text:
    WEBSTER BANK v. CHARLES FLANAGAN ET AL.
    (AC 17530)
    O’Connell, C. J., and Foti and Spear, Js.

      Submitted on briefs October 29, 1998
    officially released February 16, 1999

      Paul N. Gilmore filed a brief for the appellant (defendant D.A.N. Joint Venture, A Limited Partnership).

      Richard B. Cramer filed a brief for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant D.A.N. Joint Venture, A Limited Partnership (D.A.N.), appeals from a judgment of strict foreclosure rendered by the trial court. The plaintiff, Webster Bank (Webster), commenced this action to foreclose a mortgage from the defendant Charles A. Flanagan by way of a complaint filed on November 19, 1996. The trial court granted Webster’s motion to cite in D.A.N. on January 8, 1997. D.A.N. argues on appeal that the trial court improperly (1) made numerous evidentiary rulings and (2) granted Webster’s motion for strict foreclosure because Webster had failed to prove the essential elements of its case. We hold that the trial court’s evidentiary rulings were proper and that it properly found that Webster had proved its case. Accordingly, we affirm the judgment of the trial court.

Webster, through documents and testimony by Lisa Siedlarz-Jones, residential legal manager of Webster, introduced the following facts into evidence. On January 12, 1989, Flanagan executed an adjustable rate note with First Constitution Bank for $127,000 plus interest secured by an open-ended mortgage on Flanagan’s property at 127 Whitney Avenue in Hamden. The mortgage was recorded in the Hamden land records on January 20, 1989.

On October 1, 1992, First Constitution Bank was declared insolvent by the Superior Court and the Federal Deposit Insurance Corporation (FDIC) was appointed receiver. That order was also recorded in the Hamden land records. On October 2,1992, the FDIC entered into a purchase and assumption agreement assigning to First Federal Bank (First Federal) all “right, title, and interest of the Receiver in and to certain assets of First Constitution . . . The FDIC prepared a notice of transfer listing all of the properties located in Hamden as to which it was transferring its interest as receiver to First Federal. This notice of transfer was executed on December 17,1992, and was duly recorded in the Hamden land records.

On November 1,1995, First Federal merged with Webster. As a result, Webster became the holder of all of First Federal’s assets, including its mortgages. A change of name certifícate declaring that First Federal had merged with Webster and officially changed its name to Webster Bank was filed in the Hamden land records on December 27, 1995. Webster initiated the present proceeding because Flanagan defaulted on his obligations under the First Constitution Bank note.

I

D.A.N. argues that the trial court made six improper evidentiary rulings. The rulings relate to the admission of (1) the adjustable rate note, (2) the open-ended mortgage deed, (3) the notice of transfer, (4) the change of name certificate, (5) a computer printout of Flanagan’s loan history and (6) an affidavit of debt prepared by Siedlarz-Jones. We disagree with D.A.N. that the admissions were improper.

“It is well settled that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . 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. . . . State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., 247 Conn. 24, 37, 718 A.2d 425 (1998).

A

D.A.N. argues that the adjustable rate note was improperly admitted because Webster failed to establish its authenticity. D.A.N. contends that Webster failed to authenticate the signature on the adjustable rate note as that of Flanagan. For a writing to be admitted into evidence, it must first be authenticated. A writing may be authenticated by identifying the signature contained in the document. Hamilton v. Smith, 74 Conn. 374, 379, 50 A. 884 (1902); Nichols v. Alsop, 10 Conn. 262, 267 (1834). “[W]here a writing is not witnessed, its authentication ordinarily requires proof merely of the signature of the writer.” Shulman v. Shulman, 150 Conn 651, 657, 193 A.2d 525 (1963). A signature can be authenticated by a signatory to the document by acknowledgment. A signature can additionally be proved by a witness to the execution of the document or by a witness who is familiar with the signature in question and attests that it is genuine. See Tyler v. Todd, 36 Conn. 218, 222 (1869); Lyon v. Lyman, 9 Conn. 55, 59 (1831).

In the present case, Siedlarz-Jones was familiar with Flanagan’s signature. D.A.N. objected on the ground that the witness did not have personal knowledge of Flanagan’s signature. Siedlarz-Jones testified that she became familiar with Flanagan’s signature by reviewing other documents. Siedlarz-Jones testified that she saw Flanagan’s signature on the mortgage and on a notarized affidavit.

D.A.N. further argues that Webster was required to present to the court the exemplars on which the comparison of Flanagan’s signature was based. It is true that comparison specimens must be proven. Hayward v. Maroney, 86 Conn. 261, 263, 85 A. 379 (1912). Here, however, Webster sought to prove the authenticity of Flanagan’s signature on the note through the testimony of Siedlarz-Jones, not by comparison of that signature with exemplars. It is of no moment that Siedlarz-Jones was not a handwriting expert, as anyone familiar with the signature in question may testify as to its authenticity. Hamilton v. Smith, supra, 74 Conn. 379-80. “Adequate familiarity may be present if the witness has seen the person write, or if he has seen writings purporting to be those of the person in question under circumstances indicating their genuineness.” (Emphasis in original.) 2 C. McCormick, Evidence (4th Ed. 1992) § 221, p. 41. Siedlarz-Jones viewed Flanagan’s signature under such circumstances. As noted above, she testified that she saw his signature on a notarized affidavit. An acknowledgment before a notary public “serves to authenticate the instrument by furnishing formal proof, through the action of the public official taking the acknowledgment, that the instrument was actually executed by the person whose signature appears upon it.” Commercial Credit Corp. v. Carlson, 114 Conn. 514, 517, 159 A. 352 (1932). Given such strong indication that the signature on the affidavit was genuine, we cannot find that the trial court abused its discretion in crediting Siedlarz-Jones’ authentication testimony and in admitting the adjustable rate note.

B

D.A.N. next claims that the trial court improperly admitted the open-ended mortgage deed, arguing that the mortgage lacked sufficient authentication. We hold that the reasoning of part I A also applies to the mortgage.

D.A.N. also argues that because Connecticut is a title theory state, Webster was required to produce the original mortgage at trial and to authenticate it through a subscribing witness to the mortgage. D.A.N. claims that Webster failed to authenticate the mortgage properly. D.A.N. relies on Loewenberg v. Wallace, 147 Conn. 689, 696, 166 A.2d 150 (1960), for this proposition. See also Remington Investments, Inc. v. National Properties, Inc., 49 Conn. App. 789, 797, 716 A.2d 141 (1998). The trial court, however, had a proper foundation to admit the mortgage. The mortgage was subscribed by two witnesses as required by General Statutes § 47-5. Additionally, the mortgage was attested to by Flanagan in the presence of a commissioner of the Superior Court. An acknowledgment “serves to authenticate the instrument by furnishing formal proof, through the action of the public official taking the acknowledgment, that the instrument was actually executed by the person whose signature appears upon it.” Commercial Credit Corp. v. Carlson, supra, 114 Conn. 517.

“It is difficult to explain why there should be a requirement for both subscribing witnesses and an acknowledgment, since the taking of an acknowledgment and the use of a subscribing witness both accomplish the same purpose—assuring that the conveyance is genuine and not fraudulent. The voluntary use of witnesses at common law predated the development of the acknowledgment, and certainly was a valuable tool to prove a document, especially when general illiteracy caused many signatures to be made with marks. Today, with the ready availability of notaries public, the objective of establishing genuineness can usually be accomplished with an ‘official -witness,’ the notarial officer. In any event, it seems redundant to require both witnesses and an acknowledgment.” 14 R. Powell, Powell on Real Property (1998) § 898 (1) (h), p. 81A-73. We believe that the acknowledgment takes the place of the testimony or proof of the unavailability of a subscribing witness. The trial court was within its bounds in admitting the mortgage.

C

D.A.N. next claims that the trial court improperly admitted the notice of transfer, arguing that the notice does not comply with General Statutes §§ 47-5, 47-10 and 49-10 and therefore is inadmissible. We are unpersuaded.

Section 47-5 provides in relevant part: “(a) All conveyances of land shall be: (1) In writing; (2) if the grantor . . . is a corporation, limited liability company or partnership, subscribed by a duly authorized person; (3) acknowledged by the grantor ... or such duly authorized person to be his free act and deed; and (4) attested to by two witnesses with their own hands.” General Statues § 47-10 provides: “No conveyance shall be effectual to hold any land against any other person but the grantor and his heirs, unless recorded on the records of the town in which the land lies. When a conveyance is executed by a power of attorney, the power of attorney shall be recorded with the deed, unless it has already been recorded in the records of the town in which the land lies and reference to the power of attorney is made in the deed.” Section 49-10 provides that an assignment of an obligation must follow a particular form.

In the present case, the notice of transfer was accomplished through a power of attorney. The power of attorney was not filed with the notice in Hamden, but it was referenced in the notice as being filed in the Hartford land records. D.A.N. claims that this is a fatal flaw in the validity of the notice of transfer, thus making it inadmissible. D.A.N. cites no authority for that proposition, and our own research has found none. Sections 47-5, 47-10 and 49-10 do not indicate that a flaw in the instrument or recordation of the instrument would make it inadmissible as evidence. That flaw goes only to the weight and credibility of the evidence, which is within the sole province of the trier of fact to determine. We disagree with D.A.N. that the trial court abused its discretion in admitting the notice of transfer.

D

D.A.N. argues that the trial court improperly admitted the change of name certificate over its objection. We find that the trial court correctly admitted the certificate into evidence.

D.A.N. argues that the certificate does not conform to the requirements of General Statutes § 52-165 and therefore is inadmissible. Specifically, D.A.N. argues that the certificate contains no statement that the persons executing the certificate were authorized by their respective corporations to execute the certificate. We fail to see the reasoning behind D.A.N.’s argument. Section 52-165 makes no requirement that a corporate officer state that he is authorized to act in the manner in which he is acting. Section 52-165 merely prescribes that the corporate officer’s act may be proved by a document under seal; it does not question the authority of the corporate officer. Additionally, “the question [of] whether [the officers] had authority in fact to do what [they] did was necessarily one to be inquired into aliunde.” Hart v. Stone, 30 Conn. 94, 96 (1861).

Webster argues that the certificate was properly recorded in the Hamden land records pursuant to General Statutes § 47-12. We agree. The recordation served to place the public on notice that First Federal Bank had changed its name to Webster Bank. Section 52-165 allows for the admission of certified copies of land records into evidence. The certificate, properly certified by the Hamden town clerk, is admissible as a public record. The trial court, therefore, did not abuse its discretion by admitting the certificate into evidence.

E

D.A.N.’s final evidentiary claims relate to a computer and microfiche printout of Flanagan’s loan history and an affidavit of debt prepared by Siedlarz-Jones. D.A.N. argues that these documents are inadmissible hearsay as they do not conform to the business records statute, General Statutes § 52-180. We hold that the documents were properly admitted under the business records statute.

1

“Hearsay is an out-of-court statement that is offered to establish the truth of the facts contained in the statement. . . . State v. Miller, 154 Conn. 622, 629, 228 A.2d 136 (1967), and Murray v. Supreme Lodge, N.E.O.P., 74 Conn. 715, 718, 52 A. 722 (1902). A statement may or may not be hearsay, depending upon the purpose for which it is offered. When declarations are offered . . . for the purpose of showing that such statements were made and not that what was declared was true, they do not come within the rule. . . . McDermott v. McDermott, 97 Conn. 31, 37-38, 115 A. 638 (1921); Engel v. Conti, 78 Conn. 351, 354, 62 A. 210 (1905).” (Internal quotation marks omitted.) State v. Williams, 48 Conn. App. 361, 367, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998). There is no doubt that the printout of Flanagan’s loan history was an out-of-court statement being used to prove the matter asserted—that Flanagan had a history of loan payments and had eventually defaulted on the loan. Accordingly, it was hearsay.

Having established that the printout was hearsay, we must next determine whether the trial court properly admitted it under General Statutes § 52-180, the business records exception to the hearsay rule. Section 52-180 provides for a three part test: (1) the document must be made in the regular course of business; (2) it must be the regular course of a business to create that document; and (3) it must have been made contemporaneously with the events it memorialized or within a reasonable time thereafter.

D.A.N. claims that the printout should not have been admitted because Siedlarz-Jones lacked working knowledge or firsthand experience as to how the information memorialized in the computerized records of the banks was verified. Additionally, D.A.N. argues that Siedlarz-Jones lacked personal knowledge as to how the interest rates that the banks received from the Federal Reserve Board were verified and entered into the computer system. D.A.N. also argues that the loan history is inadmissible because the Federal Reserve Board did not have a business duty to transmit accurate interest rate information to the banks. Furthermore, D.A.N. argues that the loan history was inadmissible because Siedlarz-Jones lacked personal knowledge of how information was transferred from the computer records to microfiche. We are unpersuaded by D.A.N.’s arguments.

“Section 52-180 should be liberally construed. . . . Appellate review of the admission of a document under § 52-180 is limited to determining whether the trial court abused its discretion.” (Citations omitted.) River Dock & Pile, Inc. v. O & G Industries, Inc., 219 Conn. 787, 795, 595 A.2d 839 (1991). “The witness whose testimony provides the foundation for the admission of a business record must testify to the three statutory requirements, but it is not necessary that the record sought to be admitted was made by that witness or even that the witness have been employed by the business at the time the record was made.” Id., 794. Furthermore, the accuracy and veracity of the document go to the document’s weight, which is a matter left to the trier of fact to determine. New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 602, 717 A.2d 713 (1998).

D.A.N. relies on Federal Deposit Ins. Corp. v. Keating, 44 Conn. App. 556, 690 A.2d 429 (1997), for the proposition that the computer records are not admissible. In Keating, the FDIC attempted to admit in evidence, through a witness, computer records that contained the debtor’s account information. The witness in Keating had no familiarity with the computer system, nor did he have an opinion as to the accuracy of the information contained therein. Id., 559. Keating is distinguishable from the present case. Siedlarz-Jones worked for First Constitution for eleven years. Furthermore, she testified that the records were verified by bank officials. We find that D.A.N.’s reliance on Keating is misplaced.

In the course of Siedlarz-Jones’ employment with First Constitution, she became familiar with the manner in which payments were recorded in the computer system. While she testified that she did not know exactly how the information entered into the computer system was verified, that does not matter for the purpose of admissibility. See General Statutes § 52-180 (b). The witness testified that the entries were made when the bank received payments from its mortgagors. She also testified that it was in the common practice of the banks, First Constitution, First Federal and Webster, to enter the transactions into the computer. The witness, while testifying that she was not familiar with the technical process of creating microfiche copies of computer records, did testify that the banks made such copies of their computerized records on a regular basis.

D.A.N. further argues that the loan history is inadmissible because the interest rate information contained in it was received from the Federal Reserve Board, which had no duty to the banks to transmit accurate interest rates. It is true that if the document offered was not prepared by the proponent, the document’s author must have a business duty to the proffering organization to create that record for it to be admissible under § 52-180. River Dock & Pile, Inc. v. O & G Indus tries, Inc., supra, 219 Conn. 795. The present case, however, does not present that problem. Webster did not attempt to offer a document created by the Federal Reserve Board as a business record. The witness merely testified that the banks received their interest rate information from the Federal Reserve Board. D.A.N.’s contention that the information might be inaccurate again goes to the weight of the document, not its admissibility. Furthermore, we find it hard to believe that the Federal Reserve Board would transmit inaccurate or faulty interest rates to this nation’s banks.

D.A.N.’s argument that the witness lacked personal knowledge as to the accuracy of the interest rates transmitted by the Federal Reserve Board also fails. The witness testified that that information was regularly entered into the banks’ computers. The fact that she may not have had personal knowledge of the accuracy of that information goes to the evidence’s weight; General Statutes § 52-180 (b); not its admissibility.

Given the witness’ history of employment with the original mortgagee and her testimony that the computer records were kept in the regular course of business, that the bank was a business where the documents were regularly created and that the records were created contemporaneously with the events they memorialized, we fail to see how the loan history was improperly admitted into evidence.

2

D.A.N. claims that the trial court improperly admitted an affidavit of debt prepared by Siedlarz-Jones, summarizing Flanagan’s account status with Webster. D.A.N. argues that the affidavit does not conform to the requirements of § 52-180. We conclude that the affidavit was properly admitted.

D.A.N. argues that Webster’s affidavit of debt was prepared in accordance with Practice Book § 527, now § 23-18, and therefore was inadmissible. D.A.N. filed a disclosure of defense in which it challenged the amount of the debt. Because D.A.N. disclosed this defense, the use of Practice Book § 527 to introduce the affidavit is prohibited, and the hearsay rules apply. Burritt Mutual Savings Bank of New Britain v. Tucker, 183 Conn. 369, 375, 439 A.2d 396 (1987).

D.A.N. argues that the affidavit was not prepared in the ordinary course of business, but in preparation for litigation. Although that may be true, we do not agree that that alone makes the affidavit inadmissible. The general rule is that “documents prepared for litigation are excluded, not on a per se basis, but rather upon an inquiry into whether such documents bear circumstantial indicia of lack of trustworthiness. In the exercise of appropriate discretion, courts may exclude such records where they are self-serving and a motive for falsification can be demonstrated.” Jefferson Garden Associates v. Greene, 202 Conn. 128, 140-41, 520 A.2d 173 (1987). In the present case, the affidavit was sworn to before a notary public, thus making the affiant subject to penalty for giving false information. Additionally, Webster frequently prepares affidavits of debt for foreclosure proceedings. Given these factors, we conclude that the motive for creating the affidavit was not falsification nor was the affidavit self-serving. We do not, however, go so far as to hold that all affidavits created in preparation for litigation are admissible under the business records exception to the hearsay rule.

Furthermore, we conclude that the affidavit, when viewed in light of the other documents properly admitted in evidence, was properly admitted under the business record statute. We rely on New England Savings Bank v. Bedford Realty Corp., supra, 246 Conn. 600-603. In New England Savings Bank, our Supreme Court held that where the plaintiff sought to introduce a statement of the mortgagee’s account in evidence, it was admissible because of the supporting evidence. Id., 597-98. The plaintiff in New England Savings Bank offered documents that showed the starting figure of the debt from the previous holder of the mortgage, a failed institution, and offered the testimony of an officer of the failed institution as to the authentication of the documents containing the debt’s starting figure.

This case parallels New England Savings Bank. Webster introduced the original note and mortgage, which had been transferred to Webster through the FDIC and merger of First Federal and Webster. The witness authenticating the documents was an employee of the original mortgagee, First Constitution Bank. Additionally, Webster entered into evidence Flanagan’s loan history, which we have held was properly admissible as a business record. We hold that the affidavit, given the admissibility of the loan history, note and mortgage, was properly admitted into evidence.

II

D.A.N.’s second claim is that the trial court improperly rendered a judgment of strict foreclosure in favor of Webster. D.A.N. argues that Webster did not make out its prima facie case for a judgment of strict foreclosure. We disagree and affirm the trial court’s judgment.

A

To make out its prima facie case, Webster had to prove by a preponderance of the evidence that it was the owner of the note and mortgage and that Flanagan had defaulted on the note.

D.A.N. argued that the notice of transfer was faulty because it was executed by a power of attorney that was not filed in Hamden with the notice of transfer, but was referenced in the notice of transfer as being filed in Hartford. General Statutes § 47-10 provides: “No conveyance shall be effectual to hold any land against any other person but the grantor or his heirs, unless recorded on the records of the town in which the land lies. When a conveyance is executed by a power of attorney, the power of attorney shall be recorded with the deed, unless it has already been recorded in the records of the town in which the land lies and reference to the power of attorney is made in the deed.”

Webster argues that § 47-10 requires that a power of attorney must be filed with the conveyance only when a person, as opposed to a corporation, is the transferor. We agree. General Statutes § 47-5 clearly distinguishes between two types of transferors: natural persons and business entities. Section 47-5 provides that when a conveyance is by a corporation, that instrument need only be signed by “a duly authorized person.”

When read together, §§ 47-5 and 47-10 clearly indicate that it is only when a natural person attempts to convey property through a power of attorney that the instrument creating the power must be filed with the conveyance, or have been previously filed in the town where the property is located and be properly referenced to have legal effect. Because a corporation is an artificial person, it necessarily acts through others. Furthermore, it is well settled that a conveyance by a corporation need not state the authority of the person claiming to act on the corporation’s behalf. Hart v. Stone, supra, 30 Conn. 96.

Neither D.A.N. nor Webster cited any cases dealing with the filing of a power of attorney with a conveyance. Our research has uncovered only one. In Family Financial Services, Inc. v. Spencer, 41 Conn. App. 754, 762, 677 A.2d 479 (1996), this court held that a transfer executed by way of a power of attorney, where the power of attorney was not filed with the conveying instrument, was insufficient to hold the transfer valid against the defendant. While Family Financial Services, Inc., might seem to favor D.A.N.’s position, it is distinguishable. In Family Financial Services, Tree., the power of attorney was executed by individuals, not a corporation. If the notice of transfer in the present case had been executed by a power of attorney on behalf of an individual, then Family Financial Services, Inc., would apply and the notice would be ineffective against D.A.N. We hold that Family Financial Services, Inc., does not apply where a power of attorney is executed on behalf of a corporation. Because the notice of transfer is not fatally flawed, the chain of title in Webster was unbroken.

B

We next consider whether Webster introduced sufficient evidence to constitute a prima facie case concerning its right to foreclose. “The standard of review of a judgment of foreclosure by sale or by strict foreclosure is whether the trial court abused its discretion. Constitution Bank & Trust Co. v. Robinson, 179 Conn. 232, 238, 425 A.2d 1268 (1979); City Savings Bank v. Lawler, 163 Conn. 149, 155, 302 A.2d 252 (1972).” Abacus Mortgage Ins. Co. v. Whitewood, Hills Development Corp., 2 Conn. App. 460, 464, 479 A.2d 1231 (1984). “In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. . . . Berchtold v. Maggi, 191 Conn. 266, 270, 464 A.2d 1 (1983) . . . .” (Citation omitted; emphasis in original; internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., supra, 246 Conn. 608.

Webster introduced evidence establishing the original debt, the interest accrued, its attorney’s fees and Flanagan’s default on the note and mortgage. The trial court, on an oral motion for articulation by D.A.N., merely stated, “I will articulate it right now. I find from the evidence that the plaintiff has proven that these mortgagors, the mortgagor—let me have the note—that the mortgagor Charles A. Flanagan is indebted to it in the sum of $134,578.88 as shown on the affidavit of debt.” The trial court further stated that “the debt was proven.” The trial court did not further articulate its findings, and D.A.N. did not move for further articulation. There is no further indication from the trial court as to the basis for its opinion. We will not speculate as to the trial court’s impressions or the weight it gave to the specific exhibits or the witness’ testimony.

The trial court made a factual finding that was supported by the evidence. We will not disturb it. The trial court did not abuse its discretion in rendering a judgment of strict foreclosure for Webster.

The judgment is affirmed.

In this opinion the other judges concurred.

       D.A.N. is one of multiple defendants. The following defendants are not parties to this appeal: Charles A. Flanagan, the Internal Revenue Service, Great County Bank, Connecticut National Bank, D.A.P. Financial Services, Inc., Monarch Savings Bank, Cordone and Tonucci Plumbing, Heating and Maintenance Contractors, Lisa G. Flanagan and Sharyl Goodman.

       Webster Bank is no longer a party to this appeal. After the filing of this appeal, Wilshire Funding Corporation was substituted as plaintiff pursuant to Practice Book § 62-5.

       This court first had to resolve an issue of attorney-client conflict of interest prior to determining whether it could decide this appeal. Counsel for D.A.N. represented Eagle Bank in two foreclosure cases pending in the Superior Court. Due to a merger of Eagle Bank and Webster Bank effective April 15, 1998, defense counsel now represents Webster Bank in the aforementioned foreclosure cases. This court, after a hearing on September 14, 1998, on the conflict of interest, secured waivers of the potential conflict from D.A.N., Webster and Wilshire Funding Corporation.

       The following colloquy took place during voir dire:
      “[Defense Counsel]: You were not present at the signing of the note, were you?
      “[Siedlarz-Jones]: No, I was not.
      “[Defense Counsel]: And how is it that you claim to have become familiar with the signature of Mr. Flanagan?
      “[Siedlarz-Jones]: We have a—two documents actually that have a notary authentication that is his signature and they all are the same signature.”

       General Statutes § 49-10 provides: “(a) Whenever any debt or other obligation secured by mortgage, assignment of rent or assignment of interest

        in a lease, is assigned by an instrument in writing containing a sufficient description to identify the mortgage, assignment of rent or assignment of interest in a lease, as security for the debt or obligation, and that assignment has been executed, attested and acknowledged in the manner prescribed by law for the execution, attestation and acknowledgment of deeds of land, the title held by virtue of the mortgage, assignment of rent or assignment of interest in a lease, shall vest in the assignee. An instrument substantially in the following form is sufficient for such assignment:
      “Know all Men by Uiese Presents, That .... of .... in the county of .... and state of ... . does hereby grant, bargain, sell, assign, transfer and set over a certain (mortgage, assignment of rent or assignment of interest in a lease) from .... to ... . dated .... and recorded in the records of the town of ... . county of ... . and state of Connecticut, in book ... at page ....
      “In Witness Whereof .... have hereunto set .... hand and seal, this . . . day of ... . A.D. . . .
      “Signed, sealed and delivered in the presence of
      (Seal)
      (Acknowledged)
      “(b) Whenever an assignment of any residential mortgage loan (1) made by a lending institution organized under the laws of or having its principal office in any other state and (2) secured by mortgage on residential real estate located in this state is made in writing, the instrument shall contain the name and business or mailing address of all parties to such assignment.”

       The validity of the notice of transfer will be discussed in greater detail in part II.

       General Statutes § 52-165 provides: “The entries or records of all corporations and all public offices, where entries or records are made of their acts, votes and proceedings, by some officer appointed for that purpose, may be proved by a copy certified under the hand of such officer, and the seal of such corporation or office, if any; and, if any such officer knowingly makes a false certificate, he shall be subject to the penalties provided for false statement.”

       General Statutes § 52-180 provides: “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility.
      “(c) Except as provided in chapter 3, if any person in the regular course of business has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of them to be recorded, copied or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is otherwise required by statute. The reproduction, when satisfactorily identified, shall be as admissible in evidence as the original in any judicial or administrative proceeding, whether the original is in existence or not, and an enlargement or facsimile of the reproduction shall be likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement or facsimile shall not preclude admission of the original.

        “(d) The term ‘business’ shall include business, profession, occupation and calling of every kind.”

       “Q. Miss Jones, were you formerly an employee of First Constitution Bank?
      “A. Yes.
      “Q. Wbat were your positions at First Constitution Bank?
      “A. I worked in accounting, I worked in loan review, in loan servicing, underwriting. I was a teller briefly, student lending, I have had numerous positions there. I worked there for eleven years.
      “Q. In your job or jobs at First Constitution Bank were you familiar with the record keeping and bookkeeping system of the bank?
      “A. Yes.
      * * *
      “Q. Are you familiar with the bookkeeping and the record keeping and the computer operations of the Foreclosure Department—or excuse me, of the Mortgage Department?
      “A. Yes.
      * * *
      “Q. Did you know how the system operated or worked?
      “A. Yes, I do.”

       “The Court: And was it the regular course of business of the First Constitution Bank to keep such records?

        “[Defense Counsel]: Objection.
      “[The Witness]: Yes.
      “[Defense Counsel]: Foundation.
      “[The Court]: Thank you. And you worked there on a day-to-day basis, am I correct?
      “[The Witness]: Yes, I did.
      “[The Court]: Overruled . . . . And do 1 hese records record transactions at the time that they take place or took place or shortly thereafter?
      “[Defense Counsel]: Objection. Foundation. She has not testified having personally worked on and entered the records. Familiarity.
      “[The Court]: She doesn’t have to personally enter the records.
      “[Defense Counsel]: She has to have a working knowledge of the means and methodology in which they were prepared.
      “[The Court]: . . . Yes or no?
      “[The Witness]: Yes.
      “[The Court.]: Now can you give me an example of how these records are transcribed? I ani talking about the original records.
      “[The Witness]: If I understand you correctly, for example, if somebody made a payment what would happen?
      “[The Court.]: Yes.
      “[The Witness]: [First] Constitution [Bank] was under a batch system, as long as payments were made before 3:00 on any given day the payments all would be shipped to the operations center on Water Street and they had a deposit operations department that would post all the payments and you could go live on the computer and look and see any of the payments that were posted right onto any given account.”

       Practice Book § 527 (a), now § 23-18, provides: “In any action to foreclose a mortgage where no defense as to the amount of the mortgage debt is interposed, such debt may be proved by presenting to the judicial authority the original note and mortgage, together with the affidavit of the plaintiff or other person familiar with the indebtedness, stating what amount, including interest to the date of the hearing, is due, and that there is no setoff or counterclaim thereto.”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL HYDOCK
    (AC 16668)
    Lavery, Schaller and Cretella, Js.

      Argued October 26, 1998
    officially released February 16, 1999

      PaulR. Kraus, special public defender, for the appellant (defendant).

      Judith Rossi, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Elpedio Vitale, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Michael Hydock, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2),* attempt to commit sexual assault in the third degree in violation of General Statutes §§ 53a-49 and 53a-72a (a) (1) (A) and three counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) granted the state’s motion to videotape a child victim’s testimony outside the physical presence of the defendant, (2) permitted the state to ask leading questions of a child victim on direct examination, (3) restricted the defendant’s cross-examination of a witness for the state and (4) admitted testimony concerning a prior consistent statement by the victim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In August, 1994, the victims, J, age five, and C, age seven, were living with their mother and her friend, Y, in an apartment in New Haven. Both their mother and Y used illegal drugs, and their mother had previously been incarcerated for offenses related to her drug problem. The victims’ mother had known the defendant since childhood, and in 1991 the defendant had cared for the two children for a period of time while their mother was incarcerated. The two lost contact with each other until the summer of 1994, when the defendant began visiting the victims’ mother regularly and using drugs with her and Y.

On an evening in late August, 1994, the victims’ mother went to buy drugs, and left Y and the defendant at home with her two children. Sometime thereafter, Y told the defendant that she was also going out to purchase drugs. After she left, the defendant played a game and watched television with the girls.

While they were watching television, the defendant told C to give him a hug, but she refused his request. The defendant then sat on the sofa next to J’s feet and pulled her toward him, but she pulled away and continued to watch television. The defendant then licked a finger on his right hand, leaned over J, put his hand under her nightgown, pushed her panties aside and penetrated her vagina with his finger. The defendant then removed his finger from J, unzipped his pants, took J’s hand and tried to make her touch his penis, but she closed her hand and pulled it away without touching it. After the incident, the defendant told J that he would kill her if she told her mother what had happened.

When Y returned home, C and the defendant were in the living room and J was playing in the bedroom by herself. The defendant told Y that he had to leave, and made a hasty exit. Later that evening, J told her sister, C, what the defendant had done to her.

The next day, in the presence of C and Y, J told her mother what the defendant had done. Her mother responded by telling J, “You can’t tell anybody, I’ll go to jail, they will take you away from me.” Later the same day, when the defendant came back to the house, Y confronted him by saying that he had “a lot of . . . nerve after doing what [he] did.” Before she could say anything more, the defendant gestured toward J, who was standing nearby, and blurted out, “She is lying.” Y then began to strike the defendant, asking how he knew what she meant before she had even told him of the accusation. J’s mother, who had overheard the exchange, then began to strike the defendant until he left.

A few days later, on August 26, 1994, J and C told a friend of their grandfather about the incident and, in the girls’ presence, she told their grandfather. J and C were then taken to their grandmother’s house where J complained that her vaginal area hurt. The girl’s grandmother took J to Yale-New Haven Hospital that evening. At the hospital, J told Dan Campbell, a hospital social worker, what the defendant had done to her. J also saw Linda Barthauer, a pediatric physician, and told her that the defendant had penetrated her vagina with his finger, and that he had also tried to make her touch his private parts. A subsequent examination by Barthauer revealed scratches and reddening in the vaginal area, which Barthauer testified could be consistent with sexual contact or penetration of the vagina. The two girls have lived with their grandmother since the incident.

On August 30, 1994, J was interviewed by Sergeant Kelly Wardrup of the New Haven police department’s sexual assault unit. During the course of the interview, J made several drawings depicting the ordeal and told Wardrup that the defendant put his finger in her “private” and that she was afraid of him.

In January, 1995, J was evaluated at the child abuse clinic of Yale-New Haven Hospital, where she told Janet Murphy, a pediatric nurse, what the defendant had done to her. Additionally, J talked to Barbara Bernstein, her school social worker, and Susan Dryzgula, her teacher, with regard to what the defendant had done.

At trial, the state introduced the videotaped testimony of J, taken outside the presence of the defendant, in which she explained in detail what the defendant had done to her. The defendant took the stand and testified that in the second week of August, 1994, he went to the children’s home and found them alone with a man named Dave. The defendant maintained that was the last time he had been at their apartment.

The jury returned a verdict of guilty on all counts. The trial court sentenced the defendant to a total effective sentence of twenty years imprisonment suspended after sixteen years, and five years probation with special conditions, including sex offender and substance abuse treatment. This appeal followed. Additional facts will be set forth as they become relevant in the context of the defendant’s specific claims.

I

The defendant first claims that the trial court improperly granted the state’s motion to videotape J’s testimony outside of his physical presence pursuant to General Statutes § 54-86g. Specifically, the defendant argues that the state did not prove by clear and convincing evidence that a compelling need existed to take J’s testimony outside his physical presence. We do not agree.

Prior to the trial in this case, the state moved for permission to videotape J’s testimony outside the presence of the defendant. An evidentiary hearing was held before the trial court, Devlin, J., on January 16, 1996. At the hearing, the state first presented testimony from the victims’ grandmother who testified that J had been living with her since the August, 1994 incident. J told her grandmother that she was afraid of the defendant, that she often thinks about what he did to her and that she did not want to come to court because of her fear of the defendant. The victims’ grandmother also testified that, before the August, 1994 incident, J had observed the defendant get very angry, had heard him engage in arguments and had seen him punch and knock down her mother. In her grandmother’s opinion, J would not lie if she was called to testify. Given J’s apprehension of the defendant, however, her grandmother believed that J would be inhibited and not answer questions about the allegations in his presence.

The state also presented testimony from Bernstein, J’s school social worker, who had been seeing J on a regular basis since November, 1994. Bernstein testified that in October, 1994, J was brought to the student assistance team in her school because she was having some difficulties in the classroom, acting withdrawn and not performing well academically. During the course of their sessions together, J told Bernstein about the sexual abuse by the defendant. J also confided in Bernstein that she was afraid of the defendant and that she was having a recurring nightmare about the defendant’s being after her. Bernstein testified that when J spoke about the nightmares and what the defendant had done to her, J’s demeanor changed. She became visibly upset and more withdrawn, and she slumped down in her chair and would not make eye contact. J expressed her fear of the defendant on more than one occasion and told Bernstein that she did not want to see him. Bernstein believed that because J was very fearful of the defendant, J would be intimidated by his presence in the courtroom. Furthermore, Bernstein felt that J would be less intimidated and therefore give more accurate testimony if the defendant was not present in the courtroom. In Bernstein’s opinion, J would be intimidated or otherwise inhibited by the defendant’s presence so that the trustworthiness or completeness of J’s testimony would be called into question.

The state introduced the testimony of Murphy, a nurse for the child sexual abuse program at Yale-New Haven Hospital, who last saw J during an evaluation in January, 1995. During the evaluation, J told Murphy about the sexual abuse by the defendant and also expressed fear of the defendant. Murphy’s opinion, based on J’s age, her fear of the defendant and her having witnessed his violent behavior toward others, was that J would be intimidated and less reliable in a face-to-face encounter with the defendant, and she would not be able to relate fully what had happened.

The state also introduced the testimony of J’s first grade teacher, who testified that J would not be comfortable testifying in the defendant’s presence. The defendant did not present any evidence at the pretrial hearing, although he did cross-examine the state’s witnesses. The trial court granted the state’s motion over the objection of the defendant.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. Pandolphe’s Auto Paris, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see Practice Book [§ 60-5]. State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985). ... In evaluating preliminary determinations of the trial court in a criminal case, [t]he evidence will be construed in a way most favorable to sustaining the [determination]; [the trial court,’s] conclusions will not be disturbed on appeal unless found to be clearly erroneous. State v. Bonello, [210 Conn. 51, 66-67, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. 2103, 104 L. Ed. 2d 664 (1989)] (applying clearly erroneous test to trial court’s conclusions on remand in Jarzbek hearing).” (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 374-75, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).

“[I]n criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible. ... [A] trial court must balance [on a case-by-case analysis] the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question. . . . [The] trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony. In order to satisfy its burden of proving compelling need, the state must show that the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question. . . . [T]he state bears the burden of proving such compelling need by clear and convincing evidence.” (Citation omitted; emphasis added.) State v. Jarzbek, 204 Conn. 683, 704-705, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). “The phrase clear, substantial and convincing evidence fairly characterizes that degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [T]he burden of persuasion is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) State v. Bonello, supra, 210 Conn. 66.

The defendant asserts that none of the witnesses presented by the state testified clearly and convincingly that the reliability of J’s testimony would be adversely affected by the defendant’s presence. The defendant argues that the state may have proven by clear and convincing evidence that J would experience some discomfort testifying in front of the defendant, but it did not prove by clear and convincing evidence that her testimony would be less reliable.

To support his contention, the defendant points to the fact that none of the witnesses testified that J would lie if called to testify in the defendant’s presence. Jarzbek states, however, that “the primary focus of the trial court’s inquiry must be on the reliability of the minor victim’s testimony . . . .” State v. Jarzbek, supra, 204 Conn. 705. It is not a prerequisite, therefore, that the state demonstrate that a minor victim will lie if he or she is required to testify in the presence of the accused. Rather, the state may be able to demonstrate a compelling need by showing that “a minor victim may refuse to testify or may distort his or her testimony because he or she has been threatened by the defendant or is overwhelmed by feelings of guilt.” Id., 703.

The defendant also focuses on the trial court’s observation that some of the witnesses had “fairly meager personal experience” with J. The trial court, however, expressly credited the testimony of J’s grandmother, with whom J had been living since August, 1994, and Bernstein, J’s school social worker, who had been seeing J on a regular basis since November, 1994. J’s grandmother testified that given J’s apprehension and

fear of the defendant, she would be inhibited and refuse to answer questions about the incident in the defendant’s presence. “The . . . [guardian] of a sexually abused child . . . [occupies] a unique position to assess the mental and emotional impact of a courtroom confrontation on the minor.” State v. Spigarolo, supra, 210 Conn. 372. The testimony of such an individual may provide critical insight on a minor’s ability or inclination to testify reliably in the physical presence of an alleged perpetrator. Id. The trial court, therefore, properly relied on the grandmother’s testimony in determining that the state had met its burden.

On the basis of her ongoing therapeutic relationship with J, Bernstein testified that J was very fearful of the defendant and would be intimidated by the defendant’s presence in the courtroom. In assessing the reliability of J’s testimony, Bernstein believed that J would be so intimidated or otherwise inhibited by the defendant’s presence that the trustworthiness or completeness of her testimony would be called into question.

“In reviewing whether the trial court’s factual findings were clearly erroneous, [w]e are not limited . . . to reviewing only the evidence before the trial court at the time of the ruling. Because the defendant’s fundamental constitutional right to confront the witnesses against him is implicated, we may consider all the evidence in the record.” (Internal quotation marks omitted.) State v. Alterisi, 47 Conn. App. 199, 205, 702 A.2d 651 (1997), citing State v. Darby, 19 Conn. App. 445, 453-54, 563 A.2d 710, cert. denied, 213 Conn 801, 567 A.2d 833 (1989). We also note, therefore, J’s subsequent testimony on videotape that after the assault the defendant had threatened to kill her if she told her mother.

Our review of the entire record fully supports the trial court’s finding that a compelling need existed to videotape the testimony of J outside the presence of the defendant to assure the reliability of her testimony. We conclude, therefore, that the trial court properly permitted the state to videotape the testimony of the child victim outside the presence of the defendant.

II

In his second claim, the defendant argues that the trial court improperly permitted the state to ask leading questions of J on direct examination.

At the time of trial, J was six years old. J was hesitant to testify and had difficulty testifying regarding what the defendant had done to her. “ ‘It is axiomatic that trial courts have broad discretion to allow leading questions on direct examination depending upon the circumstances of the individual case. Wright v. Blakeslee, 102 Conn. 162, 168, 128 A. 113 (1925).’ Fonsworth v. Sudol, 19 Conn. App. 368, 370, 562 A.2d 578 [cert. denied, 212 Conn. 819, 565 A.2d 539] (1989); see also C. Tait & J. LaPlante, Connecticut Evidence § 7.12.2 (d).” State v. Parsons, 28 Conn. App. 91, 104, 612 A.2d 73, cert. denied, 223 Conn. 920, 614 A.2d 829 (1992). After a careful review of the record, we conclude that the trial court did not abuse its discretion in permitting the state to ask leading questions of J, who evinced fear and hesitancy to testify. See id. (trial court did not abuse discretion in permitting state to ask leading questions of minor witnesses, who were victims of crimes charged and who evinced fear and hesitancy to testily).

III

The defendant next claims that the trial court improperly restricted his cross-examination of a state’s witness in violation of his federal and state constitutional right to confront witnesses. Specifically, the defendant argues that the trial court prevented him from eliciting evidence from Y about the possibility that J may have been exposed to adult sexual behavior.

The following additional facts are relevant to our resolution of this issue. After J testified, Y, the mother’s friend who had been living with her and the children in the summer of 1994, was called as a witness by the state. On cross-examination, defense counsel asked Y if a number of men would come to the apartment to use drugs, and she answered, “Yes.” Defense counsel then asked, “At the time that we’re discussing, back in August, 1994, did you prostitute yourself in order to support your heroin habit?” The state objected to this line of questioning, the jury was excused, and the trial court heard the arguments on the objection. Outside the presence of the jury, the trial court allowed the defendant to ask Y whether any sexual acts had taken place in the presence of the children. While still outside the presence of the jury, defense counsel asked Y whether she and J’s mother had performed acts of prostitution while the children were in the apartment, to which the witness answered in the affirmative. The state again objected, arguing that, since “married people with children also have sex in a house where there [are] children,” the relevant issue was whether any sex acts were committed in the presence of the children, not merely in the apartment. The trial court permitted the defendant to ask Y whether “she [knew] if the children saw her doing any of these [sexual acts].” Defense counsel subsequently asked Y whether “any of these acts, to [her] knowledge, [were] ever witnessed by the children,” to which the witness responded, “No.” The trial court then sustained the state’s objection to that line of questioning, ruling that there was an inadequate foundation and the testimony had no relevance at that time. No further evidence was presented by the defendant to establish a proper foundation for this line of questioning.

“Our analysis of the defendant’s claim is guided by the familiar constitutional guidelines relevant to cross-examination by the defendant in a criminal trial. It is axiomatic that the defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination .... The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . .

“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . .

“The proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant. . . . Relevance may be established in one of three ways.

“First, the proffering party can make an offer of proof. . . . Second, the record can itself be adequate to establish the relevance of the proffered testimony. . . . Third, the proffering party can establish a proper foundation for the testimony by stating a good faith belief that there is an adequate factual basis for his or her inquiry.” (Citations omitted; internal quotation marks omitted.) State v. Beliveau, 237 Conn. 576, 584-86, 678 A.2d 924 (1996). The defendant has failed to persuade us that he had established the relevance of the proposed line of questioning in the trial court by any of those methods.

The defendant’s argument in support of the relevance of his proposed line of questioning consisted of unsubstantiated speculation that the children may have been exposed to adult sexual behavior. The defendant made no offer of proof to support his theory that J had been exposed to adult sexual behavior, nor does the record provide an independent basis on which the trial court should have concluded that the proposed line of questioning was relevant. Furthermore, the defendant did not assert that he had a good faith belief that his inquiry had an adequate factual basis. To the contrary, it is clear from the record that the defendant had no reason to believe that the victim had witnessed adult sexual behavior. Because there was no such offer of proof, we conclude that the trial court did not abuse its discretion by denying the defendant the opportunity to elicit evidence from Y about the possibility that J may have been exposed to adult sexual behavior.

IV

The defendant’s final claim is that the trial court improperly admitted testimony concerning a prior consistent statement by the victim. Specifically, the defendant argues that the trial court improperly admitted, as a prior consistent statement of the victim, Y’s testimony that the victim had told her mother about what the defendant had done to her. We do not agree.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . 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. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. . . . This deferential standard is applicable to evidentiary questions involving hearsay, generally . . . and to questions relating to prior consistent statements, specifically.” (Citations omitted; internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801-802, 709 A.2d 522 (1998).

“As a general rule, a witness’ prior consistent statements are inadmissible at trial. State v. Pollitt, 205 Conn. 61, 76, 530 A.2d 155 (1987); State v. Anonymous (83-FG), 190 Conn. 715, 728, 463 A.2d 533 (1983); State v. Brown, 187 Conn. 602, 607, 447 A.2d 734 (1982); State v. McCarthy, 179 Conn. 1, 18, 425 A.2d 924 (1979); Thomas v. Ganezer, 137 Conn. 415, 417, 78 A.2d 539 (1951); see annot., 59 A.L.R.4th 1017 (1988). Such statements clearly are barred by the hearsay rule if sought to be used to prove the truth of the matters asserted therein . . . also, they generally are prohibited even when offered for the limited purpose of rehabilitating the witness’ damaged credibility. . . . The rationale upon which this rule is based is that the witness’ story is not made more probable or more trustworthy by any number of repetitions of it. . . . State v. Dolphin, 178 Conn. 564, 568-69, 424 A.2d 266 (1979).

“This rule, however, is not absolute. The trial court, within its discretion, may admit a prior consistent statement if offered to rehabilitate a witness who has been impeached by a prior inconsistent statement; see, e.g., State v. McCarthy, supra, 179 Conn. 18-21; by the suggestion of bias, motive, or interest arising after the time the prior consistent statement was made; see, e.g., State v. Dolphin, supra, 178 Conn. 571-72; by a claim of recent fabrication; see, e.g., State v. Pollitt, supra, 205 Conn. 77; or by a claim of faulty memory. See, e.g., State v. Anonymous (83-FG), supra, 190 Conn. 729; see generally State v. Brown, supra, 187 Conn. 608 (summary of rule and exceptions). When a prior consistent statement is admitted under any of these exceptions, it is admitted to affect credibility only and not to establish the truth of the statement. State v. McCarthy, supra, 18.” State v. Valentine, 240 Conn. 395, 412-13, 692 A.2d 727 (1997).

The defendant’s evidentiary challenge stems from the direct examination of Y. During the course of Y’s testimony, the state made an offer of proof to obtain the trial court’s ruling on the next series of questions it wanted to ask Y. Outside the presence of the jury, the state elicited testimony from Y that, in her presence, J had told her mother about what the defendant had done, and that J’s mother had admonished J not to tell anyone or else J’s mother would go to jail. The trial court subsequently ruled that because “one of the lines of cross-examination was to suggest that J was testifying not from her memory but from a suggestion of other members of her family,” the testimony was admissible as a prior consistent statement pursuant to State v. Anonymous (83-FG), supra, 190 Conn. 728. When the jurors returned, the trial court instructed them that they could use Y’s testimony about the victim’s prior statements only to assess the victim’s credibility and not as substantive evidence that the crimes had occurred. In addition, the court reiterated the limiting instruction in its final charge.

In State v. Anonymous (83-FG), supra, 190 Conn. 715, our Supreme Court held that a court has the discretion to admit a prior consistent statement if offered to rehabilitate a witness who has been impeached by a claim of faulty memory. In creating this additional exception to the general prohibition against the use of prior consistent statements, the Supreme Court explained that “[i]f the witness’s accuracy of memory is challenged, it seems clear common sense that a consistent statement made shortly after the event and before he had time to forget, should be received in support.” State v. Anonymous (83-FG), supra, 190 Conn. 729. The defendant here contends that he “did not cross-examine the victim so much about the accuracy of her memory but [rather questioned the victim] as to her susceptibility to undue influence because of her age.” The defendant argues that we should draw a clear distinction between an attack on the suggestibility of a child witness and an attack on her recollection. The defendant, however, offers no authority to support his contention that challenging a person’s suggestibility is somehow different from challenging a person’s recollection of events. We decline to draw such an artificial distinction.

Challenging the suggestibility of a witness is but one method counsel may use to demonstrate that a witness’ memory is faulty, thereby casting doubt on such witness’ credibility. The net effect of the defendant’s questioning was to call into question the accuracy of the victim’s memory of what the defendant had done to her. Under this circumstance, where a witness’ accuracy of memory is challenged as faulty, “the court should have the benefit of prior statements [she] has made concerning the same subject matter before time and other factors [may have affected her] recollection.” (Emphasis added.) State v. Anonymous (83-FG), supra, 190 Conn. 729.

In the present case, the prior consistent statement was made a short time after the assault before family members may have exerted undue influence on the victim. Furthermore, the prior consistent statement directly countered the defendant’s attempt at impeachment, and the trial court admitted the victim’s prior consistent statement for the limited purpose of assessing the victim’s credibility and not to establish the truth of the statement. Under these circumstances, we conclude that the trial court did not abuse its discretion when it admitted, as a prior consistent statement of the victim, Y’s testimony that the victim had told her mother about what the defendant had done to her.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . .

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-72a (a) provides in relevant part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . . .”

       General Statutes § 53-21 provides: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”

       General Statutes § 54-86g (a) provides in relevant part: “In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the defendant, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in 1he room with the child during his testimony, except that the court may order the defendant excluded from the room or screened from the sight and hearing of the child only if the state proves, by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to take the testimony of the child outside the physical presence of the defendant in order to insure 1he reliability of such testimony. . . .”

       After accurately setting forth the test that it would apply, the trial court ruled as follows: “I recognize that some of these witnesses were testifying from fairly meager personal experience . . . with the victim .... However, I believe based on the full record in this case, the state has satisfied its burden. The age of the victim is seven years old. I think the testimony of the grandmother and the school social worker is quite clear that . . . the combination of this event based on the victim’s prior knowledge of the defendant, seeing him engaged in verbal arguments and acting out in an angry fashion had a strong impact on this young girl, that this resulted in an impact ... on her performance in school . . . nightmares that were related ... all these, I think, are serious matters which [support] the opinions of the social worker and the grandmother ... I credit their opinions that it either would result in the victim not saying anything, being just so overwhelmed by the situation that she wouldn’t testify at all or would testify in a way that was far less accurate, far less complete, far less reliable than would otherwise be the case. I think it’s clear that ... no one’s saying that . . . this young girl is going to lie about things, but nevertheless . . . the testimony of her closest relative that she lives with and her school social worker that has seen her on a weekly basis for a substantial period of time, the court does credit that and I believe that the state has met its burden. So, therefore, the motion to videotape the complaining victim’s testimony in accordance with the motion set forth by the state is granted.”

       The defendant claims a violation of article first, § 8, of the constitution of Connecticut with respect to the right to confront witnesses. Because the defendant failed to provide an independent analysis of the applicable state constitutional protections, we limit our analysis to the relevant federal constitutional claim. State v. Oliver, 41 Conn. App. 139, 144 n.6, 674 A.2d 1359, cert. denied, 237 Conn. 920, 676 A.2d 1374 (1996).

       The defendant provided the following argument in support of his claim of relevance: “Your Honor, the purpose of the question is to elicit whether or not, in fact, either [Y] or the mother . . . were, in fact, performing acts of prostitution in the household on a regular basis that the children may well have been exposed to. The obvious reason, therefore, being whether or not [the children] could have been infected by anything [the children] may have witnessed or heard in that regal’d and possibly the subject matter of the victim’s allegations may have come to her mind or whether or not she would have been exposed to behavior that would have impaired her morals prior to or during the time that these allegations against [the defendant] arose . . . .”

       In her videotaped testimony, J testified, in response to defense counsel’s questions, that (1) she did not know whether the men who visited did anything besides take drugs with her mother, (2) some of the men stayed overnight, but when they did so, they slept on the couch and left early in the morning, (3) J and her sister slept in the bedroom with their mother every night and that no one else slept in the bedroom with them, and (4) her mother’s boyfriend did not stay overnight. In addition, J testified that she had never observed any other persons doing what the defendant had done to her.

       The state argued three grounds for the admissibility of Y’s testimony: (1) as constancy of accusation testimony pursuant to State v. Troupe, 237 Conn. 284, 290-91, 677 A.2d 917 (1996); (2) as a prior consistent statement of the victim after the defendant had suggested that the victim made a prior inconsistent statement; (3) as a prior consistent statement pursuant to State v. Anonymous (83-FG), supra, 190 Conn. 728, because the defendant had challenged the accuracy of the victim’s memory. The trial court rejected the state’s constancy of accusation argument because J had not named Y as one of the persons to whom she had reported the sexual assault. Additionally, the trial court also rejected the state’s prior inconsistent statement argument because it found that the defendant had not impeached J with any prior inconsistent statement.

       The defendant also claims that State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1986), establishes the only test pursuant to which a prior consistent statement of a sexual assault victim may come into evidence after the victim’s memory has been challenged. In essence, his claim is that Troupe supplants all other rules of evidence for the admissibility of a victim’s prior statements in sexual assault cases. Specifically, the defendant argues that, because the victim’s prior consistent statement was not admissible as constancy of accusation evidence under Troupe, the trial court should not have considered any other grounds for admissibility.
      In Troupe, our Supreme Court restricted the constancy of accusation doctrine so that a constancy of accusation witness may testify only as to facts and timing, and not as to details, of the victim’s complaint. In restricting the doctrine, the court explained, however, that “the rule [adopted] today does not affect those cases in which the details of a sexual assault complaint are otherwise admissible, as, for example, in the case of a spontaneous utterance or in the case of a prior consistent statement admitted to rebut a claim of recent fabrication.” Id., 304 n.19. Therefore, even though the victim’s prior consistent statement was not admissible as constancy of accusation evidence under Troupe, the trial court properly considered the admissibility of the prior consistent statement on other grounds.


author: LAVERY, J.

text:
    CECI BROTHERS, INC. v. FIVE TWENTY-ONE CORPORATION ET AL.
    (AC 17426)
    Foti, Lavery and Hennessy, Js.
    Argued September 29, 1998
    officially released February 16, 1999

      Leonard A. Fasano, for the appellants (defendants).

      Andrew P. Nemiroff, with whom, on the brief, was Andrew K. Solow, legal intern, for the appellee (plaintiff).
   Opinion

LAVERY, J.

The defendants appeal from the trial court’s denial of their application to discharge a mechanic’s lien placed on certain of their real property in Greenwich by the plaintiff, Ceci Brothers, Inc. On appeal, the defendants claim that the trial court improperly denied their application to discharge the mechanic’s lien because the services performed by the plaintiff were not lienable under General Statutes § 49-33. We agree with the defendants and, therefore, reverse the trial court’s decision denying the application to discharge.

The following pertinent facts are necessary to a resolution of the issue on appeal. On or about March 22, 1995, the plaintiff executed a “maintenance” agreement with the defendants, in which the plaintiff agreed to “perform any and all practices necessary to upgrade and maintain the landscape’s healthy growth and attractive appearance at . . . [the defendant’s residential property located] at 521 Round Hill Road [in] Greenwich.” In return for the plaintiffs services, the defendants agreed to pay the plaintiff $125,000 in eight monthly payments of $15,625.

On or about October 26, 1996, the plaintiff claims that a representative of the defendants terminated the agreement. The plaintiff contends that, at that time, the defendants owed an outstanding balance of $52,918.75. In November, 1995, the plaintiff filed a mechanic’s lien on the defendants’ real property in the amount of $52,918.75, together with legal interest and statutory counsel fees for “[t]he value of services so rendered and performed . . . .”

The plaintiff filed an action seeking in part to foreclose the mechanic’s lien, and the defendants filed an application to discharge the mechanic’s lien pursuant to General Statutes § 49-35a. In support of their application, the defendants claimed that the services performed by the plaintiff were not lienable under § 49-33 because they were not “rendered in the construction, raising, removal or repairs of any budding or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land . . . .” General Statutes § 49-33 (a). The trial court denied the defendants’ application and this appeal fodowed.

The sole issue on appeal is whether the trial court improperly denied the defendants’ application to discharge the mechanic’s lien filed on its real property by the plaintiff. Specifically, the defendants contend that the services performed by the plaintiff, pursuant to the maintenance agreement, were not lienable under § 49-33. We agree with the defendants and, therefore, reverse the trial court’s denial of the application to discharge.

“The inteipretation of the language of § 49-33 is an issue of law.” Thompson & Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 375, 696 A.2d 326 (1997). Questions of law are subject to de novo review. Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). “The process of statutory interpretation involves a reasoned search for the intention of the legislature. Under our rules of statutory construction, we are guided by the words of the statute itself, the legislative history and circumstances surrounding its enactment, the legislative policy the statute was designed to implement, and its relationship to existing legislation and common-law principles governing the same subject matter.” (Internal quotation marks omitted.) New England Savings Bank v. Meadow Lakes Realty Co., 243 Conn. 601, 611, 706 A.2d 465 (1998).

“The guidelines for interpreting mechanic’s lien legislation are well established. Although the mechanic’s lien statute creates a statutory right in derogation of the common law; Camputaro v. Stuart Hardwood Corporation, 180 Conn. 545, 550, 429 A.2d 796 (1980); Gruss v. Miskinis, 130 Conn. 367, 370, 34 A.2d 600 (1943); its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials. H & S Torrington Associates v. Lutz Engineering Co., 185 Conn. 549, 553, 441 A.2d 171 (1981); Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 115, 438 A.2d 834 (1981). Our interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction. Camputaro v. Stuart Hardwood Corporation, supra, 551; Stone v. Rosenfield, 141 Conn. 188, 191, 104 A.2d 545 (1954).” Nickel Mine Brook Associates v. Joseph E. Sakai, P.C., 217 Conn. 361, 364-65, 585 A.2d 1210 (1991). Additionally, “we refuse to adopt an interpretation of § 49-33 (a) that could lead to such a fundamental change in our mechanic’s lien statute absent clear evidence that the legislature intended such a far reaching result.” Id., 371.

Pursuant to General Statutes § 49-33 (a), the persons entitled to file a mechanic’s lien are those who have furnished “materials” or rendered “services” in connection with “the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land . . . .” General Statutes § 49-33 (a). In analyzing whether the plaintiff satisfied the requirements of § 49-33 (a), it is first necessary to examine precedent that interpreted this section prior to its amendment by the legislature in 1974.

“Prior to the statute’s amendment by the legislature in 1974, our [Supreme Court’s] cases construing the language of [§ 49-33] . . . required, as a condition of lienability, that the work done be incorporated in or utilized in the building (or the appurtenance) to be constructed, raised, removed or repaired. . . . Our [Supreme Court’s] other cases . . . consistently . . . insisted that mechanic’s lien work be wrought into the liened property in some fashion. Thus the installation of fixtures that do not become part of the realty . . . or of electrical work that is not permanently attached to the realty . . . the removal of pipe from one building that is not incorporated into the building that is its replacement . . . and the furnishing of materials or equipment that is not shown to have gone into the construction or repair of a building . . . [were] all unlienable.” (Citations omitted; internal quotation marks omitted.) Thompson & Peck, Inc. v. Division Dry wall, Inc., supra, 241 Conn. 376-77.

The plaintiff does not claim and the maintenance agreement does not establish that the services rendered by the plaintiff were incorporated or utilized in any building or the appurtenance to be constructed, raised, removed or repaired or wrought into the liened property in some fashion. See id., 376.

“In 1974, the legislature extended the reach of a mechanic’s lien, under § 49-33, to encompass claims for materials furnished or services rendered ‘in the improvement of any lot or in the site development or subdivision of any plot of land . . . .’ Public Acts 1974, No. 74-310, § 1.” Id., 377-78. The plaintiff claims that its “extensive landscaping and maintenance services fall within the statutory construct of an ‘improvement [of] any lot.’ ” Our Supreme Court’s decision in Nickel Mine Brook Associates v. Joseph E. Sakai, P.C., supra, 217 Conn. 361, establishes, however, that the plaintiff did not render services “in the improvement of any lot” within the ambit of § 49-33 (a).

In Nickel Mine Brook Associates, the defendant claimed “that within the context of § 49-33, ‘improvement’ means anything that increases the value of the land.” Id., 370. In rejecting the defendant’s interpretation, our Supreme Court held that “neither the language of the 1974 amendment nor its legislative history indicates that the legislature intended to create such an open-ended test for which services are lienable under § 49-33 (a).” Id. Instead, the Supreme Court held “that the phrase ‘improvement of any lot’ was intended to include the same types of services embraced by the phrase ‘site development or subdivision of any plot of land.’ The only distinction intended by the legislature was between services benefiting particular lots and those benefiting the subdivision as a whole.” (Emphasis added.) Id., 367.

The decision in Nickel Mine Brook Associates establishes that the category of services that falls within the meaning of “improvement of any lot” includes only those services rendered for the purpose of subdividing or site developing a plot of land. In the present case, the plaintiff neither claims, nor does the maintenance agreement evidence, that the plaintiff rendered any services for the site development or subdivision of the defendant’s real property. We conclude, therefore, that the services provided by the plaintiff did not constitute services rendered for the “improvement of any lot” within the ambit of § 49-33 (a).

Our analysis, however, does not end here. The trial court concluded that our Supreme Court’s recent decision in Thompson & Peck, Inc. v. Division Drywall, Inc., supra, 241 Conn. 370, establishes that the plaintiffs services were lienable under § 49-33. Specifically, the trial court stated that “[t]he Thompson decision appears to have cast the inclusion-exclusion boundary, as to what is lienable, into terms somewhat dependent on the existence of manual labor. . . . [T]he court has apparently found comfort with the idea that there may exist a ‘physical enhancement’ test . . . .” After applying the physical enhancement test to the facts, the trial court determined that the plaintiffs services were lienable. We conclude that it is unnecessary for us to apply this test in the present case.

In Thompson & Peck, Inc., the plaintiff provided workers’ compensation insurance and general employment liability insurance to a subcontractor who installed drywall at Century Tower, an office building in New Haven. Id., 373. Claiming that it was owed insurance premiums by the subcontractor, the plaintiff filed a mechanic’s lien against Century Tower. Id. The plaintiff claimed that the unpaid insurance premiums owed by the subcontractor were lienable under § 49-33 because insurance coverage constituted “materials” furnished or “services” rendered in the construction of a building. Id., 371, 375. In rejecting the plaintiffs claim, our Supreme Court held that § 49-33 does not “include services and materials that have not enhanced the property in some physical manner, laid the groundwork for the physical enhancement of the property or [whose work was not] an essential part in the scheme of physical improvement.” (Emphasis added.) Id., 380. In New England Savings Bank v. Meadow Lakes Realty Co., supra, 243 Conn. 614-15, our Supreme Court referred to the foregoing language from its decision in Thompson & Peck, Inc., as “the physical enhancement test.”

In the present case, for the plaintiff to establish that its services were lienable, it must demonstrate that (1) it rendered “services” within the ambit of § 49-33 (a) and (2) these “services” were rendered “in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land . . . General Statutes § 49-33 (a). In Thompson & Peck, Inc., our Supreme Court limited its analysis to the first requirement, deciding only whether insurance premiums constituted “materials” or “services” within the meaning of § 49-33 (a). See "Thompson & Peck, Inc. v. Division Dry wall, Inc., supra, 241 Conn. 371, 373, 375. Having determined that the plaintiff did not render services or furnish materials within the ambit of § 49-33 (a), the Thompson & Peck, Inc., court had no occasion to determine whether these services or materials were rendered “in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land . . . .” General Statutes § 49-33 (a).

In the present case, it is unnecessary for us to decide whether, pursuant to the physical enhancement test, the services rendered by the plaintiff fall within the ambit of § 49-33 (a) because we have already determined that the plaintiffs services were not “rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in site development or subdivision of any plot of land . . . .” General Statutes § 49-33 (a). The plaintiffs failure to satisfy the latter requirement establishes that its services were not lienable under § 49-33 and, therefore, it is unnecessary for us to apply the physical enhancement test.

We conclude that the services performed by the plaintiff, pursuant to the maintenance agreement, which was a status quo agreement, were not lienable under § 49-33.

The denial of the application to discharge the plaintiffs mechanic’s lien is reversed and the case is remanded with direction to grant the defendants’ application to discharge.

In this opinion the other judges concurred.

       General Statutes § 49-33 (a) provides: “If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.”

       Pursuant to the maintenance agreement, the plaintiff agreed to perform the following services: remove leaves and other miscellaneous debris from the property; uncover, clean and scrub the swimming pool; clean and scrub the fountain; mow, fertilize, aerate and dethatch the lawn; remove grass clippings; plant and maintain annual flowers and vegetables; prune shrubs; remove weeds from flower beds, mulched areas and gardens; edge shrub beds and walks; water lawn, flowers and vegetables; and clean gutters and drains. Additionally, the agreement provided that “[a]ll necessary equipment, fuel and repairs on all equipment will be provided by [the plaintiff] .... Any and all types of landscape materials needed on the [defendant’s] estate will be supplied by the [defendant]. Some of the materials that may be needed are listed as follows: fertilizers, plant food, grass seeds, topsoil, mulch, wood chips, sod, plants, perennials, flowers and vegetable garden plants.”

       We limit our analysis to the specific facts of this case. We express no opinion concerning the lienability of landscaping and other related services performed under different factual circumstances.

       Our Supreme Court’s interpretation of the phrase “improvement of any lot” was predicated on a careful analysis of the legislative history to Public Acts 1974, No. 74-310. The Supreme Court stated: “The original version of Senate Bill No. 275, which became Public Acts 1974, No. 74-310, extended the scope of § 49-33 (a) only to services rendered ‘in the site development or subdivision of any plot of land.’ The language referring to ‘the improvement, of any lot’ was adopted as House Amendment A. Conn. House Journal, May 1, 1974, pp. 1086-87; 17 ILK. Proc., Pt. 10, 1974 Sess., pp. 4970-73. The legislat ive history indicates that the purpose of this amendment to Senate Bill No. 275 was not to create a distinct category of services for which one could file a mechanic’s lien, but rather to avoid potential problems for title searchers by restricting the ability of one who provides services for only a single lot to file a mechanic's lien against an entire subdivision. 17 H.R. Proc., Pt.. 10,1974 Sess., pp. 4970-71.” Nickel Mine Book Associates v. Joseph E. Sakal, P.C., supra, 217 Conn. 366-67.