author: PETERS, J.

text:
    20 ORCHARD STREET, LLC v. WATER POLLUTION CONTROL AUTHORITY OF THE TOWN OF BROOKFIELD
    (AC 23112)
    Lavery, C. J., and Schaller and Peters, Js.

      Argued May 5
    officially released July 29, 2003

      Neil R. Marcus, for the appellant (plaintiff).

      Jeffrey B. Sienkiewicz, for the appellee (defendant).
   Opinion

PETERS, J.

According to the regulations of the town of Brookfield water pollution control authority (authority), an applicant requesting a sewer connection must submit with its application information regarding the location of the proposed sewer connection. The dispositive question presented on this appeal is whether an applicant is entitled to a writ of mandamus to compel the authority to grant a sewer connection application that the authority rejected for failure to contain the required information. The trial court denied the plaintiffs writ of mandamus. We agree and affirm the judgment of the trial court.

On January 23, 2002, the plaintiff, 20 Orchard Street, LLC, presented to the defendant authority two applications for sewer service for property located at 26-30 Orchard Street in Brookfield. The plaintiff wanted to develop the subject property to include a 3000 square foot office building and a forty-five unit residential building. To move forward with the development, the plaintiff requested permission to connect the proposed buildings to the existing town sewer located on nearby land owned by the state.

The authority reviewed and denied the plaintiffs applications on the day of their submission. The authority determined that the “subject property is not identified as a property for which sewer service is available as defined in Section 1.2 of the Water Pollution Control Authority Rules and Regulations .... It is also noted that because of the limited remaining [sewer] capacity, the Authority cannot make any exception for this due to the constraints of said limited remaining capacity. It is further noted that the application plans are not in conformance with the requirements of the regulations and should a subsequent application be submitted or should further action on the pending applications be required that detailed plans for the building sewer and any other details necessary to service the property will be required.”

The plaintiff thereafter filed an application for a writ of mandamus with the Superior Court, requesting the court to “issue the permit to connect and discharge into the sewer.” The plaintiff claimed that the authority was required to grant the plaintiff’s applications because the town had sufficient sewage capacity available for the proposed buildings. The denial of the applications, according to the plaintiff, left it with no adequate remedy at law to pursue the development of its property.

The authority denied the allegations of the plaintiffs complaint and asserted one special defense. In that special defense, the authority alleged that the existing agreement between the town of Brookfield and the city of Danbury, pursuant to which Brookfield contracts for the discharge of its sewage into the Danbury treatment plant, did not provide the requisite additional discharge capacity for the plaintiffs property.

The trial court rendered judgment for the authority. In an oral decision, the court concluded that the authority had made a good faith assessment of the plaintiffs applications. The court further held that the plaintiff had not established all of the prima facie elements necessary for the issuance of a writ of mandamus. Specifically, the plaintiff had failed to prove that the action undertaken by the authority was ministerial in nature and that the action had impaired a “clear legal right” of the plaintiff.

On appeal from the court’s denial of a writ of mandamus, the plaintiff makes five claims. It argues that the court improperly concluded that (1) the authority considered the merits of the plaintiffs applications in good faith, (2) the authority’s decision was a discretionary act, (3) the plaintiff did not have a “clear legal right” to the requested sewer connections, (4) the applications did not qualify under § 1.2 of the Brookfield water pollution control authority regulations because the applications were incomplete and (5) the town did not have the capacity to dispose of the sewage that would be generated by the proposed buildings. The authority asks us to affirm the court’s decision.

“We note at the outset the requirements for the issuance of a writ of mandamus. Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes. ... It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law. . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks. . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy. . . . We review the court’s decision, therefore, to determine whether it abused its discretion in denying the writ.” (Citation omitted; internal quotation marks omitted.) Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 234-35, 794 A.2d 1016 (2002); see also Miles v. Foley, 253 Conn. 381, 391, 752 A.2d 503 (2000).

To satisfy a crucial element of an action for a writ of mandamus, the plaintiff had to demonstrate that it had “a clear legal right” to the requested permit for sewage service. Because we conclude that the plaintiff did not satisfy this requirement, we need not address the plaintiffs other arguments for reversal of the judgment of the trial court. See Golab v. New Britain, 205 Conn. 17, 20, 529 A.2d 1297 (1987).

The plaintiff maintains that it had a “clear legal right” to the requested connections because connection of the public sewer to the site of the proposed buildings was physically feasible. Although the sewer was not directly adjacent to the plaintiffs property, the plaintiff claimed that it could access the sewer by means of an easement over a strip of state land. We are not persuaded.

The plaintiffs argument can be sustained only if the right it claims to have is cognizable without compliance with the regulations promulgated by the authority. The plaintiff does not challenge the validity of these regulations. It focuses, instead, on the expense that is involved in preparing the applications that the authority requires. In light of those expenses, the plaintiff claims that it sufficiently complied with the regulations by submitting preliminary applications that, if approved in principle, would thereafter be supplemented by a complete application containing all the information that the authority requires to reach a final decision.

Whatever the intrinsic appeal of the plaintiffs position may be, it has not provided, nor could we find, any authority that entitles an applicant to obtain a sewer connection on the basis of an incomplete or “preliminary application.” More importantly, the authority’s regulations expressly contradict this proposition.

Section 1.1.5.1 of the Brookfield water pollution control authority regulations provides: “All applicants must file with their application for Sewer Connection Permit a detailed site plan depicting property limits, proposed buildings, grease traps and their connections to the sanitary sewer line. In the case of applications for multifamily, commercial or industrial uses, such plans shall be prepared by a Connecticut licensed professional engineer or land surveyor to the degree of accuracy required of a class A-2 survey.” (Emphasis added.) In addition, § 1.3 of the regulations directs the authority to deny any application that is incomplete, specifically if any of the items enumerated in § 1.1.5 are not included.

Accordingly, in Brookfield, an applicant has no “clear legal right” to a sewer connection if it does not submit an application containing the information that the regulations require. This information is not irrelevant to the authority’s decision making, and the plaintiff does not argue to the contrary.

In the present case, the trial court reasonably could conclude that the plaintiffs applications did not conform with the regulations. At the hearing before the court, Paul Scalzo, a member of the plaintiff company, testified that the applications did not pinpoint the location of the proposed sewer access. Similarly, Michael Lillis, the plaintiffs engineer, testified that the plans submitted with the applications did not include data required by the regulations to show the feasibility of the proposed sewer connections. Additionally, Allan Chirchester, the chairperson of the authority, noted that, before the appeal, he had not made been aware of an existing easement, or of the plaintiffs intention of obtaining an easement, over the state’s land, to connect the proposed buildings to the public sewer.

Our review of the record persuades us that the trial court did not abuse its discretion in denying the writ of mandamus sought by the plaintiff. The authority’s regulations clearly require sewer connection applications to include essential information such as detailed site plans. It is entirely reasonable to require an applicant to provide such information so that the authority can make a reasoned judgment on the merits of an application. The plaintiff has not established that, despite knowingly having failed to comply with the regulations, it had a “clear legal right” to a sewer connection permit.

The judgment is affirmed.

In this opinion the other judges concurred.

       It is undisputed that, in 1999, the authority had allocated 15,000 gallons of sewage discharge to the plaintiffs predecessor in title, PSI Capital Corporation. That agreement, however, expired in May, 2000, several months before the plaintiffs applications. It is equally undisputed that the plaintiffs applications requested a smaller amount of sewage discharge than that allocated to PSI Capital Corporation.

       “On appeal, the plaintiff has failed to provide this court with a signed transcript of the court’s oral decision as required by Practice Book § 64-1 (a). We have frequently declined to review claims where the appellant has failed to provide the court with an adequate record for review. . . . This court, however, has the discretion to consider an appeal on its merits despite this procedural irregularity if the transcript contains a sufficiently detailed and concise statement of the trial court’s findings.” (Citation omitted; internal quotation marks omitted.) Wachter v. UDV North America, Inc., 75 Conn. App. 538, 543 n.7, 816 A.2d 668 (2003). Because the unsigned transcript sufficiently sets forth the trial court’s findings, we will address the plaintiffs claim.

       Section 1.3 of the Brookfield water control pollution authority regulations provides: “Applications for Sewer Connection Permits which are incomplete or which are not accompanied by the items specified in Section 1.1.5 of these Regulations shall not be approved.”


source: Caselaw Access Project

author: HENNESSY, J. Douglas S. Young,

license: Public Domain

text:
    ROSEMARY YOUNG v. DOUGLAS S. YOUNG ET AL. DOUGLAS S. YOUNG v. ROSEMARY YOUNG
    (AC 23123)
    (AC 23121)
    Schaller, Dranginis and Hennessy, Js.
    Argued March 26
    officially released July 29, 2003

      Douglas S. Young, pro se, the appellant (named defendant in the first case, plaintiff in the second case).

      Joseph A. Kriz, with whom, on the brief was Ivan Hirsch, for the appellee (plaintiff in the first case, defendant in the second case).
   Opinion

HENNESSY, J. Douglas S. Young,

the plaintiff in AC 23121 and the named defendant in AC 23123, appeals from the judgment of the trial court in AC 23121 denying his application for a wilt of audita querela and from the judgment of the trial court in AC 23123 denying his motion to open the judgment in a summary process action. He claims that the court improperly concluded that an escrow agreement between himself and his mother, Rosemary Young, the defendant in AC 23121 and the plaintiff in AC 23123, no longer existed and, therefore, he could not complete the terms of the agreement. We affirm the judgment of the trial court denying the apphcation for audita querela and dismiss the appeal from the denial of the motion to open the summary process judgment.

These appeals come to this court after a long history of htigation between the parties. The fohowing facts are relevant to the resolution of these appeals. The property that is the subject of these appeals is at 28 Lighthouse Point, Fairfield. The property is owned by Rosemary Young, the mother of Douglas Young. Douglas Young currently lives in a house on the property with his wife and children. On October 19, 1994, the mother and son entered into an agreement to transfer ownership of the property to the son. At that time, the mother signed a quitclaim deed transferring ownership of the property, and the son’s attorney, acting as escrow agent, was to hold the deed until the terms of the agreement were completed. The terms of the escrow agreement were not completed and, on April 22, 1997, the mother instituted a summary process action, pursuant to General Statutes § 47a-23a, seeking to evict the son and his family from the property.

The court found that the quitclaim deed did not divest the mother of ownership of the property because the deed was given to the son’s attorney to be held in escrow until he paid $12,000 to the attorney. The court concluded that the son’s prior right or privilege of possession had terminated and, on April 17,1998, rendered judgment of possession in favor of the mother. See Young v. Young, 64 Conn. App. 651, 652-54, 781 A.2d 342, cert. denied, 258 Conn. 908, 782 A.2d 1255 (2001).

On April 20, 1998, the son filed a motion to reargue pursuant to Practice Book § 11-11. On May 4, 1998, the trial court denied the son’s motion to reargue, and the son appealed to this court. Young v. Young, supra, 64 Conn. App. 654. On remand from the Supreme Court, this court affirmed the judgment of the trial court and concluded that there had been an escrow agreement between the parties, that there was no delivery of a quitclaim deed from the mother to the son and, therefore, that the son did not own the property. Young v. Young, supra, 64 Conn. App. 652. This court did not address the current status of the escrow agreement and whether the terms could still be completed. See footnote 6. This court’s decision was officially released on July 31, 2001. On August 3, 2001, the son tendered the sum of $12,000 to the escrow agent’s former law firm accompanied by a letter from his attorney. The son obtained the quitclaim deed and recorded it in the land records on October 1, 2001.

On May 3, 2002, the son filed a motion to open the judgment and a motion to substitute himself for his mother as the party plaintiff, alleging that he was the holder of legal record title to the property and that summary process is a remedy available only to an “owner.” The court held a hearing on May 22, 2002. According to the son’s attorney, if the court granted his motion to open the judgment and to substitute himself as the party plaintiff, the son would then withdraw the action. The court responded, “Oh, come on. We can’t do that. There’s really a fraud on the court to even suggest that. I’m concerned.” On the same day, the court denied the son’s motion. In AC 23123, the son appealed from the court’s denial of the motion to open the judgment. The issues and arguments involved in appealing from the court’s denial of the motion to open the judgment are identical to those discussed in AC 23121. The son did not file a motion for articulation, and the brief is grossly inadequate. That appeal, AC 23123, therefore is dismissed. See Rosenblit v. Williams, 57 Conn. App. 788, 796, 750 A.2d 1131, cert. denied, 254 Conn. 906, 755 A.2d 882 (2000); see also Resurreccion v. Normandy Heights, LLC, 76 Conn. App. 642, 647-48, 820 A.2d 1116, cert. denied, 264 Conn. 917, 826 A.2d 1159 (2003).

We now turn our attention to AC 23121. The following additional facts are relevant to that appeal. On April 17, 1998, the trial court rendered judgment of possession in favor of the mother in the summary process action. The court’s judgment also addressed the current validity of the escrow agreement. The court found that there had been no delivery of the deed to the son, and that he had abandoned bis claim of complete ownership and had sought a life estate in the property. The court stated, inter alia: “Clearly, by this time [the son] had abandoned any notion of having acquired title by the quitclaim deed, which was executed October 19, 1994. The court infers that even [the son] realized that the deed had not been delivered and that more than a reasonable time had passed from the time of the quitclaim deed execution in October, 1994, to November, 1996, when he was willing to negotiate a rental amount for the subject premises.” The court also concluded that because delivery of the quitclaim deed had not taken place, the mother was free to alter the conditions of the escrow. The court stated: “Since there was no delivery, there could be not be a valid conveyance, and until the time of delivery, the [mother] could withdraw or nullify the pending transfer by her acts and deeds, such as the institution of eviction against the [son].” In concluding, the court stated succinctly: “The quitclaim deed is not valid. There is no quitclaim deed.”

Following this court’s prior decision and the son’s recording of the deed in the land records, the son initiated a separate action by filing an application for writ of audita querela on May 3, 2002, claiming that he was the holder of legal record title to the property and, therefore, that summary process execution should not be allowed to proceed.

On May 22, 2002, the court held a hearing on the application for the writ of audita querela. The court heard testimony from both the mother and the son. The court concluded that the son did not come to court with clean hands and that “the [son] knew that this court had decided in a summary process action, which preceded the audita querela, for its application now being made. [The son] knew this court had ruled there was no escrow. The escrow agreement had been revoked, if no other way than by the institution of a summary process case. There was no escrow.” The court also concluded that the original escrow agreement had been altered when the mother changed her demand from $12,000 to $50,000. The court found that the son knew that the original agreement had changed and therefore that he was not acting in good faith when he acquired the deed. On the basis of those conclusions, the court denied the son’s application for a writ of audita querela. The son appealed from that denial.

On appeal, the son claims that the court improperly concluded that an escrow agreement between himself and his mother no longer existed and therefore that he could not complete the terms of the agreement. The son argues that the terms of the escrow agreement could not be altered or revoked once the deed was placed in the escrow agent’s possession. He further argues that he has completed the terms of the agreement and duly recorded the deed to the property. The mother argues that the court was correct when it stated that the parties had abandoned the escrow agreement. We agree with the mother.

The court’s conclusion that the parties abandoned an agreement ordinarily is a question of fact. Rowe v. Cormier, 189 Conn. 371, 373, 456 A.2d 277 (1983). The decision of the court involved a factual determination concerning the status of an escrow agreement, and our standard of review is whether the court’s decision was clearly erroneous. “[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . We also must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment. . . . Although we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses ... we will not uphold a factual determination if we are left with the definite and firm conviction that a mistake has been made. ” (Internal quotation marks omitted.) Daniels v. Alander, 75 Conn. App. 864, 869, 818 A.2d 106, cert. granted on other grounds, 264 Conn. 901, 823 A.2d 1219 (2003).

One manner in which an escrow agreement can be deemed invalid is by the actions of the parties subject to the agreement. “An escrow executed and deposited upon a valuable consideration is not revocable except according to the terms of the agreement and deposit. However, an escrow agreement may be mutually abandoned by the parties to it. The abandonment need not be marked with a formality equal to that used in establishing an escrow; any conduct inconsistent with the escrow is sufficient for the court to conclude it was abandoned, and thus, even if parties did not expressly agree to waive the escrow conditions or to abandon the agreement, a court may consider whether the facts sustain such an implication.” 28 Am. Jur. 2d, Escrow § 8 (1992).

This court and our Supreme Court have addressed the issue of mutual abandonment of an agreement. “Mutual assent to abandon a contract, like mutual assent to form one, may be inferred from the attendant circumstances and conduct of the parties. . . . Our Supreme Court’s conclusion . . . that parties are free to terminate an agreement by mutual assent has been followed in later cases. [T]he well-established rule [is] that rescission or abandonment of contracts, like entry into a contractual relation, depends upon the intent of the parties and that the relevant intent is to be inferred from the attendant circumstances and conduct of the parties.” (Citations omitted; internal quotation marks omitted.) Smith & Smith Building Corp. v. DeLuca, 36 Conn. App. 839, 842-43, 654 A.2d 368 (1995); see also Herman S. Newman & Partners, P. C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 762, 674 A.2d 1313 (1996).

The court found that both parties had acted as if the escrow agreement no longer was in effect. The mother’s attorney informed the escrow agent that the original demand of $12,000 for the property had been modified to $50,000. The escrow agent then communicated that modification to the son in writing and awaited the payment of $50,000. The mother altered the terms of the agreement, began eviction proceedings against the son and his wife and demanded rent. On February 19,1997, more than two years after the escrow agreement originally was executed, the son’s attorney wrote a letter to the mother, stating that “[the son’s] claim is that [the mother] wrote them a letter that they were to have use of [the property] during [the mother’s] lifetime as long as they would pay the expenses relating to mortgage, insurance, etc.” The son’s letter was an attempt to enforce that agreement concerning a life estate or to negotiate a new agreement. The letter does not mention ownership of the property or mention the deed held in escrow. It is obvious that the son did not consider the terms of the escrow agreement still to be effective. The court was correct when it stated that both parties had abandoned the escrow agreement to transfer the property.

The son cannot attempt to enforce an agreement after both parties’ conduct has indicated that they have abandoned all claims to the agreement. The conclusion by the court that the parties abandoned the escrow agreement was supported by the evidence and is not clearly erroneous.

The appeal in AC 23123 is dismissed and the judgment in AC 23121 is affirmed.

In this opinion the other judges concurred.

       “A wit of audita querela is a writ issued to afford a remedy to a defendant against whom judgment had been rendered, but who had new matter in defense . . . arising, or at least raisable for the first time, after judgment.” (Internal quotation marks omitted.) Ruiz v. Gatling, 73 Conn. App. 574, 574 n.2, 808 A.2d 710 (2002).

       The plaintiff, Douglas Young, is the son of the defendant, Rosemary Young.

       The first action, AC 23123, was a summary process action by Rosemary Young against Douglas Young and his wife, Maureen Young, to vacate the premises. Only Douglas Young appealed from the court’s decision to deny his motion to open the judgment in the summary process action. The second action, AC 23121, involved an application for a writ of audita querela filed by Douglas Young, alleging that he is the true owner of the property that is the subject of this dispute.
      In a third action, the defendant alleged that the plaintiff wrongfully obtained the deed to the property. That action is not involved in this appeal.

       After this court dismissed the appeal, the Supreme Court reversed our decision and remanded the matter to this court. See Young v. Young, 249 Conn. 482, 487, 733 A.2d 835 (1999).

       Brian Lambeck, the attorney for the defendants, Douglas Young and Maureen Young, in the summary process action, wrote a letter to the escrow agent’s former firm, stating: “[T]he Appellate Court released its decision wherein it indicated that you are holding the deed in escrow conditioned upon [the defendant] paying you $12,000. In said file is the original deed from [the plaintiff] to my client. Enclosed please find a bank check made payable to your firm as Trustee in the amount of $12,000. Please acknowledge receipt of said sum and the delivery of the deed, to me in writing at your earliest convenience.”

        We note that the “[d]elivery of a deed coupled with intent by the grantor to pass title is necessary for a valid conveyance. . . . The delivery of a deed includes not only an act by which the grantor parts with the possession of it, but also a concurring intent on the part of the grantor that it shall vest the title in the grantee. . . . Both elements involve questions of fact for the trier of fact.” (Citations omitted; internal quotation marks omitted.) McCook v. Coutu, 31 Conn. App. 696, 701, 626 A.2d 1321, cert. denied, 227 Conn. 911, 632 A.2d 692 (1993).

       The son filed an identical brief in both of the appeals currently before this court.

       It is noted that the son, in the original appeal, did not appeal to this court on the issue of the current validity of the quitclaim deed or whether the escrow agreement was still viable. See Young v. Young, supra, 64 Conn. App. 652. He appealed only from the court’s judgment that an escrow had been created rather than an outright transfer of the property and whether the conditions of that agreement to transfer the property had been met.

       The son also claimed that the mother had acknowledged that he was the legal holder of the title because she filed a separate action on November 21,2001, claiming that he wrongfully had obtained the deed to the property. That action is not involved in this appeal.

       The son also argues that an inter vivos gift cannot be revoked once delivered. The son has confused the delivery of an inter vivos gift and a deed held in escrow. This court affirmed the trial court’s judgment that an escrow agreement had been formed. See Young v. Young, supra, 64 Conn. App. 652. The son is attempting to litigate for a second time, in this court, the issue of whether the agreement between the parties to the transfer of the properly was an inter vivos gift. Res judicata, therefore, applies, and that argument will not be addressed. See Nastro v. D’Onofrio, 76 Conn. App. 814, 819, 822 A.2d 286 (2003).

       The letter also states that the original document outlining the agreement concerning the life estate was lost in a fire that did considerable damage to the property. The son is not attempting to enforce the alleged terms of the original letter.


author: PER CURIAM.

text:
    AHMED A. DADI ET AL. v. CUGINOS II RESTAURANT ET AL.
    (AC 22919)
    Dranginis, Bishop and Hennessy, Js.
    Argued May 28
    officially released July 29, 2003

      Ahmed A. Dadi, pro se, for the appellant (named plaintiff).

      Thomas T. Lonardo, for the appellees (defendants).
   Opinion

PER CURIAM.

In this twelve count breach of contract action, the plaintiffs, Ahmed A. Dadi, doing business as Total Design/Dadi Associates (Dadi), and his firm, Total Development and Construction, LLC (Total Development), brought an action against the defendants, Cuginos II Restaurant, Sarajevo 84, LLC, and Skender Cirikovic, individually, for damages arising out of the defendants’ nonpayment for design and construction management services rendered by the plaintiffs in the reconstruction and renovation of a building in Newington. In response, the defendants filed a five count counterclaim, alleging, in essence, that Dadi had stolen funds given to him by Cirikovic for the purpose of paying a project subcontractor and that the plaintiffs were negligent in their performance of the project activities.

The issues were tried to the court, which rendered judgment for Dadi in the amount of $8895 on the basis of unjust enrichment and for Total Development in the amount of $10,874 on the basis of breach of contract. The court rendered judgment for the defendants on all other counts of the complaint. In response to the counterclaims, the court rendered judgment for Cuginos II Restaurant and Sarajevo 84, LLC, in the amount of $60,710, which included treble damages pursuant to General Statutes § 52-564, together with prejudgment interest on the first count of the counterclaim, which alleged wrongful retention of funds advanced by the defendants to the plaintiffs for payment to a subcontractor, and the sum of $1 as nominal damages on count four of the counterclaim, which alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. Thereafter, the court held a hearing pursuant to the attorney’s fees provisions of CUTPA and awarded $3000 in attorney’s fees to Cuginos II Restaurant and Sarajevo 84, LLC, on count four of their counterclaim. This appeal followed.

Our review of the briefs and oral argument leads us to the conclusion that the arguments advanced by Dadi on appeal consist, in their entirety, of no more than an assault on the factual determinations made by the court. Additionally, our review of the record reveals that the court’s factual determinations were not clearly erroneous, and that its orders were consistent with and flowed from its factual findings.

The judgment is affirmed.

       At oral argument in this court, Dadi acknowledged that he is a pro se party and not an attorney authorized to practice in Connecticut. On that basis, Dadi was permitted to argue on his behalf, but not on behalf of the other plaintiffs. When informed of that limitation, Dadi indicated that because his interests and those of the other plaintiffs were identical, he was prepared to go forward with argument.

       “The standard of review with respect to a court’s findings of fact is the clearly erroneous standard. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... We cannot retry ihe facts or pass on the credibility of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Internal quotation marks omitted.) Santa Fuel, Inc. v. Varga, 77 Conn. App. 474, 488-89, 823 A.2d 1249 (2003).


author: LAVERY, C. J.

text:
    WLADYSLAW LACIC ET AL. v. JOSE F. TOMAS ET AL.
    (AC 22907)
    Laveiy, C. J., and Dranginis and Peters, Js.
    Argued May 1
    officially released July 29, 2003

      Jacek I. Smigelski, for the appellants (plaintiffs).

      Kevin L. Mason, for the appellees (defendants).
   Opinion

LAVERY, C. J.

The plaintiffs, Wladyslaw Lacic and Kazimiera Lacic, appeal from the judgment of the trial court quieting title in the defendants, Jose F. Tomas and Ema Tomas, to a certain strip of land that runs between the parties’ properties. On appeal, the plaintiffs claim that the court improperly (1) found that the northern boundary of the plaintiffs’ property is located where it is depicted on a survey prepared by James E. Sheehy rather than running along a wooden fence that at one time existed near the southern boundary of the defendants’ property, (2) failed to find that a gap existed between the parties’ properties, (3) failed to find a latent ambiguity in the deed descriptions of the parties’ properties and (4) failed to find that the plaintiffs had acquired title to the disputed strip of land by adverse possession. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. The parties own adjoining parcels of land in Newington. The defendants acquired title to their property known as 72 Summit Street in 1977. The plaintiffs acquired title to their property known as 84 Summit Street in 1994. The plaintiffs’ property is directly south of the defendants’ property. From 1977 to November, 2000, the defendants maintained a wooden fence near the southern boundary of their property.

On January 24, 2002, the plaintiffs filed a four count amended complaint against the defendants. In the first count, the plaintiff sought to quiet title to the disputed strip of land pursuant to General Statutes § 47-31. In the second count, they alleged that they gained title to the subject land through adverse possession. In the third and fourth counts, they alleged trespass to land and negligent infliction of emotional distress, respectively. The defendants filed an answer and a counterclaim alleging vexatious litigation. After a trial to the court, judgment was rendered in favor of the defendants on the plaintiffs’ complaint, quieting title to the disputed strip of land in the defendants. The court also rendered judgment in favor of the plaintiffs on the defendants’ counterclaim. This appeal followed. Additional facts will be provided as necessary.

I

The plaintiffs first claim that the court improperly found that the northern boundary of their property is located where it is depicted on a survey prepared by the defendants’ expert surveyor, Sheehy, rather than running along a wooden fence that at one time existed near the southern boundary of the defendants’ property. The plaintiffs advance three principal arguments in support of their claim: (1) the court improperly relied on the Sheehy survey, (2) the wooden fence is a monument that establishes the proper boundary line, and (3) the defendants and their predecessors in title acquiesced in the boundary as established by the wooden fence. We are not persuaded by the plaintiffs’ arguments.

A

The plaintiffs first argue that the court improperly relied on the Sheehy survey because it was unreliable. Although the plaintiffs provide a plethora of reasons why, in their view, the Sheehy survey was unreliable, in essence, the plaintiffs’ argument appears to be that the court should have credited other, “more rehable” evidence, including a survey prepared by their expert surveyor, Carl H. Jaeger, rather than the Sheehy survey.

In its memorandum of decision, the court stated: “The most persuasive evidence of the actual property line came from surveyors. The plaintiffs presented one surveyor and the defendants presented two, each of whom supported his party’s respective position. . . .

“[T]he court credits the testimony of the surveyors called by the defendants. The defendants’ surveys are far more detailed, they corroborate each other, though they were done independently, and they rely on monuments in the ground, which are more permanent than the iron pins relied on by the plaintiffs’ surveyor. . . .

“While all three surveys purport to be in compliance with § 20-300b-l et seq. of the Regulations of Connecticut State Agencies, which establish minimum standards of accuracy, content and certification for surveys and maps, the plaintiffs’ surveyor testified that he was not familiar with these standards. His survey purports to be a ‘location improvement survey’ which, according to the regulations, falls under the category of a ‘limited property/boundary survey,’ the purpose of which is to determine compliance with ‘applicable municipal or statutory requirements. . . .’ Regs., Conn. State Agencies § 20-300b-2 (c) (3). In contrast, the defendants’ surveyors performed ‘property/boundary’ surveys of the ‘resurvey’ category, which are appropriate for determining, among other things, ‘unresolved conflicts with record deed descriptions and maps . . . .’ Id., § 20-300b-2 (b) (1) (G). The defendants’ surveys are thus more suited for addressing the question before the court.”

In its articulation, the court further stated: “The court fully explained the basis for crediting the defendants’ surveyors on pages three to five of its memorandum of decision. The court adds that its decision goes well beyond what is necessary, as the court can credit or discredit witnesses based solely on intangible factors such as how they appear or sound on the witness stand. In this case, these intangible factors also weighed in favor of the defendants’ surveyors, but the court chose to set forth the more objective reasons for crediting the defendants’ surveyors at some length in its written decision.”

“The determination of a witness’ credibility is the special function of the trial court. This court cannot sift and weigh evidence. . . . Otherwise, [t]his court would then, by way of fact-finding, be required to adjudicate the validity and the reliability of that evidence. At this stage of the proceedings, we are incapable of making those necessary determinations. In general, [i]t is the function of the trial court, not this court, to find facts.....Imposing a fact-finding function on this court, therefore, would be contrary to generally established law. Indeed, it would be inconsistent with the entire process of trial fact-finding for an appellate court to do so. . . . Thus, viewed through this prism, the testimony was for the trial court to assess and we have no appropriate role at this level in determining which of the various witnesses to credit. (Citations omitted; internal quotation marks omitted.) State v. Nowell, 262 Conn. 686, 695-96, 817 A.2d 76 (2003). Accordingly, we reject the plaintiffs’ argument.

B

The plaintiffs also argue that the wooden fence is a monument that establishes the proper northern boundary line of their property. The plaintiffs are essentially challenging the court’s factual findings.

“Our review of the factual findings of the trial court is limited to a determination of whether they are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings.” (Internal quotation marks omitted.) Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 328, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002).

In its memorandum of decision, the court succinctly stated the issue with respect to the wooden fence as follows: “The first issue is whether the actual property line runs along the line of the former fence, as claimed by the plaintiffs, or whether it runs several feet south of the fence, as claimed by the defendants.” In resolving that issue in favor of the defendants, the court stated: “Even if the court credited the plaintiffs’ surveyor . . . such testimony would only establish that the fence was the defendants’ southern property line; it would not establish that the plaintiffs’ northern property line was the fence. . . .

“In any event, the court credits the testimony of the surveyors called by the defendants. ... In fact, there was a concrete monument at what the defendants’ surveyors found was the northwest comer of the plaintiffs’ property. . . .

“Corroboration of the defendants’ surveys is found in the fact that the northern border of the plaintiffs’ property and the property of their neighbors immediately to their east is the same east-west line, according to a 1978 subdivision map. Yet the apparent northern border of the neighbors’ property is a chain-link fence that is several feet south of the location of the wooden fence that the plaintiffs claim as their northern border. If the chain-link fence is in fact the northern border of the neighbors’ property, as it appears from the photographs, then the wooden fence, by virtue of the fact that it does not line up with the chain-link fence, could not have been the northern border of the plaintiffs’ property. For all these reasons, the court finds that the actual northern border of the plaintiffs’ property runs several feet south of the location of the wooden fence.”

In its articulation, the court further stated: “In sum, no surveyor affirmatively established the plaintiffs’ northern property line as running along the line of the wooden fence. In contrast, the defendants’ surveyors, whom the court credited, did affirmatively establish the plaintiffs’ northern property line as several feet south of the wooden fence . . . and the defendants’ southern property border as essentially the same line. . . . Thus, the plaintiffs did not establish their case by the strength of their own title. See Marquis v. Drost, 155 Conn. 327, 334, 231 A.2d 527 (1967).” (Citations omitted.)

The plaintiffs cite no case law, and we are aware of none, supporting the proposition that the mere existence of a fence establishes it as a monument marking the actual boundary line of a property. Accordingly, after reviewing the entire record, we conclude that the court’s determination that the wooden fence did not establish the northern border of the plaintiffs’ property is not clearly erroneous.

C

The plaintiffs also argue that the defendants and their predecessors in title acquiesced in the boundary as established by the wooden fence.

“Acquiescence in the use and development of an area by a landowner is defined as a consent to the boundary as claimed by an adjoining owner and can estop the acquiescing landowner from pursuing a claim of ownership. See DelBuono v. Brown Boat Works, Inc., 45 Conn. App. 524, 533, 696 A.2d 1271, cert. denied, 243 Conn. 906, 701 A.2d 328 (1997). The acquiescence must occur under circumstances that indicate an assent to such a use.” Marshall v. Soffer, 58 Conn. App. 737, 744-45, 756 A.2d 284 (2000).

Here, the plaintiffs presented no evidence that the defendants had consented to a boundary as established by the wooden fence. On the contrary, the defendant Jose Tomas testified that he was aware from the time he purchased his property that he owned land south of the fence, and that the plaintiffs and their predecessors in title also knew that this strip of land belonged to the defendants. The mere fact that the fence existed for more than twenty-three years does not establish that the parties had agreed that the fence was the actual boundary between their properties, as the plaintiffs contend. We conclude that the record does not establish that the defendants and their predecessors in title acquiesced in the boundary as established by the wooden fence.

II

The plaintiffs next claim that the court improperly failed to find that a gap existed between the parties’ properties. We are not persuaded.

Again, the plaintiffs are challenging the court’s factual findings. “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Greco v. Greco, 70 Conn. App. 735, 737, 799 A.2d 331 (2002).

In its memorandum of decision, the court stated that “the plaintiffs’ surveyor believed that there was a gap of approximately two to three feet between the [parties’] respective boundaries” and that “a 1900 neighborhood map” showed “a strip of land 439 feet by one foot in the disputed location that may [have been] the source of the current controversy.” The court, however, did not credit that evidence. Instead, as previously discussed, the court, in concluding that the plaintiffs’ northern property line and the defendants’ southern property line were “essentially the same line,” credited other evidence that did not show a gap between the subject properties, including, inter alia, the Sheehy survey, the 1978 subdivision map, the parties’ deeds and certain photographs of the disputed strip of land.

We conclude that there is evidence in the record to support the court’s determination that no gap existed between the parties’ properties. The court’s determination, therefore, is not clearly erroneous.

Ill

The plaintiffs next claim that the court improperly failed to find a latent ambiguity in the deed descriptions of the parties’ properties. We disagree.

“The principles guiding our construction of land conveyance instruments, such as the [deeds] at issue in this appeal, are well established. The construction of a deed . . . presents a question of law which we have plenary power to resolve. ... In determining the location of a boundary line expressed in a deed, if the description is clear and unambiguous, it governs and the actual intent of the parties is irrelevant.” (Citations omitted; internal quotation marks omitted.) Lisiewski v. Seidel, 72 Conn. App. 861, 866, 806 A.2d 1121, cert. denied, 262 Conn. 921, 922, 812 A.2d 865 (2002). “A latent ambiguity arises from extraneous or collateral facts that make the meaning of a deed uncertain although its language is clear and unambiguous on its face.” (Internal quotation marks omitted.) Mackie v. Hull, 69 Conn. App. 538, 542, 795 A.2d 1280, cert. denied, 261 Conn. 916, 917, 806 A.2d 1055 (2002).

The plaintiffs concede that the deed descriptions of the parties’ properties are not ambiguous on their face. They contend, however, that the deed descriptions are latently ambiguous because the descriptions, when read together, do not reveal the existence of a gap between the parties’ properties, but “at trial it was obvious that there is a gap between the respective lands of the parties.”

In light of our prior conclusion that the court’s determination that there is no gap between the parties’ properties was not improper, we conclude that the plaintiffs’ claim is without merit.

IV

Finally, the plaintiffs claim that the court improperly failed to find that they had acquired title to the disputed strip of land by adverse possession. We disagree.

“[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner.” (Internal quotation marks omitted.) Top of the Town, LLC v. Somers Sportsmen’s Assn., Inc., 69 Conn. App. 839, 842, 797 A.2d 18, cert. denied, 261 Conn. 916, 806 A.2d 1058 (2002).

A finding of adverse possession is to be made out “by clear and positive proof. . . . ‘[C]lear and convincing proof . . . denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. . . . The burden of proof is on the party claiming adverse possession. . . .

“Despite that exacting standard, our scope of review is limited. Adverse possession is a question of fact, and when found by the trial court will not be reviewed by this court as a conclusion from evidential facts, unless it appears that these facts, or some of them, are legally or logically necessarily inconsistent with that conclusion.” (Citations omitted; internal quotation marks omitted.) Id., 844.

In rejecting the plaintiffs’ adverse possession claim, the court stated: “In this case, the plaintiffs presented some evidence that they maintained open and exclusive possession of the disputed strip of land since the time that they purchased [their property] in 1994. However, their predecessors in title, Rose and Joseph Perfito, who acquired the property in 1982, did not testify. The only witness to support the plaintiffs’ claim concerning the time period before 1994 was Chester Choinski, who had lived across the street at 83 Summit Street since 1980. Choinski testified that he never saw Jose Tomas on the south side of the [wooden] fence, that the Perfitos mowed the lawn on the south side of the fence, and that they had a garden that went right up to the fence. His testimony, however, was in general terms. He did not focus or even identify the specific strip of disputed property. Nor did or could he establish that the Perfitos ousted the [defendants] of this strip of property for the entire time period from 1985 to 1994 without interruption. In short, in the absence of testimony from the Perfitos, the evidence did not clearly and convincingly establish that the plaintiffs and their predecessors in title kept [the defendants] out of the disputed strip of land ‘uninterruptedly for fifteen years by an open, visible, and exclusive possession under a claim of right with intent to use the properly as [their] own and without the consent of the owner[s].’ ”

On the basis of our review of the record, we conclude that the evidentiary facts are legally or logically consistent with the court’s conclusion that the plaintiffs failed to establish their claim of adverse possession by clear and convincing evidence. Accordingly, the court properly rendered judgment in favor of the defendants on the plaintiffs’ adverse possession claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants have not challenged that portion of the judgment rendered in favor of the plaintiffs on the counterclaim.

       We also note that the evidence presented at trial indicated that the fence did not run along the entire length of the property line at issue. Moreover, the defendants’ expert surveyor, Sheehy, testified that fences commonly are set inside of boundary lines.

       In its memorandum of decision, the court stated in a footnote that the “1900 neighborhood map . . . may not have been measured accurately.”

       See footnote 5.

       The relevant portion of the plaintiffs’ deed describes their property as being bounded northerly “[b]y Lots Nos. 28, 29 and 30, as shown on [a 1978 subdivision map], partly by each, in all, One Hundred Twenty and Four One-Hundredths (120.04) feet.” The southerly portions of lots 28, 29 and 30 make up the defendants’ property. The relevant portion of the defendants’ deed describes their property as being bounded southerly “]b]y land now or formerly of Myra E. Stoddard, 150 feet,” which is now the plaintiffs’property. Thus, the plaintiffs’ deed describes their property as being bounded northerly by the defendants’ property, and the defendants’ deed describes their property as being bounded southerly by the plaintiffs’ property.


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. DAVID L. PALMER
    (AC 22713)
    Dranginis, Bishop and Dupont, Js.
    Argued May 6
    officially released July 29, 2003

      Michael A. D’Onofrio, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C.

      Benedict, state’s attorney, and Howard S. Stein, assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, David L. Palmer, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (4). On appeal, the defendant claims that the trial court permitted the prosecutor to make certain improper remarks during his closing and rebuttal arguments to the jury, which, when taken together, denied the defendant his due process right to a fair trial under our federal and state constitutions. We disagree and, accordingly, affirm the judgment of the trial court.

From the evidence presented at trial, the jury reasonably could have found the following facts. On the evening of July 20, 1999, the victim, Joanna Girardin, attended a work-related picnic in Waterbury. She left the picnic at about 9 p.m. and drove to Fairfield, where she had planned to meet some of her fellow employees.

When she arrived in Fairfield, at about 10:05 p.m., she went to the People’s Bank at 838 Post Road to use the automated teller machine (machine) to withdraw $20 from her account. As she parked her car, she noticed a dark, box shaped car parked just a few spaces away from her car. The occupant of that vehicle was slouched down in the driver’s seat. The victim exited her vehicle and walked toward the entrance to the bank. She used her access card to gain entry to the vestibule of the bank where the machines were located and used the machine closest to the entrance.

As the victim was waiting for the machine to dispense the $20, the defendant entered the vestibule. The defendant greeted the victim and walked past her. He then turned back toward the door. After the machine had dispensed the victim’s $20 and she had the money and her car keys in her right hand, the defendant jabbed something into the victim’s right rear side and said, “I have a gun, give me your stuff.” The victim did not believe that the defendant had a gun and resisted his attempts to grab the money from her hand as he hovered over her. The defendant was unable to get the victim’s money, but he did grab her car keys and ran toward the door. The victim ran after him, yelling for him to give her the keys. The defendant threw the keys into the parking lot, got into his vehicle and drove away.

Later that evening, the victim called the Fairfield police from the home of a friend and reported the incident. At about 11:30 p.m., an officer arrived at the home of the victim’s friend, and the victim explained to the officer what had happened and gave him a description of the man who had attempted to rob her. The next day, the victim went to the police station and gave the police a statement about the incident.

There were four security cameras operating at the bank on the night of the attack, which captured the incident on videotape. The bank gave the videotape to the Fairfield police department. The bank also provided the police with a still photograph of the male subject involved in the incident, which bank security had made from the videotape. About a week later, the Fairfield police met with the defendant and questioned him regarding the July 20,1999 incident. The defendant told the police that he had a drug problem and that as a result, he could not remember whether he was in the vestibule of the Fairfield bank on the evening of July 20,1999. The police then showed the defendant the still photograph that bank security had given them. The defendant identified himself as the male subject in the photograph. The photograph showed that the defendant was wearing white shorts and a multicolored T-shirt. Sometime thereafter, the police executed a search warrant for the defendant’s home and seized the clothing that he was wearing on the night of the incident.

The police subsequently arrested the defendant and charged him with attempt to commit robbery in violation of §§ 53a-49 and 53a-134 (a) (4). The defendant was convicted after a jury trial. This appeal followed. Additional facts will be set forth where necessary.

The defendant claims that the prosecutor made numerous improper comments during closing and rebuttal arguments to the jury that, when taken together, deprived him of his right to a fair trial. Specifically, the defendant claims that the prosecutor (1) improperly commented on the defendant’s failure to testily, (2) improperly commented on the credibility of the state’s witness and (3) impermissibly appealed to the emotions of the jury. We disagree.

At the outset, we note that the defendant’s claim of prosecutorial misconduct was not preserved at trial. The defendant now seeks review of his claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant’s claim meets the first two prongs of Golding because the record is adequate for review and because an allegation of prosecutorial misconduct in violation of a fundamental right is of constitutional magnitude. We conclude, however, that the defendant’s claim fails under the third prong of Golding because he has failed to demonstrate that the challenged comments clearly deprived him of his right to a fair trial.

Our standard of review of prosecutorial misconduct is well settled. “[P]rosecutorial misconduct of constitutional proportions may arise during the course of closing argument, thereby implicating the fundamental fairness of the trial itself . . . .” (Internal quotation marks omitted.) State v. Burton, 258 Conn. 153, 165, 778 A.2d 955 (2001). “[T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Internal quotation marks omitted.) State v. Yusuf, 70 Conn. App. 594, 622, 800 A.2d 590, cert. denied, 261 Conn. 921, 806 A.2d 1064 (2002).

To determine whether claims of prosecutorial misconduct amount to a denial of due process, we employ a two part test. State v. Brown, 71 Conn. App. 121, 128-29, 800 A.2d 674, cert. denied, 261 Conn. 940, 808 A.2d 1133 (2002). We must first determine whether the challenged remarks were improper and, if so, we next determine “whether they caused substantial prejudice to the defendant. ... In conducting our analysis [of whether the remarks caused the defendant substantial prejudice], we focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case.” (Internal quotation marks omitted.) State v. Yusuf, supra, 70 Conn. App. 622-23. With those principles in mind, we turn to the defendant’s claims of prosecutorial impropriety.

I

The defendant first claims that during closing argument, the prosecutor improperly commented on the defendant’s failure to testify. We are not persuaded.

The following additional facts are relevant here. Immediately following the close of the defendant’s case, the prosecutor began his closing argument. He stated as follows: “Good morning, ladies and gentlemen. We are coming down the proverbial home stretch, as they say. This is the point in time in the trial where you have heard the evidence that the state of Connecticut has provided you [in] regard to this matter. You have heard the defense, if any, that the defendant intended to present before you. ” The defendant challenges the prosecutor’s statement: “You have heard the defense, if any, that the defendant intended to present before you.” He claims that it was reasonable for the jury to construe the “if any” portion of that statement as a comment on the defendant’s failure to testify.

“It is well settled that comment by the prosecuting attorney ... on the defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution.” (Internal quotation marks omitted.) State v. Parrott, 262 Conn. 276, 292-93, 811 A.2d 705 (2003). “The ultimate test of whether a prosecution argument indirectly and impermissibly comments on the defendant’s failure to testify is whether, because of its language and context, the jury would naturally and necessarily interpret it as comment on the defendant’s failure to testify.” (Emphasis added; internal quotation marks omitted.) State v. Downing, 68 Conn. App. 388, 398, 791 A.2d 649, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002).

We are not persuaded that the comment challenged here was improper. First, the defendant asserts that it was reasonable for the jury to interpret the prosecutor’s statement as a comment on the defendant’s failure to testify. The test, however, is not whether it would be reasonable for the jury to interpret the comment as a comment on the defendant’s failure to testify, but whether the jury would “naturally and necessarily” interpret it as such. See id. Second, we are not persuaded that because of its language and context, the jury would “naturally and necessarily” interpret the prosecutor’s statement as a comment on the defendant’s failure to testify. In its jury charge, the court specifically instructed the jury not to draw an adverse inference from the defendant’s failure to testify. Fiorthermore, the prosecutor’s statement did not focus the jury’s attention on or allude to the fact that the defendant did not testify. Instead, it pointed out to the jury, at the outset, that the state had presented its case and that the defendant had offered very little evidence that tended to contradict the evidence presented by the state. Although a prosecutor may not comment on a defendant’s failure to testify, he may comment on a defendant’s failure to contradict the state’s case. State v. Morgan, 70 Conn. App. 255, 295, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002). The prosecutor in the present case commented on the defendant’s failure to contradict the state’s case against him. Accordingly, we conclude that the comment was not improper.

II

The defendant next claims that the prosecutor improperly commented on the credibility of one of the state’s witnesses during closing and rebuttal arguments.

The following additional facts are necessary to our resolution of the defendant’s claim. In the victim’s statement to the police, she described her attacker as a light skinned black male, twenty to thirty years old, a little taller than she is, which is about five feet, four inches tall, and wearing a green shirt and jeans. The victim’s description of the defendant was less than accurate. At the time of the incident, the defendant was forty-three years old and about five feet, eleven inches tall. Furthermore, the videotape revealed that the defendant was wearing white shorts and a multicolored camouflage shirt at the time of the incident. The police seized white shorts and a multicolored camouflage shirt from the defendant’s home.

During closing argument, the prosecutor urged the jury that when weighing the testimony of the victim, it should take into account the fact that she had been able to see the defendant only for a veiy short period of time because the entire incident occurred in a matter of seconds. He stated that defense counsel “will have you believe that this is an identification issue. An identification case. But is this an identification case? Miss Girardin testified as best she could. And you had the opportunity to view her demeanor and to view her. And part of your job is to determine [the] credibility of a witness. Based upon a moment in time, you will have some of the evidence, and I’ll go through this a little bit later with you to be able to determine what exactly that time was for her to observe. But she came up here and through this process of the police and through her cooperation in terms of testifying before you, has given you the best testimony she can give you.”

The defendant’s theory of the case was that the male subject depicted in the bank videotape and the still photograph was not the defendant. As the prosecutor predicted, during defense counsel’s closing argument, counsel attacked the credibility of the victim by pointing out that the description that she had given the police did not accurately depict the defendant. In rebuttal argument, the prosecutor conceded that the victim’s description of the defendant was less than accurate. He attempted to demonstrate to the jury, however, that although her description of the defendant was faulty, her account of what occurred that evening was accurate because it was corroborated by other evidence in the case. In doing so, the prosecutor stated: “Let’s jump into what else you can trust about what Miss Girar din told you.”

The defendant now argues that the prosecutor’s comments that the victim “testified as best she could,” had “given you the best testimony she can give” and that the jurors could “trust” some of the things that the victim had told them were expressions of the prosecutor’s personal opinion that the victim testified truthfully. We disagree.

It is well settled that “[a] prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses .... The prosecutor may, however, argue to the jury that the evidence and the reasonable inferences to be drawn therefrom should lead the jury to a conclusion as to the credibility of witnesses.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Rivera, 61 Conn. App. 763, 775, 765 A.2d 1240, cert. denied, 256 Conn. 901, 772 A.2d 599 (2001).

We conclude that in the present case, none of the challenged remarks made by the prosecutor constituted a personal opinion as to the victim’s credibility. First, the prosecutor’s comments regarding the victim testifying as best she could did not vouch for her credibility. They simply implored the jury to keep in mind that the victim gave the best description she could, given the fact that she only had a few seconds to get a look at the defendant under less than favorable circumstances. Second, in focusing the jury’s attention on what it could “trust” about the victim’s testimony, the prosecutor was commenting on the reasonable inferences as to credibility that the jury could draw from comparing the victim’s account of what happened during the July 20, 1999 incident with the other evidence in the case. In particular, the prosecutor noted that although the victim’s description of the defendant was questionable, her description of the defendant’s car was accurate, as was her description of the physical altercation between herself and the defendant, as corroborated by the bank videotape.

This court has held that it is not improper for a prosecutor to comment on evidence that supports the credibility of a witness. See State v. Saez, 60 Conn. App. 264, 268, 758 A.2d 894, cert. denied, 255 Conn. 905, 762 A.2d 912 (2000). We conclude, therefore, that the comments challenged here were not improper.

Ill

Finally, the defendant claims that the prosecutor impermissibly appealed to the emotions of the jury during his closing argument. That claim is wholly without merit.

“A prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” (Internal quotation marks omitted.) State v. Yusuf, supra, 70 Conn. App. 631.

Specifically, the defendant takes issue with the following comments, which the prosecutor made during rebuttal argument: “And again justice cries out. Justice cries out for a not guilty [verdict]. We’ll go through the evidence in a second, see what justice cries out for.” He also takes issue with the prosecutor’s comments that “ [t]he system does not protect the guilty” and “ [t]he system does not call for the protection of people who commit crimes.” What the defendant fails to point out, however, is that the prosecutor made the challenged comments during rebuttal in direct response to comments that defense counsel had made during his closing argument. First, with respect to the phrase “justice cries out,” it was defense counsel who initially employed that language in his closing argument when he stated: “So, I think justice cries out for you to return a verdict of not guilty.” Second, with respect to the prosecutor’s argument that the system “does not protect the guilty” and “does not call for the protection of people who commit crimes,” we conclude that those comments were in direct response to defense counsel’s argument on the presumption of innocence.

“[W]hen a prosecutor’s allegedly improper argument is in direct response to matters raised by defense counsel, the defendant has no grounds for complaint.” (Internal quotation marks omitted.) State v. Iannazzi, 68 Conn. App. 456, 467, 791 A.2d 677 (2002).

Because we conclude that none of the remarks challenged here were improper, we need not address whether the remarks, when taken together, caused the defendant to suffer substantial prejudice such that he was deprived of his right to a fair trial. Even if we assume arguendo that the prosecutor’s remarks were improper, we must still consider them in the context of the entire trial and make a determination as to whether the fairness of the trial was compromised. See State v. Pouncey, 40 Conn. App. 624, 635, 673 A.2d 547 (1996), aff'd, 241 Conn. 802, 699 A.2d 901 (1997). In the context of this trial, the prosecutor’s comments, if in fact improper, cannot be said to have caused the defendant substantial prejudice because they were not so egregious that they infected the entire trial. The prosecutor’s comments were confined to closing argument, were, to some extent, invited by defense counsel, and the state had a very strong case against the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also entered a plea of guilty to being apersistent dangerous felony offender in violation of General Statutes § 53a-40 (a) (1) (A).

       Although the defendant claims that his due process right to a fair trial was violated under both the United States constitution and the constitution of Connecticut, he has not provided a separate analysis for his state constitutional claim. Accordingly, we deem it abandoned and will not afford it review. See State v. Lindo, 75 Conn. App. 408, 410 n.2, 816 A.2d 641, cert. denied, 263 Conn. 917, 821 A.2d 771 (2003).

       “ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. . . . The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. . . . When any one of these conditions is not satisfied, the claim will fail.” (Citations omitted; internal quotation marks omitted.) State v. Francis D., 75 Conn. App. 1, 10-11, 815 A.2d 191, cert. denied, 263 Com. 909, 819 A.2d 842 (2003).


text:
    IN RE GORDON C. ANDREWS’ APPEAL FROM PROBATE
    (AC 23446)
    Foti, DiPentima and Peters, Js.
    Argued May 29
    officially released July 29, 2003

      William A. Phillips, for the appellant (plaintiff).

      William J. Wenzel, for the appellee (defendant John Thomas Gorby).
   Opinion

PETERS, J.

General Statutes § 45a-242 (a) permits a Probate Court to remove a fiduciary of an intervivos or testamentary trust if the fiduciary “becomes incapable of executing such fiduciary’s trust . . . .” The issue presented by this case is whether a protracted conflict of interest between a trustee and the beneficiaries of the trusts justifies removal of the trustee under this statute. A Probate Court so held, and the trial court came to the same conclusion. The trustee has appealed from the judgments of the trial court rendered in favor of the trust beneficiaries. We affirm the judgments.

The plaintiff, Gordon C. Andrews, appealed to the trial court from a decree of the Probate Court for the district of Fairfield. The plaintiff alleged that the Probate Court had abused its discretion by removing him as the trustee of the John Stark Gorby Trust. The defendant, John Thomas Gorby, is the testator’s only son and the primary beneficiary of the estate.

The trial court heard the plaintiffs appeal as a Probate Court. As such, its jurisdiction was the jurisdiction of a Probate Court and not the jurisdiction of the Superior Court. Gardner v. Balboni, 218 Conn. 220, 225, 588 A.2d 634 (1991). In the absence of a record of the underlying Probate Court proceedings, the court heard the plaintiffs appeal de novo. See Andrews v. Gorby, 237 Conn. 12, 16, 675 A.2d 449 (1996).

The court’s careful and detailed memorandum of decision describes the relevant facts. The decedent, John Stark Gorby, was a resident of Greenwich and was survived by one son, the defendant herein, and six grandchildren, all the offspring of the defendant. The plaintiff prepared a will for the decedent that was executed on February 3, 1987. In subsequent documents drafted by the plaintiff and executed by the decedent, the plaintiff was named as executor of the will and as trustee of two trusts, one intervivos and one created by the will.

After John Stark Gorby’s death in 1989, the plaintiff was duly appointed as executor. There ensued lengthy litigation about the propriety of the fees that the plaintiff charged the estate. That litigation resulted in a finding by the trial court in a companion case that the estate had been overcharged by $48,898.

The trial court found that there was a clear conflict of interest between the plaintiff and the defendant John Thomas Gorby. In its memorandum of decision, the court stated: “At the trial of these matters, the only two witnesses were the plaintiff and the defendant John Thomas Gorby, old warriors who have been battling for ten years. Although a transcript of their testimony would not necessarily disclose it, the atmosphere in the courtroom was so thick that you could cut it with a knife. In the plaintiffs own words, he described his relationship with the defendant as ‘strained’ since the fee controversy developed in 1992. Ten years of continuous litigation has done little to thaw the icy relationship between them. It is absolutely clear that the defendant primary beneficiary does not want the plaintiff restored. Since 1998, when the substitute trustee, Union Trust Company, was appointed in both trusts, there has been perfect harmony between trustee and beneficiaries.

“Obviously, the protracted litigation between the parties is the main reason proffered by the defendant to support the plaintiffs removal. ... Up until 1992, the relationship between the parties appeared to be reasonably cordial. That changed drastically when the dispute over fees began. The court accepts the fact that the plaintiffs only commitment to the defendant concerning an executor’s fee was that it would be reasonable. ... He initially set an executor’s fee of $28,064, based on a percentage charge on the estate’s assets, less those included for tax purposes only. He did that of his own volition because he believed it would be inequitable to the estate to pay him a fee on those assets which would go to the trust from which he would be paid another fee.

“[Upon receiving professional advice of his entitlement to attorney’s fees, the plaintiff] asked for an attorney’s fee of $28,064, for total fees of $56,128. Certainly at this time, at least as to the attorney’s fee, the plaintiff was sowing the seeds of a conflict of interest with the estate. He apparently had no time records as to what he specifically did as an attorney to the exclusion of what he did as the executor, but he charged exactly the same fee for both. No one presented any evidence as to whether Connecticut did in fact have such a practice or policy regarding charging dollar for dollar executor’s and attorney’s fees.

“The beneficiaries felt the fees were too high, and the defendant at his own expense acquired the services of [a] law firm . . . which moved to disallow the fees. What the plaintiff did next was to increase the request for his executor’s fee to $45,898 in accordance with the Union Trust fee schedule even though he had originally described that schedule as ‘inequitable’ to the estate. His personal dealing and conflict with his duty of complete loyalty to the estate had already commenced. His claim now for executor’s and attorney’s fees totaled $73,962.

“After the hearing in the Probate Court, Judge Shannon allowed the plaintiff an executor’s fee of $28,000 and nothing for an attorney’s fee. It is of interest that the defendant did not appeal from that award even though he believed it to be too high. On the other hand, the plaintiff did, as to both the executor’s fee and the attorney’s fee. ... [As a result of that appeal, the plaintiff was awarded fees] in the amount of $25,000, $3000 less than Judge Shannon originally had authorized and $58,898 less than the plaintiff sought. . . .

“Things were bad enough then between the parties, but they were about to get worse. The defendant had by his own initiative and cost saved the estate $58,898. Had things stopped there, we might not be here now, but they did not.

“[The plaintiffs attorney] had charged the plaintiff $25,000 for services and $3423.81 for disbursements for representing his interest against the estate beneficiary over the plaintiffs personal fees. The plaintiff paid for all these services and disbursements right out of the estate’s income. He then sought approval in the Probate Court for an allowance of those fees and disbursements, and they were not allowed. He was essentially asking for the estate to pay for his services in a failed attempt to overcharge the estate. The Probate Court disallowed it, and the plaintiff again took another appeal, which is pending before this court. This forced the defendant beneficiary to again hire counsel for the purpose of preserving estate assets, the very thing the plaintiff was required to do based on his fiduciary relationship. All of the plaintiffs efforts to this date, all of which would result in the diminishment of estate assets, had been unsuccessful.

“These essentially were the facts available to the Probate Court when it removed the plaintiff as trustees of both trusts. There was no way of knowing then the outcome of the appeal, but the consequences of a similar result in the Superior Court would certainly present the plaintiff with potential future conflicts of interest with the estate initially and now the trusts.”

In light of these factual findings, the court concluded that acrimony between the parties had irreparably tainted the plaintiffs ability to continue to represent the interests of the trust beneficiaries in a fair manner. The court held, therefore, pursuant to § 45a-242, that the conflicts of interest between the parties justified removal of the plaintiff as trustee and executor for both trusts.

The plaintiff appeals from the judgments of the court on two grounds. Without challenging the court’s factual findings, he argues that his removal was improper as a matter of law because it was not authorized by § 45a-242 and because it was improperly based in part on events subsequent to the probate decrees from which the appeals were taken. “The trial court’s legal conclusions are subject to plenary review. [Wjhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision.” (Internal quotation marks omitted.) Roach v. Ivari International Centers, Inc., 77 Conn. App. 93, 99, 822 A.2d 316 (2003).

I

The plaintiffs principal argument is that, under § 45a-242 (a), he can be removed as executor only if he has become “incapable of executing his trust” and that the protracted litigation between the parties does not prove such incapacity. He maintains that (1) litigation about the administration of the estate is not a valid basis for removing him from the administration of the trusts, (2) disagreements about the administration of the estate are not sufficient evidence of a clear and continuing conflict of interests to establish his incapacity to act and (3) the court’s factual findings, even if they demonstrate his disloyalty to the estate, do not establish his disloyalty to the trusts. At oral argument, he emphasized the importance of judicial deference to the decedent’s choice of executor and trustee. We are not persuaded by any of the plaintiffs claims.

In his first and third claims, the plaintiff argues that we should draw a sharp line of distinction between his role as executor of the John Stark Gorby estate and his role as trustee of the testamentary trust and the intervivos trust. These claims are unsustainable in light of the facts in this case. The plaintiff drafted the will and the codicils that established the testamentary trust, and at the same time drafted the intervivos trust. In each instrument, he designated himself as fiduciary and established his right to receive fiduciary fees. The documents creating the will and the trusts were part of one transaction.

In his second claim, the plaintiff argues that the trial court, sitting as a Probate Court, improperly removed him as trustee because there was insufficient evidence to establish that he had become “incapable of executing his trust.” The plaintiff and the defendant both cite Ransdell v. Union Trust Co., 202 Conn. 57, 66-67, 519 A.2d 1185 (1987), in which our Supreme Court stated: “The existence of a potential conflict of interest does not, of itself, mandate removal of [a fiduciary]. . . . Thus, in order to justify removing [a fiduciary], there must be evidence of a clear and continuing conflict of interest rendering the [fiduciary] unfit to perform [his] duties to the estate. The bare possibility of a cause of action on the estate’s behalf against the [fiduciary], if such a claim were frivolous or speculative, would not warrant removal. Whether the [fiduciary] has a conflict of interest that renders [him] unfit to continue in the service of the estate depends, in significant part, upon whether the estate’s potential claims against the [fiduciary] have sufficient substance to warrant consideration by a successor fiduciary uninfluenced by a motive to avoid litigation.” (Citations omitted.) See also Satti v. Kozek, 58 Conn. App. 768, 776, 755 A.2d 333, cert. denied, 254 Conn. 928, 761 A.2d 755 (2000).

The crux of the plaintiffs argument is that, because he was entitled to recover fiduciary fees, a disagreement about the amount of these fees does not demonstrate a cognizable conflict of interests and, therefore, does not justify the conclusion that he had become “incapable of executing his trust.” The fact that it was the plaintiff himself who instigated and prolonged the fee litigation justified the court’s finding that the plaintiff bore responsibility for the conflict of interests that arose out of the fee litigation.

Alternatively, the plaintiff argues that, however acrimonious the fee litigation has been in the past, he should not be removed as trastee because it is unlikely that there will be another such conflict of interest in the future. The trial court, however, expressly found to the contrary. The court noted that, if it is determined that the plaintiff overcharged the estate with respect to his fees, he would now have to make repayment to himself as trastee of the testamentary trust that has taken over the property of the estate. “How tenacious can he be against himself in collecting those funds, and, if he does, how bitter will he be against the beneficiaries in both trusts, who have caused the result? There is also the future potential conflict of interest over attorney’s fees and disbursements of [the plaintiffs attorney] in representing the plaintiff in these two appeals as well as [another pending] case .... To the extent that the plaintiff pursues the trusts again for those expenses, the litigation may never end.”

The force of the court’s finding is not diminished by the plaintiffs suggestion that, if he were again to fail in his duty as trastee, he could be held in contempt. This suggestion flies in the face of the special duty of loyalty that a fiduciary owes to the beneficiary of a trust. As Chief Judge Benjamin N. Cardozo observed in Meinhard v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545 (1928), “[a] trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.” See also Hall v. Schoenwetter, 239 Conn. 553, 559, 686 A.2d 980 (1996); Konover Development Corp. v. Zeller, 228 Conn. 206, 220, 635 A.2d 798 (1994); Ramsdell v. Union Trust Co., supra, 202 Conn. 65.

We conclude, therefore, that on the record before it, the court properly ordered the removal of the plaintiff as trustee for the testamentary and intervivos trusts created by John Stark Gorby. We are mindful of the plaintiffs admonition that we should hesitate to set aside the testator’s expressed designation of the plaintiff as executor and trustee. Under the circumstances of this case, however, the testator’s preference cannot prevail. The court fully documented the conflict of interest that has rendered the plaintiff “incapable of executing his trust.”

II

The plaintiffs second argument for reversal of the judgments removing him from his position as trustee of each trust is the claim that the court improperly considered evidence that could not have been presented to the Probate Court. Such evidence is inadmissible because a judge of the Superior Court, when sitting as a judge of the Probate Court, is not sitting as a court in equity. Accordingly, the court in this case did not have unlimited authority to consider whatever evidence might be relevant to a fair disposition of the case. See Gardner v. Balboni, supra, 218 Conn. 225; Satti v. Rago, 186 Conn. 360, 369, 441 A.2d 615 (1982); Thomas v. Arafeh, 174 Conn. 464, 470, 391 A.2d 133 (1978). Indeed, the court acknowledged the existence of this evidentiary rule.

The plaintiff cites one instance in which the court overstepped its bounds. In that instance, the court found that there had been perfect harmony between a successor trustee and the defendant. Obviously, the conduct of a successor trustee postdated the plaintiffs removal from the trusteeship.

The plaintiff argues that the court’s improper reference to a successor trustee made its decision “defective” so that its determination “should not be allowed to stand.” The question raised by this argument is whether improper admission of evidence implicates the Superior Court’s subject matter jurisdiction. If it does, the trial court’s judgments cannot be sustained.

The plaintiffs jurisdictional argument finds a modicum of support in Gardner v. Balboni, supra, 218 Conn. 225. In that case, the Supreme Court described an appeal from probate as “a trial de novo with the Superior Court sitting as a Probate Court and restricted by a Probate Court’s jurisdictional limitations. . . . Although the Superior Court may not consider events transpiring after the Probate Court hearing; Satti v. Rago, [supra, 186 Conn. 369]; it may receive evidence that could have been offered in the Probate Court, whether or not it actually was offered.” (Citations omitted; emphasis added.) Gardner v. Balboni, supra, 225.

In Satti v. Rago, supra, 186 Conn. 369, however, the Supreme Court had described the admission of evidence of events subsequent to the Probate Court hearings in a less draconian fashion. In that decision, the court held that “[t]he error of admitting evidence of [a party’s] current interest being irrelevant to the issue of past opportunity lost is, therefore, harmless.” Id. The Satti court treated the improper admission of such evidence as evidentiary error, not as jurisdictional error.

Did Gardner implicitly overrule Satti? We conclude that it did not. Gardner cited Satti with approval. Our research has disclosed no subsequent appellate case that has cast a shadow over the holding of Satti.

On the merits of the jurisdictional argument, the plaintiff has not cited, and we have not found, any authority holding that the improper admission of evidence by a Superior Court sitting as a Probate Court implicates the court’s subject matter jurisdiction. “Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. . . . Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong.” (Citations omitted; internal quotation marks omitted.) Demar v. Open Space & Conservation Commission, 211 Conn. 416, 423-24, 559 A.2d 1103 (1989); see also Savoy Laundry, Inc. v. Stratford, 32 Conn. App. 636, 639, 630 A.2d 159, cert. denied, 227 Conn. 931, 632 A.2d 704 (1993). Unquestionably, the court had jurisdiction to consider the propriety of removing the plaintiff from his position as trustee.

The only question that remains to be considered is whether the trial court’s evidentiary error, even if not jurisdictional, was harmful to the plaintiff. We agree with the defendant that it was not. The court described in detail the facts relating to the plaintiffs conduct that were the basis for its decision that removal of the plaintiff from his trusteeship was justified. Indeed, the plaintiff has not argued that the court’s reference to a successor trustee was harmful to his position.

Ill

We conclude, therefore, that the trial court properly removed the plaintiff from his position as trustee of the trusts created by John Stark Gorby. The court’s uncontested findings of fact support its determination that the plaintiffs conduct gave rise to a conflict of interest that was sufficiently serious to warrant his removal. These findings have persuasive value despite the court's improper but harmless consideration of evidence that was irrelevant to the plaintiffs trusteeship.

The judgments are affirmed.

In this opinion the other judges concurred.

       Because the plaintiff has not filed a transcript of the proceedings before the trial court, the court’s factual findings stand unchallenged.

       The companion case is In re Andrews’ Appeal From Probate, 78 Conn. App. 441, 826 A.2d 1267 (2003) (AC 23447). It upholds the judgment of the trial court.

       The plaintiff named John Thomas Gorby and his six children as defendants. We refer in this opinion to John Thomas Gorby as the defendant.

       The plaintiff represents that all of his accounts with respect to the trusts have been approved. He has not, however, pointed out a place in the record that establishes the accuracy of this representation.