author: HEALEY, J.

text:
    TOMASSO MORGERA v. BEATRICE CHIAPPARDI ET AL.
    (AC 21418)
    Flynn, Bishop and Healey, Js.
    Argued September 18, 2002
    officially released January 7, 2003

      Roger L. Crossland, with whom, on the brief, was Ridgely W. Brown, for the appellant (named defendant).

      Michael Jon Barbarula, for the appellee (plaintiff).
   Opinion

HEALEY, J.

This appeal is taken from the judgment of strict foreclosure of a purchase money mortgage on real estate located at 21 Plymouth Avenue in Norwalk and the denial of the counterclaim filed by the defendant Beatrice Chiappardi after the plaintiff, Tomasso Morgera, instituted a foreclosure action against her. On appeal, the defendant makes two interrelated claims. She maintains that the trial court acted inappropriately when it refused (1) to consider and to take evidence on her claim of setoff and on her counterclaim, and (2) to hear her claim of setoff and her counterclaim even though they never had been the objects of a request to revise, a motion to strike, a motion for summary judgment or a request to bifurcate. We agree with the defendant and reverse the judgment of the trial court.

It is helpful to begin our analysis of the defendant’s claims by outlining the pleadings in this complex case. The complaint alleges the execution of a mortgage, deed and note on 21 Plymouth Avenue in Norwalk in the principal sum of $250,000 with interest. It further alleges that the mortgage was in default and seeks, inter alia, a judgment of foreclosure (strict or by sale), a deficiency judgment and damages. The answer effectively denies all the allegations of the complaint, leaving the plaintiff to his proof. The defendant also raised three special defenses. The first alleged that “[t]he plaintiff is guilty of fraud and misrepresentation regarding the sale of this property as well as the other two properties as part of the same package deal to the defendant.”* * The second special defense alleged that the doctrine of unclean hands applies. The third special defense contended that the plaintiff should be equitably estopped from enforcing the note and mortgage due to his fraud and misrepresentation. In addition, the defendant alleged a claim for setoff and a counterclaim. The plaintiffs reply to the defendant’s claim for setoff, and her special defenses and counterclaim effectively denied all their allegations.

The issues on appeal cannot reasonably be understood without an additional recital of certain underlying circumstances that were disclosed by testimonial and documentary evidence, including a long offer of proof by the defendant urging the consideration of the setoff and counterclaim adduced at the trial of this foreclosure case.

The plaintiff and the defendant axe related; he is her uncle. He owned three pieces of real estate in Norwalk located at 21 Plymouth Avenue, 23 Center Avenue and 29 Center Avenue. He resided at 21 Plymouth Avenue. The Center Avenue properties were rental properties, and each had three rental units when the plaintiff owned them. Prior to his negotiations with the defendant concerning the sale of the three properties, the plaintiff had made efforts to sell the two Center Avenue properties and had them listed with the multiple listing service in Norwalk. He had received notices of noncompliance and cease and desist orders from the city of Norwalk as to both Center Avenue properties for zoning and housing code violations. Among other notices and threats of zoning enforcement action, there was a letter from the zoning inspectors on behalf of the zoning commission of the city of Norwalk to the listing broker who had listed the plaintiffs Center Avenue properties. The letter pointed out that those properties were in violation of Norwalk zoning regulations and set out how the violations were to be corrected. In addition, the letter directed that “[a]ll prospective purchasers should be made aware that until plans are received and permit issues we consider these properties in violation and anyone who purchase[s] the properties will be subject to legal action and fines.” The letter also stated that the Norwalk “Corporation Counsel is pursuing legal action against the [plaintiff] regarding the Zoning Violations.” As a result of those violations, the listing of the Center Avenue properties was canceled, and the properties were removed from the multiple listing service.

As previously stated, the plaintiff and the defendant are uncle and niece. She was a single mother with three children and worked two jobs. She trusted the plaintiff. She had assisted him when he was hurt. She wrote his checks because he could read, but not write, English. She maintained that he had indicated to her that it would be to her economic advantage if she purchased the properties. She said that he wanted to sell her all three properties and that he would not sell her the Plymouth Avenue property unless she also bought the properties at 23 Center Avenue and 29 Center Avenue. The plaintiff never told the defendant of the zoning and housing problems with the Center Avenue properties, which he already had encountered and were ongoing before, during and after his transfer to her of the Center Avenue properties.

The three properties ultimately were sold to the defendant in separate conveyances. The property at 23 Center Avenue was transferred by deed on August 20, 1997, the property at 29 Center Avenue was transferred on August 29, 1997, and the property at 21 Plymouth Avenue was transferred on September 29, 1997. Documents memorializing mortgage loans from third party lenders were recorded by the defendant on the land records for each of the Center Avenue properties. A purchase money mortgage in the amount of $250,000 made by the defendant to the plaintiff was placed on the property at 21 Plymouth Avenue. Separate agreements to purchase were drawn for the three properties. The two agreements pertaining to the Center Avenue properties were signed by the parties; however, the third agreement to purchase the 21 Plymouth Avenue property never was signed by the parties. The closings on the three properties were held on three separate dates, all three being held within a time period of approximately thirty days in August and September, 1997. The plaintiff left the United States to reside in Italy shortly after the third closing.

After the closings on all the properties, a fire occurred in one of the Center Avenue properties. It was only then that the defendant learned from the fire marshal and the city of the numerous housing violations. She also learned of the zoning violations, which she was unable to cure. Ultimately, she was forced to give up both of the Center Avenue properties when she transferred them to a third party, who took them by assuming the mortgages on them. She received no compensation on those transfers.

Both parties contend that our “transaction” rule supports their respective positions. See, e.g., Practice Book § 10-10; Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161, 459 A.2d 525 (1983); Isaac v. Truck Service, Inc., 52 Conn. App. 545, 556, 727 A.2d 755 (1999), aff'd, 253 Conn. 416, 752 A.2d 509 (2000). “The ‘transaction test’ is one of practicality, and the trial court’s determination as to whether that test has been met ought not be disturbed except for an abuse of discretion. . . . Where the underlying purposes of Practice Book § [10-10], to wit, judicial economy, avoidance of multiplicity of litigation, and avoidance of piecemeal disposition of what is essentially one action, are thwarted rather than served by the filing of a cross claim, the cross claim may properly be expunged.” (Citations omitted.) Jackson v. Conland, 171 Conn. 161, 166-67, 368 A.2d 3 (1976); Mechanics Savings Bank v. Townley Corp., 38 Conn. App. 571, 574-75, 662 A.2d 815 (1995).

“The term [counterclaim] itself is a general and comprehensive one, naturally including within its meaning all manner of permissible counter-demands. . . . [T]he word ‘counterclaim’ was intended to be a generic term for all cross demands other than setoffs, whether in law or equity.” (Citation omitted; internal quotation marks omitted.) Gattoni v. Zaccaro, 52 Conn. App. 274, 280, 727 A.2d 706 (1999).

The plaintiff claims that the court’s legal conclusions and evidentiary rulings were correct for two reasons. First, the plaintiff argues in his brief that “the [fraud] allegations were unrelated to the underlying transaction,” and, second, that “the allegations as pleaded did not relate to the making, validity or enforcement of the note and mortgage that were the subject of [the] plaintiffs foreclosure action.” The defendant claims that the test for the application of the transaction rule in this case should be whether the related acts arose prior to or during the development of the note and mortgage, and that her counterclaim arose from the plaintiffs fraudulent representations which caused her to “make” the note and mortgage on the Plymouth Avenue property, which was part of a “package” of conveyances or property represented to be legal, income producing multifamily properties. She claims, therefore, that the misrepresentation, conveyances and mortgage are appropriately related for the purpose of applying the transaction rule. We agree with the defendant.

Circumstances, additional to those already set out, bear on the “transaction” issues. There can be little, if any, question of the trust and reliance of the defendant on the plaintiff. Her unfortunate lack of sophistication contributed to her vulnerability to the claimed misrepresentations of the plaintiff. In urging her to buy all three properties, the plaintiff told her, “I’ll give you a good deal because you’ve been working all your life, and I want to give you a break. These houses will make you good money.” He also stated that “we’ll make it a deal. If you buy those two [Center Avenue properties] from me, you’ll have to buy 21 [Plymouth Avenue] because I want to leave here and I want to go to Italy.” The defendant told him, “I don’t think I am [able]. I am a single parent and I don’t have any money. I don’t think I can.” She further testified that the plaintiff “continuously asked me to buy them . . . telling [me] what a great deal it was.” The plaintiff assured her, “They’re all legal. They’re good.” (Emphasis added.) She testified that “everyday he’d call” and tell her he had “an offer.” Finally, the defendant hired a man to see if he could find a way for her to buy the three properties. It took him one year to get the loans to enable her to purchase the Center Avenue properties. It is interesting to note her claim that the plaintiff required that she purchase the two properties with the various violations prior to selling her the 21 Plymouth Avenue property.

On the basis of the defendant’s claims, it would be reasonable for a fact finder to conclude that the plaintiffs representation to his niece that “all” the properties were “legal” and that all were “good” was material in her ultimate decision to buy. Moreover, it also would be reasonable for a fact finder to conclude that the plaintiff clearly knew otherwise as to the Center Avenue properties when he pressured her to buy the three properties. Our Supreme Court has “pointed out that when false representations are made for the purpose of inducing an act to another’s injury, necessarily there is the plain implication that the representations were made with the intent to deceive.” Miller v. Appleby, 183 Conn. 51, 57 n.1, 438 A.2d 811 (1981). “The intentional withholding of information for the purpose of inducing action has been regarded ... as equivalent to a fraudulent misrepresentation. 1 Restatement (Second), Contracts § 161 . . . .” (Citations omitted.) Pacelli Bros. Transportation, Inc. v. Pacelli, 189 Conn. 401, 407, 456 A.2d 325 (1983).

The “transaction” test is one of practicality, and its purposes, which have been recognized by case law, should not be thwarted in its application. The circumstances of this case disclose that the allegations of the defendant’s counterclaim arose out of the transaction that “is the subject of the plaintiffs complaint . . . .” Practice Book § 10-10. There can be no confusion about that, as the allegations of the counterclaim include the following: “2. The plaintiff, pleading in the alternative, either fraudulently misrepresented, negligently misrepresented, or with reckless disregard for the truth, sold and conveyed by way of contract and then by way of deed along with affirmative misrepresentations in title affidavits, the subject property and properties at 23 Center Avenue, Norwalk, and 29 Center Avenue, Nor-walk, Connecticut.” (Emphasis added.) Not only does the defendant plead in the alternative, which pleading includes an allegation of fraudulent misrepresentation, but she specifically refers to “the subject property,” i.e., 21 Plymouth Avenue, which is the property being foreclosed. Moreover, whether the term “package” or “bundle” is used to refer to the grouping or combining of the three properties, the evidence demonstrates that they were not in substance separate and distinct occurrences.

In addition, insofar as the court’s posture permitted the defendant to do so, the concatenation of circumstances engendered by the plaintiffs fraudulent misrepresentations made for a reasonable nexus between the counterclaim and his conduct in inducing the defendant’s making of the note and mortgage on the property at 21 Plymouth Avenue, hence raising serious questions about their validity and enforcement.

The defendant also claims that the court inappropriately refused to allow her to present the evidence to support her counterclaim. Implicit in her claim is the argument that she was not given a fair opportunity to be heard. In that regard, the defendant argues that the court’s rulings precluded her from doing so, and she suggests that an examination of the trial transcript bears that out. We have in fact examined that transcript and agree with the defendant.

The trial occurred over three days. The court, on the first day, stated that it “[didn’t] want to hear any more about the [Center Avenue properties]” and only “wantfed] to hear about this house [at 21 Plymouth Avenue].” A fair reading of the transcript discloses that despite that position, the court thereafter heard testimonial evidence and admitted documentary evidence concerning the Center Avenue properties. That, nevertheless, did not advantage the defendant in advancing her counterclaim, as the court still allowed her only to introduce some evidence concerning the Center Avenue properties. That is especially true concerning the defendant’s effort to lay out her case as to fraud. Moreover, the court’s first “precluding” of evidence on the counterclaim took place before the plaintiff had even rested his case. It is apparent from the transcript that the defendant’s counsel was not fully aware that although the court had ruled against his presenting evidence on the counterclaim, the court did from time to time allow the presentation of some evidence. The ambiguous posture of the court in doing so is further blurred by the statement that it was granting the defendant “a little leeway.” Thus, the defendant’s “presentation” was rendered murkier by the court’s comments, more than once, about “dicta.” The defendant’s counsel protested that he had not been able to “tell the stoiy” and that he was trying “to elicit information on the counterclaim” when the court stated, in overruling the plaintiffs objection to a question, that “[i]n the realm of dicta, this will be dicta on this. I’ll let you ask that.” Still later, when the plaintiff objected to the defendant’s counsel going into the counterclaim, the court overruled the objection “[i]n the hope that there might be some dicta I could enter . . . .’’On the final day of trial, near the conclusion, the court stated: “I’ve heard the whole story, and the foreclosure part remains unanswered, really, but [as to the] remaining story about lots 23 and 29 [on Center Avenue], I’m listening to [it] as dicta. Just ... do you understand, as dicta, that? I’m hstening for it. Okay.”

We believe that under the circumstances, the defendant was not permitted to place “the whole story” before the court, even though her counsel more than once had stated his theory for allowing the counterclaim. Early on at the trial, the court definitely knew that the defendant’s claim was that the three transfers were a “package deal.” The court, however, told the defendant’s counsel: “[D]on’t . . . don’t use that package deal. That’s not . . . that’s a bad word.” At another point, the court told the defendant’s counsel: “I wish you’d stop referring to it . . . to it as a package. It wasn’t a package. It was a sale of three different . . . properties. There was no package to it.” At that juncture, the defendant’s counsel appropriately argued that under pleading procedure, he was entitled to present evidence on the counterclaim. He argued that this was procedurally correct not only because of the equitable aspect, but also because the plaintiff had never filed any motion to strike or to revise the counterclaim, and never had sought bifurcation. In addition, certain evidence that arguably was relevant on the defendant’s theory of the case, i.e., her “package” argument encompassing not only the “fraud” thrust of the counterclaim, but also her special defense of fraud to the foreclosure complaint itself, summarily was rejected, and her counsel was cautioned not to offer it again.

A party has the right to present evidence within the acceptable rules supporting its theory of the case. We cannot say that that opportunity was adequately given to the defendant. She claims that the court, in effect, granted a “nonexistent” motion to strike her counterclaim by its summary denial of that pleading. We agree. The hearing of evidence concerning it as “dicta” is puzzling or ambivalent at best. We cannot say that the defendant had the opportunity to present her case even “piecemeal” because to say that fairly implies that all the “pieces” were permitted to be presented. That was not the case, especially as to the issue of the fraud alleged in the counterclaim and specifically pleaded as a special defense to the foreclosure complaint.

One is left with the abiding conviction that in the circumstances previously discussed, the defendant was not given a fair opportunity to be heard on the issues involved. “A fundamental premise of due process is that a court cannot adjudicate any matter unless the parties have been given a reasonable opportunity to be heard on the issues involved . . . and to present evidence and cross-examine adverse witnesses.” (Citations omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205, 658 A.2d 559 (1995); Szot v. Szot, 41 Conn. App. 238, 241, 674 A.2d 1384 (1996). “It is fundamental tenet of due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution that persons whose property rights will be affected by a court’s decision are entitled to be heard at a meaningful time and in a meaningful manner. . . . Where a party is not afforded an opportunity to subject the factual determinations underlying the trial court’s decision to the crucible of meaningful adversarial testing, an order cannot be sustained.” (Internal quotation marks omitted.) Szot v. Szot, supra, 241-42. The defendant was not given such a reasonable opportunity in this case.

The denial of that opportunity, it is again noted, not only took place in the context of a foreclosure, which is an equitable action, but where the defendant had interposed a special defense of fraud in the foreclosure action itself. The plaintiff glosses over that circumstance and overlooks the fact that the court failed even to refer to that special defense. We conclude, therefore, that the necessary nexus existed such that the complaint and counterclaim were so related that they satisfied the practical test of our transaction rule stated in Practice Book § 10-10. Having satisfied the transaction test, the defendant also is entitled legitimately to invoke equitable relief.

The defendant, parenthetically, not only had tried to get to that issue, but also had prayed for equitable relief in her counterclaim. We will, therefore, turn to well settled principles of equity to aid us in the resolution of this case. The scenario disclosed by this case is amenable to the process that equity may afford. “Courts of equity may grant relief from the operation of a judgment when to enforce it is against conscience, and where the appellant had no opportunity to make defense, or was prevented from so doing by . . . the fraud ... of the opposite party, and [the appellant was] without fault on his [or her] own part.” (Internal quotation marks omitted.) Cavallo v. Derby Savings Bank, 188 Conn. 281, 284, 449 A.2d 986 (1982). “Foreclosure is peculiarly an equitable action, and the court may entertain such questions as are necessary to be determined in order that complete justice may be done.” (Emphasis added.) Hartford Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966); Beach v. Isacs, 105 Conn. 169, 176, 134 A. 787 (1926). We have stated that “[b]ecause a mortgage foreclosure action is an equitable proceeding, the trial court may consider all relevant circumstances to ensure that complete justice is done.” (Emphasis added.) Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982); Southbridge Associates, LLC v. Garofalo, 53 Conn. App. 11, 15, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999). “Where the plaintiffs conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles.” Southbridge Associates, LLC v. Garofalo, supra, 15; see also Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980).

“[E]quitable remedies are not bound by formula but are molded to the needs of justice.” Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 54, 492 A.2d 223 (1985). Our Supreme Court has endorsed the principle that “[a] court of equity does full and equal justice to all having an interest in the subject-matter” by tersely expressing that “[ejquity never does anything by halves.” (Internal quotation marks omitted.) Stolman v. Boston Furniture Co., 120 Conn. 235, 240,180 A. 507 (1935); see also McGaffin v. Roberts, 193 Conn. 393, 404, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985); 27A Am. Jur. 2d 599, Equity § 118 (1996); F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 10.11, pp. 531-32. It has been appropriately noted that the significance of equity “not doing by halves” means that “it is the aim of equity to have all interested parties in court and to render a complete decree adjusting all rights and protecting the parties against future litigation. . . . The principle of [this] maxim embraces the well-established doctrine . . . that when equity once acquires jurisdiction it will retain it so as to afford complete relief.” 30A C.J.S. 337, Equity § 119 (1992). All the interested parties in court are jurisdictionally available such as to enable equity to render complete relief.

Moreover, it is necessary to keep in mind, particularly in this case, that equity looks to substance and not mere form. Bender v. Bender, 258 Conn. 733, 751, 785 A.2d 197 (2001); Connecticut National Bank v. Chapman, 153 Conn. 393, 397, 216 A.2d 814 (1966). In speaking about the meaning and effect of the equitable concept of substance rather than form, Pomeroy, that venerable yet viable authority on equity, opines that it “is one of great practical importance, [which] pervades and affects to a greater or less degree the entire system of equity jurisprudence .... Equity always attempts to get at the substance of things, and to ascertain, uphold, and enforce rights and duties which spring from the real relations of parties. It will never suffer the mere appearance and external form to conceal the true purposes, objects, and consequences of a transaction.” (Emphasis in original.) 2 J. Pomeroy, Equity Jurisprudence (5th Ed. 1941) § 378, pp. 40-41. “In equity, as in law, misrepresentation, to constitute fraud, must be material. . . . That is to say, the representation must prejudice the party relying upon it.” (Citations omitted.) Harper v. Adametz, 142 Conn. 218, 223-24, 113 A.2d 136 (1955).

In summary, we conclude that the defendant was not afforded a reasonable opportunity to present her case of a “package type” transaction despite her reasonable attempt to do so. It is apparent to us that it is required by equity that the complaint and the counterclaim be tried together, as they satisfied not only our transaction test under Practice Book § 10-10, but also the ambit of equity jurisdiction. Complete justice requires that equity grant relief; relief not done by halves, not done in form only, but relief grounded on substance and complete justice. Our Supreme Court has noted aptly that “once any equitable claim has been raised, the court retains its equitable jurisdiction to consider all of the equities before it in order to render complete justice . . . even where the equitable jurisdiction [is] conferred by a defendant’s counterclaim.” (Citations omitted.) Fellows v. Martin, 217 Conn. 57, 64-65, 584 A.2d 458 (1991). That illustrates just how far complete equitable jurisdiction can fairly go.

In this case, the defendant appealed from the judgment of strict foreclosure and the denial of her counterclaim. The defendant proposes in her brief, by want of remand, that “the case should be remanded for a whole new trial on all issues because of the exclusion of clearly relevant evidence or, at least, the case should be remanded with direction to permit [her] to amend the counterclaim because, effectively, a motion to strike was granted in the middle of a trial and for the trial court then to determine whether the issues involve the same transaction and should be tried together or separately.” Equity requires a new trial on all the issues; the principles previously set forth, applied to the circumstances of this case, mandate equitable relief.

The judgment of strict foreclosure and the denial of the defendant’s counterclaim are reversed and the case is remanded for a new trial in which the plaintiffs complaint and the defendant’s claim of setoff and her special defenses and counterclaim are to be tried together in the same trial.

In this opinion the other judges concurred.

       At oral argument, the defendant Beatrice Chiappardi claimed that this appeal was not taken from a final judgment. We do not agree. The trial court articulated the necessary findings for finality, namely, the judgment of strict foreclosure, the amount of the debt and the setting of law days. See Benvenuto v. Mahajan, 245 Conn. 495, 498, 715 A.2d 743 (1998). The defendant’s claim that she was unable to challenge the articulation, and that therefore the judgment is not final, is without merit. The record reveals that the defendant did not file a memorandum of law in opposition to the plaintiff’s motion for articulation. Furthermore, the defendant failed to file a motion for review with this court pursuant to Practice Book § 66-7. Our Supreme Court has stated that “where a party is dissatisfied with the trial court’s response to a motion for articulation, he may, and indeed under appropriate circumstances ho must, seek immediate appeal of the rectification memorandum to this court via the motion for review.” (Internal quotation marks omitted.) Highgate Condominium Assn. v. Watertown Fire District, 210 Conn. 6, 21, 553 A.2d 1126 (1989).

       The plaintiff, Tomasso Morgera, claims that the defendant Beatrice Chiappardi does not challenge the judgment of strict foreclosure. We do not agree. The record specifies that the appeal is taken from the “Judgment of Strict Foreclosure and Denial of Counter Claim.” In addition, the defendant’s brief and oral argument clearly indicated that she was challenging the judgment of strict foreclosure as well as the denial of her counterclaim, and her claim for setoff and her special defenses. We also note that “[wjhere the plaintiff’s conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles. ” (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn. App. 700, 705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).

       The plaintiff also named Vincent Sullivan as a defendant. The action against him was withdrawn during the trial, leaving Beatrice Chiappardi as the sole defendant. We therefore refer in this opinion to Beatrice Chiappardi as the defendant.

       In her answer, the defendant, in a separately numbered paragraph that is not directed to any specific allegation in the complaint, alleges: “As to the relief requested of judgment foreclosing the mortgage, the defendant simply requests that the court exercise its discretion in equity and under law and defendant denies that the plaintiff is entitled to any of the relief requested."

       The first special defense referred to two pieces of real estate in Norwalk located at 23 Center Avenue and 29 Center Avenue, which were conveyed by the plaintiff to the defendant as part of a “package deal,” the significance of which is discussed in this opinion.

       The defendant’s pleading states in relevant part: “By Way of Set Off & Counterclaim. First count: (1) In accordance with Connecticut General Statute Section 52-139, the defendant Beatrice Chiappardi hereby claims a set off against the plaintiffs debt. (2) The plaintiff, pleading in the alternative, either fraudulently misrepresented, negligently misrepresented, or with reckless disregard for the truth, sold and conveyed by way of contract and then by way of deed along with affirmative misrepresentations in title affidavits, the subject property and properties at 23 Center Avenue, Norwalk, and 29 Center Avenue, Norwalk, Connecticut. (3) The plaintiff misrepresented the zoning, code compliance and [general] regulatory compliance of these properties thereby proximately causing damages to the defendant and counter-claimant Beatrice Chiappardi including the differential fair market value of the properties, the losses suffered by the defendant and counter-claimant in putting financing in place and incurring expenses on the properties and the caring charges, pain and suffering, damage to credit, lost expenses in fix up of the properties and loss because of her inability to bring the properties into compliance and forced sale of the properties.”

       The proceedings in the trial court, including the defendant’s efforts to introduce evidence on the setoff and counterclaim, took three days and generated a transcript of approximately 280 pages. Although the court generally refused the defendant’s proffer, it did admit some evidence concerning the setoff and counterclaim, calling its decision to do so “dicta.” During the proceeding, evidence was given not only by a real estate expert, but also by the plaintiff, his wife, the defendant Vincent Sullivan, who was named as a defendant in this action but against whom the complaint later was withdrawn, and an attorney who had represented the plaintiff and had drawn certain documents concerning not only 21 Plymouth Avenue, but also other properties that are involved in this action that are at 23 Center Avenue and 29 Center Avenue in Norwalk at times relevant to the conveyances by the plaintiff to the defendant. Any fair disposition of the equities requires a consideration of the testimony and documents proffered, whether characterized as “dicta” by the court or otherwise.

       The letter stated in relevant part that “the following is required to correct those violations. . . . Full architectural plans showing existing conditions and proposed conditions. Site plan/survey of each property . . . for storage/ parking only.” (Emphasis in original.)

       The record is not clear whether the defendant was represented by counsel for the three conveyances involved. She did refer to a “bank” attorney participating in the transfer of the Center Avenue properties. There is documentation in the record that suggests that no bank, in the conventional sense, was involved in the Center Avenue financing, but that financing was by a private third party lender. The plaintiff was represented throughout by a private attorney, if not by two attorneys.

       The mortgage, deed and note for the purchase money mortgage on the property at 21 Plymouth Avenue made no reference to an interest rate to be charged on that mortgage.

       The plaintiff, who resided in Naples, Italy, at the time of the trial returned in 2000 when he testified at the trial.

       Practice Book § 10-10 provides in relevant part: “Supplemental Pleadings; Counterclaims
      “Supplemental pleadings showing matters arising since the original pleading may be filed in actions for equitable relief by either party. In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff and cross claims against any codefendant provided that such counterclaim and cross claim arises out of the transaction or one of the transad ions which is the subject of the plaintiffs complaint . . . .”

       The ambivalent posture of certain rulings apparently caused the defendant’s counsel to be confused as to how to proceed. For example, on the second day of trial, counsel, apparently in an effort to clarify the procedural posture, inquired of the court whether the counterclaim was denied, and the court stated: “I denied it.” Yet, thereafter, evidence was proffered by the defendant as to the counterclaim, some of which was excluded and some of which was heard as “dicta.”

       By doing so in the middle of the trial, the defendant was, in practical terms, deprived of the right to plead over within fifteen days pursuant to Practice Book § 10-44. In saying that, we are aware that “[i]t is incumbent on a [filing party] to allege some recognizable cause of action .... If he fails so to do, it is not the burden of the [opposing party] to attempt to correct the deficiency, either by motion ... or otherwise.” (Internal quotation marks omitted.) Burke v. Avitabile, 32 Conn. App. 765, 769, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993). The point is that it is one thing for the plaintiff not to seek to correct such a claimed defect, but it is quite another thing for the court, under the circumstances that existed in this case, to act to the same effect as would a motion to strike in a scenario in which the defendant could have elected under the rule to have fifteen days to plead over. See Practice Book § 10-44.

       As previously stated, a mortgage foreclosure is an equitable action, and the plaintiffs counterclaim sought equitable relief.


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    BEAL BANK, S.S.B. v. AIRPORT INDUSTRIAL LIMITED PARTNERSHIP ET AL.
    (AC 22431)
    Lavery, C. J., and Mihalakos and Hennessy, Js.
    Argued October 24, 2002
    officially released January 7, 2003

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

      Steven I. Frenkel, with whom, on the brief, was Thomas G. Ciarlone, Jr., for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

In this mortgage foreclosure action, the defendants, Airport Industrial Limited Partnership, Michael R. Levin and John B. D’Agostino, appeal from the judgment of the trial court rendered following the granting of the motion of the plaintiff, Beal Bank, S.S.B., for a supplemental judgment ordering the defendants to pay to the plaintiff certain security deposits. The dispositive issue is whether a mortgage foreclosure action is the proper proceeding to determine the respective rights of the foreclosing mortgagee and the mortgagor with respect to commercial tenant security deposits where the tenants have not been made parties to the proceeding. We conclude that it is not and, therefore, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendants’ appeal. The plaintiff is the assignee of a mortgage, note, assignment of rents and UCC-1 financing statement (loan documents) relating to a commercial construction loan given to the defendants in the original amount of $5,360,00o. On August 7, 2000, following the defendants’ default on the loan, the plaintiff commenced this mortgage foreclosure action against the defendants. On October 3, 2000, the court rendered a judgment of strict foreclosure pursuant to a stipulation of the parties. On October 6, 2000, title to the commercial property, which is located in East Granby, vested in the plaintiff. Thereafter, the plaintiff filed a motion for a deficiency judgment, which the court denied.

On June 21, 2001, the plaintiff filed a motion for a supplemental judgment, requesting the court to order the defendants to pay to the plaintiff all tenant security deposits that they held with respect to the subject property. The court granted the plaintiffs motion and this appeal followed.

As a preliminary matter, we set forth the appropriate standard of review. Whether a mortgage foreclosure action is the proper proceeding to address the parties’ dispute with respect to the tenants’ security deposits is a question of law. Our review therefore is plenary. See Wagner v. Clark Equipment Co., 259 Conn. 114, 122, 788 A.2d 83 (2002).

In its oral decision on the plaintiffs motion for a supplemental judgment, the court ordered the defendants to pay to the plaintiff all tenant security deposits that they held with respect to the foreclosed commercial property. The court further ordered that the security deposits be held in escrow for the benefit of the tenants. In an articulation of its decision, the court stated that it had “relie [d] on its equitable powers to fairly protect the tenants and secure their interest in the deposits in question” and that it had articulated fully its reasoning concerning the supplemental judgment in its oral decision that was rendered in a hearing after the court granted the defendants’ motion to reargue the plaintiffs motion for a supplemental judgment. In that decision, the court stated that a security deposit “should be held for the benefit of the tenant subject to the tenant performing all the covenants of the lease,” and that, if the tenant fails to perform all the obligations under the lease, the present owner of the property is entitled to “benefit from that security.”

Initially, we note that General Statutes § 47a-21 (c), on which the plaintiff relies to support its position that the court properly granted its motion for a supplemental judgment, relates only to residential real property and, therefore, is inapplicable to the present case, which concerns commercial premises. See Hoban v. Masters, 36 Conn. Sup. 611, 613, 421 A.2d 1318 (1980).

We agree with the court that a security deposit, whether commercial or residential, is the tenant’s property and that the landlord holds it for the tenant’s benefit subject to the tenant’s fulfilling all its obligations under the lease. Indeed, a security deposit by definition is “[m]oney deposited by tenant with landlord as security for full and faithful performance by [the] tenant of [the] terms of lease, including damages to premises. It is refundable unless the tenant has caused damage or injury to the property or has breached the terms of the tenancy or the laws governing the tenancy.” Black’s Law Dictionary (6th Ed. 1990).

We also agree with the court that in the present case, the tenants’ interest in their security deposits should be protected. The tenants, however, were not made parties to the proceedings, and there is absolutely no evidence in the record regarding the postforeclosure status of their leases and security deposits. The issue of which party is entitled to hold the tenants’ security deposits, therefore, could not have been litigated properly because the tenants, the parties most vitally affected, were not involved in the proceedings. See, e.g., Meadowbrook Third Co-op, Inc. v. Hamden, 165 Conn. 546, 549-50, 338 A.2d 475 (1973); DeDominicis v. Cornfield Point Assn., 154 Conn. 504, 506, 227 A.2d 89 (1967); Leo Foundation v. Cabelus, 151 Conn. 655, 658, 201 A.2d 654 (1964). Accordingly, we conclude that under the circumstances of this case, the mortgage foreclosure action was not the appropriate proceeding in which to determine the security deposit issue.

The judgment is reversed only as to the court’s granting of the plaintiffs motion for a supplemental judgment and the case is remanded with direction to deny that motion. In all other respects the judgment of strict foreclosure is affirmed.

In this opinion the other judges concurred.

       The parties subsequently modified the original loan documents.

       The subject property is a parcel of land on which a number of commercial buildings are situated.

       General Statutes § 47a-21 (c) provides in relevant part that “[a]ny security deposit paid by a tenant shall remain the property of such tenant in which the landlord and his successor shall have a security interest ... to secure such tenant’s obligations. . . . Any voluntary or involuntary transfer of a landlord’s interest in residential real estate to a successor shall constitute an assignment to such successor of such landlord’s security interest in all security deposits paid by tenants of such transferred residential real estate.” (Emphasis added.)

       At oral argument before this court, the plaintiff contended that the trial court properly determined that the plaintiff was entitled to hold the tenants’ security deposits because all the tenants attorned to the plaintiff with respect to their leases and, therefore, the tenants’ participation in these proceedings was unnecessary. Attornment is “[t]he agreement of a person to recognize a third party as a permissible successor party to a contract; most often, the agreement of a tenant to pay rent to a new landlord, especially a mortgagee who has foreclosed.” Black’s Law Dictionary (6th Ed. 1990). There is absolutely no evidence in the record regarding attornment between the plaintiff and the tenants and, therefore, the plaintiff’s contention is without merit.

       We note that a declaratory judgment action that includes all the necessary parties, including the tenants, appears to be the most efficacious proceeding to determine the issue.


author: FOTI, J.

text:
    STATEWIDE GRIEVANCE COMMITTEE v. WILLIAM L. ANKERMAN
    (AC 22299)
    Foti, Schaller and Peters, Js.

      Argued November 21, 2002
    officially released January 7, 2003

      William L. Ankerman, pro se, the appellant (defendant).

      Cathy A. Dowd, assistant bar counsel, for the appel-lee (plaintiff).
   Opinion

FOTI, J.

The defendant, William L. Ankerman, appeals from the judgment of the trial court suspending him from the practice of law for a period of three years. Only one of the issues raised by the defendant on appeal merits discussion: The defendant claims that the court improperly denied his motion for a mistrial in which he argued that the court failed to render its judgment within 120 days from the completion date of the trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant’s appeal. By letter dated July 6, 1998, the defendant informed the statewide grievance committee (committee) of what he deemed to be a “serious problem with [his] actions” in regard to his representation in a legal matter. The letter revealed the following facts. In 1993, the defendant brought a personal injury action on behalf of a minor. The Wallingford Probate Court appointed the minor’s parents as guardians of her estate and, after the parties reached a settlement in the lawsuit, the Probate Court approved the settlement. The defendant opened a trust account for the minor and deposited approximately $66,000 in settlement proceeds therein. The defendant thereafter withdrew trust account funds to pay various fees and medical providers, leaving approximately $44,000 in the trust account. The defendant further represented that despite the fact that he was entitled to only $9000 in attorney’s fees from the remaining funds, he nonetheless improperly withdrew the entire $44,000 from the account for his personal use.

In September, 2000, the committee, by way of a written complaint filed in the Superior Court, presented the defendant for misconduct not occurring in the presence of the court. In its complaint, the committee alleged, inter alia, that (1) the defendant had reported to it that he had misappropriated approximately $35,000 from the trust account, (2) the Probate Court had issued a decree whereby it ordered the defendant to repay $64,344.14 in misappropriated account funds, (3) the defendant had appeared before the committee to discuss his conduct and (4) it deemed the conduct worthy of disciplinary action by the court. The committee alleged that the defendant had violated rules 1.15 (b), 8.4 (2) 5and 8.4 (3) of the Rules of Professional Conduct and asked that the court impose such discipline as it deemed appropriate.

On January 10, 2001, the court conducted a hearing on the presentment. At the conclusion of the evidentiary hearing, the court ordered the parties to file briefs by February 1, 2001, and scheduled argument for February 5, 2001. On February 5, 2001, the court heard argument from both parties. On June 5, 2001, the court issued what it entitled a “memorandum of decision” in which it found that the committee had proven by clear and convincing evidence that the defendant had violated the Rules of Professional Conduct alleged in the complaint. In its memorandum, the court ordered the parties to appear before it on July 24,2001, for a hearing related to the issue of an appropriate disposition and stated that the court would issue a separate memorandum following that heating.

On July 24, 2001, the court conducted its hearing. On August 22, 2001, the court issued a memorandum of decision in which it detailed its factual findings concerning the defendant’s conduct, set forth its findings and conclusions concerning the appropriate discipline against him, and suspended him from the practice of law for a period of three years. This appeal followed.

The issue before us concerns the court’s denial of the motion for a mistrial that the defendant filed on July 23, 2001. By means of that motion, the defendant argued that the court had failed to issue its decision on the complaint within 120 days as required by General Statutes § 51-183b. The defendant posited that February 5,2001, was the completion date of the trial because, on that date, the parties already had submitted their posttrial briefs and had completed their arguments to the court on the evidence adduced at the January 10, 2001 hearing. The defendant also pointed out that in its June 5, 2001 memorandum, the court made factual findings, but failed to dismiss the complaint or to take any action against him. Essentially, the defendant argued that as of February 5, 2001, the trial had ended and that the court had ample evidence on which to render a judgment. Further, the defendant argued that the court, by failing to render judgment by June 5, 2001, failed to “retain jurisdiction” and that its order, requiring the parties to appear for an additional hearing related to the issue of sanctions, did not open the hearing.

The court heard argument on the defendant’s motion on July 24, 2001. The court denied the motion. The court explained that it scheduled an additional hearing related to the issue of sanctions because, in light of the seriousness of the proceeding and the fact that any sanction it would impose would have a dire effect on the defendant’s career, it wanted to afford the defendant an opportunity “to make sure that there was nothing that the court overlooked or that [the defendant] wished the court to consider that was not already before the court.” The court further stated that it had “the option [during the 120 day period after the completion date of the trial] to reopen the evidence if the court feels that it needs more evidence or more input from the lawyers for any reason to assist the court in reaching its decision.” In its subsequent August 22, 2001 memorandum of decision, the court further explained that it ordered the parties to appear at the hearing “because there was a dearth of evidence to assist the court in reaching an appropriate disposition.” The court stated that because of that lack of evidence and in the interest of justice, it “chose to proceed cautiously and afford [the defendant] an additional opportunity to present evidence in mitigation of his misconduct before imposing discipline.”

On appeal, the defendant reiterates the arguments on which he relied in his motion for a mistrial. We first set forth the standard by which we will evaluate his claim. “The decision as to whether to grant a motion for a mistrial ... is one that requires the trial court to exercise its judicial discretion. . . . Our review of the trial court’s exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. ... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Internal quotation marks omitted.) Nevers v. Van Zuilen, 47 Conn. App. 46, 51, 700 A.2d 726 (1997).

In reviewing the court’s exercise of discretion, we necessarily must determine whether the court correctly applied the law and reasonably could have concluded that the operation of § 51-183b, as well as the defendant’s objection on such ground, did not deprive it of the power to continue to exercise its jurisdiction over the parties. We afford plenary review to the court’s legal conclusions. See Verna v. Commissioner of Revenue Services, 261 Conn. 102, 107, 801 A.2d 769 (2002); Langan v. Weeks, 37 Conn. App. 105, 112, 655 A.2d 771 (1995).

We conclude that on June 5, 2001, when the court ordered the parties to appear at a subsequent hearing to address the issue of aggravating and mitigating factors, it opened the case. A court, in the interest of justice, after the close of evidence, may exercise its discretion to open the case for the purpose of permitting the introduction of additional evidence. Season-All Industries, Inc. v. R. J. Grosso, Inc., 213 Conn. 486, 493, 569 A.2d 32 (1990); Hauser v. Fairfield, 126 Conn. 240, 242, 10 A.2d 689 (1940).

In the present case, the court explained that it chose to open the case because “there was a dearth of evidence to assist the court in reaching an appropriate disposition.” The court further stated that “[i]n the interest of justice, [it] chose to proceed cautiously and afford [the defendant] an additional opportunity to present evidence in mitigation of his misconduct before imposing discipline.” The court’s decision to seek additional evidence did not reflect an abuse of discretion. “A judge is not an interlocutor presiding over a debate. He is a minister of justice. ... To this end, he is empowered to exercise a reasonable discretion in the conduct of a trial.” (Citations omitted.) McWilliams v. American Fidelity Co., 140 Conn. 572, 580-81, 102 A.2d 345 (1954).

The defendant posits that (1) the court did not open the case, and (2) that the court could have opened the case only “formally and explicitly.” We disagree with both of those assertions. By means of its June 5, 2001 order, copies of which the clerk of the Superior Court mailed to the parties, the court clearly ordered the parties to appear to address the issue of sanctions. Further, the court stated that its memorandum of decision would follow that subsequent healing. See footnote 6. The court’s memorandum of June 5, 2001, did not constitute a judgment. Our Supreme Court has stated that “a ‘judgment’ is the ‘final decision of the court resolving the dispute and determining the rights and obligations of the parties.’ ” Lauer v. Zoning Commission, 246 Conn. 251, 257, 716 A.2d 840 (1998), citing Black’s Law Dictionary (6th Ed. 1990). In its June 5, 2001 memorandum, the court merely stated its factual findings concerning the defendant’s conduct and ordered a hearing related to the second part of its analysis, the imposition of an appropriate sanction.

Even if we were not to conclude that the court explicitly had opened the case, we certainly would conclude that it had done so implicitly. Our Supreme Court has held that even if a court has not explicitly opened a case, it may do so implicitly, provided that it gives the party against whom adverse evidence may be used notice that it might admit such adverse evidence. Providing adequate notice affords such adverse party the opportunity to cross-examine any additional witnesses or to rebut any additional evidence adduced after the opening of the case. Suffield Bank v. Berman, 228 Com. 766, 784, 639 A.2d 1033 (1994); see also Season-All Industries, Inc. v. R. J. Grosso, Inc., supra, 213 Com. 493-94 (no implicit opening of case where trial court failed to provide notice to parties that it may use newly admitted evidence against them).

Contrary to the defendant’s argument, the court put the defendant on notice that it was scheduling the July 24, 2001 hearing to elicit additional evidence and argument as to the issue of sanctions against him. At the beginning of the hearing, the court essentially reminded the defendant that the additional hearing was for his benefit; it gave him the opportunity to produce evidence to address mitigating factors that the court should take into consideration before imposing any sanctions. For those reasons, the defendant cannot be heard to complain that the opening of the case prejudiced his defense of the action or that he lacked notice of what additional evidence or argument the court sought. At the July 24, 2001 hearing, the defendant introduced several documentary exhibits into evidence and argued that several mitigating factors weighed in his favor.

Having reached this point in our analysis, we conclude that the court properly exercised its discretion in opening the case. Having found the defendant’s conduct to be violative of the Rules of Professional Conduct, the court turned its attention to the second part of its deliberations, the imposition of sanctions. It noticed an evidentiary void and, in the interest of justice, asked the parties to address the matter. As a result, the court opened the case on June 5, 2001, within 120 days from the February 5, 2001 completion date of the trial. After the court conducted the additional hearing on the issue of sanctions, the new completion date of the trial was July 24, 2001. The court rendered its judgment against the plaintiff on August 22, 2001, well within the statutory time period.

Because the court was well within its province to open the case within the 120 days after the completion date of the trial, it legally and logically concluded that it retained the power to exercise its jurisdiction over the parties. Accordingly, we conclude that the court’s denial of the defendant’s motion for a mistrial resulted from a proper exercise of its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant raises fourteen other claims in his brief. Having reviewed the claims, we conclude that they are without merit. Although we decline to discuss them, our disposition of one of them warrants a brief explanation. In support of that claim, the defendant points out that the court, in its memorandum of decision, cited Practice Book § 2-41 (e) for the proposition that “[t]he sole issue to be determined in the presentment proceeding shall be the extent of the final discipline to be imposed . . . .” The defendant argues that because Practice Book § 2-41 governs discipline of attorneys who have been convicted of a felony in a jurisdiction other than Connecticut, a circumstance not implicated in this matter, the court’s citation to that section was “fatal to the validity of its decision.” We disagree with that claim, and it suffices to note that although the court’s sole reference to Practice Book § 2-41 was erroneous, such error was harmless. After reviewing the memorandum of decision, it is obvious that the court did not base its decision on that section; rather, the court properly conducted a two-pronged analysis. First, it determined by clear and convincing evidence that the defendant had violated the Rules of Professional Conduct. Second, after considering appropriate factors, the court imposed what it concluded was an appropriate sanction against the defendant for such violation. For those reasons, we conclude that the court’s reference to Practice Book § 2-41, although improper, had no bearing on its decision.

       See Practice Book § 2-47.

       Rule 1.15 (b) of the Rules of Professional Conduct provides in relevant part: “Upon receiving funds ... in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or agreement with the client, a lawyer shall promptly deliver to the client or third person any funds . . . that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.”

       Rule 8.4 of the Rules of Professional Conduct provides in relevant part: “It is professional misconduct for a lawyer to . . .
      “(2) Commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects . . . .”

       Rule 8.4 of the Rules of Professional Conduct provides in relevant part: “It is professional misconduct for a lawyer to . . .
      “(3) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . . .”

       The order stated in relevant part: “A hearing will be held as to an appropriate disposition on July 24, 2001, at 2 p.m. The parties are hereby ordered to be prepared to address the aggravating and mitigating factors set forth in §§ 9.22 and 9.32, respectively, of the American Bar Association’s Standards for Imposing Lawyer Sanctions. A memorandum will follow that hearing.”

       General Statutes § 51-183b provides: “Any judge of the Superior Court and any judge trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render such judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”

       “[T]he defect in a late judgment is that it implicates the trial court’s power to continue to exercise jurisdiction over the parties before it. . . . A delay in decision beyond that authorized by the statute makes the decision voidable and, absent waiver, requires a new trial.” (Citations omitted; internal quotation marks omitted.) Lauer v. Zoning Commission, 246 Conn. 251, 255-56, 716 A.2d 840 (1998); see also Waterman v. United Caribbean, Inc., 215 Conn. 688, 691-93, 577 A.2d 1047 (1990).

       Although the defendant argues in his brief, as he did at trial, that prior to the hearing, he did not know whether the court sought to elicit additional evidence, we note that the defendant filed a motion for a continuance on July 23, 2001. The defendant informed the court that the purpose of the motion was to give him additional time “to obtain character witnesses” to testify on his behalf at the July 24,2001 hearing. The court denied the motion for a continuance after the defendant conceded that he was not aware of any actual scheduling conflicts that precluded witnesses from so testifying. The defendant's conduct in filing the motion and the substance of his arguments to the court in support thereof, as well as his presentation of evidence at the hearing itself, belie his representation that he was unsure whether the court would admit additional evidence at the hearing.


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. ALBERT HIGGINS
    (AC 21913)
    Schaller, Flynn and West, Js.

      Argued September 20, 2002
    officiaEy released January 7, 2003

      Salvatore Bonanno, with whom were Michael A. Georgetti and, on the brief, Janis C. Jerman, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were John M. Bailey, former chief state’s attorney, Kimberley N. Perrelli, senior assistant state’s attorney, and Joy K. Fausey, former deputy assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The principal issue to be decided in this appeal is whether, in light of the defendant’s acquittal of the crimes of sexual assault in the first degree and risk of injury to a child, the jury was foreclosed from using evidence from the state’s case-in-chief that the defendant had sexually molested the victim in considering his guilt for the crime of tampering with a witness. We conclude that it was not foreclosed from considering the evidence and that the evidence of molestation was sufficient to permit the jury to infer that the defendant was telling the victim to testify falsely when he told her to tell the police that nothing ever happened between them.

The defendant, Albert Higgins, appeals from the judgment of conviction, rendered after a jury trial, of tampering with a witness on March 23, 1999, in violation of General Statutes § 53a-151. On appeal, the defendant claims that the trial court improperly denied his motion for a judgment of acquittal notwithstanding the verdict and his motion for a new trial. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our determination of this appeal. The defendant was convicted on one count of a six count information. His only conviction arose from the sixth count, charging him with tampering with a witness on March 23, 1999, in violation of § 53a-151. The remaining counts, of which he was acquitted, were as follows. Counts one and two charged sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2); counts three and four charged risk of injury to, or impairing the morals of, a child in violation of General Statutes § 53-21 (2); count five charged tampering with a witness on or about March, 1999, in violation of § SSa-lSl. The defendant elected to be tried by a jury, and, at the close of the state’s case, on February 2, 2001, he moved for a judgment of acquittal, pursuant to Practice Book § 42-40 et seq., claiming that the state had not presented sufficient evidence to support a guilty verdict. The court delayed ruling on the motion until after the close of all the evidence, stating that it was doing so without prejudice to the defendant. On February 9, 2001, after the close of evidence, the court denied the motion.

The jury found the defendant not guilty on counts one through five and convicted him on count six, tampering with a witness on March 23, 1999. Four days later, on February 13, 2001, the defendant moved for a judgment of acquittal notwithstanding the verdict and for a new trial. On May 4, 2001, the court denied these motions and sentenced the defendant to five years incarceration, execution suspended after one year, and four years probation.

Thereafter, the defendant filed this appeal, claiming that the court improperly denied his motions for a judgment of acquittal notwithstanding the verdict and for a new trial because (1) the evidence was insufficient to support the jury’s guilty verdict, (2) the guilty verdict was inconsistent with the not guilty verdict on the other counts, and (3) § 53a-151 is so vague and indefinite as to violate the due process clause of article first, § 8, of the constitution of Connecticut and the fourteenth amendment to the constitution of the United States. We affirm the judgment of the trial court.

The following evidence was introduced during the state’s case-in-chief. The victim testified that the defendant began sexually abusing her when she was ten years old and did so for two years. The victim testified that the first time the defendant molested her, he made her rub his penis, and he inserted his penis into her vagina. She testified that this hurt and that the defendant stopped because she started to cry. Several more incidents occurred where the defendant continued sexually molesting the victim in this same manner. After the victim informed her mother of the abuse and they notified the police, the defendant spoke to the victim about the abuse. He asked her if she had talked to the police and told her that “when [she does] talk to the police, just tell them nothing ever happened.” The mother of the victim also testified that the defendant telephoned the victim even after they reported the alleged abuse to the police.

Detective Cindy Lloyd testified that she spoke with the defendant on March 10, 1999, notified him of the allegations against him and told him that it would not be a good idea for him to speak with the alleged victim. After learning that the defendant went to the victim’s school to speak with her, Lloyd, again, on March 23, 1999, spoke with him and told him not to have any contact with the victim.

The victim testified that the defendant came to her school, asked her why her mother was behaving so strangely, asked her if she had talked to the police and told her to tell them that nothing happened. She also gave a statement to the police concerning the defendant’s telephone calls. When asked by the prosecutor if she recalled any specific dates that the defendant had telephoned her and told her to tell the police that nothing happened, the victim had no specific recall. After refreshing her memory with the police report dated March 25, 1999, concerning the defendant’s contact with her, the victim testified that the defendant had telephoned her on March 23, 1999.

I

The defendant first claims that the court improperly denied his motions for a judgment of acquittal notwithstanding the verdict and for a new trial because the evidence was insufficient to support the jury’s guilty verdict on the charge of tampering with a witness on March 23, 1999. The defendant argues that the court must look only to the state’s case-in-chief when determining the sufficiency of the evidence because the trial court delayed its ruling, without prejudice, on his motion for a judgment of acquittal, which he made at the close of the state’s case. To look beyond the state’s case-in-chief, the defendant argues, would be prejudicial. We agree. The state, however, argues that we must adhere to the waiver rule and review the evidence in toto, including the evidence introduced by the defendant after the close of the state’s case. Because of the delayed ruling “without prejudice” to the defendant on the motion for a judgment of acquittal, we first analyze whether the waiver rule is applicable to this case and conclude that it is not.* ***

A

Our rules of practice concerning the submission of a motion for a judgment of acquittal are as follows. Practice Book § 42-40 provides in relevant part: “After the close of the prosecution’s case-in-chief or at the close of all the evidence, upon motion of the defendant or upon its own motion, the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense for which the evidence would not reasonably permit a finding of guilty.”

Practice Book § 42-41 provides: “If the motion is made after the close of the prosecution’s case in chief, the judicial authority shall either grant or deny the motion before calling upon the defendant to present defendant’s case in chief. If the motion is not granted, the defendant may offer evidence without having reserved the right to do so.” (Emphasis added.)

Practice Book § 42-42 provides: “If the motion is made at the close of all the evidence in a jury case, the judicial authority may reserve decision on the motion, submit the case to the jury, and decide the motion either before the jury return a verdict or after they return a verdict of guilty or after they are discharged without having returned a verdict.”

Section 42-41 of the rules of practice specifically directs the court either to grant or to deny a motion for a judgment of acquittal that is submitted at the close of the state’s case-in-chief. Although § 42-42 allows the court the discretion to delay ruling on a motion that is submitted at the close of all evidence, until after the jury renders its verdict, no such discretion is authorized by § 42-41.

Under our current law, if the court denies a motion for a judgment of acquittal at the close of the state’s case-in-chief, the defendant, should he or she decide to put forth evidence, proceeds at his or her own risk that evidence produced in the defense case may be used to remedy deficiencies in the state’s case-in-chief, resulting in a conviction that otherwise would not have been possible. See State v. Rutan, 194 Conn. 438, 440-41, 479 A.2d 1209 (1984). This principle is known as the waiver rule. See id. In Rutan, our Supreme Court discussed the waiver rule and its implications for a criminal defendant. See id., 440-44. The court explained that “[t]he waiver rule . . . forces the defendant to choose between waiving the right to a defense and waiving the right to put the state to its proof.” Id., 440-41.

The defendant’s motion for a judgment of acquittal was not acted on at the end of the state’s case, as our rules of practice require. Therefore, because the court delayed ruling on the motion for a judgment of acquittal without prejudice, we conclude, as did the trial court, that to avoid prejudicing the defendant, only the evidence that was presented by the state in its case-in-chief is material to consideration of the defendant’s claim of insufficient evidence and that no waiver of his right to have the motion decided solely on that evidence occurred by virtue of his decision to put on evidence when the court had reserved judgment on his motion. Accordingly, as we undertake appellate review of the denial of the motion for a judgment of acquittal, we will examine the legal sufficiency of the evidence at the close of the state’s case-in-chief.

B

We first turn to the defendant’s claim that the evidence in the state’s case-in-chief was insufficient to support a guilty verdict on the charge of tampering with a witness on March 23, 1999, in violation of § 53a-151. The defendant argues that “[t]here is no evidence in the record that on March 23, 1999, the defendant induced [the victim] to testify falsely. The record of the state’s case-in-chief is devoid of any evidence of the defendant’s specific intent to induce false testimony.” We reject the defendant’s claim.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Green, 261 Conn. 653, 667, 804 A.2d 810 (2002).

“[In] determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. ... In other words, an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference. Equally well established is our holding that a jury may draw factual inferences on the basis of already inferred facts. . . . Moreover, [i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the juiy’s verdict of guilty.” (Internal quotation marks omitted.) Id., 668-69.

To support the defendant’s conviction on count six, the state had to prove the following elements beyond a reasonable doubt: (1) that the defendant believed an official proceeding was pending or was about to be instituted against him; and (2) that the defendant, on March 23, 1999, induced or attempted to induce the victim to withhold testimony or to testify falsely. See General Statutes § 53a-151; State v. Cavallo, 200 Conn. 664, 668-69, 513 A.2d 646 (1986).

The defendant does not contest that the testimony of Lloyd provided sufficient evidence that the defendant knew that a proceeding was about to be instituted against him. As to the alternative ways of establishing the second element of a tampering charge,* 23*** we agree with the defendant that although there was testimonial evidence from the victim that the defendant had told her, “Don’t say anything,” the state did not offer evidence of when that occurred. This would be insufficient, evidence to prove that the defendant, on the specific date of March 23, 1999, attempted to induce the victim to withhold testimony as charged. Nevertheless, the state may prove the second prong of the tampering statute, not just by proof of the defendant’s importuning another to withhold evidence but also by proof of the defendant’s urging another to testify falsely. If the jury believed, on the basis of the evidence and inferences drawn therefrom, that some improper and unlawful sexual behavior did occur between the defendant and the victim, then it was reasonable for the jury to conclude that the defendant was telling her to lie when, on March 23,1999, he specifically instructed her to tell the police that “nothing ever happened.” The mere fact that the jury acquitted the defendant of the substantive charges relating to alleged sexual molestation does not dictate a conclusion that the jury necessarily found that no such conduct occurred, nor does it foreclose consideration of it in weighing guilt on the tampering charge.

In this case, the jury, or the court at the close of the state’s case-in-chief, reasonably could have concluded that the defendant had engaged in some improper sexual behavior toward the victim. His words, then, to tell the police that “nothing ever happened,” if the jury believed the evidence that something did happen, were consistent with an attempt to induce the victim to testify falsely. After reviewing the evidence in the light most favorable to sustaining the jury’s verdict, as we must, we conclude that there was sufficient evidence to support the denial of the defendant’s motions for a judgment of acquittal notwithstanding the verdict and for a new trial. Accordingly, we reject the defendant’s claim of evidentiary insufficiency.

II

We next analyze in more detail the defendant’s related claim that the guilty verdict on the sixth count, tampering with a witness on March 23, 1999, was inconsistent with the not guilty verdict on the other counts. He argues that the verdict is inconsistent because he could not be guilty of inducing the victim to testify falsely if the jury believed that he was not guilty of the other crimes for which he was charged because, in effect, these not guilty verdicts logically mean they found that no molestation had occurred. Accordingly, he argues, the inconsistent verdict should have been set aside. We disagree.

The defendant appears to allege only factual inconsistencies in the jury’s verdict. We simply note that a verdict that is factually inconsistent will not be overturned on appeal. Our Supreme Court “has refused to reverse a verdict of guilty on one count where that verdict appeared to be inconsistent with a verdict of acquittal on another count. . . . The law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise.” (Internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 242, 745 A.2d 800 (2000). “[Ijnconsistency of the verdicts is immaterial. ... As Justice Holmes long ago observed in the case of Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 76 L. Ed. 356 (1932): The most that can be said in such cases [i.e., of inconsistent verdicts] is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity. . . . That the verdict may have been the result of compromise, or a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” (Citations omitted; internal quotation marks omitted.) State v. Bailey, 209 Conn. 322, 344-45, 551 A.2d 1206 (1988).

Our review of the evidence in the record indicates that it was sufficient for the jury reasonably to reach the conclusions that it did. “[T]he many possible explanations for the acquittal on [some] charge [s] did not necessarily indicate that the jury had acted improperly in convicting the defendant on [another].” (Internal quotation marks omitted.) State v. Cassidy, 3 Conn. App. 374, 390, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985), quoting State v. Martin, 189 Conn. 1, 7, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983). The defendant was “given the benefit of [his] acquittal on the counts on which [he] was acquitted, and it is neither irrational nor illogical to require [him] to accept the burden of conviction on the [count] on which the juiy convicted.” (Internal quotation marks omitted.) State v. Cassidy, supra, 390, quoting United, States v. Powell, 469 U.S. 57, 69, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984).

We conclude from our examination of the record that the evidence presented in the state’s case-in-chief was sufficient to sustain the verdict on the charge of tampering with a witness on March 23, 1999, and that the jury was not foreclosed from considering it by the doctrine of inconsistency. The court, therefore, did not improperly refuse to render a judgment of acquittal not withstanding the verdict.

Ill

The defendant’s final claim is that, as applied to this case, § 53a-151 is so vague and indefinite that it violates the due process clause of article first, § 8, of the constitution of Connecticut and the fourteenth amendment to the constitution of the United States. The defendant claims that, because § 53a-151 does not clearly define his March 23,1999 conduct as illegal, the statute is void for vagueness as applied to him. We disagree.

“The standard that we use to determine whether a statute is void for vagueness under the fourteenth amendment to the United States constitution is well established. A statute . . . [that] forbids or requires conduct in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. . . . Laws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly.” (Citations omitted; internal quotation marks omitted.) State v. Cavallo, supra, 200 Conn. 667.

In this case, the language of § 53a-151 satisfies this test. The statute directs that “[a] person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding.” General Statutes § 53a-151 (a).

The defendant challenges the proposition that § 53a-151 provided him with proper notice that he was prohibited from telephoning the victim and instructing her to tell the police that nothing had happened. He claims that the term “induces or attempts to induce” is ambiguous as it relates to his conduct. We find no merit in this claim.

“The language of § 53a-151 plainly warns potential perpetrators that the statute applies to any conduct that is intended to prompt a witness to testify falsely or to refrain from testifying in an official proceeding that the perpetrator believes to be pending or imminent. The legislature’s xmqualified use of the word ‘induce’ clearly informs persons of ordinary intelligence that any conduct, whether it be physical or verbal, can potentially give rise to criminal liability. Although the statute does not expressly mandate that the perpetrator intend to cause the witness to alter or withhold his testimony, this implicit requirement is apparent when the statute is read as a whole. ... By limiting the statute’s application to situations where the perpetrator believes that an official proceeding is pending or about to be instituted, the legislature indicated that it did not envisage outlawing conduct that inadvertently convinces a witness to testify falsely or to refuse to testify. The legislature’s choice of the verb ‘induce’ connotes a volitional component of the crime of tampering that would have been absent had it employed a more neutral verb such as ‘cause.’ Furthermore, the statute’s application to unsuccessful, as well as successful, attempts to induce a witness to render false testimony supports our conclusion that the statute focuses on the mental state of the perpetrator to distinguish culpable conduct from innocent conduct.” (Citations omitted.) State v. Cavallo, supra, 200 Conn. 668-69.

The defendant telephoned the victim and, despite repeated police instruction to refrain from contacting her, did contact her on March 23, 1999, instructing her to tell the police that “nothing ever happened.” In light of the plain language of § 53a-151, we cannot say that the defendant did not possess fair warning that this course of conduct was illegal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state separated the tampering charges into two counts, count five charged the defendant with tampering with a witness, the victim, during the month of March, 1999. The court charged the jury that these dates would not include conduct occurring on March 23,1999. The defendant was specifically charged in count six with conduct specifically occurring on March 23, 1999, and the court so charged the jury.

       The court allowed very brief argument on the motion as to the fifth count, tampering with a witness in March, 1999, only. Although the court stated that the motion was denied, it appears that the denial went only to the fifth count. Further discussion of the motion occurred at the hearings on March 23, 2001, and May 4, 2001. See footnote 3.

       Although the defendant claims, inter alia, that the court improperly denied his motion for a new trial, procedurally, “if we were to rule that the evidence was insufficient, the defendant would be entitled to an acquittal rather than a new trial. Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).” (Internal quotation marks omitted.) State v. Fernandez, 198 Conn. 1, 21, 501 A.2d 1195 (1985).

       On February 7, 2001, before calling the jury into the courtroom and resuming the trial, the following colloquy occurred:
      “[Defense Counsel]: Your Honor, I’ll leave it to the court’s discretion. We filed on — it was so long ago — it was Friday, I think it was, a motion for judgment of acquittal. I don’t know if the court prefers to defer ruling on that until the close of all evidence. If His Honor does, we have no objection to that, Your Honor.
      “The Court: Yes, well I’d like to get started. It’s quarter of eleven. I have reviewed all the evidence to date in working on the charge. We have effectively a two day snowstorm, which has delayed the progress of the case. So, we’ll let you argue the entire thing without prejudice when we’ve concluded.
      “[Defense Counsel]: Thank you, Your Honor.”
      On March 23, 2001, the court heard oral argument on the motions for a judgment of acquittal notwithstanding the verdict and for a new trial.
      On May 4, 2001, the following colloquy occurred:
      “The Court: . . . Did the defendant make a motion for judgment of acquittal at the close of the state’s case?
      “[Defense Counsel]: I can answer 1hat, Your Honor. Yes, I did. I filed the written motion at that time. And there was an understanding that the motion would be not ruled on then, but ruled on at the close of all evidence without prejudice.
      “[Prosecutor]: That is also my recollection, Your Honor.
      “[Defense Counsel]: It was a written motion I believe, Your Honor.
      “The Court: Yes, I shouldn’t have done that. Okay.”

       Neither the state nor the defendant argues, nor does it appear, that the trial court looked beyond the state’s case-in-chief when deciding the motion for judgment of acquittal notwithstanding the verdict. At the March 23,2001 hearing, when defense counsel stated that he wanted to make it clear that the defendant had filed the motion for judgment of acquittal at the close of the state’s case, the court responded: “I’m treating it that way.” The court also explained to the prosecutor that defense counsel was arguing that there was insufficient evidence in the state’s case-in-chief.

       See footnote 4.

       General Statutes § 53a-151 provides: “(a) A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding.
      “(b) Tampering with a witness is a class D felony.”

       The state can prove the second element oí the statute by establishing that (1) a person induced or attempted to induce a witness to testify falsely, (2) a person induced or attempted to induce a witness to withhold testimony, (3) a person induced or attempted to induce a witness to elude legal process summoning him or her to testify or (4) a person induced or attempted to induce a witness to absent himself or herself from any official proceeding. Because the record in this case contained evidence only as to the first two alternatives, the court properly charged the jury only as to the first two of those alternative ways of satisfying the second element.

       Although ordinarily the state does not have to prove that a crime occurred on the specific date alleged; see State v. Mendoza, 49 Conn. App. 323, 328-29, 714 A.2d 1250, cert. denied, 247 Conn. 903, 720 A.2d 516 (1998); in this case the state precisely charged the defendant in count six with tampering with a witness on the specific date of March 23,1999. Accordingly, the trial court ruled, and we agree, that the conduct alleged in count six has to have occurrred specifically on March 23, 1999. See footnote 1.

       See footnote 7.

       Regarding any possible claim of legal inconsistency, we conclude that the jury’s verdict was not inconsistent as a matter of law. “[W]here the inconsistent verdicts claim involves a simultaneous conviction and acquittal on different offenses, the court, in testing the verdict of guilty for inconsistency as a matter of law, is necessarily limited to an examination of the offense charged in the information and the verdict rendered thereon without regard to what evidence the jury had for consideration. ... If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other.” (Citations omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 244, 745 A.2d 800 (2000).
      A defendant may be found guilty of tampering with a witness on a date specific if (he state establishes that the defendant, on that specific date, with the belief that an official proceeding was, or was about to be, commenced against him, sought to induce a witness to testify falsely or withhold testimony. In this case, the other charges against the defendant, to wit, sexual assault in (he first degree and risk of injury to or impairing the morals of a child, do not contain the same elements as the charge for which the defendant was convicted. Accordingly, any claim of legal inconsistency in relation to these charges must fail.

       The defendant cites his right to due process of law under the fourteenth amendment to the federal constitution and article first, § 8, of the Connecticut constitution. “Because the defendant does not provide a separate analysis under the state constitution, for puiposes of this case we treat the rights as providing coextensive protection.” State v. Provost, 251 Conn. 252, 263 n.7, 741 A.2d 295 (1999), cert. denied, 531 U.S. 822, 121 S. Ct. 65, 148 L. Ed. 2d 30 (2000).


author: PER CURIAM.

text:
    RUBEN BERGER v. COMMISSIONER OF CORRECTION
    (AC 22865)
    Mihalakos, Dranginis and West, Js.
    Submitted on briefs October 31, 2002
    officially released January 7, 2003

      Robert J. McKay filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, Rita M. Shair, senior assistant state’s attorney, and Cynthia S. Sera-fini, assistant state’s attorney, filed a brief for the appel-lee (respondent).
   Opinion

PER CURIAM.

The petitioner, Ruben Berger, appeals from the judgment of the habeas court dismissing his amended petition for a writ of habeas corpus. The petitioner claims that the court improperly failed to conclude that his trial counsel was ineffective during the petitioner’s jury trial and that he was prejudiced as a result.

After a review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The court’s dismissal of the petition for a writ of habeas corpus was predicated on a factual review of his claim of unlawful confinement by reason of ineffective assistance of trial counsel. Specifically, the petitioner claims that there was an inadequate pretrial investigation, a failure to explore matters important to his defense and a failure to call witnesses to testify at his trial. He further claims that but for the mistakes of trial counsel, the result of the trial would have been different.

The court properly determined that the petitioner had failed to rebut the strong presumption that “counsel's conduct f [ell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992). The court also found that the petitioner and his attorney had conferred on multiple occasions following the petitioner’s arrest and during pretrial proceedings in court, and that the petitioner had failed to establish any of his claims that trial counsel rendered ineffective assistance.

We conclude that the court had before it sufficient evidence to find as it did and that it properly rejected the petitioner’s claim.

The judgment is affirmed.