author: Heiman, J.

text:
    Fannie White v. Anna Edmonds et al.
    (12936)
    (13049)
    (13050)
    Foti, Landau and Heiman, Js.

      Argued February 16
    decision released June 13, 1995

      Robert M. Fitzgerald, with whom, on the brief, was Arnold L. Beizer, for the appellant-appellee (plaintiff).

      Thomas E. Stevens, for the appellant-appellee (defendant Stamford housing authority).

      Noel R. Newman, with whom was Cheryl A. Caro-lan, for the appellee (named defendant).
   Heiman, J.

In this negligence action, the plaintiff appeals from the judgment of the trial court rendered on a jury verdict in favor of the defendant Anna Edmonds (Appeal No. 12936) and from the granting of the defendant Stamford housing authority’s motion to set aside the verdict against it (Appeal No. 13049). See General Statutes § 52-263. On appeal, the plaintiff claims that the trial court improperly (1) instructed the jury on a landlord’s duty to repair and (2) set aside the verdict against Stamford housing authority.

The jury could have reasonably found the following facts. The plaintiff, an elderly woman, began leasing an apartment from Edmonds in 1970. In about 1984, the plaintiff became eligible for section 8 rental assistance and Stamford housing authority entered into a contract with Edmonds in which it agreed to pay to Edmonds the plaintiffs rental cost for the apartment.

In the early morning hours of July 23, 1987, a fire broke out in the plaintiffs apartment while the plaintiff was sleeping. The plaintiff suffered serious burns as a result of the fire and many of her personal belongings were destroyed.

The plaintiff instituted suit against the defendants Edmonds and Stamford housing authority, alleging that the fire was due to their negligence. In her complaint, the plaintiff alleged that Edmonds, as owner and landlord of the leased premises, breached her duty, inter alia, to inspect the interior of the plaintiffs apartment to ascertain unsafe conditions. The plaintiff further alleged that Stamford housing authority’s negligence stemmed in part from its failure to inspect the premises properly pursuant to the requirements of the section 8 rental assistance program. Both defendants pleaded by way of special defense that the plaintiff was contributorily negligent in overloading the electrical outlets in the apartment through the overuse of extension cords.

On September 29, 1993, the jury returned a verdict for the defendant Edmonds against the plaintiff and for the plaintiff against Stamford housing authority. The jury further found the plaintiff to be comparatively negligent and reduced her award accordingly. Upon motion by Stamford housing authority, the trial court set aside the judgment against it and ordered a new trial on the basis of the finding that the plaintiff had failed to prove that the housing authority was properly notified of her claim. These appeals followed.

I

The plaintiff first claims that the trial court improperly instructed the jury on a landlord’s duty to discover and to repair defects in leased premises. Specifically, the plaintiff asserts that the trial court incorrectly stated that Edmonds had no responsibility to inspect the leased premises and to repair defects that did not exist at the time that the plaintiff first leased the apartment in 1970. We are not persuaded.

The following facts are necessary for the resolution of this issue. Upon completion of the evidence, the trial court instructed the jury as to the law applicable to the case before it. In instructing the jury on the responsibility of Edmonds, the trial court stated that a landlord has no common law duty to inspect leased premises to determine whether a defect has arisen after the landlord has relinquished control. The trial court did, however, inform the jury that such a duty could be created contractually and that the jury would have before it the contract between Edmonds and the Stamford housing authority as well as the lease between Edmonds and the plaintiff. The jury was told that it was to review those documents to determine if such a duty was created.

The plaintiff excepted to the charge on the grounds that the contracts entered into by Edmonds required her to “maintain” the premises and that the jury should have been instructed that it was to determine as the trier of fact whether she breached that duty by failing to inspect the premises for defects. The trial court noted the plaintiff’s exception.

Before addressing the merits of the plaintiff’s claim, we note that the plaintiff did not move to set aside the verdict against her. “In order to have plenary review on appeal, an appellant must file a timely motion to set aside the verdict. . . . [U]nless a motion to set aside a verdict is filed, appellate review is limited to ascertaining whether there has been plain error. . . . Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Citations omitted; internal quotation marks omitted.) Preston v. Phelps Dodge Copper Products Co., 35 Conn. App. 850, 855, 647 A.2d 364 (1994); see also Practice Book § 4185; Lynch v. Granby Holdings, Inc., 230 Conn. 95, 98, 644 A.2d 325 (1994).

We find no misstatement in the trial court’s charge that is so egregious as to rise to the level of plain error. The trial court correctly instructed the jury that a landlord does not have a common law duty to inspect leased premises for defects unless the landlord has contracted to do so; see Pollack v. Gampel, 163 Conn. 462, 468, 313 A.2d 73 (1972); and that it was up to the jury to determine whether the contractual promise to “maintain" the premises was breached by a failure to inspect. As such, the trial court’s instructions did not put the fairness and integrity of the judicial proceedings in doubt. See Preston v. Phelps Dodge Copper Products Co., supra, 35 Conn. App. 855.

II

The plaintiff next claims that the trial court improperly granted Stamford housing authority’s motion to set aside the verdict. We agree with the plaintiff and reverse the judgment of the trial court.

The following facts are necessary for the resolution of this issue. On September 30, 1993, Stamford housing authority timely moved to set aside the judgment against it. See Practice Book § 320. In support of this motion, it alleged that the plaintiff had failed to introduce evidence to prove that she had complied with the notice provisions of General Statutes § 8-67. On November 8, 1993, the trial court granted Stamford housing authority’s motion. In doing so, the trial court reasoned that the notice required under § 8-67 constitutes a condition subsequent to bringing an action that need not be anticipated and pleaded by the plaintiff. The trial court found, however, that having affirmatively pleaded that those notice requirements had been met, the plaintiff then bore the burden of proof on that issue. In the absence of any evidence of notice, the trial court concluded that the plaintiff had failed to meet her burden and set aside the judgment in her favor.

“Our standard of review, where the trial court’s action on a motion to set aside a verdict is challenged, is whether the trial court clearly abused its discretion. . . . Where, as in this case, the trial court disagrees with the verdict of the jury and there is an appeal ... we review the action of the judge in setting the verdict aside rather than that of the jury in rendering it. . . . The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion.” (Citations omitted; internal quotation marks omitted.) McKee v. Erikson, 37 Conn. App. 146, 148, 654 A.2d 1263 (1995); see also Palomba v. Gray, 208 Conn. 21, 25, 543 A.2d 1331 (1988).

We agree with the plaintiff that the trial court abused its discretion in granting Stamford housing authority’s motion to set aside the verdict against it because compliance with the notice provisions of § 8-67 need not be proven by the plaintiff, even if pleaded, because such compliance is not an essential element of her cause of action against the defendant.

In Manning v. Michael, 188 Conn. 607, 615-16, 453 A.2d 1157 (1982), our Supreme Court held that a plaintiff need prove only those allegations in her complaint that are material to her cause of action. The fact that a plaintiff has pleaded facts in anticipation of negating a special defense does not shift the burden of proof to the plaintiff on that issue. Id. The burden of proving such facts rests on the plaintiff only if they go to the essential question of liability rather than to the issue of damages or recovery. Id.

Here, we conclude that compliance with the notice provisions of § 8-67 is not essential to a determination of liability, but concerns only whether the plaintiff has taken the proper steps to warrant recovery. Therefore, the plaintiff does not bear the burden of proving compliance with such provisions even though compliance was affirmatively pleaded in hopes of negating a possible special defense. Id., 615.

In arriving at this result, we are mindful of the well established principles of statutory construction. “Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) Gonsalves v. West Haven, 232 Conn. 17, 21, 653 A.2d 156 (1995).

An examination of the language utilized by the legislature in enacting § 8-67 discloses no requirement that compliance with its' notice provisions be a condition precedent to maintaining a cause of action against a housing authority. Section 8-67 provides only that “[a]ny person injured . . . within boundaries of property owned or controlled by an authority, for which injury such authority is or may be liable, may bring an action within two years after the cause of action therefor arose to recover damages from such authority, provided written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the chairman or the secretary of the authority within six months after the cause of action therefor arose.” The time limitations and notice provisions act to limit ability to recover, as do typical statutes of limitations, but do not become essential elements of a plaintiff’s cause of action against a housing authority for negligence. Compare General Statutes § 31-349 (b) (as condition precedent to liability, employer shall comply with enumerated notice provisions).

Our conclusion finds further support in the legislative history of § 8-67 as well as the “common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Gonsalves v. West Haven, supra, 232 Conn. 21. Section 8-67 was enacted as No. 159 of the 1955 Public Acts, entitled “An Act Concerning Filing of Notice on Claims to Local Housing Authorities Receiving State or Federal Aid.” The proponents of the bill in both the house and senate stated that the purpose of the bill was to require that a housing authority be promptly notified of claims against it and to provide housing authorities with the same rights to notice as municipalities themselves. See 6 H.R. Proc., Pt. 3, 1955 Sess., pp..1245-46, remarks of Representative Benjamin M. Schlossbach; 6 S. Proc., Pt. 4, 1955 Sess., pp. 1044-45, remarks of Senator Arthur H. Healey and Senator Elmer S. Watson. The statute was not enacted to create a new cause of action, an element of which is compliance with the notice provisions set forth.

In addition, our case law has held notice provisions to be a condition precedent to a cause of action when the statute containing those provisions created a new cause of action previously unrecognized by the common law. Warkentin v. Burns, 223 Conn. 14, 17-18, 610 A.2d 1287 (1992); Tedesco v. Dept. of Transportation, 36 Conn. App. 211, 214, 650 A.2d 579 (1994). Such is not the case here. Section 8-67 did not create liability where none existed; rather, it provides for procedural limitations on the ability to recover on a cause of action already available. As such it is a condition subsequent to recovery that may be specially pleaded by a defendant to bar recovery.

Because the notice provisions of § 8-67 act as limitations on recovery and not on liability, the fact that the plaintiff pleaded compliance did not shift the burden of proof on that issue to her. See Manning v. Michael, supra, 188 Conn. 615-16. The plaintiffs failure to introduce evidence to prove compliance did not, therefore, mandate a verdict for the defendant and the trial court abused its discretion in setting aside the verdict of the jury in the plaintiffs favor. See McKee v. Erikson, supra, 37 Conn. App. 148.

On the plaintiffs appeals, the judgment is reversed only as to the granting of Stamford housing authority’s motion to set aside the verdict, and the case is remanded with direction to reinstate the jury’s verdict against the defendant Stamford housing authority and to render judgment in accordance with that verdict; the defendant Stamford housing authority’s appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 52-263 provides in pertinent part that “if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict . . . .”

       The defendant Stamford housing authority appealed (Appeal No. 13050) from the trial court’s order of a new trial issued after the court granted the housing authority’s motion to set aside the verdict and denied its request for a verdict in its favor. Stamford Housing Authority was not aggrieved by the granting of its motion to set aside the verdict and is, therefore, not permitted to appeal under General Statutes § 52-263. A denial of a motion for a directed verdict or for judgment notwithstanding the verdict that results, not in a final judgment on the underlying verdict, but, as here, in an order for a new trial is not final for appeal purposes. See Robbins v. Van Gilder, 225 Conn. 238, 251, 622 A.2d 555 (1993). At oral argument, the housing authority conceded that a trial court judgment ordering a new trial is not final and appealable. Stamford housing authority’s appeal is dismissed for lack of a final judgment.

       The section 8 rental assistance program is a state sponsored and federally funded program that provides financial assistance to eligible tenants to enable them to afford “decent, safe and sanitary rental accommodations . . . .” Housing Authority v. Papandrea, 222 Conn. 414, 417, 610 A.2d 637 (1992); see also 42 U.S.C. § 1437f (a); General Statutes § 8-38 et seq.

       Stamford housing authority is a public corporation created to administer the section 8 rental assistance program for the city of Stamford. See General Statutes § 8-40.

       The trial court’s instructions on Edmonds’ duty regarding the leased premises were as follows: “The plaintiff’s counsel has indicated that [Edmonds] had the duty not only to maintain the apartment in a safe, sanitary and proper condition, decent and safe and sanitary, but had a duty to inspect the apartment. I think [counsel for the plaintiff] told you that the contract, at least between Anna Edmonds and [Stamford housing authority] provided for this. Maybe I missed it. I don’t know, but there is nothing in the lease that says that . . . the defendant, Anna Edmonds, has the duty to inspect the premises. There is a provision there that says that she is to maintain the dwelling unit, equipment and appliances so as to provide decent, safe and sanitary housing in accordance with certain housing quality standards set forth in the federal regulations which you heard about here. It doesn’t say anything about inspecting, inspection, but you’ll have the lease agreement there. You look at it to your heart’s content. I couldn’t find it.
      * ** *
      “[U]nder the lease agreement, [Edmonds] did have to provide decent, safe and sanitary housing in accordance with the housing quality standards set forth in [C.F.R. § 882.109] .... I can’t tell you that means she has a duty to inspect. I can’t find anything in our law that requires that she inspect. She has the duty to maintain the unit to provide decent, safe and sanitary housing.
      “Now, how is that duty spelled out? The plaintiff is a tenant under a lease. She has exclusive possession of the premises that she has leased. Ordinarily, the owner of a building owes no duty to keep and repair premises in which he leases to another, he or she. And the landlord turns over control of the premises to the tenant and normally divests himself or herself of liability for actions that occur on the premises. The tenant takes the demised premises as she finds them. The landlord is not liable for defective conditions within the demised area. The landlord may be liable for defective conditions existing at the beginning of the tenancy if she was chargeable with knowledge of them and they were not discoverable on a reasonable inspection by the tenant.
      “Well, in considering this question, there [are] certain things that you ought to consider along with it. A landlord who turns over demised premises, premises that are leased to the exclusive possession of a tenant, ordinarily is not required to go in there and inspect and see if anything is wrong. If you can spell out some kind of agreement to repair, and maybe you can in this situation, that obligation only arises when you are told that, ‘Hey, this is wrong. My faucet drips, this outlet doesn’t work, and I’m not getting enough heat.’ Whatever it is, you have to be told whatever is wrong. You don’t have the obligation to go in there, I’ll give you an absurd illustration, everyday and say, ‘Hey, anything wrong here today? What can I do for you?’ That’s not a landlord’s obligation when the landlord has given up control and leases certain premises which then are in the exclusive possession of the tenant.”

       General Statutes § 8-67 provides: “Any person injured in person or property within boundaries of property owned or controlled by an authority, for which injury such authority is or may be liable, may bring an action within two years after the cause of action therefor arose to recover damages from such authority, provided written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the chairman or the secretary of the authority within six months after the cause of action therefor arose.”


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    Herbert V. Larson et al. v. Sherman S. Jacobson et al.
    (12775)
    Heiman, Schaller and Hennessy, Js.
    Argued March 23
    decision released June 13, 1995

      James W. Shea, with whom, on the brief, was John B. Oestreicher, for the appellants-appellees (plaintiffs).

      Geoffrey A. Heeht, with whom, on the brief, was Milton I. Caplan, for the appellees-appellants (defendants).
   Schaller, J.

This is an appeal and cross appeal from the judgment of the trial court in this action for recovery of a credit for prepayment of an obligation owed by the plaintiffs to the defendants. On appeal, the plaintiffs, Herbert V. Larson and Bonnie Larson, claim that the trial court improperly concluded that (1) the term prepayment is ambiguous and (2) the transactions in 1982 and 1983 were not prepayments. On their cross appeal, the defendants claim that the trial court improperly concluded that the plaintiffs were entitled to a credit when the note was fully paid and satisfied in 1985. We affirm the judgment of the trial court.

The trial court found the following facts. In October, 1978, the plaintiffs bought seven properties in New Haven from the defendants for the sum of $425,690.25. The plaintiffs made no down payment; the entire purchase price was financed by the defendants by way of a note and mortgage. The note provided that if the makers prepaid any portion of the note, they were to receive an additional credit against the outstanding principal of the note equal to 5 percent of such prepayment. The plaintiffs executed a mortgage deed in favor of the defendants, and the deed incorporated the 5 percent clause from the note. The agreement between the parties, by way of a “mortgage insert,” provided for a mechanism for releasing individual properties from the blanket mortgage.

In 1982, the plaintiffs sought to sell one of the properties that were subject to the mortgage. The defendants released the mortgage and reduced the payment schedule to reflect the release pursuant to the mortgage insert, which required the defendants to release the properties upon payment according to an agreed formula and to adjust the principal balances accordingly. On November 24,1982, the plaintiffs made a payment of principal in the amount of $83,828.39. At the time of the sale, the plaintiffs did not assert that they were entitled to a credit for prepayment.

In 1983, the plaintiffs sold two more of the mortgaged properties and the principal balance was again reduced pursuant to the agreed payment formula. On March 31, 1983, the plaintiffs made a payment in the amount of $285,479.12. The plaintiffs did not assert a right to a credit for prepayment at this time either. Both modifications of the mortgage document provided that the terms of the original “mortgage and promissory note secured thereby shall continue in full force and effect in all other respects . . . .”

In 1984, the plaintiffs filed for protection under chapter 13 of the United States Bankruptcy Code, 11 U.S.C. § 1301 et seq., and the petition was later converted involuntarily to a chapter 7 bankruptcy. In July, 1985, the trustee in bankruptcy paid the entire remaining balance due the defendants. No credit was given to the plaintiffs at that time.

On May 9,1991, the plaintiffs commenced this action against the defendants, seeking credit for the prepayments. The trial court ruled that the term prepayment was ambiguous and that the advance payments in 1982 and 1983 were not prepayments, but that the paying off of the entire balance in July, 1985, was a prepayment and entitled the plaintiffs to a 5 percent credit under the terms of the agreement. This appeal and cross appeal followed.

I

The plaintiffs claim that the trial court improperly concluded that the term prepayment as used in the note was ambiguous and that the court improperly determined that the transactions in 1982 and 1983 were not prepayments. We do not agree.

The interpretation of a contract term that is not so clear as to render its interpretation a matter of law is a question of fact, subject to the “clearly erroneous” standard of review. Practice Book § 4061; Bowman v. 1477 Central Apartments, Inc., 203 Conn. 246, 256-57, 524 A.2d 610 (1987). “We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Internal quotation marks omitted.) Lukas v. New Haven, 184 Conn. 205, 208, 439 A.2d 949 (1981); Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 88, 612 A.2d 1130 (1992); Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988). “ ‘A finding is “clearly erroneous” 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.’ ” Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985).

The trial court found that the term prepayment was ambiguous because it was not defined in the note or mortgage deed. The court interpreted the term prepayment on the bases of the note and the intent of the parties. “When an ambiguous term is at issue, the trial court can examine the extrinsic evidence to resolve the question of the parties’ intent. Kronholm v. Kronholm, 16 Conn. App. 124, 131, 547 A.2d 61 (1988).” Ballato v. Board of Education, 33 Conn. App. 78, 88, 633 A.2d 323 (1993), cert. denied, 228 Conn. 923, 638 A.2d 37 (1994).

The trial court’s interpretation of the term prepayment was based on two factors. The first factor was that the intent behind the prepayment provision was to encourage the plaintiffs to build up equity in the property. The trial court found that to be so because there was no down payment on the property and, thus, no initial equity. The second factor was that to be a prepayment a payment must not be based on or provided for by any other term of the note and mortgage deed. If some other part of the note or mortgage provided for the payment, it would not be considered a prepayment.

The trial court’s interpretation of the prepayment provision of the note and mortgage was entirely reasonable. “Interpretation [of a contract] requires a determination of the intention of the parties as manifested by their words and conduct. ‘Intention is an inference of fact, and the [trial court’s] conclusion is not reviewable unless it was one which the trier could not reasonably make.’ Hydro-Hercules Corporation v. Gary Excavating, Inc., 166 Conn. 647, 653, 353 A.2d 714 (1974).”Heyman v. CBS, Inc., 178 Conn. 215, 227-28, 423 A.2d 887 (1979). The court based its interpretation of prepayment on the language of the note and mortgage, the intent of the parties, and the parties’ conduct under the note and mortgage.

“In addressing a challenge to the facts found by the trial [court] . . . this court’s function is to determine whether those findings were clearly erroneous. Practice Book § 4061. Because the resolution of conflicting factual claims falls within the province of the trial court, we can reverse the judgment only if the findings are clearly erroneous. Nor’easier Group, Inc. v. Cobssale Concrete, Inc., [supra, 207 Conn. 473]. We cannot retry the facts or pass on the credibility of the witnesses. Id.” Plikus v. Plikus, 26 Conn. App. 174, 177, 599 A.2d 392 (1991).

The record in the present case supports the trial court’s finding that the term prepayment was ambiguous. The record also supports the court’s interpretation of that term under the provisions of the note and mortgage. At trial, the named defendant testified to the purpose of the prepayment provision. The court found that testimony to be the most credible. “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.” Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987). We conclude, on the basis of this testimony, that the trial court’s interpretation of the term prepayment was not clearly erroneous.

The plaintiffs’ first two claims for credit were rejected because, as found by the court, they were the subject of a separate arrangement. “The court [found] that the transactions in 1982 and 1983 that resulted in reductions of the principal were not prepayments but were the subject of a separate arrangement, stated in Exhibit A, Mortgage Insert, concerning sales of mortgaged properties, with which the defendants complied and for which the plaintiffs received all the specified consideration.” Although the court did not expressly premise its finding on the equity factor, its denial of these claims is supportable also under that factor, as well. The payments in this case would not help to build up equity in the properties because the properties were being sold and released from the mortgage.

The trial court’s decision is supported by its interpretation of the prepayment provision in the note and mortgage. Because the court’s findings as to the interpretation of the term prepayment were not clearly erroneous, its decision based on that finding to reject the plaintiffs’ first two claims for credit is also not clearly erroneous.

II

The defendants, on cross appeal, claim that the trial court improperly concluded that the plaintiffs were entitled to a credit when the note was fully paid and satisfied in 1985. We disagree.

The trial court granted the plaintiffs’ claim for credit on the ground that that transaction, “unlike the two prior transactions,” was not made subject to some other independent provision of the agreement between the parties. In other words, when the plaintiffs paid off the balance of the mortgage, they did not do so under a separate arrangement between the parties. The prepayment provision, therefore, was controlling. Although the first factor — building up equity in the property-does not support the finding, the second factor does clearly support the court’s decision, and this is a sufficient basis for that decision.

The court found that the second modification of the mortgage in accord with the other provisions of the original note and mortgage that remained in full force and effect “did not remove eligibility for a prepayment credit if the debtor ever missed a payment, and the court construe[d] the agreement, in accordance with the testimony of [the named defendant], to be that any payment that put the plaintiffs ahead of the agreed payment schedule was eligible for a prepayment credit, other than payments made by operation of some other obligation under the same contract.” The court’s conclusion that this payment qualified as a prepayment under the note and mortgage deed was consistent with its interpretation of the term prepayment and its reasoning in denying the plaintiffs’ first two claims for credit.

Because the court’s findings as to the interpretation of the term prepayment were not clearly erroneous, its conclusion based on those findings that the plaintiffs were due a credit for the prepayment in 1985, was also not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The note provided that “[i]f the makers shall prepay any portion of this Note in whole or in part during the term hereof, the makers shall at the time of such prepayment receive an additional credit against the then outstanding principal of this note in an amount equal to five percent (5%) of the amount of such prepayment of principal.”

       The mortgage insert provided in part: “The mortgagors herein reserve the right to release all or any part of the properties hereinabove described from the operation of this mortgage upon payment to the mortgagees of a sum of money to be determined in accordance with the following formula. ...”


author: Per Curiam.

text:
    State of Connecticut v. Patrick Henry Shannon
    (13688)
    O’Connell, IIeiman and Hennessy, Js.
    Argued April 26
    decision released June 13, 1995

      Dennis F. O’Toole, assistant public defender, for the appellant (defendant).

      Lisa Her skowitz, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Alfred Baldwin, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from two judgments of conviction, after a jury trial, each of assault in the third degree in violation of General Statutes § 53a-61 (a) (1). Both counts allege assaults on the same victim, the first on June 3, 1993, and the second on August 25, 1993. The defendant claims that the trial court abused its discretion in consolidating the two cases for trial.

The two assault charges involved discrete, easily distinguishable scenarios. The crimes did not involve brutal or shocking conduct. The trial was of short duration; the evidence was not complex and was presented in an orderly manner. The trial court thoroughly instructed the jury that it must consider the charges separately. State v. Jennings, 216 Conn. 647, 656-60, 583 A.2d 915 (1990); State v. Jones, 37 Conn. App. 437, 445-48, 656 A.2d 696 (1995). The trial court did not abuse its discretion in joining the two cases for trial.

The judgments are affirmed.


author: Spear, J.

text:
    Joyce Stewart v. Middlesex Insurance Company
    (12968)
    Dupont, C. J., and Spear and Hennessy, Js.
    Argued February 9
    decision released June 13, 1995

      Robert G. Golger, for the appellant (plaintiff).

      Alan S. Tobin, for the appellee (defendant).
   Spear, J.

The plaintiff appeals from a judgment vacating an arbitrator’s award in her favor. She claims that the trial court improperly found that she was not an insured under the underinsured motorist provisions of her father’s automobile policy. We affirm the judgment of the trial court.

The following facts are undisputed. In 1984, the plaintiff purchased a 1982 Pontiac Firebird automobile that was subsequently damaged in an accident in the summer of 1986. Although the registration remained in force, the plaintiff did not drive the car after the 1986 accident. The plaintiff’s insurance coverage on the Fire-bird lapsed in February, 1987. At all times relevant to this appeal, the plaintiff was a resident of her father’s household.

On June 29, 1987, the plaintiff was a passenger in an automobile that was owned and operated by Daniel Scinto. While the automobile was in operation, the passenger door opened and the plaintiff fell out of the car, sustaining serious injuries. Scinto’s insurance carrier paid the plaintiff the policy limit of $20,000 for her injuries.

The plaintiff sought underinsured motorist benefits pursuant to her father’s policy with the defendant insurer. The policy provides in its definition section: “You, Your; means the person named on the declarations page .... It also means a member of the family who is a resident of the household and who doesn't own a car . . . (Emphasis added.) The underinsured motorist provision states that the insurer will pay damages “because of bodily injury you suffer ... as a result of having been struck by an uninsured motor vehicle.”

After a full hearing, a panel of arbitrators found that the plaintiff was entitled to coverage under her father’s underinsured motorist policy. The panel, with one arbitrator dissenting, awarded the plaintiff the sum of $225,000.

The defendant filed a motion in the Superior Court to vacate the award, and the plaintiff filed a motion to confirm. The trial court granted the motion to vacate holding: “The policy excludes from coverage a resident relative who owns a car which is licensed for use on public roads. Consequently, the claimant is not entitled to [underjinsured motorist benefits under the parents’ policy. See Middlesex Ins. Co. v. Quinn, 225 Conn. 257, 622 A.2d 572 (1993).” This appeal ensued.

In Middlesex Ins. Co. v. Quinn, supra, 225 Conn. 257, our Supreme Court held that a clause in an underin-sured motorist policy that defined an insured as a resident family member who does not own a car was not violative of public policy. The clause at issue here is identical to the clause that the Supreme Court considered in Middlesex Ins. Co. v. Quinn, supra, 257.

The plaintiff does not contest the holding oí Middle-sex, but rather asserts that it does not control because it is distinguishable. She asserts that in Middlesex the claimant was injured while operating a car that was owned and insured by him, whereas in this case the plaintiff, who had no automobile insurance on her inoperable vehicle, was injured while a passenger in a car whose owner was underinsured. She also asserts that the fear of the Middlesex court that allowing the claim would have meant an unwarranted expansion of stacking is not a factor here where the plaintiff has no coverage to stack, and that ownership of an inoperable vehicle is not the type of ownership that the court in Middlesex considered in holding that coverage was precluded under the policy in question.

The plaintiff’s first two arguments attempting to distinguish Middlesex are misplaced because the narrow issue posed in this appeal is simply whether she is an insured person under the policy. If she is not, that answer is dispositive of those arguments. Middlesex settled the question of whether an insurer may properly define insured to preclude a resident family member who owns a car. “The . . . policy provides coverage when the claimant is (1) a family member (2) who is a household resident and (3) who does not own a car. At the time of the collision, the [claimant] was a family member and a household resident, but, because he owned a car, coverage did not extend to him.” Mid-dlesex Ins. Co. v. Quinn, 27 Conn. App. 573, 580, 609 A.2d 1008 (1992), aff’d, 225 Conn. 257, 622 A.2d 572 (1993). That is precisely the situation in this case. The plaintiff cannot prevail because by policy definition she is not an insured person. Therefore, the factual distinctions that she draws are irrelevant.

The plaintiff’s last claim asks us to interpret the word “car” in the insurance policy to mean “operable car.” Principles of contract interpretation prohibit us from doing so.

“[T]he rule in Connecticut is that an insurance policy, like any other contract, must be given a reasonable interpretation and the words used are to be given their common, ordinary and customary meaning. . . . The general rules of contract construction, therefore, apply when construing the terms of an insurance policy.” (Citations omitted; internal quotation marks omitted.) Aetna Casualty & Surety Co. v. CNA Ins. Co., 221 Conn. 779, 786, 606 A.2d 990 (1992); see also Gottes-man v. Aetna Ins. Co., 177 Conn. 631, 634, 418 A.2d 944 (1979). “When the intention conveyed by the terms of an agreement is clear and unambiguous, there is no room for construction. ... [A] court cannot import into [an] agreement a different provision nor can the construction of the agreement be changed to vary the express limitations of its terms.” (Citation omitted; internal quotation marks omitted.) Levine v. Massey, 232 Conn. 272, 278, 654 A.2d 737 (1995); see also Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 159, 595 A.2d 872 (1991).

To interpret the contract as the plaintiff urges would change its clear and unambiguous language. Nothing in the language of the contract suggests that whether a resident relative is an insured turns on whether a car owned by that relative was operable at the time of the incident that gave rise to the claim. We conclude that the word car in the uninsured motorist clause of the policy has its common, ordinary meaning unfettered by the notion of operability asserted by the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Dupont, C. J.

text:
    Federal Deposit Insurance Corporation, Receiver of New Connecticut Bank and Trust Company, N.A. v. Joseph G. Voll et al.
    (13863)
    Dupont, C. J., and Foti and Heiman, Js.

      Argued April 27
    decision released June 13, 1995

      Leo Gold, for the appellant (defendant Zoltán Guttman).

      Thomas R. Legenhausen, for the appellee (plaintiff).
   Dupont, C. J.

This appeal is taken by Zoltán Gutt-man, one of the defendants in a foreclosure action, from a deficiency judgment rendered against him.

Guttman raises two claims. First, he claims that General Statutes § 49-14, Connecticut’s deficiency judgment statute, violates his state constitutional right to trial by jury by limiting the determination of damages to a court hearing. Second, he claims that the trial court improperly concluded that the plaintiff mortgagee acted reasonably despite an allegedly considerable delay in proceeding to judgment. We affirm the decision of the trial court.

Certain facts are relevant to this appeal. In 1987, the defendants executed a mortgage deed on property they owned to Connecticut Bank and Trust Company (CBT). In January, 1989, Guttman transferred his interest in the property to Voll. In March, 1990, the defendants defaulted on their obligations to make payment on the debt evidenced by a promissory note and secured by the mortgaged property, and, in the fall of 1990, CBT commenced a foreclosure action. In January, 1991, CBT was declared insolvent. The Federal Deposit Insurance Corporation (FDIC) was appointed receiver of CBT, and conveyed CBT’s assets to a bridge bank, New Connecticut Bank and Trust Company, N.A. (New CBT). By motion filed in April, 1991, New CBT was substituted as the plaintiff in the foreclosure action against the defendants. In the same motion, the plaintiff demanded that the defendants disclose a defense. The defendants did not disclose any defense. In July, 1991, FDIC was appointed as receiver of New CBT. The FDIC was substituted as plaintiff in the foreclosure action by motion dated April, 1992.

Also in July, 1991, Voll filed for bankruptcy. That same month, the attorney for Guttman withdrew his appearance. The stay with respect to the bankruptcy proceedings was lifted in February, 1992. Shortly thereafter, new counsel for Guttman entered an appearance. In April, 1992, the FDIC filed a motion for default for failure to disclose a defense against the defendants, which was granted.

On June 26, 1992, the trial court rendered a judgment of dismissal for dormancy pursuant to Practice Book § 251. The dismissal was subsequently opened and the case returned to the docket pursuant to the FDIC’s motion dated August 7, 1992.

In October, 1993, the FDIC moved for a judgment of strict foreclosure. The defendants did not oppose the motion for judgment, assert the equitable defense of laches, or object to the inclusion of interest in the judgment debt.

On November 2, 1993, the court rendered a judgment of strict foreclosure. The court found a debt of $506,626.07, and awarded attorney’s fees of $3250, and title search fees of $150, for a total debt of $513,776.07. Law days were set to commence on January 25,1994. The defendants did not seek to reargue the motion for judgment or to open the judgment, and did not appeal from the judgment of strict foreclosure. The defendants did not redeem on their law days, and title to the mortgaged property vested in the FDIC on January 29, 1994.

On January 31, 1994, the FDIC moved for a deficiency judgment pursuant to General Statutes § 49-14. The defendants did not claim that motion to the jury trial list, or tender a jury fee to the clerk of the court. Guttman did file an objection to the plaintiff’s motion, however, arguing that (1) the Connecticut deficiency judgment statute deprived him of his constitutional right to a jury trial, (2) the FDIC had unreasonably delayed proceeding to a judgment and, therefore, a deficiency judgment would not be equitable, (3) the remedy of a deficiency judgment should not be available against him because he had transferred his interest in the property to Voll before the start of the foreclosure action, and (4) the FDIC had waived its right to proceed to a deficiency judgment against him.

The court found that deficiency procedures in Connecticut were not unconstitutional and did not violate Guttman’s right to a jury trial because a deficiency hearing is part of an equitable foreclosure action. The court also rejected Guttman’s defense of unreasonable delay by the FDIC, specifically finding that the FDIC had not caused any unreasonable or inexcusable delay, and that, even if it had, Guttman’s claim of undue delay had not been timely asserted. The court also found that § 49-14 does not by its terms limit the authority to enter a deficiency judgment against only the obligors who were owners of the property at the time of the foreclosure proceedings and that Guttman’s previous failure to contest the debt during the foreclosure proceedings barred him from claiming that the FDIC had no right to obtain a deficiency judgment against him. Finally, the court found that there was no evidence that the FDIC had waived its right to a deficiency judgment against Guttman.

The court found the total debt as of the day title vested in the FDIC to be $613,423.59, which included principal, interest, attorney’s fees, appraisal fees, and title search fees that had been awarded at the time of the judgment of strict foreclosure, plus additional interest, attorney’s fees, costs and real estate taxes encumbering the property. The court also found the value of the property on the date that title vested in the FDIC to be $230,000, leaving a deficiency of $383,423.59. A deficiency judgment against Guttman in that amount was rendered.

I

Constitutional Issue

Guttman attacks the constitutionality of § 49-14 on the ground that it deprives him of his right to a jury trial under article first, § 19, of the Connecticut constitution. Before we begin our analysis, we note that “[a] party who challenges the constitutionality of a statute ‘bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute’s constitutionality.’ ” State v. Merdinger, 37 Conn. App. 379, 382, 655 A.2d 1167 (1995). In addition to showing that § 49-14 is unconstitutional beyond a reasonable doubt, Guttman must show that ‘‘its effect or impact on him adversely affects a constitutionally protected right which he has.” Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 569, 409 A.2d 1020 (1979). Finally, “[w]hile the courts may declare a statute to be unconstitutional, our power to do this should ‘be exercised with caution, and in no doubtful case.’ ” Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, 229 Conn. 312, 316, 640 A.2d 101 (1994).

“[T]he area of fundamental civil liberties . . . includes all protections of the declaration of rights contained in article first of the Connecticut constitution . . . .” Horton v. Meskill, 172 Conn. 615, 641, 376 A.2d 359 (1977). Article first, § 19, of the Connecticut constitution provides in relevant part that “[t]he right of trial by jury shall remain inviolate . . . .” This particular clause has been in existence since 1818, the year Connecticut adopted its constitution. See W. Horton, The Connecticut State Constitution, A Reference Guide (1993), p. 75. Article first, § 19, has been held to provide two basic rights. First, it provides for the right to a trial by jury for those cases that were triable, or that are similar to cases that were triable, by jury in 1818. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 49-53, 578 A.2d 1054 (1990). Second, it protects the jury trial from procedural changes that in fact change the substance of the institution. Spitzer v. Haims & Co., 217 Conn. 532, 539-41, 587 A.2d 105 (1991). “Because at common law only legal claims were tried to a jury, the state constitutional right to a trial by jury does not extend to equitable claims.” Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148,153, 645 A.2d 505 (1994).

“[I]n determining whether a party has a right to a trial by jury under the state constitution . . . we‘must ascertain whether the action being tried . . . has roots in the common law, and if so, whether the remedy involved was one in law or equity. If the action existed at common law and involved a legal remedy, the right to a jury trial exists and the legislature may not curtail that right either directly or indirectly.’ ” Id., 153-54. “Consequently, statutory actions established since the adoption of the constitution of 1818 ordinarily fall outside the scope of the provision, unless, perhaps, the new remedy constitutes a modification of existing remedies, so vital as to unduly limit and violate the right of trial by jury.” (Internal quotation marks omitted.) Id., 154. “ ‘The test is whether the issue raised in the action is substantially of the same nature or is such an issue as prior to 1818 would have been triable to a jury.’ ” Skinner v. Angliker, 211 Conn. 370, 375, 559 A.2d 701 (1989). This testis “flexible and may require a jury in a new cause of action, not in existence in [1818], if it involves rights and remedies of the sort traditionally enforced in an action at law or if its nearest historical analogue is an action at common law.” Id., 377.

Guttman concedes that a deficiency judgment hearing is procedurally part of a foreclosure action, and that a foreclosure action is an equitable proceeding and is not triable to a jury. He argues, however, that a deficiency proceeding is analogous to a suit on a note, which was triable by jury in 1818, and, because the legislature has in § 49-14 tied the deficiency judgment action to an existing foreclosure case, his right to have the deficiency proceeding tried to a jury has been abrogated. We disagree.

Connecticut enacted its first deficiency judgment statute in 1833. Farmers & Mechanics Savings Bank v. Durham Realty, Inc., 34 Conn. App. 204, 207, 640 A.2d 1017 (1994). Prior to 1818, therefore, there was no such proceeding. “ ‘At common law, a mortgagee was required to elect between a foreclosure action or an action on the underlying debt.’ ” New England Savings Bank v. Lopez, 227 Conn. 270, 278 n.10, 630 A.2d 1010 (1993). If the mortgagee recovered successfully on the debt, “the mortgage [was] released. If [the mortgagee chose] to take the land and to make it his own absolutely, whereby the mortgagor [was] totally divested of his equity of redemption, the debt [was] thereby paid and discharged: And if it eventually prove[d] insufficient to raise the sum due, it [was] the mortgagee’s own fault, and at his risk.” M’Ewen v. Welles, 1 Root (Conn.) 202, 203 (1790).

It was, therefore, precisely because the entry of judgment of foreclosure precluded any further common law proceedings on the note that the legislature in 1833 created the remedy of the deficiency judgment as the only available means of satisfying a mortgage debt when the security was inadequate to make the plaintiff whole. New England Savings Bank v. Lopez, supra, 227 Conn. 278 n.10, citing D. Caron, Connecticut Foreclosures (2d Ed. 1989) § 9.05A, p. 158. In other words, the 1833 statute lifted the bar at common law on any further action on the mortgage debt after foreclosure. Federal Deposit Ins. Corp. v. Hillcrest Associates, 233 Conn. 153, 164-65, 659 A.2d 138 (1995); Equitable Life Assurance Society v. Slade, 122 Conn. 451, 454, 190 A. 616 (1937). Guttman’s argument, therefore, that an action on a promissory note is the historical analogue of a deficiency proceeding is incorrect.

The common law rule requiring a creditor to choose between an action at law on the note and an action at equity by foreclosing remains in effect. “It is well established that a mortgagee has two separate and distinct causes of action against a defaulting mortgagor. A mortgagee may pursue an action at law for the amount due on the promissory note, or it may pursue its remedy in equity and foreclose on the mortgage. . . . The mortgagee may also pursue both of these remedies simultaneously in one consolidated foreclosure suit. . . . The only restriction on the mortgagee’s election of remedies is contained in General Statutes § 49-1, which provides that ‘[t]he foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure . . . .’General Statutes § 49-14 furnishes an exception to § 49-1 by providing that, ‘[a]t any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment.’ . . . Thus, a mortgagee who elects to pursue his right of foreclosure of a mortgage and his right to obtain payment of a promissory note may also, in the same action, seek a deficiency judgment. When a deficiency judgment is sought, the plaintiff may recover the difference between the amount due on the underlying debt and the amount received upon foreclosure.” (Citations omitted.) People’s Bank v. Bilmor Building Corp., 28 Conn. App. 809, 816-17, 614 A.2d 456 (1992).

We recognize that deficiency proceedings are in some respects functionally similar to actions on promissory notes because both enable a creditor to collect the full amount owed him by a debtor. This court has in the past stated that “the deficiency judgment procedure, although procedurally a part of the foreclosure action, serves the separate function of providing for recovery on the balance of the note which was not satisfied by the strict foreclosure” and that “the deficiency judgment is the functional equivalent of a suit upon the note . . . .” Maresca v. DeMatteo, 6 Conn. App. 691, 696, 506 A.2d 1096 (1986). Furthermore, our Supreme Court has compared deficiency judgment hearings to suits for collection. Eichman v. J&J Building Co., 216 Conn. 443, 453, 582 A.2d 182 (1990).

As shown in the legislative history, however, deficiency proceedings are not, and never have been, independent actions on the debt. Rather, they are “part of the main foreclosure suit.” People’s Bank v. Bilmor Building Corp., supra, 28 Conn. App. 822. A deficiency judgment proceeding is a part of the foreclosure action, but is distinct from, although dependent on, the common law, nonstatutory process of strict foreclosure. Federal Deposit Ins. Corp. v. Hillcrest Associates, supra, 233 Conn. 172. It is “complementary to, the traditional and equitable common law action.” Id., 172.

A deficiency proceeding is not an independent action because “a request for a deficiency judgment in a foreclosure action is brought by written motion and not by service of process. ... A deficiency judgment provides a means for a mortgagee to recover any balance due on the mortgage note that was not satisfied by the foreclosure judgment. ... It is the ‘only means of satisfying a mortgage debt when the security is inadequate to make the foreclosing plaintiff whole.’ ” (Citation omitted.) People’s Bank v. Bilmore Building Corp., supra, 28 Conn. App. 822. Furthermore, a deficiency proceeding has a very limited purpose. “In the hearing contemplated under § 49-14 to obtain a deficiency judgment, the court, after hearing the party’s appraisers, determines the value of the property and calculates any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property.” First Bank v. Simpson, 199 Conn. 368, 373, 507 A.2d 997 (1986).

Since the passage of the first deficiency judgment statute in 1833, the mortgagee’s right to a deficiency judgment has always been coupled with some provision for fixing the actual value of the property as of the date of the foreclosure, as a basis of valuation for determining any claimed deficiency. Equitable Life Assurance Society v. Slade, supra, 122 Conn. 454. The 1833 statute provided for a determination of this value by the court before which the action was pending. Id. This continued to be the function of the court until 1878, when it became the function of three “disinterested appraisers.” Id., 454-55. So “that there might be no doubt that the court’s function in determining value in all its aspects had been transferred to the appraisers, the act provided: ‘such appraisal shall be final and conclusive as to the value of said mortgaged property.’ ” Id., 455. “The provision . . . first appearing in . . . the Revision of 1902, permitting the court to enter a judgment for the deficiency between the debt and the appraisal, was obviously to do away with the necessity of bringing a separate action to satisfy the debt, and in no way affected the power in the appraisers to determine the value of the mortgaged property. Thus, under the statute as it existed from 1833 to 1878, the court’s determination of value was conclusive upon the parties because it was a question of fact which [our Supreme Court] would not review.” Id.

In 1979, however, the procedure that allowed disinterested appraisers to determine the value of the property was declared unconstitutional because there was no hearing at which the defendant could present evidence as to value. Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 576-77, 409 A.2d 1020 (1979). The statute was declared unconstitutional on the ground that the failure to provide for an eviden-tiary hearing violated due process. The legislature accordingly amended the statute to provide that the court hears evidence on the value of the property from both parties and establishes a conclusive valuation of the property. That amendment resulted in the present § 49-14. Bank of Stamford v. Alaimo, 31 Conn. App. 1, 7, 622 A.2d 1057 (1993). The defendant’s reliance on Society for Savings v. Chestnut Estates, Inc., supra, 576-77, to bolster his claim that § 49-14 violates his right to a jury trial is therefore misplaced.

As discussed previously, in an action on a promissory note, unlike in the deficiency judgment procedure, the issues of whether any debt is owing and, if so, the amount of the debt owed must be resolved. Those issues, not the issue of property value, are resolved by a jury in an action on a note. In a deficiency proceeding, however, the judgment of foreclosure has already determined that a debt is owed and the amount of that debt. Those issues are not relitigated in the deficiency hearing.

The mere fact, therefore, that a deficiency proceeding may result in a personal judgment against the debtor for the amount of the debt unsatisfied by the foreclosed property does not convert that portion of the equitable foreclosure proceedings into an action at law. We conclude that because a deficiency proceeding is not substantially similar to any common law claim triable to a jury in 1818, Guttman’s claim that § 49-14 violates article first, § 19, fails.

II

Laches

Guttman claims that the trial court improperly found that the FDIC acted reasonably despite the length of time it took the FDIC and its predecessors to proceed to judgment. Guttman argues that the. delays were unreasonable because, during the three years between the filing of the complaint and the motion for strict foreclosure, the debt substantially increased while the value of the property substantially decreased. Essentially, Guttman is asserting the equitable doctrine of laches. We are not persuaded, and, even if we were, we conclude that Guttman’s claim of laches was untimely made.

“Laches consists of an inexcusable delay which prejudices the defendant.” Danaher v. C. N. Flagg & Co., 181 Conn. 101, 107, 434 A.2d 944 (1980). “Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant.” Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 684-85, 116 A.2d 906 (1955). Absent prejudice to the defendant, the mere lapse of time does not constitute laches.

“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.” Id., 684. We cannot say as a matter of law that the trial court was compelled on the facts of this case to conclude that the FDIC had lost its rights against Gutt-man by laches. Nor can we say that the trial court’s findings that most of the delays were beyond the control of the FDIC, and that, although the FDIC could have minimized some of the delays, none was so long as to be unreasonable are unsupported by the record. In fact, some delay in these proceedings was inevitable because there were two federal receiverships and a bankruptcy proceeding against one of the defendants.

Moreover, at no time during the foreclosure proceedings did Guttman claim that he had been prejudiced by any of the delays. At a minimum, Guttman could have filed an answer asserting the doctrine of laches, or asserted the doctrine when New CBT moved that the defendants disclose a defense, or objected to the calculation of debt at the time the FDIC moved for a judgment of foreclosure. Defenses that could have been raised during the foreclosure proceedings may not be raised at the deficiency hearing. Vignot v. Bank of Mystic, 32 Conn. App. 309, 314, 628 A.2d 1339 (1993); Bank of Stamford v. Alaimo, supra, 31 Conn. App. 9.

Guttman’s claim, therefore, that the trial court should have used the equitable doctrine of laches to preclude the FDIC from moving for a deficiency judgment, fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants whose mortgage was foreclosed are Joseph Voll and Zoltán Guttman. As used in this appeal, the defendants refers to Voll and Guttman. Other parties claiming interests in the property are John Wendler, the city of Bridgeport and Connecticut Bank and Trust Company, N. A.

       General Statutes § 49-14 (a) provides: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiff’s claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”
      General Statutes § 49-14 (b) provides: “Upon the motion of any party and for good cause shown, the court may refer such motion to a state referee, who shall have and exercise the powers of the court with respect to trial, judgment and appeal in such case.”

       The court found that “there have been delays occasioned by a number of circumstances beyond the control of the [FDIC], and perhaps some of that the [FDIC] could with greater diligence have minimized. The court finds, however, that none of the delays was so long as to be unreasonable. This claim by the defendant is without merit.”

       The court stated: “[T]his defense was not raised as a defense in the foreclosure proceeding, so it is not properly raised here.”

       For a more complete discussion of the legislative history of deficiency judgment proceedings in Connecticut, see Federal Deposit Ins. Corp. v. Hillcrest Associates, supra, 233 Conn. 164-70.

       We note that in a different real estate market, a delay might have actually benefited the defendant if the value of the property increased during the foreclosure proceedings.


text:
    Bakerville Lumber and Construction Company, Inc. v. Planning and Zoning Commission of the Town of New Hartford
    (13418)
    Dupont, C. J., and Heiman and Hennessy, Js.
    Argued March 15
    decision released June 13, 1995

      Mark W. Petty, for the appellant (plaintiff).

      Thomas P. Byrne, with whom, on the brief, were Steven E. Byrne and John W. Pickard, for the appellee (defendant).
   Heiman, J.

The plaintiff appeals from the decision of the trial court affirming the defendant’s denial of the plaintiff’s application to extend an existing renewable special permit for earth excavation. At the time of the oral argument of this appeal, the defendant claimed that the plaintiff’s appeal was moot because all of the special permits issued by the defendant to the plaintiff had expired. The plaintiff concedes that the permits have expired.

“It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Grace Community Church v. Bethel, 30 Conn. App. 765, 769, 622 A.2d 591, cert. denied, 226 Conn. 903, 625 A.2d 1375, cert. denied, 510 U.S. 944, 114 S. Ct. 383, 126 L. Ed. 2d 332 (1993).

“Mootness applies to situations where events have occurred during the pendency of an appeal that make an appellate court incapable of granting practical relief through a disposition on the merits. . . . Because this court has no jurisdiction to give advisory opinions, no appeal can be decided on its merits in the absence of an actual controversy for which judicial relief can be granted.” (Citation omitted; internal quotation marks omitted.) Papagorgiou v. Anastopoulous, 29 Conn. App. 142, 146, 613 A.2d 853, cert. denied, 224 Conn. 919, 920, 618 A.2d 527 (1992).

This is not a case “where the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, [that] may be capable of repetition, yet evading review. ... In deciding whether to invoke this mitigating principle, we have considered not only the practical difficulties of timely judicial review but also (1) the public importance of the question presented; (2) the potential effect of the ruling on an ongoing program of the state’s penal or civil system; and (3) the possibility of a similar effect on the plaintiff himself in the future. . . .” (Citations omitted; internal quotation marks omitted.) Perry v. Perry, 222 Conn. 799, 803, 611 A.2d 400 (1992).

Here, because all of the special permits at issue expired during the pendency of the appeal, the plaintiff must apply for the renewal of all of the permits. This court is without power to afford to the plaintiff practical relief. Thus, the matter has been rendered moot. See Madigan v. Madigan, 33 Conn. App. 229, 231, 635 A.2d 303 (1993).

The appeal is dismissed.

In this opinion the other judges concurred.


author: Lavery, J.

text:
    In re Christina V. et al.

    (13869)
    Dupont, C. J., Foti and Lavery, Js.
    Argued March 17
    decision released June 20, 1995

      Bessye W. Bennett, for the appellant (respondent).

      Dennis Antonacci, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Susan T. Pearlman, for the appellee (petitioner).

      Jamey Bell, with whom, on the brief, was Judith Rozie-Battle, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Lavery, J.

The respondent mother appeals from the judgment of the trial court granting termination petitions filed by the department of children and families (DCF) with respect to her two youngest children. The respondent claims that the trial court (1) failed to determine the validity of the grounds alleged in the petition, (2) failed to admit evidence of DCF’s bias and of its failure to offer timely assistance of reunification to the respondent, (3) could not have found the evidence to be clear and convincing on the adjudication of termination, and (4) did not correctly analyze and apply the seven factors listed in General Statutes § 17a-112 (d). We disagree and affirm the trial court’s judgment.

The trial court found the following facts. The children for whom the petitions were filed are Christina, who was eleven years old at the time of trial and Patrick, who was five years old at the time of trial. The respondent has two other children in foster care and they are not involved in this case.

The respondent has been referred to DCF protective services since 1986. From 1986 to 1990, numerous referrals were made to DCF alleging the respondent’s inability to provide a safe, nurturing and permanent environment for herself and her three children. During this period, the referrals claimed that she failed to pay rent and needed to be relocated with her children; she lived periodically in emergency shelters; she was offered services by DCF which she failed to pursue; she was offered services for counseling and evaluation of her children; and she physically and emotionally neglected her children. Home visits indicated there was little food in the house and the children were dirty. The respondent maintained poor housekeeping standards and there was evidence of drug and alcohol use. In 1989, the respondent agreed to enter a detoxification program but failed to do so.

In early 1990, the respondent’s physical care and supervision of her children deteriorated. A social worker reported that the children were poorly dressed and were dirty. The respondent’s apartment was found to be dirty, cluttered and contained minimal furniture. Thé older children were frequently truant from school. DCF arranged for the delivery of furniture and household items and services for the care of the children. In April, 1990, a school social worker reported one of the children truant from school for seventy-two days.

In July, 1990, the Hartford police department responded to neighbors’ complaints that the older children were missing from the respondent’s home. The police officer found the respondent passed out in an intoxicated state; her sixteen month old child, Patrick, was observed crying on the floor in one of the rooms. The respondent was unable to determine the whereabouts of her children. She was arrested and charged with four counts of risk of injury to children and transported to the Morgan Street detention center. The police indicated that the apartment in which the children resided was filthy, cluttered, had a foul odor and contained little food. The small amount of food they found was not edible, empty liquor and wine bottles were scattered about and the odor of cat feces was very prominent. The children were placed on a ninety-six hour hold. The children’s foster mother testified during the trial that, when the children first came to her in 1990, sixteen month old Patrick was covered with sores and was clinging to his sister Christina. The children were hungry, ate from garbage cans and hid food. Christina stuttered, used profanity, was very guarded in her conduct and very protective of her younger brother.

The respondent signed an agreement for voluntary placement of the children on July 17, 1990, while she was at the Niantic correctional center for women. DCF subsequently filed a neglect petition that was adjudicated on March 21,1991, in favor of the petitioner. DCF characterized the respondent as an emotionally overwhelmed, multiproblemed woman who has been resistant to DCF’s intervention and assistance since 1987.

During the course of time that this matter was under the supervision of the DCF and in the juvenile court, there were five psychological evaluations conducted by David M. Mantell, a court-appointed clinical psychologist, to evaluate the respondent and her children. Each evaluation was thorough and, after each evaluation, reports were rendered and filed with the court on February 4, 1991, June 25, 1992, August 10, 1992, February 26, 1994, and April 15, 1994.

Mantell described the respondent as a “physically healthy appearing self-supporting, thirty-four year old woman with a history of alcohol and drug abuse, in remission, who is probably chronically depressed, at least to a mild to moderate degree, and with inadequate personality characteristics and with inadequate parental motivation.” The fifth evaluation concluded as follows: “Although [the respondent] apparently has intensified the frequency of her contacts with her children during the past year, she remains, however, a psychologically inadequate, unreliable person who is apparently unrehabilitated. She acknowledges that she is unable to provide her children with a home at this time. Her future plans in that regard are vague. She does not have the psychological wherewithal to complete a psychological examination, still presenting in a psychologically marginal fashion with strongly inadequate personality characteristics, lack of judgment and insight, and stronger priorities which preclude an active, meaningful involvement in her children’s lives. She is essentially out of touch with her children, knowing very little about them, engaging them peripherally, attempting primarily to keep their relationship alive through her unpredictable visitation pattern and her promises about an unspecific, reunified future. Understandably, her children’s primary attachments are with their foster families. The mother has been allowed an unusually long time to engage in rehabilitation. Her failure to do so in combination with the pattern of her contacts with her children is seen as a disruptive and disabling force in their lives interfering with their general adjustment as well as their attachment capacities. For these reasons, I find that there is more than ample reason psychologically to support the legal termination of the mother’s parental rights in order to maximize the children’s best interest.”

The respondent argued against termination representing that she had been able to maintain a job as an aide for three years at a convalescent home and she further argued that within the last year she has increased her visits with the children. The court found the visits had increased in frequency in the last year, but were usually five to ten minutes in duration, were unannounced, and were usually outside the home of the foster mother. The foster mother had never prevented these visits and on a recent occasion the respondent brought with her a friend who, she announced to Patrick and Christina, would soon be their new daddy. This announcement had a deleterious affect on Christina’s conduct.

The trial court found that the respondent does not know the most fundamental information about her children. She does not know their heights, weights, schools, teachers or friends. Nonetheless, during her random visits she promises reunification without any realistic understanding of the children’s physical, intellectual, emotional, social and moral needs.

The trial court credited the respondent for her personal rehabilitation in maintaining employment and remaining substance free but found that she did not rehabilitate herself as required by statute to a responsible position in the life of her children. The trial court found on the basis of the respondent’s testimony and the findings of Mantell that the respondent lacked the appropriate judgment, insight and understanding of her children’s needs to act effectively as their full-time parent and, because of the length of time that the children were in foster care, she would not be able to rehabilitate herself to a meaningful role in her children’s lives.

The respondent’s first and third claims are essentially the same and go to the question of sufficiency of the evidence at trial to support the trial court’s finding that the adjudicatory petition proved, by clear and convincing evidence, the ground for termination. The respondent claims that the trial court improperly found that she had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable period of time she could assume a responsible position with respect to the care of her children. General Statutes § 17a-112 (b) (2).

“ ‘ “On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported.” In re Michael M., [29 Conn. App. 112, 121, 614 A.2d 832 (1992)]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991); In re Davon M., 16 Conn. App. 693, 696, 548 A.2d 1350 (1988). We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980); nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987).’ In re Kezia M., 33 Conn. App. 12, 16-17, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).” In re Felicia D., 35 Conn. App. 490, 499, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994). “ ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent.” In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 532, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). Our Supreme Court has held that General Statutes (Rev. to 1989) § 17-43a (b) (2) “requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable ‘within a reasonable time.’ ” In re Luis C., 210 Conn. 157, 167, 554 A.2d 722 (1989); In re Michael M., supra, 124. “A determination by the trial court under [§ 17a-112 (b) (2)] that the evidence is clear and convincing that the parent has not rehabilitated herself will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, [supra, 221-22].” (Internal quotation marks omitted.) In re Felicia D., supra, 500.

The trial court’s memorandum of decision cites ample evidence to support its findings in this case. The evidence at trial shows that despite the respondent’s holding down a job and apparent freedom from substance abuse, she had the most minimal parental skills and very little parenting motivation. The trial court gave credibility and weight to the April 14, 1994 findings of Mantell that the respondent “remains, however, a psychologically inadequate, unreliable person who is apparently unrehabilitated. She acknowledges she is unable to provide her children with a home at this time. Her future plans in that regard are vague.” Courts are entitled to give great weight to professionals in parental termination cases. In re Michael M., supra, 29 Conn. App. 127 n.12.

The overwhelming evidence as found by the trial court set forth previously is that the respondent’s concerns were for herself and not her children and, thus, she did not have the judgment, insight and understanding of her children’s needs to act as a parent. The court also found that the children had been in foster care for four years and that any further delay would be unreasonable.

We reject the claim that the trial court should have opened the judgment to consider evidence of the petitioner’s alleged failure to facilitate the respondent’s reunification with her children by accepting the offer by the children’s maternal grandmother and aunt to provide a home for them. The respondent presented no evidence at trial of the petitioner’s bias in its failure to offer assistance to the respondent for reunification with her children. The trial court made a finding of reasonable effort by the petitioner and we find that there was more than adequate evidence for the trial court to have made such findings.

Though evidence of bias was not offered at trial, it was subsequently raised through a postjudgment motion to open and set aside the judgment of termination of parental rights. The motion was heard and denied by the trial court and the respondent has not directly appealed the denial of that motion. The trial court found that the information presented was not new evidence because it was available to the respondent prior to and during the trial. The opportunity to present evidence existed not only at trial, but also at two previous extensions of commitment hearings and the numerous administrative case and treatment plan reviews, which were held every six months at DCF. The respondent was invited to each of these reviews and chose not to attend and participate. The trial court properly did not abuse its discretion in denying this motion. See Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990).

The respondent’s final claim is that the petitioner did not prove by clear and convincing evidence that termination pursuant to § 17a-112 (d) is in the best interest of the children. In its memorandum of decision, the trial court made specific findings regarding the six statutory factors necessary in the disposition phase to assure that termination is in the best interest of the children. The trial court found that each of these factors had been factually established by clear and convincing evidence and ordered the termination of the respondent’s parental rights as being in the best interest of the children.

The standard of review on appeal is whether the challenged findings are clearly erroneous. In re Luis C., supra, 210 Conn. 166. The trial court found that DCF had offered appropriate and timely services. The social worker testified as to all of his efforts in trying to help the respondent assume a constructive role as a parent and his frustrations at being rebuffed by her. In December, 1992, the social worker was told by the respondent that she no longer wanted anything to do with him. The foster mother and the children’s therapist also testified as to their efforts to engage the respondent in counseling. The respondent herself testified that she had not been in out-patient counseling and only at trial did she perceive counseling to be important in getting her children back. In this regard, the respondent cannot challenge “the inadequacies of the petitioner’s offer of services” as she was the one who refused to cooperate. The trial court properly found DCF to have made reasonable efforts.

The trial court found that the respondent had complied with some of the court’s expectations but that she possessed no understanding of assuming the constructive role of a parent within the foreseeable future. As to this factor, the court gave weight to Mantell’s testimony and reports.

The trial court found that the children clearly had bonded with their foster parents and were fearful of returning to their mother. This finding is supported by the therapist’s testimony as well as by that of the foster mother. The foster mother clearly testified that no one prevented the respondent from maintaining a relationship with her children nor did economics prevent her from visiting. The respondent was employed for three and one-half years. She lived within walking distance of the foster home but her visits were sporadic and brief. The trial court fdund that the children, ages twelve and five, had been in foster care for four years and that leaving the children in legal limbo was not in their best interest.

The trial court’s memorandum of decision was thorough, thoughtful and sensitive in its careful review of the evidence on which it relied in both the adjudicatory and dispositional phases. We conclude that its factual findings and conclusions are supported by the evidence and are not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 17a-112 (b) provides in relevant part: “The superior court . . . may grant such petition if it finds, upon clear and convincing evidence, that ... (2) the parent of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       General Statutes (Rev. to 1989) § 17-43a (b) (2) is now § 17a-112 (b) (2).

       General Statutes § 17a-112 (d) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the department of children and families has made reasonable efforts to reunite the family pursuant to the federal Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”


text:
    State of Connecticut v. Larry Scales
    (13622)
    Foti, Landau and Schaller, Js.
    Argued March 20
    decision released June 20, 1995

      Jeffrey D. Hutcoe, assistant public defender, for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne F. Mahoney, deputy assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the third degree in violation of General Statutes § SSa-lOS and criminal mischief in the third degree in violation of General Statutes § 53a-117 (a) (1) (A). On appeal, the defendant asserts that the state produced insufficient evidence for the jury to find him guilty of burglary in the third degree and criminal mischief in the third degree and that the trial court was thus obligated to render a judgment of acquittal with respect to those charges. In particular, the defendant claims that the evidence of identification was not sufficient to prove that he was the person who committed the crimes. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The Catholic Transcript building at 785 Asylum Avenue in Hartford had a security system in which Sonitrol employees used microphones installed in the basement tó detect intruders. On September 19,1993, at about 10:50 p.m., Sonitrol employees, while monitoring the Catholic Transcript building, heard the sound of something breaking. Immediately, they called Scott Parmalee, the business manager of Catholic Transcript and informed him of the noise. While on the telephone with Parmalee, the Sonitrol employees and Parmalee heard the sound of breaking glass. The Sonitrol employees told Parmalee that they had called the Hartford police.

The first to arrive at the Catholic Transcript building was Officer Neil Dryfe of the Hartford police. Dryfe proceeded on foot down the east driveway toward the rear of the building. His inspection revealed no disturbance of the windows and doors on the east wall of the building. Dryfe did notice, however, that a fire escape was down on the eastern wall of the building. He climbed the fire escape and searched the roof for entry points and suspects.

Officer Robert Cronin arrived at the Catholic Transcript building in his police cruiser shortly after Dryfe. Cronin pulled into the driveway on the east side of the building. He did not notice any open windows on that side of the building. When Cronin drove around to the back of the building, he observed a broken window on the rear wall.

The last officer to arrive at the scene was James Shearer. Shearer parked his police cruiser in front of the Catholic Transcript building. As Shearer exited his vehicle and began walking toward the east side of the building, he saw the defendant walking quickly around the northeast corner of the building. Shearer noticed that the defendant slowed down when he saw Shearer. He also noticed that a basement window in the east wall of the building was open. Shearer took the defendant into custody and put him in the back of his police cruiser.

After the defendant was placed in custody, the three police officers conferred about their independent searches of the premises. The officers determined that the open east window discovered by Shearer had been closed when Dryfe and Cronin initially checked it. They also learned that the window could be opened only from the inside. The officers agreed that they had not seen any other people in the area of the Catholic Transcript building on this Sunday evening. An in-depth search of the premises revealed a sneaker print in a dusty area of the basement with a Nike logo visible in the middle of the print. A check of the defendant’s sneakers revealed the same Nike logo and tread pattern as the print found in the basement. The search of the premises also revealed a broken skylight window on the roof of the building and another shoe print with the same Nike logo.

The defendant claims that the evidence was insufficient to form the basis of a conviction for burglary in the third degree and criminal mischief in the third degree. The defendant concedes that the state established the fact that a burglary and criminal mischief had occurred on September 19,1993. He claims, however, that the state’s evidence was insufficient to establish that it was he who had entered the Catholic Transcript building on that date. We disagree.

When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993); State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993); State v. Young, 29 Conn. App. 754, 767, 618 A.2d 65 (1992) , cert. denied, 225 Conn. 904, 621 A.2d 287 (1993) . Second, we determine whether, from that evidence and all reasonable inferences that it yields, a trier of fact could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. State v. Salz, supra, 31; State v. Hooks, supra, 238. In this process of review, the probative force of the evidence is not diminished because it consists, in whole or in part, of evidence that is circumstantial rather than direct. State v. Salz, supra, 31; State v. Somerville, 214 Conn. 378, 390, 572 A.2d 944 (1990); State v. Hooks, supra, 238-39; State v. Maxwell, 29 Conn. App. 704, 708, 618 A.2d 43, cert. denied, 225 Conn. 904, 621 A.2d 287, cert. denied, 509 U.S. 930,113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993).

The state’s case was based on circumstantial evidence. There is no distinction between direct and circumstantial evidence as far as probative force is concerned. State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984). Indeed, our Supreme Court has stated that circumstantial evidence “ ‘maybe more certain, satisfying and persuasive than direct evidence.’ ” State v. Taylor, 153 Conn. 72, 78, 214 A.2d 362 (1965), cert. denied, 384 U.S. 921, 86 S. Ct. 1372,16 L. Ed. 2d 442 (1966), quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S. Ct. 6, 5 L. Ed. 2d 20 (1960). Where, as here, the identification of the defendant as the burglar is derived from circumstantial evidence, we examine the cumulative impact of a multitude of factors in order to determine whether the identification of the defendant has been satisfactorily established by the circumstantial evidence. State v. Salz, supra, 226 Conn. 38; State v. Henning, 220 Conn. 417, 421, 599 A.2d 1065 (1991); States v. Pearl, 28 Conn. App. 521, 526, 613 A.2d 304 (1992).

The jury’s sole province as the trier of fact is to draw all reasonable and logical inferences from the facts as it finds them to exist. State v. Gray, 221 Conn. 713, 721, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992); State v. Hooks, supra, 30 Conn. App. 239. The jury also has the sole and absolute responsibility to weigh conflicting evidence and to determine the credibility of the witnesses. State v. Pinnock, 220 Conn. 765, 778-79, 601 A.2d 521 (1992); State v. Hooks, supra, 239. The issue of the identification of the accused as the perpetrator of the crime is peculiarly one of fact to be resolved by the jury. State v. Smith, 138 Conn. 196, 201, 82 A.2d 816 (1951). “If evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.” Id., 200.

As we have stated, the issue of whether the defendant committed the crime was properly a question of fact to be resolved by the jury. Id., 201. A jury could reasonably and logically find that the defendant had unlawfully entered the Catholic Transcript building. First, the jury could infer that the noise that the Sonitrol employees heard was the sound of the defendant breaking the skylight on the roof of the building. Next, the jury could infer that when Sonitrol telephoned Parmalee, the noise that Parmalee heard was the sound of the defendant breaking the window on the rear wall of the building. The jury could find that the defendant broke a second window because he realized that entry from the skylight involved a fifteen foot drop to the basement floor. The jury could also find that the police arrived at the Catholic Transcript building a few minutes after being called by Sonitrol and that their search revealed that there were no other people in the immediate area of the building. The jury could infer that Dryfe and Cronin inspected the east wall of the building and neither noticed any disturbances or open windows. When Shearer arrived, however, and saw the defendant walking away from the east side of the budding, there was a basement window on the east wall of the building that was open. After learning that this window could be opened only from the inside, the jury could infer that the defendant had opened that window and left the building while Cronin was at the rear of the building and Dryfe was on the roof. The final inference that the jury could make linking the defendant to the crime was that the sneaker prints on the roof and in the basement matched the defendant’s sneakers and, thus, were left on the premises by the defendant. Considering all of the evidence together, the jury could conclude beyond a reasonable doubt that the defendant was the person who committed the crimes charged.

The defendant’s claim that the evidence was insufficient for the jury to determine beyond a reasonable doubt that the defendant was guilty is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes § 53a-117 (a) provides in pertinent part: “A person is guilty of criminal mischief in the third degree when, having no reasonable ground to believe that he has a right to do so, he: (1) Intentionally . . . (A) damages tangible property of another . . .