text:
    ANGEL RODRIGUEZ v. STATE OF CONNECTICUT, DEPARTMENT OF CORRECTION
    (AC 22452)
    Laveiy, C. J., and SehaUer and Flynn, Js.
    Argued January 15
    officially released May 13, 2003

      Michael J. Belzer, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant).

      Cynthia I. Crockett, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendant, the state of Connecticut, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) granting the motion filed by the plaintiff, Angel Rodriguez, to open a stipulated agreement (stipulation). On appeal, the defendant claims that (1) the commissioner improperly granted the plaintiffs motion, which was filed more than four months after the parties’ voluntary agreement, (2) the board improperly sustained the commissioner’s decision to grant the plaintiffs motion to open, (3) the commissioner improperly failed to order the plaintiff to repay the money he received pursuant to the stipulation and (4) the commissioner improperly denied the defendant’s motion to correct. We reverse the board’s decision sustaining the commissioner’s granting of the plaintiffs motion.

The following facts and procedural history are relevant to our disposition of the defendant’s appeal. The plaintiff, during his employment with the defendant in the department of correction, incurred various injuries over a period of several years. He filed claims for those injuries. Relevant to this appeal, the plaintiff sustained, while working, injuries to his right hand in 1989 and injuries to his back in 1994. On March 31, 1999, the plaintiff and the defendant entered into the stipulation, which stated that the plaintiff was reprfesented by attorney John D. Ritson. The document was signed by the plaintiff, a representative of the defendant and, acting as a witness, attorney Cynthia I. Crockett, who worked in the same law firm as Ritson.

The commissioner approved the stipulation on April 1, 1999. The plaintiff accepted a payment of $4250 as full and final settlement of all claims of injury sustained during his employment. The stipulation specifically included the 1989 injury to the plaintiffs right hand and the 1994 injury to his back.

On October 4,1999, the plaintiff filed a motion to open the stipulation. The motion stated that subsequent to the execution of the stipulation, counsel for the plaintiff became aware of the pending and active claim from 1989 regarding the injury to the plaintiffs right hand. The motion also argued that a different attorney, Ronald L. LePine, represented the plaintiff in the 1989 claim and that at the time the stipulation was executed, the plaintiff did not inform his present counsel that LePine represented him in that matter. As a result, the motion stated that the plaintiffs current counsel was without authority to enter into a stipulation for the 1989 claim.

The commissioner conducted a two day evidentiary hearing on the plaintiffs motion. The defendant argued that General Statutes § 52-212a barred the commissioner from opening the stipulation because the motion was filed more than four months after the stipulation was approved. The commissioner concluded, on the basis of the text of the statute, that § 52-212a applied only to judgments or decrees of the Superior Court and, therefore, that the statute did not apply to workers’ compensation awards or agreements.

The commissioner concluded that General Statutes § 31-315 applied to the present case. The commissioner then opened and set aside the stipulation as a result of the mistake made by the plaintiff and Crockett, who thought they were settling only the 1994 claim. The defendant filed a motion to correct, which was denied, and subsequently appealed to the board from the commissioner’s decision.

The board noted that the sole ground on which the commissioner had based his decision to grant the plaintiffs motion was the “power to modify an award in the same maimer that a state court has the authority to open and modify one of its judgments in instances of fraud, misrepresentation, accident and mutual mistake of fact, though not in instances of a mistaken construction of law.” The board stated that the commissioner’s decision was premised on the theory of mistake; however, the mistake was based solely on the perspective of the plaintiff. The drafter of the stipulation, Laurie Ann Foster, had represented the defendant in the settlement proceedings. She testified that department regulations required that she include all injuries when drafting the stipulation. The board, therefore, concluded that it was improper for the commissioner to open the stipulation on the basis of a theory of mutual mistake.

Despite recognizing the error of the commissioner,* the board stated that the stipulation was invalid because LePine represented the plaintiff in the unresolved 1989 claim and had not been involved in or notified of the stipulation. The board concluded that as a result of LePine’s absence, the plaintiff never validly consented to the stipulation. The board therefore affirmed the decision of the commissioner, and this appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the commissioner improperly granted the plaintiffs motion to open because it was filed more than four months after the commissioner approved the stipulation. Specifically, the defendant argues that the commissioner’s authority, pursuant to § 31-315, to open a workers’ compensation award or voluntary agreement is limited by the four month limitation contained in § 52-212a. Under the facts and circumstances presented, we hold that it is unnecessary to determine that issue.

At the outset, we note that the defendant’s claim raises an issue of statutory interpretation, which “involves a question of law and, thus, our review is plenary.” Poirier v. Zoning Board of Appeals, 75 Conn. App. 289, 294, 815 A.2d 716, cert. denied, 263 Conn. 912, 821 A.2d 766 (2003).

Section 31-315, unlike § 52-212a, does not contain any explicit time limitation to open a workers’ compensation award or agreement. The plaintiffs motion was based on the theory of mutual mistake. Our Supreme Court has stated that “[c]ourts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate any judgment obtained by fraud, duress or mutual mistake.” (Emphasis added.) In re Baby Girl B., 224 Conn. 263, 283, 618 A.2d 1 (1992); see also Wilkes v. Wilkes, 55 Conn. App. 313, 325, 738 A.2d 758 (1999).

Additionally, the board’s decision affirmed the granting of the motion to open on the ground of the absence of consent to the stipulation. “It is a well-established general rule that even a judgment rendered by the court upon the consent of the parties, which is in the nature of a contract to which the court has given its approval, can subsequently be opened [after the four month limitation] ... if it is shown that the stipulation, and hence the judgment, was obtained by fraud, in the actual absence of consent, or because of mutual mistake.” (Emphasis in original; internal quotation marks omitted.) Connecticut National Bank v. Cooper, 232 Conn. 405, 413-14, 656 A.2d 215 (1995). As we previously have stated, § 31-315 grants the commission the same authority as any court to open and to modify a judgment. It is unnecessary to engage in further statutory analysis. We simply note that the defendant’s argument is misplaced. If we determined that the plaintiffs motion to open was granted properly under the theory of either mutual mistake or lack of consent to the stipulation, that would remove the time restriction set forth in § 52-212a, even if we were to determine that § 52-212a was applicable to a motion to open brought pursuant to § 31-315. As a result of our conclusion, however, that it was improper to grant the motion to open under either theory, we need not reach the issue of whether the motion was timely. It is, therefore, unnecessary to determine whether the plaintiffs motion to open, pursuant to § 31-315 was subject to the four month time period set forth in § 52-212a.

II

The defendant next claims that the board improperly sustained the commissioner’s decision to grant the plaintiffs motion to open the stipulation. Specifically, the defendant argues that the board improperly determined that the stipulation was not valid because of the failure to include or to notify LePine of the stipulation. We agree.

As an initial matter, we set forth the applicable legal principles and standard of review that guide our resolution of the defendant’s appeal. “The board sits as an appellate tribunal reviewing the decision of the commissioner.” Paternostro v. Arborio Corp., 56 Conn. App. 215, 218, 742 A.2d 409 (1999), cert. denied, 252 Conn. 928, 746 A.2d 788 (2000). “The commissioner is the sole trier of fact and [t]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts. ... On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s findings and award. . . . Our scope of review of [the] actions of the [board] is [similarly] . . . limited. . . . [However,] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Mahoney v. Bill Mann Tree Service, Inc., 67 Conn. App. 134, 136, 787 A.2d 61 (2001).

“Our Supreme Court has stated that [although the commission may modify awards under certain circumstances, its power to do so is strictly limited by statute. . . . Section 31-315 allows the commission to modify an award in three situations. First, modification is permitted where the incapacity of an injured employee has increased, decreased or ceased, or . . . the measure of dependence on account of which the compensation is paid has changed .... The plaintiff has not alleged that either of these contingencies has occurred. Second, the award may be modified when changed conditions of fact have arisen which necessitate a change of [the award]. The plaintiff has pointed to no change of fact necessitating a change in the original award. Third, [t]he commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. This provision extends the commission’s power to open and modify judgments to cases of accident ... to mistakes of fact . . . and to fraud . . . but not to mistakes of law. . . . This provision, however, does not independently confer authority to modify awards for reasons not otherwise enumerated in § 31-315.” (Citation omitted; internal quotation marks omitted.) Bergin v. Dept. of Correction, 75 Conn. App. 591, 598, 817 A.2d 136 (2003).

We note that “[a] judgment rendered in accordance with the stipulation of the parties is to be construed and regarded as a binding contract.” (Internal quotation marks omitted.) Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 328, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002). Our Supreme Court has stated that “[i]t is well settled that the existence of a contract is a question of fact.” Burse v. American International Airways, Inc., 262 Conn. 31, 42, 808 A.2d 672 (2002). Nevertheless, “[although we generally defer to the commissioner on questions of fact, we do not do so if there is no reasonable basis for [the] decision.” Id. With the foregoing principles in mind, we turn to the defendant’s claim.

The board acknowledged that LePine had not been provided with notice of the stipulation, nor was he present at the time the plaintiff and the defendant entered into the stipulation. The board stated that the plaintiffs current counsel was without authority to settle the 1989 claim. It also stated that as a result of LePine’s absence, the plaintiff was, in effect, unrepresented for the 1989 claim. The board, therefore, concluded that LePine’s absence caused the stipulation to be invalid due to the lack of valid consent.

The board’s discussion regarding the absence of LePine at the time the stipulation was entered into fails to account for the fact that the plaintiff himself signed the stipulation. A member of the law firm that represented him in the 1994 claim acted as a witness. The stipulation clearly and plainly indicated that it encompassed all of the plaintiffs claims, including those from 1994 and 1989. The commissioner, prior to accepting the stipulation, canvassed the plaintiff to ensure that he understood the document he signed.

Our Supreme Court has stated that “[a]n attorney who is authorized to represent a client in litigation does not automatically have either implied or apparent authority to settle or otherwise to compromise the client’s cause of action.” Acheson v. White, 195 Conn. 211, 213 n.4, 487 A.2d 197 (1985); Cole v. Myers, 128 Conn. 223, 227, 21 A.2d 396 (1941). In the present case, however, it is not the attorney who settled the claim without the knowledge of the client, but the opposite. The authority to settle a claim rests with the client, in this case, the plaintiff. See rule 1.2 (a) of the Rules of Professional Conduct (“lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter”); 1 Restatement (Third), Law Governing Lawyers § 22, p. 180 (2000). The plaintiff possessed the ability to enter into the stipulation and to settle his various claims, and the absence of LePine does not invalidate the stipulation. We conclude that the board’s determination that the stipulation was made without the plaintiffs valid consent and that the stipulation was invalid was made without a reasonable basis and, therefore, was improper.

Ill

Finally, we address the plaintiffs argument that the commissioner properly granted the motion to open on the basis of mutual mistake. Specifically, the plaintiff claims that a strong factual basis existed for the commissioner to find that there had been a mutual mistake. We disagree with the plaintiff and conclude that the board properly determined that the commissioner improperly found that there had been a mutual mistake.

“The kind of mistake that would justify the opening of a stipulated judgment . . . must be mutual; a unilateral mistake will not be sufficient to open the judgment.” Magowan v. Magowan, 73 Conn. App. 733, 741, 812 A.2d 30, cert. denied, 262 Conn. 934, 815 A.2d 134 (2003); Solomon v. Keiser, 22 Conn. App. 424, 427, 577 A.2d 1103 (1990). This court has defined a mutual mistake as “one that is common to both parties and effects a result that neither intended. . . . Whether there has been such mistake is a question of fact.” (Citation omitted; internal quotation marks omitted.) Regis v. Connecticut Real Estate Investors Balanced Fund, Inc., 28 Conn. App. 760, 765, 613 A.2d 321, cert. denied, 224 Conn. 907, 615 A.2d 1048 (1992); see also Dainty Rubbish Service, Inc. v. Beacon Hill Assn., Inc., 32 Conn. App. 530, 537, 630 A.2d 115 (1993) (“mutual mistake exists where both parties are mutually mistaken about the same material fact”).

In the present case, the defendant’s representative, Foster, testified that she drafted the stipulation. She stated that it was the defendant’s policy to settle all the claims of a particular individual. She further testified that people who attend hearings involving such matters are made aware of that policy. In the document she prepared for the hearing representative, she noted that the proposed stipulation covered all of the plaintiffs claims. Finally, the stipulation drafted by Foster clearly indicated that it included all of the plaintiffs claims. Specifically, the stipulation stated: “It is the [plaintiffs] contention that on or about . . . 9/19/89 . . . 8/5/94 ... he sustained injuries .... [I]t is agreed by and between the parties hereto that the [defendant] shall pay to the [plaintiff] the sum of [$4250], the same to be in full and final settlement of all claims which the aforesaid [plaintiff] might otherwise have against the [defendant] and is made and accepted in lieu of all other compensation payments .... Payment of the aforesaid sum . . . shall be accepted as a full and final settlement of compensation for said injuries, and any other injuries the [plaintiff] may have sustained while in the employ of the State of Connecticut . . . .” (Emphasis added.)

The language in the stipulation clearly demonstrated the intent, on the part of the defendant, to settle all of the claims by the plaintiff. The date of the 1989 claim is included, as well as the use of the plural “injuries” and “claims.” The defendant intended the stipulation to include more than only the 1994 claim; it encapsulated all of the plaintiffs claims.

The board noted that the commissioner, in granting the plaintiffs motion, focused solely on the mistake stemming from the plaintiffs perspective. It also stated that such a unilateral mistake could not support a finding of a mutual mistake. We agree with the board. Moreover, our review of the record does not reveal any mutual or common mistake regarding the stipulation. There is nothing to indicate that the terms of the stipulation were not precisely what the defendant sought to obtain. We also note that prior to accepting the agreement, the commissioner canvassed the plaintiff, and was satisfied that he had read and understood the stipulation. We conclude, therefore, that the board properly decided that there was no evidence in the record to support the commissioner’s finding that there had been a mutual mistake.

The decision of the workers’ compensation review board is reversed and the case is remanded to the board with direction to remand the case to the commissioner with direction to deny the plaintiffs motion to open.

In this opinion the other judges concurred.

       As discussed in part I, we need not determine the issue of whether the plaintiffs motion was filed timely. Furthermore, because our resolution of the defendant’s second claim is dispositive, we need not discuss the third or fourth claims raised by the defendant.

       “A stipulation is a compromise and release type of settlement similar to settlements in civil personal injury cases where a claim is settled with a lump sum payment accompanied by a release of the adverse party from further liability. J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) pp. 207-208. Although the [Workers’ Compensation Act, General Statutes § 31-275 et seq.] does not explicitly provide for this type of settlement, we have consistently upheld the ability to compromise a compensation claim as inherent in the power to make a voluntary agreement regarding compensation. . . . There are three types of stipulations: (1) a full and final stipulation that closes all aspects of the claim whether they are for past, present or future wages and medical expenses, known and unknown; (2) a stipulation to date that is used to close out only a portion of a claim with the remainder left open or that is used to close out an entire claim but only up to a certain date; and (3) an open medical stipulation that closes all aspects of the claim except for medical expenses that are related to the accident or the disease. A. Sevarino, Connecticut Workers’ Compensation After Reforms (1994) p. 233.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Muldoon v. Homestead Insulation Co., 231 Conn. 469, 479-80, 650 A.2d 1240 (1994).

       Laurie Ann Foster, a claims representative, represented the defendant.

       We note that “[ajpproval of ... a stipulation by the commissioner is not an automatic process. It is his function and duty to examine all the facts with care before entering an award, and this is particularly true when the stipulation presented provides for a complete release of all claims under the [Workers’ Compensation Act, General Statutes § 31-275 et seq.].” (Tntemal quotation marks omitted.) O’Neil v. Honeywell, Inc., 66 Conn. App. 332, 337, 784 A.2d 428 (2001), cert. denied, 259 Conn. 914, 792 A.2d 852 (2002).

       The parties, the commissioner and the board improperly used the term “motion to reopen.” We note that because the decision had never been opened, the appropriate term is a motion to open. See Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 537 n.1, 612 A.2d 1222 (1992); National Iron Bank v. Gelormino, 28 Conn. App. 7, 8 n.1, 609 A.2d 666 (1992).

       The law firm of Ilersh and Ritson represented the plaintiff in his 1994 claim, in the proceedings involving the motion to open and in the present appeal.

       We note that the commissioner who decided the motion to open was not the same commissioner who approved the stipulation.

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. ...”

       General Statutes § 31-315 provides: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter or any transfer of liability for a claim to the Second Injury Fund under the provisions of section 31-349 shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party or, in the case of a transfer under section 31-349, upon request of the custodian of the Second Injury Fund, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”

       The board also noted that in some cases, stipulations have been opened where the lack of capacity of the claimant was shown. In the present case, however, the plaintiff did not testify at the hearing; therefore, it was impossible to determine his level of knowledge and understanding of the terms of the stipulation.

       The board stated that “[i]f our analysis of the instant case were to stop at this point, we would be obliged to reverse the decision of the trial commissioner.”

       The plaintiff did not file a preliminary statement of issues, a cross appeal or alternate grounds on which the judgment should be affirmed pursuant to Practice Book § 63-4. Nevertheless, we will address the issue. Both parties briefed the issue and, therefore, the defendant is not prejudiced. See Raph v. Vogeler, 45 Conn. App. 56, 58 n.1, 695 A.2d 1066, cert. denied, 241 Conn. 920, 696 A.2d 342 (1997).

       The plaintiff did not testify at the evidentiary hearing regarding the motion to open. The stipulation contained the following paragraph: “It is further stipulated and agreed that, before the [plaintiff] signed this stipulation, he read it or the same was read and interpreted to him in language that he understands, and he knows that it is a full and final settlement and that it is intended to deal with any and all conditions, known or unknown, which exist as of the date hereof, or any changes of conditions which may arise in the future on account of said alleged injuries whether said changes of condition are foreseen or unforeseen.”


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    MOUNTVIEW PLAZA ASSOCIATES, INC. v. WORLD WIDE PET SUPPLY, INC., ET AL.
    (AC 23344)
    Foti, Flynn and West, Js.
    Submitted on briefs February 26
    officially released May 13, 2003

      Joseph P. Yamin, Eric M. Grant and George G. Mowad II filed a brief for the appellant (plaintiff).
   Opinion

WEST, J.

The plaintiff, Mountview Plaza Associates, Inc., appeals from the judgment of the trial court rendered in favor of the defendants Pet Fanatic, LLC (Pet Fanatic), and Jennifer Sachs following the entry of defaults against those defendants. We reverse the judgment of the trial court as to those defendants.

The following facts are relevant to our resolution of the plaintiffs appeal. On September 7,1995, the plaintiff and the defendant World Wide Pet Supply, Inc. (World Wide Pet), entered into a written agreement under which World Wide Pet agreed to lease certain commercial space from the plaintiff for five years. At the expiration of the lease term, World Wide Pet held over through October, 2001. On October 31, 2001, World Wide Pet abandoned the premises. World Wide Pet did not pay the plaintiff the rent due for its occupancy of the premises during October, 2001, and, in violation of the express terms of the lease, left various shelving units, display materials and general debris in the premises, and damaged a portion of the tile floor. On October 31, 2001, Sachs, the president and sole shareholder of World Wide Pet, formed Pet Fanatic with herself as general manager and sole member. Sachs transferred all of World Wide Pet’s assets to Pet Fanatic.

The plaintiff made repeated demands on Sachs, as World Wide Pet’s president, to remedy its breaches of the lease agreement. Sachs refused to make payment to the plaintiff, claiming that World Wide Pet was insolvent. Pursuant to the lease agreement, the plaintiff exercised its right to remove the abandoned alterations and improvements, and to seek reimbursement for the cost of the removal and for damage to the premises.

On February 14, 2002, the plaintiff filed a complaint against the defendants. The first count of the complaint alleged a breach of the lease agreement against World Wide Pet, the second count alleged a violation of the Unifoxm Fraudulent Transfer Act, General Statutes § 52-552a et seq., against Pet Fanatic, and the third count alleged breach of the lease agreement against Sachs as the alter ego of World Wide Pet. On March 18, 2002, the plaintiff filed separate motions for default for failure to appear against each of the three defendants. The defendants were defaulted, and notice of the defaults was sent on April 10, 2002.

The court held a hearing in damages on May 22, 2002. Following that hearing, the court rendered judgment, finding that the plaintiff had proven damages in the amount of $21,961.59. The court, however, also found that the plaintiff had failed to pierce the coxporate veil. Accordingly, the court rendered judgment in favor of the plaintiff solely against World Wide Pet and rendered judgment in favor of the remaining defendants. The plaintiff subsequently filed a motion to reargue. Following a hearing on the motion, the court denied the motion to reargue. This appeal followed.

“A default admits the material facts that constitute a cause of action . . . and entxy of default, when appropriately made, conclusively determines the liability of a defendant.” (Citation omitted; internal quotation marks omitted.) Skyler Ltd. Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 253, 557 A.2d 927, cert. denied, 212 Conn. 802, 560 A.2d 984 (1989). If the allegations of the plaintiffs complaint are sufficient on their face to make out a valid claim for the relief requested, the plaintiff, on the entry of a default against the defendant, need not offer evidence to support those allegations. Carothers v. Butkin Precision Mfg. Co., 37 Conn. App. 208, 209, 655 A.2d 799 (1995). Therefore, the only issue before the court following a default is the determination of damages. See id. A plaintiff ordinarily is entitled to at least nominal damages following an entry of default against a defendant in a legal action. Melfi v. Danbury, 70 Conn. App. 679, 691, 800 A.2d 582, cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002).

“In an action at law, the rule is that the entry of a default operates as a confession by the defaulted defendant of the truth of the material facts alleged in the complaint which are essential to entitle the plaintiff to some of the relief prayed. It is not the equivalent of an admission of all of the facts pleaded. The limit of its effect is to preclude the defaulted defendant from making any further defense and to permit the entry of a judgment against him on the theory that he has admitted such of the facts alleged in the complaint as are essential to such a judgment. It does not follow that the plaintiff is entitled to a judgment for the full amount of the relief claimed. The plaintiff must still prove how much of the judgment prayed for in the complaint he is entitled to receive.” (Internal quotation marks omitted.) Murray v. Taylor, 65 Conn. App. 300, 334-35, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).

We turn first to the court’s judgment in favor of Pet Fanatic. We note that the judgment rendered by the court did not specifically address whether the plaintiff had alleged such facts in its complaint as would support a finding that the transaction complained of actually was fraudulent. Thus, the court provided no reasons to support its rendering of judgment in favor of the defendant. Implicit in the court’s judgment, however, is the finding that the plaintiff failed to prove sufficient material facts as would establish Pet Fanatic’s violation of the Uniform Fraudulent Transfer Act.

In cases arising under the Uniform Fraudulent Transfer Act; General Statutes § 52-552a et seq.; the determination of the question of fraudulent intent is an issue of fact. Dietter v. Dietter, 54 Conn. App. 481, 487, 737 A.2d 926, cert. denied, 252 Conn. 906, 743 A.2d 617 (1999). General Statutes § 52-552e (a) provides in relevant part: “A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, if the creditor’s claim arose before the transfer was made or the obligation was incurred and if the debtor made the transfer or incurred the obligation: (1) With actual intent to hinder, delay or defraud any creditor of the debtor . . . .” Section 52-552e (b) provides in relevant part that “[i]n determining actual intent under subdivision (1) of subsection (a) of this section, consideration may be given, among other factors, to whether ... (2) the debtor retained possession or control of the property transferred after the transfer ... (5) the transfer was of substantially all of the debtor’s assets ... (8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred, (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred, [and] (10) the transfer occurred shortly before or shortly after a substantial debt was incurred . . . .” General Statutes § 52-552Í (a) provides: “A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.”

The plaintiffs complaint alleged in relevant part that Sachs knew of World Wide Pet’s indebtedness to Mount-view, and that she took possession of World Wide Pet’s assets and property and caused them to be transferred to Pet Fanatic without consideration and with the intent to avoid World Wide Pet’s debt to Mountview or to hinder the collection thereof. The plaintiff further alleged that Pet Fanatic “knowingly aided, abetted and conspired with World Wide Pet for the purpose of defrauding World Wide Pet’s creditors, specifically Mountview,” and that the conveyance deprived World Wide Pet of funds sufficient to satisfy its indebtedness to Mountview.

On the basis of the foregoing, we conclude that the plaintiff alleged sufficient material facts to support the default judgment against Pet Fanatic. Accordingly, we conclude that the court improperly disregarded that default in rendering judgment in favor of Pet Fanatic.

Similarly, because the issue of whether the corporate veil should be pierced is a factual question; Litchfield Asset Management Corp. v. Howell, 70 Conn. App. 133, 148, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002); the court, as a consequence of the default, was bound by the material factual allegations set forth in the third count of the plaintiffs complaint. If those allegations provided a sufficient basis to pierce the corporate veil, the court properly should have rendered judgment against Sachs.

“Our Supreme Court has held that we may disregard the fiction of a separate legal entity to pierce the shield of immunity afforded by the corporate structure in a situation in which the corporate entity has been so controlled and dominated that justice requires liability to be imposed on the real actor. . . . Additionally, the court has affirmed judgments disregarding the corporate entity and imposing individual stockholder liability when a corporation is a mere instrumentality or agent of another coiporation or individual owning all or most of its stock.” (Citation omitted; internal quotation marks omitted.) Cahaly v. Benistar Property Exchange Trust Co., 73 Conn. App. 267, 283-84, 812 A.2d 1, cert. granted on other grounds, 262 Conn. 925, 814 A.2d 378 (2002).

“Courts will disregard the fiction of separate legal entity when a corporation is a mere instrumentality or agent of another corporation or individual owning all or most of its stock. . . . Under such circumstances the general rule, which recognizes the individuality of corporate entities and the independent character of each in respect to their corporate transactions, and the obligations incurred by each in the course of such transactions, will be disregarded, where, as here, the interests of justice and righteous dealing so demand. . . . The circumstance that control is exercised merely through dominating stock ownership, of course, is not enough. . . . There must be such domination of finances, policies and practices that the controlled corporation has, so to speak, no separate mind, will or existence of its own and is but a business conduit for its principal.” (Internal quotation marks omitted.) Hersey v. Lonrho, Inc., 73 Conn. App. 78, 86, 807 A.2d 1009 (2002).

“When determining whether piercing the corporate veil is proper, our Supreme Court has endorsed two tests: the instrumentality test and the identity test. The instrumentality rale requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiffs legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.” (Internal quotation marks omitted.) Id., 87.

Our review of the pleadings reveals that the material allegations of the complaint satisfy the threshold legal test for piercing the coiporate veil. The third count of the complaint alleges that Sachs was, at all relevant times, the sole or majority shareholder of World Wide Pet and that she “used corporate funds as her own, failed to keep accurate coiporate financial records, and disregarded the formalities of the coiporate form such that the independence of World Wide Pet as a corporate entity ceased to exist.” The complaint also alleges that Sachs took control of World Wide Pet’s assets and property, and transferred them to Pet Fanatic with the intent to avoid World Wide Pet’s debt to the plaintiff in violation of the Uniform Fraudulent Transfef Act, General Statutes § 52-552a et seq. Finally, the complaint alleges that Sachs’ actions were the proximate cause of Mount-view’s damages. Thus, the allegations of the plaintiffs complaint, on which the default was granted, satisfy each of the three elements necessary to support piercing the coiporate veil under the instrumentality test. Accordingly, in light of the default entered against Sachs, the court was bound by those allegations as to Sachs’ liability and, therefore, its refusal to attach liability to the defendants on the theory of piercing the coiporate veil was improper.

The judgment is reversed as to Pet Fanatic, LLC, and Sachs only and the case is remanded with direction to render judgment in favor of the plaintiff as to liability against Pet Fanatic, LLC, and Sachs and thereafter to hold a hearing in damages as to those defendants. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       We note that the record is not as clear on the issue of the defendants’ default as it might be. The record is devoid of any actual order of the court, granting the plaintiffs motions for default. Nevertheless, the court sent notice to each of the defendants that default for failure to appear had been granted. The space on the official notice form for the entry of the name of the defaulted party was not filled in. That omission could conceivably give rise to an ambiguity regarding whether one, two or all three of the defendants were defaulted. That potential ambiguity, however, is resolved by the court’s subsequent draft judgment file, in which it clearly states that all of the defendants were defaulted for failure to appear, although the court’s language suggests that it was defaulting the defendants as of the date of the judgment file, August 12, 2002. The precise language from the judgment file is: “The Court finds that the Defendants failed to appear, and pursuant to Connecticut Practice Book Section 17-20 et seq., are hereby defaulted.” Notwithstanding the uncertainty as to when the defendants were defaulted, it is clear that they were so defaulted for failure to appear. The defendants have not raised any claim to the contrary.


author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. STACEY WRIGHT
    (AC 22603)
    Lavery, C. J., and Foti and Stoughton, Js.
    Argued February 19
    officially released May 13, 2003

      Arnold V. Amore II, special public defender, for the appellant (defendant).

      Joseph A. Jaumann, certified legal intern, with whom were Rita M. Shair, senior assistant state’s attorney, James E. Thomas, state’s attorney, and, on the brief, Michael A. Gailor, assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Stacey Wright, appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (2), and one count of carrying a dangerous weapon in violation of General Statutes § 53-206 (a). On appeal, the defendant claims (1) that the trial court violated her right to the effective assistance of counsel as guaranteed by the sixth amendment to the United States constitution when it denied her pro se motion for a mistrial and (2) that the evidence was insufficient to support her conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts from the evidence adduced at the trial. At approximately 11 p.m. on February 11, 2000, the defendant arrived at a club on Main Street in Hartford. At about the same time, the victim, Justina Rogers, arrived at the same club with three other people, including her sister, Jackie Medina. During the night, the defendant was observed staring at the victim, and Medina mentioned that to the victim. At about 1:45 a.m., the club closed and patrons began leaving. As the victim was leaving, a friend told her that Medina was engaged in a fight. The victim went out, approached Medina and tried to pull her away. At about that time, the defendant slashed the victim’s face with a box cutter, inflicting a laceration extending from her forehead through her eyebrow to her mouth. The victim lost consciousness and was taken to Saint Francis Hospital and Medical Center where she was treated for her injury. Additional facts will be provided as necessary.

At the time of the oral argument in this appeal, this court, sua sponte, ordered counsel to file simultaneous supplemental briefs addressing the following issue: “Was the constitutional prohibition against a defendant being placed twice in jeopardy for the same offense violated by the dual conviction on the assault counts or on the dual sentencing arising from the same factual situation?” The briefs have been filed, and the parties agree that the result is controlled by State v. Denson, 67 Conn. App. 803, 789 A.2d 1075, cert. denied, 260 Conn. 915, 797 A.2d 514 (2002), which considered a similar factual situation and held that the conviction in that case for violations of both subdivisions (1) and (2) of § 53a-59 (a) did not violate the prohibition against double jeopardy. The defendant suggests that Denson was wrongly decided and that we take this occasion to overrule that case. We decline to do so.

I

The defendant first claims that her federal constitutional right to the effective assistance of counsel was violated when the court denied her motion for a mistrial as her counsel began to present her defense. Acknowledging that an ineffective assistance of counsel claim ordinarily must be raised by way of habeas corpus, the defendant asserts that her claim is based on the action of the court in denying her motion and not solely on the performance of counsel. See State v. Vega, 259 Conn. 374, 385, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002). It is apparent, however, that her real claim is based on her dissatisfaction with her counsel.

The defendant claims that in considering her motion for a mistrial, the court was obliged to apply the two-pronged test for ineffective assistance of counsel articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The defendant claims that the court abused its discretion because it failed to apply that test. Whether or not that is the proper test in these circumstances, the short answer is that the court did apply that test. Under Strickland, to demonstrate ineffective assistance of counsel, the defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Id., 687. The court concluded, having observed counsel’s performance, that it was not deficient.

The following facts are relevant to the defendant’s claim. Attorney Anthony E. Feit represented the defendant throughout the prosecution’s case-in-chief. As Feit began to examine the first witness for the defense, the defendant interrupted, and stated that she was “not getting a fair and effective counsel.” The court then excused the jury. After some colloquy with the defendant, the jury returned, and the court instructed it to disregard the defendant’s outburst and recessed for the day. The following day, the defendant addressed the court, stating that she believed that her sixth amendment right had been violated and expressing a variety of concerns regarding Feit’s effectiveness as counsel. After the court asked for her specific request, she requested a mistrial. The court addressed some of her concerns, and concluded that to grant a motion for a mistrial would require a level of ineffectiveness well beyond anything suggested by the defendant and that there was no legal basis for granting the motion. The defendant then asked if she could retain another attorney and, after further colloquy, the case was continued from Friday, August 24, to Monday, August 27, 2001. On Monday, attorney Glenn M. Conway appeared and was appointed lead counsel for the defendant, and the case was continued until Wednesday, August 29, 2001, so that Conway could become familiar with the case.

“[T]he principles that govern our review of a trial court’s ruling on a motion for a mistrial are well established. Appellate review of a trial court’s decision granting or denying a motion for a [mistrial] must take into account the trial judge’s superior opportunity to assess the proceedings over which he or she has personally presided. . . . Thus, [a] motion for a [mistrial] is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. . . . In [its] review of the denial of a motion for a mistrial, [our Supreme Court has] recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Downing, 68 Conn. App. 388, 396-97, 791 A.2d 649, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002); see also State v. Canty, 223 Conn. 703, 722, 613 A.2d 1287 (1992).

The precise question in this case is not whether the performance of counsel was deficient in some respect, as claimed by the defendant, but whether the court abused its discretion in denying the motion for a mistrial because of claimed ineffective assistance of counsel. Although it is true that claims of ineffective assistance are raised ordinarily by way of habeas corpus because of the need for a full evidentiary record, in this case the claim was made to the court itself, and the defendant expressed her complaints specifically. The court had observed for itself the performance of counsel and could make its determination on the basis of what it had seen and heard. It did not have to rely on a record of the proceedings and, thus, had no need for additional evidence or expert testimony. The court addressed the defendant’s concerns and concluded that to grant a motion for a mistrial would require a level of ineffective assistance well beyond anything the defendant had claimed. Finding no legal basis to grant the motion, the court denied it; however, it granted a continuance so that the defendant could retain additional counsel, as she requested, to conduct her defense. In addition, the court allowed new counsel time to prepare her defense before the trial proceeded. We conclude that the court did not abuse its discretion.

II

Finally, the defendant claims that the evidence was insufficient to establish that she was guilty of the crimes charged. She does not claim that the evidence was insufficient to establish the assault, but that it was insufficient to establish that she had committed it. We disagree.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“The question on appeal is not whether we believe that the evidence established guilt beyond a reasonable doubt, but rather whether, after viewing the evidence in the light most favorable to sustaining the judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . While the jury may not speculate to reach a conclusion of guilt, [it] may draw reasonable, logical inferences from the facts proven to reach a verdict.” (Internal quotation marks omitted.) State v. Riser, 70 Conn. App. 543, 551, 800 A.2d 564 (2002).

In the present case, there was sufficient evidence from which the jury reasonably could have found that the defendant was involved in a fight with the victim, that her hand slashed down across the defendant’s face and that the victim almost at once began to bleed from a cut to her face. The victim sustained a laceration from her forehead to her mouth, and that injury could have been inflicted by a box cutter. In the early morning, on the day of the incident, the police made an unsuccessful search for the knife at the scene. Later that morning, one of the witnesses went to the scene to look for her keys and found a blood covered box cutter, which she gave to the police. The blood on the box cutter was the victim’s blood. From all of the evidence and the inferences that reasonably could have been drawn from the evidence, it was a reasonable conclusion for the jury to have found beyond a reasonable doubt that the defendant was the person who had committed the assault, that the box cutter was a dangerous weapon and that the defendant was carrying the box cutter at the time she committed the assault.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in 1he first degree when: (1) With intent to cause serious physical ipjury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person . . .

       The defendant made the following statement: “I feel my sixth amendment right has been violated, and these are the reasons why. There has been ineffective assistance of counsel. Attorney Feit does not communicate with defense witnesses. With respect to attorney Feit, many of the questions for my case have been produced by myself. With respect to attorney Feit, he has shown that he is not ready and prepared for this case. Also, attorney Feit is not knowledgeable of the aspects of presenting identification of evidence to potential witnesses. Also, he has shown that he does not know how to cross-examine effectively. Attorney Feit does not understand proper ethics when speaking to a judge. Attorney Feit has also shown he is unaware how to sequester witnesses. Attorney Feit also does not know how to subpoena witnesses correctly and have them present at court. Mr. Feit also does not have a case theory. Mr. Feit does not know where to look for exhibit labels and present it as evidence in court. Attorney Feit has also shown he does not know how to ask Your Honor for time to review evidence regarding police logs upon having received it the morning of trial. He also is very unaware of time efficiency pertaining to court procedures. Attorney Feit does not know how to make sure the witnesses for the defense are here and to testify before court begins. And also attorney Feit has shown that he does not have any phone numbers of defense witnesses in his case file.”


author: FLYNN, J.

text:
    GINA RESURRECCION v. NORMANDY HEIGHTS, LLC
    (AC 22772)
    Foti, Flynn and Dupont, Js.

      Argued March 20
    officially released May 13, 2003

      Benjamin F. Cardinez, for the appellant-appellee (plaintiff).

      Deborah L. Bradley, for the appellee-appellant (defendant).

      Anthony O. Famiglietti, for the appellee (third party defendant).
   Opinion

FLYNN, J.

The plaintiff, Gina Resurrección, appeals from the judgment of the trial court rendered following its granting of the motion to open the judgment filed by the defendant, Normandy Heights, LLC, after the defendant had been defaulted for failure to appear. The plaintiff claims that the court abused its discretion in granting the motion to open because the defendant did not demonstrate that it had a good defense or that it was prevented from filing the required appearance because of accident, mistake or other reasonable cause. The defendant cross appeals from that portion of the judgment that awarded the plaintiff $3000 as reasonable attorney’s fees. It claims that the court’s award of attorney’s fees was clearly erroneous because there was no evidence introduced as to the fees actually charged by the plaintiffs attorney or whether those fees were reasonable. We affirm the judgment in all respects except for the award of $3000 as reasonable attorney’s fees, which we reverse, and we remand the case for an evidentiary hearing.

The court found the following facts, which are not in dispute. The plaintiff entered into a six month written lease whereby she rented an efficiency apartment from the defendant for the monthly fee of $670. The lease term ran from May 1, 1999, through October 31, 1999. The lease specified the terms and conditions under which the landlord may enter the tenant’s premises. Additionally, the plaintiff completed a “move-in inspection sheet,” which she returned to the defendant. One of the questions on this sheet asked if the defendant could enter the plaintiffs apartment in her absence to perform work. The plaintiff circled “No,” thereby directing the defendant that it did not have permission to enter her apartment in her absence. Prior to the start of the lease, the plaintiff requested that the thermopanes on a sliding glass door be replaced because of moisture that could be seen between the panes.

The plaintiff left her apartment on June 13, 1999, for a short trip to New York. Upon returning on June 15, 1999, she could not get into her apartment with her key. She went to the rental officer and retrieved another key, which also failed to gain her access. The property manager, Fatima Walton, then accompanied the plaintiff to her apartment, and they gained access to the apartment with a different key in the possession of Walton. Walton then explained to the plaintiff that the door had been double locked after a window repair company, the third party defendant Window Shop, Inc., replaced the thermopanes on the sliding glass door in her apartment on June 14, 1999. Walton apologized for the unauthorized entry into the plaintiffs apartment and, upon the plaintiffs request, gave her a written letter of apology. Walton requested that the plaintiff conduct an inspection to see if anything was missing, but the plaintiff did not do so at that time. On June 16, 1999, the plaintiff inspected her apartment and alleged that the following items were missing: A Rolex watch valued at $4850; a Tag Heuer watch valued at $250; an electronic organizer; and $450 in cash.

By a complaint dated March 7, 2000, the plaintiff commenced suit against the defendant in four counts: unauthorized entry and harassment in violation of General Statutes § 47a-16 (c) and (d); loss of valuable items; breach of the covenant of quiet enjoyment; and a violation of the plaintiffs right to privacy. On June 7, 2000, the court rendered a default judgment in favor of the plaintiff and awarded $12,000 in compensatory damages and $4000 in attorney’s fees, plus allowable costs, as per the plaintiffs bill of costs, which she was to submit.

Approximately three weeks later, on June 30, 2000, the defendant filed an appearance, and, on July 19,2000, it filed a motion to open the default judgment, to which the plaintiff objected. On August 2,2000, after a hearing, the court granted the defendant’s motion to open. The plaintiff then filed a motion to reargue and a request for articulation, which the court denied. On October 4, 2000, the court granted the defendant’s motion to implead Window Shop, Inc.

Trial commenced on August 15, 2001, and judgment was rendered for the plaintiff on count one, in the amount of $670, in accordance with General Statutes § 47a-18a, and attorney’s fees in the amount of $3000. The defendant also was ordered to pay costs upon the submission of the plaintiffs bill of costs. The defendant prevailed on the remaining counts of the complaint, and the third party defendant prevailed on the third party complaint. This appeal and cross appeal followed.

I

The plaintiff claims that the court improperly, and in abuse of its discretion, granted the defendant’s motion to open the default judgment and that the court had no authority to retry the case and to render a new judgment. Specifically, she argues in her brief that the defendant’s “motion to open the judgment upon default is defective, in both form and substance, in the following ways: First, the motion was not properly verified in violation of General Statutes § 52-212 (b) . . . second, the defendant’s motion shows no reasonable cause for not appearing within the time required; and third, there is no showing that [the] defendant had a ‘good defense.’ ” The defendant argues that we should decline to review this claim on the ground that the plaintiff has not provided an adequate record for review because she did not supply this court with transcripts of the hearings on the motion to open or on the motion for reconsideration and articulation. Additionally, the defendant argues, the plaintiff never filed a motion for articulation pursuant to Practice Book § 66-5 to provide this court with a proper record of the reasons for the trial court’s granting of the motion to open the default judgment. We agree that the record is inadequate for review.

In this case, the court orally granted the defendant’s motion to open the judgment. The record contains no memorandum of decision, nor does it contain a transcript of the hearing. The plaintiff also failed to provide this court with a transcript of the hearing on her motion for articulation, which also was denied without a memorandum of decision.

Practice Book § 66-7 provides in relevant part: “Any party aggrieved by the action of the trial judge as regards . . . articulation under Section 66-5 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the [appellate] court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. . . .” Although the defendant filed a motion for articulation, which the court denied, the defendant did not seek such a review by the Appellate Court, pursuant to Practice Book § 66-7, of the trial court’s denial.

The failure of a plaintiff to follow that procedure was addressed squarely in Pitchell v. Hartford, 46 Conn. App. 799, 803, 700 A.2d 1386 (1997), rev’d on other grounds, 247 Conn. 422, 722 A.2d 797 (1999). In Pitchell, the plaintiff claimed that the trial court improperly granted a motion to open a default judgment and, after filing a motion for articulation of that decision, failed to seek review upon its denial by the trial court. Id. We explained that when a plaintiff fails to seek review of the trial court’s denial of a motion for articulation, there is no basis for our reviewing that decision because the plaintiff does not provide us with an adequate record for review. Id.; see Practice Book §§ 60-2, 60-5, 66-5 and 66-7.

“The duty to provide this court with a record adequate for review rests with the appellant. ... It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review [pursuant to Practice Book § 61-10]. ... It is not the function of this court to find facts. . . . Our role is ... to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the plaintiffs claims] would be entirely speculative.” (Internal quotation marks omitted.) Ruiz v. Gatling, 73 Conn. App. 574, 575, 808 A.2d 710 (2002); see Wendover Financial Services Corp. v. Connelly, 61 Conn. App. 244, 247, 763 A.2d 670 (2000).

The record here contains a docket sheet with the notation: “Motion to open judgment granted after hearing,” followed by the signature of the court, Tanzer, J. There is no memorandum of decision, and the plaintiff has provided no transcript of the hearing. Although a motion for articulation was filed, the court denied that motion. The plaintiff has neither provided us with a transcript of that hearing nor filed a motion for review pursuant to Practice Book § 66-7. The plaintiff, therefore, has failed to satisfy her burden of securing an adequate record for appellate review of an issue presented on appeal. See Ruiz v. Gatling, supra, 73 Conn. App. 575. Accordingly, we will not speculate as to what evidence, if any, and what arguments of law the trial court may have heard before rendering its decision, and we decline to review the plaintiffs claim.

II

On cross appeal, the defendant claims that the court’s award of $3000 in attorney’s fees was clearly erroneous. It argues that the court acted improperly because it took no evidence on the issue of attorney’s fees and deprived the defendant of the opportunity to litigate the reasonableness of those fees.

An initial review of our case law on the necessary evidentiary predicate for the award of attorney’s fees reveals two lines of cases, those that appear to allow the trial court the discretion to utilize its own knowledge in determining reasonable attorney’s fees and those that mandate that some evidence must be presented on the issue. Compare Barco Auto Leasing Corp. v. House, 202 Conn. 106, 120-21, 520 A.2d 162 (1987) (court may not deny plaintiff undisputed right to litigate reasonableness of attorney’s fees) with Bizzoco v. Chinitz 193 Conn. 304, 310, 476 A.2d 572 (1984) (court may rely on its knowledge of trial to supply evidence in support of award of attorney’s fees).

A closer review of those cases, however, reveals that, although the court has wide discretion and may use its general knowledge of the particular case before it when making an award, the party seeking attorney’s fees must provide the court with some evidence on which to base that award. See, e.g., Shapero v. Mercede, 262 Conn. 1, 9, 808 A.2d 666 (2002) (“courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described”); Barco Auto Leasing Corp. v. House, supra, 202 Conn. 120-21 (award of attorney’s fees, where plaintiff clearly entitled to those fees under CUTPA, made after court reviewed affidavits in file and parties’ briefs on issue, did not provide sufficient opportunity for parties fully and fairly to litigate amount of those disputed fees); Bizzoco v. Chinitz, supra, 193 Conn. 310-11 (no need for evidentiary hearing where court knew that counsel had taken lengthy deposition, engaged in two day trial, and prepared posttrial brief because court could evaluate complexity of issues and skill with which counsel tackled issues); Piantedosi v. Floridia, 186 Conn. 275, 279, 440 A.2d 977 (1982) (court has discretion in awarding fees where it is aware of counsel’s activities and where it has been advised of time and efforts in preparing case); Hoenig v. Lubetkin; 137 Conn. 516, 525, 79 A.2d 278 (1951) (no abuse of discretion in amount of attorney’s fees awarded where court advised of time and efforts in prepar ing case and was aware of activities of counsel during trial).

“Our Supreme Court has said that [a] trial court may rely on its own general knowledge of the trial itself to supply evidence in support of an award of attorney’s fees. . . . Because the trial court is in a more advantageous position to evaluate the services of counsel than a reviewing court, [t]he amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion.” (Citation omitted; internal quotation marks omitted.) Gianquitti v. Sheppard, 53 Conn. App. 72, 83, 728 A.2d 1133 (1999). Nevertheless, a trial court must “[afford] the parties the opportunity to present evidence and to be heard on the issue of reasonable attorney’s fees. Our Supreme Court has stated that a party seeking attorney’s fees must satisfy the undisputed requirement that the reasonableness of attorney’s fees and costs ... be proven by an appropriate evidentiary showing. . . . This protects the opposing party’s right to litigate fully the reasonableness of the attorney’s fees.” (Citations omitted; internal quotation marks omitted.) Levesque Builders, Inc. v. Hoerle, 49 Conn. App. 751, 759-60, 717 A.2d 252 (1998).

General Statutes § 47a-18a provides in relevant part: “If the landlord makes an entiy prohibited by section 47a-16 . . . the tenant may recover actual damages not less than an amount equal to one month’s rent and reasonable attorney’s fees. . . .” The trial court awarded the plaintiff the equivalent of one month’s rent and $3000 as reasonable attorney’s fees. The court did not hold a hearing on the issue of reasonable attorney’s fees, and there is nothing in the record to suggest that the plaintiff made a request for a specific amount in attorney’s fees or submitted any evidence on the issue of attorney’s fees. Although we are mindful that the trial court may supply evidence of what fees are reasonable from its knowledge of the case; see Bizzoco v. Chinitz, supra, 193 Conn. 310; precedent does not support the proposition that this may be done where there is not one scintilla of evidence submitted by the parties as to what fees are reasonable or what fees are being sought and where the court rendering judgment has not been privy to all of the activities involved in the case. This point is especially true in this case where, prior to the trial before Judge Crawford, the court, Tanzer, J., after a hearing in damages, had originally awarded “reasonable attorney’s fees” in the amount of $4000 on the default judgment, and thereafter considered and granted a motion to open the default judgment. Although the court, Crawford, J., properly could take into account and assess what work the plaintiffs counsel had done in the trial, it could not make a proper assessment of what work had taken place in all of the proceedings before Judge Tanzer.

The trial court held that the defendant violated § 47a-16 by entering the plaintiffs apartment without her permission in a nonemergency situation. Section 47a-18a expressly allows that the tenant may recover reasonable attorney’s fees. Accordingly, it is not disputed that the plaintiff is entitled to such fees. We agree with the defendant, however, that the court took no evidence in satisfaction of the “undisputed requirement that the reasonableness of attorney’s fees and costs must be proven by an appropriate evidentiary showing.” (Internal quotation marks omitted.) Barco Auto Leasing Corp. v. House, supra, 202 Conn. 121; see Levesque Builders, Inc. v. Hoerle, supra, 49 Conn. App. 759-60. The parties were given no opportunity to address this issue at trial or at a hearing subsequent to trial. Accordingly, the defendant was denied the undisputed right to litigate fully the issue of reasonable attorney’s fees. See Levesque Builders, Inc. v. Hoerle, supra, 760. This issue needs to be fully addressed at a further hearing.

The judgment is reversed on the cross appeal with respect to the award of reasonable attorney’s fees and the case is remanded for an evidentiary hearing on that issue. In all other respects, the judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47a-16 provides in relevant part: “(c) A landlord shall not abuse the right of entry or use such right of entry to harass the tenant. The landlord shall give the tenant reasonable written or oral notice of his intent to enter and may enter only at reasonable times, except in case of emergency.
      “(d) A landlord may not enter the dwelling unit without the consent of the tenant except (1) in case of emergency, (2) as permitted by section 47a-16a, (3) pursuant to a court order, or (4) if the tenant has abandoned or surrendered the premises.”

       General Statutes § 47a-18a provides in relevant part: “If the landlord makes an entry prohibited by section 47a-16 or 47a-16a . . . the tenant may recover actual damages not less than an amount equal to one month’s rent and reasonable attorney’s fees. . .

       We decline to review the plaintiffs claim that the motion was defective in form because it was not raised before the trial court. Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” See also Rivera v. Double A Transportation, Inc., 248 Conn. 21, 33, 727 A.2d 204 (1999) (claims not addressed or decided by trial court are not properly before appellate court).

       Practice Book § 60-2 provides in relevant part: “The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed, or earlier, if appropriate, and, except as otherwise provided in these rules, any motion the purpose of which is to complete or perfect the trial court record for presentation on appeal shall be made to the court in which the appeal is pending. The court may, on its own motion or upon motion of any party, modify or vacate any order made by the trial court, or ajudge thereof, in relation to the prosecution of the appeal. It may also, for example, on its own motion or upon motion of any party, (1) order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal . . . .”
      Practice Book § 60-5 provides in relevant part: “It is the responsibility of the appellant to provide an adequate record for review as provided in Section 61-10.”
      Practice Book § 66-5 provides in relevant part: “A motion seeking . . . an articulation ... of the decision of the trial court shall be called . . . a motion for articulation .... Any motion filed pursuant to this section shall state with particularity the relief sought. . . . The trial court may make such corrections or additions as are necessary for the proper presentation of the issues raised or for the proper presentation of questions reserved. The trial judge shall file the decision on the motion with the appellate clerk.
      . . . The sole remedy of any party desiring the court having appellate jurisdiction to review the trial court’s decision on the motion filed pursuant to this section . . . shall be by motion for review under iSection 66-7. . . .”