author: ALVORD, J.

text:
    R. F. DADDARIO & SONS, INC. v. IRA N. SHELANSKY ET AL.
    (AC 30802)
    Bishop, Robinson and Alvord, Js.

      Argued May 28
    officially released September 14, 2010

      Timothy Brignole, with whom, on the brief, was Bozena Wysocki, for the appellant (named defendant et al.).

      John M. Wyzik, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendants Ira N. Shelansky and Linda J. Shelansky appeal from the judgment of foreclosure by sale rendered in favor of the plaintiff, R. F. Daddario & Sons, Inc. The defendants claim that the trial court improperly (1) determined that the plaintiff had standing to bring this action, (2) determined that the plaintiffs delay in foreclosing the mortgage did not indicate an intent to abandon the mortgage or bar its action under the doctrine of laches, (3) failed to find that the defendants were under duress when they signed the subject note and mortgage and that the mortgage transaction was unconscionable and (4) failed to find that the plaintiff had unclean hands and committed fraud in its dealings with them. We affirm the judgment of the trial court.

The following facts were found by the court or are not disputed. In 1987, the plaintiff began development of a condominium complex known as Oak Ridge in Windsor Locks and advertised the condominium units for sale “with no money down.” The base offering price of each condominium unit was $128,900. The defendants signed a contract to purchase one of the units for $131,000, the higher price reflecting improvements and upgrades requested by the defendants. Citicorp Mortgage, Inc. (Citicorp), issued a mortgage loan commitment to the defendants in the amount of $117,900.

On September 12, 1988, the day of the closing, the defendants first went to the office of the plaintiff’s president, Robert Daddario. He informed them that the plaintiff was offering them a second mortgage loan in the amount of $14,180, with interest at the rate of 12.5 percent per annum. The terms of the promissory note provided for fifty-nine monthly payments of $151.34 beginning on November 1, 1988, with a final balloon payment of $14,030.75 on November 1, 1993. The note further provided that interest would run at the rate of 14.5 percent per annum if the defendants were more than thirty days late with any payments due under the note. After Daddario explained the terms of the note, mortgage and truth in lending statement to the defendants, they signed the documents and were provided a bank check made payable to the attorney for Citicorp. The name of the mortgagee on the second mortgage was R. Daddario and Son, Inc. The transfer of title and the signing of the first mortgage loan documents then occurred in another room in the same building. The name of the grantor on the warranty deed was R. F. Daddario & Sons, Inc.

The defendants’ payments on the second mortgage loan were somewhat erratic between November 1,1988, and December 1, 1991. In December, 1991, the defendants experienced financial difficulties and ceased making payments to the plaintiff. In December, 1997, the plaintiff brought suit on the note alone but withdrew the action two months later. In 1998, the defendants moved from their condominium unit and rented it to tenants until June, 2008. The plaintiff filed the present foreclosure action on January 17, 2008. The defendants filed fourteen special defenses and a five count counterclaim, alleging, inter aha, laches, unclean hands, unconscionability, duress, fraud, usury and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The defendants sold their condominium unit in June, 2008, approximately six months after the filing of the plaintiffs complaint, for a purchase price of $179,900. The outstanding amount of principal and interest due on the first mortgage loan to Citicorp was paid from the proceeds of the sale. The balance of the proceeds was deposited into an escrow account pending the outcome of the present litigation.

The matter was tried to the court. On the first day of trial, the defendants filed a motion to dismiss, claiming that the plaintiff lacked standing to bring the action. Following the testimony of witnesses, the submission of exhibits and oral argument by counsel addressed to the issue of standing, the court ruled that the plaintiff did have standing to bring its claims and the trial continued. At the conclusion of the four day trial, the court issued its memorandum of decision. In that decision, the court denied the motion to dismiss and again stated that the plaintiff had standing and provided its factual determinations in support of that conclusion. The court further found that the defendants failed to prove any of their special defenses or the allegations of their counterclaim. In rendering judgment in favor of the plaintiff, the court, exercising its discretion, declined to award interest beyond January 1, 1997. Because a private sale already had occurred, the court approved the sale and ordered that the plaintiffs debt be paid from the proceeds held in escrow. This appeal followed.

Before addressing the defendants’ claims on appeal, we first address an issue raised by the plaintiff in its appellate brief and during oral argument before this court. The plaintiff claims that the defendants’ appeal is moot because the funds from the escrow account already have been disbursed in accordance with the judgment of the trial court, and, therefore, there is no practical relief that can be afforded to the defendants.

Prior to filing its appellate brief, the plaintiff filed a motion to dismiss the appeal with this court, claiming that the appeal was moot because the plaintiff already had received the funds from the escrow account, released the second mortgage and filed a satisfaction of judgment with the trial court. The defendants opposed the motion to dismiss, arguing that the plaintiffs actions violated the automatic stay provisions of Practice Book § 61-11. This court denied the plaintiffs motion to dismiss on November 4, 2009.

In denying the motion to dismiss, this court already has reviewed the claims in that motion to dismiss, and we will not review the same issues again. See Greci v. Parks, 117 Conn. App. 658, 666, 980 A.2d 948 (2009); Santoro v. Santoro, 33 Conn. App. 839, 841-42, 639 A.2d 1044 (1994). Contrary to the plaintiff’s argument, we have subject matter jurisdiction and will review the claims of the defendants.

I

The defendants first claim that the court improperly determined that the plaintiff had standing to bring this foreclosure action. The defendants argue that the plaintiff lacked standing because the mortgagee on the second mortgage was R. Daddario and Son, Inc., whereas this action was brought by a separate entity, R. F. Daddario & Sons, Inc. Because there was no assignment of the note and mortgage from R. Daddario and Son, Inc., to the plaintiff, the defendants claim that the plaintiff was not the holder of the note and did not have the right to enforce the mortgage.

“[A] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Fleet National Bank v. Nazareth, 75 Conn. App. 791, 793, 818 A.2d 69 (2003).

The gravamen of the defendants’ argument is that the separate entity of R. Daddario and Son, Inc., was created by Daddario in order to provide second mortgage loans to the purchasers of the plaintiffs condominium units at Oak Ridge. They claim that Citicorp, as the holder of the first mortgage, prohibited any secondary financing as a condition of its loan and that Daddario created a fictitious company for secondary lending purposes to circumvent that prohibition. The plaintiff responds that the incorrect name of the mortgagee in the secondary loan documents is a typographical error. In support of their argument that the difference in the corporate names was not a typographical error, Ira Shelansky testified: (1) the second mortgage loan closing took place prior to the first mortgage loan closing, (2) Daddario instructed him not to reveal the source of the funds from the second mortgage loan closing and (3) the plaintiffs attorney at the first mortgage loan closing signed an affidavit provided by Citicorp that no portion of the down payment for the purchase of the condominium unit had been borrowed. The defendants also submitted as exhibits at trial copies of second mortgages on several condominium units at Oak Ridge bearing the name R. Daddario and Son, Inc., as the mortgagee, copies of several releases of those mortgages signed by Daddario as president of R. Daddario and Son, Inc., and copies of letters to the defendants with the letterhead of R. Daddario and Son, Inc. For those reasons, the defendants claim that the court could not properly have concluded that R. Daddario and Son, Inc., and R. F. Daddario & Sons, Inc., were one and the same entity.

The court, in its oral ruling during the trial and in its memorandum of decision, made several factual determinations in support of its conclusion that R. Daddario and Son, Inc., was a misnomer and that the plaintiff, as the holder of the note and second mortgage, had standing to bring the foreclosure action. The court explicitly credited the testimony of Daddario and made the following findings: (1) R. Daddario and Son, Inc., was not a legal entity; (2) R. Daddario and Son, Inc., was not registered with the secretary of the state as a corporation and had no shareholders, officers or directors; (3) R. Daddario and Son, Inc., was a misnomer of the plaintiffs actual name, R. F. Daddario & Sons, Inc.; (4) the plaintiffs staff erroneously inputted the misnomer R. Daddario and Son, Inc., into the company’s computer, and the mistake was perpetuated in the subsequent second mortgage loan documents generated by the computer; (5) both parties recognized that the plaintiff, R. F. Daddario & Sons, Inc., was the corporation involved in the subject transaction; (6) the defendants knew that the funds from that transaction came from the plaintiff; (7) R. Daddario and Son, Inc., could not have negotiated the note or assigned the mortgage to the plaintiff because R. Daddario and Son, Inc., was not a legal entity; (8) the variation in the two names was minor; and (9) the defendants suffered no prejudice whatsoever from the use of the plaintiffs incorrect name on the note and mortgage.

The defendants are challenging the factual determinations of the court. “[W]e will upset a factual determination of the trial court only if it is clearly erroneous. 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.” (Internal quotation marks omitted.) Stohlts v. Gilkinson, 87 Conn. App. 634, 640, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005).

The record amply supports the court’s findings, particularly in light of the court’s credibility determinations: “Daddario . . . testified that the name R. Daddario & Son, Inc., on the relevant documents in this case was a mistake of its staff. That name got into the computer, and it was repeated over and over again on documents. The court believes this testimony and finds that R. Daddario & Son, Inc., is really the plaintiff.” (Emphasis added.) “We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Porter v. Morrill, 108 Conn. App. 652, 664, 949 A.2d 526, cert. denied, 289 Conn. 921, 958 A.2d 152 (2008). For these reasons, we cannot conclude that the court’s conclusion that the plaintiff had standing to bring this foreclosure action was improper.

II

The defendants next claim that the court improperly determined that the plaintiffs delay in foreclosing the second mortgage did not signify its intent to abandon the mortgage or bar its foreclosure action under the doctrine of laches. Specifically, the defendants argue that the sixteen year delay from the time of the last payment made by the defendants in December, 1991, to the filing of this foreclosure action in January, 2008, was sufficient evidence of the intentional abandonment of the plaintiffs rights under the mortgage. The defendants also claim that the plaintiffs claims are barred under the equitable doctrine of laches because the defendants were prejudiced by the plaintiffs inexcusable delay.

A

“It is the law of this state that a mortgagee may abandon his right of security under the mortgage. . . . Abandonment is a question of fact. To constitute it there must be an intention to abandon or relinquish accompanied by some act or omission to act by which such an intention is manifested.” (Citations omitted.) Brierley v. Johnson, 131 Conn. 675, 678, 42 A.2d 34 (1945). “While mere nonuser and lapse of time alone are not enough to constitute abandonment, they are competent evidence of an intent to abandon, and as such may be entitled to great weight when considered with other circumstances, and abandonment may be inferred from circumstances, such as failure by acts or otherwise to assert any claim to the right alleged to have been abandoned, or may be presumed from long continued neglect. . . . Most frequently, where abandonment has been held established, there has been found present some affirmative act indicative of an intent to abandon, as in Peck v. Lee, [110 Conn. 374, 377, 148 A. 133 (1930)], where it was found that the mortgagee had destroyed the mortgage and the note which it secured, but nonuser, as of an easement or other negative or passive conduct may be sufficient to signify the requisite intention and justify a conclusion of abandonment. The weight and effect of such conduct depends not only upon its duration but also upon its character and the accompanying circumstances.” (Citations omitted.) Glotzer v. Keyes, 125 Conn. 227, 233, 5 A.2d 1 (1939).

In its memorandum of decision, the court, after referencing applicable case law on abandonment, addressed the defendants’ argument as follows: “The evidence was that the plaintiff did not foreclose because for a long time there was no equity in the property . . . Daddario knew the defendants had moved out, would eventually sell the property and the plaintiff would be paid. There was no proof whatsoever that [the] plaintiff intentionally abandoned its rights under the mortgage.” The record supports the court’s factual determinations.

Daddario testified that the plaintiff sent notices to the defendants when they were late with their mortgage payments. Among the copies of the notices submitted as evidence, there is a letter to the defendants regarding the payment due under the mortgage dated September 23, 1993, which is almost two years later than the date of their last payment in December, 1991. This contradicts the defendants’ argument that the plaintiff did nothing from December, 1991, through January, 2008. Daddario further testified that the plaintiff brought an action against the defendants in 1997 to collect the amount due under the note. That action was withdrawn. Daddario explained that between 1992 and 1997, he did not attempt to foreclose the mortgage because he believed there was no equity in the condominium unit to justify the expenses associated with a foreclosure action. He indicated, however, that there had been some unsuccessful efforts to settle the matter between the parties. The plaintiff submitted into evidence two letters from the parties’ attorneys, dated January 20 and June 7, 2004, discussing settlement proposals. Daddario testified that he made no further efforts to collect the debt between 2004 and 2008 because he knew the defendants wanted to sell their condominium unit and that they would have to address the second mortgage as an encumbrance at that time. From the testimony and the exhibits submitted at trial, we cannot conclude that the court’s determination that the plaintiff did not intentionally abandon its rights under the mortgage was clearly erroneous.

B

The court also concluded that the defendants failed to prove that the plaintiffs delay in foreclosing the mortgage constituted laches. “The standard of review that governs appellate claims with respect to the law of laches is well established. A conclusion that a plaintiff has been guilty of laches is one of fact for the trier and not one that can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law. . . . We must defer to the court’s findings of fact unless they are clearly erroneous. . . .

“The defense of laches, if proven, bars a plaintiff from seeking equitable relief .... First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant. . . . The burden is on the party alleging laches to establish that defense. . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing party] ... as where, for example, the [opposing party] is led to change his position with respect to the matter in question.” (Internal quotation marks omitted.) Jarvis v. Lieder, 117 Conn. App. 129, 149, 978 A.2d 106 (2009).

In the present case, the court focused on the second element of laches and concluded that the defendants failed to prove that they had been prejudiced by the delay in bringing this foreclosure action. As found by the court: “Here, the only prejudice the defendants claim is that they lost some documents, which were damaged in their flooded basement, that might support the special defenses of fraud, duress and unclean hands. The only document that might have helped them to prove [those] defense [s] was the affidavit of no secondary [financing] purportedly signed by . . . Daddario or his representative. But . . . that affidavit was irrelevant because it did not prove any fraud or improper conduct perpetrated by the plaintiff upon the defendants.”

As indicated by the trial court, and confirmed by our review of the record, the defendants’ allegation of prejudicial delay is directed solely to their claim that various closing documents were destroyed when their basement flooded in 1998 and that the defendants’ attorney at that time no longer had copies of their closing documents. The only document specifically identified as being of some importance, however, was the affidavit of no secondary financing that was allegedly signed by Daddario or the plaintiffs attorney at the closing. The court, however, previously in its decision, found that Daddario “testified that his arrangement with [Citicorp] was for a no-asset verification transaction, and the prohibition of secondary financing in the bank’s commitment form was not to be enforced. The court believes . . . Daddario on this point.” (Emphasis added.) Therefore, the production of such an affidavit would not have been helpful to the defendants’ claims. Accordingly, on the basis of the record, we are unable to conclude that the court’s finding that the defendants had not been prejudiced by the plaintiffs delay in bringing the foreclosure action was clearly erroneous.

Ill

The defendants next claim that the court improperly failed to find that they were under duress when they signed the subject note and mortgage and that the mortgage transaction was unconscionable. The defendants argue that they signed the documents under duress and that the entire loan transaction was procedurally and substantively unconscionable because (1) the closing for the secondary financing was a separate transaction that took place in Daddario’s office, (2) they were not provided copies of those documents prior to the closing and were unaware of the terms of repayment, (3) Citicorp prohibited secondary financing without its prior approval and (4) the plaintiff used a fictitious name to conceal the fact of the secondary financing.

A

“For a party to demonstrate duress, it must prove [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim. . . . The wrongful conduct at issue could take virtually any form, but must induce a fearful state of mind in the other party, which makes it impossible for [the party] to exercise his own free will.” (Internal quotation marks omitted.) Cox v. Burdick, 98 Conn. App. 167,177-78, 907 A.2d 1282, cert. denied, 280 Conn. 951, 912 A.2d 482 (2006).

In its memorandum of decision, the court stated that these claims were “without merit.” As previously indicated, the court found that the plaintiffs use of the incorrect name on the loan documents was an inadvertent error. The court also stated that it found credible Daddafio’s testimony that Citicorp had agreed to provide a no-asset verification loan that did not preclude secondary financing. Additionally, the court found that the defendants received what was promised to them in terms of the amount of financing available to them for the purchase of the condominium unit, that they were not pressured to sign the second mortgage loan documents in Daddario’s office and that they had time to review those documents even if they chose not to do so. There is ample support in the record for the court’s factual determinations, and, accordingly, we cannot conclude that the defendants signed the loan documents under duress.

B

“It is well established that [t]he question of unconscionability is a matter of law to be decided by the court based on all the facts and circumstances of the case. . . . Thus, our review on appeal is unlimited by the clearly erroneous [or abuse of discretion] standard. . . . This means that the ultimate determination of whether a transaction is unconscionable is a question of law, not a question of fact, and that the trial court’s determination on that issue is subject to a plenary review on appeal.” (Internal quotation marks omitted.) Crews v. Crews, 295 Conn. 153, 163, 989 A.2d 1060 (2010). “It also means, however, that the factual findings of the trial court that underlie that determination are entitled to the same deference on appeal that other factual findings command. Thus, those findings must stand unless they are clearly erroneous.” (Internal quotation marks omitted.) New England Retail Properties, Inc. v. Maturo, 102 Conn. App. 476, 488, 925 A.2d 1151, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007).

“The classic definition of an unconscionable contract is one which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other. . . . The doctrine of unconscionability, as a defense to contract enforcement, generally requires a showing that the contract was both proceduraily and substantively unconscionable when made—i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party . . . .” (Citation omitted; internal quotation marks omitted.) Bender v. Bender, 292 Conn. 696, 731-32, 975 A.2d 636 (2009).

In addition to the defendants’ previous arguments discussed in part III A of this opinion, they focus on the terms of the subject note and mortgage, and claim that they were unaware of those terms at the time they signed the loan documents. In support of their argument that the loan was unconscionable, the defendants emphasize the note’s interest rate of 12.5 percent per annum, the default rate of 14.5 percent per annum and the balloon payment at the end of five years that “would be approximately equal to the original amount of the loan.” To the extent that the defendants are claiming that the terms themselves were unconscionable, we conclude that the record fails to disclose any evidence to support their argument.

The defendants presented no evidence to demonstrate that the interest rates were unfair or that a balloon payment at the end of five years was unreasonable for a second mortgage loan. Daddario, however, testified that he researched the interest rates charged by other second mortgage lenders and believed that the plaintiffs interest rate was fair because of the high risk inherent with second mortgage loans. Because the party claiming unconscionability bears the burden of proof, the defendants’ mere claim that the terms of the subject note and mortgage were unconscionable is insufficient to establish their special defense. See New England Retail Properties, Inc. v. Maturo, supra, 102 Conn. App. 490. Accordingly, the court’s determination that the defendants’ special defense was without merit was legally correct.

IV

The defendants’ final claim is that the plaintiff had unclean hands and committed fraud in its dealings with them. The defendants argue that they established that the plaintiffs conduct, in providing secondary financing that was prohibited by the first mortgage lender, was improper and that the court improperly determined that the special defenses were without merit on the ground that any alleged deception was directed toward Citicorp as the first mortgage lender and not toward the defendants.

The defendants’ claims of unclean hands and fraud are based on the premise that secondary financing was prohibited and that the plaintiff used a fictitious company to conceal the execution of the second mortgage loan. The court specifically found, however, that Citicorp did not prohibit secondary financing and that the discrepancy in the plaintiffs name was a typographical error. Accordingly, for the reasons previously discussed in this opinion, these claims must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       Several subsequent encumbrancers also were named as defendants in this action, but they are not parties to this appeal. We therefore refer in this opinion to the Shelanskys as the defendants.

       The court cited Wyandot, Inc. v. Gracey Street Popcorn Co., 208 Conn. 248, 544 A.2d 180 (1988). In that case, our Supreme Court stated: “[A] minor deviation in the name of a corporation has little legal significance .... [I]t is the general rule that in case of a misnomer of a corporation in a grant, obligation or written contract, if there is enough expressed to show that there is such an artificial being and to distinguish it from all others, the corporation is sufficiently named although there is a variation of words and symbols.” (Citation omitted; internal quotation marks omitted.) Id., 255.

       Daddario testified that the name R. Daddario and Son, Inc., was a typographical error; that all subsequent documents contained the erroneous name because of the initial word processing mistake; that all of the loan documents were supposed to reflect R. F. Daddario & Sons, Inc., as the note holder and mortgagee; that letters sent to the defendants with respect to late payments were printed from the computer and also had the incorrect name of the plaintiff in the letterhead; that the plaintiff had a primary telephone number but also used “rollover” telephone numbers and that different telephone numbers might appear on different documents and letterhead; that Citicorp had agreed to provide a no-asset verification loan that did not preclude secondary financing; that Citicorp, on occasion, erroneously included an affidavit in its closing documents that stated that there was no secondary financing involved in the transaction; that neither Daddario nor any of the plaintiff’s representatives, to Daddario’s knowledge, signed any of those affidavits; that the plaintiff switched to a different first mortgage lender because of the problem with the inclusion of the improper affidavits in Citicorp’s closing documents; that the use of the plaintiff’s incorrect name in the second mortgage loan documents continued even after Citicorp no longer was the first mortgage lender; that if he had noticed the incorrect name on the loan documents, he would have corrected it; and that if Citicorp had prohibited second mortgages and if he had wanted to defraud Citicorp as the first mortgage lender, he would have written the second mortgage loans through one of his other legally existing companies with a totally different name.

       Our Supreme Court subsequently clarified that a dominant owner’s non-use of an easement, standing alone, is never enough to effect an abandonment. See Smith v. Muellner, 283 Conn. 510, 529 n.16, 932 A.2d 382 (2007).

       A mortgagee is entitled to pursue its remedy at law on the note or to pursue its remedy in equity on the mortgage or to pursue both. “A note and a mortgage given to secure it are separate instruments, executed for different purposes and in this State action for foreclosure of the mortgage and upon the note are regarded and treated, in practice, as separate and distinct causes of action, although both may be pursued in a foreclosure suit.” (Internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn. App. 401, 415, 867 A.2d 841 (2005).

       Daddario testified that the action was withdrawn because his time was consumed by another business project and by his father’s health issues.

       With respect to the first element of inexcusable delay, the court, made no specific findings in its discussion addressing the defendants’ special defense of laches. It did, however, make findings relative to the delay when it discussed the defendants’ special defense of abandonment. As discussed in part IIA of this opinion, Daddario’s testimony provided reasons for the plaintiffs delay in bringing the action.

       We note, however, that trial exhibit twenty is a copy of the defendants’ response to the plaintiffs request for production and that exhibit includes copies of the documents the defendants obtained from Citicorp or its successor in connection with the first mortgage loan closing. The defendants also submitted, as an exhibit at trial, a copy of the check they had received from the plaintiff at the second mortgage loan closing with Daddario. Ira Shelansky testified that, although all of the closing documents had been destroyed, he found the copy of the check in his wife’s records.

       At trial, Ira Shelansky testified that he was a businessman; that he was aware that the same entity that was selling him the condominium unit was providing the secondary financing; that he knew that the money the plaintiff was providing to him was a loan and that there would be interest on that loan; that he never claimed that the second loan transaction was fraudulent between 1988 and 1993; that he did not have any regret signing the second mortgage loan documents at the time of the closing; that he voluntarily signed the note and mortgage for the secondary financing; that nobody forced him to sign the documents or threatened him but that he could not have purchased the condominium unit without the proceeds from the second mortgage loan; that no one imposed a time limitation with respect to his review of the second mortgage loan documents; and that the reason he stopped making payments on the second mortgage was because of financial difficulties.

       With respect to this issue, the court simply concluded that “the terms of the mortgage were not unconscionable . . . .”

       In the defendants’ statement of issues, they also claim that the interest rate of 12.5 percent per annum and the default rate of 14.5 percent per annum were usurious. They simply claim that the mortgage was not a bona fide mortgage exempted from the application of General Statutes § 37-4 and cite one case, a United States Supreme Court decision issued in 1796, in support of that argument. Their analysis, which is less than one page in their brief, is insufficient. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than [mere] abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Cooke v. Cooke, 99 Conn. App. 347, 353, 913 A.2d 480 (2007). Accordingly, we decline to review that issue.

       For the same reason, the defendants’ claim that the conduct of the plaintiff violated the provisions of the Connecticut Unfair Trade Practices Act fails.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    TIMOTHY GRAVIUS, ZONING ENFORCEMENT OFFICER, ET AL. v. BARRY M. KLEIN ET AL.
    (AC 30828)
    Harper, Robinson and Dupont, Js.

      Argued March 11
    officially released September 14, 2010

      Stuart B. Ratner, for the appellant (named defendant).

      Thomas W. Beecher, for the appellees (plaintiffs).
   Opinion

ROBINSON, J.

The defendant Barry M. Klein appeals from the judgment of the trial court granting the motion for contempt filed by the plaintiffs, Timothy Gravius, the zoning enforcement officer for the town of Brook-field, and the town of Brookfield, for the defendant’s alleged violation of a stipulated judgment. The sole issue on appeal is whether the court improperly found that the defendant wilfully had violated the terms of the stipulated judgment. We affirm in part and reverse in part the judgment of the trial court.

The following factual and procedural history is relevant to our resolution of the defendant’s appeal. At all times relevant to this appeal, the defendant was a resident of 279 Candlewood Lake Road, Brookfield. On September 23, 2005, the plaintiffs filed a complaint against the defendant, alleging that he stored or allowed the storage of more than one unregistered motor vehicle on his property in contravention of Brookfield’s zoning regulations. On October 11, 2005, the parties agreed to the issuance of a permanent injunction without bond as part of a stipulated judgment. The stipulated judgment filed October 11, 2005, enjoined the defendant from “[1] using or allowing the use of 279 Candlewood Lake Road, Brookfield, Connecticut for the parking or storage, temporarily or long term, of any motor vehicles which are, or are to be, purchased or sold in conjunction with a commercial or wholesale motor vehicle purchase and sales business or operation, except as set forth in 2.b; and [2] using or allowing the use of 279 Candlewood Lake Road, for the storage of more than one unregistered motor vehicle, and the one unregistered motor vehicle must [a] be owned by, and title must be in the name of, either [the defendant] or Nancy A. Klein; or [b] have ‘Dealer Plates’ on the vehicle and be parked on the subject property solely for the personal use of [the defendant].”

The stipulation further ordered that “in addition to other penalties as the [c]ourt may then impose, the [defendant . . . will be fined $100 for each day that a violation of this order occurs or continues after the date of this [o]rder. In the event the [pjlaintiffs prove any violation of this order, the [defendant . . . shall pay for the reasonable attorney’s fees and costs incurred by the [pjlaintiffs.”

On October 14, 2008, the plaintiffs filed a motion for contempt, alleging that the defendant was in violation of the stipulated judgment because he continued to use his property for “the parking or storage of motor vehicles, which are, or are to be, purchased or sold in conjunction with a commercial or wholesale motor vehicle purchase and sales business or operation.” A hearing on the motion was held on November 24, 2008.

At the hearing, the plaintiffs presented the eyewitness testimony of Stanley Parker, chairman of the Brookfield zoning commission. Parker testified that the defendant maintained a number of registered and unregistered vehicles on his property. Specifically, Parker testified that he observed and took photographs of a Kia Spectra on June 17, 2008; a Buick LeSabre on November 3, 2008; a Chrysler Sebring on July 8 and October 20 and 21, 2008; a Kia Optima on October 6, 20 and 21, 2008; a Ford Contour on October 2 and 6,2008; a Buick Century on September 23,2008; a Chevrolet Cavalier on September 22, 2008; an AMC Marlin Rambler on July 31, 2008; and a Ford Thunderbird and a Pontiac Sunbird on August 5, 2008. The plaintiffs also adduced evidence in the form of photographs of the vehicles on the property and numerous newspaper advertisements for the sale of these same vehicles.

The defendant did not deny that he maintained the vehicles on his property. He acknowledged that the vehicles depicted in the photographs were of vehicles that he had on his property and also admitted that he advertised his vehicles quite frequently. He did deny, however, that the vehicles were being offered for sale in conjunction with a commercial or wholesale motor vehicle purchase and sales business or operation. He testified that some of the vehicles were maintained on his property for personal reasons. For example, he stated that the Chrysler Sebring had belonged to his grandson’s roommate, who had requested that he sell the vehicle for him. He also testified that the Kia Spectra was his wife’s current vehicle, which replaced her former vehicle, the Ford Contour. Additionally, he testified that the Kia Optima and Chevrolet Cavalier were delivered to his property by a New Milford car dealer so that the defendant could transfer the vehicles to a local mechanic for repairs.

On December 17, 2008, the court issued its memorandum of decision finding that the defendant was in contempt of the stipulated judgment for a total of twenty days. Specifically, the court found that the defendant was in wilful violation of the stipulated judgment on the following seventeen dates: June 17, July 8, August 5, September 2, 20, 22, 23, 24 and 29, October 3, 20, 21 and 30, and November 3, 6, 10 and 12, 2008; and the court also found that he had violated the stipulated judgment on “several other days” when vehicles were physically observed on his property, bringing the total number of dates of violation to twenty. The court defined “several other days” to mean an additional three days of violation. As required by the stipulated judgment, the court fined the defendant $100 per day, amounting to total fine of $2000. In addition, the court ordered the defendant to pay the plaintiffs’ attorney’s fees in the amount of $2340. This appeal followed.

On appeal, the defendant claims that the court improperly found that he violated the terms of the stipulated judgment. Specifically, the defendant claims that the plaintiffs failed to meet their burden of proof or present sufficient facts to support the twenty findings of wilful violation of the stipulated judgment. We hold that the court properly concluded that the defendant wilfully violated the stipulated judgment on fifteen dates. We agree, however, with the defendant that there is insufficient evidence in the record to support the court’s contempt findings as to November 6 and 12, 2008. Finally, we hold that the record is inadequate to review whether the three additional days that the court termed “several other days” are sufficiently supported by the record.

We first set forth the applicable standard of review. “The abuse of discretion standard applies to a trial court’s decision on a motion for contempt.” Ramin v. Ramin, 281 Conn. 324, 336, 915 A.2d 790 (2007). “A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in [finding] that the actions or inactions of the [party] were in contempt of a court order. . . . To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Internal quotation marks omitted.) Rocque v. Design Land Developers of Milford, Inc., 82 Conn. App. 361, 370, 844 A.2d 882 (2004); see also Bowers v. Bowers, 61 Conn. App. 75, 79, 762 A.2d 515 (2000), appeal dismissed, 258 Conn. 710, 784 A.2d 889 (2001). “We review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous.” Dionne v. Dionne, 115 Conn. App. 488, 494, 972 A.2d 791 (2009). “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Auerbach v. Auerbach, 113 Conn. App. 318, 327, 966 A.2d 292, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009). “The resolution of conflicting factual claims falls within the province of the trial court. . . . 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.” (Citations omitted; internal quotation marks omitted.) Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988). “A reviewing authority may not substitute its findings for those of the trier of the facts.” (Internal quotation marks omitted.) Bunting v. Bunting, 60 Conn. App. 665, 678, 760 A.2d 989 (2000). “In a civil contempt proceeding, the movant has the burden of establishing, by a preponderance of the evidence, the existence of a court order and noncompliance with that order.” Statewide Grievance Committee v. Zadora, 62 Conn. App. 828, 832, 772 A.2d 681 (2001).

In the present case, the defendant claims that there is insufficient evidence in the record to support the conclusion that he wilfully violated the stipulated judgment by (1) maintaining vehicles on his property “in conjunction with a commercial or wholesale motor vehicle purchase and sales business or operation” and (2) maintaining more than one unregistered vehicle on his property. After an extensive review of the record, we conclude that the evidence, as well as the rational inferences drawn therefrom, supports fifteen of the court’s findings of wilful violation challenged by the defendant. For each of the fifteen dates, we find there to be ample evidence in the record, in the form of photographs, advertisements and testimony, that tend to prove that the defendant knowingly maintained registered and unregistered vehicles on his property that were later offered for sale in the local newspaper, in contravention of the stipulated judgment. Despite this evidence, the defendant argues that there are personal reasons justifying why the vehicles were maintained on his property and subsequently advertised for sale. The court heard these justifications at trial and, in light of the “number of vehicles, the extent of the sales effort and the circumstances surrounding their presence on the property,” found the defendant’s claim that he was not selling vehicles from his property in conjunction with a commercial business “simply not credible . . . .” Additionally, the court was unconvinced by the defendant’s claim that he did not maintain more than one unregistered motor vehicle on his property at a time. The defendant’s argument reflects his dissatisfaction with the fact that the court did not accept his testimony as the true version of the facts. “In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony and, therefore, is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) DiVito v. DiVito, 77 Conn. App. 124, 138, 822 A.2d 294, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003). The court’s finding that the defendant wilfully violated the stipulated judgment on the fifteen dates is not clearly erroneous because there is evidence in the record that supports such a finding on each of those dates.

In contrast to the fifteen dates for which there is evidence in the record to support a finding of contempt, either in the form of photographs, advertisements or testimony, the record does not support the court’s finding of a violation on either November 6 or 12, 2008. Therefore, the court’s finding that the defendant wilfully violated the stipulated judgment on those dates is clearly erroneous.

Finally, the court found that the defendant had violated the stipulated judgment on “several other days [when] vehicles were physically observed on the premises.” In footnote 2 of its decision, the court states: “While the plaintiffs’ witness was not specific as to the number of other days he observed vehicles upon the property, the court will make a reasonable inference and give the word ‘several’ its common meaning of three or more. Hence, an additional three days have been added.” It is unclear from the decision what factual findings provided the basis for the court’s conclusion that the defendant violated the stipulated judgment on three additional days or the specific dates on which the violations occurred. The court made reference to Parker’s testimony without providing any reason as to how that testimony supported a finding of three additional days of violation. The defendant failed to seek an articulation on this matter. Thus, we are left to surmise as to the factual basis of the finding reached by the court.

“Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the appellant’s claim] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608-609, 710 A.2d 190 (1998). It is well established that “[a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [PJroper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Internal quotation marks omitted.) Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 685-86, 911 A.2d 300 (2006). “[W]hen the decision of the trial court does not make the factual predicates of its findings clear, we will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002). Accordingly, because the record does not reveal the factual basis for the court’s finding, and the defendant failed to file a motion for articulation, we are unable to review this claim.

The judgment is reversed only as to the findings of contempt with respect to November 6 and 12, 2008, and the case is remanded with direction to vacate those contempt findings and the fines related thereto. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Klein’s wife, Nancy A. Klein, also was a defendant at trial but is not a party to this appeal because the stipulated judgment at issue applied only to Barry Klein and only he has appealed. We therefore refer to Barry M. Klein in this opinion as the defendant.

       Prior to this appeal, Gravius resigned from his position as the zoning enforcement officer for the town of Brookfield, which also is a plaintiff in this action. The plaintiffs timely filed a motion to add Kristi MePadden, the current zoning enforcement officer, as a plaintiff. The court granted that motion.

       The plaintiffs presented advertisements showing that (1) the Buick LeSabre was offered for sale on October 30 and November 3 and 10, 2008; (2) the Chrysler Sebring was offered for sale on September 2 and October 20, 2008; (3) the Kia Optima was offered for sale on October 20, 2008; (4) the Ford Contour was offered for sale on October 3,2008; (5) the Buick Century was offered for sale on September 24, 2008; (6) the Chevrolet Cavalier was offered for sale on September 20, 22 and 24, 2008; and (7) the AMC Marlin Rambler was offered for sale on September 29, 2008.

       These dates include June 17, July 8, August 5, September 2, 20, 22, 23, 24 and 29, October 3, 20, 21 and 30, and November 3 and 10, 2008.

       The defendant also argues that he was not operating a “junkyard,” as defined by § 242-202 of the Brookfield zoning regulations. We do not address this argument because the sole issue in this appeal is whether the court properly determined that the defendant wilfully violated the terms of the stipulated judgment. It is irrelevant to this appeal whether, as the defendant argues, he was in compliance with § 242-202 of the Brookfield zoning regulations.

       The record indicates that the court reasonably could have concluded that the defendant had more than one unregistered vehicle on his property. There are numerous photographs of vehicles lacking license plates. One specific example of this is a photograph taken on August 5, 2008. The plaintiffs’ witness testified that on that date he observed two motor vehicles on the defendant’s property lacking license plates, a Ford Thunderbird and a Pontiac Sunbird. The defendant’s witness, Ralph Smith, testified that the Pontiac Sunbird belonged to him and that the photograph failed to show that the vehicle had a license plate on the back of the vehicle. It appears that the court did not credit Smith’s testimony, and we decline to disturb such a determination. Furthermore, the defendant admitted that the AMC Marlin and Ford Thunderbird, which were both observed on his property, were unregistered at all times in 2008.

       The defendant argues that the court found him in contempt on the basis of advertising alone. Based on our review of the record, we disagree. For each of the fifteen dates for which we affirm the court’s findings that the defendant was in contempt, there is evidence in the record in the form of testimony and photographs that tends to prove that the vehicles were parked on his property in violation of the stipulated judgment.

       We note that although Parker testified that he observed a Buick LeSabre on the defendant’s property on “many dates” in November, 2008, there is no evidence in the record that specifically links that observation with November 6 and 12, 2008.


author: HARPER, J.

text:
    ANTHONY DIBLASE v. LOGISTEC CONNECTICUT, INC., ET AL.
    (AC 31045)
    Harper, Beach and Robinson, Js.

      Argued March 17
    officially released September 14, 2010

      David A. Kelly, with whom, on the brief, was Bridget Ciarlo, for the appellant (plaintiff).

      Neil J. Ambrose, for the appellees (defendants).
   Opinion

HARPER, J.

In this workers’ compensation matter, the plaintiff, Anthony DiBlase, appeals from the decision of the workers’ compensation review board (board) affirming the workers’ compensation commissioner’s (commissioner) denial of his request for attorney’s fees from the defendant Logistec Connecticut, Inc. On appeal, the plaintiff claims that the board improperly affirmed the commissioner’s determination that a prior effort by the defendant to challenge the subject matter jurisdiction of the workers’ compensation commission (commission) did not constitute an unreasonable contest or undue delay of the plaintiffs claims for benefits. We disagree. Accordingly, we affirm the decision of the board.

The following facts and procedural history are relevant to our disposition of the present appeal. The plaintiff has filed claims for compensation under the federal Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (longshore act), and our state’s Workers’ Compensation Act, General Statutes § 31-275 et seq. (state act), for injuries sustained to his left and right shoulder while he was in the employ of the defendant, a longshoring operation in the business of unloading cargo from ships. On September 27, 2002, the parties entered into a voluntary agreement under which the defendant accepted the compensability of the injury to the plaintiffs left shoulder under the state act. This agreement was approved by the commissioner.

On October 3, 2003, however, the defendant filed a form 43, contesting the commission’s subject matter jurisdiction. The defendant claimed: “[The plaintiffs] injury occurred over navigable waters in the course of [mjaritime employment. Exclusive jurisdiction for such injuries lies within [the] jurisdiction of [the longshore act].” The commissioner agreed with the defendant, and the plaintiffs claims for benefits under the state act were dismissed. The plaintiff appealed to the board, which affirmed the commissioner’s dismissal of the claims. The plaintiff then appealed from the board’s decision to this court, and our Supreme Court transferred the appeal to itself and reversed the board’s decision. The court, relying on its ruling in another case that had been argued the same day, noted that “the state has concurrent jurisdiction with the federal government over claims involving injuries sustained on navigable waters when the employer and the employee are locally based, the employment contract is performed locally, the injury occurred on the state’s territorial waters and the employer was required under the state act to secure compensation for any land based injuries sustained by the employee.” DiBlase v. Logistec Connecticut, Inc., 283 Conn. 129, 135, 925 A.2d 311 (2007). Accordingly, the court concluded that the board improperly determined that the commissioner did not have jurisdiction over the plaintiffs claim because “the plaintiff is a resident of Connecticut, the defendant is a coiporation with business locations in Connecticut, and the plaintiff was employed by the defendant as a laborer in its warehouses in Bridgeport and New Haven in unloading cargo ships in the harbor.” Id.

Subsequent to the Supreme Court’s decision in DiBlase, the plaintiff filed a request for attorney’s fees for unreasonable delay and unreasonable contest of benefits pursuant to General Statutes § 31-300. The theory underlying the plaintiffs request was that the defendant unreasonably had challenged the commission’s jurisdiction. The commissioner, however, found that the plaintiff “failed to meet his burden of proof that [the defendant] unreasonably contested and denied or unduly delayed benefits pursuant to ... § 31-300.” It appears that the commissioner, in denying the request for attorney’s fees, primarily was persuaded by the fact that the board previously had agreed with the defendant that there was no concurrent state jurisdiction over the plaintiffs claims, only to be reversed by our Supreme Court. Accordingly, the commissioner denied the request for attorney’s fees. The plaintiff appealed to the board, which, in turn, affirmed the decision of the commissioner. This appeal followed.

The sole issue raised by the plaintiff on appeal is “[w]hether [the board] erred in affirming [the commissioner’s] denial of the plaintiffs claim for attorney’s fees on the basis of unreasonable contest and undue delay, as permitted by ... § 31-300.” Our standard of review for workers’ compensation issues is well established. “The commissioner is the sole trier of fact and [t]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts. ... On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s findings and award. . . . Our scope of review of [the] actions of the [board] is [similarly] . . . limited. . . . [However] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 52-53, 782 A.2d 141, cert. denied, 258 Conn. 930, 783 A.2d 1029 (2001).

The gist of the plaintiffs argument is that the defendant’s earlier challenge in DiBlase v. Logistec Connecticut, Inc., supra, 283 Conn. 129, constituted an impermissible collateral attack on the commission’s jurisdiction. Having so alleged, the plaintiff posits that the defendant’s action was ipso facto unreasonable. We disagree.

In support of his argument, the plaintiff cites Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 104, 616 A.2d 793 (1992), in which our Supreme Court reaffirmed the principle that a collateral attack on jurisdiction may be barred “where the lack of jurisdiction is not entirely obvious” and a party previously had an opportunity to challenge jurisdiction. Essentially, Upjohn Co. stands for the proposition that there are certain instances in which a court may decline to review a challenge to jurisdiction on the basis of collateral estoppel. To the extent that the plaintiff asks us to adopt the Upjohn Co. paradigm by grafting it onto the inquiry into the reasonableness of jurisdictional challenges, we decline to do so.

The reviewability of a challenge and the reasonableness of a challenge, however, involve legally distinct inquiries. Thus, even were we to accept the plaintiffs argument that our Supreme Court should have declined to review the defendant’s earlier challenge as a collateral attack on the court’s jurisdiction, such a conclusion would not be dispositive of the issue of the reasonableness of the defendant’s challenge. It also is particularly relevant that our Supreme Court reviewed the defendant’s jurisdictional challenge on its merits. The court did not decline to review the challenge as a collateral attack.

The plaintiff, citing Morris v. Irwin, 4 Conn. App. 431, 494 A.2d 626 (1985) (case on which Upjohn Co. relied for support), also argues that “there [exists] no strong policy [reason] for providing the [defendant] with a second opportunity to litigate the issue of subject matter jurisdiction” after entering into a voluntary agreement. Although the plaintiffs assertion may be true in the context of a typical tort action, we must be mindful that the fundamental purpose of the state act is “to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment.” (Internal quotation marks omitted.) Steams & Wheeler, LLC v. Kowalsky Bros., Inc., 289 Conn. 1, 11, 955 A.2d 538 (2008). If we were to adopt the rationale advanced by the plaintiff and hold that a challenge to the jurisdiction of the commission is ipso facto unreasonable when an employer and employee have previously entered into a voluntary agreement, we would no doubt discourage parties from quickly entering into such agreements. Such a result would be an anathema to the goals of the state act.

It is well established that the “decision to award attorney’s fees is within the commissioner’s discretion and dependent on the findings of fact.” McFarland v. Dept. of Development Services, 115 Conn. App. 306, 323, 971 A.2d 853, cert. denied, 293 Conn. 919, 979 A.2d 490 (2009); Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 124, 612 A.2d 82, cert. denied, 223 Conn. 920, 615 A.2d 507 (1992). In determining that the defendant’s jurisdictional challenge was not unreasonable, the commissioner relied heavily on the fact that both an earlier trial commissioner and the board had found merit to the defendant’s challenge. The plaintiff has failed to provide any authority for why the commissioner was not entitled to take this into consideration, nor do we see any reason to conclude that this could not have served as a relevant factor in the commissioner’s determination as to reasonableness. In sum, the circumstances of the present case do not persuade us to disturb the board’s ruling that the commissioner did not abuse his discretion in finding the defendant’s challenge to be reasonable.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The third party administrator of the defendant employer’s workers’ compensation plan, LaMorte Bums and Company, was also a defendant in the proceedings before the commission and the board but has not participated in this appeal. For convenience, we refer in this opinion to Logistec Connecticut, Inc., as the defendant.

       The case, Coppola v. Logistec Connecticut, Inc., 283 Conn. 1, 925 A.2d 257 (2007), presented identical issues.

       General Statutes § 31-300 provides in relevant part: “In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include ... a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in the award in the case of undue delay in payments of compensation ... a reasonable attorney’s fee. ... In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee. . . .”

       The plaintiff also argues that the “commissioner abused his discretion in determining that a challenge to subject matter jurisdiction is always a bona fide defense to the claims of a plaintiff for compensation.” (Emphasis in original.) This argument consists of little more than bare assertions, and the plaintiff does not provide a material legal analysis related to it. Accordingly, we decline to review the merits of this claim. See Knoblaugh v. Marshall, 64 Conn. App. 32, 35 n.3, 779 A.2d 218 (argument that consists of mere bare assertion devoid of any legal authority inadequately briefed), cert. denied, 258 Conn. 916, 782 A.2d 1243 (2001).


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. DWIGHT G.

    (AC 30670)
    Bishop, Haiper and Peters, Js.

      Argued May 24
    officially released September 14, 2010

      Todd A. Bussert, special public defender, for the appellant (defendant).

      Richard K. Greenalch, Jr., special deputy assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Edward Azzaro, assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

PER CURIAM.

On appeal, the defendant, Dwight G., challenges the judgment of the trial court revoking his probation. We conclude that the defendant has failed to prove that the court abused its discretion in doing so. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the present appeal. On June 20, 2001, the defendant was convicted of sexual assault of a spouse or cohabitant in violation of General Statutes § 53a-70b. The corut, Foley J., sentenced the defendant to ten years of imprisonment, suspended after three years, and ten years probation. As special conditions to the defendant’s probation, the defendant was prohibited from having contact with the victim, required to register as a sexual offender, required to undergo counseling and required to comply with any special sex offender conditions mandated by the court support services division.

On November 12,2008, the state, in a substitute information, charged the defendant with violating the terms of his probation in violation of General Statutes § 53a-32 for (1) having contact with the victim, (2) possessing sexually stimulating material in violation of the sex offender conditions of probation and (3) committing a crime while on probation. During the adjudicatory phase of the revocation of probation hearing, the court, Swords, J., found that the defendant had violated all three conditions of his probation. During the dispositional phase of the hearing, the court determined that the beneficial aspects of probation were no longer being served. Accordingly, the court revoked the defendant’s probation and ordered him to serve the unexecuted portion of his sentence. This appeal followed.

On appeal, the defendant does not challenge the court’s finding that, after being released from prison, he married the victim and cohabited with her. The defendant concedes, as he must, that he violated the terms of his probation by having contact with the victim. The defendant claims* however, that (1) the court improperly found that his possession of sexually stimulating material constituted a violation of probation; (2) the state failed to charge that he actually committed a crime, instead only charging him with being arrested for a crime, and, therefore, the court improperly found that he had committed a crime while on probation; and (3) the court improperly restricted defense counsel’s cross-examination of the victim. As a result of these alleged deficiencies in the adjudicatory phase of the hearing, the defendant argues that the case should be remanded for a new dispositional hearing.

“A revocation proceeding is held to determine whether the goals of rehabilitation thought to be served by probation have faltered, requiring an end to the conditional freedom obtained by a defendant at a sentencing that allowed him or her to serve less than a full sentence. . . . [T]he ultimate question [in the probation process is] whether the probationer is still a good risk .... This determination involves the consideration of the goals of probation, including whether the probationer’s behavior is inimical to his own rehabilitation, as well as to the safety of the public.” (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 105, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007).

“This court has observed that to support a judgment of revocation of probation, ‘[o]ur law does not require the state to prove that all conditions alleged were violated; it is sufficient to prove that one was violated.’ State v. Widlak, 74 Conn. App. 364, 370, 812 A.2d 134 (2002), cert. denied, 264 Conn. 902, 823 A.2d 1222 (2003) . . . .” (Citation omitted.) State v. Wells, 112 Conn. App. 147, 156, 962 A.2d 810 (2009). We conclude, as this court did in Widlak, that “[t]he court’s considerations, in imposing sentence, as appear of record, were an appropriate exercise of judicial discretion. The defendant has failed to satisfy his heavy burden to prove any abuse of discretion by the court in imposing sentence, even if the court based such sentence on a violation of a single condition of his probation.” State v. Widlak, supra, 376.

The judgment is affirmed.


author: DiPENTIMA, C. J.

text:
    STATE OF CONNECTICUT v. ROCCO J. TESTA
    (AC 30783)
    DiPentima, C. J., and Bear and Pellegrino, Js.
    Argued May 17
    officially released September 14, 2010

      Rosemarie T. Weber, special public defender, for the appellant (defendant).

      Kathryn M. Boucher, certified legal intern, with whom were Michele C. Lukban, senior assistant state’s attorney, and, on the brief, Scott J. Murphy, state’s attorney, and Ronald Dearstyne, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Rocco J. Testa, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103 (a), criminal mischief in the third degree in violation of General Statutes § 53a-117 (a) (1) (A), failure to bring a motor vehicle to a full stop when signaled in violation of General Statutes § 14-223 (b), evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (b) and reckless driving in violation of General Statutes § 14-222 (a). The defendant subsequently pleaded guilty to being a persistent serious felony offender pursuant to General Statutes § 53a-40 (c). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction and (2) a photographic array was impermissibly suggestive. We disagree and, accordingly, affirm the judgment of conviction.

The jury reasonably could have found the following facts. On June 27, 2007, the victim, Maryann Nypert, returned home from work to her residence located in Plymouth. After opening the garage door, she observed an individual run out of her living room and across the street to a parking lot. She observed this individual remove the rear license plate from a black Jeep with a red stripe, enter the Jeep and drive away. Nypert then went into her residence, observed signs of a forced entry and telephoned the police department.

The police began a search for the Jeep. Although various members of the Plymouth police department briefly located the vehicle, the driver of the Jeep managed to elude them. Richard E. Reney, a Plymouth police officer, was stopped at a three way intersection and observed the Jeep approach him. As the Jeep proceeded through the intersection without stopping at the stop sign, the driver of the Jeep, later identified as the defendant, smiled and waved at Reney. Reney, who observed that the Jeep was missing a license plate, followed the defendant for a time but was forced to cease his pursuit in the interest of public safety. Later that night, Reney saw two other members of the police department preparing a photographic array. Reney immediately pointed to an image of the defendant and identified him as the driver of the Jeep.

In the course of the investigation, the police department collected certain physical evidence that showed that the defendant had driven the Jeep onto a residential property to elude the police officers during their chase. While doing this, he left tire marks on the property and damaged a downspout, backyard fence and walkway. A piece of molding from the Jeep was located near the downspout. On June 28, 2007, members of the police department located the Jeep, and the defendant subsequently was arrested.

The jury found the defendant guilty of burglary in the third degree, criminal mischief in the third degree, failure to bring a motor vehicle to a full stop when signaled, evasion of responsibility in the operation of a motor vehicle and reckless driving. The defendant subsequently pleaded guilty in a part B information to being a persistent serious felony offender. The court sentenced the defendant to twelve years incarceration. This appeal followed.

I

The defendant first claims that the evidence was insufficient to support his conviction. Specifically, he argues that there was insufficient evidence to prove beyond a reasonable doubt that he was the perpetrator of the offenses. We are not persuaded.

At the outset, we set forth the standard of review and controlling legal principles. “In reviewing a sufficiency of the evidence claim, we 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 [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a [trier’s] factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty. . . . Furthermore, [i]n [our] 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.” (Internal quotation marks omitted.) State v. Morelli, 293 Conn. 147, 151-52, 976 A.2d 678 (2009); see also State v. Hall, 120 Conn. App. 191, 196, 991 A.2d 598, cert. denied, 297 Conn. 903, 994 A.2d 1288 (2010).

In the present case, the victim observed an individual run out of her home and get into a Jeep. Police officers received a description of this vehicle and began pursuit near the victim’s home shortly thereafter. At one point during the chase, Reney looked directly at the defendant, who waved at him and drove the Jeep off in the opposite direction. As the Jeep went by him, Reney noticed that it was missing a license plate. Physical evidence, including tire marks, vehicular molding and damage to property showed how the defendant managed to elude the officers by driving behind a residence. Evidence established that the Jeep was registered to the defendant. The defendant correctly asserts that the victim was unable to identify the defendant as the individual she saw running from her home and that the police were unable to recover fingerprints or the stolen items. Nevertheless, the evidence, taken as a whole, supported the jury’s finding that the defendant had committed these criminal acts.

The defendant also argues that Reney’s description of the defendant did not match the photograph of the defendant that he chose from the array that other members of the police department were preparing. At the time of the incident, Reney described the driver of the Jeep as having a “scruffy beard” and “light hair . . . .” The image of the defendant in the photographic array depicted a clean-shaven bald man. Defense counsel cross-examined Reney regarding his description of the defendant. On redirect examination, the prosecutor asked Reney what he meant by “light hair . . . .” Reney responded: “I used to shave my hair just like [the defendant] does, and after a few days, if you didn’t shave it, it would be a short, stubbly haircut just like not shaving your face.”

We cannot conclude that the evidence was insufficient merely on the basis of Reney’s description of the defendant’s appearance. The jury was free to accept his later explanation during redirect examination. See State v. Hall, supra, 120 Conn. App. 198 (“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” [internal quotation marks omitted]). Furthermore, assuming arguendo that Reney’s testimony was inconsistent, it does not follow that the conviction was based on insufficient evidence. “[E]vidence is not insufficient . . . because it is conflicting or inconsistent. ... It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Pickel, 121 Conn. App. 443, 449-50 n.7, 995 A.2d 125 (2010). Mindful of our standard of review, we conclude that the cumulative impact of the evidence supported the defendant’s conviction. Accordingly, we reject the defendant’s claim that the evidence was insufficient.

II

The defendant next claims that the photographic array was impermissibly suggestive. Specifically, he argues that the array from which Reney identified the defendant was unnecessarily suggestive and unreliable so that admission of the identification violated the defendant’s federal constitutional right to due process. We agree with the state that the record is inadequate to review the defendant’s claim.

The defendant concedes that this issue was not raised at trial and therefore seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “Under the familiar principle established in Golding, a defendant can prevail on an unpreserved claim of constitutional error only if each of four conditions is 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.” (Internal quotation marks omitted.) State v. Marcelino S., 118 Conn. App. 589, 594, 984 A.2d 1148 (2009), cert. denied, 295 Conn. 904, 988 A.2d 879 (2010). The state argues that the defendant’s claim fails under the first prong of Golding.

Although the defendant filed a motion to suppress on October 1, 2008, the motion did not address Reney’s identification of the defendant in the photographic array. Accordingly, the court did not conduct a hearing, or make any factual findings or conclusions with respect to the photographic array.

We begin by setting forth the relevant legal principles. “In determining whether identification procedures violate a defendant’s due process rights, [t]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. . . . An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification. . . . The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable. . . . Generally, [t]he exclusion of evidence from the jury is ... a drastic sanction, one that is limited to identification testimony which is manifestly suspect.” (Internal quotation marks omitted.) State v. Bowens, 62 Conn. App. 148, 160, 773 A.2d 977, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001); see also State v. Gant, 231 Conn. 43, 70, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995).

“Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error. . . . Because the issue of the reliability of an identification involves the constitutional rights of an accused . . . we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable.” (Internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 553, 747 A.2d 487 (2000).

As a result of the defendant’s failure to raise the issue, the court never made any factual findings with respect to the photographic array used by Reney to identify the defendant. We conclude that, as a result, the record is inadequate for our review. In reaching this conclusion, we are guided by our Supreme Court’s decision in State v. Gant, supra, 231 Conn. 43. In that case, the defendant challenged a prior in-court identification that had occurred at a probable cause hearing. Id., 69. Initially, the police had shown a witness a six person photographic array, and the witness was unable to make a positive identification, although she was able to select two photographs as images of possible perpetrators. Id. Later, at the probable cause hearing, the witness was “[v]ery close to 100 percent sure about her identification . . . .” (Internal quotation marks omitted.) Id., 70.

The court noted that the defendant in Gant had not challenged the photographic array itself before the trial court. Id., 70-71 n.19. On appeal, he attempted to challenge the array as unnecessarily suggestive because the two photographs the witness initially selected had been “ ‘highlighted.’ ” Id., 71 n.19. Our Supreme Court declined to consider the merits of this claim. “Because there is no record of a challenge to the [photographic] array before the trial court, we, not being a fact finding, but a reviewing court, cannot pass on the matter as it applies to the alleged suggestiveness of the [photographic] array. The defendant has an obligation to provide this court with a record adequate to review his claims.” Id.; see also State v. Morgan, 274 Conn. 790, 793-94 n.5, 877 A.2d 739 (2005) (where defendant failed to object, file motion to suppress, request hearing or make any motion in opposition to out-of-court identification procedure, lack of essential factual findings or legal conclusions resulted in claim being unreviewable due to inadequate record); State v. Hicks, 101 Conn. App. 16, 19-20, 919 A.2d 1052 (2007) (same).

The rationale of these cases applies to the present case. We conclude that the record is inadequate to review the defendant’s claim regarding the photographic array and the subsequent identification by Reney.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury returned a verdict of not guilty with respect to a charge of larceny in the sixth degree in violation of General Statutes § 53a-125b.

       During the trial, Reney also identified the defendant as the driver of the Jeep.

       The prosecutor examined Keney at trial as follows:
      “Q. . . . Did you offer—did you give the dispatcher, your dispatcher, any description of that person [who was driving the Jeep]?
      “A. Yes, sir. I described the person as late forties, early fifties. He appeared to have light hair and a scruffy beard.
      “Q. Okay. Was he wearing a hat at the time?
      “A. No, sir.
      “Q. Any passengers in the vehicle?
      “A. No sir.
      “Q. Now when you say ‘scruffy beard,’ explain to the jury, please, what you mean by that.
      “A. It appeared that he hadn’t shaved in three, four days. He wasn’t clean-shaven.
      “Q. So, it wasn’t—
      “A. It wasn’t a beard, beard, but it just looked like, like I said, somebody that hadn’t shaved in three or four days.”

       To the extent that the defendant also asserts a claim that his rights were violated under the Connecticut constitution, he has failed to provide an independent analysis of this issue. See State v. Banks, 117 Conn. App. 102, 106 n.l, 978 A.2d 519, cert. denied, 294 Conn. 905, 982 A.2d 1081 (2009); see also State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992) (providing tools for analysis of state constitutional claims). We therefore deem the defendant to have abandoned any state constitutional claim.

       Specifically, the motion sought to suppress the evidence seized at the defendant’s residence.


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. BOYD PITTMAN
    (AC 30429)
    Beach, Bear and Mihalakos, Js.
    Argued May 19
    officially released September 14, 2010

      Darcy McGraw, special public defender, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Boyd Pittman, appeals from the judgment of the trial court revoking his probation and sentencing him to thirty-nine months imprisonment. On appeal, the defendant claims that the court improperly denied his motion to dismiss because the state failed to execute the arrest warrant for violation of probation with reasonable diligence. We affirm the judgment of the trial court.

We begin by noting the standard that this court applies in reviewing a trial court’s ruling on a motion to dismiss. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo. . . . Factual findings underlying the court’s decision, however, will not be disturbed unless they are clearly erroneous. . . . The applicable standard of review for the denial of a motion to dismiss, therefore, generally turns on whether the appellant seeks to challenge the legal conclusions of the trial court or its factual determinations.” (Internal quotation marks omitted.) State v. Ruscoe, 119 Conn. App. 834, 838-39, 989 A.2d 667, cert. denied, 296 Conn. 903, 992 A.2d 330 (2010).

The court found the following facts. In 2002, the defendant was convicted of attempt to commit assault in the second degree in violation of General Statutes § 53a-60 and unlawful restraint in the first degree in violation of General Statutes § 53a-95. On April 23,2003, the court, B. Kaplan, J., sentenced the defendant to a total effective term of fifty-one months imprisonment, execution suspended after nine months, followed by three years of probation. After the defendant’s discharge, on January 26, 2005, and again on February 7, 2006, the defendant reviewed the mandated conditions of probation and signed acknowledgments that he understood the terms of his probation. Among the defendant’s conditions of probation relevant to the present appeal, was the requirement that he report regularly to his probation officer, Robert Santoemma, and keep him apprised of his whereabouts.

On June 7, 2006, the defendant failed to report to Santoemma for a scheduled visit. Subsequently, chief probation officer Wilham Anselmo telephoned the defendant’s supervisor at a Kentucky Fried Chicken restaurant in Old Saybrook. His supervisor stated that the defendant had not been to work since May 26, 2006. Santoemma testified that through his attempts to locate the defendant, he spoke with Shawn Dolan, a detective with the Hamden police department, who informed Santoemma that the defendant was a suspect in a stabbing incident that occurred at a local laundromat and that he was facing charges of attempt to commit murder and assault. Dolan also informed him that the Hamden police department could not locate the defendant at his listed address in New Haven and advised Santoemma that he believed that the defendant had fled the state. On June 27, 2006, Santoemma prepared an arrest warrant for the defendant, alleging a violation of the terms of his probation in violation of General Statutes § 53a-32. That warrant was issued on July 11, 2006.

In November, 2006, the defendant was located and apprehended by federal marshals in New York City. While the record is unclear as to when the defendant was transferred to Connecticut, on December 14, 2006, Santoemma learned that the defendant had been taken into custody and was incarcerated at the New Haven Correctional Center. The defendant continuously resided there through May 29, 2008, when the arrest warrant for violation of probation was executed.

On August 27, 2008, the defendant filed a motion to dismiss the violation of probation charge, arguing that his due process rights were violated by the state’s unreasonable delay or lack of due diligence in executing the warrant. On the basis of the aforementioned factual findings, the court, Richards, J., denied the defendant’s motion by oral decision and found that the defendant had violated his probation. The defendant’s probationary status was revoked, and he was sentenced to thirty-nine months incarceration. Thus, because the denial of the motion to dismiss was premised on the court’s factual findings and not on their legal sufficiency, we review under the clearly erroneous standard the defendant’s claim that the motion to dismiss was denied improperly. Additional facts and procedural history will be provided as necessary.

The defendant’s sole claim on appeal is that the state’s delay or lack of due diligence in executing the arrest warrant was unreasonable and, therefore, prejudiced him. We conclude that the court’s denial of the defendant’s motion to dismiss was not improper because the defendant has failed to show that the alleged delay caused him actual prejudice.

“The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation. . . . [T]he issuance of a violator warrant triggers a process which, as a matter of fundamental fairness, must be pursued with reasonable diligence and with reasonable dispatch. What will constitute a reasonable time will, of necessity, vary with the facts of each case. Obviously, a violator who has succeeded in evading the authorities is in no position to complain of a delay. Even in other cases delay will not in and of itself suffice to show prejudice, except in an extreme case, and actual prejudice vel non is the focal point of the inquiry. . . . [S]ome limit as to when an arrest warrant must be executed after its issuance is necessary in order to prevent the disadvantages to an accused attending stale prosecutions ....

“[I]f the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable .... [0]nce a defendant puts forth evidence to suggest that [he] was not elusive, was available and was readily approachable, the burden shifts to the state to prove that the delay in executing the warrant was not unreasonable.” (Citations omitted; internal quotation marks omitted.) State v. Soldi, 92 Conn. App. 849, 854-57, 887 A.2d 436, cert. denied, 277 Conn. 913, 895 A.2d 792 (2006).

The defendant relies on Soldi to argue that the state failed to establish a reasonable basis for its failure to pursue diligently the violation of probation warrant. The court denied the defendant’s claim by oral decision: “The court ... is ready to rule on at least the motion to dismiss aspect of the case. . . . The trial court . . . feels that . . . the probationer’s reliance on Soldi is . . . misplaced and is going to deny the motion to dismiss. . . . Soldi, in the court’s mind, deals with a violation of probation for larceny ... in which the probationer pleaded to a suspended sentence of five [years incarceration and] three [years] probation in September . . . 1994. The defendant failed to make . . . the condition of probation restitution ....

“In August, 2003 . . . the probationer had made no restitution payments, and a warrant was issued. . . . While Soldi and its supporting cases agree that there . . . was no black letter law as to time frame . . . between the drafting of the warrant, signing of the warrant and its execution, there has been some case law, Parham v. Warden, [172 Conn. 126, 374 A.2d 137 (1976)], which suggests that [more than] three years is ... a violation of due process rights. . . . This court agrees that the police should not have an unlimited amount of time to serve a violation of probation warrant. But it feels that the court has to examine each case on a case-by-case basis. And I think [that] if we do that . . . with this case and Soldi, [we] will find that the two are distinguishable]. First, on the issue of time, as I indicated, there was a five year period of delay [in Soldi], And even looking at the facts in the light least favorable to the state, it’s less than two years [in this case]. . . .

“In Soldi, as I’ve indicated, the probation officer and the West Haven police had concrete information of the . . . probationer’s whereabouts. She lived continuously at the same address, [and] they even had her registration. She was at her liberty. Here, other than . . . some hearsay statements and the . . . testimony of the probation officer . . . the whereabouts of the probationer were never known concretely. And he really can’t testify as to what the Hamden police do or did not know. Based on the above, I find it hard . . . or impossible to find that . . . the . . . probationer’s due process rights were violated. I looked at Soldi, I looked at its supporting cases, I’m going to deny the motion to dismiss.”

We agree with the court’s finding that, pursuant to Soldi and its supporting cases, the defendant has not been deprived of due process. For the defendant to succeed on his claim, a showing of “delay will not in and of itself suffice to show prejudice, except in an extreme case, and actual prejudice vel non is the focal point of the inquiry.” (Internal quotation marks omitted.) State v. Soldi, supra, 92 Conn. App. 855. Here, the defendant has failed to put forth evidence to establish that his case qualifies as an extreme case, or that he has suffered actual prejudice. Instead, the defendant focuses solely on the two year time period in arguing that he has been prejudiced by the state’s alleged delay in execution of the warrant. As this court explained in Soldi, “[w]hat will constitute a reasonable time will, of necessity, vary with the facts of each case.” (Internal quotation marks omitted.) Id.

In this case, after the defendant was returned from New York City where he had fled, he was continuously incarcerated throughout the rest of the period of alleged delay, and he remains incarcerated. The defendant pleaded guilty to attempt to commit murder. The incident underlying that plea occurred while he was on probation, a clear violation of the standard condition of probation that he not violate the laws of this state. While we recognize that there are instances in which delay in executing a warrant can prejudice a defendant, this case does not present such a situation. Given the facts of this case, the defendant cannot show and has not shown that he has suffered prejudice. Thus, we cannot conclude that the period of alleged delay in this case was unreasonable or that the state violated the defendant’s right to due process, and, therefore, we conclude that the court properly denied the defendant’s motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       As a result of the stabbing incident, on January 9, 2009, the defendant pleaded guilty to attempt to commit murder in violation of General Statutes § 53a-54a and was sentenced to nine years of incarceration. The defendant has remained continuously in the custody of the state since his apprehension in November, 2006.

       Although the defendant’s failure to request a memorandum of decision or a signed transcript of the trial court’s oral decision normally would result in an inadequate record for our review; see Bayer v. Showmotion, Inc., 292 Conn. 381, 405 n.10, 973 A.2d 1229 (2009); we previously have determined that a record may be adequate when an unsigned transcript contains a sufficiently detailed and concise statement of the trial court’s findings. See Watrous v. Watrous, 108 Conn. App. 813, 831 n.8, 949 A.2d 557 (2008). The defendant has appended to his brief a transcript of the trial court’s decision.

       In State v. Figueroa, 235 Conn. 145, 665 A.2d 63 (1995), our Supreme Court held that “if the defendant puts forward evidence to suggest that the state reasonably could have executed the warrant sooner, the issue of whether the state executed the warrant within a reasonable period of time [is] properly a question of fact for the [fact finder].” (Internal quotation marks omitted.) Id., 178.

       Although the court discussed “less than two years” as the period of delay “in the light least favorable to the state,” given the six month period in which the defendant’s whereabouts were unknown to the state, the delay was actually approximately eighteen months.