author: BEAR, J.

text:
    KAREN PARLATO v. DANIEL PARLATO
    (AC 33410)
    Bear, Espinosa and Mihalakos, Js.
    Argued December 5, 2011
    officially released April 17, 2012

      George G. Mowad II, with whom, on the brief, were Melissa A. Scozzafava and Jaclyn L. Parlato, for the appellant (defendant).

      Steven H. Levy, for the appellee (plaintiff).
   Opinion

BEAR, J.

The defendant, Daniel Parlato, appeals from the judgment of the trial court, finding him in contempt for failing to comply with a pendente lite order that he return to the marital estate money that he withdrew from the parties’joint home equity line of credit approximately four weeks before he was served with the dissolution complaint filed by the plaintiff, Karen Parlato. On appeal, the defendant claims that the court was without the authority to order him to return the money to the marital estate and that the court acted in abuse of its discretion when it found him in contempt for failing to follow an order that the court had no authority to issue. We affirm the judgment of the trial court.

The following facts are relevant to the defendant’s appeal. On January 3, 2011, the defendant withdrew $250,000 from the parties’ joint home equity line of credit without the plaintiffs knowledge or consent. On January 31,2011, the plaintiff served the defendant with a complaint seeking a dissolution of the parties’ marriage; the return date on the complaint was February 15, 2011. On March 1, 2011, the plaintiff filed a motion for order pendente lite, in which she asked the court to order the defendant to return to the marital estate the $250,000 he had withdrawn from the line of credit. On March 21, 2011, the court, after a hearing, ordered the defendant to retrun the $250,000 on or before April 4, 2011. After the court learned, on April 4, 2011, that the defendant had not returned the money, it found the defendant in contempt and ordered him to provide a $125,000 cash bond by April 18, 2011, or face incarceration. On April 18, 2011, the court ordered the defendant to be incarcerated for failing to provide the bond; the purge amount was set as $125,000, and a review date was set for April 25, 2011. When the defendant had failed to pay the purge amount on April 25, 2011, the court set the next review date as May 2, 2011. On April 29, 2011, the defendant filed the present appeal. Additional facts will be set forth as necessary.

On appeal, the defendant claims that the court abused its discretion in finding him in contempt. He argues that the finding of contempt was based on the violation of an order that the court was without authority to issue, namely, the order that he repay the $250,000 that he withdrew from the parties’ line of credit before the action for dissolution was commenced. We are not persuaded.

“A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [party] were in contempt of a court order. To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt. ... An order of the court must be obeyed until it has been modified or successfully challenged.” (Citation omitted; internal quotation marks omitted.) Baker v. Baker, 95 Conn. App. 826, 830-31, 898 A.2d 253 (2006).

“The paramount role of a court when considering domestic relations cases is one of a court of equity. The court’s equity powers are essential to its ability to fashion the appropriate relief in domestic relations cases. The power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties’ dispute .... These powers, although not expressly given to the court by statute, have been held to be inherent powers of the trial court .... LaBow v. LaBow, 13 Conn. App. 330, 351, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); see also Darak v. Darak, 210 Conn. 462, 478, 556 A.2d 145 (1989).” (Internal quotation marks omitted.) Febbroriello v. Febbroriello, 21 Conn. App. 200, 208, 572 A.2d 1032 (1990).

Although the defendant claims that the court was without authority to order him to return funds that were taken before the action for dissolution was initiated on January 31, 2011, by service on him and before any automatic orders had gone into effect, we conclude, on the facts of this case, that the court had the authority to issue such an order. We further conclude, therefore, that because the defendant failed to comply with this order, the court’s finding of contempt was not an abuse of discretion.

. The record reveals the following additional relevant facts. On March 11, 2011, the plaintiff filed a motion for order, requesting that the court order the defendant to repay the $250,000 that he had withdrawn from the parties’ line of credit. The defendant did not file an objection. The court set the matter down for a hearing on March 21, 2011. On that date, the plaintiffs counsel explained that the defendant withdrew the money shortly before the dissolution action had commenced and that this was a “depletion of assets issue.” Both the plaintiff and the defendant testified. The defendant admitted that he withdrew the money, but claimed that it was to repay an eleven year old debt to his children for losses he had suffered in some investments that were held in his name for their benefit. He stated that he gave $230,000 of the money to his oldest daughter, Michelle Parlato, who was experiencing financial difficulties as she was going through a divorce, and that $20,000 was used to pay his and the plaintiffs household expenses. The defendant also testified that he took the $250,000 and put $100,000 into his daughter’s account and $150,000 into his checking account because he “needed to see how much she really needed at that point in time because [he] didn’t want to give her a whole $230,000.” The defendant did not explain at the March 21, 2011 hearing how or when he transferred the additional money to his daughter, nor did he explain how giving his daughter this money allegedly to help with her financial difficulties during her divorce equated to paying off a debt to his children.

Following the defendant’s testimony, the court clarified with each counsel that there was no claim that this was in violation of the automatic orders of the court. Counsel agreed. The plaintiffs counsel asserted that this was a dissipation of assets issue and that the court should exercise its equitable powers to remedy the dissipation. The defendant’s attorney argued that this issue should be taken up and considered at the time of the final dissolution in accordance with General Statutes § 46b-81. He also argued that the plaintiff did not bring a claim for fraudulent conveyance against the daughter and that she, not the defendant, was in possession of the money. The court found that the defendant was not credible and that the defendant’s assertion that he gave the money to his daughter to satisfy an eleven year old debt was not to be believed. The court ordered the defendant to return the money within two weeks or be held in contempt.

The court next held a hearing on April 4, 2011, at which it learned that the defendant had not repaid the money. The defendant’s counsel told the court that the defendant’s daughter refused to return the money to her father. During that hearing, the defendant testified again regarding the $230,000 that he alleged he had given to his daughter. He stated that he deposited $100,000 into her account and then made an online transfer of the other $130,000. He claimed that he no longer had access to the money and that his daughter refused to return it. The plaintiffs attorney then called Michelle Parlato, who had been subpoenaed, to the witness stand.

Michelle Parlato testified that she had no knowledge of the bank transactions that allegedly were made by her father but that “[t]he bank account that the funds got transferred into . . . was a joint account for [her]self and [her] father.” She also testified that she first learned of the money sometime in January when she received it from her father. When questioned by the plaintiffs attorney as to whether she included that money on her February 17, 2011 financial affidavit in her dissolution action, Michelle Parlato stated that she did not include it because she did not know about it at that time. After further questioning, Michelle Parlato relayed the following events: Sometime in January, her father brought her a box as a gift and told her not to open it until March 15, 2011, the anniversary of her sister’s death; on February 18,2011, the day after signing her financial affidavit, her father told her it was okay to open the box; and the box contained $230,000 in cash, which she did not list on her financial affidavit on February 17, 2011, because she did not know what was in the box. She also stated, when asked where the cash was, that it was in her possession, at her house.

The defendant testified a second time at the April 4, 2011 hearing. During his second testimony, he stated that he withdrew cash from his accounts in the second or third week of January, put it in a box and gave it to his daughter to be opened on the anniversary of her sister’s death. When asked to explain whether this was a repayment of a debt to his children or a gift, as his daughter had stated, the defendant said it was a matter of semantics.

During argument, the defendant’s counsel argued that this matter should be considered at the time of final dissolution, that his client did not have the funds any longer and that the court had no jurisdiction to order Michelle Parlato to return the money. The court very clearly found that the defendant and Michelle Parlato were not credible, found the defendant in contempt and ordered that he post a $125,000 bond on April 18, 2011, or face incarceration. On April 18, 2011, the court ordered the defendant incarcerated.

On April 25, 2011, the court held another hearing to review the defendant’s case. The defendant still had not posted bond. After argument by counsel, the court stated that it did not believe that the defendant had given his daughter $230,000 to pay off a debt. The court also stated that it wanted to see $125,000 put back into the marital estate and that the defendant should turn that amount over to the plaintiffs attorney to be held in trust until the final dissolution.

In a May 23, 2011 hearing, the court explained that the issue regarding the defendant’s contempt was “where this money went and what happened to the money . . . .” The court stated that it had made a finding and that it was not going to revisit that finding— “it was not a payment of a debt and it wasn’t a gift, neither one.” The defendant’s actions were, in the words of the court, “an attempt to hide moneys — hide money from the marital estate.”

It is quite clear from our review of the testimony and other evidence in this case that the court did not believe the testimony of the defendant or Michelle Parlato. The court found that the defendant had neither given nor repaid the money to Michelle Parlato. Rather, the court concluded, on the basis of the testimony presented, that the defendant was attempting to hide marital assets, i.e., to place them beyond the reach of the plaintiff and the court. The court reasonably could have found that the defendant, despite his testimony and that of Michelle Parlato, had access to the funds allegedly transferred to Michelle Parlato. Contrary to the assumption by both parties on appeal, the court did not find that the defendant had dissipated the funds he unilaterally took from the parties’ joint home equity line of credit; rather, it found that he was attempting to conceal and protect this asset by placing it allegedly under the control of his daughter. Although the defendant’s attempt at concealment and protection began before the automatic orders took effect, it continued after the orders were in place and, therefore, was a violation of those orders. Practice Book (2011) § 25-5 (a) provides in relevant part: “The following automatic orders shall apply to both parties, with service of the automatic orders to be made with service of process of a complaint for dissolution of marriage ... (1) Neither party shall . . . conceal . . . without the consent of the other party in writing, or an order of a judicial authority, any property, individually or jointly held by the parties

On the basis of the findings made by the trial court, which are not contested on appeal, we conclude that the court reasonably determined that the defendant and his daughter were engaged in a scheme to conceal and protect marital assets that had been taken by the defendant for no valid reason or purpose, and, whether viewed from the perspective of the court’s inherent powers as a court of equity or its statutory authority to enforce the automatic orders, it had the power to order the defendant to return to the marital estate the $250,000 that he had withdrawn from the parties’ joint home equity line of credit and to hold him in contempt for his wilful failure to do so.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff argues, in part, that the defendant’s appeal should be dismissed because he failed to appeal from the April 4,2011 finding of contempt, pursuant to Practice Book § 63-1 (a), within twenty days. The twenty day time limit set forth in Practice Book § 63-1 (a), however, is not jurisdictional, and where the appellee has failed to file a motion to dismiss the appeal within the ten day time limit set forth in Practice Book § 66-8, we have deemed any claim of untimeliness to be waived. See Rubenstein v. Rubenstein, 107 Conn. App. 488, 499, 945 A.2d 1043 (failure to file motion to dismiss appeal as untimely constitutes waiver of right to dismissal on that nonjurisdictional ground), cert. denied, 289 Conn. 948, 960 A.2d 1037 (2008). The plaintiff, having failed to file a motion to dismiss the defendant’s appeal, has waived her right to challenge its timeliness.

       Practice Book (2011) § 25-5 provides in relevant part: “(a) The following automatic orders shall apply to both parties, with service of the automatic orders to be made with service of process of a complaint for dissolution of marriage or civil union, legal separation, or annulment, or of an application for custody or visitation. An automatic order shall not apply if there is a prior, contradictory order of a judicial authority. The automatic orders shall be effective with regard to the plaintiff or the applicant upon the signing of the complaint or the application and with regard to the defendant or the respondent upon service and shall remain in place during the pendency of the action, unless terminated, modified, or amended by further order of a judicial authority upon motion of either of the parties:
      “(1) Neither party shall sell, transfer, encumber (except for the filing of a lis pendens), conceal, assign, remove, or in any way dispose of, without the consent of the other party in writing, or an order of a judicial authority, any property, individually or jointly held by the parties, except in the usual course of business or for customary and usual household expenses or for reasonable attorney’s fees in connection with this action. ...”

       Even if the defendant placed the funds he unilaterally took from the parties’ joint home equity line of credit in the possession of his daughter and she thereafter refused to return them to him, he is the author of his own destiny and should reasonably have understood that he would bear the consequences thereof; see Pappas v. Pappas, 164 Conn. 242, 320 A.2d 809 (1973); especially because of his unwillingness or inability to provide any credible statement of or explanation for his actions. See Scher v. National Assn. of Securities Dealers, 386 F. Sup. 2d 402, 403-404 (S.D.N.Y. 2005), aff'd, 218 Fed. Appx. 46 (2d Cir. 2007).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BETWEEN ROUNDS FRANCHISE CORPORATION ET AL. v. EDGR REAL ESTATE, LLC
    (AC 33461)
    Alvord, Bear and Espinosa, Js.
    Submitted on briefs February 3
    officially released April 17, 2012

      William C. Charamut filed a brief for the appellant (defendant).

      David A. Haught filed a brief for the appellees (plaintiffs).
   Opinion

PER CURIAM.

The defendant, EDGR Real Estate, LLC, appeals from the judgment of the trial court denying its motion to vacate an arbitration award and granting the application of the plaintiffs, Between Rounds Franchise Corporation and Between Rounds Rocky Hill, LLC, to confirm that award. On appeal, the defendant claims that the court improperly denied its motion to vacate and granted the plaintiffs’ application to confirm because the arbitration panel (panel) was guilty of misconduct under General Statutes § 52-418 (a) (3), the defendant was denied a full and fair hearing, and the defendant was substantially prejudiced by the denial of its request to postpone the hearing before the panel. We affirm the judgment of the court.

The plaintiffs and the defendant became involved in a landlord-tenant dispute. The plaintiffs applied to the court to compel arbitration pursuant to a clause in the parties’ lease. On January 25, 2010, the court issued an order compelling arbitration, and the matter was scheduled to be heard before the panel on November 9, 2010. The defendant’s counsel withdrew his appearance onNovember 1,2010, with permission of the court. The defendant requested postponement of the hearing until it could obtain new counsel and the required funds to pay its share of the cost of the panel. Thus, the panel postponed the hearing until December 1, 2010. One day before the rescheduled hearing, the defendant requested another postponement of the proceedings. The plaintiffs objected, and the panel agreed to hear arguments regarding the postponement the following day. The defendant failed to appear before the panel. The hearing therefore proceeded as rescheduled and, on December 16, 2010, the panel issued its decision in favor of the plaintiffs.

After examining the record and the briefs, we are persuaded that the judgment should be affirmed. The issues raised by the defendant were resolved properly in the thoughtful and concise decision of the court. Between Rounds Franchise Corp. v. EDGR Real Estate, LLC, 52 Conn. Sup. 295, 40 A.3d 833 (2011). Because that decision also fully addresses the arguments raised in the present appeal, we adopt the court’s well reasoned decision as a statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat that discussion here. See Tzovolos v. Wiseman, 300 Conn. 247, 253-54, 12 A.3d 563 (2011).

The judgment is affirmed.


author: Per Curiam.

text:
    STATE OF CONNECTICUT v. MANUEL A. SANDOVAL
    (AC 32984)
    Lavine, Alvord and Espinosa, Js.
    Argued February 14
    officially released March 6, 2012
   Per Curiam.

The judgment is affirmed.


text:
    JAMAL JENKINS v. COMMISSIONER OF CORRECTION
    (AC 32206)
    Gruendel, Lavine and Bear, Js.
    Argued February 9
    officially released March 6, 2012
   Per Curiam.

The appeal is dismissed.


text:
    JAMES A. HARNAGE ET AL. v. BRIAN K. MURPHY ET AL.
    (AC 33617)
    Gruendel, Robinson and Borden, Js.
    Argued February 16
    officially released March 6, 2012
   Per Curiam.

The judgment is affirmed.


text:
    WINSTON WELCOME v. ANDREW LEE ET AL.
    (AC 33562)
    Bear, Espinosa and Pellegrino, Js.
    Argued February 7
    officially released March 13, 2012
   Per Curiam.

The judgment is affirmed.


text:
    TAYLOR, BEAN AND WHITAKER MORTGAGE CORPORATION v. DAHILL ANTHONY DONOFRIO ET AL.
    (AC 33599)
    Alvord, Sheldon and Peters, Js.
    Argued March 6
    officially released March 20, 2012
   Per Curiam.

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


text:
    INDYMAC FEDERAL BANK, FSB v. BARBARA TRUDEAU
    (AC 33205)
    Robinson, Alvord and Flynn, Js.
    Argued March 6
    officially released March 20, 2012
   Per Curiam.

The judgment is affirmed.


text:
    IN RE ROSALENA C.
    (AC 33866)
    Alvord, Sheldon and Peters, Js.
    Argued March 5
    officially released March 9, 2012

       March 9,2012, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Per Curiam.

The judgment is affirmed.


text:
    WAYNE J. JONES v. COMMISSIONER OF CORRECTION
    (AC 33268)
    DiPentima, C. J., and Gruendel and Sheldon, Js.
    Argued March 7
    officially released March 27, 2012
   Per Curiam.

The appeal is dismissed.


text:
    CHANNY N. KHUTH v. COMMISSIONER OF CORRECTION
    (AC 33194)
    Lavine, Beach and Dupont, Js.
    Argued March 8
    officially released March 27, 2012
   Per Curiam.

The appeal is dismissed.


text:
    JEFFREY PIERCE v. COMMISSIONER OF CORRECTION
    (AC 32966)
    DiPentima, C. J., and Sheldon and Pellegrino, Js.
    Argued March 8
    officially released March 27, 2012
   Per Curiam.

The appeal is dismissed.


text:
    JOSEPH ANCONA v. COMMISSIONER OF CORRECTION
    (AC 33022)
    Lavine, Alvord and Schaller, Js.
    Argued March 13
    officially released April 3, 2012
   Per Curiam.

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. OSCAR L. ANDERSON
    (AC 33622)
    Lavine, Alvord and Espinosa, Js.
    Argued March 19
    officially released April 3, 2012
   Per Curiam.

The judgment is affirmed.


text:
    GREEN ACRES ASSOCIATES, LLC v. MILAN CAIS
    (AC 33514)
    Gruendel, Robinson and Peters, Js.
    Argued March 14
    officially released April 3, 2012
   Per Curiam.

The judgment is affirmed.


text:
    MALEEK JONES v. COMMISSIONER OF CORRECTION
    (AC 31519)
    Gruendel, Robinson and Peters, Js.
    Argued March 14
    officially released April 3, 2012
   Per Curiam.

The judgment is affirmed.


text:
    KIMBERLY ALBRIGHT-LAZZARI ET AL. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 33446)
    Beach, Alvord and Espinosa, Js.
    Argued March 15
    officially released April 3, 2012
   Per Curiam.

The judgment is affirmed.


text:
    COREY TURNER v. STATE OF CONNECTICUT
    (AC 34012)
    Lavine, Alvord and Bear, Js.
    Argued March 20
    officially released April 10, 2012
   Per Curiam.

The judgment is affirmed.


text:
    HATHEWAY FARMS ASSOCIATION, INC., ET AL. v. HATHEWAY FARMS OF SUFFIELD, LLC, ET AL.
    (AC 33131)
    Beach, Bear and Bishop, Js.

      Argued February 6
    officially released April 24, 2012

      Michael D. O’Connell, with whom, on the brief, were Robert B. Flynn and Steven J. Zakrzewski, for the appellant (named plaintiff).

      Mark S. Shipman, with whom was Sarah Black Lingenheld, for the appellee (defendant Alamin Family Partnership).

      Gerald L. Garlick, with whom was J. Thomas Johnson, for the appellee (plaintiff Rockville Bank).
   Opinion

BEAR, J.

The plaintiff Hatheway Farms Association, Inc. (Association), appeals from the judgment of the trial court, rendered in favor of the plaintiff Rockville Bank and the defendant Alamin Family Partnership (Alamin), holding that the defendants are not responsible for the costs of maintenance and capital improvements to the shared portion of Gideon Way, a private road. On appeal, the Association claims that the trial court erred in holding that (1) the plain language of the property deeds excused the defendants from any obligation to contribute to the expenses for the upkeep of the shared portion of Gideon Way and (2) only upon satisfaction of a condition precedent would the obligation of Rockville Bank and Alamin to contribute to the expenses of the shared portion of Gideon Way have been triggered. We affirm the judgment of the trial court.

The following facts inform our analysis. In 1989, Laureno Enterprises owned a 14.6 acre parcel of land on the south side of Mountain Road in Suffield, on which it planned to develop a commercial office park. In March, 1990, Suffield approved the subdivision plan filed by Laureno Enterprises. Laureno Enterprises sold the first subdivided parcel (bank parcel) of the planned commercial office park to New England Bank & Trust Company (New England Bank) via a warranty deed (bank deed). The bank deed provides in relevant part:

“1. Grantor [Laureno Enterprises] contemplates the creation of an office park development on other premises owned by [Laureno Enterprises] and situated westerly, southerly and easterly of the premises herein conveyed .... [Laureno Enterprises] expects to create a ‘[pjlanned [cjommunity’ as the same is defined and described under the Common Interest Ownership Act [General Statutes § 47-200 et seq.]. Provided Grantee [New England Bank] has reviewed and approved the [declaration of the [planned [c]ommu-nity including the method of allocation of the [c]ommon [ejxpenses, which approval shall not be unreasonably withheld, [New England Bank] agrees to join with [Laureno Enterprises] in submitting the premises herein conveyed, together with the other premises owned by [Laureno Enterprises], to the provision of such [declaration, thereby causing the premises herein conveyed to become a [u]nit in the [p]lanned [cjommunity. . . .
“4. [New England Bank] shall be responsible for the cleaning, the removal of ice and snow, the maintenance and repair of the [p]arking [a]rea and the access road hereinabove described until such time as [New England Bank] no longer has the exclusive right to use said premises. . . .”

In 1996, Laureno Enterprises conveyed a second subdivided parcel (Finlay parcel) to Finlay Properties, Inc. (Finlay), by warranty deed (Finlay deed). The Finlay deed refers to the bank parcel as “existing lot one,” and it describes the Finlay parcel in reference to a resubdivision plan dated March, 1996. The resubdivision plan shows the New England Bank parking area and identifies the shared portion of Gideon Way as the “existing] driveway.” The Finlay deed includes a “right of way in common with others for all purposes for which public highways are ordinarily used . . . over [pjroposed [a]ccess [e]asement in [flavor of [l]ot 2 and [e]xist[ing] [d]riveway as shown on [the March, 1996 resubdivision] map.” (Internal quotation marks omitted.) The Finlay deed also provides a covenant by Finlay “to be responsible for the cleaning, the removal of snow and ice, and the maintenance and repair of [the] [proposed [a]ccess [e]asement in [flavor of [l]ot 2 as shown on [the March, 1996 resubdivision] map.” (Internal quotation marks omitted.) The deed further provides: “[Laureno Enterprises] . . . anticipates the eventual development of [premises situated southerly and southwesterly of the Finlay parcel] and as a part of such development, may desire to create a ‘[p]lanned [c]om-munity’ as the same [is] defined and described under the Common Interest Ownership Act of the [s]tate of Connecticut. In such event it would be anticipated that the [Finlay] premises . . . would become a [u]nit in the [p]lanned [community. Provided [Finlay] has reviewed and approved the [declaration of the [planned [Community, including the method of allocation of common expenses, which approval shall not be unreasonably withheld, [Finlay] agrees to join with [Laureno Enterprises] in submitting the premises herein conveyed, together with other premises owned by [Laureno Enterprises] or previously conveyed by [Laureno Enterprises], to the provision of such [declaration thereby causing the premises herein conveyed to become a [u]nit in the [planned [c]ommunity.” In 1997, Finlay conveyed this parcel to Alamin (Alamin parcel) by means of a warranty deed (Alamin deed).

Subsequently, New England Bank merged with Webster Bank, and, on March 27, 2001, Webster Bank conveyed the bank parcel to Rockville Bank by quitclaim deed.

On December 21, 2001, Laureno Enterprises sold the remainder of its Mountain Road property to Briarwood Homes, Inc., by warranty deed. This property includes the land on which Gideon Way is located. In July, 2003, Briarwood Homes, Inc., conveyed its interest in this property to Hatheway Farms of Suffield, LLC, by quitclaim deed; and Hatheway Farms of Suffield, LLC, developed Hatheway Farms as a residential common interest community pursuant to a July 31, 2003 declaration that also transferred the property to the Association.

The residents of and visitors to Hatheway Farms access the homes in this common interest community by a public highway, Mountain Road, which provides direct access to Gideon Way and to Hatheway Drive, a private cul de sac. Both Rockville Bank and Alamin own access easements over Gideon Way.

In their amended complaint, the Association and Rockville Bank sought, in relevant part, a declaration as to whether Rockville Bank or Alamin had an obligation to contribute to the maintenance and repair costs of that portion of Gideon Way that runs from Mountain Road to the easternmost curb of Hatheway Drive (the shared roadway). Alamin acknowledges that, pursuant to the covenant set forth in its warranty deed, it solely is responsible to repair and maintain the portion of Gideon Way that extends past the easternmost curb of Hatheway Drive. Accordingly, it is the maintenance and repair of the shared roadway that is at issue in this case. After the parties agreed to a bifurcated trial, this issue was considered on the basis of the parties’ stipulation of facts and exhibits, and the court determined that Rockville Bank and Alamin have no obligation to contribute to the costs of maintaining and repairing the shared roadway. This appeal followed.

Initially, we set forth our standard of review. When the decision of the trial court is based on stipulated facts and exhibits, our review of the decision is plenary. See Doucette v. Pomes, 247 Conn. 442, 453, 724 A.2d 481 (1999); Ace Equipment Sales, Inc. v. H.O. Penn Machinery Co., 88 Conn. App. 687, 690, 871 A.2d 402, cert. denied, 274 Conn. 909, 876 A.2d 1200 (2005). We must determine whether the court’s conclusions of law are legally and logically correct and axe supported by the stipulated facts and exhibits. See Doucette v. Pomes, supra, 453; Ace Equipment Sales, Inc. v. H.O. Penn Machinery Co., supra, 690. Additionally, when we construe an easement created by deed, “[w]e look to the intent [of the parties] as expressed in the deed, considering all of its relevant provisions and reading it in the light of the surrounding circumstances. . . . We give the language of the easement its ordinary import when nothing in the situation or surrounding circumstances indicates a contrary intent. . . . Although in most contexts the issue of intent is a factual question over which our scope of review is limited, the construction of a deed, considered in the light of all the surrounding circumstances, presents a question of law over which we exercise plenary review.” (Citations omitted.) Zhang v. Omnipoint Communications Enterprises, Inc., 272 Conn. 627, 634, 866 A.2d 588 (2005). With these principles in mind, we turn to the Association’s claims.

On appeal, the Association claims that the court erred in ruling, pursuant to the clear language of the deeds, that neither Rockville Bank nor Alamin has any obligation to contribute to the costs of maintaining and repairing the shared roadway. The Association argues, citing to Beneduci v. Valadares, 73 Conn. App. 795, 812 A.2d 41 (2002), that our case law clearly supports the notion that Rockville Bank and Alamin, as beneficiaries of the easement over the shared roadway, both have a duty to contribute to the costs associated with that roadway. The Association also argues that the Alamin deed and the bank deed are silent as to the obligation of maintenance and repair in the present situation, and, therefore, the common-law obligation of joint beneficiaries of an easement is applicable and requires that all beneficiaries contribute to the costs of maintaining and repairing the shared roadway. We disagree.

The parties agree on the rule of law that “[ujnless the terms of a servitude . . . provide otherwise . . . [tjhe beneficiary of an easement . . . has a duty to the holder of the servient estate to repair and maintain the portions of the servient estate . . . that are under the beneficiary’s control, to the extent necessary to (a) prevent unreasonable interference with the enjoyment of the servient estate . . . .” (Internal quotation marks omitted.) Schwartz v. Murphy, 74 Conn. App. 286, 297 n.7, 812 A.2d 87 (2002), cert. denied, 263 Conn. 908, 819 A.2d 841 (2003), cert. denied, 546 U.S. 820, 126 S. Ct. 352, 163 L. Ed. 2d 61 (2005), quoting 1 Restatement (Third), Property, Servitudes § 4.13 (1), p. 631 (2000); Powers v. Grenier Construction, Inc., 10 Conn. App. 556, 560, 524 A.2d 667 (1987) (“[tjhe duty of maintaining an easement so that it can perform its intended function rests on the owner of the easement absent any contrary agreement”). However, “absent language in a deed to the contrary, [jJoint use by the servient owner and the servitude beneficiary ... of the servient estate for the purpose authorized by the easement . . . gives rise to an obligation to contribute jointly to the costs reasonably incurred for repair and maintenance of the portion of the servient estate . . . used in common.” (Internal quotation marks omitted.) Beneduci v. Valadares, supra, 73 Conn. App. 808, quoting in part 1 Restatement (Third), supra, § 4.13 (3), pp. 631-32.

The parties disagree, however, on whether the language in the deeds negates the common-law duty of Rockville Bank and Alamin to contribute to the costs of maintaining and repairing the shared roadway. The Association argues that the court erred in concluding that the plain language of the deeds relieved the defendants of this obligation. It argues that “[tjhere is no language in either deed that is contrary to the proposition that the parties should share the [shared roadway] [e]xpenses.” We disagree.

I

THE BANK DEED

The relevant portions of the bank deed provide: “1. . . . [Laureno Enterprises] expects to create a ‘[planned [c]ommunity’ .... Provided [New England Bank] has reviewed and approved the [declaration of the [p]lanned [c]ommunity including the method of allocation of the [c]ommon [e]xpenses, which approval shall not be unreasonably withheld, [New England Bank] agrees to join with [Laureno Enterprises] in submitting the premises herein conveyed, together with the other premises owned by [Laureno Enterprises], to the provisions of such [declaration, thereby causing the premises herein conveyed to become a [u]nit in the [planned [c]ommunity. ... 4. [Rockville Bank] shall be responsible for the cleaning, the removal of ice and snow, the maintenance and repair ofthe [p]arking [a]rea and the access road herein-above described until such time as [Rockville Bank] no longer has the exclusive right to use said premises.”

The Association argues that “[t]he bank deed assigned sole responsibility for maintenance of the easement to the bank, but only for as long as the bank was the exclusive user. . . . The deed . . . does not contain any language that governs responsibility for maintenance when the bank is no longer the exclusive user of [the shared roadway].” It further argues that, because the deed is silent as to the responsibility for maintenance now that Rockville Bank no longer is the exclusive user, Rockville Bank, necessarily, by operation of the common law, is jointly obligated to contribute to the maintenance costs now that others are using the shared roadway. We disagree.

After our review of the bank deed, we agree with the trial court that paragraphs one and four specifically address the condition that must occur before Rockville Bank becomes responsible for costs in common with other users, namely, it must become a member unit in a commercial planned community, and all parties agree that Rockville Bank is not a member unit of a commercial planned community.

“A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. . . . Whether the performance of a certain act by a party to a contract is a condition precedent to the duty of the other party to act depends on the intent of the parties as expressed in the contract and read in light of the circumstances surrounding the execution of the instrument. ” (Citation omitted; internal quotation marks omitted.) Pullman, Comley, Bradley & Reeves v. Tuck-it-Away, Bridgeport, Inc., 28 Conn. App. 460, 467-68, 611 A.2d 435, cert. denied, 223 Conn. 926, 614 A.2d 825 (1992). Whether a contract or a deed contains an unfulfilled condition precedent, based on the terms of the agreement and the parties’ intent, can be a mixed question of fact and law or simply a question of law. See K. A. Thompson Electric Co. v. Wesco, Inc., 27 Conn. App. 120, 126 n.2, 604 A.2d 828 (1992) (“In this case, whether the contract contained an unfulfilled precedent, based on the terms of the agreement and the parties’ intent, was a mixed question of fact and law. In D'Addario v. D'Addario, 26 Conn. App. 795, 603 A.2d 1199 (1992), whether a deed contained a condition precedent was a question of law.”). Here, we conclude that the question of the existence of a condition precedent is one of law.

Paragraph one of the bank deed states that Laureno Enterprises contemplates the creation of a commercial planned community, that Rockville Bank agrees to a reasonable review and approval of the declaration of the planned community and the method of allocating the common expenses, that the bank parcel will become a unit in the planned community and that Rockville Bank agrees to join with Laureno Enterprises in submitting the bank parcel and the other parcels to the provisions of the declaration. Paragraph four states that Rockville Bank solely was responsible for the costs associated with the repair and maintenance of the shared roadway for as long as Rockville Bank was the exclusive user of the shared roadway.

A key portion of paragraphs one and four is Rockville Bank’s ability to review and approve the declaration and the method of allocating the common expenses of the commercial planned community. Presently, Rock-ville Bank, a commercial enteiprise, is not a member of the Association, a residential planned community; therefore, it did not review and approve the declaration of the residential planned community, nor did it review and approve the method of allocating common expenses among the members of that community. Pursuant to the plain language of the deed, however, before Rockville Bank becomes responsible for a portion of the common expenses, a commercial planned community must be created, of which Rockville Bank has the responsibility to become a unit member after reviewing and approving the declaration and the method of allocating common expenses among the unit members of that commercial planned community. Under the present state of affairs, the Association seeks to hold Rockville Bank responsible for a share of the common expenses without Rockville Bank having had the benefit of being a unit member in the community with the right to review and approve the declaration and the method of allocating the expenses of that community. We agree with the trial court .that this is not what was contemplated by the bank deed.

II

THE ALAMIN DEED

The relevant portions of the Alamin deed provide that (1) Alamin has a “right of way in common with others for all purposes for which public highways are ordinarily used . . . over [proposed [a]ccess [e]asement in [flavor of [l]ot 2 and [e]xist[ing] [d]riveway [i.e., the shared roadway] as shown on [the March, 1996 resubdivision] map” (2) “[Alamin] . . . agrees to be responsible for the cleaning, the removal of snow and ice, and the maintenance and repair of those premises shown as ‘[proposed [a]ccess [e]asement in [flavor of [l]ot 2’ as shown on the [March, 1996 resubdivision] map” and (3) “Laureno Enterprises . . . anticipates the eventual development of [premises situated southerly and southwesterly of the Alamin property] and [that it] . . . may desire to create a ‘[p]lanned [c]om-munity’ .... In such event it would be anticipated that the [Alamin] premises . . . would become a [u]nit in the [planned [community. Provided [Alamin] has reviewed and approved the [declaration of the [planned [c]ommunity, including the method of allocation of common expenses, which approval shall not be unreasonably withheld, [Alamin] agrees to join with Laureno Enterprises in submitting the premises herein conveyed, together with other premises owned by Laureno Enterprises or previously conveyed by Laureno Enterprises, to the provision of such [declaration thereby causing the premises herein conveyed to become a [u]nit in the [planned [c]ommunity.”

The Association argues that the “Alamin [d]eed does not contain any language governing maintenance and expenses for [the shared roadway] used by both [Rock-ville] Bank and Alamin .... The rule requires contribution to expenses unless contrary language appears in the [d]eed. In other words, it requires language in the [d]eed whereby the grantor expressly waived its right to seek contribution from the easement holder. No such language appears in the Alamin [d]eed. Thus, Alamin, like [Rockville] Bank, is responsible for a portion of the maintenance expenses.” (Emphasis in original.) We are not persuaded.

We agree that pursuant to the clear language of the deed, Alamin is responsible for the maintenance and repair of the access easement shown on the 1996 resub-division map. This access easement, as stipulated by the parties, concerns only the area of Gideon Way that extends past the easternmost curb of Hatheway Drive. As with the bank deed, the Association argues that the Alamin deed is silent as to Alamin’s obligation to share the cost of maintaining and repairing the shared roadway. We conclude, however, that the trial court correctly determined that before Alamin becomes responsible for costs associated with the shared roadway, it must become a member unit in a planned community. As with Rockville Bank, all parties agree that Alamin has not become a member unit of a planned community.

The Alamin deed states that Alamin solely is responsible for the costs associated with the upkeep of the area of Gideon Way that extends past the easternmost curb of Hatheway Drive. The deed also states, however, that Laureno Enterprises anticipates the creation of a planned community, that subject to Alamin’s review and approval of the declaration of the planned community and the method of allocating the common expenses, Alamin will become a unit in the planned community and that it will join with Laureno Enterprises in submitting the Alamin parcel and the other parcels to the provisions of the declaration.

Similar to our analysis of the bank deed, we conclude that of key importance is Alamin’s ability to review and approve the declaration and the method of allocating the common expenses of the planned community before becoming responsible for a share of the common expenses. See Pullman, Comley, Bradley & Reeves v. Tuck-it-Away, Bridgeport, Inc., supra, 28 Conn. App. 467-68 (condition precedent must take place before duty to perform implicated). In the present case, Alamin had no right to review and approve the declaration of the residential planned community, nor did it have the right to review and approve the method of allocating common expenses among the unit members of that community. Furthermore, the parties agree that Alamin is not a unit member of the residential planned community. The plain language of the Alamin deed, however, establishes that before Alamin becomes responsible for a portion of the common expenses, a planned community, presumably a commercial planned community if Alamin is to be a unit member, must be created. In the creation of the planned community, Alamin must become a unit member after it reviews and approves the declaration and the method of allocating common expenses among the unit members. In the current situation, as with Rockville Bank, the Association seeks to hold Alamin responsible for a share of the common expenses without Alamin being a unit member in the planned community and without Alamin having had the right to review and approve the declaration of the planned community and the method of allocating common expenses. We agree with the trial court that before Alamin is responsible for a portion of the cost of maintaining and repairing the shared roadway, pursuant to its deed, it must be a unit member of a planned community with the right to approve the declaration and the method of allocating the common expenses.

The judgment is affirmed.

In this opinion the other judges concurred.

       Unless otherwise necessary, for purposes of this appeal, we refer to Rockville Bank, although a plaintiff, and Alamin jointly as the defendants, and individually by name.

       Elzear Roy and Hatheway Farms of Suffield, LLC, also were defendants in this action. They, however, are not parties to this appeal. The trial court bifurcated the trial of this matter; in the first phase of the trial, the court determined whether Rockville Bank or Alamin had an obligation to contribute to the maintenance and repair of Gideon Way. We note that, although the Association’s claims against Roy and Hatheway Farms of Suffield, LLC, were pending in the trial court at the time the appeal was filed, the Association’s appeal is taken from a final judgment because the judgment from which it appeals disposed of all causes of action involving Rockville Bank and Alamin. The action subsequently was withdrawn against Roy and Hatheway Farms of Suffield, LLC, in December, 2011.

       In paragraph 4 of the bank deed the term “said premises” reasonably can be read to include the designated parking area for the bank and the access road instead of the property demised to the bank.

       See footnote 3 of this opinion.

       We also find it noteworthy that the trial court found that “there [was] no evidence . . . indicating that during the period of more than ten years between the granting of the [Alamin deed] and the commencement of this lawsuit, that Laureno [Enterprises] ever sought any contribution from [New England Bank], Rockville Bank, Finlay or Alamin toward the costs of maintaining [the shared roadway].”

       See footnote 3 of this opinion.


author: ROBINSON, J.

text:
    HERMINIO SOTOMAYOR v. COMMISSIONER OF CORRECTION
    (AC 32940)
    Beach, Robinson and Bear, Js.

      Submitted on briefs January 13
    officially released April 24, 2012

      LaljeebhaiR. Patel filed a brief for the appellant (petitioner).

      John C. Smriga, state’s attorney, and Adam E. Mattei, special deputy assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

ROBINSON, J.

The petitioner, Herminio Sotomayor, appeals following the habeas court’s denial of his petition for certification to appeal from the court’s judgment denying his revised amended petition for a writ of habeas corpus. The petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal and improperly rejected his claim that his trial counsel had provided ineffective assistance at sentencing by failing to prepare properly and to present sufficient mitigation evidence. We dismiss the appeal.

This court set forth the facts giving rise to this matter in State v. Sotomayor, 61 Conn. App. 364, 766 A.2d 1 (2001), appeal dismissed, 260 Conn. 179, 794 A.2d 996, cert. denied, 637 U.S. 922, 123 S. Ct. 313, 154 L. Ed. 2d 212 (2002). “Dining the late evening of October 10,1989, sixteen year old Angel Lauriano and several friends were hurling eggs at passing vehicles on William Street in Bridgeport. At approximately 11 p.m., one of the eggs hit a passing vehicle. The driver, who later was identified as the [petitioner], immediately stopped and emerged from the vehicle armed with a rifle. The [petitioner] chased the fleeing teenagers. Upon nearing Laur-iano, the [petitioner] shot the youth six times from behind. Lauriano died from multiple gunshot wounds.

“Lauriano’s murder remained unsolved until 1998. In April, 1998, Bridgeport police arrested the [petitioner’s] cousin, Manuel Arvelo, on an unrelated drug offense. While in custody, Arvelo asked to speak with a detective. Arvelo informed Detective Leonard Sattani of the Bridgeport police department that he had information about Lauriano’s death and that his cousin, the [petitioner], had committed the murder. In a written statement dated April 13, 1998, Arvelo averred: T saw my cousin stop and get out of his car with this rifle and chase this kid down and shoot him up. ... I saw the kid bending down saying don’t shoot me, he shot him, he emptied out the rifle on him, close range, I was right there.’ Arvelo gave a second statement on April 15,1998, in which he reiterated much of the information that he had provided in his earlier statement. Arvelo swore to and signed each statement.

“On April 17,1998, Bridgeport police executed a warrant for the [petitioner’s] arrest. After waiving his rights to remain silent and to the assistance of counsel, the [petitioner] gave a written statement in which he confessed to shooting Lauriano. The [petitioner] recounted the incident as follows: 1 was going down Noble [Avenue] to William [Street]. They started to throw eggs at my car, and it was dark at that time, I got out of the car and I was armed, I saw someone running and I went around this house and I saw this guy coming out and he ran toward me and I did not know if he had a gun, I reacted and I fired several shots. I ran back to the car.’ The [petitioner] further stated that he fired about seven or eight shots.” Id., 366-67.

Throughout the criminal trial and sentencing, attorney David M. Abbamonte of the public defender’s office represented the petitioner. A jury found the petitioner guilty of murder in violation of General Statutes § 53a-54a (a), which carries a sentence of imprisonment for a term of not less than twenty-five years nor more than sixty years. General Statutes §§ 53a-35a and 53a-35b. At the sentencing hearing, the court heard from the prosecutor, the victim’s sister, Abbamonte and the petitioner. The court sentenced the petitioner to a total effective sentence of fifty years incarceration. The petitioner unsuccessfully appealed his murder conviction. See State v. Sotomayor, supra, 61 Conn. App. 365-66.

On October 18, 2010, the petitioner filed a revised amended petition for a writ of habeas corpus that alleged ineffective assistance of trial counsel. The petitioner alleged that Abbamonte provided ineffective assistance by, inter alia, failing to prepare and to present sufficient mitigation evidence at sentencing. At the habeas trial, the court heard testimony from the petitioner, the petitioner’s mother and the petitioner’s two experts — Clinton J. Roberts, a sentencing and mitigation consultant, and attorney Gary A. Mastronardi, the petitioner’s legal expert. Abbamonte, who died prior to trial, was not available to testify.

On November 4, 2010, the habeas court issued an oral decision rendering judgment denying the habeas corpus petition. The court rejected the petitioner’s claim that Abbamonte had been ineffective at sentencing. The court acknowledged and agreed with the petitioner’s opinion that Abbamonte “could have been longer in his sentencing remarks . . . .” The court noted, however, that it was the sentencing court’s duty to consider thoroughly all mitigating and aggravating factors brought to the sentencing court’s attention and that the sentencing court was capable of assessing the importance of each factor regardless of how much emphasis was placed on any given factor by the defense counsel. The habeas court found that Abbamonte had performed reasonably given that he had “very little to work with” in terms of actual mitigating evidence. The habeas court found that “[t]here was no significant evidence of mitigation introduced in this trial that counsel should have brought out at the time of sentencing.”

The habeas court recognized that the petitioner, in his testimony at trial, completely denied any responsibility for the victim’s death, claiming that he was not in the area on the date of the shooting. The court also noted that the petitioner “at sentencing showed no remorse . . . .” The court acknowledged that the nature of the crime committed is a vitally important factor at sentencing, and that, in this case, the crime was particularly egregious in nature because of the defendant’s violent and grossly disproportionate reaction to his car being egged. Ultimately, on the basis of the habeas court’s review of all the evidence available for consideration by the sentencing court, the habeas court concluded that “there is no reason to believe that anything that an expert could have raised in assisting defense counsel, or defense counsel on his own, or any other mitigation evidence would likely have, or creates a reasonable probability that the sentence in this case, when one considers all the facts and factors that a trial judge has to consider, would have changed the sentence of fifty years.” Accordingly, the court denied the habeas petition. The habeas court subsequently denied the petition for certification to appeal. This appeal followed.

We begin our analysis by setting forth our well settled standard of review as well as other applicable legal principles. “In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Synakorn v. Commissioner of Correction, 124 Conn. App. 768, 771, 6 A.3d 819 (2010), cert. denied, 300 Conn. 906, 12 A.3d 1004 (2011).

“A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the [s]ixth [a]mendment.” (Internal quotation marks omitted.) Gooden v. Commissioner of Correction, 127 Conn. App. 662, 668, 14 A.3d 1066, cert. denied, 301 Conn. 913, 19 A.3d 1259 (2011). “In Strickland [v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], the United States Supreme Court held that [judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a corut, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Internal quotation marks omitted.) Minnifield v. Commissioner of Correction, 62 Conn. App. 68, 71-72, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001).

“To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. . . . With respect to the prejudice component, [i]t is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong. . . . A court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.” (Internal quotation marks omitted.) Gooden v. Commissioner of Correction, supra, 127 Conn. App. 668. “The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Joseph v. Commissioner of Correction, 117 Conn. App. 431, 433, 979 A.2d 568, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).

In the present case, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal because whether his trial counsel adequately investigated and presented mitigating factors at his sentencing hearing and whether that alleged deficient performance prejudiced the petitioner are issues that are debatable amongst reasonable jurists, could be resolved in a different manner or deserve encouragement to proceed farther. In support of that claim, the petitioner argues that the court “erred in discounting the petitioner’s experts’ testimonies that [Abbamonte’s] performance measured against an ‘objective standard of reasonableness,’ was deficient and that but for that deficient performance the result [at sentencing] would have been better.” We disagree.

The petitioner testified at the habeas trial that he met with Abbamonte only two times prior to his trial. He testified that Abbamonte never discussed with him the evidence the state had against him nor told him that his cousin was going to testify against him. He further maintained that he and Abbamonte never discussed a plea bargain. He also testified that he remembered telling Abbamonte that he was using drugs. The petitioner also claimed that Abbamonte never prepared him prior to testifying at his criminal trial or for sentencing. The habeas court expressly stated that it could not credit the petitioner’s testimony because either too much time had passed for the petitioner to remember accurately what his counsel had done or the petitioner’s memory “has become very selective.” In other words, the habeas court questioned the reliability of the petitioner’s testimony. We must accept the habeas court’s credibility assessment. See Joseph v. Commissioner of Correction, supra, 117 Conn. App. 433.

The petitioner’s experts testified that they had reviewed the presentence investigation report (PSI), the police report and the sentencing transcript. Mastro-nardi, the petitioner’s legal expert, opined that Abba-monte was ineffective because he failed to address adequately what he described as key mitigation factors: the petitioner’s age at the time the crime was committed, the “provocation” of the petitioner by the victim combined with what Mastronardi claimed were learning disabilities, and the petitioner’s alleged drug and alcohol problem. Roberts, the petitioner’s sentencing and mitigation expert, who also interviewed the petitioner, opined that the PSI was “a bit sterile,” meaning, in his opinion, that the PSI did not contain a lot of information that would have been helpful to the defense or to the court. Roberts claimed that the petitioner had informed him during his interview about a serious concussion he had suffered at the age of fourteen, about abuse that took place when he was a child and about his abuse of drugs, including at the time of the murder. None of this information, however, was in the PSI. Roberts opined that if this information had been uncovered through an investigation by Abbamonte, the information could have been brought to the attention of the PSI author or to the judge at sentencing. On cross-examination, however, Roberts acknowledged that the petitioner maintained that he had no substance abuse or mental health problems throughout the proceedings and when he spoke to the probation officer who prepared the PSI. Roberts also agreed that there was nothing in the PSI that necessarily should have led Abbamonte to believe that any additional investigation into substance abuse or mental health issues was warranted.

“The right to counsel ... is the right to effective assistance and not the right to perfect representation.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 36 Conn. App. 695, 701, 652 A.2d 1050, cert. denied, 233 Conn. 912, 659 A.2d 183 (1995). The transcript reveals that Abbamonte brought to the sentencing court’s attention that the petitioner was only eighteen at the time of the murder, one of the key mitigation factors according to Mastronardi. Abbamonte conveyed to the sentencing court the petitioner’s apparent lack of a significant drug or alcohol problem, which was consistent with his Ghent’s position throughout the proceedings and the PSI, to which the court responded, “[t]hat’s good,” suggesting that the court viewed the lack of drug and alcohol abuse as a positive factor. Abbamonte highlighted the petitioner’s lack of an extensive criminal record between the time of the murder and his arrest ten years later. He also mentioned that the petitioner had been employed. Abbamonte chose not to speak of any justification for or reasoning behind the crime, or to the issue of the petitioner’s remorse, which was a reasonable strategy given the petitioner’s position at trial, in the PSI and at sentencing that he did not commit the murder.

Because of Abbamonte’s death, he was unavailable to testify as to the nature of his strategy at the sentencing hearing. Although the petitioner’s experts made much of the fact that Abbamonte did not address the petitioner’s drag abuse or mental health issues, there is no indication that he had any reason to question the petitioner’s consistent position that he had no such issues. Although Abbamonte’s oral presentation at the sentencing hearing was of a relatively short duration, he brought a number of important factors to the court’s attention for consideration. Mindful that counsel is entitled to a strong presumption that his conduct fell within the range of adequate professional conduct; Santiago v. Commissioner of Correction, 125 Conn. App. 641, 648, 9 A.3d 402 (2010); we cannot conclude that a reasonable jurist reviewing the sentencing hearing as a whole and the mitigation information available to Abba-monte would debate that counsel satisfied his duty to provide constitutionally effective representation.

Even if we accepted the petitioner’s argument that jurists reasonably could disagree as to whether Abba-monte provided less than effective representation, given the highly egregious nature of the murder in this case, it is unlikely that the petitioner would prevail on the prejudice prong of Strickland. The petitioner could have received a sentence of between twenty-five to sixty years, so the fifty year sentence he received, although on the higher end of the spectrum, was not the maximum sentence that the court could have imposed. See General Statutes §§ 53a-35a and 53a-35b. The preference of the victim’s family for the maximum sentence was noted in the PSI. The recommendation in the PSI was that the court should impose an extended period of incarceration “due to the serious magnitude of the instant offense which outweighs any significant, positive factors in the [petitioner’s] background.” The habeas court stated: “[T]he offense conduct itself is a vitally important factor that the court considers in sentencing. This minder was brutal and callous. As the PSI brings out, the petitioner chased down and shot a seventeen year old boy simply because the boy had thrown eggs at the petitioner’s car. The petitioner shot the victim eight times, which revealed to the trial judge, as he stated, the petitioner’s real cowardice and brutality. The petitioner stopped shooting only because he ran out of bullets.” The habeas court ultimately concluded that no amount of additional argument regarding possible mitigation factors or testimony by a mitigation expert would have created a reasonable probability that the petitioner would have received a lesser sentence. We cannot conclude that reasonable jurists could debate that the petitioner would have received a lesser sentence even if Abbamonte had presented the mitigation evidence to the sentencing court in the manner prescribed by the petitioner’s experts. Because we conclude on the basis of our review of the record that the petitioner has failed to demonstrate that a reasonable jurist could find that counsel’s performance at sentencing was ineffective or, if ineffective, that his performance prejudiced the petitioner such that he likely would have received a lesser sentence, we ultimately conclude that the habeas court did not abuse its discretion by denying the petitioner certification to file the present appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       In his revised amended petition, the petitioner claimed that Abbamonte was ineffective because he failed: (1) to prepare the petitioner adequately for trial by reviewing the state’s evidence, including adverse witness statements and by failing to investigate how the petitioner’s claims of head trauma, poor brain development or age impacted his intent to commit the crime charged; (2) to file a motion to suppress or limit the use of the petitioner’s statements; (3) to negotiate properly or to advise the petitioner of pretrial settlement offers; (4) to investigate properly applicable law as to a defense or possible lesser sentence and (5) to prepare and to present mitigation evidence at sentencing. At the habeas trial, following the conclusion of witness testimony and prior to arguments, the petitioner, through his counsel, withdrew all but two allegations of ineffective assistance. Specifically, counsel stated: “I would like to restrict the issues that we are pursuing. The other issues are being withdrawn to the extent that I do not believe that the law and/or facts have been presented that would support those claims. The main claims that we are focusing on, however, are the claims with respect to the failure to properly advise and assist the petitioner with respect to resolving his case short of trial through a plea bargain negotiation ... as well as the failure to properly present mitigation evidence at the time of sentencing.” The habeas court’s decision rejects both claims. On appeal, however, the petitioner has not raised or briefed any challenge to the habeas court’s denial of his petition as to the claim that Abbamonte was ineffective regarding pretrial settlement, and, therefore, that issue is deemed abandoned. S eeAtkinsonv. Commissioner of Correction, 125 Conn. App. 632, 636 n.5, 9 A.3d 407 (2010), cert. denied, 300 Conn. 919, 14 A.3d 1006 (2011). Accordingly, the only claim of ineffective assistance of counsel relevant to the present appeal concerns Abbamonte’s presentation of mitigation evidence at sentencing, and we limit our review accordingly.

       Public records reveal that Abbamonte died in February, 2006. In its oral ruling, the habeas court noted the apparent prejudice to the state as a result of Abbamonte’s unavailability and the fact that more than five years passed from the affirmance of the petitioner’s conviction to the commencement of the habeas action. It further noted, however, that the state failed to raise the equitable defense of laches, and, thus, it was necessary to reach the merits of the claims raised in the petition.

       The educational background information in the PSI indicates that the petitioner only attended school through the eighth grade, but “[t]he [petitioner] states that he is fully literate and ... he adequately responded to all questions and appeared to be within a general range of intellectual functioning.”

       The petitioner was arrested in 1990 and convicted in 1993 for carrying a pistol without a permit and for failure to appear.


author: BEACH, J.

text:
    DALIA GIEDRIMIENE v. GEORGE J. EMMANUEL, JR., ET AL.
    (AC 32937)
    DiPentima, C. J., and Lavine and Beach, Js.

      Argued January 4
    officially released April 24, 2012

      Beverly S. Knapp, for the cross appellants (defendant Kathy Zdeb et al.).

      Dalia Giedrimiene, pro se, the cross appellee (plaintiff).
   Opinion

BEACH, J.

The defendants Kathy Zdeb, Michael Cala-bro and Calabro & Associates, LLC, doing business as Coldwell Banker Calabro, cross appeal from the judgment of the trial court rendered in favor of the self-represented plaintiff, Dalia Giedrimiene, on their counterclaim requesting attorney’s fees and costs from the plaintiff in connection with a failed real estate closing. On appeal, the defendants claim that the court erred in declining to award them attorney’s fees and costs by concluding that (1) the defendants were not prevailing parties pursuant to the real estate purchase contract, (2) the defendants significantly contributed to the plaintiffs default under a provision of the real estate purchase contract that was inapplicable to the claims alleged, and (3) a dual agency relationship existed and equitable estoppel applied. We affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to the defendants’ appeal. On January 11, 2007, the plaintiff, a putative buyer of a one family residence, served an eleven count complaint on: the seller, George J. Emmanuel, Jr.; real estate agents Zdeb and Calabro; the real estate agency for whom Zdeb and Calabro worked, Calabro & Associates, LLC; and mortgage brokers Steve Bysko and Noreast Mortgage Services, LLC (Noreast). On or about March 22, 2006, the plaintiff signed a real estate purchase contract (contract) to purchase for $610,000 a residence owned by Emmanuel located at 297 Catherine Drive in Rocky Hill. The contract provided for atotal deposit of $31,000, $1000 of which was payable at the signing of the contract and $30,000 of which was payable on or before fourteen calendar days after the execution of the contract. It also provided that Calabro & Associates, LLC, was the sole broker in the transaction. The plaintiff, Emmanuel and Calabro & Associates, LLC, via Zdeb as an authorized representative of the latter, also executed a dual agency consent agreement providing that Cala-bro & Associates, LLC, would represent both the plaintiff and Emmanuel in the pinchase and sale of the residence. Pursuant to the real estate purchase contract, the plaintiff was required to secure a mortgage for $579,000 on or before April 18, 2006, which date was extended to May 2, 2006. The plaintiff did not file an application for a mortgage until April 25, 2006, more than one month after entering into the contract. On May 2, 2006, the plaintiff received a formal denial of her mortgage application, which denial was faxed to Zdeb. The plaintiff met with Zdeb and Calabro that day, and upon the plaintiffs request, Zdeb and Calabro obtained from the seller a second extension to May 19, 2006, which extension included the phrase “time is of the essence . . . .” Nonetheless, the date for the closing subsequently was extended to a date in June, 2006.

The plaintiff continued to have difficulty securing financing while Zdeb assured her that her contract was “secure” and insisted that the plaintiff need not speak with the seller because Zdeb was in contact with him every day. At Zdeb’s strong insistence, the plaintiff agreed to allow Bysko to begin developing a plan to secure the necessary financing to close the deal. This effort was thwarted by “[t]he plaintiffs unwarranted and unexplained rejection of Bysko’s financial package . . . .’’On June 23, 2006, Emmanuel’s attorney sent a fax to the plaintiffs attorney that “referenced the plaintiffs alleged ‘failure to appear and close’ on June 16, declared that the plaintiff was in default under the buy-sell agreement and . . . also requested the release of the $31,000 deposit [to him] and advised that the Catherine Drive property was going back on the market.” Additionally, “[w]hile Bysko was diligently pursuing the financial package needed for the plaintiff to close . . . Zdeb was pressuring the plaintiff to enter into an exclusive right to sell [her current home] with [Zdeb’s] agency. ... On July 7, despite [the letter from Emmanuel’s attorney] of June 23, Zdeb and Michael Calabro assured the plaintiff that her deposit was safe and that the Calabro agency would be able to effectuate a quick sale of Stonehill [the plaintiffs residence], which would then generate the funds to pay off the line of credit as well as the second mortgage on Catherine Drive . . . .” (Citation omitted.) The plaintiff then left for approximately one month for a European vacation in mid-July. After her return, she met with Calabro on August 29, 2006, inter alia, to request the return of her deposit. “At the meeting Calabro informed the plaintiff that Emmanuel had contracted to sell Catherine Drive to another buyer for a price $60,000 below that offered by the plaintiff, whereupon coarse words were exchanged and anger ensued, prompting Calabro to threaten to call the police if [the plaintiff] didn’t leave his office immediately. That evening, the plaintiff was visited by a local police officer. Within two weeks, the plaintiff retained [an] attorney . . . who on January 11, 2007, filed this action.”

With respect to the defendants in the present appeal, the plaintiff brought claims for conversion, statutory theft, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and negligence. The defendants filed an answer; special defenses sounding in comparative negligence, equitable estoppel and waiver; a counterclaim against the plaintiff; and a cross claim against Emmanuel. In the counterclaim, the defendants alleged, inter alia, that under the contract, they were entitled to attorney’s fees and costs. By the time of trial, the only claims remaining against the defendants were count five, against Zdeb and Cala-bro & Associates, LLC, and count nine, against Calabro, which counts sounded in negligence. The plaintiff alleged in those counts that she was provided with improper advice, including that no further extension of the mortgage contingency or closing dates was necessary, and that any information she received from the defendants was tainted by Zdeb’s status as a dual agent for the plaintiff and Emmanuel.

Following a trial to the court at which the plaintiff represented herself, the court found in favor of Emmanuel and in favor of Bysko and Noreast. Additionally, the court found that “although, based upon the allegations in her complaint, the plaintiff has sustained her burden of proof against the . . . defendants, the court also finds that said defendants have met their burden and have proven two of their special defenses [contributory negligence and waiver]. Nevertheless, the court further finds that the . . . defendants significantly contributed to the plaintiffs default, [and] therefore, under applicable terms of the buy-sell agreement, are not entitled to an award of attorney’s fees and costs.” The plaintiff subsequently filed a motion for clarification of the court’s memorandum of decision, which motion the court denied. The plaintiff then filed an appeal and the defendants filed a cross appeal as to the court’s judgment on their counterclaim. The plaintiffs appeal was dismissed as untimely, and a subsequent motion by the plaintiff for reconsideration was denied. A petition for certification to appeal also was denied by our Supreme Court. See Giedrimiene v. Emmanuel, 301 Conn. 907, 18 A.3d 589 (2011). The defendants’ cross appeal, to which we now turn, is the only action remaining in the case. Additional facts will be set forth as necessary.

I

The defendants claim that the court erred in concluding that they were not entitled to recover attorney’s fees and costs pursuant to paragraph six of the contract. Specifically, the defendants argue that the court’s interpretation of “prevailing party” is contrary to controlling authority and that the clear and unambiguous language of paragraph six requires that they be awarded attorney’s fees and costs. We agree with the defendants that the court erred in its interpretation of the term “prevailing party” but decline to reverse on this ground because we agree with the court that other provisions of the contract are applicable and preclude recovery of attorney’s fees and costs by the defendants.

The defendants invoked paragraph six of the contract in its counterclaim seeking attorney’s fees and costs. Paragraph six of the contract provides in relevant part: “In case of a dispute, listing Broker shall continue to hold all deposits until the parties’ rights to the deposits are finally adjudicated or agreed upon. If listing Broker initiates or is made a party in any action arising out of a dispute between the parties over deposits, then any and all costs incurred by listing Broker (including, without limitation, attorneys’ fees and court costs) shall be paid by the nonprevailing party.” The court found: “As to paragraph six, given the finding by this court that the . . . defendants must share the blame with the plaintiff for the failed closing, said defendants are clearly not ‘the prevailing party’ . . . .”

Our review of this claim requires us to interpret the language of the contract. “The standard of review for the issue of contract interpretation is well established. When . . . there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . Accordingly, our review is plenary.” (Internal quotation marks omitted.) Genua v. Logan, 118 Conn. App. 270, 273, 982 A.2d 1125 (2009). “[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; 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 fight of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The defendants argue that the requirement in paragraph six that the nonprevaifing party pay costs is not conditioned expressly upon that party being free from blame with regard to a dispute over deposits. They further contend that the court’s interpretation of the term “prevailing party” as one who does not share blame is contrary to controlling authority. We agree. Our Supreme Court has stated: “[Prevailing party has been defined as [a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded . . . .” (Internal quotation marks omitted.) Wallerstein v. Stew Leonard’s Dairy, 258 Conn. 299, 303, 780 A.2d 916 (2001). In the present case, although the court found in favor of the plaintiff as to the defendants’ counterclaim, the court found in favor of the defendants on the two counts of the plaintiffs complaint remaining against the defendants. Judgment was rendered in favor of the defendants as to the plaintiffs complaint. Accordingly, the court erred in concluding that the defendants were not prevailing parties. Because we determine that consideration of other clauses of the contract results in the conclusion that the defendants may not recover attorney’s fees and costs, as we discuss in part II of this opinion, however, this error does not require reversal.

II

The defendants claim that the court erred in concluding that attorney’s fees were to be disallowed on the ground that the defendants significantly contributed to the plaintiff’s default pursuant to paragraph twelve of the contract. They claim that paragraph twelve was not applicable to the claims alleged, and, alternatively, that there was no causal connection between the plaintiffs default and the conduct in question. We disagree.

Paragraph twelve of the contract provides in relevant part: “If a legal action is brought to enforce any provision of the Contract, the prevailing party, including a broker who is made party to such action and who has not significantly contributed to the default, shall be entitled to court costs and attorneys’ fees.” The court found: “As to the quoted portion of the twelfth paragraph, this court, for reasons previously set forth herein, has found that the conduct of Zdeb, as one who owed a fiduciary duty to the plaintiff as well as to Emmanuel, ‘significantly contributed’ to the plaintiffs default. Therefore, pursuant to the plain language of said paragraph this court finds that the . . . defendants are precluded from the recovery of any attorney’s fees and costs from the plaintiff.” (Emphasis in original.) The court had previously discussed Zdeb’s conduct and had concluded, inter alia: “[T]he conduct of Zdeb in not disclosing to the plaintiff the decision to place Catherine Drive on the market while, at the same time, pressuring the plaintiff to sign the exclusive listing agreement to sell Stonehill, thus providing the plaintiff with the false impression that all was well, induced the plaintiff to leave for Europe, thereby risking what actually occurred while she was gone, i.e., the loss of Catherine Drive.”

Our review of this claim requires us to interpret the language of the contract. As previously set forth, the standard of review for contract interpretation, where there is definitive contract language, is plenary. Genua v. Logan, supra, 118 Conn. App. 273. Where the facts are challenged, we apply the clearly erroneous standard of review, and where the legal conclusions axe challenged, we determine whether they are legally and logically correct. See Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 181 Conn. 221-22.

The defendants argue that paragraph twelve of the contract is not applicable because the express language of that paragraph provides that it applies only to an action brought to enforce a contractual provision, and the defendants have been sued regarding a dispute over the deposit, which suit is properly governed only by paragraph six of the contract. “The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . .” (Internal quotation marks omitted.) Electric Cable Compounds, Inc. v. Seymour, 95 Conn. App. 523, 529, 897 A.2d 146 (2006). Paragraph five of the contract provides in relevant part: “If either party so terminates this Contract, then all deposits will be returned to Buyer, and, except as provided in paragraph 17, the obligations of the parties under this Contract shall end.” Paragraph twelve applies “[i]f a legal action is brought to enforce any provision of the Contract . . . .” The plaintiff has brought a legal action as a buyer to recover her deposit, which return is provided for by paragraph five. Accordingly, paragraph twelve applies, and thus in order for the defendants to recover court costs and attorney’s fees, they must have “not significantly contributed to the default . . . .”

The court specifically concluded that “the . . . defendants significantly contributed to the plaintiffs default, [and] therefore, under applicable terms of the buy-sell agreement, are not entitled to an award of attorney’s fees and costs.” The court found: “[I]nstead of assisting the plaintiff in obtaining a refund of her deposit pursuant to the mortgage contingency clause, Zdeb assured the plaintiff that the deposit was safe.” It also found that Zdeb “prevail[ed] upon the plaintiff on July 7, weeks after the second cancelled closing, to enter into exclusive listing to sell Stonehill, after providing the plaintiff with her self-promoting letter that pledged to sell the house as soon as possible at the highest possible price. Once the exclusive listing agreement was signed, the plaintiff could have and did reasonably assume, as a result of Zdeb’s assurance that any financial problems . . . would be resolved .... This caused the plaintiff to harbor the mistaken belief that she was free to sojourn to Europe . . . .” The court also explicitly stated: “Unfortunately, Zdeb let her aggressive business practices (such as her self-promoting literature and reassuring statements to the plaintiff that included: ‘trust me’ [and] ‘people listen to me’ . . .) take control, while ignoring the realities of the situation, thereby significantly contributing to the failed closing and the resultant financial consequences to all involved.” These findings of fact were not clearly erroneous. Accordingly, paragraph twelve is applicable to the plaintiffs action and precludes recovery of attorney’s fees and costs by the defendants.

Alternatively, the defendants argue that even if paragraph twelve applies to the present case, there was no evidence of a causal connection to support the court’s conclusion that they significantly contributed to the plaintiffs default. We do not agree in light of the factual findings that we have listed previously in support of the court’s conclusion that the defendants significantly contributed to the plaintiffs default.

Ill

The defendants also claim that the court erred in denying to them attorney’s fees and costs on the ground of a dual agency relationship between Zdeb, the plaintiff and Emmanuel. Specifically, the defendants claim that the dual agency consent agreement complied with General Statutes § 20-325g, and, thus, the court erred in finding that the relationship constituted an improper conflict of interest. In light of our conclusion that a reading of the contract as a whole explicitly precludes recovery of attorney’s fees and costs by the defendants, any error by the court regarding dual agency is not dispositive. Although some of the factual findings by the court with regard to its conclusion that the defendants significantly contributed to the plaintiffs default were premised upon its determination that the dual agency relationship created an irreconcilable conflict of interest, there were several factual findings independent of this ground. The factual findings we discussed in part II of this opinion, for example, including Zdeb’s aggressive business practices and assurances, were not based on a dual agency relationship, and, as discussed previously, were not clearly erroneous.

Similarly, any error made by the court in its determination that the defendants were equitably estopped from claiming benefits provided by the contract does not alter our conclusion that the plain terms of the contract preclude the defendants from recovering attorney’s fees and costs. Accordingly, we decline to address this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed this action against George J. Emmanuel, Jr.; Kathy Zdeb; Michael Calabro; Calabro & Associates, LLC; Steve Bysko; and Noreast Mortgage Services, LLC. Zdeb, Calabro and Calabro & Associates, LLC, are the only defendants who are parties to this cross appeal. Accordingly, we refer to these three parties, collectively, as the defendants.

       As we will discuss, the plaintiffs appeal was dismissed.

         The plaintiff also brought a claim against Emmanuel for breach of contract for his failure to return the $31,000 deposit to her, and two claims against Bysko and Noreast alleging a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and negligence in their advice to her and that they were acting in collusion with the Realtors.

       The first count against Emmanuel for breach of contract and the tenth count against Bysko and Noreast alleging negligence also were operative at trial. Counts two (conversion as to Zdeb and Calabro & Associates, LLC), three (statutory theft as to Zdeb and Calabro & Associates, LLC), four (violation of CUTPA as to Zdeb and Calabro & Associates, LLC), six (conversion as to Calabro), seven (statutory theft as to Calabro) and eight (violation of CUTPA as to Calabro) were withdrawn by the plaintiff before the issues were submitted to the court for final resolution. After the plaintiff had rested, the court granted the motion brought by Bysko and Noreast to dismiss the eleventh count, which alleged as to them a violation of CUTPA.

       As the plaintiff asserts, paragraph six addresses the mechanics of deposit procedures, including the timing of initial deposits and the release of deposits, as well as obligations of the broker to hold deposits. According to that paragraph, “[i]n case of a dispute, listing Broker shall continue to hold all deposits until the parties’ rights to the deposits are finally adjudicated or agreed upon.” If the listing broker is sued because he or she is holding the deposit, then, according to paragraph six, the listing broker is entitled to attorney’s fees and costs from the nonprevailing party.

        In the present case, the defendants were not sued-only because they were holding the deposit in escrow. Bather, the plaintiff alleged that the defendants had engaged in malfeasance and negligence. Accordingly, paragraph twelve, which provides that “the prevailing party, including a broker who is made party to such action and who has not significantly contributed to the default, shall be entitled to court costs and attorneys’ fees,” applies in addition to and in qualification of paragraph six. In the context of the whole contract, which evidences the intent of the parties, the language of paragraph twelve modifies the ability of a broker to recover costs and attorney’s fees. As we will discuss, the court specifically concluded that the defendants significantly contributed to the default, and, accordingly, pursuant to the language of the contract, they are not entitled to attorney’s fees.

       General Statutes § 20-325g provides in relevant part: “There shall be a conclusive presumption that a person has given informed consent to a dual agency relationship with a real estate broker if that person executes a written consent. . . prior to executing any contract or agreement for the purchase, sale or lease of real estate . . . .”