & G Enterprises Ltd. Partnership v. SKW Real Estate Ltd. Partnership, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV94-0539728S. That caséis stillpending. The claim that the interest was improperly calculated is raised by the defendants in this case in their firstspecialdefense,whichrefers to thependingsuitAsecondspecial defense that also refers to the prior case claims that the failure of the promissory note to adhere to the interest rate of the commitment letter is afraudulent inducement prohibiting recovery on the promissory note, and a third special defense alleges unclean hands. The trial court found for the plaintiff on all of the special defenses and expressly ruled that the first special defense was “without merit.” We need not discuss the second and third special defenses in this opinion because they have not been briefed, and any issues as to them are deemed abandoned. See State v. Tweedy, 219 Conn. 489, 510 n.l7, 594 A.2d 906 (1991); State v. Rodriguez, 44 Conn. App. 818, 823, 692 A.2d 846, cert. denied, 242 Conn. 902, 697 A.2d 363 (1997).

       An allonge is defined as “ [a] piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof.” Black’s Law Dictionary (6th Ed. 1990). The allonge in this case was presented as a plaintiffs exhibit stapled to the original note and making it payable to the plaintiff.

       The assignment of a promissoiy note evidencing a debt automatically assigns the mortgage deed that secures the debt. New Milford Savings Bank v. Jajer, 244 Conn. 251, 266, 708 A.2d 1378 (1998).

       The original note was in the possession of the Archon Group as servicer for the plaintiff and was provided to the plaintiffs counsel by other individuals employed by the Archon Group.

       The sticker on the allonge reads as follows:
      “P0066 — Control #2106

        P and G Enterprises, Limited
      6843299914/0000000026”

       In a pending case; see footnote 2; the defendant, P & G, as plaintiff in that case, alleges in its complaint that“[u]poninformationandbelief, the [plaintiff in this case] obtained title to said obligation [the note] on June 24, 1993, by assignment from Shawmut Bank Connecticut, N.A., which was the successor to Shawmut Home Bank.” The pending case is based on the premise that the plaintiff in this case is the holder in due course of the note.

       The trial court found this fact but did not conclude from it that the defendants had waived any right to assert that ownership was not in the plaintiff orthatthe defendants were equitably estopped to deny the ownership. Neither estoppel nor waiver, both of which are questions of fact, was argued to the trial court, and the trial court did not find either as an ultimate conclusion of fact.

       General Statutes § 42a-3-302 provides: “Holder in due course, (a) Subject to subsection (c) and section 42a-3-106 (d), ‘holder in due course’ means the holder of an instrument if:
      “(1) The instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and
      “(2) The holder took the instrument (i) for value, (ii) in good faith, (iii) without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series, (iv) without notice that the instrument contains an unauthorized signature or has been altered, (v) without notice of any claim to the instrument described in section 42a-3-306, and (vi) without notice that any party has a defense or claim in recoupment described in section 42a-3-305 (a).

        “(b) Notice of discharge of a party, other than discharge in an insolvency proceeding, is not notice of a defense under subsection (a), but discharge is effective against a person who became a holder in due course with notice of the discharge. Public filing or recording of a document does not of itself constitute notice of a defense, claim in recoupment or claim to the instrument.
      “(c) Except to the extent a transferor or predecessor in interest has rights as a holder in due course, a person does not acquire rights of a holder in due course of an instrument taken (i) by legal process or by purchase in an execution, bankruptcy, or creditor’s sale or similar proceeding, (ii) by purchase as part of a bulk transaction not in ordinary course of business of the transferor, or (iii) as the successor in interest to an estate or other organization.
      “(d) If, under section 42a-3-303 (a) (1), the promise of performance that is the consideration for an instrument has been partially performed, the holder may assert rights asaholderin due course oftheinstrumentonly to thefraction of the amount payable under the instrument equal to the value of the partial performance divided by the value of the promised performance.
      “(e) If (i) the person entitled to enforce an instrument has only a security interest in the instrument and (ii) the person obliged to pay the instrument has a defense, claim in recoupment or claim to the instrument that may be asserted against the person who granted the security interest, the person entitled to enforce the instrument may assert rights as a holder in due course only to an amount payable under the instrument which, at the time of enforcement of the instrument, does not exceed the amount of the unpaid obligation secured.
      “(f) To be effective, notice must be received at a time and in a manner that gives a reasonable opportunity to act on it.
      “(g) This section is subject to any law limiting status as a holder in due course in particular classes of transactions.”

       We are aware that this case predates the Uniform Commercial Code, but its rationale has not been changed by the code.

       The defendants’ special defenses were as follows: “FIRST SPECIAL DEFENSE: The plaintiff sought to wrongfully impose improper interest rate calculations in regard to the alleged debt, all of which is more particularly set forth in a certain case titled, P & G Enterprises Ltd. Partnership v. SKW Real Estate Ltd. Partnership, Docket No. CV-94-0539728S, all of which constitutes a breach of the contract between the parties.
      “SECOND SPECIAL DEFENSE: The plaintiff sought to wrongfully impose improper interest rate calculations in regard to the alleged debt, all of which is more particularly set forth in a certain case titled, P & G Enterprises Ltd. Partnership v. SKW Real Estate Ltd. Partnership, Docket No. CV-940539728S, all of the aforesaid was an inducement for the defendants to enter into said transaction with the plaintiffs predecessor in title, and the failure of the plaintiff and the plaintiffs predecessor to adhere to the terms of said interest rate by virtue of the document actually executed represents a fraudulent inducement prohibiting recovery on said note.
      “THIRD SPECIAL DEFENSE: The plaintiff is guilty of unclean hands.”

       The commitment letter provided the following terms with respect to the interest rate: “The loan shallbear interest atafixed rate of 10.00% for the first 5 years of a 10 year term. At the beginning of the 6th year (Adjustment Date) and every year thereafter, the rate will be fixed at prime plus 2.25% with a ceiling of 13.00% through the tenth (10th) year . . . .”
      The interest rate provision of the note provided as follows: “A. From the date hereof through June 9, 1992, the rate of interest payable on this note shall be fixed at 10.00% per annum. ... B. On June 10, 1992, and on June 10, every one (1) year thereafter (hereinafter referred to as ‘adjustment dates’) the rate of interest payable on this note shall increase or decrease to a rate equal to two and one-quarter percent (2.25%) above the prime rate in effect at SHAWMUT HOME BANK on the adjustment date. . . .
      “Notwithstanding anything contained hereinabove to the contrary: A. The rate of interest payable on this Note, in no event and at no time, shall be greater than thirteen percent (13%) nor less than ten percent (10%) per annum, and the maximum increase or decrease in the interest rate shall not be more than two (2%) percent over the rate of the prior year.”

       The commitment letter states: “The parties hereto agree that this commitment shall survive the Loan closing, and that each and every one of the obligations and undertakings of Borrower and Guarantors shall be continuing obligations and shall not cease and terminate until the entire Loan has been paid in full.”

       The business record exception to the hearsay rule is codified at General Statutes § 52-180, which provides in relevant part: “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility. ..."

       The defendants claimed at oral argument that a new trial, rather than a remand, would be necessary if there was a reversal as to any of the items of damages. In this case, we uphold the liability of the defendants to pay the note, and affirm the judgment of strict foreclosure and the finding as to the amount of the debt. This case does not come within the factual plane of those cases in which a new trial is necessitated because liability is inextricably intertwined with the issue of damages. A hearing as ordered here does not affect the judgment of strict foreclosure, the validity of the note or the amount of the debt, and a new trial is not warranted. See Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 462 A.2d 1043 (1983).