author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. JOAO NUNES
    (AC 18808)
    Foti, Landau and Stoughton, Js.

      Argued February 16—officially
    officially released June 20, 2000

      KentDrager, senior assistant public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and David Zagaja, assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Joao Nunes, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the third degree in violation of General Statutes § 53a-124. On appeal, the defendant claims that (1) the evidence was insufficient to prove that he knew or should have known that the property was stolen, (2) the evidence was insufficient to prove value, (3) the court improperly excluded certain evidence, (4) the court improperly admitted certain evidence and (5) the court improperly instructed the jury as to the law of reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts from the evidence adduced during the trial. In January, 1994, Air One, Inc. (Air One), operated an aircraft service business in a terminal building and hangar located at Brainard Field in Hartford. Air One also rented office space to a number of tenants, one of whom was the defendant, a Hartford police officer who operated a flight school at Brainard Field at that time. The Air One customer service desk was in the lobby of the terminal, and the manager’s office was in a room behind the counter. The defendant’s office was on the second floor of the terminal.

On January 30, 1994, Peter Halpin, the general manager of Air One, was informed that the company’s air-to-ground radio and case, which had been kept in a locked cabinet behind the service desk, were missing. The radio was a 720 channel Dittel-German FSG-50 transceiver (radio). Halpin observed marks on the cabinet indicating that the door had been forced open. He also noticed that the antenna wire had been cut. He reported the matter to the Hartford police and later informed Lieutenant David Kenary that the radio and case had been stolen. Halpin knew Kenary because Kenary was a student at the defendant’s flight school and a frequent visitor at the airport. Halpin described the stolen radio to Kenary, and Kenary obtained a copy of the police report.

On March 11,1994, Kenary and another police officer executed a search warrant on an unrelated matter at the defendant’s residence in Meriden. In the basement of the house, Kenary saw a radio that matched the description of the stolen radio. He seized the radio and, on the way back to police headquarters, stopped at Brainard Field to show it to Halpin. Halpin identified it as the radio stolen from the Air One service desk.

At trial, Steven Christino, an avionics expert who had worked on the radio, identified the radio seized from the defendant’s residence as the radio that had been stolen from the Air One service desk. Christino, who was experienced in appraising avionics equipment, placed the value of the stolen radio and case at $2200. Christino based his appraisal on the condition of the radio at that time. He set as the value the price that would be paid for the same radio in a similar condition. He used the Aviation Electronics Association Guide, a worldwide publication, and a catalog published by EDMO Distributors, Inc., as references.

I

The defendant’s first claim is that there was insufficient evidence for the jury to have inferred that he knew or should have known that the radio found in his basement had been stolen. The defendant testified that he had bought the radio for $250 from a man who used to hang around the airport but whom he had not seen since the transaction was completed.

When we review a sufficiency of evidence claim, we employ a two part test. We first construe the evidence in the light most favorable to sustaining the verdict. We then determine “whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Potts, 55 Conn. App. 469, 471, 739 A.2d 1280, cert. denied, 252 Conn. 905, 743 A.2d 616 (1999). In reviewing the defendant’s challenge, the relevant inquiry is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original; internal quotation marks omitted.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).

There was ample evidence from which the jury reasonably could have inferred that the defendant knew or should have known that the radio was stolen. His own testimony was that he looked into the value of the radio and, believing that it was worth $750 to $800, paid $250 for it. The price the defendant allegedly paid was far below Christino’s estimated value and the defendant’s own estimate. An inference that the defendant should have known that the radio had been stolen might have been drawn from that fact if the jury accepted the defendant’s claim that he bought the radio. The radio was found in the basement of the defendant’s house shortly after it was stolen. It would not easily have been seen by others in that location, and the jury could have inferred that he kept it there because it had been stolen. The antenna wire on the radio had been cut, which would naturally tend to arouse suspicion. Finally, the jury heard evidence that employees at Air One had locked the defendant out of his office and that there had been a dispute between the defendant and Air One.

“A rational person will believe what he regards as probable and disbelieve what he regards as improbable.” (Internal quotation marks omitted.) State v. Gabriel, 192 Conn. 405, 413, 473 A.2d 300 (1984). “Ordinarily, guilty knowledge can be established only through an inference from other proved facts and circumstances. The inference may be drawn if the circumstances are such that a reasonable man of honest intentions, in the situation of the defendant, would have concluded that the property was stolen.” State v. Fred-ericks, 149 Conn. 121, 124, 176 A.2d 581 (1961). We conclude that the evidence presented to the jury and the inferences that reasonably might have been drawn therefrom were sufficient to establish beyond a reasonable doubt that the defendant knew or should have known that the radio found in his basement had been stolen.

II

The defendant next claims that there was insufficient evidence to prove that the market value of the stolen radio exceeded $1000. In testing the sufficiency of the evidence claim, we employ the test enunciated previously in this opinion.

The defendant claims that the only evidence presented regarding the value of the radio was the testimony of Christino and that Christino testified as to the replacement value of the radio rather than the market value of the radio. The defendant further claims, relying on General Statutes § 53a-121 (a) (l), that the state could not properly rely on replacement value unless and until the state claimed and proved that the market value of the radio was not satisfactorily ascertainable.

Section 53a-124 provides, in part, that a person is guilty of larceny in the third degree when he commits larceny and the value of the property exceeds $1000. Section 53a-121 provides, in part, that the value of property is the market value of the property at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement within a reasonable time after the crime. “Market value has been defined as the price that would in all probability . . . result from fair negotiations, where the seller is willing to sell and the buyer desires to buy.” (Internal quotation marks omitted.) State v. Collette, 199 Conn. 308, 313, 507 A.2d 99 (1986). “The determination of value is a question for the trier of fact.” Id., 314.

Christino testified that in January or February, 1994, he appraised the value of the radio at $2200. In arriving at this appraisal value, Christino relied primarily on two reference guides, the Aviation Electronics Association Guide and a catalog published by EDMO Distributors, Inc. The $2200 appraisal figure was for a used radio. Christino further testified that he did not determine a value on the basis of that particular radio; rather, he based the value on that of another radio of a similar condition.

We conclude, contrary to the claim of the defendant, that Christino’s testimony gave the jury a reasonable basis on which it could find that the market value of the radio exceeded $1000. In State v. Collette, supra, 199 Conn. 314-15, the defendants claimed, as the defendant claims in the present case, that the witness who testified as to value employed a replacement value rather than a market value standard. The expert witness in Collette, an experienced professional jeweler and appraiser, testified that he based his appraisal on a “ ‘[c]omparison to what merchandise costs, and whether it’s used and how much depreciation it has.’ ” Id., 315. The witness further testified that the appraisal was based on what he thought he could get as a fair price and that these estimates were based on the retail value of the items. Id. Reviewing the witness’ testimony as a whole, the court concluded that the jury reasonably could have found that he appraised the items at market value. Id. Similarly, in State v. Perez, 5 Conn. App. 129, 132, 497 A.2d 82 (1985), the state’s expert witness, a gemologist, testified as to the fair market value of stolen items. On cross-examination, the witness testified that “this was replacement value not as new, but the cost of going out and buying the items ‘as is.’ ” Id. The defendant claimed that the appraisal was based on replacement cost and not on market value. Id. We concluded in Perez that the witness had testified as to market value. Id., 133.

On the basis of the foregoing, we conclude that there was sufficient evidence for the jury to conclude that the market value of the radio exceeded $1000.

Ill

The defendant claims next that the court improperly failed to admit into evidence the price listing for a different model Dittel radio from the 1992 Aircraft Owners and Pilots Association Guide (AOPA guide), which he indicated he had used in determining the value of the stolen radio when he bought it.

The trial court determines the relevancy of evidence within its broad discretion. “The proffering party bears the burden of establishing the relevance of the offered evidence. Unless a proper foundation is established, the evidence is irrelevant.” (Internal quotation marks omitted.) State v. Orhan, 52 Conn. App. 231, 246, 726 A.2d 629 (1999). Decisions on whether a proper foundation has been laid are evidentiary and, therefore, not constitutional in nature. State v. Farrar, 7 Conn. App. 149, 158-59, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986).

The defendant offered into evidence a page from the AOPA guide on which the value of a different model Dittel radio model was listed at $1570. The defendant testified that the model Dittel radio that had been stolen was not manufactured after 1992 and that this different model was the closest available. The court sustained the state’s objection to the admissibility of the evidence because the defendant had failed to establish an adequate foundation for its relevancy. The defendant subsequently testified, however, that he had used the AOPA guide and other sources to determine that the market value of the model Dittel radio like the one that had been stolen was between $750 and $800, and that he considered a purchase price of $250 a good deal.

Contrary to the defendant’s claim, we cannot say that the court abused its wide discretion in refusing to admit into evidence the page from the AOPA guide. The AOPA guide did not show the value of the same model radio as the one that had been stolen, nor did it show the value of the stolen case in which the radio was found and which Christino testified was as valuable as the radio. We further note that although the page from the AOPA guide was not admitted into evidence, the defendant testified that he consulted that source in arriving at a value of $750 to $800 for the stolen radio. The information, therefore, was before the jury.

IV

The defendant next claims that the court improperly denied his motion in limine to preclude the state from impeaching his testimony by referring to his previous conviction for robbery. We disagree with the defendant.

The following facts are necessary for the resolution of this claim. Prior to the trial, the defendant filed a motion in limine to limit the state’s ability to impeach him with evidence of his prior convictions. The court ruled that evidence of two of the defendant’s prior convictions was admissible as convictions for unnamed felonies, and that the state would be allowed to refer to the defendant’s robbery conviction for the limited purpose of impeaching the defendant. Thereafter, the defendant testified on direct examination that he had been convicted of robbery and two unnamed felonies. The defendant claims that, as used by the prosecutor, the prejudicial impact of the evidence of the robbery conviction outweighed its probative value.

“Where . . . the prior convictions bear directly on the veracity of the defendant-witness, the trial court’s decision denying a motion to exclude [the] witness’ prior record, offered to attack his credibility, will be upset only if the court abused its discretion.” (Internal quotation marks omitted.) State v. Thomas, 15 Conn. App. 197, 205, 543 A.2d 1356 (1988). “[C]rimes involving larcenous intent imply a general disposition toward dishonesty . . . [and they] obviously bear heavily on the credibility of one who has been convicted of them.” (Internal quotation marks omitted.) State v. Dawkins, 42 Conn. App. 810, 819-20, 681 A.2d 989, cert. denied, 239 Conn. 932, 683 A.2d 400 (1996).

The defendant claims that prejudice resulting from the similarity between the prior robbery conviction and the crime charged outweighed the probative value of the evidence of the prior crime, particularly in light of the prosecutor’s argument to the jury that it establishes a certain disposition not to tell the truth. The defendant, however, never objected to the prosecutor’s statements to the jury. Moreover, the court instructed the jury that the robbery conviction could be considered for the limited purpose of evaluating the defendant’s credibility. The defendant did not offer a request to charge on the subject and did not except to this charge as given. We find no abuse of discretion in the ruling of the court.

V

Finally, the defendant claims that the court improperly instructed the jury on the law of reasonable doubt. Because the defendant did not preserve this issue at trial, review is limited to the precepts articulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

The defendant concedes that some of his claims have been rejected by our Supreme Court, that is, his claims that the court improperly instructed the jury that reasonable doubt is a real doubt or an honest doubt; State v. Hines, 243 Conn. 796, 817-18, 709 A.2d 522 (1998); and that proof beyond a reasonable doubt must be proof of such a convincing character that “a reasonable person would not hesitate ... to rely and act upon it in the most important of his own affairs.” See State v. Morant, 242 Conn. 666, 688, 701 A.2d 1 (1997). We note that “[i]t is not . . . within our province to overrule or discard the decisions of our Supreme Court.” (Internal quotation marks omitted.) State v. Markeveys, 56 Conn. App. 716, 722, 745 A.2d 212, cert. denied, 252 Conn. 953, 749 A.2d 1203 (2000).

In addition to the claims that he concedes have been rejected by the Supreme Court, the defendant challenges the court’s statements that proof beyond a reasonable doubt means that the jury must be “firmly convinced” that the defendant is guilty of the crime charged. We will review this claim because the record is adequate for review and the defendant alleges the violation of a fundamental constitutional right. See State v. Morant, supra, 242 Conn. 687. We conclude, however, that the alleged constitutional violation did not clearly exist and did not deprive the defendant of a fair trial.

We do not agree that the instruction that proof beyond a reasonable doubt is proof that leaves the members of the jury firmly convinced of the defendant’s guilt dilutes the state’s burden of proof. It clearly informs the members of the jury that they must be convinced by more than a preponderance of the evidence and, considered in conjunction with the court’s instructions in their entirety, did not diminish the state’s burden of proof.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-124 (a) provides in relevant part: “A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-l 19 and . . . (2) the value of the property or service exceeds one thousand dollars . . . .”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to:
      ❖ ❖
      “(8) Receiving stolen property. A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen, unless the property is received, retained or disposed of with purpose to restore it to the owner. A person who accepts or receives the use or benefit of a public utility commodity which customarily passes through a meter, knowing such commodity (A) has been diverted therefrom, (B) has not been correctly registered or (C) has not been registered at all by a meter, is guilty of larceny by receiving stolen property. . . .”

       The defendant had been in charge of the systems services unit of the Hartford police department.

       Christino stated in his testimony that “I wasn’t asked to appraise the radio, I was asked to buy another one.”

       General Statutes § 53a-121 (a) provides in relevant part: “For the purposes of this part, the value of property or services shall be ascertained as follows: (1) Except as otherwise specified in this section, value means the market value of the property or services at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property or services within a reasonable time after the crime. . . .”

       Christino testified as follows:
      “[Assistant States Attorney]: And you utilized that assessment—your own assessment of what the radio’s condition was when you placed a value on it?
      “[Christino]: That’s correct.
      “Q. Okay.
      “A. Well, I didn’t place a radio value on that particular version. I mean, that particular radio. I placed it on another radio to purchase. He was going to buy another one.
      “Q. In a similar condition?
      “A. Eight.
      “Q. But you had—
      “A. In the same condition.
      “Q. You had in your mind what condition this radio was in?
      “A. That’s correct. I knew what they wanted. I knew what they were looking for.
      “Q. And you were familiar with this radio?
      “A. Yes.”

       The court ruled, however, that the state was precluded from using the term bank with regard to the robbery conviction. The court also granted the defendant’s request for a curative instruction.

       Specifically, the defendant claims that the following language from the court’s instruction improperly diluted the state’s burden of proof. “[W]hat does this mean, beyond a reasonable doubt? That phrase has no technical or unusual meaning. And you can arrive at the true meaning of it by emphasizing the word ‘reasonable.’ The test, then, is one of reasonable doubt. A reasonable doubt is a doubt from which a valid reason can be assigned. It’s a doubt which is something more than a guess or a surmise. As the jury will remember that the defendant is never to be convicted on mere suspicion or conjecture. A reasonable doubt is not a fanciful doubt. A reasonable doubt is not a doubt which is raised by someone merely for the sake of raising doubt, nor is it a doubt which is not justified by the evidence or lack of evidence. A reasonable doubt is a doubt based on reason and common sense, not on the mere possibility of innocence. It is a doubt for which you can, in your own mind, conscientiously give a reason.
      “A reasonable doubt, in other words, is a, real dov,bt. An honest doubt. A doubt which has its foundation in the evidence or lack of evidence. It is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate ... to rely and act upon it in the most important of his own, affairs. . . . Proof beyond a reasonable doubt, then, is proof which leaves you firmly convinced of the defendant’s guilt. I wish to impress upon each of you that before you may reach any verdict of guilty each of you must consider the evidence and become firmly convinced that the defendant, Mr. Nunes, is guilty of the crime charged before you can find him guilty. If, on the other hand, you are not firmly convinced that he is guilty you must give him the benefit of the doubt and find him not guilty.” (Emphasis added.)

       Under Golding, “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.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    VIRGINIA RIGGIO v. ORKIN EXTERMINATING COMPANY, INC.
    (AC 18910)
    O’Connell, C. J., and Mihalakos and Zarella, Js.

      Argued January 20
    officially released June 20, 2000

      Linda L. Morkan, with whom, on the brief, were David Thomas Ryan and Brian ODonnell, for the appellant (defendant).

      Timothy J. Fitzgerald, with whom, on the brief, was Douglas T. Barall, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of the trial court rendered in favor of the plaintiff after a hearing in damages on the plaintiffs claims of breach of contract, negligence and unfair trade practices. The hearing in damages was conducted after a default was entered against the defendant for failure to comply with a court order relative to the plaintiffs discovery requests. The defendant claims that the court improperly (1) refused to open the default entered against it, (2) awarded damages that were not recoverable under either the plaintiffs contract or negligence claims and (3) awarded attorney’s fees without sufficient evidence and without affording the defendant an opportunity to be heard. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff homeowner commenced this action against the defendant extermination company in February, 1997. The plaintiff sought money damages relating to damage to her home resulting from its infestation by termites following extermination treatments by the defendant pursuant to a contract for services. The complaint set forth four counts alleging (1) breach of contract, (2) breach of warranty and guarantee, (3) negligence and (4) violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

On May 1, 1997, the plaintiff served the defendant with interrogatories. When the defendant failed to respond within thirty days, as required by Practice Book § 13-7 (a), the plaintiff on June 2, 1997, filed a motion to compel. The defendant on June 16, 1997, filed an opposition to the plaintiffs motion to compel, and on June 17, 1997, the court ordered the defendant to answer the interrogatories within thirty days or a default would enter.

When the defendant failed to comply with the court’s June 17,1997 order, a default entered against the defendant, and on August 13, 1997, the plaintiff claimed the matter to the hearing in damages list. On September 15, 1997, the defendant filed a motion to open the default, alleging inadvertence in its failure to comply with the discovery requests and stating that discovery materials were forwarded to the plaintiff by facsimile and by regular mail contemporaneously with the filing of the motion. The court on September 29, 1997, denied the defendant’s motion to open.

On November 10, 1997, the defendant filed a motion for reconsideration of the court’s denial of the motion to open the default, alleging that the defendant’s failure to comply in a timely manner with the plaintiffs discovery requests was due to inadvertence and that there existed a good and valid defense to the action. On November 13, 1997, the plaintiff filed an objection to the defendant’s motion for reconsideration, alleging that the defendant had not provided any new information in its motion that would warrant reconsideration of the court’s denial of the motion to open the default. On December 8, 1997, the court denied the defendant’s motion for reconsideration, and the matter was scheduled for a hearing in damages.

A hearing in damages was held from May 27 through 29,1998, and on September 21,1998, the court rendered judgment for the plaintiff, awarding her $100,000 in compensatory damages and $33,000 in attorney’s fees under CUTPA for a total judgment of $133,000 plus costs. The court declined to award punitive damages under CUTPA. The defendant appealed from the judgment on October 13, 1998.

Pursuant to Practice Book § 66-5, the defendant filed a motion for articulation, requesting that the trial court identify which portions of the damages award arose from the plaintiffs contract claim and which portions arose from the negligence claim. The court denied the motion. The defendant then filed a motion for review of the trial court’s ruling. This court granted review, but denied the relief requested.

I

The defendant first claims that the court improperly refused to open the default entered against it. “[The] determination of whether to set aside [a] default is within the discretion of the trial court . . . and will not be disturbed unless that discretion has been abused or where injustice will result.” (Citation omitted; internal quotation marks omitted.) Higgins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998). “The scope of review by this court on a claim that the trial court abused its discretion is well settled. [E]very reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Higgins v. Karp, 239 Conn. 802, 808, 687 A.2d 539 (1997).

The court denied the defendant’s motion to open the default without written or oral decision. The defendant did not seek to have the court articulate its basis for denying the motion. “The burden of securing an adequate record for appellate review of an issue presented on [appeal] rests with the [appellant].” (Internal quotation marks omitted.) Anderson v. Schieffer, 35 Conn. App. 31, 45, 645 A.2d 549 (1994). The defendant has failed to provide us with a written memorandum of decision or a transcribed oral decision of the court stating its reasons for denying the motion to open. See Practice Book § 64-1 (a). “We, therefore, are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by the trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Alix v. Leech, 45 Conn. App. 1, 5, 692 A.2d 1309 (1997). In view of the inadequate record, we cannot ascertain why the court denied the motion to open and, therefore, we decline to review this claim.

II

The defendant next claims that the court improperly awarded damages that were not recoverable under either the plaintiffs contract or negligence claims. The defendant claims that (1) the evidence presented at the hearing in damages establishes that the plaintiff is not entitled to the awarded damages pursuant to the contract between the parties and (2) the plaintiff failed to establish that the defendant’s negligence caused her any damage.

“The entry of a default constitutes an admission by the defendant of the truth of the facts alleged in the complaint. . . . The plaintiff still must prove [at a hearing in damages] how much of the judgment prayed for in the complaint he is entitled to receive.” (Citations omitted; internal quotation marks omitted.) DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 400, 441 A.2d 838 (1982). “Although a defendant may not contest liability if he has failed to notify the plaintiff of his intention to do so ... a defendant may contest the amount of damages.” Marcus v. DuPerry, 25 Conn. App. 293, 296, 593 A.2d 163 (1991), rev’d in part on other grounds, 223 Conn. 484, 611 A.2d 859 (1992). The question to be considered is whether the court’s damages award is appropriate under either the plaintiffs negligence or contract claims.

The court found the following additional facts. On October 6, 1993, the defendant inspected the plaintiffs home, determined that there were active termites in the garage and house, and the parties entered into a contract for extermination services. The plaintiffs first termite extermination treatment by the defendant consisted of the laying of a protective barrier outside the plaintiffs house to keep termites from entering and to kill the termites already inside the house by depriving them of moisture. The plaintiff was told that this initial treatment would take care of her termite problem. The plaintiff, however, purchased an extended warranty plan that would cover her for any reinfestation. Within four months of the initial treatment, visual signs of termites reappeared in the plaintiffs house. The defendant returned to the plaintiffs house seven times in 1994 to again treat areas of reinfestation. In January, 1995, the defendant gave the plaintiff a one year free renewal of her service contract, citing as the reason on the renewal form, “[H]ave had several retreats done due to an improper treatment on initial service.”

The defendant returned to the plaintiffs property approximately twenty-seven times from 1994 to 1998 to treat areas of massive reinfestation. Eventually, the bathroom and the basement in the plaintiffs house had to be completely gutted due to termite damage. In addition, significant damage was done to the plaintiffs garage, kitchen, foyer and family room. The plaintiffs expert, Paul Sullivan, a contractor, estimated the outstanding damage to the plaintiffs home at $150,172.67. Sullivan initially was sent to the plaintiffs home by the defendant to repair damage to the dining room following a termite infestation in 1995 and had returned to repair various other areas of damage during the four years of treatment by the defendant. The defendant’s expert, who repeatedly told the court that he was not a termite expert and could not identify termite damage, estimated that the repairs to the plaintiffs home would cost $31,935.61.

The defendant asserts that the court awarded damages that were outside the scope of the contract between the parties. “Where the contract language relied on by the trial court to resolve the dispute is definitive, the interpretation of the contract is a matter of law and our review is plenary.” Empire Paving, Inc. v. Milford, 57 Conn. App. 261, 265, 747 A.2d 1063 (2000).

The defendant makes two claims in support of its argument that the damages award is not supported by the language of the contract. First, the defendant relies on the contractual language limiting its liability to the repair of “new termite damage” and asserts that there was insufficient evidence from which the court could find new termite damage as opposed to the damage that existed prior to the contract. This claim is without merit. Even absent the admissions imposed on the defendant by the default, the evidence of new termite damage to the plaintiffs home was overwhelming. Throughout the four years of treatment, swarms of termites were discovered behind windowsills, Sheetrock and flooring. Live termites were discovered coming through the Sheetrock into the basement and behind the tiles in the bathroom. The contractor, Sullivan, found termite damage to the sill of the house, the rim board, the main carrying beam, the front foyer carrying beam and found a depression in the kitchen-family room floor. In sum, there was overwhelming evidence of new termite damage for which the defendant was hable under the contract.

Second, the defendant asserts that the contractual language excludes from liability damage that occurs inside walls or in other places that cannot be visually inspected. The defendant, however, misstates this contractual provision. In fact, the contract states: “I specifically agree not to hold [the defendant] responsible for the repair of any present damage existing in areas or in structural members of my building which are unexposed or can’t be inspected as of the date I sign this Agreement.” (Emphasis added.) Pursuant to this language, the defendant still is responsible for new termite damage existing in these areas. As set forth previously, the plaintiffs material allegations of new termite damage in her complaint are deemed admitted by the defendant. Furthermore, even absent this admission, the evidence presented clearly supports the plaintiffs claim of new damage.

The court awarded the plaintiff $100,000 in compensatory damages. This amount fell between the two amounts cited by the parties’ experts. “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. . . . The trier may accept or reject, in whole or in part, the testimony of an expert.” (Citation omitted.) Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195, 737 A.2d 993, cert. denied, 251 Conn. 929, 742 A.2d 364 (1999). Accordingly, the court’s damages award was supportable under the plaintiffs breach of contract and breach of warranty claims. Because we conclude that the court’s damages award was supportable under the plaintiffs contract claims, it is unnecessary for us to consider whether the damages award also is supportable under the plaintiffs negligence cause of action.

Ill

The defendant’s final claim is that the court improperly awarded attorney’s fees because the plaintiff failed to introduce evidence as to the reasonableness of the fees, thus depriving the defendant of an opportunity to be heard on that issue.

“The trial court has discretion whether to award attorney’s fees under CUTPA and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.” (Internal quotation marks omitted.) Lawson v. Whitey’s Frame Shop, 42 Conn. App. 599, 608, 682 A.2d 1016 (1996), rev’d on other grounds, 241 Conn. 678, 697 A.2d 1137 (1997). The issue here, however, is not whether attorney’s fees should have been awarded within the court’s discretion, but rather, whether the court considered the appropriate factors in determining the amount of attorney’s fees.

In Steiger v. J. S. Builders, Inc., 39 Conn. App. 32, 38, 663 A.2d 432 (1995), this court held that the guidelines set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 715 (5th Cir. 1974), for calculating reasonable attorney’s fees are appropriate in CUTPA cases. Our review of whether the court correctly applied the factors and whether the award of attorney’s fees is reasonable is limited to a consideration of whether the court’s action was in abuse of its discretion. Steiger v. J. S. Builders, Inc., supra, 39.

The defendant first asserts that the court was required by Steiger to consider all twelve of the Johnson factors before making an award of attorney’s fees. The defendant mischaracterizes the law of Steiger. The court in Steiger held only that in determining what is a reasonable attorney’s fee award, the trial court abuses its discretion if it considers only one of the twelve factors and completely excludes and disregards all of the others. Id. Thus, the court in this case was not required to consider each of the twelve factors individually, but instead was required to consider the full panoply of factors and not base its decision solely on one of the elements.

The defendant further asserts that the sole eviden-tiary basis for the court’s award of attorney’s fees in this case was the plaintiffs testimony that she has a contingency fee arrangement with her attorney. The defendant claims that the court abused its discretion under Steiger because it considered only one of the twelve Johnson factors to the complete exclusion of the other eleven factors. The defendant mischaracter-izes the court’s consideration. Although the court’s award was based on the figure that would result from the one-third contingency fee arrangement, the court clearly considered whether this fee was reasonable pursuant to the Steiger guidelines. In its memorandum of decision, the court specifically recognized that it was required to consider the twelve factors set forth in Steiger and held that “[i]n determining whether the fees which would be generated under that arrangement should be allowed, the court considers the legal questions presented, the skill required to present the case, the amount in controversy, the experience of the attorney, the case itself, and the time required to put the case together, to plead it, to try it and to prepare the pretrial and posttrial briefs. This was a hearing to the court which ran three and one-half days, with expert testimony and extensive pretrial and posttrial briefs. There were extensive pretrial motions, some of which involved preclusion issues as well as issues dealing with experts and site inspections. Based on the aforesaid considerations the court awards attorney’s fees in the amount of the one-third contingency fee arrangement entered into between the plaintiff and her attorney.” A separate evidentiary hearing on the reasonableness of the attorney’s fees was not mandatory and, given that the court properly considered the Steiger factors in determining the reasonableness of the attorney’s fees, the court’s consideration was clearly within the legitimate exercise of its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant failed to take advantage of Practice Book § 17-34, which permits defaulted defendants to challenge the allegations in the plaintiffs complaint at the hearing in damages if “notice has been given to the plaintiff of the intention to contradict such allegations and of the subject matter which the defendant intends to contradict . . . .”

       The court in Steiger v. J. S. Builders, Inc., supra, 39 Conn. App. 38, adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 715, which include: “(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.” Steiger v. J. S. Builders, Inc., supra, 38.


author: ZARELLA, J.

text:
    LINDA HERRERA v. JESSE MADRAK
    (AC 18735)
    Spear, Mihalalcos and Zarella, Js.
    Argued February 28
    officially released June 20, 2000

      Jon L. Schoenhom, with whom were Morton N. Katz and, on the brief, Jeanne M. Zulick, for the appellant (plaintiff).

      Dennis F. McCarthy, for the appellee (defendant).
   Opinion

ZARELLA, J.

The plaintiff, Linda Herrera, appeals from the judgment rendered after a jury trial awarding her $5000 in damages. On appeal, the plaintiff claims that the trial court improperly (1) instructed the jury on mitigation of damages when the evidence did not warrant such a charge, (2) failed to instruct the jury on the burden of proof with respect to mitigation of damages and (3) abused its discretion in denying the plaintiffs motion to set aside the verdict and for addi-tur. We reverse in part the judgment of the trial court and remand the case for a new trial on the issue of damages.

The jury reasonably could have found the following facts. The plaintiff was injured in an automobile accident on May 23, 1994. At the time of the accident, the plaintiff was a passenger on a Connecticut Transit bus traveling on a public street in Newington. The defendant, Jessie Madrak, while attempting to make a left turn, drove his truck across the center line and collided with the Connecticut Transit bus. The bus driver estimated that he was traveling at a speed no greater than five miles per hour. There was no testimony offered as to the defendant’s rate of speed. The bus was only slightly damaged as a result of the impact.

As a result of the collision, the plaintiff was thrown forward, striking a partition inside the bus with her head and shoulders and the right side of her body. The plaintiff was subsequently taken by ambulance to New Britain General Hospital to be treated for neck, back and shoulder pain. She received treatment and was given painkillers and anti-inflammatory medication.

After three days, the plaintiff returned to work but still suffered from pain. She began treatment with Stephen Beck, a physician, at the Hospital for Special Care in New Britain. The plaintiff continued to see Beck every four to eight weeks for treatment of pain in her arms and legs and for headaches. The plaintiff also attended physical therapy sessions at Beck’s request. The plaintiff, however, missed more than twelve scheduled physical therapy sessions over a seven month period for various reasons. Further, she testified that she “tried to make up the missed appointments.” Prior to the accident, the plaintiff had been active in sports and other physical activities.

In May, 1995, Beck indicated to the plaintiff that it would be beneficial and worthwhile for her to discontinue physical therapy. At that time, Beck recommended that the plaintiff continue rehabilitation at home. The plaintiff was discharged by Beck with a 4 percent impairment of the cervical spine, a 4 percent impairment of the lumbar spine and a 4 percent impairment due to migraine headaches. In February, 1996, the plaintiff moved to Texas. There was no evidence that she received any treatment for her injuries while she was in Texas. She returned to Connecticut ten months later and resumed treatment with Beck. Additionally, the jury heard testimony from the plaintiff that the pain interfered with her ability to work at her job as a paralegal and adversely affected her ability to participate in athletics.

I

The plaintiff first claims that the trial court improperly instructed the jury on mitigation of damages when the evidence did not warrant the jury instruction. Prior to addressing this issue, we first consider whether it was properly preserved at trial.

After the court delivered its instruction, the plaintiff took exception by stating, “I preserve my exception on the mitigation of damages charge.” This exception, as stated, was insufficient to put the court on notice of the nature of the claimed defect, as the plaintiff did not state any grounds for the exception. It is unclear whether the exception was to the giving of a mitigation of damages instruction, the substance of the instruction or some other defect. The purpose of taking an exception is to alert the court in time to correct the instruction. Berry v. Loiseau, 223 Conn. 786, 814, 614 A.2d 414 (1992); Prystash v. Best Medium Publishing Co., 157 Conn. 507, 512, 254 A.2d 872 (1969). Nor can counsel take an exception that is ambiguous and then, on appeal, explain what was meant by it. Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 22-23, 717 A.2d 77 (1998); Berry v. Loiseau, supra, 814—16; Bevins v. Brewer, 146 Conn. 10, 12-13, 147 A.2d 189 (1958). Nevertheless, in the present case, the court clearly understood that the plaintiffs exception was directed to the giving of any mitigation of damages instruction and not to the substance of the charge itself. The court confirmed its understanding in its memorandum of decision on the plaintiffs posttrial motions: “While plaintiffs counsel objected to inclusion of the instruction which was previewed in writing, he did not object to the language, or offer an amendment, either prior to or subsequent to the charge of the jury.” (Emphasis added.) We therefore will review this claim.

“Our standard of review is well established. The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, we must determine whether the charge as a whole presents the case to the jury so that no injustice will be done.” (Citation omitted; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 603, 662 A.2d 753 (1995).

Upon review, however, we disagree with the plaintiffs claim that the trial court should not have instructed the jury on the doctrine of mitigation of damages. There was evidence sufficient to warrant the instruction. The plaintiff had missed more than twelve physical therapy appointments over a seven month period. The decision to include or not to include an instruction to the jury on mitigation of damages depends on whether the instruction is likely to provide helpful guidance to the jury. Burns v. Hanson, 249 Conn. 809, 832, 734 A. 2d 964 (1999). We find no abuse of that discretion by the trial court when it gave the instruction.

II

The plaintiff next claims that the court, having given the mitigation of damages charge, was required to give an additional instruction regarding the burden of proof.

The record reflects that the plaintiff did not submit any specific requests to charge the jury and did not take exception to the lack of a burden of proof instruction. “In State v. Butler, 207 Conn. 619, 630, 543 A.2d 270 (1988), this court held that where a defendant fails to make a request to charge and does not except to the charge as given or ask for a supplemental charge, we shall not consider such claims on appeal.” State v. Ortiz, 252 Conn. 533, 577, 747 A.2d 487 (2000). “[A] claim of error in a jury charge may be preserved either by making a specific request to charge or by excepting properly to the charge as given. ‘In order properly to preserve for appeal a claimed error in the trial court’s charge to the jury, a party must take an exception when the charge is given that distinctly states the objection and the grounds therefor.’ ” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 23. As previously noted, the court understood that the plaintiffs exception was directed to the inclusion of the mitigation of damages instruction and not to the language of the instruction. In this case, the plaintiff failed to take proper exception to the court’s charge as given.

On appeal, however, the plaintiff asks for plain error review of this issue. Practice Book § 60-5 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines . . . that the decision is otherwise erroneous in law.

“The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...” Plain error is restricted to extraordinary situations where the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. Thomsen v. Aqua Massage International, Inc., 51 Conn. App. 201, 208-209, 721 A.2d 137 (1998), cert. denied, 248 Conn. 902, 732 A.2d 178 (1999). This is such a situation.

We have had the opportunity to address this issue on at least two prior occasions in cases factually and procedurally similar to this case. In Preston v. Keith, 20 Conn. App. 656, 660-61, 570 A.2d 214 (1990), rev’d in part on other grounds, 217 Conn. 12, 584 A.2d 439 (1991), and Moura v. Pulieri, 40 Conn. App. 183, 187-89, 669 A.2d 1243, cert. denied, 236 Conn. 923, 674 A.2d 1328 (1996), we held that the failure to give an accompanying instruction on the burden of proof with an instruction on mitigation of damages constituted plain error. We see no reason to deviate from the established precedent and, therefore, reverse the judgment of the trial court.

We now consider the relief to be granted to the plaintiff. Although our Supreme Court has allowed a trial court to limit a retrial to a specific issue or issues, it has limited this authority “to situations ‘[w]here the error as to one issue or issues is separable from the general issues . . . [and] such . . . limitation does not work injustice to the other issues or the case as a whole.’ ” Fazio v. Brown, 209 Conn. 450, 455, 551 A.2d 1227 (1988). Our Supreme Court has held further that where the retrial of a single issue may have some affect on the other issues to the prejudice of either of the parties, the court cannot exercise its discretion in limiting the new trial to a single issue, but rather the court should grant a trial de novo. Id. The general rule is that “[t]he decision to retain the jury verdict on the issue of liability and order a rehearing to determine only the issue of damages should never be made unless the court can clearly see that this is the way of doing justice in [a] case. . . . [A]n order restricting the issue [of a new trial] is the exception, not the rule.” (Citations omitted; internal quotation marks omitted.) Id.

Nevertheless, where we have in the past found plain error in the jury instruction on burden of proof as it relates to mitigation of damages, we have reversed the judgment only as to the issue of damages and not on the issue of liability. See Moura v. Pulieri, supra, 40 Conn. App. 189; Lynch v. Granby Holdings, Inc., 37 Conn. App. 846, 850, 658 A.2d 592 (1995), appeal dismissed, 235 Conn. 941, 669 A.2d 578 (1996); Preston v. Keith, supra, 20 Conn. App. 664.

In the present case, there is no question as to the liability nor is there any contributory negligence on the part of the plaintiff. Our Supreme Court has stated: “[Wjhere . . . liability is contested and an appellate court is unable to infer whether upon a new trial a jury would find in favor of the defendant or in favor of the plaintiff an appellate court must remand the case for a trial on all issues. ” (Internal quotation marks omitted.) Fazio v. Brown, supra, 209 Conn. 456. In this case, because there is no question as to liability, ordering a new trial only as to damages does not work an injustice to either party.

The judgment is reversed as to damages only and the case is remanded for a new trial on that issue.

In this opinion the other judges concurred.

       Because of our resolution of the second claim, we remand the matter for a new determination of damages, and it therefore is not necessary for us to review the third claim.

       The defendant died prior to the trial. The court granted the motion to substitute the administratrix of the defendant’s estate, Fatima Lobo, as the party defendant.

       Robert Maradino, a body shop foreman for Connecticut Transit, testified that the damages totaled only $120 for both labor and materials. The damage was limited to the right front comer of the bumper.

       Practice Book § 16-20 provides in relevant part: “Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. . . .”

       “Although ambiguous or unarticulated exceptions are insufficient to preserve a claim on appeal; see Swenson v. Sawoska, 18 Conn. App. 597, 600, 559 A.2d 1153, [aff'd, 215 Conn. 148, 575 A.2d 206 (1990)]; we find that the plaintiffs failure to except specifically to the form of the instruction as a part of her general exception to the charge on the failure to mitigate damages is not fatal to her claim for appellate review. Because of the nature of the error claimed here, the erroneous instruction on the burden of proof, we review this claim under the so-called ‘plain error’ provisions of Practice Book § 4185 [now § 60-5].” Preston v. Keith, supra, 20 Conn. App. 661. The court further found that the trial court’s instruction constituted plain error. Id., 661-63.


author: LANDAU, J.

text:
    PATRICK STANLEY v. BRENDA STANLEY
    (AC 19986)
    Landau, Schaller and Hennessy, Js.

      Submitted on briefs March 22
    officially released June 20, 2000

      John Demetre filed a brief for the appellant (plaintiff).
   Opinion

LANDAU, J.

The plaintiff, Patrick Stanley, appeals from the judgment of the trial court modifying the award of child support. The sole question on appeal is whether the trial court improperly failed to calculate the support order to determine the presumptive support amount pursuant to General Statutes § 46b-215a. We affirm the judgment of the trial court.

On July 19, 1999, the court granted the plaintiffs motion to modify the amount of child support that he was required to pay to the defendant and ordered a temporary modification. In response to the plaintiffs motion for reconsideration, the court, on August 18, 1999, ordered a farther modification. The record contains neither a written memorandum of decision nor a transcribed copy of an oral decision signed by the court, regarding the plaintiffs motion for reconsideration. See Practice Book § 64-1. “The duty to provide this court with a record adequate for review rests with the appellant. See Practice Book § 4007 [now § 61-10] . . . .” (Citations omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998). We have frequently declined to review claims where the appellant has failed to provide the court with an adequate record for review. See id., 609; Emigrant Savings Bank v. Erickson, 46 Conn. App. 51, 53-54, 696 A.2d 1057, cert. denied, 243 Conn. 921, 701 A.2d 341 (1997). We have, on occasion, reviewed claims of impropriety in the absence of a written memorandum of decision or a signed transcript of an oral decision as long as the transcript contains a sufficiently detailed and concise statement of the court’s findings. See Mikolinski v. Commissioner of Motor Vehicles, 55 Conn. App. 691, 699, 740 A.2d 885 (1999), cert. denied, 252 Conn. 922, 747 A.2d 518 (2000); Connecticut National Bank v. Browder, 30 Conn. App. 776, 778-79, 622 A.2d 588 (1993); Banthin v. Shoreline Plumbing & Heating Supply Corp., 30 Conn. App. 637, 640, 621 A.2d 769 (1993); cf. Centerbank v. Gross, 31 Conn. App. 38, 39-40, 622 A.2d 1066 (1993) (no review because unsigned transcript did not reveal basis of court’s factual conclusions).

Here, the unsigned transcript fails to provide this court with the necessary foundation to determine the propriety of the court’s conclusions without resorting to conjecture and speculation. Alix v. Leech, 45 Conn. App. 1, 5, 692 A.2d 1309 (1997).

The judgment is affirmed.

In this opinion the other judges concurred.


author: DALY, J.

text:
    THOMAS K. BARBER v. ROBERT D. JACOBS ET AL. ROBERT D. JACOBS ET AL. v. THE PUTNAM TRUST COMPANY OF GREENWICH ET AL.
    (AC 18829)
    Schaller, Spear and Daly, Js.
    Argued December 8, 1999
    officially released June 20, 2000

      Scott M. Harrington, with whom, on the brief, was Richard E. Castiglioni, for the appellants (defendants in the first case, plaintiffs in the second case).

      John F. Lambert, for the appellee (plaintiff in the first case, defendant Thomas K. Barber in the second case).
   Opinion

DALY, J.

The defendants appeal from the judgment of the trial court rendered after a trial to the court in two consolidated cases ordering them to return to the plaintiff, Thomas K. Barber, a down payment for the purchase of a residence owned by the defendants Robert D. Jacobs and Linda S. Jacobs. The court determined that the agreement between the plaintiff and the Jacobses to purchase the Jacobses’ residence never came into existence because it was subject to a condition that had not been fulfilled. The defendants claim that the court improperly (1) found that the plaintiff made reasonable efforts to secure a mortgage as required by the agreement, (2) found that the plaintiff did not breach the implied contractual covenant of good faith and fair dealing and (3) required the defendants to complete an application with the inland wetlands and watercourses agency (agency) of the town of Greenwich. We affirm the judgment of the trial court.

These two consolidated actions involve an attempt by the plaintiff to terminate an agreement to purchase real property owned by the defendants Robert Jacobs and Linda Jacobs. In the plaintiffs action for inter-pleader, he sought to determine the rights to a certain deposit of $327,000 that was paid toward the purchase of the property and was b.eing held in escrow. In the Jacobses’ action, they sought to recover damages from the plaintiff, in excess of the deposit, resulting from the plaintiffs breach of contract, breach of the implied covenant of good faith and fair dealing, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and fraudulent misrepresentations.

The court found the following facts. The plaintiff and his family planned to move from Toronto, Canada, to Connecticut and desired to move into a home in the New York area before the upcoming school year. The plaintiff and his wife first viewed the property owned by the Jacobses on April 19, 1994. The plaintiff made an offer to the Jacobses on May 25,1994, and requested a “wetlands inspection, including soil tests to be sure there is room for a tennis court.”

On June 17, 1994, the plaintiff signed a contract with a purchase price of $3,275,000 and a closing date of August 8,1994. The contract contained a mortgage contingency clause, which provided that the “[agreement [was] contingent upon Purchaser obtaining a commitment for a loan, to be secured by a first mortgage on the premises, in an amount not in excess of $1,300,000 . . . .” The mortgage contingency required the plaintiff to “make prompt application for such a loan” and “to pursue said application with diligence.” The Jacobses signed the contract on June 24, 1994. The plaintiff paid a 10 percent deposit amounting to $327,000, which was held by the Jacobses’ attorney, the defendant Irwin K. Liu, pursuant to the contract.

• A mortgage application was forwarded to The Putnam Trust Company of Greenwich (bank) on June 20, 1994, disclosing the plaintiffs monthly income of $210,000 and net worth in excess of $4,000,000. On June 30, the bank loan committee approved the loan but did not establish an interest rate, nor did it issue a formal mortgage commitment.

The plaintiff was represented by Thomas Hartch who also represented the bank. Hartch ordered a plot plan of the property and reviewed the inland wetlands file. On June 30, 1994, Hartch received the same plot plan prepared by Bruce Lasky, a soil scientist, outlining in red pencil the location of the inland wetlands area, the location of the existing septic system and proposed system to serve the pool house, set-back lines and the location of a possible tennis court. On July 14, 1994, Hartch received a new map depicting the inland wetlands area, also prepared by Lasky, and compared these maps with a map on file with the agency that had been completed in 1986. Hartch concluded that discrepancies existed between the 1986 agency map and the 1994 plot plan maps prepared by Lasky. In addition, the agency file showed that on April 2, 1986, an inland wetlands compliance officer found clearing and ground disturbances in the wetlands area on the property that violated agency regulations. The agency sent a letter to the Jacobses stating that there were “unauthorized activities on [their] property” that violated agency regulations. A July 30,1986 final report stated that the problems on the land regarding wetlands were not fixed and still needed resolution.

On July 18, 1994, Hartch advised the plaintiff that he was obligated to bring the matter to the attention of his other client, the bank, and did so on July 19,1994, by bringing the records to the attention of bank executive Ronald Lowe. The bank reversed the loan approval and issued a written denial because the property failed to comply with agency standards. Hartch notified Liu of the situation and requested the return of the deposit because the contract was void under the mortgage contingency clause. The defendants refused.

Meanwhile, the plaintiff and his wife considered other homes. The plaintiff first looked at the home of Frank Gifford and Kathy Lee Gifford on July 17, 1994. The Gifford home was viewed again on July 21, 1994, along with a Bronxville residence that would not be available on time to meet the plaintiffs schedule. The plaintiff tendered an offer to the Giffords of $3,000,000 on July 23,1994, which was accepted by the Giffords on August 4, calling for a closing date of August 18, 1994.

The trial court’s factual 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 the 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.) Food Studio, Inc. v. Fabiola’s, 56 Conn. App. 858, 862, 747 A.2d 7 (2000); see also Powers v. Olson, 252 Conn. 98, 105, 742 A.2d 799 (2000). When 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. Pandolphe’s Auto Paris, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980).

I

The primary issue in this appeal is whether the plaintiff made a reasonable effort to obtain a mortgage which was a condition precedent of the contract. Mortgage contingency clauses in contracts imply a promise by the borrower that he or she will “make reasonable efforts to secure a suitable mortgage.” Lack v. Cahill, 138 Conn. 418, 422, 85 A.2d 481 (1951). We agree with the court’s conclusion that, given all of the surrounding circumstances, the plaintiff made a reasonable effort to obtain a mortgage.

The defendants make much of the fact that the plaintiff did not seek out a loan commitment from another institution when the bank rejected him and conclude that from this inaction that the plaintiff did not make reasonable efforts to obtain a mortgage. We are not persuaded.

The facts of this case are analogous to those in Lut-tinger v. Rosen, 164 Conn. 45, 316 A.2d 757 (1972). In Luttinger, the plaintiffs sought to purchase a home. The contract was subject to the plaintiffs obtaining mortgage financing of no greater than 8.5 percent. Id., 46. The plaintiffs applied for a loan at, what the plaintiffs’ experienced attorney knew to be, the only institution that would lend the amount of money needed for the type of dwelling in issue. Id. The mortgage commitment was obtained at a rate of 8.75 percent, which was too high under the contract. Id. The plaintiffs sought to get back their down payment from the defendants, and the defendants refused. Id., 47. On appeal, our Supreme Court concluded that the knowledge of plaintiffs’ attorney of lending rates in and out of the area adequately supported the conclusion that due diligence was used in seeking mortgage financing, even though the plaintiffs went to one bank only. Id. Our Supreme Court rejected the defendants’ argument that applications should have been made at other institutions, stating that “[t]he law does not require the performance of a futile act.” Id.

Just as the attorney in Luttinger knew that other loans were not available, here, Hartch knew that the wetlands problem was an obstacle to obtaining a loan. Like the attorney in Luttinger, Hartch drew on his experience to conclude that the wetlands problem could not be easily overcome. The problem with the Jacobses’ property, that is, noncompliance with agency regulations, was not a minor one. The record indicates that the plaintiff made an application in a timely manner to the bank and received a favorable response, which was later rescinded when the plaintiffs counsel informed the bank of potential inland wetlands irregularities involving the premises.

Furthermore, this problem needed to be resolved quickly, and Hartch knew that a quick resolution was not likely to happen. Time was of the essence for the plaintiff, as he and his wife needed a new home as soon as possible so that their children could start school in the area. Indeed, Hartch’s advice proved sound, as the agency file on the matter was not closed until December 20, 1994, and even then, approval was given subject to six special conditions.

The record clearly shows that the property’s noncompliance with inland wetlands regulations was a major obstacle to the plaintiffs obtaining a loan from the bank. It is reasonable to assume that other lending institutions would be reluctant to grant a mortgage under the then prevailing circumstances, and, as stated previously, the law does not require parties to perform futile acts. Accordingly, it was not improper for the court to conclude that the plaintiff used reasonable efforts to secure a suitable mortgage and did not breach the contract.

The defendants also contend that the plaintiff received a mortgage commitment from the Jacobses themselves, which the plaintiff was bound to accept. Even if we assume, arguendo, that the Jacobses gave such a commitment, the plaintiff was not required to accept it. Again, Luttinger v. Rosen, supra, 164 Conn. 45, guides our resolution of this claim. In Luttinger, the defendants, through counsel, offered to make up the difference between the interest rate offered by the bank and the 8.5 percent rate provided for in the contract by a “funding arrangement,” which the plaintiffs did not accept. Id., 46-47. Our Supreme Court stated that “[a]ny additional offer by the defendants to fund the difference in interest payments could be rejected by the plaintiffs.” Id., 48, citing Lack v. Cahill, supra, 138 Conn. 420. Similarly, we conclude that the court’s conclusion that the plaintiff was not bound to accept the Jacobses’ offer of a mortgage under the contract was correct.

As the court properly summarizes: “For all the reasons set forth before, the court finds that [the plaintiffs] efforts were reasonable. The problem was created by the sellers. It was unresolved. An experienced practitioner representing the [plaintiff and his wife] felt that this was not a problem that would be resolved quickly. This court does not require [the plaintiff] to adjourn the closing to allow an opportunity for the problem to be corrected, particularly in light of the timetable which was found by this court to have existed prior to the contract being entered into and was further evidenced by the conduct of the [plaintiff and his wife] after the termination of the contact. They needed a house immediately.”

We conclude that the court’s finding that the plaintiff made sufficient reasonable efforts to secure a mortgage, in light of all of the surrounding circumstances, was not clearly erroneous.

II

The defendants next claim that the court improperly concluded that the plaintiff did not breach the implied contractual covenant of good faith and fair dealing. We disagree.

“Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. . . . Essentially it is a rule of construction designed to fulfill the reasonable expectations of the contracting parties as they presumably intended. . . . Conversely, [b]ad faith means more than mere negligence; it involves a dishonest purpose.” (Citations omitted; internal quotation marks omitted.) Middletown Commercial Associates Ltd. Partnership v. Middletown, 53 Conn. App. 432, 437, 730 A.2d 1201, cert. denied, 250 Conn. 919, 738 A.2d 657 (1999).

Ample evidence supports the court’s conclusion that the plaintiff did not violate the implied covenant of good faith and fair dealing. The plaintiff and his wife expressed genuine interest in the Jacobses’ house. Indeed, the court called the testimony of the plaintiffs wife, “compelling.” She stated that their need for a quick move because of their children drove their decision. She wanted her children to meet other children in the neighborhood, get medical shots and physicals and start school on time. The Jacobses’ problem with their residence could not be resolved quickly, and for the plaintiff, time was of the essence. The plaintiffs efforts to find another home were not driven by a dishonest purpose of escaping the agreement. Sufficient evidence exists for the court to conclude that the plaintiff did not breach the implied covenant of good faith and fair dealing, and we will not disturb that decision.

Ill

The defendants finally claim that the court improperly required them to complete an inland wetlands application within a short period of time while the plaintiff was excused from the contract. Specifically, the defendants interpret the court’s statement that “[h]ad the [Jacobses] cleared up the problem by the closing date of August 8, 1994, and tendered a deed on that date, this court would be looking at a veiy different case,” as somehow imposing on them the obligation to complete such an application. We disagree.

The court’s statement, which is dicta, merely predicts what might have happened had the wetlands problem been resolved by the closing date, and does not place an obligation on anyone. See Sharkiewicz v. Smith, 142 Conn. 410, 412, 114 A.2d 691 (1955). At most, the court merely commented that if the wetlands problem were resolved by August 8, 1994, the plaintiff would not have been faced with an undue delay in purchasing the Jacobses’ home. Simply put, nothing in the court’s decision imposes such an obligation on the defendants as they claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       We refer in this opinion to Robert D. Jacobs, Linda S. Jacobs and Irwin K. Liu as the defendants.

       In the first case, the plaintiff buyer, Barber, sought to recover moneys deposited by him with the defendant Irwin K. Liu, attorney for the defendant sellers, the Jacobses. In the second case, the Jacobses sought to recover damages from The Putnam Trust Company of Greenwich (bank) and Barber, in excess of the deposit, resulting from a breach of contract and related claims arising from the failure of Barber to purchase their home. Prior to trial, the Jacobses withdrew their action against the bank and, therefore, the bank is not a party to this appeal.

       The court stated that “it is common practice in this area for the same attorney to represent [the] buyer and the lender . . . .”


text:
    HALL-BROOKE FOUNDATION, INC. v. CITY OF NORWALK
    (AC 19101)
    Lavery, Spear and Daly, Js.

    Argued January 19
    officially released June 20, 2000

      Irwin J. Gordon, for the appellant (plaintiff).

      Donald F. Reid, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

DALY, J.

The plaintiff, Hall-Brooke Foundation, Inc., appeals from the judgment of the trial court, rendered in favor of the defendant, the city of Norwalk (city), in accordance with the report of an attorney trial referee. Although the plaintiff raises several issues on appeal, one is dispositive; that is, whether the court improperly accepted the report of the attorney trial referee and denied the plaintiffs exception and objection to the report because the referee improperly determined that the social service caseworkers did not have either express or apparent authority to authorize the admission of, and accept responsibility for the payment for medical services rendered to, forty indigent patients. We reverse the judgment of the trial court.

The plaintiff, a private psychiatric and substance abuse hospital, brought this contract action against the city for payment for medical services provided by the plaintiff to forty indigent residents of the city between October 13, 1994, and March 28, 1995. The case was referred to an attorney trial referee who heard two days of evidence and submitted a report comprised of findings of fact, conclusions of law and a recommended judgment for the city. The plaintiff moved to correct various portions of the referee’s report. The referee, however, essentially denied all of the plaintiffs requests. The plaintiff then filed an exception to the referee’s report, as well as an objection to the acceptance of the report, both of which were denied. The court accepted the report of the referee and rendered judgment in accordance with the report without a written memorandum of decision.

“The trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee. . . . Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the [attorney trial] referee.” (Citations omitted; internal quotation marks omitted.) Villano v. Polimeni, 54 Conn. App. 744, 747, 737 A.2d 950, cert. denied, 251 Conn. 908, 739 A.2d 264 (1999). In addition, while a reviewing trial court may not substitute its findings for those of the referee, it may find facts contrary to those found by the referee where “a material fact has been found without evidence or the [referee] has failed to find an admitted or undisputed fact . . . .” (Internal quotation marks omitted.) Schmaling v. Schmaling, 48 Conn. App. 1, 10, 707 A.2d 339, cert. denied, 244 Conn. 929, 711 A.2d 727 (1998).

The following facts are undisputed. Pursuant to General Statutes § 17b-259, the city is obligated to pay for certain medically necessary services provided to a general assistance recipient. The plaintiff provides detoxification services to patients on both an inpatient and outpatient basis, including general assistance recipients. Pursuant to Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., municipalities are reimbursed by the state for detoxification services provided to patients under the age of twenty-one and over the age of sixty-five; the state will not reimburse for detoxification treatments for patients between the ages of twenty-one and sixty-five provided by freestanding providers like the plaintiff.

From July 18, 1991, to June 7, 1992, the city of Nor-walk department of social services (department) authorized, approved and paid the plaintiff for detoxification treatment for approximately twenty-three indigent general assistance residents of the city between the ages of twenty-one and sixty-five. The mayor of the city testified that while there was no specific line item in the budget for the payment for detoxification services to the plaintiff, there was “broad based” money in the 1991 budget to pay for food, shelter and medically necessary services for general assistance recipients in the city. The general welfare budget is distributed by the department.

Between October 13, 1994, and March 28, 1995, the plaintiff provided medical services to forty indigent general assistance recipient residents of the city. The department caseworkers authorized the admission of these individuals and agreed, both orally and by followup letter, to pay the plaintiff for the medical services provided. In fact, some of the department caseworkers who authorized the admissions in 1994 and 1995 were the same individuals who had authorized the admissions that had been paid for by the city in 1991 and 1992. After being billed by the plaintiff, the operations manager of the department promised “to honor” the outstanding bills.

At some point during 1993 or 1994, however, an internal policy decision had been made in the city by the mayor’s office that referrals to private freestanding hos-pitáis for detoxification treatment for general assistance recipients between the ages of twenty-one and sixty-five were no longer authorized. The city contends that during the time period covering the unpaid services, no request for budget approval was made, nor was there any item in the budget authorized by the common council enabling the expenditure of taxpayer funds for inpatient detoxification treatment of general assistance recipients of the plaintiff, or permitting the city to enter into a contract with the plaintiff for such purposes. The mayor further testified that when he met with the head of the department in preparation of the 1994 budget, he instructed her not to refer patients to the plaintiff, and that when he became aware that patients were being referred, he directed the department to stop. Accordingly, when the plaintiff submitted a bill to the city for $215,527.14 for services provided, the city refused to pay.

The mayor of the city and the chief financial officer of the city testified that there had never been a line item in the budget for detoxification services payments to the plaintiff for general assistance recipients between the ages of twenty-one and sixty-five. There was, however, generalized money in both the 1991-92 and 1994-95 budgets for food, shelter and medically necessary services to general assistance recipients. Further, the mayor conceded that he delegated the authority to authorize expenditures from that generalized budget to the department, and that the head of the department delegated the authority to the department operations manager and caseworkers.

The attorney trial referee recognized that under the ordinary rules of contract, an agent who has apparent authority, but not express authority, can bind his principal, especially as to parties who act in good faith. The referee clearly found that the department caseworkers authorized the plaintiffs treatment of the forty general assistance recipients of the city. The referee, however, added that caution is required when dealing with equally sophisticated entities entering into governmental contracts and, hence, she departed from ordinary contract law. The referee instead charged the plaintiff with “knowledge of the proper procedure by which municipal employees can bind the city to its actions,” and held that the department employees lacked apparent authority to approve the admissions and to agree to pay for the medical services that the plaintiff provided to the general assistance recipients. The salient issue here, therefore, is whether the department caseworkers had the apparent authority to bind the city. We conclude that they did.

“Apparent authority is that semblance of authority which a principal, through his own acts or inadver-tences, causes or allows third persons to believe his agent possesses. . . . Consequently, apparent authority is to be determined, not by the agent’s own acts, but by the acts of the agent’s principal.” (Citations omitted; internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 734, 629 A.2d 333 (1993). “The issue of apparent authority is one of fact, requiring the trier of fact to evaluate the conduct of the parties in light of all the surrounding circumstances. . . . Only in the clearest of circumstances, where no other conclusion could reasonably be reached, is the trier’s determination of fact to be disturbed.” (Internal quotation marks omitted.) Edart Truck Rental Corp. v. B. Swir-sky & Co., 23 Conn. App. 137, 140, 579 A.2d 133 (1990).

“The issue of apparent authority is . . . to be determined based on two criteria. . . . First, it must appear from the principal’s conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority. . . . Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent’s action.” (Citations omitted; internal quotation marks omitted.) Tomlinson v. Board of Education, supra, 226 Conn. 734-35. The doctrine of apparent authority was developed by the courts to protect third parties who deal with agents who lack express authority. Edart Truck Rental Corp. v. B. Swirsky & Co., supra, 23 Conn. App. 140. “Apparent authority may be derived from a course of dealing.” Id.

“Apparent authority terminates when the third person has notice that: (1) the agent’s authority has terminated; (2) the principal no longer consents that the agent shall deal with the third person; or (3) the agent is acting under a basic error as to the facts. . . . Unless otherwise agreed, there is a notification by the principal to the third person of revocation of an agent’s [apparent] authority or other fact indicating its termination: (a) when the principal states such fact to the third person; or (b) when a reasonable time has elapsed after a writing stating such fact has been delivered by the principal (i) to the other personally .... In addition, the principal can properly give notification of the termination of the agent’s authority by . . . giving publicity by some . . . method reasonably adapted to give the information to such third person.” (Citations omitted; internal quotation marks omitted.) Tomlinson v. Board of Education, supra, 226 Conn. 735.

Application of these general principles to the facts of this case reveal that the legal conclusion of the attorney trial referee, which was adopted by the court, that the department did not have apparent authority to bind the city to the contract with the plaintiff is not supported by the evidence and is legally incorrect. The referee relies primarily on the city’s charter to conclude that there was no budget line item from which the plaintiff could have been paid, and on Norwalk v. Board of Labor Relations, 206 Conn. 449, 452, 538 A.2d 694 (1988), to charge the plaintiff, as a matter of law, with knowledge of how municipal employees under the city’s charter may bind the city.

First, with respect to the referee’s conclusions regarding the city’s charter, she failed to find certain uncontested facts relevant to this issue. The mayor testified that there had never been a line item in the budget for detoxification services payments to the plaintiff, and yet the city paid the plaintiff for services in 1991 and 1992. The mayor further testified that there was money in both the 1991-92 and the 1994-95 budgets for food, shelter and medical services to general assistance recipients, and that the department authorized expenditures of those funds. It would be reasonable for the plaintiff to have concluded, therefore, that the same budget mechanism by which the city paid for the 1991-92 services would be available to pay for the services provided in 1994 and 1995. The referee’s conclusion that the city’s charter did not permit department caseworkers to authorize admission of, and payment for, general assistance recipients to receive detoxification services from the plaintiff is not supported by the uncontested evidence. Instead, it appears that it was an internal policy decision of the mayor’s office to discontinue referrals to private freestanding providers like the plaintiff that deprived the department of actual authority to make the referrals.

Given these facts, the referee’s reliance on Norwalk v. Board of Labor Relations, supra, 206 Conn. 449, is misplaced. In that case, the court charged the plaintiff with knowledge of the mechanism by which the municipal corporation may reinstate a discharged police officer because the procedures for reinstatement clearly were made public by the city charter as well as by statute. In that case it was reasonable for the court to expect the plaintiff, the board of labor relations, to have knowledge of the required procedures. In the present case, however, the mechanism that prevented the social service caseworkers from authorizing the challenged payment to the plaintiff was a purely internal policy of which the plaintiff had no knowledge. In fact, the plaintiff reasonably relied on an extensive history of prior payments for the same services authorized in the same manner. The authority under which the department agents previously authorized payment to the plaintiff, whether it be actual or apparent, was never properly revoked.

Furthermore, in Norwalk v. Board of Labor Relations, supra, 206 Conn. 453, the court’s conclusion that the city could not be bound by a settlement agreed to by the city attorney sent to negotiate with the labor board merely required the parties to return to the negotiation process and did not, in fact, leave the plaintiff in a worse position due to its reliance on the agreement. Conversely, in the present case, the plaintiff relied in good faith on the authorization of the department agents to its detriment. The plaintiff has already provided the services to the general assistance recipients and the city is therefore equitably estopped from now claiming that the contract was invalid. See Pepe v. New Britain, 203 Conn. 281, 294, 524 A.2d 629 (1987) (where “benefits have . . . been conferred upon [a municipal defendant], it would not be just to allow the defendant to escape its obligation to compensate the plaintiffs for the reasonable value of their services by asserting that their retention had not been in accordance with required formalities”).

The court should not have accepted the report of the referee because it recommended a judgment that is legally and logically inconsistent with the subordinate facts found. As a result, we must vacate the judgment of the court.

The judgment is reversed and the case is remanded with direction to render judgment rejecting the report of the attorney trial referee and for further proceedings in compliance with Practice Book § 19-17 (a).

In this opinion the other judges concurred.

       The plaintiff also alleges on appeal that the court improperly accepted the report of the attorney trial referee because the referee made certain erroneous findings of fact and conclusions of law and improperly permitted certain witnesses to testify. Because none of these issues will recur in a new trial, we need not address them.

       It is unclear whether reimbursement for patients between the ages of twenty-one and sixty-five was available prior to a change in the law in 1993. It is undisputed, however, that after 1993, the state no longer provided reimbursements for detoxification services to general assistance recipients in this age group.