author: DiPENTIMA, C. J.

text:
    STATE OF CONNECTICUT v. DERECK THOMAS
    (AC 33047)
    DiPentima, C. X, and Gruendel and Dupont, Js.

      Argued April 12 —
    officially released September 4, 2012

      Susan M. Hankins, for the appellant (defendant).

      Bruce R. Lockwood, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Seth R. Garbarsky, assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Dereck Thomas, appeals from the judgment of conviction rendered by the trial court after his plea of nolo contendere. On appeal, the defendant claims that the court violated his rights to due process and protection against double jeopardy by (1) failing to sentence him in accordance with the plea agreement, (2) vacating his accepted plea and (3) failing to follow the mandatory provisions of the rules of practice. Because our Supreme Court determined in the interlocutory appeal of the defendant that jeopardy did not attach to the court’s conditional acceptance of the defendant’s plea and has addressed all of the issues raised in this appeal, we conclude that the defendant’s claims are barred by the doctrines of res judicata and collateral estoppel. See State v. Thomas, 296 Conn. 375, 397, 995 A.2d 65 (2010). We therefore affirm the judgment of the trial court.

The following relevant factual and procedural history was set forth by our Supreme Court in State v. Thomas, supra, 296 Conn. 375. “The defendant, a forty-seven year old male, engaged in both oral and vaginal sexual intercourse with the fifteen year old victim on four separate occasions in the spring of 2005. The state charged the defendant with four counts of sexual assault in the second degree in violation of General Statutes § 53a-71, and four counts of risk of injury to a child in violation of General Statutes § 53-21 (a). Thereafter, the state and the defendant entered into plea negotiations in which the court, Rubinow, J., participated. Instead of the state’s offer of ten years imprisonment, suspended after five years served, the court indicated that it would accept five years imprisonment, suspended after one year served, and ten years of probation. Pursuant to the court’s recommendation, the defendant pleaded guilty to one count of sexual assault in the second degree and one count of risk of injury to a child, and the state agreed to nolle the remaining six felony charges at the time of sentencing. During the plea canvass, the court explained to the defendant that ‘the sentence [it would] likely impose [would] be five years in jail suspended after you serve one full year in jail, but that the victim’s position may affect the court so that you do the minimum mandatory nine months instead of the potential maximum sentence.’ . . . The court farther emphasized that ‘any credit against that one year would be based upon whether or not the victim was willing to make an appropriate statement to the court, as there have been great inconsistencies between the state’s understanding of the victim’s position and the position that was identified by the public defender.’ The court subsequently accepted the defendant’s guilty plea, ordered a presentence investigation at the behest of the defendant and continued the matter for sentencing.

“The presentence investigation revealed new and important information that had not been available to the court at the time of the plea negotiations. Specifically, the presentence investigation report disclosed that the defendant had provided the victim with alcohol prior to engaging in sexual relations with her, that the victim had attempted suicide and had engaged in self-mutilation in the months following the sexual assaults and that the victim thought the defendant should go to jail for 100 years. Consequently, on the basis of the presentence investigation report, the state requested that the plea be vacated, arguing that ‘the defendant [should] be allowed to withdraw his pleas based on the fact that the [culpability revealed by the presentence investigation], in the state’s view, is not commensurate with the sentence of one year.’ After reviewing the pre-sentence investigation report, the court decided to convene a hearing to provide the victim an opportunity to testify regarding the incidents in question, and it deferred ruling on the state’s motion to vacate the defendant’s plea. In order to satisfy the mandate of article first, § 8, of the constitution of Connecticut, as amended by articles seventeen and nineteen of the amendments, which is commonly known as the victims’ rights amendment, the court stated that it would not ‘impose sentence until it has extended to the [victim] an opportunity to be heard.’ The defendant responded to the trial court’s reluctance to sentence him in accordance with his initial plea bargain by filing a motion for specific performance of his plea agreement, which the court denied.

“The victim eventually appeared in court, answered all of the trial court’s questions concerning her relationship with the defendant and provided the court with a better understanding of her position. The victim informed the court that the defendant had provided her with alcohol and performed sexual acts upon her while she was intoxicated, that in the wake of the defendant’s crimes her acts of self-mutilation had intensified, that she eventually spent one year as a residential patient at a hospital and that the letters she wrote to the defendant, which the trial court had considered during the plea negotiations, did not represent the full extent of her ‘mixed emotions about the whole situation.’ The victim also expressed her belief that the defendant should be sentenced to ten years incarceration instead of the one year contemplated by the plea agreement. In light of the new information presented through the presentence investigation report and the victim’s testimony, the court ultimately declined to impose the sentence contemplated in the plea agreement, vacated the defendant’s guilty plea, noted pro forma pleas of not guilty on his behalf, and placed the matter on the trial list.

“Thereafter, the defendant filed a motion to dismiss the information, arguing that reinstatement of the original criminal charges would violate the constitutional guarantee against double jeopardy. He also claimed that, once the court accepted the guilty plea, it was bound to enforce the plea agreement. The court denied the motion, reasoning that the court is not bound to impose a sentence that was conditionally agreed upon prior to the preparation of a presentence investigation report and that, for double jeopardy purposes, a judgment is not rendered until a sentence is actually imposed.” (Emphasis in original.) State v. Thomas, supra, 296 Conn. 377-81.

In August, 2008, the defendant filed an interlocutory appeal from the denial of his motion to dismiss. Id., 377. Our Supreme Court rejected the defendant’s double jeopardy claim, concluding that “[b]ecause this case does not meaningfully implicate any policy considerations underlying the double jeopardy clause, we hold that jeopardy did not attach to the trial court’s conditional acceptance of the defendant’s plea.” Id., 397. Our Supreme Court declined to address the defendant’s claim that the trial court’s refusal to enforce the plea agreement violated his right to due process because the defendant did not appeal from a final judgment. Id., 381 n.6. Our Supreme Court noted, however, that “the defendant remains free to negotiate a new plea agreement, and, if he is dissatisfied with its parameters, the defendant may pursue his specific performance claim after the court imposes a sentence and renders a final judgment.” Id.

In October, 2010, the defendant entered a plea of nolo contendere to one count of sexual assault in the second degree and one count of risk of injury to a child. The defendant’s plea was conditioned on his right to appeal from the denial of his motion to dismiss in order to pursue the due process claim that our Supreme Court did not reach. On November 29, 2010, the court sentenced the defendant to a total effective term of ten years imprisonment, execution suspended after sixteen months, followed by ten years of probation. In January, 2011, the defendant filed the present appeal challenging the court’s denial of his motion to dismiss and his motion for specific performance.

I

The defendant claims that the court violated his right to protection against double jeopardy by improperly (1) failing to sentence him in accordance with the plea agreement, (2) vacating his accepted plea and (3) failing to follow the mandatory provisions of the rules of practice. Specifically, the defendant argues that because our Supreme Court in State v. Thomas, supra, 296 Conn. 397 n.15, limited its holding to a “determination that the mere acceptance of a defendant’s guilty plea does not, in and of itself, trigger double jeopardy protection,” he now can challenge the trial court’s denial of his motion to dismiss on double jeopardy grounds under the errors raised in this appeal. To the contrary, our Supreme Court’s central holding was that jeopardy did not attach to the trial court’s conditional acceptance of the defendant’s plea. We therefore conclude that the defendant’s claim is barred by the doctrine of res judicata.

“Under the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter [that] was offered to sustain the claim, but also as to any other admissible matter [that] might have been offered for that purpose. . . .

“[I]n applying the doctrine of res judicata to a [criminal] defendant’s constitutional claim, special policy considerations must be taken into account. The interest in achieving finality in criminal proceedings must be balanced against the interest in assuring that no individual is deprived of his liberty in violation of his constitutional rights. . . . Whether two claims in a criminal case are the same for the purposes of res judicata should therefore be considered in a practical frame and viewed with an eye to all the circumstances of the proceedings. . . . Because the doctrine has dramatic consequences for the party against whom it is applied . . . we should be careful that the effect of the doctrine does not work an injustice. . . .

“In the criminal context, the doctrine’s application depends on whether the present claim is sufficiently similar to the previous claim to warrant [the] giving [of] preclusive effect to the prior judgment. ... [A] slight shift in evidentiary basis and substantive theory of law does not constitute a new claim. . . . That identical grounds for relief may be supported by different factual allegations or different legal arguments or couched in different language renders those grounds no less identical.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Long, 301 Conn. 216, 236-39, 19 A.3d 1242, cert. denied, U.S. , 132 S. Ct. 827, 181 L. Ed. 2d 635 (2011).

In State v. Thomas, supra, 296 Conn. 377, the defendant argued to our Supreme Court that “jeopardy attached at the moment the trial court accepted his guilty plea and, therefore, the trial court’s subsequent decision to vacate his guilty plea and schedule his case for trial violates the prohibition against double jeopardy.” The state countered that jeopardy does not attach upon the mere acceptance of a guilty plea that the trial court, in its discretion, later vacates before imposing sentence, and our Supreme Court agreed with the state. Id., 381-82. In this appeal, the defendant similarly argues that his right to protection against double jeopardy was violated because the court improperly (1) failed to sentence him in accordance with the plea agreement, (2) vacated his accepted plea and (3) failed to follow the mandatory provisions of the rules of practice. The defendant, essentially, makes the same claim in the instant appeal that he made to our Supreme Court, namely, that the court’s decision to vacate his accepted guilty plea violated the prohibition against double jeopardy.

“It is axiomatic that the Appellate Court is bound by Supreme Court precedent and [is] unable to modify it .... [W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” (Internal quotation marks omitted.) State v. William C., 135 Conn. App. 466, 469 n.1, 41 A.3d 1205 (2012). Thus, to the extent that the defendant raises an additional nuance of double jeopardy law in this appeal, we are constrained to observe that the defendant could have raised this argument in the prior proceeding. Furthermore, the defendant failed to allege a valid reason as to why he could not have brought the present claim when the prior one was brought. See State v. Jones, 98 Conn. App. 695, 705-706, 911 A.2d 353 (2006), cert. denied, 281 Conn. 916, 917 A.2d 1000 (2007). Further, “[t]hat identical grounds for relief may be supported by different factual allegations or different legal arguments or couched in different language renders those grounds no less identical.” State v. Aillon, 189 Conn. 416, 427, 456 A.2d 279 (applying doctrine of res judicata where defendant advanced two slightly different, legal arguments in support of double jeopardy claim), cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983). Accordingly, we conclude that res judicata bars the relitigation of the defendant’s double jeopardy claim.

n

The defendant also claims that, in refusing to grant specific performance of the plea agreement, the court violated his right to due process by (1) failing to sentence him in accordance with the plea agreement, (2) vacating his accepted plea and (3) failing to follow the mandatory provisions of the rules of practice. We conclude that the defendant’s claim is barred by the doctrine of collateral estoppel.

“The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality. . . . Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Internal quotation marks omitted.) State v. Collazo, 115 Conn. App. 752, 757, 974 A.2d 729 (2009), cert. denied, 294 Conn. 929, 986 A.2d 1057 (2010). Moreover, “[i]f an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. . . . For collateral estoppel to apply, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding.” (Citation omitted; internal quotation marks omitted.) State v. Joyner, 255 Conn. 477, 490, 774 A.2d 927 (2001).

The defendant’s claims all raise issues that fully and fairly were litigated in his prior appeal to our Supreme Court. First, as to the defendant’s claims that the court improperly failed to sentence him in accordance with the plea agreement and improperly vacated his accepted plea, our Supreme Court decided identical issues in concluding that the defendant’s right to protection against double jeopardy was not violated. The court reasoned: “We first consider whether the trial court’s acceptance of the defendant’s plea gave him an expectation of finality sufficient to trigger double jeopardy protection. . . . Here, the totality of circumstances surrounding the trial court’s acceptance of the plea and continuation of the case for sentencing clearly indicated that the case had not concluded. Not only did the trial court lack authority to unconditionally accept the defendant’s plea, but the defendant was notified that his ultimate sentence was contingent upon the results of a presentence investigation as well as the victim’s constitutionally required input. Moreover, the rules of practice allow a trial court to abandon a previously accepted plea agreement due to the presentation of new information uncovered by a presentence investigation report, impose a harsher sentence and give the defendant the option of withdrawing his plea. . . . Thus, the defendant could not reasonably have believed that his prosecution would be complete until he was sentenced and all of the remaining charges against him were dismissed. In stun, the defendant did not have a reasonable expectation of finality in his plea agreement because the trial court’s acceptance of his plea was conditional rather than unequivocal.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Thomas, supra, 296 Conn. 393-95.

Here, the defendant argues that the court improperly vacated his accepted plea because the court failed to follow the rules of practice and because “[t]he defendant was not advised, even in the generalities of the rules, that the disposition of his charges was not settled and his sentence parameters not finalized.” (Emphasis added.) The defendant also argues that the court improperly refused to sentence him in accordance with the plea agreement because he pleaded guilty “in reliance on the trial court’s promise” that he would receive the bargained for sentence. These issues were litigated and decided when our Supreme Court determined that the defendant did not have a reasonable expectation of finality in his plea agreement. See State v. Collazo, supra, 115 Conn. App. 756-57 (applying collateral estop-pel where this court made prior determination that trial court properly denied defendant’s motion for competency examination); State v. Bonner, 110 Conn. App. 621, 632, 955 A.2d 625 (determination in murder case that probable cause to arrest existed collaterally estopped defendant’s motion to suppress in separate case for possession of drugs), cert. denied, 289 Conn. 955, 961 A.2d 421 (2008).

Second, as to the defendant’s claim that the court violated the mandatory provisions of the rules of practice, our Supreme Court concluded that the court’s ruling did not constitute plain error. The court stated that “despite the trial court’s imprecise application of the rules of practice, the trial court mitigated any potential harm to the defendant by vacating the defendant’s plea. The court’s decision to vacate the plea placed the defendant in the position he occupied before the court accepted his plea, thereby restoring the rights the defendant initially waived by pleading guilty.” (Emphasis added.) State v. Thomas, supra, 296 Conn. 394 n.14. Although not raised within the context of the defendant’s double jeopardy claim, this issue was fully and fairly litigated before our Supreme Court.

Accordingly, we conclude that the issues raised in this appeal are identical to those raised before our Supreme Court in the defendant’s previous appeal, and that those issues were both actually and necessarily determined. “An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.” (Internal quotation marks omitted.) State v. Joyner, supra, 255 Conn. 490. Therefore, we conclude that the defendant’s due process claim is barred by the doctrine of collateral estoppel.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-71 provides in relevant part: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with anotherperson and: (1) Such otherperson is thirteen years of age or older but under sixteen years of age and the actor is more than three years older than such other person ....
      “(b) Sexual assault in the second degree is a class C felony or, if the victim of the offense is under sixteen years of age, a class B felony, and any person found guilty under this section shall be sentenced to a term of imprisonment of which nine months of the sentence imposed may not be suspended or reduced by the court.” “Although § 53a-71 was amended by No. 07-143, § 1, of the 2007 Public Acts, those amendments have no beating on the merits of this appeal. For convenience, we refer to the current revision of the statute.” State v. Thomas, supra, 296 Conn. 378 n.2.

       General Statutes § 53-21 provides in relevant part: “(a) Any person who ... (2) has contact with the intimate parts ... 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 B felony . . . .” “Although § 53-21 was amended by No. 07-143, § 4, of the 2007 Public Acts, those amendments have no bearing on the merits of this appeal. For convenience, we refer to the current revision of the statute.” State v. Thomas, supra, 296 Conn. 378 n.3.

       Our Supreme Court noted that the trial court’s “initial impression of the case was based on four letters written by the victim to the defendant just after the defendant’s arrest, which defense counsel had provided to the trial court during plea negotiations. The presentence investigation report provided a more complete and current picture of the victim’s perspective.” State v. Thomas, supra, 296 Conn. 379 n.4.

       As to our Supreme Court’s footnote stating that its holding is limited to a determination that the “mere acceptance of a defendant’s guilty plea does not, in and of itself, trigger double jeopardy protection,” this statement merely supports the court’s conclusion that double jeopardy did not attach in this case because the trial court conditionally accepted the defendant’s plea. State v. Thomas, supra, 296 Conn. 397 n.15.

       We note that as to the defendant’s argument that the court failed to follow the mandatory provisions of the rules of practice, this argument could have been raised before our Supreme Court in the context of his double jeopardy claim. See State v. Jones, 98 Conn. App. 695, 705-706, 911 A.2d 353 (2006), cert. denied, 281 Conn. 916, 917 A.2d 1000 (2007). The defendant, however, claimed only that the trial court’s failure to articulate clearly the conditional nature of its acceptance of his plea, coupled with its subsequent decision to vacate his plea, constituted plain error. State v. Thomas, supra, 296 Conn. 394 n.14. Our Supreme Court rejected that argument. Id.

       In Thomas, our Supreme Court declined to review the defendant’s specific performance claim for lack of a final judgment because it did not satisfy the two prongs of the finality test in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 666 (1983). State v. Thomas, supra, 296 Conn. 381 n.6. The court noted that the defendant “remains free to negotiate a new plea agreement, and, if he is dissatisfied with its parameters, the defendant may pursue his specific performance claim after the [trial] court imposes a sentence and renders a final judgment.” Id. We read our Supreme Court’s statement only to establish that if the defendant were to bring a specific performance claim, that claim would not be dismissed for lack of a final judgment so long as the trial court imposes a sentence and renders a final judgment. We do not, as the defendant would have us do, read the statement so broadly as to constitute a conclusion by the court that such a claim would not be barred by the doctrine of collateral estoppel.

       The defendant, in particular, notes Practice Book § 39-9, which provides that “[i]f the case is continued for sentencing, the judicial authority shall inform the defendant that a different sentence from that embodied in the plea agreement may be imposed on the receipt of new information or on sentencing by another judicial authority, but that if such a sentence is imposed, the defendant will be allowed to withdraw his or her plea in accordance with Sections 39-26 through 39-28.”


source: Caselaw Access Project

author: BEACH, J. LAVINE, J.,

license: Public Domain

text:
    LIRIJE DAUTI ET AL. v. LIGHTING SERVICES, INC., ET AL.
    (AC 33441)
    Lavine, Beach and Dupont, Js.

      Argued February 2 —
    officially released September 4, 2012

      David A. Kelly, with whom, on the brief, was Sean Reidy, for the appellants (defendants).

      Eddi Z. Zyko, for the appellees (plaintiffs).
   Opinion

BEACH, J.

The defendants, Lighting Services, Inc. (Lighting Services), and Peerless Insurance Company, appeal from the decision of the workers’ compensation review board (board), claiming that the board improperly concluded that the plaintiffs’ notice of claim was timely filed under General Statutes § 31-294c (a). We disagree with the defendants and therefore affirm the decision of the board.

The following facts, as found by the workers’ compensation commissioner (commissioner), are relevant to this appeal. Zejadin Dauti (decedent) was employed by Lighting Services when, on September 28, 2000, he suffered a fatal heart attack while performing services for his employer at a supermarket in East Hartford. The commissioner found that neither a form 30C nor a form 30D was filed in this matter and that no hearing was requested, scheduled or held within one year of September 28, 2000. The plaintiffs’ counsel filed notice of the plaintiffs’ claims under General Statutes § 31-306 (a), by letter dated January 30, 2002. The defendants filed a form 43 dated February 13, 2002.

The commissioner held a formal hearing on November 5 and December 28,2009, and the record was closed on March 31, 2010. The commissioner issued his ruling on April 28, 2010. On the basis of the evidence before him, the commissioner found that the plaintiffs had failed to file a notice of claim within one year of the decedent’s death, thereby failing to meet the requirements of § 3 l-294c (a) and that they had failed to demonstrate that one of the jurisdictional exceptions in § 31-294c (c) applied. The commissioner concluded, therefore, that the workers’ compensation commission (commission) lacked subject matter jurisdiction and dismissed the plaintiffs’ claims. The plaintiffs filed a motion to correct the finding and award, which the commissioner denied.

The plaintiffs then, on May 13, 2010, filed a petition for review with the board. On April 25, 2011, the board issued its decision, concluding that the commissioner incorrectly had determined that the commission lacked subject matter jurisdiction over the plaintiffs’ claims. The board found that the plain meaning of § 31-294c, as construed in its prior decision, Merenski v. Greenwich Hospital Associates, Inc., No. 4292 CRB-7-00-9 (September 12,2001), provides for a two year time limitation from a worker’s death to file claims under § 31-306, which time limitation the plaintiffs met.

The defendants appealed to this court, claiming that the board improperly reversed the commissioner’s finding and award, which concluded that the plaintiffs failed to file a notice of claim within the applicable time set forth in § 31-294c (a). We disagree with the defendants and affirm the decision of the board.

The precise issue raised by the defendants in this appeal was considered and decided in Wikander v. Asbury Automotive Group/David McDavid Acura, 137 Conn. App. 665, 50 A.3d 901 (2012). We agree with the reasoning and the result of the majority in that case; the language of § 31-294c (a) is plain and unambiguous and provides for a two year limitation period when death occurs on the same day as the accident that caused the death. We see no reason to belabor the point further.

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

In this opinion DUPONT, J., concurred.

LAVINE, J.,

concurring. I concur in the majority’s result, but I do not believe that General Statutes § 31-294c (a) is clear and unambiguous. I again want to draw attention to the concerns expressed by our Supreme Court in Fredette v. Connecticut Air National Guard, 283 Conn. 813, 839, 930 A.2d 666 (2007) (urging legislature to address gaps and inconsistencies in statute). See Wikander v. Asbury Automotive Group/David McDavid Acura, 137 Conn. App. 665, 679, 50 A.3d 901 (2012) (Lavine, J., concurring). Although the worker in this case died on the date of the alleged work-related accident and no notice was filed by any party within one year from the date of the accident, the plaintiffs’ action is saved by the proviso portion of § 31-294c (a). I believe that the proviso portion of the statute is problematic as it melds the time in which a claim for benefits must be filed for both accidental and occupational disease cases.

I respectfully suggest that the legislature may wish to clarify the statute by stating, in separate sentences or provisions, the limitation period or periods within which to file claims for an injury that causes a worker to die on the date of the accident, for deaths that occur as a result of the accident but not on the date of the accident and for deaths arising from occupational diseases.

For the foregoing reasons, I respectfully concur.

       The plaintiffs are Lirije Dauti, the dependent spouse of Zejadin Dauti (decedent), Kenan Dauti, administrator of the estate of Alban Dauti, who was the dependent son of the decedent, and Tashgur Dauti, the administrator of the decedent’s estate.

       General Statutes § 31-294c (a) provides in relevant part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . . . provided, if death has resulted within two years from the date of the accident . . . the legal representative of the deceased employee, may make claim for compensation within the two-year period or within one year from the date of death, whichever is later. . . .”

       The decedent was employed as a master electrician. The defendants do not dispute that the decedent suffered a heart attack during the course of his employment, but they deny that the heart attack arose out of the course of the decedent’s employment.

       Form 30C is entitled “Notice of Claim for Compensation (Employee to Commissioner and to Employer).”

       Form 30D is entitled “Dependent’s Notice of Claim (To Commissioner and to Employer).”

       General Statutes § 31-306 (a) provides in relevant part: “Compensation shall be paid to dependents on account of death resulting from an accident arising out of and in the course of employment or from an occupational disease . . . .”

       Form 43 is entitled “Notice to Compensation Commissioner and Employee of Intention to Contest Employee’s Right to Compensation Benefits.”

       The board also stated that much of the plaintiffs’ appeal was based on their belief that the “medical care exception” under the notice statute was met. See General Statutes § 31-294c (c). The board declined to address that issue as it concluded that the commissioner had decided the matter under an incorrect application of the notice requirements pursuant to § 3 l-294c (a).
      On appeal, pursuant to Practice Book § 63-4 (a) (1), the plaintiffs claim that the board’s decision can be affirmed on the alternative ground that the commissioner improperly found that they had failed to meet their burden of proving the medical care exception under § 31-294c (c). The defendants argue, however, that we may not address the plaintiffs’ alternative basis to affirm the board’s decision because the commissioner did not make the requisite findings of fact and the board failed to consider the exception. We agree with the defendants that the record is inadequate for our review of the plaintiffs’ alternative ground to affirm the board’s decision. See Practice Book § 61-10.

       My concerns are set forth more fully in Wikander v. Asbury Automotive Group/David McDavid Acura, 137 Conn. App. 665, 679, 50 A.3d 901 (2012) (Lavine, J., concurring). Wikander also is a case in which the worker suffered an alleged work-related heart attack and died the same day. Id., 667.


text:
    PEMIOLA DEMIRAJ ET AL. v. TOM ULJAJ ET AL.
    (AC 33219)
    DiPentima, C. J., and Espinosa and Bishop, Js.

      Argued April 24 —
    officially released September 4, 2012

      Anthony R. Minchella, with whom, on the brief, was Elizabeth Lachterman, for the appellants (plaintiffs).

      Kenneth G. Bartlett, for the appellees (defendants).
   Opinion

DiPENTIMA, C. J.

The plaintiffs, Péndola Demiraj, individually and doing business as Eagle Agency, and Halim Demiraj, appeal from the judgment of the trial court, following a jury trial, in favor of the defendants, Tom Uljaj, Eli Gjezo and Adriatic Eagle Air Corporation (Adriatic). On appeal, the plaintiffs claim that the court improperly directed a verdict in favor of the defendants on two counts alleging violations of the Connecticut Uniform Securities Act (CUSA), General Statutes § 36b-2 et seq., and specifically General Statutes § 36b-4 (a) and (b). We reverse in part the judgment of the trial court.

The following facts, construed in the light most favorable to the plaintiffs, reasonably are taken from the record. See Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 253, 943 A.2d 430 (2008). Pemiola Demiraj and Halim Demiraj are residents of Waterbury, and Eagle Agency is a travel agency owned and operated by Pemi-ola Demiraj in Waterbury. Uljaj and Gjezo are residents of New York and owners of Adriatic, a New York corporation. Adriatic is in the air travel business, specifically the advertising and sale of airline tickets and the operation of international flights from the United States to locations including Albania and Kosovo. The plaintiffs met with Uljaj and Gjezo in Waterbury to discuss the possibility of investing in Adriatic. At this meeting, Uljaj and Gjezo told the plaintiffs how successful this business would be, that it was worth $5 million, that all of the necessary permits were in place and that if they joined as 25 percent partners, their share would be $1,250,000.

In June, 2007, Pemiola Demiraj and Halim Demiraj entered into a stock purchase agreement (agreement) with Adriatic, in which they agreed to purchase 25 percent of the then issued and authorized shares of Adriatic’s common stock for $1,225,000. The purchase was to be paid in installments, with $250,000 payable on or before the execution date of the agreement, $250,000 in two equal payments of $125,000 due on July 10 and August 10, 2007, and $725,000 in monthly payments of $10,000 per month, starting in October, 2007. The agreement also provided that the shares of Adriatic being purchased would remain in Adriatic’s possession until the purchase price was paid in full. The plaintiffs made the initial payment of $250,000 before the agreement was signed. Subsequent to the execution of the agreement, Adriatic ceased its flight operations because it was not generating the income from reservations necessary to meet its expenses. When the plaintiffs learned that no gain would be realized from their investment, and upon learning that their initial $250,000 payment made to Adriatic would not be recouped, the relationship between the parties broke down.

In October, 2010, the plaintiffs filed their first amended complaint against the defendants seeking damages and equitable relief. The plaintiffs’ eleven count complaint alleged violations of CUSA, and the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., as well as rescission, fraud, breach of contract, statutory theft and breach of the covenant of good faith and fair dealing. The case proceeded to trial, and the defendants filed a motion for a directed verdict. The defendants argued that (1) there was insufficient evidence as a matter of law to support a verdict against either Uljaj or Gzejo, individually and (2) there were insufficient contacts with Connecticut to permit the application of Connecticut law to the facts of the case. The court granted the defendants’ motion for a directed verdict as to counts one, two and three alleging violations of CUSA, and as to count nine alleging statutory theft.

After trial, the jury returned a verdict in favor of the plaintiffs as to counts ten and eleven alleging violations of the breach of the covenant of good faith and fair dealing and awarded damages in the amount of $162,722.46. The jury found in favor of the defendants on the remaining counts. The plaintiffs filed a motion to set aside the verdict on the breach of contract and CUTPA counts, for judgment notwithstanding the verdict, or for a new trial, and additur as to the bad faith count, which the court denied. Accordingly, the court rendered judgment in accordance with the jury’s verdict. This appeal followed.

On appeal, the plaintiffs claim that the court improperly directed a verdict in favor of the defendants. Specifically, the plaintiffs argue that there was sufficient evidence to support the application of CUSA, § 36b-4 (a) and (b), and, accordingly, the court should not have directed a verdict in favor of the defendants as to counts one and two of their complaint. We agree with the plaintiffs.

We first set forth the applicable standard of review. “Whether the evidence presented by the plaintiff was sufficient to withstand a motion for a directed verdict is a question of law, over which our review is plenary. . . . Directed verdicts are not favored. ... A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. ... In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff. . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. . . . This court has emphasized two additional points with respect to motions to set aside a verdict that are equally applicable to motions for a directed verdict: First, the plaintiff in a civil matter is not required to prove his case beyond a reasonable doubt; a mere preponderance of the evidence is sufficient. Second, the well established standards compelling great deference to the historical function of the jury find their roots in the constitutional right to a trial by jury.” (Citations omitted; internal quotation marks omitted.) Curran v. Kroll, 303 Conn. 845, 855-56, 37 A.3d 700 (2012).

The plaintiffs claim that there is sufficient evidence to support the application of CUSA because the defendants’ conduct at the Waterbury meeting constituted an “offer” to sell securities under General Statutes § 36b-3 (16). This claim raises an issue of statutory interpretation over which our review is plenary. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning [General Statutes] § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratex-tual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Urich v. Fish, 112 Conn. App. 837, 841, 965 A.2d 567, cert. denied, 292 Conn. 909, 973 A.2d 109 (2009).

We begin our analysis with the relevant statutory language. CUSA governs the purchase and sale of securities. Section 36b-4 (a) provides: “No person shall, in connection with the offer, sale or pinchase of any security, directly or indirectly: (1) Employ any device, scheme or artifice to defraud; (2) make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or (3) engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.” Section 36b-4 (b) provides: “No person shall, in connection with the offer, sale or purchase of any security, directly or indirectly engage in any dishonest or unethical practice.” Further, § 36b-3 (16) (A) defines a “ ‘sale’ ” of securities as including “every contract of sale of, contract to sell, or disposition of, a security or interest in a security for value,” and § 36b-3 (16) (B) defines an “ ‘offer’ ” to sell securities as “every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security for value.” (Emphasis added.)

Section 36b-4 corresponds to § 101 of the Uniform Securities Act of 1966 (Uniform Securities Act). See Connecticut National Bank v. Giacomi, 233 Conn. 304, 319, 659 A.2d 1166 (1995). Because CUSA is a “substantial adoption of the major provisions of the . . . Uniform Securities Act, we may look to interpretations of that act in interpreting analogous language in our own statutes.” Lehn v. Dailey, 77 Conn. App. 621, 631-32, 826 A.2d 140 (2003). Moreover, in our review of § 36b-4, it is “instructive to consider the accepted interpretations of rule 10b-5 [of the Securities and Exchange Commission]” at the time the Uniform Securities Act was adopted. Connecticut National Bank v. Giacomi, supra, 322. Finally, this court has stated that “where the interpretations of rule 10b-5 and the analogous language of the Uniform Securities Act have diverged since 1966, it is the jurisprudence under the Uniform Securities Act that is most compelling.” Lehn v. Dailey, supra, 633.

In directing a verdict in favor of the defendants as to the counts alleging violations of CUSA, specifically § 36b-4 (a) and (b), the court noted that General Statutes § 36b-33 provides that General Statutes §§ 36b-4, 36b-6, 36b-6, 36b-16, 36b-24 and 36b-29 apply to persons who “sell or offer to sell when an offer to sell is made in this state, or when the offer to buy is made and accepted in this state.” (Emphasis added.) The court stated that it had not “heard evidence that would make this — this statute applicable, and therefore, [it was] going to direct out those three counts as to [CUSA].” Thus, the court determined that the plaintiffs had not presented sufficient evidence to show that an offer to sell shares of Adriatic was made in Connecticut to support a cause of action under CUSA.

The jury reasonably could have concluded, however, that the defendants solicited the plaintiffs’ investment in 25 percent of the shares of Adriatic when the parties met in Waterbury. Solicitation qualifies as an “offer” under § 36b-3 (16) (B) and, therefore, the court should not have granted a verdict in the defendants’ favor. The United States Supreme Court, interpreting the Securities Act of 1933, has determined that liability extends to a person who solicits a purchase of securities while motivated “at least in part by a desire to serve his own financial interests or those of the securities owner.” Pinter v. Dahl, 486 U.S. 622, 647, 108 S. Ct. 2063, 100 L. Ed. 2d 658 (1988). The Supreme Court also stated that Congress did not intend to impose liability on participants “collateral” to the offer or sale. Id., 650.

Uljaj and Gjezo are owners of Adriatic, and the jury reasonably could have concluded that their interactions with the plaintiffs at the Waterbury meeting constituted a solicitation under § 36b-3 (16), and that their conduct was motivated at least in part by a desire to serve their financial interests as owners. Here, Pemiola Demiraj testified that at the Waterbury meeting, Uljaj and Gjezo “talked about this being a wonderful business, a good opportunity to invest, the potential that it had. They were talking [about] what they had accomplished so far, that they were just ready to go, ready to fly.” She testified that the purpose of the meeting was to discuss forming a “partnership.” She stated that Uljaj and Gjezo represented to her that Adriatic was worth $5 million, and that if they joined as 25 percent partners, their share would be $1,250,000. Moreover, she testified that they told her that the first two flights were paid, that all of the permits were in place, that all the advertisements were made and that her confidence in Adriatic increased after this dinner meeting. Finally, she testified that Gjezo told her that “being such a successful business it’s going to be hard for us to give you 25 percent of the shares.” In viewing, as we must, the evidence in the light most favorable to the plaintiffs, the jury reasonably could have concluded that the conduct of Uljaj and Gjezo in Connecticut constituted a solicitation within the meaning of § 36b-3. The court, therefore, improperly directed a verdict in favor of the defendants as to counts one and two of the plaintiffs’ complaint.

The judgment is reversed in part and the case is remanded for a new trial on counts one and two of the plaintiffs’ complaint. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       We note that the third count of the plaintiffs’ complaint also alleged a violation of CUSA under General Statutes § 36b-6 (c). On appeal, the plaintiffs do not challenge the court’s granting of a directed verdict as to this count. They also do not challenge the court’s granting of a directed verdict as to the statutory theft count.

       Section 101 of the Uniform Securities Act of 1956 provides: “[Sales and Purchases.] It is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly
      “(1) to employ any device, scheme, or artifice to defraud,
      “(2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under wliich they are made, not misleading, or
      “(3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.”

       We note that § 101 of the Uniform Securities Act “was modeled on rule 10b-5 of the Securities and Exchange Commission (SEC), which, in turn, was modeled on § 17 (a) of the federal Securities Act of 1933. L. Loss, Commentary on the Uniform Securities Act (1976) official comment to § 101, p. 6. Although modeled on § 17 (a), rule 10b-5 was promulgated by the SEC pursuant to its authority under § 10 (b) of the Securities Exchange Act of 1934.” Connecticut National Bank v. Giacomi, supra, 233 Conn. 321.

       In August, 2011, the plaintiffs, with the consent of the defendants, filed a motion for permission to file a late motion for articulation, which this court denied. The defendants argue that there is an inadequate record for our review of the plaintiffs’ claim because “[wjithout an articulation, both counsel, as well as this court, are essentially left to speculate” as to the court’s reasoning in granting the defendants’ motion for a directed verdict on the CUSA counts. We disagree.
      In granting the defendants’ motion for a directed verdict, the court stated that CUSA applies to persons who “sell or offer to sell when an offer to sell is made in this state or when the offer to buy is made and accepted in this state.” It is well established that the appellant bears the burden of providing an appellate court with an adequate record for review. Practice Book § 61-10. Here, the court emphasized that it had not “heard evidence that would make [CUSA] applicable, and therefore, I am going to direct out those three counts . . . Thus, the court’s basis for granting the directed verdict was that it had not heard sufficient evidence to show that there was an offer to buy or sell a security in the state of Connecticut. The court sufficiently set forth the factual and legal basis for its decision. Accordingly, we conclude that the record is adequate for our review.

       It is undisputed that the shares of Adriatic qualify as securities within CUSA. General Statutes § 36b-3 (19) defines “security” in relevant part as “any note, stock, treasury stock, security future, bond, debenture, evidence of indebtedness . . . .”

       Several cases from other jurisdictions, interpreting similar provisions of the Uniform Securities Act, have cited Pinter v. Dahl, supra, 486 U.S. 622, 647, in determining whether a solicitation had occurred. See, e.g., Bennett v. Durham, United States Court of Appeals, Docket Nos. 11-5782, 11-5918 (6th Cir. June 28, 2012); Shaw v. Digital Equipment Corp., 82 F.3d 1194, 1215 (1st Cir. 1996); F.W. Webb Co. v. State Street Bank & Trust Co., United States District Court, Docket No. 09 Civ. 1241 (RJH) (S.D.N.Y. August 12, 2010). The majority of these cases have considered the meaning of “solicit” where the alleged solicitor was not the owner of the securities. We see no reason, however, why owners of securities cannot also engage in solicitation under CUSA. Accordingly, we consider and find instructive the Supreme Court’s reasoning in Pinter.

       We note that neither the plaintiffs nor the defendants have provided this court with transcripts of the entire testimony at trial, and our review of the evidence is limited to the record before us.


author: ALVORD, J. SCHALLER, J.,

text:
    ONE COUNTRY, LLC, ET AL. v. MICHAEL JOHNSON ET AL.
    (AC 32960)
    Gruendel, Alvord and SchaJler, Js.

      Argued April 19 —
    officially released September 4, 2012

      John B. Farley, with whom were Lawrence P. Weis-man and, on the brief, Joseph J. Areata III and Eric D. Bemheim, for the appellant (plaintiff Scott Porter).

      David Eric Ross, for the appellee (named defendant).

      Michael J. Bamaby, for the appellee (defendant Peter Pratley).
   Opinion

ALVORD, J.

In this action to enforce written guarantee agreements, the plaintiff Scott Porter appeals from the judgment, rendered after a court trial, in favor of the defendants Michael Johnson and Peter Pratley. On appeal, the plaintiff claims that the trial court improperly determined that the guarantees were not enforceable against the defendants because the plaintiff failed to demonstrate that he had suffered a loss. We agree with the plaintiff and, accordingly, reverse the judgment of the trial court.

The following facts were found by the court or are not disputed. In late 2004, the plaintiff and his then wife, Jennifer Porter, resided at 3 Country Road in Westport. At that time, the owners of 1 Country Road were planning to sell their property. The Porters believed that they could make a significant profit if they purchased the adjoining property, enlarged and restored the house, and then sold the property. Because they had no experience in the restoration of properties or investment in real estate, Jennifer Porter approached Johnson, an acquaintance, who was involved in the restoration of another residential property located on Beachside Avenue in Westport. Johnson introduced the Porters to Pratley, who owned The Pratley Company, LLC, an investor and the general contractor for the Beachside Avenue project.

The Porters, Johnson and Pratley formed a limited liability company, One Country, LLC, in furtherance of their plans to purchase and to redevelop the 1 Country Road property. Pursuant to the company’s operating agreement, the Porters invested $200,000 through their jointly owned limited liability company, Iboport, LLC. Johnson and Pratley each invested $50,000. All of the parties understood that mortgage financing and additional equity investments of at least $200,000 were required in order to purchase the property and to complete the renovations.

Connecticut Community Bank, N.A., doing business as The Greenwich Bank & Trust Company (bank), agreed to provide the financing for the project. Although the bank considered the financing to be one transaction, there were two separate notes and mortgages executed by One Country, LLC, in connection with the acquisition and construction loans. The commercial note for the acquisition of the property, in the amount of $1,080,000, was signed on March 7, 2005. The note was secured by a commercial mortgage on the property. As additional security, the plaintiff, as the sole guarantor, unconditionally guaranteed the payment of the acquisition loan by One Country, LLC. Because Johnson and Pratley already had signed guarantees to the bank in connection with the Beachside Avenue project, the bank was unwilling to rely on their guarantees of the acquisition and construction loans to One Country, LLC.

By the end of 2005, the Porters’ personal relationship had deteriorated and divorce proceedings had commenced. The note for the $1,000,000 construction loan to One Country, LLC, was signed on February 9, 2006. Sometime after the execution of the acquisition loan documents, but before the construction loan closing, the plaintiff forwarded what he termed “backstop” guarantee agreements to Jennifer Porter, Johnson and Prat-ley. The plaintiff, an attorney employed as corporate in-house counsel, drafted the guarantees. He indicated that he would not sign the personal guarantee for the construction loan to One Country, LLC, unless Jennifer Porter, Johnson and Pratley signed guarantees that provided protection to him in the event he was required to honor either of his personal guarantees to the bank. The three backstop guarantees were signed before the plaintiff signed his second personal guarantee to the bank at the construction loan closing.

Despite the bank financing and an additional $200,000 in contributions raised through the admittance of four new members to the company, One Country, LLC, exhausted all of its capital in 2007, and was unable to complete the renovations to the property. In 2008, after One Country, LLC, ceased making payments to the bank, the bank commenced foreclosure proceedings against the company and the plaintiff, as guarantor. The court rendered a judgment of strict foreclosure, and the bank then sought a deficiency judgment against the plaintiff. The bank and the plaintiff resolved the matter by entering into a settlement agreement, in which the bank agreed to withdraw its motion for a deficiency judgment upon the plaintiffs payment of $300,000. The plaintiff paid $300,000 to the bank and commenced the present action against the defendants to enforce the backstop guarantees.

A court trial was held on several days in July, 2010. More than forty exhibits were submitted as evidence, including copies of the plaintiffs personal guarantees to the bank, the backstop guarantees signed by the defendants and the settlement agreement between the plaintiff and the bank. One of the plaintiffs witnesses, Steven Glaser, was a certified public accountant who had prepared tax returns for the plaintiff, Iboport, LLC, and One Country, LLC, for 2008 and 2009. He testified that the plaintiff made the $300,000 settlement payment to the bank, and then he indicated how that payment was treated for tax purposes. Basically, the plaintiffs payment to the bank was characterized as an additional capital contribution to Iboport, LLC, the jointly owned limited liability company through which he acquired his interest in One Country, LLC. The plaintiff consequently claimed his 50 percent share of a pass-through loss on his personal tax return. Glaser testified that the tax benefit would have to be adjusted if the plaintiff were to be reimbursed by the other members of One Country, LLC, for the loan deficiency.

The parties filed posttrial briefs with the court. In its memorandum of decision issued September 23, 2010, the court discussed the respective positions of the parties. The court then determined that “the intent of the [backstop] guarantees is clear — if the plaintiff was obligated to make payments to the [b]ank under his personal guarantee and One Country, LLC, thereby became indebted to the plaintiff, the defendants would be obligated to make payment to the plaintiff to discharge One Country, LLC’s debt to the plaintiff.” Furthermore, despite the defendants’ arguments to the contrary, the court found that the plaintiffs execution of his personal guarantee to the bank in connection with the construction loan was sufficient consideration to support each of the defendants’ backstop guarantees. Nevertheless, the court determined that the plaintiffs tax treatment of his $300,000 settlement payment to the bank precluded his recovery under the backstop guarantees: “The plaintiffs election to contribute the obligations owed to him by One Country, LLC, to Iboport, LLC, and that entity’s subsequent decision to convert that debt to equity precludes the court from finding that either the plaintiff or Iboport, LLC, suffered a loss.” Accordingly, the court rendered judgment in favor of the defendants. This appeal followed.

The plaintiffs claim on appeal is that because the backstop guarantees signed by the defendants were absolute and unconditional and waived all defenses, the court improperly declined to enforce those guarantees on the ground that the plaintiff characterized his loss to the bank as an increase in his capital contribution to Iboport, LLC, for accounting purposes. We agree.

We begin with the applicable standard of review. “To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) 73-75 Main Avenue, LLC v. PP Door Enterprise, Inc., 120 Conn. App. 150, 164, 991 A.2d 650 (2010).

“A guarantee, similar to a suretyship, is a contract, in which a party, sometimes referred to as a secondary obligor, contracts to fulfill an obligation upon the default of the principal obligor.” (Internal quotation marks omitted.) Id., 165. We therefore look to the express terms of the backstop guarantee agreements between the plaintiff and the defendants to interpret the contractual provisions. Each defendant in his respective guarantee agreement is identified as the guarantor. The guarantee is “to and in favor of Scott Porter,” who is also referred to as “SDP.” The stated consideration is to induce the plaintiff to execute a personal guarantee to the bank in connection with loans (underlying transactions) to One Country, LLC, which is identified as the debtor. The relevant provisions of the guarantee agreements are as follows.

Paragraph one of the guarantee agreements provides: “GUARANTOR, as primary obligor and not merely as surety, hereby absolutely, unconditionally and irrevocably guarantees to SDP the complete and punctual (i) payment in full when due, whether at scheduled payment, prepayment, stated maturity, acceleration, demand or otherwise, of any and all present and future obligations of DEBTOR to SDP arising from the Underlying Transactions, whether of principal, interest, overdue interest, fees, expenses, indemnities and other amounts and (ii) performance by DEBTOR of all other obligations and covenants under the Underlying Transactions (collectively, the ‘Guaranteed Obligations’). This Guaranty is a continuing guaranty of payment and performance and not only of collection and shall be valid and enforceable until all Guaranteed Obligations and all other obligations have been indefeasibly paid in full and completely performed.”

Paragraph 3 of the guarantee agreements provides in relevant part: “GUARANTOR HEREBY EXPRESSLY WAIVES: (i) any defense arising by reason of the incapacity, lack of authority or any disability of DEBTOR or the invalidity or unenforceability of any of the Underlying Transactions [or] Guaranteed Obligations ... in whole or in part; (ii) notice of any Underlying Transactions or of the performance thereunder; (iii) notice of acceptance of this Guaranty by SDP; (iv) presentment, demand, notice of dishonor or default, protest of every kind, notice of protest, notice of non-payment or other default with respect to the Guaranteed Obligations and all other notices whatsoever; (v) diligence on the part of SDP in the collection of the Guaranteed Obligations or any security with respect thereto; (vi) the occurrence of any other condition precedent to which GUARANTOR might otherwise be entitled; (vii) to the fullest extent permitted by law, any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors, or which may conflict with the terms of this Guaranty, (viii) the existence of any dispute with respect to any default by DEBTOR; (ix) notice of assignment of this Guaranty by SDP . . . (Emphasis added.)

Paragraph 4 of the guarantee agreements provides in relevant part: “Without notice to GUARANTOR and without in any way affecting the liability of GUARANTOR hereunder, SDP shall have the right, at any time and from time to time, to: (i) make, amend, supplement, or modify with DEBTOR any Underlying Transaction . . . and/or expend credit to DEBTOR with regard thereto; (ii) extend or otherwise alter the terms of payment or amount of the Guaranteed Obligations and grant such other indulgences to DEBTOR as SDP deems proper; (iii) surrender, release, modify or dispose of any other security SDP now has or may hereafter have with respect to the Guaranteed Obligations; (iv) request and accept other guaranties of the Guaranteed Obligations .... The obligations of GUARANTOR shall not be discharged or otherwise affected by any settlement, waiver, release or variation as to any payment or other obligation due from DEBTOR to SDP . . . .” (Emphasis added.)

Finally, paragraph 13 (e) of the guarantee agreements provides: “GUARANTOR acknowledges and agrees that this Guaranty shall not be construed in favor of GUARANTOR based upon the allegation that SDP drafted (or is deemed to have drafted) this Guaranty.”

The express language in the defendants’ backstop guarantee agreements is plain and broad, providing absolute and unconditional protection to the plaintiff in the event of a default by One Country, LLC, in the performance of its obligations to the bank in connection with the acquisition and construction loans for 1 Country Road in Westport. The defendants contractually agreed to reimburse the plaintiff for any payments he made to the bank resulting from a default by One Country, LLC. When the plaintiff paid $300,000 to the bank in settlement of its deficiency claims against One Country, LLC, for which the plaintiff was hable under his personal guarantee to the bank, One Country, LLC, became indebted to the plaintiff and the defendants then became hable to the plaintiff under the terms of their backstop guarantee agreements. Furthermore, the defendants contractually agreed to waive ah defenses to the fullest extent permitted by law. “While a determination about a party’s intent to waive his rights ordinarily poses a question of fact, clear and definitive contract language can estabhsh waiver as a matter of law.” Connecticut National Bank v. Douglas, 221 Conn. 530, 545, 606 A.2d 684 (1992).

Significantly, in this appeal, the defendants have not challenged the trial court’s factual finding that there was sufficient consideration for the execution of the backstop guarantee agreements. Moreover, they have not taken issue with the breadth of the guarantees, and they have not argued that they signed the guarantees without understanding their contents. Instead, they argue that the plaintiff, as a result of the tax treatment of his $300,000 settlement payment to the bank, failed to prove that One Country, LLC, owed him a debt. They maintain that whatever rights the plaintiff may have had with respect to that payment were extinguished and belonged instead to Iboport, LLC.

We conclude that the plaintiff’s tax treatment of the debt owed by One Country, LLC, to him is irrelevant to the issue of whether the plaintiff is entitled to reimbursement from the defendants under the express terms of the backstop guarantee agreements. The defendants do not dispute that One Country, LLC, was indebted to the plaintiff at the time he made the $300,000 settlement payment to the bank, but, rather, they maintain that the debt somehow was extinguished by virtue of the plaintiffs tax treatment of that transaction. This reasoning is flawed for several reasons.

The backstop guarantee agreements are absolute and unconditional. The defendants waived all defenses to the fullest extent of the law. The guarantee agreements do not provide that the defendants’ liability would be affected by the plaintiffs treatment of the debt for tax or accounting purposes. Simply put, the defendants are bound by the contractual provisions to which they agreed.

Further, as Glaser testified, if the plaintiff successfully recouped some of the payment he made to the bank, he and Iboport, LLC, would have to report that income and to make a tax adjustment for the tax benefit received in 2008.

Finally, under the circumstances of this case, the tax treatment of the plaintiffs payment is irrelevant to the fact that he suffered a loss when he paid $300,000 to the bank as a result of One Country, LLC’s default and that the defendants expressly agreed to reimburse him under those stated circumstances. There is no Connecticut case law directly addressing the effect, if any, of tax benefits taken by an individual or entity seeking to enforce the underlying liability of guarantors who have executed written guarantee agreements. The defendants have not provided any case law to support their positions, and logic dictates that treatment for tax or accounting purposes should not release them as guarantors from liability when they signed the absolute and unconditional guarantees at issue in this case.

The judgment is reversed and the case is remanded with direction to render judgment for the plaintiff.

In this opinion GRUENDEL, J., concurred.

SCHALLER, J.,

dissenting. The majority reverses the judgment of the trial court and determines that the plaintiff Scott Porter should prevail despite the fact that he assigned his interest in the defendants’ written guarantees to Iboport, LLC (Iboport). In doing so, the majority appears to adopt the plaintiffs argument that the capital contribution made to Iboport did not represent a legal transfer of interest in the guarantees and, consequently, may be ignored as mere “tax treatment.” Because the plaintiff assigned his rights under the guarantees to Iboport as a capital contribution and, therefore, lacked standing to seek enforcement of them in the present action, I respectfully dissent and conclude that the trial court should have dismissed the case due to the absence of subject matter jurisdiction.

In addition to the facts recited in the majority opinion, the following undisputed facts, as found by the trial court, are relevant to the present appeal. On its 2008 tax return, Iboport reported a $300,000 capital contribution from the plaintiff. In turn, also on its 2008 tax return, One Country, LLC (One Country), reported a $300,000 capital contribution from Iboport. This transfer of assets occurred in order to allow the plaintiff to take a $300,000 business loss and to receive a corresponding tax deduction. In its memorandum of decision, the court determined that “[t]he obligation for which the defendants provided their backstop guarantees was the obligation of One Country ... to the plaintiff that arose when the plaintiff was required to pay $300,000 to the bank pursuant to his guarantee. After that obligation arose, the plaintiff chose to contribute the obligation to Iboport .... In this process, the plaintiff first divested himself of the title to the obligation, so that Iboport . . . rather than the plaintiff became the party entitled and empowered to enforce the defendants’ backstop guarantees.”

In view of this determination by the trial court, I believe that this court must address the issue of standing. “The issue of standing implicates the trial court’s subject matter jurisdiction and therefore presents a threshold issue for our determination.” (Internal quotation marks omitted.) D 'Amato Investments, LLC v. Sutton, 117 Conn. App. 418, 421, 978 A.2d 1135 (2009). “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.” (Internal quotation marks omitted.) Wilcox v. Webster Ins. Inc., 294 Conn. 206, 214, 982 A.2d 1053 (2009). “[T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. . . . Moreover, [t]he parties cannot confer subject matter jurisdiction on the court, either by waiver or by consent.” (Citation omitted; internal quotation marks omitted.) Webster Bank v. Zak, 259 Conn. 766, 774, 792 A.2d 66 (2002). “Our review of the question of . . . standing is plenary.” (Internal quotation marks omitted.) Ulster Savings Bank v. 28 Brynwood Lane, Ltd., 134 Conn. App. 699, 705, 41 A.3d 1077 (2012).

“It is a well established principle of contract law that assignment of one’s rights under a contract results in [succession by an assignee to exclusive ownership of all or part of the assignor’s rights respecting the subject matter of the assignment, and a corresponding extin-guishment of those rights in the assignor .... It is [also] well settled that one who [is] neither a party to a contract or a contemplated beneficiary thereof cannot sue to enforce the promise of the contract . . . .” (Citation omitted; internal quotation marks omitted.) Shenkman-Tyler v. Central Mutual Ins. Co., 126 Conn. App. 733, 742-43, 12 A.3d 613 (2011).

In order to determine whether the plaintiff has standing to enforce the guarantees, the court must first examine whether the plaintiff was permitted to assign his interest in the guarantees to a third party. “ [A] guarantee is a promise to answer for the debt, default or miscarriage of another. ... It is simply a species of contract.” (Citations omitted.) Regency Savings Bank v. Westmark Partners, 59 Conn. App. 160, 164, 756 A.2d 299 (2000). “The question of the parties’ intent is [ordinarily ... a question of fact [subject to appellate review under the clearly erroneous standard]. ... If however, the language of the contract is clear and unambiguous, the court’s determination of what the parties intended in using such language is a conclusion of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard. . . . Thus, in the absence of a claim of ambiguity, the interpretation of [a] contract presents a question of law. . . . Well established principles guide our analysis in determining whether the language of a contract is ambiguous. [A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties. . . . In contrast, [a] contract is unambiguous when its language is clear and conveys a definitive and precise intent. . . . The court will not torture the words to impart ambiguity. . . . Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Internal quotation marks omitted.) D’Amato Investments, LLC v. Sutton, supra, 117 Conn. App. 423-24.

In Hudson United Bank v. Endeavor Group, 96 Conn. App. 447, 449-50, 901 A.2d 64 (2006), this court examined a case in which the plaintiff sought to enforce a continuing personal guarantee from the defendant which had been assigned to it through a merger with another bank. In that case, the guarantee explicitly provided that “[t]his guarantiee] shall inure to the benefit of [the predecessor bank], its successors, legal representatives and assigns.” (Internal quotation marks omitted.) Id., 453. On the basis of this language, this court concluded that “the guarantee clearly provides that its benefit would continue to any and all successors . . . .” Id.

Likewise, in D'Amato Investments, LLC v. Sutton, supra, 117 Conn. App. 420-21, this court examined a case in which the assignee of a landlord sought to enforce a personal guarantee in order to recover amounts allegedly due pursuant to a commercial lease. In that case, the guarantee provided that “[t]he undersigned guarantees to Landlord, Landlord’s successors and assigns, the full performance and observance of all covenants, conditions and agreements . . . .” (Emphasis in original; internal quotation marks omitted.) Id., 422. In light of this language, this court rejected the defendant’s claim the assignee lacked standing to enforce his personal guarantee. Id., 423.

In the present case, each of the guarantees provides that they “shall inure to the benefit of [the plaintiff], his successors and assigns, and shall be binding on [the guarantor] and his heirs, successors and permitted assigns.” This language is equivalent to the terms present in Hudson United Bank and D’Amato Investments, LLC. Accordingly, I conclude that the guarantees properly may be assigned.

Having concluded that the guarantees were capable of being assigned, I next discuss whether the plaintiff did, in fact, assign his rights to Iboport by treating the $300,000 as a capital contribution. The plaintiff argues that this constituted “mere tax treatment” and was not the result of any transfer of assets. I believe the plaintiff is mistaken. “Tax treatment” does not exist in isolation but, rather, constitutes a reporting of underlying transactions or events that have taken place previously, namely, in this case, a capital contribution and a corresponding assignment of the plaintiffs interests in the guarantees.

General Statutes § 34-150, which governs capital contributions made to limited liability companies, provides: “An interest in a limited liability company may be issued in exchange for property, services rendered or a promissory note or other obligation to contribute cash or to perform services.” Thus, under Connecticut law, the existence of a capital contribution requires the member to transfer something of value to the company. If this court were to assume, as the plaintiff concedes, that he made a capital contribution in the present case, it must logically follow that the plaintiff transferred something of value to Iboport, namely, his right to be paid under the personal guarantees. Because the plaintiff assigned his interest in the guarantees to Iboport, I conclude that he lacks standing to seek enforcement of them in court. See Shenkman-Tyler v. Central Mutual Ins. Co., supra, 126 Conn. App. 742-43.

Although I agree with the trial court’s conclusion that the plaintiffs decision to transfer his rights under the guarantees to Iboport as a capital contribution must prevent him from recovering under those contracts in the present case, I believe that rendering judgment in favor of the defendants was improper because the court lacked subject matter jurisdiction to entertain the plaintiffs cause of action. I would, therefore, reverse the judgment of the trial court and remand the case with direction to render judgment dismissing the plaintiff’s action. For the foregoing reasons, I respectfully dissent.

       Although One Country, LLC, originally was a plaintiff in this case, it withdrew its claims before trial and is not a party to the present appeal. We therefore refer in this opinion to Scott Porter as the plaintiff.

       This action was brought against Johnson, Pratley, Jennifer G. Porter and The Pratley Company, LLC. The plaintiff withdrew his complaint as to Jennifer G. Porter and The Pratley Company, LLC, at trial, thereby leaving Johnson and Pratley as the only remaining defendants. We refer in this opinion to Johnson and Pratley as the defendants and individually by name where appropriate.

       Hereinafter, we refer to the plaintiff and Jennifer Porter collectively as the Porters where appropriate.

       The plaintiff testified that, prior to the March 7, 2005 acquisition loan closing, he told the defendants that he demanded backstop guarantee agreements. The defendants claimed that the issue was not discussed until the fall of 2005.

       In Glaser’s memorandum explaining the methodology used in preparation of the relevant tax returns, which was admitted as an exhibit at trial, he stated: “Please note that if any of the other [m]embers of One Country, LLC that are sub-guarantors on the loan reimburse Iboport (SP) for their respective share of the loan deficiency the amount will have to be reported by Iboport (SP) as income or the payment made by the sub-guarantor will have to be reduced by the tax benefit Iboport (SP) received in 2008.”

       The trial court likewise reached this determination in its memorandum of decision: “[T]he intent of the [backstop] guarantees is clear — if the plaintiff was obligated to make payments to the [b]ank under his personal guarantee and One Country, LLC, thereby became indebted to the plaintiff, the defendants would be obligated to make payment to the plaintiff to discharge One Country, LLC’s debt to the plaintiff.”

       There is case law in other jurisdictions, which, although not directly on point, contains language in line with our determination in the present case. See, e.g., Bragman v. Commonwealth Land Title Ins. Co., 421 F. Sup. 99, 103 n.9 (E.D. Pa. 1976) (“We find plaintiffs income tax treatment of his payment irrelevant. What may be an expense for purposes of income tax may also be a loss within the meaning of an insurance contract, and unfortunately for defendant, we are interpreting an insurance contract.”); H.J. Baker & Bro., Inc. v. Orgonics, Inc., 554 A.2d 196, 203 (R.I.1989) (“[b]ecause plaintiff was not precluded from taking the bad-debt deduction [on its 1984 tax return] and simultaneously continuing efforts to collect the debt, any evidence of the deduction was irrelevant and properly excluded”); Wichita Federal Savings & Loan Assn. v. Black, 245 Kan. 523, 537, 781 P.2d 707 (1989) (“[n]one of [the] cases [cited by the defendant] stand for the proposition that a suit for recovery of losses is barred by a prior claim of the losses on a tax return”).

       The absence of a formal contract transferring the right to payment under the personal guarantees to Iboport is inapposite to this conclusion. In prior cases decided by this court, the assignment of the guarantee was valid, even though the guarantee was not explicitly assigned. In Hudson United, Bank, we concluded that the guarantee was assigned to the successor when the original beneficiary merged with the successor, even though the merger documents did not specifically assign the guarantee. Hudson United Bank v. Endeavor Group, supra, 96 Conn. App. 453. Likewise, in D’Amato Investments, LLC, we concluded that the personal guarantee of a lease was assigned to the plaintiff even though the “ ‘assignment of lease’ did not explicitly incorporate or mention the guarantee . . . .” D’Amato Investments, LLC v. Sutton, supra, 117 Conn. App. 422.


author: PER CURIAM.

text:
    CHRISTOPHER CARROZZELLA ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF WALLINGFORD
    (AC 32750)
    Beach, Alvord and Espinosa, Js.

      Submitted on briefs May 31 —
    officially released September 4, 2012

      Christopher Carrozzella filed a brief for the appellants (plaintiffs).

      Janis M. Small, corporation counsel, filed a brief for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiffs, Christopher Carrozzella and Mary Jane Carrozzella, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant, the zoning board of appeals of the town of Wallingford (board), upholding a notice of violation issued by the Wallingford zoning enforcement officer, ordering the plaintiffs to remove an “unapproved play set” from their property. The plaintiffs claim that the court erred in affirming the board’s conclusion that the play set was prohibited under the Wall-ingford zoning regulations. We agree and reverse the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The plaintiffs reside at a premises (property) within a condominium community named Fieldstone Farm development, an open space planned residential district. By letter dated July 24, 2006, Mark DeVoe, the Wallingford zoning enforcement officer, instructed the plaintiffs to remove an “unapproved play set” located on the property. The letter of violation stated that the play set violated § 4.3 of the Wallingford zoning regulations (regulations) because: “1. Play sets and other recreational facilities and structures are not permitted for individual unit owners in Open Space Planned Residential Development; they are allowed only as community facilities for the use and enjoyment of the entire development and must be shown on the site plan and approved by the Planning and Zoning Commission as part of the developer’s approval process” and “2. [t]he play set is located in an area set aside as open space by the developer. The Planning and Zoning Commission regulates any use within required open space; again, no such use was approved.” (Emphasis in original.)

The plaintiffs appealed to the board from the officer’s notice of violation. Following a public hearing, the board denied the appeal and upheld the officer’s notice of violation. The plaintiffs appealed from the board’s decision to the trial court. The court agreed with the board that play sets are “ ‘recreation facilities,’ ” under §§ 4.3.D.11 and 4.3.B.2.C of the regulations, and, thus, must be “centrally located” and used in common by all owners. The court agreed with the board that the play set was prohibited by the regulations because it did not comply with the restrictions that the regulations placed on recreation facilities. The court dismissed the plaintiffs’ appeal. This appeal followed.

“Because the interpretation of the regulations presents a question of law, our review is plenary. . . . Additionally, zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. . . . [0]rdinarily, this court affords deference to the construction of a [regulation] applied by the administrative agency empowered by law to carry out the [regulation’s] purposes.” (Citations omitted; internal quotation marks omitted.) Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn. App. 17, 21-22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006).

The plaintiffs claim that the court erred in affirming the board’s conclusion that the play set was prohibited under the regulations. The board properly suggests in its brief that the issues in this appeal were resolved in Mountain Brook Assn., Inc. v. Zoning Board of Appeals, 133 Conn. App. 359, 37 A.3d 748 (2012). The board states that it cannot assert, consistent with Mountain Brook Assn., Inc., that, on the evidence presented, the play set is prohibited under the regulations. We agree with the parties that the court erred in affirming the board’s conclusion, on the evidence presented, that the play set was prohibited by the regulations. In Mountain Brook Assn., Inc., we construed the same regulations as applied to play sets, and, on the facts of that case, determined that the play sets were not prohibited by those regulations. Id., 369-72. The evidence in the present case is not significantly different from the evidence presented in that case. Mountain Brook Assn., Inc., had not been published at the time of the trial court’s decision in this case. Because Mountain Brook Assn., Inc., is dispositive and requires the conclusion that, under the circumstances of this case, the play sets were not proscribed, we conclude that the court erred in affirming the board’s conclusion that the play set was prohibited by the regulations.

The judgment of the trial court is reversed and the case is remanded with direction to sustain the plaintiffs’ appeal.

       As noted by the court, Mark DeVoe is referred to in the complaint. He identified himself at a September 18, 2006 public hearing as the zoning enforcement officer, and also was referred to in various items of correspondence as the assistant town planner. For the sake of consistency, we refer to DeVoe as the zoning enforcement officer.

       Because we reverse on the basis of this claim, we need not address the additional claims that the plaintiffs raise in their brief.