author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. RICHARD FONTAINE
    (AC 28566)
    DiPentima, Beach and Robinson, Js.

      Argued October 10, 2008
    officially released January 20, 2009

      Jessica Probolus, special deputy assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, Stephen M. Carney, senior assistant state’s attorney, and Adam Marks, certified legal intern, for the appellee (state).

      John W. Watson, special public defender, for the appellee (defendant).
   Opinion

ROBINSON, J.

The state, with permission of the trial court, appeals from the judgment of the trial court following the granting of the motion of the defendant, Richard Fontaine, to dismiss the charges of operating a motor vehicle while under the influence of intoxicating liquor or drugs under General Statutes § 14-227a and operating a motor vehicle while his license was suspended under General Statutes § 14-215. The state claims that the court improperly granted the defendant’s motion to dismiss because a moped falls within the definition of “motor vehicle” for the purposes of being charged with the crime of operating a motor vehicle while under the influence of intoxicating liquor or drugs and with operating a motor vehicle while his license was suspended, and, as such, there was sufficient cause to bring the defendant to trial. We agree and reverse the judgment of the trial court.

The record reflects the following facts and procedural history. The defendant was operating a moped with a motor of less than fifty cubic centimeters on a public highway in the town of Lisbon on the evening of August 20, 2006. State police troopers observed the defendant traveling northbound on Route 12 in Lisbon on a moped at a speed of approximately thirty miles per hour. The moped was traveling in the right shoulder of the road and crossed over into the travel lane of the roadway several times. Trooper Mark Roberts testified that there appeared to be a light attached to the rear of the moped, but the light was difficult to see because it was hanging loosely off the back of the moped.

The troopers followed the moped for approximately one mile until the defendant turned into a restaurant parking lot, at which point the troopers drove into the same parking lot and approached the defendant. As Roberts spoke with the defendant about the taillight being a public safety concern, he noticed that the defendant had bloodshot eyes and an odor of alcohol on his breath. Roberts performed a series of field sobriety tests and placed the defendant under arrest. He was charged with operating a motor vehicle while under the influence of intoxicating liquor or drugs under § 14-227a, operating a motor vehicle with a suspended license under § 14-215 and improper visibility of reflectors under § 14-96i.

Prior to his arrest, the defendant had been placed on probation for a second operating under the influence conviction and sentenced to two years incarceration, execution suspended after 120 days, and an unspecified period of probation. One of the conditions of his probation was that the defendant was not to operate a motor vehicle while his license was suspended. A violation of probation hearing was held on November 21, 2006, at which time the court found that the defendant was under the influence at the time of his arrest. This finding was based on the officers’ testimony about their observations of the defendant’s performance on the field sobriety tests, his general demeanor and his refusal to take a Breathalyzer test. The court did not reach the ultimate issue of whether the defendant had violated his probation; instead, the court asked both parties to submit briefs on the issue of whether a moped with a motor of less than fifty cubic centimeters is a motor vehicle within the meaning of the statutes.

After the parties submitted their briefs, the court granted the defendant’s motion to dismiss on January 30, 2007, and issued an oral decision on February 9, 2007. The court concluded that the general definition of “motor vehicle” in General Statutes § 14-1 applied and that the vehicle at issue was not a “motor vehicle” under the operating under the influence and the operating under suspension statutes. This appeal followed.

The state claims that the court improperly granted the defendant’s motion to dismiss. Specifically, the state argues that a moped falls within the definition of “motor vehicle” in General Statutes § 14-212, and, as such, the defendant could in fact be convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs and operating a motor vehicle with a suspended license while driving a moped on a public road. We agree with the state.

“As a preliminary matter, we set forth the standard of review. A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the [state] cannot as a matter of law and fact state a cause of action that should be heard by the court. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the trial court’s ultimate legal conclusion and resulting [decision to] grant . . . the motion to dismiss will be de novo.” (Internal quotation marks omitted.) State v. Howell, 98 Conn. App. 369, 377, 908 A.2d 1145 (2006).

We note the well established principles of statutory interpretation. “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) State v. Custer, 110 Conn. App. 836, 840, 956 A.2d 604 (2008).

The two statutes at issue are § 14-227a, pertaining to the operation of a motor vehicle while under the influence of intoxicating liquor or drugs, and § 14-215, pertaining to the operation of a motor vehicle while one’s license or registration is refused, suspended or revoked. Section 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. . . .” Section 14-215 (a) provides in relevant part: “No person to whom an operator’s license has been refused, or, except as provided in section 14-215a, whose operator’s license or right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. ...”

“Motor vehicle” is defined in §§ 14-1 and 14-212. Section 14-1 is contained in chapter 246, which concerns the department of motor vehicles, the licensing and registration of motor vehicles and drivers’ schools. Section 14-212 is contained in chapter 248, the “vehicle highway use” chapter. Sections 14-215 and 14-227a are also located in chapter 248.

Section 14-1 (a) (50) provides: “ ‘Motor vehicle’ means any vehicle propelled or drawn by any nonmus-cular power, except aircraft, motor boats, road rollers, baggage trucks used about railroad stations or other mass transit facilities, electric battery-operated wheel chairs when operated by physically handicapped persons at speeds not exceeding fifteen miles per hour, golf carts operated on highways solely for the purpose of crossing from one part of the golf course to another, golf-cart-type vehicles operated on roads or highways on the grounds of state institutions by state employees, agricultural tractors, farm implements, such vehicles as run only on rails or tracks, self-propelled snow plows, snow blowers and lawn mowers, when used for the purposes for which they were designed and operated at speeds not exceeding four miles per hour, whether or not the operator rides on or walks behind such equipment, bicycles with helper motors as defined in section 14-286, special mobile equipment as defined in subsection (i) of section 14-165, mini-motorcycle, as defined in section 14-289j, and any other vehicle not suitable for operation on a highway . . . .” (Emphasis added.)

Section 14-212 (1) lists a series of terms that “shall be construed as they are defined in section 14-1 . . . .” The term “motor vehicle” is not included in that list and is defined separately in § 14-212 (5), which provides: “ ‘Motor vehicle’ includes all vehicles used on the public highways . . . .” Section 14-212 also provides that “[t]erms used in this chapter shall be construed as follows, unless another construction is clearly apparent from the language or context in which the term is used or unless the construction is inconsistent with the manifest intention of the General Assembly . . . .”

The state asserts that State v. Knybel, 281 Conn. 707, 916 A.2d 816 (2007), which concerned whether all-terrain vehicles (ATVs) were covered by the operating while under suspension statute and which was published after the court’s decision was issued, is controlling and that the broad definition of “motor vehicle” found in § 14-212 should be applied. The court in Kny-bel held that an ATV, when used on a public highway, is a “motor vehicle” for the purposes of § 14-215 (c), concluding that the applicable definition of “motor vehicle” was found in § 14-212 (5) and not in § 14-1. Id., 716. The defendant asserts that the logic applied in Knybel does not apply to a moped and that the much narrower definition of “motor vehicle” in § 14-1 should apply and should be found to exclude a moped. We disagree and find Knybel to be controlling.

The defendant in Knybel claimed that § 14-215 (c) was unconstitutionally vague as it applied to the use of an ATV because it did not reasonably apprise him that operating an ATV constituted operating a “motor vehicle” for the purposes of the statute. Id., 715. The court rejected the defendant’s claim, initially noting that an ATV is a “motor vehicle” for the purposes of § 14-215 (c) if it is a “vehicle.” Id. The court examined the two other definitions of ATV found in other chapters of the General Statutes, both of which define an ATV as a “vehicle,” and noted that the definition of “motor vehicle,” per § 14-212 (5), includes all vehicles used on the public highways. The court concluded that an ATV, when used on a public highway, is a “motor vehicle” for the purposes of § 14-215 (c). Id., 716.

The court emphasized that “[o]n its face, it is clear that the definition of ‘motor vehicle’ found in § 14-1 (a) (50) is applicable only to the provisions in chapter 246 of the General Statutes. . . . The statute at issue in the present case, § 14-215 (c), however, is contained in chapter 248 and thus is not implicated by the definition of‘motor vehicle’ found in § 14-1 (a) (50). The limitation on the application of § 14-1 to chapter 246 is underscored by § 14-212. Section 14-212 defines the term ‘motor vehicle’ for purposes of chapter 248 generally and § 14-215 (c) specifically but incorporates by reference other definitions contained in § 14-1 in providing that certain terms enumerated therein ‘shall be construed as they are defined in section 14-1 . . . .’ General Statutes § 14-212 (1). The term ‘motor vehicle’ is not included in the list of terms found in § 14-212 (1) that shall be construed as they are defined in § 14-1. In fact, as we have noted, § 14-212 contains its own broad definition of ‘motor vehicle.’ In light of the conspicuous absence of the term ‘motor vehicle’ from the list of terms in § 14-212 (1) that are to be construed as they are defined in § 14-1, and the broad definition of ‘motor vehicle’ contained in § 14-212, which is specifically applicable to § 14-215 (c), it is clear that the definition of the term ‘motor vehicle’ in § 14-1 is not applicable to § 14-215 (c).” (Citation omitted; emphasis added.) State v. Knybel, supra, 281 Conn. 716-17.

There is nothing in the Knybel court’s reasoning that leaves any room to distinguish an ATV from a moped. In the present case, the court reasoned that the state could not prove that the defendant had violated the operating under the influence and operating while under suspension statutes because §§ 14-227a and 14-215 (c) make reference to the operation of a “motor vehicle” while under the influence or while under suspension. The court concluded that because the defendant was operating only a twenty-nine cubic centimeter moped, and such vehicles were exempted from the definition of motor vehicle found in § 14-1, the defendant could not be convicted of operating a motor vehicle while under the influence or while under suspension.

As the Knybel decision makes clear, however, the relevant definition of “motor vehicle” to be applied when determining if someone has violated § 14-215 is the much broader definition found in § 14-212. “[T]he purposes of the two chapters in question are very different, thus requiring the need for a broader definition of the term ‘motor vehicle’ under the chapter concerning vehicle highway use, namely, chapter 248. Chapter 246 requires the registration of a certain class of vehicles that are to be operated within the state. Section 14-1 therefore contains a very limited definition of ‘motor vehicle’ that excludes most vehicles that are not traditionally operated on a public road. On the other hand, chapter 248 regulates the use of motor vehicles on public highways, and that necessarily requires a definition of ‘motor vehicle’ that includes all ‘vehicles.’ Therefore, the definition of ‘motor vehicle’ in chapter 248, when read in the context of the General Statutes as a whole, not only suggests a broad definition of the term ‘motor vehicle’ for purposes of chapter 248 but also that all ‘vehicles’ in the various chapters of the General Statutes are included within that term.” State v. Knybel, supra, 281 Conn. 717. This same logic applies to a conviction under § 14-227a, as that provision is also found in chapter 248, the vehicle highway use chapter.

The defendant contends that mopeds should be distinguished from ATVs because ATVs are defined as “a self-propelled vehicle”; see General Statutes § 14-379; while a moped is not wholly self-propelled and in some cases must be propelled by the rider’s own feet. This distinction makes no difference. Whether a vehicle is wholly self-propelled does not change whether it is a “vehicle,” and thus a “motor vehicle,” for the purposes of chapter 248; per § 14-212 (5), any vehicle that is driven on the public highways is a “motor vehicle” under chapter 248.

Furthermore, the defendant ignores the fact that a moped, or a bicycle with a helper motor, is intended to be used on the public highways, while the primary purpose of an ATV is to be driven off-road. A bicycle with a helper motor is subject to licensing requirements and other regulations that do not apply to an ATV and which make the conclusion that the operating while under the influence statute, if applicable to an ATV, is most certainly applicable to a moped.

The judgment dismissing the charges against the defendant is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 54-96 provides: “Appeals from the rulings and decisions of the Superior Court, upon till questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the Supreme Court or to the Appellate Court, in the same manner and to the same effect as if made by the accused.”

       The defendant also was charged with a violation of General Statutes § 14-96Í, requiring visible lamp or reflectors on a vehicle, but the state entered a nolle prosequi on that charge.

       The parties and the court used the terms “moped” and “bicycle with a helper motor” interchangeably. Because the parties stipulated that the defendant was operating a moped, for the purpose of consistency it will be referred to as a moped throughout this opinion.
      The defendant, however, contested at oral argument in this court that the parties had stipulated to the type of conveyance the defendant was operating, and claimed that “[t]he record is ambiguous as to what the vehicle was” and, as a result, that the record may be inadequate. The defendant claims that there was no stipulation that he was operating a bicycle with a helper motor and that the only stipulation was that the motor was less than fifty cubic centimeters. In fact, the transcript makes clear that defense counsel (who we note is different from the defendant’s appellate counsel) did in fact stipulate that the defendant was operating a moped with a motor under fifty cubic centimeters. The transcript reads as follows:
      “The Court: And we’ve—we’re going to—my understanding is, also there’s a stipulation that [the defendant] was operating a moped that was under fifty [cubic centimeters]. Is that correct?

        “[The Prosecutor]: The state would so stipulate, Your Honor.
      “[Defense Counsel]: We would stipulate as well.
      “The Court: And that he was also operating on a public highway.
      “[Defense Counsel]: We would stipulate to that as well, Your Honor.
      “[The Prosecutor]: As would the state.”
      This stipulation was reiterated at the February 9, 2007 issuance of the court’s oral decision:
      “The Court: There was a stipulation that there was . . . that he operated—
      “[Defense Counsel]: He was operating a moped.
      “The Court: —that [the defendant] operated a moped of less than fifty [cubic centimeters]—
      “[Defense Counsel]: On a public highway.
      “The Court:—on a public highway in the town of—whatever it was. Okay.
      “[Defense Counsel]: It was Lisbon.
      “The Court: The state agrees with that, too?
      “[The Prosecutor]: Yes, Your Honor.
      “The Court: —for the record.
      “[The Prosecutor]: Yes.”

       The length of the defendant’s probation is not clear from the record, but it is undisputed by either party that he was on probation at the time of his arrest.

       The charges of operating a motor vehicle while under the influence of intoxicating liquor or drugs and operating a motor vehicle with a suspended license were dismissed, and the state entered anolle on the count of improper visibility of reflectors. On December 15, 2006, the court had found that the defendant was not in violation of his probation because a moped was not a “motor vehicle” under the operating under the influence and the operating under suspension statutes.

       The defendant asserts that Knybel cannot be applied retroactively to the facts of this case because it had not been published at the time the court issued its decision on his motion to dismiss. The defendant has not alleged that the state’s proposed statutory construction is a violation of the due process vagueness principle, which occurs when “unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect [of which] is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime.” State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986); see also State v. Cobb, 251 Conn. 285, 439, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).
      Merely because our courts have never been called on to decide this issue does not make the defendant not culpable. Regardless, it should have been foreseeable to the defendant that driving his moped on the public highways would have subjected him to the operation while under the influence and operation while under suspension laws. “[T]he touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal.” (Internal quotation marks omitted.) State v. Vakilzaden, 272 Conn. 762, 769, 865 A.2d 1155 (2005).
      The statutes, which make clear that any vehicle on the public roads is subject to the driving while under the influence and driving while under suspension laws, gave the defendant fair notice that his conduct was, or at the very least may have been, prohibited at the time that he engaged in it. Furthermore, the Knybel court held that “§ 14-215 (c) affords a person of ordinary intelligence with fair warning that he is prohibited from operating an ATV on a public highway while his license is suspended. ” State v. Knybel, supra, 281 Conn. 717-18.

       The court noted in its oral decision that the language in United States v. Dotson, 34 F.3d 882 (9th Cir. 1994), was instructive. In Dotson, the defendant was arrested while driving his moped under the influence of alcohol, and the court found that mopeds are vehicles only for the purposes of the Washington certificate of ownership, statute and not the driving while under the influence statute. Id., 883, 886. As the language and legislative history of the Washington statute are not similar to the statutes in question, we find the court’s reliance on Dotson misplaced.

       “ ‘All-terrain vehicle’ means a self-propelled vehicle designed to travel over unimproved terrain and which has been determined by the Commissioner of Motor Vehicles to be unsuitable for operation on the public highways which is not eligible for registration under chapter 246 . . . .” General Statutes § 14-379.
      This definition is found in chapter 255 of the General Statutes, which is entitled “Snowmobiles and All-Terrain Vehicles.” We look to other chapters in this instance under the axiom that “[i]n construing a statute, the court may look to other statutes relating to the same subject matter for guidance.” Petco Insulation Co. v. Crystal, 231 Conn. 315, 324, 649 A.2d 790 (1994). Our reference to statutes in other chapters of the General Statutes does not change our conclusion that the definitions found in § 14-212 apply to chapter 248, as we look first for guidance to the definitions in the chapter in which the statutes in question are located. See General Statutes § 14-212 (“[t]erms in . . . chapter [248] shall be construed as follows, unless another construction is clearly apparent from the language or context in which the term is used”).

       See General Statutes § 14-286 (b) (“[n]o person shall ride a bicycle with a helper motor unless that person holds a valid motor vehicle operator’s license. No person shall operate a bicycle with a helper motor at a rate of speed exceeding thirty miles per hour; nor shall any bicycle with a helper motor be operated on any sidewalk, limited access highway or turnpike”).
      By contrast, an ATV is not permitted to be operated on a public highway except to cross it. See General Statutes § 14-387 (“[n]o person shall operate a snowmobile or all-terrain vehicle in the following manner: (1) On any public highway, except such snowmobile or all-terrain vehicle, if operated by a licensed motor vehicle operator, may cross a public highway if the crossing is made at an angle of approximately ninety degrees to the direction of the highway and at a location where no obstruction prevents a quick and safe crossing, the snowmobile or all-terrain vehicle is completely stopped before entering the traveled portion of the highway and the driver yields the right-of-way to motor vehicles using the highway”). The statutes do not require that a person hold a valid motor vehicle operator’s license to drive an ATV, unless, as Knybel makes clear, it is driven on a public road.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    JANICE ANNE KOSINSKI v. ANGELA O. CARR
    (AC 28981)
    Harper, Lavine and Peters, Js.
    Argued October 27, 2008
    officially released January 20, 2009

      Arthur C. Laske III, for the appellant (defendant).

      Darcy S. McAlister, with whom was Mark R. Carta, for the appellee (plaintiff).
   Opinion

PETERS, J.

This case concerns a real estate transaction in which neither the warranty deed for the conveyance of the property nor the antecedent contract of sale disclosed that the defendant seller’s title was restricted by a covenant of record that forbade subdivision of the property. It is undisputed that, because this restriction was an encumbrance on the property, the plaintiff buyer is entitled to recover damages for breach of warranty under the warranty deed. See Aczas v. Stuart Heights, Inc., 154 Conn. 54, 60, 221 A.2d 589 (1966). The defendant maintains, however, that the trial court improperly declined to hold that discovery of the restrictive covenant by the plaintiffs attorney prior to the closing barred the plaintiff from recovering additional damages for breach of the warranty contained in the contract for the sale of the property. In the absence of any evidence that this discovery was disclosed to the plaintiff until many years after the closing, the court rejected this contention. We agree with this ruling and the court’s assessment of damages against the defendant. Accordingly, we affirm the judgment in favor of the plaintiff.

In an amended two count complaint filed July 7,2005, the plaintiff, Janice Anne Kosinski, brought an action against the defendant, Angela O. Carr, to recover damages and attorney’s fees for breach of warranty and breach of contract with respect to the conveyance of certain residential real estate in Norwalk. The plaintiff sought monetary damages to compensate for the failure of the defendant’s warranty deed and of the underlying contract of sale to disclose the existence of a restrictive covenant that barred the plaintiff from subdividing the property into two building lots. The defendant denied her liability and filed a number of special defenses and a counterclaim including an allegation that timely discovery of the restrictive covenant by the plaintiffs attorney barred the plaintiffs reliance on this defect in the title. In response, the plaintiff denied that her attorney had disclosed his title review to her before the closing. After a trial to the court, the court found the issues in favor of the plaintiff. It awarded her damages of $100,000 for breach of warranty in the warranty deed and $96,041.74 in attorney’s fees for breach of contract. In addition, the court awarded interest and costs to the plaintiff with respect to an offer of judgment filed by the plaintiff on June 22, 2004. See Practice Book (2004) § 17-18.

Although the defendant purports to be challenging many parts of the court’s judgment, in this appeal she has pursued only three specific claims, none of which challenges the propriety of the court’s award of $100,000 to the plaintiff on her claim of breach of warranty under the deed that conveyed the property to her. Contesting only the court’s award of attorney’s fees for breach of contract, the defendant maintains that the court improperly (1) declined to hold that the plaintiff had constructive knowledge of the restrictive covenant of which her attorney had actual knowledge, (2) rejected her claim that the contract was unenforceable because there was no meeting of the minds with respect to the undisclosed restrictive covenant and (3) abused its discretion in setting the amount of attorney’s fees that it awarded to the plaintiff. We disagree with each of these claims.

The court’s careful and detailed memorandum of decision contains the following undisputed findings of fact. The defendant took title to the property in dispute following the death of her husband, Howard Carr. The property had been conveyed to her husband and his former wife in a 1955 deed that included a proviso that “the premises . . . shall not be subdivided for the purposes of sale . . . .” Attorney Howard Ignal represented the defendant during the settlement of her husband’s estate and, in that connection, received a copy of the 1955 deed. Ignal also represented the defendant when she decided to sell the property to the plaintiff and largely prepared both the contract of purchase and sale and the subsequent warranty deed. Neither of these documents made any reference to the restrictions contained in the 1955 deed.

The plaintiff and her husband, Robert Kosinski, were represented by attorney Paul D. Plotnick in this real estate transaction. Plotnick reviewed the contract for purchase and sale and added a rider thereto. Prior to the closing, when he searched the title to the property in the Norwalk land records, Plotnick noted the restrictive covenants in the 1955 deed. He did not, however, disclose the existence of this restriction to his clients, to the defendant or to Ignal. Ignal never asked Plotnick for this information.

In preparing the warranty deed conveying the property to the plaintiff, Ignal relied on a “title report” from Plotnick that referred to a lis pendens and to taxes, but did not contain any information about the subdivision restriction. Ignal did not review the terms of the 1955 deed that he had received from the defendant when she inherited the property, and he did not perform a title search.

Following the plaintiffs purchase of the property, her husband made efforts to subdivide it. Although he succeeded in getting the necessary approval from the local planning and zoning commission, he subsequently learned about the deed restrictions in the plaintiffs chain of title. He then, for the first time, was informed about these restrictions by Plotnick. Fearing litigation, the plaintiff and her husband abandoned their subdivision plan.

In a determination that has not been challenged in this appeal, the court concluded that the plaintiff had sustained her burden of proof that the restriction in the 1955 deed was valid and enforceable. That showing entitled the plaintiff to recover damages of $100,000 for breach of the warranty deed to reflect the diminished value of property that cannot be subdivided. The court declined, however, to award either consequential or incidental damages to the plaintiff on this count of the complaint.

The court also determined that the plaintiff was entitled to recover damages on the second count of her complaint, in which she sought attorney’s fees and costs in accordance with a provision for such damages in the contract of sale. The court’s award of $96,041.74 reflected its decision to reduce the recoverable amount to reflect the legal work that did not arise out of enforcement of the contract.

The defendant’s appeal challenges this award of attorney’s fees on two grounds. She maintains that the court improperly (1) rejected her contention that Plotnick’s actual knowledge of the undisclosed restriction on subdivision barred any contractual recovery by the plaintiff and (2) awarded attorney’s fees that were excessive. We disagree.

I

The defendant has proffered two arguments for reversal of the court’s award of any attorney’s fees to the plaintiff. She maintains that the court improperly faulted the manner in which she asserted her defense of “unclean hands,” in which she argued that the discovery of the restrictive covenant by Plotnick before the closing justified denial of a remedy to the plaintiff for breach of contract. She further maintains that, if the court properly had addressed the issue, she should have prevailed on the merits of her argument that the plaintiff should be held to have had constructive knowledge of information known to her attorney.

In its memorandum of decision, the court expressly declined to consider the merits of the defense of unclean hands because, in the operative pleadings, the defendant had alleged that Plotnick’s title search improperly “failed to disclose” the encumbrance on the land records. The court observed that this allegation was the opposite of the argument “being made for the first time in the posttrial papers that attorney Plotnick did know of the encumbrance.” The court further noted the absence of any posttrial effort by the defendant to amend her pleadings. Finally, on the merits of the defendant’s claim, the court observed that there might be “countervailing arguments.”

On appeal, the defendant faults the court’s decision by asserting that the defense of unclean hands need not be pleaded specially and by suggesting, at even greater length, that the court abused its discretion by failing, sua sponte, to order amendment of the pleadings to conform to the proof. The plaintiff properly disputes these claims by referring to the absence of supporting authority in the cases on which the defendant relies. We agree that the defendant has cited no persuasive authority for the proposition that, in the absence of a request on her own part, the court had an obligation to take the corrective action that she was warned to take and yet failed to take.

The court’s memorandum of decision does not identify the “countervailing arguments” that the court also considered in declining to rule on the defense of unclean hands. We note, however, that this defense is premised on the contention that the plaintiff had timely constructive knowledge of the restrictive covenant because Plot-nick discovered the restrictive covenant prior to the execution of the contract for the sale of the property. We agree with the plaintiff that the record does not support this contention. Plotnick testified that he conducted the title search after he had received the fully executed contract of sale. Consistent with this testimony, the court found that Plotnick conducted the search before the closing. There is, therefore, no finding that Plotnick’s search predated the signing of the contract. If, in the defendant’s view, there was evidence of record that would have supported such a finding, the defendant could have filed a motion for articulation, but she did not do so. See Practice Book § 66-5. Because it is the appellant’s responsibility to provide this court with an adequate record for review, an appellate court will not remand a case to correct a deficiency the appellant should have remedied. Miskimen v. Biber, 85 Conn. App. 615, 624, 858 A.2d 806 (2004), cert. denied, 272 Conn. 916, 866 A.2d 1287 (2005). We conclude, therefore, that the court did not abuse its discretion in declining to address the merits of the defendant’s argument that the doctrine of unclean hands provides a basis for denying the plaintiff a remedy for the defendant’s breach of warranty in the contract of sale. The defendant’s claim of error has neither legal nor factual support.

This conclusion is equally dispositive of the defendant’s claim, raised for the first time on appeal, that the contract of sale was unenforceable because there was no meeting of the minds. Like the claim of unclean hands, this claim also depends on the defendant’s unproven assertion that the plaintiff had constructive knowledge of the restrictive covenant at the time of her execution of the contract of sale. In light of the defendant’s failure to establish the factual premise on which this contention is based, this belated attack on the validity of the contract of sale is unsustainable.

II

The defendant’s second principal claim challenges the propriety of the court’s calculation of the attorney’s fees to which the plaintiff was entitled pursuant to the terms of the contract of sale. After excluding fees for time spent by the plaintiffs attorneys in pursuing her claims under the warranty deed, the court awarded fees of $96,041.74 to the plaintiff. The defendant argues that these fees were excessive. We disagree.

The court awarded attorney’s fees and costs to the plaintiff in accordance with paragraph twelve of the contract of sale. It arrived at its award by reviewing a sworn affidavit by the plaintiffs chief counsel, documenting that she and another attorney at her firm had worked 608.8 hours on this case. The court found that the rates charged and the bills generated for the services rendered were “reasonable.” It reduced the chargeable fees by 30 percent, however, “to reflect the work not arising out of enforcement of the contract.”

“It is well established that we review the trial court’s decision to award attorney’s fees for abuse of discretion. . . . This standard applies to the amount of fees awarded . . . and also to the trial court’s determination of the factual predicate justifying the award. . . . Under the abuse of discretion standard of review, we will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 252-53, 828 A.2d 64 (2003).

In this case, the defendant does not challenge the accuracy of the data on which the court relied in making its award. She asserts, instead, that because this case involved only a simple two count complaint raising issues that the court itself characterized as “straightforward and routine,” the court improperly found that the number of hours expended by counsel was reasonable. We are not persuaded.

In its memorandum of decision, the court addressed the reasonableness of the fees billed. It noted “numerous instances where the plaintiff was not charged for the performance of relatively routine work.” It further opined that “[wjhile it is possible to cavil at certain time entries of the attorneys and the time spent preparing this case seems extensive, it is well to remember that hindsight is not the proper test of reasonableness and that attorneys are not hired to leave stones unturned.”

We agree with the plaintiff that this record does not demonstrate a manifest abuse of discretion by the court. As the court noted in a footnote to its opinion, although the defendant was supplied with unredacted copies of the billing statements of the plaintiffs attorneys, the defendant did not avail herself of the opportunity at trial to conduct further discovery or otherwise to respond to these documents. Under the circumstances of record, the court’s conscientious efforts to make a fair award belie the defendant’s unsupported claim that the court merely “rubber-stamped” the billings of the plaintiffs attorneys.

The judgment is affirmed.

In this opinion the other judges concurred.

       As the court properly observed, even proof of the plaintiffs actual knowledge of the existence of a restrictive covenant at the time of the closing would not have barred her recovery for breach of warranty. See Berube v. Nagle, 81 Conn. App. 681, 687, 841 A.2d 724 (2004).

       In paragraph four of the contract of sale, the defendant promised to convey to the plaintiff at the closing “marketable title to the premises free from all encumbrances and defects not excepted in this contract.”

       The court noted in its memorandum of decision that “[f]or reasons not made known to the court, [a] third party complaint [against Ignal and his law firm] was withdrawn in the middle of the trial.”

       Pursuant to paragraph eighteen of the contract of sale, “covenants and agreements contained herein relating to rights, obligations or acts of the parties or either of them which are expressly to exist or be performed after delivery of the deed, shall survive such delivery.” Pursuant to paragraph twelve of the contract of sale, “[t]he parties further agree that the party who is in default shall pay all costs and expenses incurred by the other party as a result of such other party’s enforcement of this contract in Court, including a reasonable attorney’s fee.” As noted previously, the contract was drafted by the defendant’s attorney, Ignal, and modified by Plotnick.

       Although the defendant filed a motion to reargue on other grounds, she did not further challenge the court’s ruling on this issue.

       The defendant notes that Practice Book § 10-50 “specifically does not require that the special defense of ‘unclean hands’ be specially [pleaded] . . . .” We agree, however, with the plaintiffs observation that the list of special defenses in § 10-50 is illustrative rather than exhaustive. See, e.g., Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006) (“governmental immunity must be raised as a special defense in the defendant’s pleadings”). “The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way. . . . Practice Book § 120 [now § 10-50] lists some of the defenses which must be specially pleaded and proved.” (Emphasis added.) Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 6, 327 A.2d 583 (1973). We agree with the plaintiff that the court properly determined that, because the defendant’s claim is consistent with the allegations of the complaint, she was required to plead it as a special defense.
      We recognize that in Gest v. Gest, 117 Conn. 289, 300-301, 167 A. 909 (1933), our Supreme Court noted, in dicta, that “[t]he application of the clean-hands maxim does not depend upon an averment in pleadings or the claims of the parties; it may and should be applied by the court of its own volition when a situation calling for it is disclosed on the trial by evidence or otherwise.” As the plaintiff points out, however, Gest is distinguishable from the present case because that court made its statement in the context of an improper jury charge that had been given despite the plaintiffs explicit request for the proper charge.

       Cases that uphold a trial court’s exercise of its discretion to order an amendment of the pleadings do not establish that the court was required to undertake such action sua sponte. See Crowell v. Middletown Savings Bank, 122 Conn. 362, 369-70, 189 A. 172 (1937); Cheskus v. Christiano, 120 Conn. 596, 599, 182 A. 131 (1935). Cases addressing a trial court’s decision to grant or deny a litigant’s request for amendment of the pleadings, such as Miller v. Fishman, 102 Conn. App. 286, 293-94, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008), Jacob v. Dometic Origo AB, 100 Conn. App. 107, 111, 916 A.2d 872, cert. granted, 282 Conn. 922, 925 A.2d 1103 (2007) (appeal withdrawn August 7, 2007), and Cook v. Lawlor, 139 Conn. 68, 90 A.2d 164 (1952), do not address a court’s duty to intervene without timely action by a litigant.

       During examination by the plaintiffs counsel, Plotnick testified as follows:
      “Q. And do you know if you conducted that title search before or after you received the fully executed contract?
      “A. It would have been afterward.”

       We note that the court “carefully reviewed the time records and billing materials submitted by [the] plaintiffs attorneys . . . The affidavit of attorney Darcy S. McAlister referenced over forty invoices sent to the plaintiff for legal work performed by her firm during the three years between January 2, 2003, and December 14, 2006, photocopies of which were also presented at trial. This considerable and detailed record of the legal expenses incurred by the plaintiff supports her assertion that the court properly found them to be reasonable.

       The legal work that the court excluded from its award was the work attributable to the enforcement of the warranty deed rather than to the enforcement of the contract of sale.


author: HARPER, J.

text:
    ELLIN CURLEY v. LAURENCE J. KAISER ET AL.
    (AC 29031)
    Bishop, Harper and Cretella, Js.

      Argued September 16, 2008
    officially released January 20, 2009

      Douglas J. Varga, for the appellant-appellee (plaintiff).

      Alexander J. Trembicki, for the appellee-appellant (substitute defendant).
   Opinion

HARPER, J.

The plaintiff, Ellin Curley, appeals from the summary judgment, rendered by the trial court in favor of the substitute defendant Karen Kaiser, admin-istratrix of the estate of Laurence J. Kaiser. On appeal, the plaintiff claims that the court improperly granted the defendant’s motion for summary judgment by concluding that there were no genuine issues of material fact as to whether (1) Kaiser was a partner at the time of his death under a partnership agreement with the plaintiff and (2) the partnership was terminated because the affairs or business of the partnership had not been completed at the time of Kaiser’s death. The defendant cross appeals, claiming that the court improperly concluded that as a result of granting the motion for summary judgment, the defendant’s counterclaim became null or was no longer viable. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the issues presented in these appeals. The plaintiff alleged the following facts in her complaint. The plaintiff and Kaiser were formerly married to one another. In 1986, the plaintiff and Kaiser became business partners in a partnership named K& K Associates (K&K). In 1998, Kaiser transferred his interest in K&K to the plaintiff. As a result, the plaintiff was left as the sole partner in K&K. Approximately three years after Kaiser transferred his interest in K& K to the plaintiff, Kaiser sought to obtain the plaintiffs interest in an entity named Alpine Focus Fund, LP (Alpine). In 2001, when Kaiser was unable to secure the plaintiffs Alpine interest for himself, the plaintiff and Kaiser entered into an agreement (2001 amendment) that amended and revived their former partnership in K&K. The 2001 amendment provided Kaiser with an Alpine interest via a partnership interest in K&K. Specifically, the 2001 amendment provided in relevant part that (1) the partners would invest K&K’s capital into Alpine, (2) the interest in Alpine would be held in the plaintiffs name, on behalf of and for the benefit of K&K, (3) the ownership percentage in the opening capital account for Kaiser and the plaintiff would be 20 and 80 percent, respectively, and (4) a specified formula would determine the value of the closing capital account.

The plaintiff further alleged that after the 2001 amendment was created, Alpine, which was valued at $980,000, was the only asset held by the parties under the K& K partnership. The ownership interest in the opening capital account was valued at $196,000 for Kaiser and $784,000 for the plaintiff. In 2002, the value of Alpine decreased significantly, which resulted in the plaintiffs selling K&K’s interest in Alpine for approximately $119,000. The plaintiff alleged that on the basis of the 2001 amendment’s formula for the closing capital account, the value of the ownership interest of Kaiser’s closing capital account was approximately negative $450,000, and the value of the plaintiffs interest was positive $569,000. When the plaintiff attempted to collect from Kaiser his pro rata share of the losses suffered by Alpine, Kaiser refused to pay.

In response to Kaiser’s refusal, the plaintiff filed a three count complaint against Kaiser and K&K. In count one, the plaintiff alleged that because K&K was no longer engaged in acquiring, owning or selling investments, it should be dissolved and the business affairs wound up with a judicial accounting and settlement. In count two, the plaintiff alleged a breach of contract by Kaiser because he refused to pay his share of the loss in Alpine in violation of his obligation under the 2001 amendment.

Kaiser denied the plaintiffs allegations and filed a five count counterclaim. A two day trial began on October 20, 2005. One month after the trial ended, while the parties awaited trial transcripts, Kaiser died. The administratrix of his estate was substituted as a party. See footnote 1. On August 7, 2006, while the parties were awaiting the court’s ruling, the defendant filed a motion for summary judgment on counts one and two of the plaintiffs complaint. She argued that she was entitled to judgment in her favor, as a matter of law, because no genuine issue as to any material fact existed. Specifically, the defendant claimed that Kaiser was a partner at the time of his death under the terms of the 2001 amendment. Accordingly, Kaiser was not liable to the plaintiff by virtue of a provision in the 2001 amendment stating that upon Kaiser’s death, if he was still a partner, K&K was to terminate, and the value of Kaiser’s ownership interest in the closing capital account would be zero, with no further obligation on the plaintiff or K&K. In opposition to the defendant’s motion for summary judgment, the plaintiff asserted that the 2001 amendment’s provision was not controlling because K&K was no longer in existence by the time of Kaiser’s death, and, as a result, no partnership existed for Kaiser to be a partner.

On July 9, 2007, the court agreed with the defendant and rendered summary judgment in her favor as to counts one and two of the plaintiffs complaint. The court decided count three in favor of the defendant on the merits. See footnote 5. As to the defendant’s counterclaim, the court concluded that as a result of its decision to render summary judgment, the counterclaim was “a nullity . . . .” See footnote 16. This appeal and cross appeal followed. Additional facts will be set forth as necessary.

I

THE APPEAL

Before considering the plaintiffs claims on appeal, we first note the well established standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Viola v. O’Dell, 108 Conn. App. 760, 763-64, 950 A.2d 539 (2008). A material fact is “a fact which will make a difference in the result of the case.” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). “[I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Internal quotation marks omitted.) Precision Mechanical Services, Inc. v. T.J. PFund Associates, Inc., 109 Conn. App. 560, 564, 952 A.2d 818, cert. denied, 289 Conn. 940, 959 A.2d 1007 (2008).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the defendants as a matter of law, our review is plenary and we must decide whether the trial court’s conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) Alexander v. Vernon, 101 Conn. App. 477, 482-83, 923 A.2d 748 (2007).

The plaintiff claims that the court improperly concluded, as a matter of law, that Kaiser was a partner in K&K at the time of his death under the 2001 amendment and that the partnership’s affairs were not completed at the time of his death. Specifically, the plaintiff contends that the court improperly (1) applied General Statutes § 34-373, (2) failed to rely on certain events that led to the dissolution and termination of the partnership prior to Kaiser’s death, which the plaintiff posits demonstrated that the partnership was no longer in existence, and (3) concluded that a provision in the 2001 amendment governed after Kaiser’s death. We will address each contention in turn.

A

The plaintiff first argues that the court improperly applied § 34-373 because the manner in which the court applied the statute deprived her of an assessment of damages in her favor because Kaiser died prior to the court’s rendering judgment. We disagree.

Initially, we must determine whether the court’s conclusions find support in the record. In response to the motion for summary judgment, the plaintiff filed an affidavit and averred that K&K “could not and did not continue as an ongoing entity, since [Alpine] was its sole asset and sole reason for existing. . . . Since [Alpine] was liquidated on December 31, 2002, the partnership has been in limbo, waiting for a legal termination and distribution of assets.” (Emphasis added.) At oral argument on the motion for summary judgment, the plaintiff argued that Kaiser “no longer was a partner on the date of liquidation of the sole partnership asset . . . [or] . . . when [the plaintiff] . . . demanded a final accounting . . . [or] by the point in time when [the plaintiff] is forced to file a lawsuit to obtain a judicial [dissolution].”

The court relied on § 34-373, which provides that a partnership continues after dissolution for purposes of winding up its business. See footnote 8. The court noted that a fair reading of § 34-373 provides that “a partner is a partner under the terms of [the statute] until the winding up of the partnership affairs (or its business) is completed.” As a result, the court concluded that K& K continued to exist beyond any point of dissolution, making Kaiser a partner at his death.

Nonetheless, on appeal, the plaintiff argues that the application of § 34-373 is “different when the winding up process is the subject of litigation, and the partnership’s sole business purpose had ceased to exist years before.” She further asserts that the partnership was “ ‘wound up’ and completed upon the liquidation of the sole partnership asset [Alpine].”

Because the issue of whether the court properly interpreted and applied § 34-373 involves a question of statutory interpretation, our review is plenary. See Magee v. Commissioner of Correction, 105 Conn. App. 210, 214, 937 A.2d 72, cert. denied, 286 Conn. 901, 943 A.2d 1102 (2008). “When interpreting a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn. App. 541, 575, 905 A.2d 1214, cert. denied, 280 Conn. 942, 943, 912 A.2d 479 (2006). “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” General Statutes § l-2z.

Section 34-373 (a) provides in relevant part that “a partnership continues after dissolution only for the purpose of winding up its business. The partnership is terminated when the winding up of its business is completed.” The plaintiff claims that the terms “winding up” and “completed,” as used in § 34-373, are synonymous with the partnership winding up because it is subject to litigation or because the partnership completed the liquidation of assets, without a distribution. Although the terms “winding up” or “complete” are not defined by statute, we turn to General Statutes § 1-1 (a), which provides in relevant part: “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . .” Therefore, we look to the dictionary definition of the terms to ascertain their commonly approved meaning. See Rivers v. New Britain, 288 Conn. 1, 17, 950 A.2d 1247 (2008).

Webster’s Third New International Dictionary defines “wind up” as “to put in order for the purpose of bringing to an end” and “complete” as “to bring to an end often into or as if into a finished or perfected state.” Black’s Law Dictionary (7th Ed. 1999) defines “winding up” as “[t]he process of settling accounts and liquidating assets in anticipation of a partnership’s . . . dissolution.” (Emphasis added.)

“A cardinal rule of statutory construction is that where the words of a statute [or rule] are plain and unambiguous the intent of the [drafters] in enacting the statute [or rule] is to be derived from the words used. . . . Where the court is provided with a clearly written rule, it need look no further for interpretive guidance. . . . We are constrained to read a statute as written . . . and we may not read into clearly expressed legislation provisions which do not find expression in its words.” (Citation omitted; internal quotation marks omitted.) Bank of New York v. National Funding, 97 Conn. App. 133, 140-41, 902 A.2d 1073, cert. denied, 280 Conn. 925, 908 A.2d 1087 (2006), cert. denied sub nom. Reyad v. Bank of New York, 549 U.S. 1265, 127 S. Ct. 1493, 167 L. Ed. 2d 229 (2007).

Viewed in the context of § 34-373, and on the basis of the common usage of the relevant terms, the partnership is terminated when its business is put in order for the purpose of bringing the partnership to an end by the process of settling accounting and liquidating assets and when it is then brought to an end. Consequently, we believe the court correctly applied § 34-373. At the time of Kaiser’s death, K&K was not yet terminated because the partnership was in the process of putting its business affairs in order for the purpose of termination. Although the partnership assets of K& K had been liquidated prior to the plaintiffs filing her complaint, the assets were in an investment account pending distribution at the time of Kaiser’s death. As a result, we are not persuaded that the court improperly applied the statute to the facts of this case.

B

The plaintiff next argues that the court improperly failed to rely on certain events that, the plaintiff posits, led to the dissolution and termination of the partnership prior to Kaiser’s death. We disagree.

The plaintiff argues that Kaiser’s “death had no effect . . . under the partnership agreement because the partnership . . . had been dissolved and terminated by operation of law” upon liquidation of the sole partnership asset, Alpine, or at the latest upon filing of the lawsuit. The plaintiff asserts that a series of events, which occurred prior to Kaiser’s death, caused a dissolution and termination of the partnership that ended Kaiser’s status as a partner. The court found that as of Kaiser’s death, “the affairs or business of the subject partnership was not completed and therefore [Kaiser was] still being a partner, upon his demise . . . .”

After review of the record, we conclude that regardless of whether the court considered the various events enumerated by the plaintiff, no genuine issue of material fact existed as to whether those events altered Kaiser’s partnership status. The act of dissolution is “merely the commencement of the winding up process. . . . Winding up the partnership business entails selling its assets, paying its debts, and distributing the net balance, if any, to the partners in cash according to their interests. . . . When the winding up is completed, the partnership entity terminates. . . . Dissolution is not in itself a termination of the partnership or the rights and powers of partners, for many of these persist during the winding up process. Rather, the term is descriptive of a change in the partnership relation which ultimately culminates in its termination, and is but a preparatory step to termination in which an accounting and a wind-up of the business are also necessary steps.” 59A Am. Jur. 2d Partnership § 550 (2003). After dissolution, partners are still held to be liable, and have duties to maintain, amongst each other. See General Statutes §§ 34-377 and 34-378.

In this case, Kaiser’s status as a partner was not altered by any of the events enumerated by the plaintiff because a dissolved partnership maintains legal existence, as provided in the plain meaning of § 34-373; see part I A; until termination, which occurs after all partnership affairs have been wound up.

C

Last, the plaintiff argues that the court improperly concluded that a provision in the 2001 amendment governed after Kaiser’s death. We disagree.

Because this issue involves the interpretation of a contract, our review is plenary, and we must determine whether the court’s conclusions find support in the record. “The law governing the construction of contracts is well settled. When a party asserts a claim that challenges the . . . construction of a contract, we must first ascertain whether the relevant language in the agreement is ambiguous. ... A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. . . . Accordingly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . When the language of a contract is ambiguous, the determination of the parties’ intent is a question of fact .... Moreover, in construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous. ... If a contract is unambiguous within its four corners, intent of the parties is a question of law requiring plenary review. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . .” (Citation omitted; internal quotation marks omitted.) O’Connor v. Waterbury, 286 Conn. 732, 743-44, 945 A.2d 936 (2008). We examine the construction of the 2001 agreement mindful of the fact that we have a contract formed between two parties of relatively equal bargaining power. See id.

The plaintiff argues that the provision of the 2001 amendment, affecting the existence of the partnership upon Kaiser’s death, was not germane. In support of her argument, the plaintiff cites decisional law from other jurisdictions, which hold that a partner’s postdissolution death does not permit the enforcement of a provision in a partnership agreement governing the partnership’s continued existence and operation following the death of a partner. See, e.g., Parduhn v. Bennett, 61 P.3d 982 (Utah 2002) (where partnership dissolves prior to partner’s death, buy-sell agreement rendered ineffective), aff'd after remand, 112 P.3d 495 (Utah 2005); Girard Bank v. Haley, 460 Pa. 237, 242, 332 A.2d 443 (1975) (“[i]f . . . dissolution occurred during the lifetime of [the withdrawing partner seeking judicial dissolution and accounting] those portions of the agreement, which are concerned solely with the effect of the death of a partner, are not germane”); Goergen v. Nebrich, 12 Misc. 2d 1011, 174 N.Y.S.2d 366 (partnership agreement’s death provisions apply only if dissolution occurred as result of partner’s death), appeal dismissed, 7 App. Div. 2d 620, 179 N.Y.S.2d 677 (1958).

The plaintiff argues that those cases are relevant because they address how provisions within a partnership agreement should govern after a partnership’s dissolution. She further asserts that the court should follow this decisional case law and conclude that the 2001 amendment’s provision was not germane. The court, however, noted that the applicability of the provision at issue “does not depend on the viability [or the continued existence] of the partnership [because the partnership] was in the process of dissolution and winding up.” (Emphasis added.) We agree with the court’s inteipretation of the provision.

In this case, the provision, as noted by the court, was not intended to govern issues related to the continued existence or operation of K&K upon the death of a partner. Rather, the provision explicitly governed the distribution of assets for the purpose of terminating the partnership upon a partner’s death. See footnote 13. Additionally, in an affidavit submitted in support of her objection to the defendant’s motion for summary judgment, the plaintiff expressly states that “[t]he underlying purpose of Paragraph 12 was to protect our children .... to make sure that they would not have to pay money up a generation to a living parent.” Therefore, the type of agreement between the plaintiff and Kaiser, which was intended to wind up the partnership, was different from one intended to govern the continued existence of a partnership following the death of a partner. The court properly enforced the 2001 amendment’s provision when it assessed the distribution of assets among the partners and concluded that Kaiser’s ownership interest in the capital account was zero because Kaiser was still a partner at his death.

II

CROSS APPEAL

The defendant claims that the court improperly concluded that her counterclaim was no longer viable. We disagree.

On the basis of the court’s decision to render summary judgment in favor of the defendant, the court concluded that the defendant’s counterclaim was no longer viable. As this issue is a legal determination, our review is plenary. See Dockter v. Slowik, 91 Conn. App. 448, 456, 881 A.2d 479 (“We use the plenary standard to review a trial court’s conclusions of law. . . . Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the [court].” [Citation omitted; internal quotation marks omitted.]), cert. denied, 276 Conn. 919, 888 A.2d 87 (2005).

“Mootness is a threshold issue that implicates subject matter jurisdiction, which imposes a duty on the court to dismiss a case if the court can no longer grant practical relief to the parties. . . . Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties.” (Internal quotation marks omitted.) Wilcox v. Ferraina, 100 Conn. App. 541, 547, 920 A.2d 316 (2007).

On cross appeal, the defendant argues that she should be given an opportunity to present her case for fraudulent misrepresentation because Kaiser was forced to defend against a partnership claim, after relying on the plaintiffs assertions, at the time the 2001 amendment was entered into, that no partnership was being created. The defendant’s counterclaim on fraudulent misrepresentation hinges on whether the former partnership between the plaintiff and Kaiser was revived by the 2001 amendment. To succeed, the defendant would have to show that the former partnership between the plaintiff and Kaiser was never intended to be revived by the 2001 amendment, and, as a result of the plaintiffs fraudulent behavior in alleging that a partnership did exist, the defendant was forced to defend against a partnership claim.

The court, however, in rendering summaiy judgment in favor of the defendant, concluded that a partnership did exist. The court’s decision relied on the plaintiffs factual allegations that a partnership existed under the terms of the 2001 amendment. Because we agree with the court’s conclusion that a partnership existed, the defendant could not prevail on her counterclaim because there was no practical relief to be granted.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant Laurence Kaiser died on November 24,2005. Karen Kaiser, in her capacity as the administratrix of the estate of Laurence Kaiser, was substituted as a defendant, and we refer to her as the defendant in this opinion. All references to Kaiser in this opinion are to Laurence Kaiser. The plaintiff also named K&K Associates as a defendant; however, K&K Associates is not a party to this appeal.

       The plaintiffs mother was also a business partner; however, in 1998, the plaintiffs mother withdrew as a partner.

       The formula for the closing capital account would be “adjusted, calculated and determined at the end of each Fiscal Period or subsequent calendar year (or portion of a calendar year) by an amount equal to the sum of (i) seventy-five (75%) per cent of the change in value of the Partnership’s interest in Alpine . . . plus (ii) two and one-half (2.5%) per cent of the value of the greater of (x) [Kaiser’s] Restated Opening Capital Account or (y) [Kaiser’s] Restated Opening Capital Account as of the beginning of that subsequent calendar year, as adjusted in accordance herein . . .

       The plaintiff alleged that the specified fonnula called for Kaiser’s share to have 75 percent of the change in Alpine’s value from when the 2001 amendment was entered into by the parties to when the interest was sold, regardless if it was a gain or loss.

       Count three of the complaint alleged that Kaiser fraudulently misrepresented that he would have a 75 percent share of any change, gain or loss, in the value of K&K’s interest in Alpine. The plaintiff alleged that she relied, to her detriment, on Kaiser’s representation. In her appeal, the plaintiff challenges only the court’s summary judgment with regard to counts one and two. Thus, we need not address count three in any further detail because the court’s finding in favor of the defendant on the merits of count three is not an issue raised on appeal.

       The five counts alleged: (1) fraudulent misrepresentation; (2) negligent misrepresentation; (3) mutual mistake; (4) breach of fiduciary duty; and (5) violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

       Although the defendant’s claims can be viewed as distinct and separate, our consideration of one necessarily implicates the other, and, consequently, we will discuss the claims together.

       General Statutes § 34-373 (a) provides in relevant part: “[A] partnership continues after dissolution only for the purpose of winding up its business. The partnership is terminated when the winding up of its business is completed.”

       The plaintiff asserts that had the court rendered judgment prior to Kaiser’s death, she may have been awarded damages and moneys owed to her under the 2001 amendment.

       As noted by the court, although the terms of the original partnership agreement provide that New York law is to be applied to resolve disputes arising under the partnership agreement, the court concluded that the issue of whether the laws of the state of Connecticut or the state of New York applied was moot because the controlling section of each state’s applicable statutory provision are almost identical. This is not an issue raised on appeal.

       The plaintiff argues that any delay in distribution was caused by the parties’ awaiting a judgment by the court on the trial, which would have resolved the issue on how the assets should be distributed to the partners. This argument is not persuasive because there is no guarantee that had a judgment been rendered, prior to Kaiser’s death, that K&K would have been terminated at that immediate moment, as it may have taken additional time to actually comply with the court’s judgment.

       The events enumerated by the plaintiff were: (1) the sole partnership asset was liquidated; (2) Kaiser had refused the plaintiffs request for an accounting; (3) Kaiser had refused to participate in the winding up process; (4) the plaintiff was forced to file an action to seek a judicial dissolution, winding up and accounting of K&K’s affairs; and (5) the trial concluded and the parties were preparing for posttrial briefing of the issues.

       The provision, paragraph twelve of the 2001 amendment, provides: “Notwithstanding anything in the Agreement or herein to the contrary, upon the death of [Laurence Kaiser] (if he is a Partner upon his demise) the Partnership shall terminate, his Closing Capital Account shall be zero and there shall be no further obligation of the [plaintiff] or the Partnership to his estate or successors or assigns.”

       The plaintiff cites cases outside our jurisdiction, in support of her argument, because there is no Connecticut case law that specifically addresses the effect of a postdissolution death on a provision, within a partnership agreement. But see footnote 15.

       Our Supreme Court has noted that parties are allowed, during their lifetime, to “make an enforceable agreement as to the way in which the value of the interest of a deceased partner in the partnership assets is to bo determined after his death.” Casey v. Hurley, 112 Conn. 536, 542, 152 A. 892 (1931).

       As we understand it, the court’s ruling, which states that the “defendant’s counterclaim has become a nullity,” meant that all five counts of the defendant’s five count counterclaim were no longer viable on the basis of the court’s determinations in rendering summary judgment in favor of the defendant.

       Although the defendant has filed a five count counterclaim against the plaintiff, the defendant solely challenges the court’s decision as it relates to her counterclaim for fraudulent misrepresentation. As a result, the defendant’s remaining four counts, which alleged breach of fiduciary duty, negligent misrepresentation, mutual mistake and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., are not issues briefed on appeal.


author: BISHOP, J.

text:
    KIMBERLY GAMBLE-PERUGINI v. MICHAEL C. PERUGINI, SR.
    (AC 29280)
    Bishop, Gruendel and Lavine, Js.

      Argued October 20, 2008
    officially released January 20, 2009

      Lori Welch-Rubin, for the appellant (defendant).

      William F. Gallagher, with whom, on the brief, was Rosemary E. Giuliano, for the appellee (plaintiff).

      Stephen R. Griffin, for the guardian ad litem for the minor children.
   Opinion

BISHOP, J.

The defendant, Michael C. Perugini, Sr., appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Kimberly Gamble-Perugini. On appeal, the defendant claims that the court’s alimony, property disposition and educational support orders were improper. We affirm the judgment of the trial court.

The record discloses the following relevant information. The plaintiff and the defendant were married on December 27, 1992. They have two minor sons, bom in 1993 and 1996. When the parties married, the defendant was the owner of a successful lingerie business. After the defendant closed that business in 1994, the parties operated a successful sports bar, which they sold in 1999. Thereafter, the defendant acquired several properties from which rental income was earned. Additionally, the plaintiff became a real estate agent.

At the time of trial, the plaintiff was thirty-nine years old and the defendant was fifty-four. The plaintiff earned $37,594 in 2006 and $14,700 in 2005 in real estate commissions. Although the defendant had not yet filed his 2006 tax return, he reported an income of $67,025 for 2005.

In assessing the parties’ respective incomes and the value of assets, the court did not credit the defendant’s testimony in light of his lifestyle, which included the cost of owning a nine passenger plane and paying for the services of a pilot. Following trial, the court observed that the defendant’s testimony lacked any degree of credibility. The court found his answers to questions to be inconsistent and contradictoiy, his memory lapses convenient and unbelievable, and the information contained in his financial affidavits to be untrustworthy. Indeed, the court observed in a post-judgment proceeding on the defendant’s motion to set aside the judgment and for articulation that the defendant had been, perhaps, the least credible witness the court had confronted in nearly two decades.

On the basis of its findings, the court issued orders regarding custody, child support, the defendant’s health insurance coverage, allocation of assets and attorney’s fees. Relevant to the issues on appeal, the court made the following orders:

“The defendant shall be responsible for 75 percent of the children’s private school tuition and the plaintiff for 25 percent. . . .

“The defendant shall transfer to the plaintiff all of his right, title and interest in the following real estate: 67 Dallas Terrace, Waterbury; 21 Wolcott Street, Bristol; 50 Spring Brook Road, Waterbury; 62 Jacobs Street, Bristol; and 73 Race Street, Bristol. . . .

“The defendant is awarded the following properties: 84 Harrison Drive, Wolcott; 198 Park Street, Bristol; 41 Steams Street, Bristol; 309 Park Street, Bristol; 353 Park Street, Bristol; 22 Emmet Street, Terryville; 372 Park Street, Bristol; and 277 North Main Street, Winsted. . . .

“The defendant shall pay to the plaintiff periodic alimony in the amount of $100 per week. Said alimony shall terminate upon the death of either party, the remarriage of the plaintiff or ten years from the date of the dissolution of the marriage of the parties, whichever shall first occur.” This appeal followed. Additional facts will be set forth as necessary.

We begin our assessment of the defendant’s claims by considering the scope of our review. “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.” (Internal quotation marks omitted.) Cleary v. Cleary, 103 Conn. App. 798, 800-801, 930 A.2d 811 (2007).

I

We first consider the defendant’s claims regarding the court’s disposition of assets. The defendant claims that the court abused its discretion by improperly refusing to consider evidence he provided regarding the income stream from the rental properties in determining the property allocation. He further claims that as a consequence of the court’s allocation of property, he is left with insufficient income to pay the court orders of child support, education costs and alimony. We are unpersuaded.

The following additional information is relevant to our consideration of the defendant’s claim. At trial, the only evidence that the defendant offered regarding the income generated by the parties’ rental properties was a listing on his financial affidavit of the combined gross income of the properties. Notably, this affidavit failed to specify the rental income per unit. The plaintiff, on the other hand, presented testimony from a real estate appraiser regarding the values on the parties’ rental properties on the basis of comparable sales prices. In considering these properties, the court assessed them by using the comparable sales approach and, in doing so, did not credit the defendant’s claims regarding the income derived from them.

“When assigning the parties’ property in a marriage dissolution, [General Statutes] § 46b-81 (c) in relevant part requires the court to consider ‘the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.’ The court has wide latitude in applying those criteria to the particular circumstances of the case, and although the court must consider all the statutory criteria in dividing property in a dissolution action, it does not need to make an express finding as to each criterion.” (Citations omitted.) Tracey v. Tracey, 97 Conn. App. 122, 130-31, 902 A.2d 729 (2006).

In claiming that the court did not consider the income generated by these properties, the defendant erroneously conflates the notion of considering with crediting. The court considered and clearly rejected the defendant’s claims in this regard. Instead, as noted, the court fashioned its orders on the appraised values of the properties in allocating them between the parties. On the basis of the appraised values of the properties, the defendant received approximately 54 percent of the properties at a value of $2,409,000, and the plaintiff received the remaining 46 percent at a fair market value of $2,057,061.

The court’s orders regarding the division of the rental properties was well within the parameters of its discretion. Moreover, the defendant’s failure to present any credible evidence regarding the impact that the property division of the rental properties would have on his income and the income stream generated from the rental properties deprived the court of the ability to make any findings in this regard. We conclude, therefore, that the court’s division of the parties’ real estate was not an abuse of discretion.

fl

The defendant next claims that the court improperly awarded the plaintiff $100 a week in alimony for a term of ten years. He argues that because the rental properties awarded to the plaintiff generate substantial income and she earns additional income as a real estate agent, there is no legal or factual rationale to justify the periodic alimony. We disagree.

In dissolution proceedings, the court must fashion its financial orders in accordance with the criteria set forth in General Statutes § 46b-82, which governs awards of alimony. See Bartel v. Bartel, 98 Conn. App. 706, 711, 911 A.2d 1134 (2006). “In particular, rehabilitative alimony, or time limited alimony, is alimony that is awarded primarily for the purpose of allowing the spouse who receives it to obtain further education, training, or other skills necessary to attain self-sufficiency. . . . Rehabilitative alimony is not limited to that purpose, however, and there may be other valid reasons for awarding it.” (Internal quotation marks omitted.) Dees v. Dees, 92 Conn. App. 812, 820, 887 A.2d 429 (2005).

On the basis of our review of the record, we conclude that the court did not abuse its discretion in awarding the plaintiff alimony for a period of ten years. Although there is evidentiary support for the defendant’s claim that the plaintiff received properties from which she will earn rental income and that she also works as a real estate agent, testimony regarding the parties’ marriage also revealed that, for most of the years the parties were together, the plaintiff was the primary caretaker for the children and that her earnings from employment were modest. Under all the circumstances presented to the court, its order for the payment of durational alimony was not an abuse of discretion.

Ill

The defendant also claims that the court improperly accepted the plaintiffs proposed property division without modification. In essence, he appears to claim that the mere fact that the court adopted the proposed orders of the plaintiff reflects a bias on the part of the court. This claim requires little analysis. In a contested matter, if one party proposes an outcome that the court determines to be just and equitable after hearing all the evidence, it can hardly be said that the court’s agreement with that party’s proposed orders reflects any more than a consonance of views. Moreover, the record reveals that the court’s orders did not mirror the plaintiffs proposed orders. Indeed, although the plaintiff requested a distribution of $120,000 from a securities account, the court’s award to her in this regard was $80,000. Additionally, the court awarded $25,000 to the plaintiff in counsel fees and not $40,000 as she had requested. Finally, there is no suggestion that the court failed to exercise its independent judgment in framing its orders in this matter. Accordingly, this claim fails.

IV

The defendant finally claims that the court improperly ordered him to assume 75 percent of the children’s private school tuition costs, given the substantive income shift resulting from the court's allocation of the rental properties.

The following additional facts are relevant to our discussion of this issue. At trial, the court heard testimony that the parties’ older son attends the Taft School and the younger son attends Chase Collegiate School. The children’s education costs a total of $55,000 per year.

Our Supreme Court has held that “courts have the power to direct one or both parents to pay for private schooling, if the circumstances warrant. It is a matter to be determined in the sound discretion of the court on consideration of the totality of the circumstances including the financial ability of the parties, the availability of public schools, the schools attended by the children prior to the divorce and the special needs and general welfare of the children.” (Internal quotation marks omitted.) Hardisty v. Hardisty, 183 Conn. 253, 262, 439 A.2d 307 (1981). Here, the defendant makes no claim that it was inappropriate for the court to make any provision for the children’s private educational expenses, as it is clear from the record that both children were attending private schools and neither parent claimed that it was inappropriate for either child to continue in a private educational setting. Indeed, both parties agreed that the boys would likely continue to thrive in their respective schools.

As to the defendant’s claim that the obligation imposed on him was disproportionately high in light of the property allocation, this claim fails because he did not provide the court with credible evidence regarding the income stream generated by each rental property. On the basis of the credible information presented to the court, including the defendant’s lifestyle, which belied his income claims, the court’s educational order was a reasonable exercise of its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.