author: LAVERY, J.

text:
    WELLINGTON SYSTEMS, INC., ET AL. v. REDDING GROUP, INC., ET AL.
    (AC 16334)
    O’Connell, C. X, and Lavery and Spear, Js.

      Argued November 6, 1997
    officially released June 23, 1998

      Christopher T. Cobum, with whom, on the brief, were Robert S. Bello, Lawrence M. Lapine and Thomas M. Cassone, for the appellants-appellees (plaintiffs).

      David S. Maclay, for the appellees-appellants (defendants).
   Opinion

LAVERY, J.

This appeal involves the dissolution of a partnership. The plaintiffs appeal from the judgment rendered, after a trial to the court, awarding the defendants $72,213. The plaintiffs claim that the trial court improperly (1) granted summary judgment, (2) found that the named plaintiff, Wellington Systems, Inc. (WSI), was not entitled to share in either the postdissolution revenues of contracts negotiated prior to dissolution or the revenues from contracts in existence at the date of dissolution until the expiration of those contracts, and (3) allocated partnership expenses. The defendants filed a cross appeal, claiming that the trial court was incorrect in failing to find that (1) the plaintiffs breached their fiduciary duty to the defendants, (2) the plaintiffs’ conduct caused the demise of the named defendant Redding Group, Inc. (RGI), and resulted in $1.5 million in damages to the defendants, (3) the plaintiffs Fred Stahl and Gene Goodman were also jointly and severally liable for the judgment and (4) prejudgment interest was also due.

The record discloses the following facts and procedural history. The defendant corporation, RGI, developed and marketed computer software. The individual defendants, Lydia Fazio and John Theys, were the principal stockholders of RGI. The plaintiff corporation, WSI, was a computer consulting firm owned by the individual plaintiffs, Stahl and Goodman. In 1981, RGI decided to market one of its software products to the business market. This product, GrafTalk, allowed users to design charts and graphs. The defendants contacted Stahl for assistance in negotiations with a potential customer. Thereafter, Stahl introduced the defendants to Goodman, his coowner in WSI. In a letter from the defendants to the plaintiffs dated November 11, 1981, the parties agreed on the percentage due the plaintiffs based on gross receipts from sales generated by the plaintiffs. At some point in 1982, RGI and WSI agreed that WSI would act as a sales representative and marketing consultant to assist RGI in selling its products in return for a share of the receipts. The two corporations, RGI and WSI, formed a partnership known as Redding Group Services (RGS).

On March 26,1984, WSI, the individual plaintiffs, RGI, and the individual defendants signed a letter of intent to merge RGS into RGI and to make the individual plaintiffs shareholders and officers of RGI. No such formal agreement was ever signed. Several months after the letter of intent was signed, the parties had a falling out, and the defendants terminated their business relationship with the plaintiffs and dissolved the RGS partnership.

The plaintiffs commenced this suit in 1984, and their amended complaint of March 13, 1985, contained six counts. The first count was against RGI, alleging that it had breached an agreement to restructure the RGS partnership agreement into one corporation, and to give Stahl and Goodman ownership interests in RGI. The second count was against RGI, Theys and Fazio, alleging that the defendants had made certain representations that Stahl and Goodman would become shareholders in RGI, and that the defendants knew such representations to be false. The third count was against RGI, alleging that RGI had interfered with the plaintiffs’ customers and caused monetary damages to the plaintiffs. In the fourth count, the plaintiffs alleged that Theys and Fazio had interfered with the plaintiffs’ contractual rights with RGI. In the fifth count, the plaintiffs alleged that RGI, Theys and Fazio had engaged in a conversion of funds belonging to the plaintiffs. In the sixth count, the plaintiffs sought an accounting and the appointment of a receiver for the RGS partnership.

The defendants filed an answer generally denying the material allegations of the complaint, and a revised special defense, setoff and counterclaim. In their special defense and counterclaim, the defendants alleged that the plaintiffs had breached their partnership agreement, their fiduciary duties to the defendants, the implied covenant of good faith and fair dealing, and had engaged in a conversion and a “secret plan” to deprive Theys and Fazio of their ownership of RGI. The defendants further claimed that as a result of the plaintiffs’ activities, RGI was forced out of business, and the defendants were deprived of their investment in RGI and incurred legal fees in connection with said activities.

In 1989, the defendants moved for summary judgment as to the first five counts of the six count complaint. Summary judgment was granted as to the first five counts. The court based its decision to grant summary judgment on the handwritten “letter of intent” dated March 26, 1984, summarizing the future merger of RGS into RGI, which, by its own terms, stated that it was contingent on the execution of a formal agreement. Because the court found that no formal agreement had ever been entered into, it concluded that the first five counts of the complaint could not survive the defendants’ motion for summary judgment.

The only causes of action that were tried were the sixth count of the amended complaint seeking an accounting of the dissolution of the partnership RGS, and the defendants’ counterclaim. The trial was held between October, 1992, and March, 1993. The initial memorandum of decision, dated June 21,1995, included the court’s decision on the accounting, found for the plaintiffs on the defendants’ counterclaim and ordered that the $46,000 remaining balance of RGS, held in escrow, be released to the defendants. Subsequent supplemental memoranda of decision were issued on January 2 and August 23, 1996, culminating in the August 23, 1996 judgment, in favor of RGI against its former partner WSI in the amount of $72,213.

I

The plaintiffs’ first claim on appeal is that the trial court improperly granted the defendants’ motion for summary judgment as to the first five counts of the plaintiffs’ amended complaint. Because each count raises a separate legal claim, we will discuss each individually. We first set forth our standard of review when faced with a challenge to a trial court’s decision to grant a motion for summary judgment.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Id., 745. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381. . . . Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994).” (Internal quotation marks omitted.) Doty v. Mucci, 238 Conn. 800, 805-806, 679 A.2d 945 (1996); Thompson & Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 374-75, 696 A.2d 326 (1997).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Citations omitted; internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 255, 654 A.2d 748 (1995).

A

The plaintiffs argue that the court improperly granted summary judgment as to the first count of the complaint because (1) the court relied exclusively on the conditional language of the letter of intent and failed to take into consideration whether subsequent conduct by the defendants served to make the agreement binding, (2) the letter of intent was not a condition precedent, (3) an issue of material fact exists as to whether such condition precedent was waived or excused and (4) an issue of material fact exists as to whether the circumstances surrounding the transaction and the defendants’ actions, subsequent to the letter of intent, estop them to deny that the contractual relationship exists.

In support of its motion for summary judgment, the defendants submitted an affidavit signed by Theys, along with four exhibits. The exhibits were a letter of November 11, 1981, addressed to Stahl and signed by Fazio as vice president of RGI, confirming an oral agreement between WSI and RGI regarding payment for WSI’s future services; a letter dated October 11, 1982, signed by both Fazio and Stahl, concerning the handling of RGI products by RGS; the March 26, 1984 letter of intent; and a memorandum from Goodman to Jorge Dorfsman. In opposition to the motion for summary judgment, the plaintiffs submitted an affidavit signed by Goodman. There were no accompanying exhibits or other evidence.

In finding that there were no disputed issues as to any material facts, the trial court relied on the fact that there was no formal written agreement following the letter of intent. The court noted that the plaintiffs’ affidavit did not claim that any such agreement ever existed. To reach its decision that no formal agreement existed, the court relied on a three part test utilized by this court in Fowler v. Weiss, 15 Conn. App. 690, 694, 546 A.2d 321, cert. denied, 209 Conn. 814, 550 A.2d 1082 (1988). “Whether the parties intended legally to bind themselves prior to the execution of a formal contract is to be determined from (1) the language used, (2) the circumstances surrounding the transaction, and (3) the purpose that they sought to accomplish. Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58 (1974).” Fowler v. Weiss, supra, 693. The court concluded that a formal written agreement was a condition precedent to a formal contract between the parties and, because one had not been executed, either party could have properly withdrawn from negotiations.

We agree with the trial court that under the Fowler test the parties did not intend to bind themselves prior to the execution of a formal contract. We also agree with the plaintiffs, however, that an issue of material fact exists as to whether the defendants are estopped to deny that a contractual relationship exists.

“Under the law of contract, a promise is generally not enforceable unless it is supported by consideration. E. Farnsworth, Contracts (1982) § 2.9, p. 89; A. Corbin, Contracts (1963) § 193, p. 188. This court has recognized, however, the ‘development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor; see Restatement (Second), Contracts § 90 (1973).’Sheets v. Teddy's Frosted Foods, Inc., [179 Conn. 471, 475, 427 A.2d 385 (1980)]; Hebrew University Assn. v. Nye, 148 Conn. 223, 232, 169 A.2d 641 (1961); see A. Corbin, supra, § 194, p. 193. Section 90 of the Restatement Second states that under the doctrine of promissory estoppel ‘[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.’ A fundamental element of promissory estoppel, therefore, is the existence of a clear and definite promise which a promisor could reasonably have expected to induce reliance. Thus, a promisor is not liable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all. E. Farnsworth, supra, § 2.19, p. 95.” D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987). “Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. . . . It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of tilings but also lacked any reasonably available means of acquiring knowledge. . . . Connecticut National Bank v. Voog, 233 Conn. 352, 366, 659 A.2d 172 (1995); see also D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, [supra, 213].” (Internal quotation marks omitted.) Chotkowski v. State, 240 Conn. 246, 268, 690 A.2d 368 (1997).

A review of the first count of the complaint indicates that the plaintiffs alleged both of those elements. As to the first element, the complaint alleges that the defendants (1) agreed to restructure the partnership arrangement into one corporation, (2) agreed that Stahl and Goodman would become officers and 37 percent shareholders in RGI in order to continue with the business relationship and in consideration of moneys owed to the plaintiffs, (3) represented that the agreement was being finalized and (4) held Stahl and Goodman out to be shareholders and officers of RGI. Regarding the second element, the plaintiffs allege that they forgave money owed to them and agreed that the assets and funds in RGS would become part of and incorporated in RGI, and continued with the business relationship in reliance on the defendants’ actions. In Goodman’s affidavit, he again states that in consideration for money owed to him, to WSI and to Stahl, and to continue with the business relationship, RGI agreed to make Stahl and Goodman officers and stockholders in RGI. Thus, the plaintiffs have stated that they changed their position in reliance on the promises made to them by the defendants. Further, by forgiving money owed to them and by continuing the business relationship they suffered injury.

Although Theys’ affidavit stated that the plaintiffs never forgave the money they claimed was owed to them, and that neither the books nor records of RGS or RGI indicate the forgiving of any debts, that does not suffice to show that a genuine issue of fact is not in dispute. The trial court should not have granted the motion for summary judgment on count one of the plaintiffs’ complaint as to the issue of estoppel only. Suffield Development Associates Ltd. Partnership v. Society for Savings, 243 Conn. 832, 846, 708 A.2d 1361 (1998).

B

The plaintiffs next claim that the court improperly granted summary judgment as to the second count of the complaint because after concluding that no formal agreement existed, the court failed to consider the claim of fraudulent misrepresentation, which is independent of any agreement and is a tort not dependent on an agreement.

“The elements of fraudulent misrepresentation are as follows: (1) a false representation must be made as to a statement of fact; (2) the statement was untrue and known by the defendant to be untrue; (3) the statement was made to induce the plaintiff to act; and (4) the plaintiff acted on the false representation to [its] detriment. Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 295-96, 478 A.2d 257 (1984).” Dorsey v. Mancuso, 23 Conn. App. 629, 633, 583 A.2d 646 (1990), cert. denied, 217 Conn. 809, 585 A.2d 1234 (1991).

The plaintiffs properly alleged all four elements of a fraudulent misrepresentation claim in the second count. See footnote 6. Although the defendants’ affidavit does state that the plaintiffs never forgave any money they claimed was owed to them, the evidence produced is not enough to show the absence of any genuine issues of material fact as to the claim of fraudulent misrepresentation. The trial court should not have granted the defendants’ motion for summary judgment as to the second count of the plaintiffs’ complaint.

C

The plaintiffs next claim that the court improperly granted summary judgment as to the third count of the complaint because it failed to consider the plaintiffs’ allegations that RGI improperly diverted contractual rights and funds of RGS, in which WSI had a right and interest.

The plaintiffs specifically allege that after the defendants dissolved RGS, RGI received money from contracts in existence at the time of dissolution and from contracts negotiated prior to the dissolution for which the plaintiffs were entitled to a percentage. The defendants failed to offer any evidence to refute that allegation. Therefore, a genuine issue of material facts exists, and the court improperly granted summary judgment as to this count. The trial court should not have granted the defendants’ motion for summary judgment as to the third count of the complaint.

D

The plaintiffs next claim that the court improperly granted summary judgment on the fourth count of the complaint because a claim for tortious interference with contractual relations is independent of the existence of any contractual agreement.

“This court has long recognized a cause of action for tortious interference with contract rights or other business relations. . . . While our cases have not focused with particularity on what acts of interference are tortious, we have made it clear that not every act that disturbs a contract or business expectancy is actionable. . . . [F] or a plaintiff successfully to prosecute such an action it must prove that the defendant’s conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously. . . . Kecko Piping Co. v. Monroe, [172 Conn. 197, 201-202, 374 A.2d 179 (1977)]. . . . Blake v. Levy, 191 Conn. 257, 260-61, 464 A.2d 52 (1983). In Blake, we also determined that [i]n an action for intentional interference with business relations . . . the better reasoned approach requires the plaintiff to plead and prove at least some improper motive or improper means.” (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 279, 464 A.2d 57 (1983).

The plaintiffs allege that Fazio and Theys knowingly, tortiously and maliciously interfered with the contractual rights of Stahl and Goodman with RGI, the result of which was RGI’s repudiating its agreement to make Stahl and Goodman officers and shareholders in RGI. Because the court found that this agreement had not become final, it granted summary judgment as to this count.

On appeal, the plaintiffs argue that even if the agreement is unenforceable as a contract, their claim of tortious interference with contractual relations is valid. “ ‘The agreement need not, however, be enforceable by the plaintiff as a contract .... The law of course does not object to the voluntary performance of agreements merely because it will not enforce them, and it indulges in the assumption that even unenforceable promises will be carried out if no third person interferes.’ [W.] Prosser, Torts (4th Ed.) § 129, p. 932. Accordingly, the law not only does not restrict its protection to rights resting on enforceable contractual relationships, ‘but it also forbids unjustifiable interference with any man’s right to pursue his lawful business or occupation and to secure to himself the earnings of his industry.’ Skene v. Carayanis, 103 Conn. 708, 714, 131 A. 497 [1926], Thus, it is not essential to the cause of action that the tort has resulted in an actual breach of contract. Goldman v. Feinberg, 130 Conn. 671, 674, 37 A.2d 355 [1944].” Harry A. Finman & Son, Inc. v. Connecticut Truck & Trailer Service Co., 169 Conn. 407, 414-15, 363 A.2d 86 (1975).

Although the plaintiffs’ claim appears to be persuasive, we agree with the defendants’ argument that because the plaintiffs alleged that the defendants Fazio and Theys were at all times acting as agents of RGI, they cannot have interfered with the contractual relations of the plaintiffs and RGI. “It has long been considered tortious either to induce a breach of contract or to interfere with financial expectancies. Unfortunately, courts have tended to confuse these two types of actions, and there is no clear enumeration of their requisite elements. However, it is well-settled that the tort of interference with contractual relations only lies when a third party adversely affects the contractual relations of two other parties. Hiers v. Cohen, [31 Conn. Sup. 305, 310, 329 A.2d 609 (1973)]; R an W Hat Shop, Inc. v. Sculley, 98 Conn. 1, 14, 118 A. 55 (1922).” (Emphasis in original.) Paint Products Co. v. Minwax Co., 448 F. Sup. 656, 658 (D. Conn. 1978). “[A]n agent acting legitimately within the scope of his authority cannot be held hable for interfering with or inducing his principal to breach a contract between his principal and a third party, because to hold him hable would be, in effect, to hold the corporation liable in tort for breaching its own contract, Boyce v. American Liberty Insurance Co., 204 F. Supp. 317, 318 (D. Conn. 1962); see also Kecko Piping Co. v. Monroe, [supra, 172 Conn. 202]; Shaw v. Merrick, [60 App. Div. 2d 830, 830, 401 N.Y.S.2d 508 (1978)], [but the agent] could be held liable for such interference or inducement if he did not act legitimately within his scope of duty but used the corporate power improperly for personal gain.” Bowman v. Grolsche Bierbrouwerij B.V., 474 F. Sup. 725, 733 (D. Conn. 1979).

Because the plaintiffs failed to allege or to offer any evidence that Fazio and Theys were not acting legitimately within the scope of their authority, summary judgment was properly granted as to this count. No genuine issue of material fact is in dispute concerning the legitimacy of the authority of Fazio and Theys to act on behalf of RGI. Therefore, to hold either liable would be to hold RGI liable in tort for interfering with its own contract, and that is not possible. We affirm the trial court’s granting of summary judgment as to the fourth count of the complaint.

E

The plaintiffs’ final claim as to the granting of summary judgment is that the trial court improperly granted summary judgment on the fifth count of the complaint, which alleged conversion. Specifically, the plaintiffs allege in the fifth count that the defendants wrongfully appropriated moneys, equipment, contractual rights and inventory.

“Conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner’s rights.” Polivy v. Air One, Inc., 46 Conn. App. 573, 577, 700 A.2d 71, cert. denied, 243 Conn. 937, 702 A.2d 644 (1997).

The defendants failed to address the plaintiffs’ conversion claims in their motion for summary judgment and offered no evidence proving that no genuine issue of material fact exists. The defendants appear to argue that when they notified the plaintiffs that the negotiations were terminated, and that the rights of the plaintiffs and RGS to sell RGI products were terminated, any obligation to share in rewards that might exist from their past business dealings was also terminated. They also appear to rely on their claim that the plaintiffs “walked out of RGS with $57,000 more than they were entitled to.” Because the defendants failed to sustain their burden of showing that there was no genuine issue of material fact concerning the conversion claim, the trial court should not have granted their motion for summary judgment as to the fifth count of the complaint.

II

The plaintiffs next claim that the trial court improperly found that WSI was not entitled to share in either the postdissolution revenues of contracts negotiated prior to dissolution or the revenues from contracts in existence at the date of dissolution until the expiration of those contracts.

The following additional facts are necessary to resolve this issue. At trial, the plaintiffs argued that they were entitled to the profits earned from contracts negotiated during the existence of the partnership, RGS, and received after the dissolution of the partnership. The defendants claimed that after they dissolved the partnership, the plaintiffs were no longer entitled to any money received because of the October 11, 1982 letter, signed by both parties. The trial court found “(1) that because of the specific wording of the October 11, 1982 letter, the defendants had the absolute right to terminate the partnership at any time and that they exercised this right in July, 1984; (2) that the agreement of October 11,1982, provides for the respective rights of the partners to this partnership, RGS, upon dissolution because it specifically states that in the event of dissolution, neither RGS nor WSI would ‘receive or maintain any rights whatsoever to RGI products’; (3) that in addition, by reason of the nature of the royalty payments due RGI, the contracts with the users set forth the terms of payment, but did not oblige the user to take any specified amount of product in the future and, therefore, when the partnership was dissolved, the plaintiffs, as selling agents, had no right to share in future royalties; (4) that the plaintiffs failed to prove that their efforts in negotiating contracts resulted in royalties received after the date the partnership was dissolved, whereas the defendants successfully demonstrated that they negotiated the terms of a new contract with Zenith effective October 8, 1984, and that royalties received from [Digital Equipment Corporation] were a product of negotiations they conducted in 1985 . . . .’’In its supplemental memorandum of decision dated January 2, 1996, the trial court again declined to award the plaintiffs any revenue received from the Zenith contract after the dissolution of the partnership and before the termination of the contract.

The plaintiffs argue that this case is analogous to Messina v. Calandro, 214 Conn. 596, 572 A.2d 1012 (1990). In Messina, the plaintiff and the defendant formed a partnership to acquire property and seek zoning approval for the building of condominiums. Id., 597. After the defendant had begun site preparation, he terminated the partnership and subsequently built and sold condominiums. Id., 598. The plaintiff brought suit for an accounting. Id. Our Supreme Court analogized the situation to the dissolution of a law partnership. “Thus, just as an attorney, after the dissolution of a law partnership, has the right to his pro rata share of fees received from a case that was brought into the partnership prior to its dissolution, the plaintiff, in this case, has the right to his share of the profits from the sale of the condominiums as contemplated by the partnership agreement.” Id., 601.

The trial court appears to place great weight on the October 11, 1982 letter, especially the statement, “In the event that RGI desires to end the sale of its products through RGS, neither RGS nor [ WSI] receive or maintain any rights whatsoever to RGI products.” We do not interpret this to mean that the plaintiffs agree to forgive their right to future revenue received from contracts negotiated prior to the dissolution.

“A partner has been held entitled to his proportionate share of the net profits realized on the completion of projects which were commenced or planned prior to the dissolution of the partnership, including commissions payable to the partnership for its services despite their accrual after dissolution.” 59A Am. Jur. 2d, Partnership § 1034 (1987).

The trial court incorrectly rejected the plaintiffs’ claim for their share of the revenues generated by the contracts in place, and by contracts negotiated prior to the dissolution of the partnership and revenues received after the dissolution.

III

The plaintiffs’ final claim on appeal is that the trial court improperly allocated the partnership expenses. The plaintiffs argue that because the partnership agreement did not specify how expenses were to be allocated, they should be divided in the same proportion as the profits. In addition, the plaintiffs argue that the court improperly allocated to them the expense of purchasing stock in a certain corporation, TUII, certain legal fees, costs associated with diskettes and manuals, and certain advertising fees.

The trial court’s decision as to the allocation of expenses was made in two memoranda of decision, dated June 21, 1995, and January 2, 1996. In the first memorandum, the trial court concluded: “(8) that the partnership agreement failed to specify the division of expenses between the parties, but that it is equitable to follow the prior practice of the parties in which each was responsible for its own expenses, rather than basing the allocation of expenses on the respective percentage of gross revenues received by the parties.”

After the trial court’s decision was rendered, the defendants moved for reargument or articulation on several issues involving the accountings submitted by both parties. After the defendants’ motion was granted, oral argument was heard and supplemental briefs were filed by each party addressing specific questions of the trial court. The issues in dispute concerned the allocation of TUII stock, certain legal fees, advertising expenses, and the cost and number of diskettes and manuals.

In the trial court’s supplemental memorandum of decision of January 2,1996, the court adopted the defendants’ accounting to resolve the dispute. As to the TUII stock, the court concluded that the evidence indicated that the stock was purchased by the plaintiffs with their own money, held in their own name and ultimately sold by them for their own benefit. Therefore, the defendants were not to be charged with the purchase of this stock. The court concluded that the legal fees of the law firm of Kleban and Samor were for the benefit of the partnership and divided them evenly. The court decided that there were a total of 1622 GrafTalk diskettes and manuals, as well as 311 programs other than GrafTalk with a total cost of $68,345, for which the defendants were entitled to reimbursement. Advertising expenses were also divided equally between both parties.

“Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. 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 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. . . . United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996).” (Internal quotation marks omitted.) In re Michael A., 47 Conn. App. 105, 109, 703 A.2d 1146 (1997). “ ‘We do not examine the record to determine whether a trier of fact could have reached a conclusion other than the one reached.’ ” D'Angelo v. McGoldrick, 239 Conn. 356, 364, 685 A.2d 319 (1996).

At trial, each party entered into evidence its own accounting of the partnership and represented to the court that its accounting was the proper way to deal with certain expenses. The plaintiffs’ version admittedly borrowed from the defendants and, except in a few areas, was identical. In selecting the defendants’ accounting, the trial court chose to believe the defendants’ version and not that of the plaintiffs. Having reviewed the evidence, we cannot say that the trial court’s decision with regard to the allocation of expenses was clearly erroneous. There was evidence to support the decision, and this court is not left with the definite and firm conviction that the trial court has made a mistake. We affirm the trial court’s decision as to the allocation of advertising expenses, the cost of diskettes and manuals, legal fees and the ownership of the TUII stock.

IV

In their cross appeal, the defendants allege that the trial court should have found that the plaintiffs breached their fiduciary duty to the defendants. The defendants disagree with the following findings of the trial court from its June 21, 1995 memorandum of decision: “(5) that neither the claim of the defendants, as set forth in their counterclaim, that the plaintiffs wrongfully terminated the partnership, RGS, by virtue of their scheme to wrest control of RGI from Theys and Fazio, nor the claim that the plaintiffs breached their fiduciary duties have been proved, and hence the provisions of the Uniform Partnership Act, General Statutes §§ 34-70 and 34-76, relating to partners who have caused a ‘dissolution wrongfully,’ are not applicable ... (7) that the agreement by the plaintiffs to infuse RGS with $100,000 for advertising purposes was contingent upon Stahl and Goodman receiving an interest in RGI, which never materialized, or alternatively, merely constituted nonbinding plans for the future.”

In reviewing the trial court’s factual findings, this court again follows the clearly erroneous standard. “Under familiar principles of appellate review, a trial court’s factual finding will not be reversed or modified unless it is clearly erroneous in view of the evidence and pleadings in the whole record. Practice Book § 4061 .... Capital Consulting Group, Ltd. v. Rochman, 218 Conn. 396, 401, 589 A.2d 877 (1991), quoting DiBella v. Widlitz, 207 Conn. 194, 198, 541 A.2d 91 (1988).” (Internal quotation marks omitted.) Connecticut National Bank v. Marland, 45 Conn. App. 352, 359, 696 A.2d 374, cert. denied, 243 Conn. 907, 701 A.2d 328 (1997).

A

In the defendants’ brief, they argue that the trial court’s June 21,1995 memorandum of decision contains a “fatal inconsistency” in that the court stated: “The defendants also testified at length about the Machiavellian plan of Stahl and Goodman to take control of their company, RGI, and their testimony in this regard is essentially accepted,” and then went on to make conclusions against the defendants. The defendants argue that by stating that their testimony is essentially accepted, the court then had no other choice but to find in their favor. We disagree.

The trial court’s decision further states: “All it means, however, is that Stahl and Goodman saw a successful company, RGI, and decided that they would like to take it over if possible or at least participate in its success. Negotiations ensued, which ultimately took a bitter turn and were terminated. Thus, the plaintiffs’ efforts to take over RGI were successfully thwarted by the defendants, but this does not mean that the plaintiffs acted illegally or wrongfully, and it does not follow that the plaintiffs’ conduct caused the partnership to be dissolved as claimed by the defendants.” Apparently, the defendants feel that their testimony is open to only one interpretation and, because the trial court did not accept that interpretation, the court has erred. This is not the case. The evidence presented and accepted by the trial court is not limited to one interpretation. Upon our review of the entire record, we conclude that the trial court’s finding is not clearly erroneous.

B

The defendants also argue that the plaintiffs’ unwelcome takeover attempt was a per se breach of their fiduciary duty. The trial court’s conclusion that the plaintiffs did not act wrongfully or illegally defeats this claim. Again, a review of the evidence before the trial court does not create a definite or firm conviction in this court that a mistake has been committed.

C

The defendants claim that the plaintiffs breached their fiduciary duty when they offered the defendants $100,000 for advertising in exchange for making RGS, RGI’s exclusive sales agency. The plaintiffs argue that the offer was merely part of ongoing negotiations that evolved from a discussion over the structure of the partnership to negotiations regarding bringing WSI into RGI. The trial court concluded that the money was contingent on Stahl and Goodman’s obtaining an interest in RGI or, alternatively, was a nonbinding plan for the future. On appeal, the defendants claim that there is no evidence to support this conclusion. We disagree.

The defendant Fazio testified that “at the beginning of our talks, [Stahl] and I were supposed to sit down together and talk out the terms of the partnership, the way to make the partnership work, make it an exclusive arrangement with RGI. And in exchange we were going to get this $100,000. And he said, you know, [WSI’s] got so much money, and [Stahl] was personally rolling in money, $100,000 wasn’t a problem, don’t worry, he could do it. In exchange for which he wanted this exclusivity from [RGS], And we sat down to negotiate that starting in 1983.” This testimony as well as that which followed does not stand for the proposition that the defendants assert, that there was a binding agreement in early 1983, which would give the defendants $100,000 for advertising in exchange for an exclusive sales arrangement for RGS. The testimony merely states that this was the beginning of negotiations, the same negotiations that the trial court found to have eventually deteriorated. We cannot say that the trial court’s finding is clearly erroneous.

D

The defendants make a number of additional arguments in support of their claim that the plaintiffs breached their fiduciary duty. See footnote 10. The trial court’s memorandum of decision concludes that only the defendants’ claim of a breach of fiduciary duty has not been proved. In their motion for reconsideration, reargument and articulation dated June 30, 1995, the defendants requested that the trial court articulate its decision on this issue. The trial court denied the defendants’ motion as to this point on July 7, 1995. The defendants then did nothing to perfect the record. The proper procedure for the defendants to have followed was to file a motion for articulation pursuant to Practice Book § 4051, now Practice Book (1998 Rev.) § 66-5. Even if we were to give the defendants the benefit of the doubt by their attempt to seek articulation through their June 30, 1995 motion, they still failed to file a motion for review pursuant to Practice Book § 4054, now Practice Book (1998 Rev.) § 66-7.

“Our rules provide a procedure for clarifying the record when rulings of the trial court are unclear. Practice Book § 4051.” Buchetto v. Haggquist, 17 Conn. App. 544, 548, 554 A.2d 763, cert. denied, 211 Conn. 808, 559 A.2d 1141 (1989). In addition, our rules provide a procedure for reviewing the adequacy of the trial court’s response to a motion for articulation. Practice Book § 4054, now Practice Book (1998 Rev.) § 66-7. “When a party is dissatisfied with the trial court’s response to a motion for articulation, he [or she] may, and indeed under appropriate circumstances he [or she] must, seek immediate appeal ... to this court via a motion for review.” (Internal quotation marks omitted.) State v. One 1993 Black Kenworth Truck, 41 Conn. App. 779, 789, 679 A.2d 13 (1996), quoting Buchetto v. Haggquist, supra, 549.

“Even if we assume the validity of this claim, proper utilization of the motion for articulation [and the motion for review] serves to dispel any such ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). “ ‘The burden of securing an adequate record for appellate review of an issue presented on a cross appeal rests with the cross appellant. Niles v. Niles, 9 Conn. App. 240, 249, 518 A.2d 932 (1986).’ ” Anderson v. Schieffer, 35 Conn. App. 31, 45, 645 A.2d 549 (1994). “Because it is the [cross] appellant’s responsibility to provide this court with an adequate record for review . . . we will not remand a case to correct a deficiency the [cross] appellant should have remedied.” ((Internal quotation marks omitted.) State v. One 1993 Black Kenworth Truck, supra, 41 Conn. App. 789; Buchetto v. Haggquist, supra, 17 Conn. App. 549; Barnes v. Barnes, supra, 494.

In this case, by filing their motion for reconsideration, reargument and articulation dated June 30, 1995, the defendants clearly demonstrated their recognition that the trial court’s memorandum of decision would benefit from clarification with respect to a number of arguments they now make on appeal. “Without an adequate record, we can only speculate as to the basis for the trial court’s decision. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.” (Internal quotation marks omitted.) Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 543, 651 A.2d 1302 (1995). We therefore decline to review this claim because the defendant has not provided us with an adequate record.

V

The defendants next allege that the trial court improperly failed to find that the plaintiffs caused the demise of RGI and $1.5 million in damages to the defendants.

The trial court concluded “(6) that more specifically, the defendants failed to prove that the demise of RGI was the fault of the plaintiffs, as a change in market conditions or lack of business acumen on the part of Theys and Fazio could have been the reason for their company’s fate.”

In their cross appeal, the defendants argue that the plaintiffs’ takeover efforts paralyzed RGI, and that RGI’s lack of advertising resulted from the paralysis and resulted in a loss of the marketing opportunities that existed in the personal computer software market from the middle of 1983 to the middle of 1985. The defendants’ attempt to blame the plaintiffs for their misfortune is misplaced. The defendants’ testimony indicated that although they believed this marketing opportunity existed, they did nothing other than negotiate with the plaintiffs concerning funding for advertising. Further, the defendant Fazio’s testimony indicated that the defendants realized they could have approached a bank for a loan for advertising but never did so. Again, on our review of the entire record, we cannot say that the trial court’s finding that the plaintiffs were not responsible for the demise of RGI was clearly erroneous.

VI

The defendants also claim that the trial court improperly denied their motion to amend their pleadings, and declined to award them prejudgment interest. After the trial court’s supplemental memorandum of decision of January 2, 1996, the defendants sought to amend their pleadings to argue additionally that Stahl and Goodman should be individually liable for the accounting debt, and that the corporate veil of WSI should be pierced. In its August 23, 1996 supplemental memorandum of decision, the trial court denied the defendants’ motion.

“A trial court has wide discretion in granting or denying amendments to the pleadings and rarely will [a reviewing] court overturn the decision of the trial court.” (Internal quotation marks omitted.) Capitol Restorations Corp. v. Construction Services of Bristol, Inc., 25 Conn. App. 681, 685, 596 A.2d 927 (1991). The trial court refused to allow the amendment because it was clear throughout the proceedings that the parties involved in this partnership accounting were WSI and RGI. There was no proof at trial that the parties were other than WSI and RGI. In addition, the trial court stated that the defendants’ contention that the corporate veil of WSI should be pierced represented a new claim that was not based on any allegations in the pleadings or on any evidence introduced at trial, and that this claim was an afterthought of the defendants. “An appellate court will not interfere with the decision of a trial court not to permit an amendment unless an abuse of discretion is clearly evident.” (Internal quotation marks omitted.) Id. We conclude that under the circumstances of this case, there was no such abuse of discretion.

In addition, the defendants argue in their cross appeal that the individual plaintiffs are severally liable in the accounting action for the $72,213 overdraft. This claim is without merit as it involves the accounting between WSI and RGI.

We also find that the trial court did not abuse its discretion in failing to award prejudgment interest because the reasons stated were consistent with the discretion given to it by General Statutes § 37-3a.

SUMMARY

The trial court correctly granted the motion for summary judgment on count four of the plaintiffs’ complaint, and properly allocated expenses between WSI and RGI. The court correctly rejected the defendants’ special defense, counterclaim and claim for setoff. The judgment must be reversed, however, as to the granting of the motion for summary judgment on count one, only as to estoppel, and counts two, three and five. Further, the trial court incorrectly determined that the plaintiffs were not entitled to revenues generated on contracts negotiated and contracts in effect at the time of the dissolution and, therefore, the accounting must be reversed because WSI’s entitlement to its share of revenues generated on contracts in existence and negotiated prior to the dissolution of RGS will have an effect on the accounting.

The judgment is reversed as to the granting of the defendants’ motion for summary judgment on count one, only as to estoppel, and on counts two, three and five; the judgment is reversed as to the accounting on count six, and the case is remanded for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Wellington Systems, Inc., and its two principal shareholders and officers, Fred Stahl and Gene Goodman.

       The defendants are Redding Group, Inc. (RGI), and its two principal shareholders and officers, John Theys and Lydia Fazio.

       The “letter of intent” stated: “This letter of intent is only a moral commitment and is contingent upon and subject to a formal agreement which is mutually satisfactory.” The letter was signed by all of the parties to this action.

       The first count of the plaintiffs’ complaint, as against the defendant RGI, provided:
      “1. At all times mentioned herein, the plaintiff, Wellington Systems, Inc., hereinafter referred to as WSI, was and is a Connecticut corporation located at 2730 High Ridge Road and doing business as a computer consulting firm.
      “2. At all times mentioned herein, the plaintiffs, Fred Stahl and Gene Goodman, hereinafter referred to as Stahl and Goodman, respectively, were and are officers and the sole shareholders in WSI.
      “3. At all times mentioned herein, the defendant, Redding Group, Inc., hereinafter referred to as RGI, was and is a Connecticut corporation located in Ridgefield, Connecticut, and doing business as a computer software producer.
      “4. At all times mentioned herein, Lydia Fazio and John Theys, hereinafter referred to as Fazio and Theys, respectively, were acting as agents, servants, officers and employees of RGI within their authority to do so.
      “5. In 1981, WSI and RGI entered into various business relationships whereby WSI would represent and negotiate for the sale and licensing of RGI’s products. In or around April of 1982, WSI and RGI entered into a more formal relationship as partners, said partnership is and was known as Redding Group Services, hereinafter referred to as RGS. Said partnership arrangement provided for WSI to market and service certain software products produced by RGI in return for a sharing of the receipts from the licensing, sale and/or servicing of such products, and from other products subsequently acquired by the partnership.
      “6. Between April of 1982 and October of 1983, WSI did in fact render services for RGS.
      “7. In the fall of 1983, WSI and RGI agreed to restructure the partnership arrangement into one corporation.
      “8. RGI, in consideration of moneys owing WSI and Stahl and Goodman from revenues of RGS and, in order to continue with the business relationship, agreed that Stahl and Goodman would become officers and 37% shareholders in RGI.
      “9. In reliance on said promise, WSI and Stahl and Goodman forgave sums owing from RGS and agreed that the assets and funds in RGS would become part of and incorporated in RGI.
      “10. Fazio and Theys represented between the fall of 1983 and spring of 1984 that the agreement was being finalized, and the appropriate papers were drawn and submitted to Stahl and Goodman who executed same.
      “11. Between the fall of 1983 and June of 1984, Stahl and Goodman acted as officers in RGI, and RGI held Stahl and Goodman out to be shareholders and officers.
      “12. Between the fall of 1983 and June of 1984, RGS continued to exist and function as a part of and synonymous with RGI.
      “13. Despite RGI’s promises, in May of 1983, RGI advised Stahl and Goodman that it did not intend to abide by its agreement and understanding, refused to execute the agreements, although Stahl and Goodman had done so, terminated all future financial dealings, diverted funds from RGS to RGI, refused to pay funds owing Stahl and Goodman and WSI, refused to issue StaM and Goodman the shares of stock rightfully due them, approached employees of WSI and RGS with the intent of hiring same, wrongfully appropriated inventory and equipment, and diverted and directed contractual rights and benefits from RGS to RGI.
      “14. As a result of the defendant’s breach of the agreement, the plaintiffs have been irreparably damaged, and they have no adequate remedy at law.
      “WHEREFORE, the plaintiffs pray for:
      “1. Specific performance of the agreements.
      “2. Issuance of the stock rightfully due the plaintiffs.
      “3. A temporary and permanent injunction enjoining RGI from contacting and diverting funds, accounts payable and contractual rights to RGS.
      “4. Damages.
      “5. The appointment of a receiver.
      “6. Other relief as equity doth pertain.”

       The trial court stated: “The recent Appellate Court decision of Fowler v. Weiss, [supra, 15 Conn. App. 694], quotes Atlantic Terra Cotta Co. v. Chesapeake Terra Cotta Co., 96 Conn. 88, 101, 113 A. 156 (1921), as follows:
      ‘It was essential to the creation oí a contract that a formal written agreement should be executed. This formal written agreement was a condition precedent to the completion of a contract, and until such formal written agreement was executed the parties were still in the stage of negotiations for a contract and either party could withdraw from the negotiations.’
      “The Fowler case involved a. real estate binder and indicates that a threefold test is required to determine whether a formal contract has been negotiated: ‘(1) the language used, (2) the circumstances surrounding the transaction, and (3) the purpose that they sought to accomplish.’ Id., 693. In the present case the ‘language’ of the letter of intent by its own terms is ‘contingent’ upon a formal agreement being executed. Similar to the binder in Fowler, the ‘circumstances’ indicate that although an important document, the letter of intent was not prepared by an attorney. The ‘purpose’ was clearly that the parties intended that various details would have to be negotiated before a final binding agreement was executed.
      “These cases make it clear, I believe, that although the parties intended at one point to make the individual defendants a part of RGI, no such formal agreement was ever consummated, and hence the five counts of plaintiffs’ complaint, which are based on an alleged agreement which never came into existence, cannot survive the defendants’ motion for summary judgment.”

       The second count of the complaint, as against the defendants RGI, Fazio and Theys, repeats paragraphs one through seven of the first count and further alleges the following:
      “8. The defendants, Fazio and Theys, represented that if WSI, Stahl and Goodman relinquished their rights to funds, contracts and licenses in RGS and, in effect, merge RGS and RGI, Stahl and Goodman would become shareholders, officers and employees of and in RGI.
      “9. The plaintiffs, in reliance on the representation of the defendants, turned over all partnership assets to the corporation and relinquished rights to revenues in the partnership, and rendered services as officers and employees of RGI.
      “10. The representations of the defendants were false and the defendants knew them to be false when they were made by the defendants to induce the plaintiffs to convey their interests in the partnership to the defendants, the defendants knowing at the time of its representation that it did not intend to abide by the agreement to issue stock to Stahl and Goodman.
      “11. As a result of the defendants’ fraudulent misrepresentation the plaintiffs have been damaged.
      “WHEREFORE, the plaintiffs pray [for]:
      “1. Damages.
      “2. Punitive damages.”

       The third count of the complaint, as against RGI, repeats paragraphs one through nine of the first count and further alleges:
      “10. RGI has contacted customers of RGS and has diverted contractual rights and funds of RGS, in which WSI has a right and interest, to RGI; as a result WSI has, and will, suffer damages.
      “11. WSI is, and has been, irreparably damaged by RGI’s actions and has no adequate remedy at law.
      “WHEREFORE, the plaintiffs pray [for]:
      “1. A temporary and permanent injunction enjoining RGI from diverting funds to itself and interfering with RGS’ contractual rights.

        “2. Damages.
      “3. An accounting.
      “4. Other relief as equity doth pertain.”

       The fourth count of the complaint, against Fazio and Theys, repeats paragraphs one through eleven of the first count and further alleges:
      “12. The defendants, Fazio and Theys, knowingly, tortiously and maliciously interfered with the contractual rights of Stahl and- Goodman with RGI so that RGI repudiated its agreement as aforesaid.
      “13. In addition, the defendants, Fazio and Theys, interfered with WSI’s right to share in contracts generated, created or initiated by contacting customers of RGS and diverted monies and contractual rights to RGI.
      “WHEREFORE, the plaintiffs pray [for]:
      “1. Damages.
      “2. Punitive damages.”

       The fifth count of the complaint, against all defendants, repeats paragraphs one through thirteen of the first count, paragraph eight of the second count, paragraph ten of the third count, paragraph thirteen of the fourth count and further alleges the following:
      “17. The defendants have wrongfully converted to their own use moneys, contractual rights, inventory and equipment of the plaintiffs.
      “WHEREFORE, the plaintiffs pray [for]:
      “1. Damages.”

       The defendants’ approach to this claim includes the following arguments: (1) the trial court’s decision contains a fatal inconsistency; (2) the plaintiffs’ unwelcome takeover attempt was a per se breach of their fiduciary duty; (3) the attempted takeover was a fraudulent swindle; (4) the plaintiffs’ takeover methods were sly, deceitful and false; (5) the defendants produced a “smoking gun” witness; (6) the plaintiffs’ $100,000 advertising offer was not originally contingent on getting a stock interest in RGI; (7) the court failed to recognize that the $100,000 offer was the bait on the plaintiffs’ takeover hook; (8) the plaintiffs’ used duress in their takeover campaign; (9) the plaintiffs secretly converted partnership property; (10) the court overlooked the negative inference from the plaintiffs’ failure to call Dorfsman as a witness; (11) Stahl and Goodman are individually liable for fraud as WSI agents; (12) Stahl and Goodman, as principals, also had a direct fiduciary relationship with the defendants; and (13) the plaintiffs’ conduct “caused the dissolution wrongfully” within the meaning of General Statutes § 34-70.

       Practice Boole § 4051, now Practice Book (1998 Rev.) § 66-5, provides: “A motion seeking corrections in the transcript or the trial court record or seeking an articulation or further articulation of the decision of the trial court shall be called a motion for rectification or a motion for articulation, whichever is applicable. Any motion filed pursuant to this section shall state with particularity the relief sought. An original and three copies of such motion shall be filed with the appellate clerk. Any other party may oppose the motion by filing an original and three copies of an opposition with the appellate clerk within ten days of the filing of the motion for rectification or articulation.
      “The appellate clerk shall forward the motion for rectification or articulation and the opposition, if any, to the trial judge who decided, or presided over, the subject matter of the motion for rectification or articulation for a decision on the motion. If any party requests it and it is deemed necessary by the trial court, the trial court shall hold a hearing at which arguments may be heard, evidence taken or a stipulation of counsel received and approved. The trial court may make such corrections or additions as are necessary for the proper presentation of the issues raised or for the proper presentation of questions reserved. The trial judge shall file the decision on the motion with the appellate clerk.

        “Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based. The trial judge shall file any such order changing the judgment or the record with the appellate clerk.
      “Corrections made before the record is prepared shall be included in it. If the record has been prepared, the appellate clerk may prepare a supplemental record, to be distributed in the same way as the original record.
      “The sole remedy of any party desiring the court having appellate jurisdiction to review the trial court’s decision on the motion filed pursuant to this section or any other correction or addition ordered by the trial court during the pendency of the appeal shall be by motion for review under Sec. 4054.
      “Upon the filing of a timely motion pursuant to Sec. 4040, the appellate clerk may extend the time for filing briefs until after the trial court has ruled on a motion made pursuant to this section or until a motion for review under Sec. 4054 is decided.
      “Any motion for rectification or articulation shall be filed within thirty-live days after the delivery of the last portion of the transcripts or, if none, after the filing of the appeal, or, if no memorandum of decision was filed before the filing of the appeal, after the filing of the memorandum of decision. The thirty-five day deadline may be extended for good cause. No motion for rectification or articulation shall be filed after the filing of the appellant’s brief except for good cause shown.
      “A motion for further articulation may be filed by any party within twenty days after issuance of notice of the filing of an articulation by the trial judge. A motion for extension of time to file a motion for articulation shall be filed in accordance with Sec. 4040.” (Emphasis added.)

         Practice Book § 4054, now Practice Book (1998 Rev.) § 66-7, provides in relevant part: “Any party aggrieved by the action of the trial judge as regards . . . articulation under Sec. 4051 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. . . .”


source: Caselaw Access Project

author: DALY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DANTE BOND
    (AC 16306)
    O’Connell, C. J., and Schaller and Daly, Js.

      Argued February 17
    officially released June 23, 1998

      Glenn W. Falk, special public defender, with whom, on the brief, was Alison Siegler, law student intern, for the appellant (defendant).

      Linda N. Howe, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, Donald A. Browne, former state’s attorney, Stephen J. Sedensky, assistant state’s attorney, and Megan McLoughlin, certified legal intern, for the appellee (state).
   Opinion

DALY, J.

The defendant, Dante Bond, appeals from the judgment of conviction, following a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), and two counts of assault in the second degree in violation of General Statutes § 53a-60 (a) (3).‘ The defendant claims that the trial court improperly (1) instructed the jury regarding the intent required for a conviction of assault in the second degree as an accessory, (2) questioned a state’s witness about the role of a coconspirator, (3) instructed the jury regarding certain activity as part of a criminal conspiracy, (4) failed to grant the motion for judgment of acquittal due to insufficient evidence as to the conspiracy to commit murder charge and (5) failed to grant the motion for judgment of acquittal due to insufficient evidence as to the counts of reckless assault in the second degree.

The jury reasonably could have found the following facts. On December 14, 1992, Carmen Rosales was asleep in her bedroom with her two children when shooting started outside her apartment at 774 Hallett Street in Bridgeport. She threw herself and her two children on the floor. Her two year old son, Edwin Rosales, was shot in the left leg. Her brother, William Rosario, was asleep in another bedroom in the apartment and was shot in the right leg. Alexander Aponte was outside the building, around the comer on Stillman Street, and died of multiple gunshot wounds.

Officer James Baraja of the Bridgeport police department reported to the comer of Hallett and Stillman Streets at 2:47 a.m. and entered the first floor of the 774 Hallett Street apartment building. The front of this building was littered with shell casings, and the first floor had been riddled with bullets. Baraja discovered Edwin Rosales and Rosario suffering from gunshot wounds. On Stillman Street, Baraja found Aponte’s body and more shell casings.

Other police officers who responded to the scene found seventy-seven shell casings. The state forensics laboratory concluded that the casings came from three firearms, one .223 caliber assault type weapon and two nine millimeter caliber semiautomatic weapons. An autopsy revealed that the bullets in Aponte’s body were all .223 caliber and were consistent with the casings collected from around his body. The physician who performed the autopsy on Aponte concluded that the cause of his death was multiple gunshot wounds.

At trial, Irma Otero testified that early in the morning on December 14, 1992, she was standing three blocks south of the intersection of Hallett and Stillman Streets on the comer of Jane and Hallett Streets. She was talking with a friend when she saw three men wearing black clothing stop in front of 774 Hallett Street and begin shooting at the building. She and her friend hid until the shooting ceased and, on the way home, they saw the body of Aponte with bullet wounds. Otero’s friend alerted the police. Otero believed that Aponte looked like one of the shooters, given his size, black pants, black hooded sweatshirt and black ski mask.

Julio Vasquez testified that he was at Richard Morales’ apartment on the evening of December 13, 1992. Vasquez testified that the defendant and Michael Folch entered the apartment and asked Morales where the guns were. The defendant left with an AR-15 rifle, and Folch took a nine millimeter weapon. They also took a third gun. Vasquez saw Aponte outside in the apartment parking lot, waiting for Folch and the defendant.

Vasquez testified that two weeks later he overheard a conversation between the defendant and Folch at Morales’ apartment. The defendant said to Morales that what scared him the most was when Aponte looked at him and said, “Why me?”

Greg Syr testified that one day before the incident, he was with Morales in Morales’ apartment when the defendant entered and stated that he was having problems with Aponte and wanted to kill him. The defendant then said, “It’s either Alex or myself.” At 3:30 a.m. on the day of the incident, the defendant went to Morales’ apartment and indicated, in the presence of Syr, Vasquez and Miguel Torres, that he “got” Aponte.

Syr also testified that one month after the incident, the defendant told Syr that contrary to what Folch was saying, the defendant had shot Aponte, not Folch. Syr said the defendant used Aponte’s gun, an M-16, to kill Aponte.

I

In his first claim, the defendant argues that the trial court’s instruction on accessorial liability for assault in the second degree was improper because it failed to include reference to the dual intent requirement. The defendant neither requested an instruction on dual intent nor took an exception to the court’s instructions. He now seeks Golding review.

“The accessory statute, [General Statutes] § 53a-8, sets forth the element of intent as a twofold requirement: that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged.” (Emphasis in original.) State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979).

In State v. Foshay, 12 Conn. App. 1, 23-24, 530 A.2d 611 (1987), and State v. Fudge, 20 Conn. App. 665, 670, 569 A.2d 1145, cert. denied, 214 Conn. 807, 573 A.2d 321 (1990), the trial court considered claims identical to the one presented here. In Foshay, Fudge and the present case, “the trial court read General Statutes § 53a-8 in full to the jury. The Foshay court held that such a claim was not truly of constitutional proportion and accordingly was not reviewable under the [ Golding] doctrine.” State v. Fudge, supra, 670. Because Foshay and Fudge are directly on point and controlling, the defendant’s first claim is not reviewable. The defendant’s claim of improper instruction on accessorial liability is not of constitutional proportion.

II

The defendant premises his second claim on the trial court’s intervention in the questioning of Vasquez, a state’s witness, and asserts that the trial court deprived the defendant of his right to a fair trial. The defendant challenges the following questioning by the court:

“The Court: And did you feel that Folch was a participant in the killing of Aponte?
“Vasquez: Yes, sir.
“[State’s Attorney]: In—His Honor just asked you a question about whether or not you felt Folch was some type of participant in the killing of Aponte, and it’s your understanding that who shot Aponte?
“Vasquez: Dante Bond.”

The defendant raised no objection to either question. After the jury was charged, the defendant requested that the trial court instruct the jury to disregard the state’s question and Vasquez’ answer concerning who shot Aponte. The state objected and stated that if the trial court was so inclined, it should strike the court’s question as well. The defendant did not ask that the court’s question be stricken. In response, the trial court instructed the jury, “I’ve already told you [to] disregard any questions I’ve asked any witness in the case, including that one ... as to who shot Aponte.” The defendant did not object to this instruction.

“Due process of law guarantees a criminal defendant a fair trial before an impartial judge and jury in a neutral atmosphere. U.S. Const., amend. XIV; Conn. Const., art. I, § 8; State v. Fernandez, 198 Conn. 1, 10, 501 A.2d 1195 (1985); State v. Gordon, 197 Conn. 413, 424D, 504 A.2d 1020 (1985). It is the trial court’s responsibility to conduct the trial in the atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding. State v. Fernandez, supra, 10, quoting Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 (1942); State v. Gordon, supra, 425; State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975). Particularly in the presence of the jury, which may readily be influenced by a judge’s words or conduct, the trial court has an obligation to comport itself in a circumspect and dispassionate manner. Quercia v. United States, 289 U.S. 466, 470, 53 S. Ct. 698, 77 L. Ed. 1321 (1933); State v. Fernandez, supra, 12; Cameron v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982); Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 503, 101 A.2d 500 (1953). The trial court should never assume a position of advocacy, real or apparent, in a case before it, and should avoid any displays of hostility or skepticism toward the defendant’s case, or of approbation for the prosecution’s. State v. Fernandez, supra, 12; State v. Bember, 183 Conn. 394, 402, 439 A.2d 387 (1981); State v. Echols, supra, 14.

“We recognize that a trial court has a discretionary right to intervene in the examination of witnesses in certain circumstances. Such intervention may be necessary to clarify confusing testimony, to restrain an obstreperous witness, orto elucidate a witness’s understanding of a question. State v. Fernandez, supra, [198 Conn.] 12; State v. Bember, supra, [183 Conn.] 402-403; State v. Echols, supra, [170 Conn.] 14. The court’s questioning of a witness is not necessarily improper because it draws attention to the strengths or weaknesses of a party’s case. State v. Echols, supra, 14. However, the court should avoid questioning witnesses in a manner that reflects in any fashion on their credibility. See State v. Fernandez, supra, 14-15; State v. Mack, 197 Conn. 629, 642-43, 500 A.2d 1303 (1985); Miller v. Drouin, 183 Conn. 189, 192, 438 A.2d 863 (1981). Determinations of credibility are solely the function of the jury. State v. George, 194 Conn. 361, 365, 481 A.2d 1068 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985); Zullo v. Zullo, 138 Conn. 712, 715, 89 A.2d 216 (1952).” (Internal quotation marks omitted.) State v. Smith, 200 Conn. 544, 549-50, 512 A.2d 884 (1986).

While the defendant’s claim is reviewable under Golding, “this court has traditionally given great weight to curative instructions in assessing a defendant’s claims of prejudice.” Id., 552. Unlike in Smith, where only general instructions were given and the testimony of the state’s chief witness was under scrutiny, in this case curative, relevant instructions were given, and there was other evidence as to the shooting of Aponte. “It is clearly to be presumed, when the contrary does not appear, that a jury follows the instructions of the court in reaching its verdict.” 1B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 35, p. 155.

We conclude that the instructions cured any prejudice caused by the trial court’s question, and the defendant was not deprived of a fair trial.

III

The defendant next claims that he was deprived of a fair trial when the court instructed the jury in its charge as follows: “I’m going to charge you on accomplice testimony because there is evidence here that what was going on at [Morales’ apartment] was part of a criminal conspiracy and people participated in it.” The defendant argues that this instruction effectively directed a verdict on a contested issue and relieved the state of its burden of proving the essential elements of criminal conspiracy.

The defendant concedes that he neither filed a request to charge nor excepted to the jury instruction that he now claims was improper. He requests review under Golding.

Although the record before us is adequate to review this claim, the defendant has failed to meet the second prong of the Golding test because his claim of instructional impropriety is not one of constitutional magnitude. See State v. Dash, 242 Conn. 143, 151-52, 698 A.2d 297 (1997). Our Supreme Court has stated that “ ‘[j]ust as every claim of evidentiary error by the trial court is not truly constitutional in nature; see, e.g., [State v. Golding, 213 Conn. 233, 241, 567 A.2d 823 (1989)]; every claim of instructional error is not truly constitutional in nature. We have recognized, for example, that claimed instructional errors regarding the elements of an offense; see, e.g., State v. Boles, 223 Conn. 535, 543, 613 A.2d 770 (1992); and claimed instructional errors regarding the burden of proof or the presumption of innocence; see, e.g., State v. Adams, 225 Conn. 270, 289, 623 A.2d 42 (1993); are constitutional in nature, so as to satisfy the second Golding requirement. We have also recognized, however, that claimed instructional errors regarding general principles of credibility of witnesses are not constitutional in nature. State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991). Indeed, it would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party or because of a strained connection between it and a fundamental constitutional right.’ State v. Walton, 227 Conn. 32, 64-65, 630 A.2d 990 (1993).” State v. Dash, supra, 151-52.

We decline to review the defendant’s claim because it fails the second prong of Golding in that it implicates only general principles of credibility.

IV

The defendant also appeals from the denial of his motion for judgment of acquittal on the count of conspiracy to commit murder, which motion was filed at the conclusion of the state’s case and was based on a claim of insufficient evidence.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. James, 237 Conn. 390, 435, 678 A.2d 1338 (1996). In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . State v. Brown, 235 Conn. 502, 510, 668 A.2d 1288 (1995).

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.. . . State v. Newsome, 238 Conn. 588, 617, 682 A.2d 972 (1996). Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt; State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994); State v. Patterson, [229 Conn. 328, 332, 641 A.2d 123 (1994)]; State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . State v. DeJesus, supra, 196; see also State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994).

“Furthermore, [t]his court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. State v. Tomasko, 238 Conn. 253, 258, 681 A.2d 922 (1996). Accordingly, [w]e do not sit as a [thirteenth] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . Id. Finally, [i]n reviewing the jury verdict, it is well to remember that [j]urors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct. . . . State v. Ford, supra, 230 Conn. 693; State v. Little, supra, 194 Conn. 674; see also State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985) ([i]t is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom).

“Because the defendant was convicted of conspiracy to commit murder, we also must consider the essential elements of the crime of conspiracy. To establish the crime of conspiracy [to commit murder . . . the state must show] that an agreement was made between two or more persons to engage in conduct constituting [the crime of murder] and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . While the state must prove an agreement [to commit murder], the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts. . . . Further, [conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons. . . . State v. Bova, 240 Conn. 210, 245-46, 690 A.2d 1370 (1997); State v. Taylor, 239 Conn. 481, 495-96, 687 A.2d 489 (1996) [cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997)].” (Internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 489-92, 698 A.2d 898 (1997).

“Moreover, it is well settled that conspiracy is a specific intent crime, with the intent divided into two parts: (1) the intent to agree to conspire; and (2) the intent to commit the offense that is the object of the conspiracy. ... To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also they intended to commit the elements of the offense.” (Citation omitted; internal quotation marks omitted.) State v. Estrada, 28 Conn. App. 416, 421, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992).

“Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct. . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Citations omitted; internal quotation marks omitted.) State v. Santiago, 45 Conn. App. 297, 299, 696 A.2d 344, cert. denied, 241 Conn. 927, 697 A.2d 362 (1997). In a conspiracy prosecution, when determining both a defendant’s specific intent to agree and his specific intent that the criminal acts be performed, the jury may rely on reasonable inferences from facts in the evidence and may develop a “chain of inferences, each link of which may depend for its validity on the validity of the prior link in the chain.” State v. Sivri, supra, 231 Conn. 130.

The jury had before it evidence that the defendant asked Morales for permission to kill Aponte. A day or two prior to the shooting, the defendant stated in Morales’ apartment, “It’s either Alex or myself.” Folch and the defendant were observed leaving Morales’ apartment with weapons shortly before the incident. Aponte was outside the apartment waiting for them. The defendant, on two occasions subsequent to the incident, admitted to the killing, rebutting Folch’s bragging that Folch committed the act.

We conclude that when evaluated under the appropriate standard, the evidence in this case was sufficient to support the conviction of conspiracy to commit murder.

V

The defendant finally appeals from the denial of his motion for judgment of acquittal on the counts of reckless assault in the second degree, which was filed at the conclusion of the state’s case. He bases this argument on insufficiency of the evidence. The defendant maintains that either Aponte or Folch could have fired the bullets that struck Rosario and Rosales.

While the amended substitute information does not contain any accessory language, “[t]he fact that a defendant is not formally charged as an accessory pursuant to General Statutes § 53a-8 does not preclude a conviction as such.” State v. Correa, 241 Conn. 322, 340, 696 A.2d 944 (1997).

“Under § 53a-8, a person may be prosecuted and punished as if he were a principal offender when, acting with the mental state required for commission of an offense, [he] solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense .... Therefore, as we have stated in the past, [t]he terms [accessory and principal] refer to the alternate means by which one substantive crime may be committed. . . .

“Where a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon. . . . This rule is based on the principle that jurors are presumed to follow the instructions given by the judge. ... A court’s instruction to the jury on a particular statutory alternative authorizes the jury to consider that theory of criminality, thus clearly implying that there is a factual question for [it] to resolve under the statute.” (Citations omitted; internal quotation marks omitted.) State v. Smith, 212 Conn. 593, 598-99, 563 A.2d 671 (1989).

The defendant had notice that he was subject to accessorial liability, and the court charged accordingly. Although the evidence did not clearly demonstrate which of the perpetrators actually fired the shots that injured Rosales and Rosario, the evidence did establish that the defendant and his companion together prepared themselves by obtaining their weapons, positioning themselves in front of the premises at 774 Hallett Street and firing repeatedly at the premises.

If the jury credited the state’s version of the facts, the evidence was sufficient to show concert of action between the defendant and his companion to support the accessory allegation. Therefore, we conclude that the defendant’s claims of evidentiary insufficiency are without merit. See State v. Diaz, 237 Conn. 518, 544, 679 A.2d 902 (1996).

The judgment is affirmed.

In this opinion the other judges concurred.

         General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when ... (3) he recklessly causes serious physical ipjury to another person by means of a deadly weapon or a dangerous instrument . . . .”

       This type of weapon could fire .223 caliber ammunition.

       This weapon is the military version of the rifle described by Vasquez.

       In State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), our Supreme Court held that “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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.)

       See footnote 6.


author: FREEDMAN, J.

text:
    VETERANS MEMORIAL MEDICAL CENTER v. MICHAEL TOWNSEND
    (AC 17776)
    Spear, Sullivan and Freedman, Js.
    Argued April 2
    officially released June 23, 1998

      Houston Putnam Lowry, for the appellant (plaintiff in error).
   Opinion

FREEDMAN, J.

The plaintiff filed a writ of error with the Supreme Court, pursuant to Practice Book § 4143 et seq., now Practice Book (1998 Rev.) § 72-1 et seq., claiming that the trial court improperly dismissed this action without a hearing. Pursuant to Practice Book § 4023, now Practice Book (1998 Rev.) § 65-1, the Supreme Court transferred the matter to this court.

The writ of error alleges the following facts. On April 11, 1997, the plaintiff commenced a small claims action against the defendant. The court set May 12, 1997, as the answer date. The defendant did not appear or answer by May 12, 1997. On May 13, 1997, the action was dismissed by the small claims magistrate without a hearing. In response to the plaintiffs motion for articulation, the small claims magistrate indicated that the action was dismissed because it was barred by the six year statute of limitations. General Statutes § 52-576. The plaintiff claims in the writ of error that it could have defeated the defense of the statute of limitations, which was not raised by the defendant.

We must first address whether the writ of error properly lies in the present case. The plaintiff, noting that small claims actions are not appealable, claims that our statutes and rules of practice allow the writ of error. We agree that under the limited circumstances of this case, the writ of error is proper.

General Statutes § 52-272 provides in relevant part that “[w]rits of error for errors in matters of law only may be brought from the judgments of the Superior Court to the Supreme Court . . . See also Practice Book § 4143 (a), now Practice Book (1998 Rev.) § 72-1 (a). General Statutes § 52-273 provides in relevant part that “[n]o writ of error may be brought in any civil or criminal proceeding . . . for the correction of any error which might have been reviewed by process of appeal.” Similarly, Practice Book § 4143 (b), now Practice Book (1998 Rev.) § 72-1 (b) provides that “[n]o writ of error may be brought in any civil or criminal proceeding for the correction of any error where (1) the error might have been reviewed by process of appeal, or by way of certification . . . .”

As previously noted, there- is no right of appeal in small claims cases. See footnote 1. The writ of error, therefore, falls within the parameters of § 52-273 and Practice Book § 72-1 (b) (1). Practice Book § 72-1 (b) also provides, however, that “[n]o writ of error may be brought in any civil or criminal proceeding for the correction of any error where ... (2) the parties, by failure timely to seek a transfer or otherwise, have consented to have the case determined by a court or tribunal from whose judgment there is no right of appeal or opportunity for certification.” Inasmuch as the plaintiff brought the action in the small claims court, and the defendant did not move to transfer the case to the regular docket, the parties have arguably consented to have the case decided in that forum. Under the limited circumstances of this case, however, we rely on Practice Book § 4182, now Practice Book (1998 Rev.) § 60-l, which calls for a liberal interpretation of our rules, in reaching our conclusion that the writ of error is proper. In so holding, we note that the plaintiff in this case had no hearing of any type and no notice that the trial court was considering the dismissal of its case.

Due process requires that a hearing be held whenever the trial court is required to make a finding concerning a disputed factual issue; Morelli v. Manpower, Inc., 34 Conn. App. 419, 423-24, 642 A.2d 9 (1994); such as whether the statute of limitations has been tolled. See Zapolsky v. Sacks, 191 Conn. 194, 198, 464 A.2d 30 (1983). To preclude the writ of error in this case, where there has been a serious deprivation of a fundamental right of due process, “would result in insulating the judgment from all appellate review.” Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 48, 478 A.2d 601 (1984). We decline such an interpretation and conclude, therefore, that the writ of error is proper in this case.

Our conclusion is supported by our Supreme Court’s decision in Cannavo Enterprises, Inc. In that case, after the trial court denied the defendant’s motion to transfer the plaintiffs small claims action to the regular docket, a default judgment was entered against the defendant. Id., 45. The defendant then filed a writ of error with the Supreme Court. Id. The Supreme Court noted that it had jurisdiction over the writ of error, holding that a party suffering from a default judgment may bring a writ of error where no statutory right of appeal exists. Id., 47. The Supreme Court further stated, “Nor does the fact that the writ lies from the Small Claims division of the Superior Court, where no statutory right of appeal exists . . . preclude a more limited appellate review by writ of error. . . . Certainly, the General Assembly could conclude that limited appellate review was all that was necessary for Small Claims cases. Construing our statutes as one consistent body of law, as we must . . . we conclude that General Statutes § 51-197a . . . does not preclude us from entertaining a writ of error pursuant to General Statutes § 52-272 from the Small Claims division of the Superior Court and that we therefore have jurisdiction.” (Citations omitted.) Id., 48; see also Burns v. Bennett, 220 Conn. 162, 164-66, 595 A.2d 877 (1991).

Having concluded that we may entertain the plaintiffs writ of error, we next consider whether the trial court improperly dismissed the action without a hearing.

Small claims proceedings are governed by Practice Book § 547 et seq., now Practice Book (1998 Rev.) § 24-1 et seq. These rules establish a procedure in the event that the defendant does not file an answer by the answer date, as occurred in the present case. Pursuant to these rules, a defendant shall be defaulted unless he answers the small claims complaint by the answer date. Practice Book (1998 Rev.) § 24-16. Practice Book (1998 Rev.) § 24-24 outlines the procedure that occurs as far as rendering judgment when the defendant has not filed an answer. Pursuant to Practice Book § 24-24 (a), the judicial authority may render judgment in favor of the plaintiff without a hearing or, “if it appears to the judicial authority that additional information or evidence is required prior to the entry of judgment,” the judicial authority should require the presence of the plaintiff before the court for a hearing.

Therefore, under Practice Book § 24-24, the trial court could have rendered judgment for the plaintiff because the defendant did not answer by the answer date or, if it appeared to the trial court that additional information or evidence was required, it should have held a hearing prior to rendering judgment.

The judgment is reversed and the case is remanded for further proceedings consistent with the rules of practice.

In this opinion the other judges concurred.

       General Statutes § 51-197a (a) provides in relevant part: “Appeals from final judgments or actions of the Superior Court shall be taken to the Appellate Court in accordance with section 51-197c, except for small claims, which are not appealable . . . (Emphasis added.)

        General Statutes § 52-263 provides in relevant part: “Upon the trial of all matters of fact in any cause or action in the Superior Court ... if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial ... he may appeal to the court having jurisdiction from the final judgment of the court or of such judge . . . except in small claims cases, which shall not be appealable . . . .” (Emphasis added.)

       Practice Book § 4182, now Practice Book (1998 Rev.) § 60-1, provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice."

       Practice Book (1998 Rev.) § 24-24 (a) provides: “In any action based on an express or implied promise to pay a definite sum and claiming only liquidated damages, which may include interest and reasonable attorney’s fees, if the defendant has not filed an answer by the answer date and the judicial authority has not required that a hearing be held concerning any request by the defendant for more time to pay, the judicial authority may render judgment in favor of the plaintiff without requiring the presence of the plaintiff or representative before the court, provided the plaintiff has complied with the provisions of this section. Nothing contained in this section shall prevent the judicial authority from requiring the presence of the plaintiff or representative before the court prior to rendering any such default and judgment if it appears to the judicial authority that additional information or evidence is required prior to the entry of judgment.”