text:
    G. WILLIAM MCCOY ET AL. v. JAMES A. BROWN ET AL.
    (AC 32082)
    Bishop, Robinson and Peters, Js.

      Argued May 19
    officially released August 16, 2011

      John F. Carberry, with whom, on the brief, was Timothy M. Herring, for the appellants (plaintiff G. William McCoy et al.).

      James C. Riley, for the appellees (defendant James A. Brown et al.).
   Opinion

PETERS, J.

Contracts for the sale of real property often contain mortgage contingency clauses. In this case, the mortgage contingency clause required the purchasers to apply for a mortgage commitment “at the prevailing rate . . . and [to] pursue the same diligently.” The principal issue is whether the purchasers, having learned that they were ineligible for a mortgage at “the prime rate,” were required to exercise due diligence to pursue alternate mortgage options. The trial court resolved this issue in favor of the vendors. The purchasers have appealed. We affirm the judgment of the court.

On July 10, 2007, the plaintiffs, G. William McCoy and Karen S. McCoy, filed a three count complaint against the defendants, James A. Brown and Nancy F. Brown, in which they alleged that the defendants’ refusal to return a $127,500 deposit toward the purchase of the defendants’ home in Darien constituted a breach of contract, statutory theft and conversion. The defendants filed an answer, special defenses and a counterclaim, in which they alleged breach of contract, breach of the covenant of good faith and fair dealing, and fraud. Following a court trial, the court rendered judgment in favor of the defendants on all counts of the plaintiffs’ complaint and on the defendants’ counterclaim for breach of contract. Accordingly, the court awarded the defendants $126,860.94 and attorney’s fees. The plaintiffs have appealed.

The following undisputed facts were found by the court. In January, 2007, G. William McCoy decided to relocate his family to Darien. McCoy spoke to Christopher Raia, a friend and former neighbor, about the possibility of employment in Raia’s company, Provation, LLC (Provation).

On May 1, 2007, the parties entered into a contract for the sale of the defendants’ property located at 15 Little Brook Road North in Darien (property) to the plaintiffs for $1,325,000. The mortgage contingency clause in the contract provided: “This contract is conditioned upon Buyer’s seeming a commitment for a first mortgage loan on the Premises from any Bank in minimum limits of $1,020,000.00 amortized over a term of not less than thirty years with interest at the prevailing rate and containing no conditions beyond Buyer’s reasonable ability to satisfy. Buyer agrees to make application forthwith and pursue the same diligently. ... In the event Buyer shall fail to secure said mortgage commitment and has demonstrated due diligence, on or before May 11, 2007, he shall have the option of terminating this Contract and all deposit monies paid hereunder shall forthwith be refunded to the Buyer except the sum of $200.00 for the cost of preparing this contract of sale, and all rights and obligations of the parties hereto shall be forever terminated. . . .”

The plaintiffs promptly submitted a mortgage application to Astoria Federal Mortgage Corp. (bank). Tim Sickinger, the plaintiffs’ mortgage broker, advised them that, unless McCoy had salaried employment, the plaintiffs might have to accept a less favorable, or higher, rate on their mortgage. McCoy insisted that he wanted only the “ ‘best rate.’ ”

In the hope of achieving the more favorable, lower interest rate, McCoy asked Raia to hire him as a full-time, salaried employee of Provation. In late April, 2007, after Raia agreed to this request, McCoy amended the mortgage application to reflect Raia’s offer of salaried employment.

On May 4, 2007, the bank issued a commitment letter to the plaintiffs for a thirty year mortgage at 6.25 percent interest. McCoy found these terms satisfactory. The commitment letter stated that, prior to closing on the loan, the bank would require verbal verification that McCoy had started employment at Provation. However, on May 4 or 5, 2007, Raia informed McCoy that he was no longer willing to employ him on a salaried basis, although he remained interested in working with McCoy, at the same level of compensation, as a consultant or independent contractor. In a letter to McCoy, dated May 14, 2007, Raia withdrew the offer of salaried employment effective May 10, 2007.

On May 11, 2007, without undertaking any further efforts to obtain mortgage financing, the plaintiffs notified the defendants of the plaintiffs’ “inability to obtain a mortgage commitment containing ‘. . . no conditions beyond [the] Buyer’s reasonable ability to satisfy’ ” and demanded return of their $127,500 deposit. When the defendants refused to return the deposit, the plaintiffs commenced the present action.

The court found that the plaintiffs’ efforts to obtain a mortgage “lacked due diligence and were unreasonable.” It observed that the bank never rejected the plaintiffs’ mortgage application, which was withdrawn “after McCoy failed to pursue it further.” It found that the plaintiffs had failed to prove that they could not obtain a mortgage containing conditions appropriate to their circumstances. Accordingly, the court concluded that the defendants’ refusal to return the deposit was not a violation of the mortgage contingency clause in the contract and that they were entitled to retain the deposit as liquidated damages.

On appeal to this court, the plaintiffs claim that the court (1) misconstrued the mortgage contingency clause in the contract and (2) improperly concluded that the plaintiffs had failed to perform their contract obligations to the defendants. We are not persuaded and, accordingly, affirm the judgment of the court.

The plaintiffs’ first contention is that the court misconstrued the mortgage contingency clause as requiring them to pursue a mortgage “at the prevailing rate” for borrowers in the plaintiffs’ circumstances, rather than for borrowers who seek financing based on full income verification. Under the circumstances of this case, we need not resolve this issue. Neither interpretation supports the plaintiffs’ bald assertion that “prevailing rate” means “prime rate.” More importantly, neither interpretation supports the plaintiffs’ contention that their withdrawal of their one and only mortgage application satisfied their contractual obligation to exercise due diligence to obtain mortgage financing.

The plaintiffs’ second contention is that the court improperly concluded that they had breached the contract. Preliminarily, we note that “[w]hether there was a breach of contract is ordinarily a question of fact. . . . We review the corut’s findings of fact under the clearly erroneous standard. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.” (Internal quotation marks omitted.) Neubig v. Luanci Construction, LLC, 124 Conn. App. 425, 433, 4 A.3d 1273 (2010).

Any mortgage contingency clause implies “a promise that the purchaser will exert reasonable efforts to obtain a mortgage commitment.” Phillipe v. Thomas, 3 Conn. App. 471, 473, 489 A.2d 1056 (1985); see also Barber v. Jacobs, 58 Conn. App. 330, 335, 753 A.2d 430, cert. denied, 254 Conn. 920, 759 A.2d 1023 (2000). In this case, the mortgage contingency clause expressly required the plaintiffs to exercise due diligence. As in Phillipe, the language of the contract obligated the plaintiffs to use reasonable diligence in their efforts to obtain a mortgage commitment. “Reasonableness . . . is an objective standard, involving an analysis of what a person with ordinary prudence would do given the circumstances, without accounting for any particular knowledge or skill. . . . Whether the plaintiffs actions constituted reasonable efforts to satisfy the contractual condition is a factual determination for the trial court.” (Citations omitted.) Phillipe v. Thomas, supra, 475.

In this case, the court found that the plaintiffs had “not exercis[ed] due diligence and reasonable care in [their] decisions regarding the acceptance of a mortgage as required by the broad mortgage contingency clause contained in the contract.” Clearly, McCoy wanted a mortgage with the “ ‘best rate’ ” of interest. He knew that he would not qualify for such a rate without salaried employment. The plaintiffs made their offer to purchase the property while McCoy was unemployed. McCoy sought the salaried job offer with Provation in the hope of securing the lower interest rate he desired. As far as the record shows, when the offer of salaried employment was withdrawn, McCoy abandoned all efforts to obtain a mortgage. Indeed, the bank never rejected the plaintiffs’ mortgage application, which was withdrawn after McCoy neglected to pursue it further.

To counter the adverse inferences that the court drew from this factual record, the plaintiffs rely on Aubin v. Miller, 64 Conn. App. 781, 781 A.2d 396 (2001), and Luttinger v. Rosen, 164 Conn. 45, 316 A.2d 757 (1972). We agree with the court that these cases are distinguishable. In Aubin, contrary to the facts of this case, the plaintiffs mortgage application was denied. Aubin v. Miller, supra, 787. In Luttinger, the buyer was offered a mortgage at an interest rate that exceeded the maximum interest rate stated in the mortgage contingency clause. Luttinger v. Rosen, supra, 46. The mortgage contingency clause in the present case had no interest rate cap. Indeed, as the court noted, “[i]t was [McCoy] . . . who insisted that he would only accept a preferred mortgage rate, and it was he who should have negotiated a cap on interest rates in the contract of sale.” We agree with the court.

The crucial fact found by the court was that, even if Raia’s withdrawal of the offer of salaried employment at Provation would have disqualified the plaintiffs’ eligibility for a mortgage at a 6.25 percent interest rate, other mortgage options were open to the plaintiffs, which they could have pursued. McCoy’s unilateral decision to forgo any inquiry into any financing alternatives amply supports the court’s determination that “McCoy failed to exercise due diligence and [that he] was unreasonable in his decision not to consider another form of mortgage which may have carried a higher rate of interest.”

We conclude, therefore, that the court properly found that the plaintiffs failed to exercise due diligence to secure a mortgage at the prevailing rate after they learned that they were ineligible for financing at their preferred rate. In light of this failure on their part, we agree with the court that the plaintiffs were not entitled to a return of the deposit on their contract for the purchase of the defendants’ property.

The judgment is affirmed.

In this opinion the other judges concurred.

      A mortgage contingency clause in a contract implies a promise that the prospective purchaser will exert reasonable efforts to obtain a mortgage commitment. Phillipe v. Thomas, 3 Conn. App. 471, 473, 489 A.2d 1056 (1985).

       This case was consolidated with an interpleader action filed by Bove & Milici, a Connecticut law firm that represented the defendants, to determine the rights to a fund representing the plaintiffs’ $127,500 deposit that the law firm was holding in escrow. The trial court granted the law firm’s motion for an interlocutory judgment of interpleader, and the law firm deposited the escrow funds with the clerk of the court.

       The sum of $126,860.94 represents liquidated damages awarded to the defendants and was calculated by subtracting $639.06 in disbursements from the original $127,500 deposit.

       We refer to G. William McCoy and Karen S. McCoy collectively as the plaintiffs. We refer to G. William McCoy individually as McCoy.

       The purchase price subsequently was reduced, at the plaintiffs’ request, to $1,275,000.

       At trial, neither of the parties took issue with the fact that the mortgage commitment was issued for $956,250 rather than the $1,020,000 specified in the mortgage contingency clause.

       As the court observed, “[t]he plaintiff argues in his brief that ‘prevailing rate’ means ‘prime rates offered by lending institutions,’ without offering any authority for that proposition.”

       The mortgage contingency clause in the contract of sale required the plaintiffs to make application “forthwith” for a mortgage on the terms stated in the contract and to “pursue the same diligently.” The contract states that the plaintiffs would be entitled to the return of their deposit if they failed to secure a mortgage commitment at the stated terms and if they had “demonstrated due diligence” in their attempts to do so.

       We take judicial notice of the fact that many contracts like that at issue in the present case state a given percentage rate in the mortgage contingency clause.

       We reject the analogy the plaintiffs attempt to draw between the no-income verification loan that McCoy could have qualified for, based upon his assets, 1099 income and severance pay, and a “subprime” mortgage loan, which refers to higher interest loans issued to borrowers that have low credit ratings. The two are not equivalent.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    RETIREMENT PROGRAM FOR EMPLOYEES OF THE TOWN OF FAIRFIELD ET AL. v. BERNARD L. MADOFF ET AL.
    (AC 32216)
    Bishop, Robinson and Peters, Js.

      Argued May 19
    officially released August 16, 2011

      Richard C. Robinson, with whom were Megan Youngling Carannante and, on the brief, David S. Golub, for the appellants (plaintiffs).

      Stanley A. Twardy, Jr., with whom were Thomas D. Goldberg and, on the brief, Daniel J. Fetterman, pro hac vice, and Adam K. Grant, pro hac vice, for the appellee (defendant Jeffrey H. Tucker).

      Stanley A. Twardy, Jr., with whom were Frank J. Silvestri, Jr., and, on the brief, Madeleine F. Grossman,

      Glenn M. Kurtz, pro hac vice, and Andrew W. Hammond, pro hac vice, for the appellee (defendant Walter M. Noel, Jr.).

      II. James Pickerstein, with whom, on the brief, were Daniel J. Klau, Charles T. Spada, pro hac vice, and Jeannie Rose Rubin, pro hac vice, for the appellee (defendant Peter B. Madoff).
   Opinion

BISHOP, J.

The plaintiffs, the town of Fairfield and two employee retirement programs, appeal from the trial court’s judgment granting the motions to dismiss filed by the defendants Walter M. Noel, Jr., Jeffrey H. Tucker and Peter B. Madoff. On appeal, the plaintiffs claim that the court improperly concluded that it lacked subject matter jurisdiction on the ground that the plaintiffs’ claims were derivative in nature. We affirm the judgment of the trial court.

The following factual and procedural history, as set forth by the trial court, is relevant to the resolution of the issues on appeal. Bernard L. Madoff (Madoff) is the former investment manager and founder of Bernard L. Madoff Investment Securities, LLC. In December, 2008, Madoff admitted, in connection with certain criminal charges brought against him, that he orchestrated a massive Ponzi scheme in which funds entrusted to him were not actually invested, but, rather, were utilized to pay other investors’ requests for the redemption of principal and profits and to fund his extravagant lifestyle. Madoff is currently incarcerated as a result of his fraudulent conduct and a bankruptcy stay is in effect as to the claims against him in this action.

For many years, Tremont Partners, Inc. (Tremont Partners), served as the plaintiffs’ investment advisor. Sandra L. Manzke, who was the president of Tremont Partners, was the individual with whom the plaintiffs dealt in investing their money. Relying on Manzke’s counsel, the plaintiffs invested their funds in a hedge fund established by Tremont Partners, which, in turn, invested its assets with Madoff. The plaintiffs did not invest their funds directly with Madoff. When Manzke left Tremont Partners in 2005, she formed a new investment and consulting firm, Maxam Capital Management, LLC, which established the Maxam Absolute Return Fund, LP (Maxam Fund). Pursuant to Manzke’s advice, the plaintiffs withdrew their funds from the Tremont Partners hedge fund and invested them in the Maxam Fund, which, in turn, invested the plaintiffs’ funds with Madoff.

Noel and Tucker (Fairfield Greenwich defendants) are partners, principals and members of the executive committee or board of directors of the Fairfield Greenwich Group, an asset management company that manages and solicits investments for its own hedge funds and other hedge funds that invested with Madoff. Because the Maxam Fund and Fairfield Greenwich Group made their investments solely through other funds, they are referred to as “feeder funds.” Unlike the Maxam defendants; see footnote 6 of this opinion; the Fairfield Greenwich defendants did not have any contact with the plaintiffs or any involvement with their funds or investments.

Peter B. Madoff is Bernard Madoffs brother. He was a co-owner of Madoffs investment firm and served as its senior managing director, director of trading and chief compliance officer.

The plaintiffs commenced this litigation by way of a twenty-nine count complaint filed March 30, 2009. The plaintiffs claim that several of the defendants wrongfully participated in “feeding” funds to Madoff, which enabled him to continue running his Ponzi scheme. Although the plaintiffs allege that the Maxam defendants dealt directly with the plaintiffs in inducing them to invest in the Maxam Fund, which, in turn, invested with Madoff, they make no similar allegations regarding the Fairfield Greenwich defendants. The plaintiffs claim, nevertheless, that the actions of the Fairfield Greenwich defendants furthered Madoffs scheme. The plaintiffs allege that Peter B. Madoff intentionally utilized his management authority at Madoffs firm to further Madoffs fraudulent scheme. The plaintiffs make similar claims as to Madoffs sons, Andrew H. Madoff and Mark D. Madoff.

The Maxam defendants, the Fairfield Greenwich defendants, Peter B. Madoff, Mark D. Madoff and Andrew H. Madoff moved to dismiss the plaintiffs’ claims on the basis that the court lacked subject matter jurisdiction. These defendants asserted that the plaintiffs lacked standing to pursue their claims because they are derivative in nature. The court denied the motion to dismiss as to the Maxam defendants on the basis of its conclusion that the plaintiffs had alleged a sufficiently individualized harm against the Maxam defendants to distinguish them from other investors because of their long-term relationship with Manzke and their reliance on her investment advice. The court determined, however, that the plaintiffs lacked standing to pursue their claims as to the Fairfield Greenwich defendants and Peter B. Madoff, Mark D. Madoff and Andrew H. Madoff because they were derivative. The court, therefore, granted the motions to dismiss as to those parties.

The plaintiffs have appealed the trial court’s judgment dismissing their claims as to the Fairfield Greenwich defendants and Peter B. Madoff, contending that the court improperly concluded that their claims against those defendants were derivative. Specifically, the plaintiffs assert that their claims were not derivative because they had alleged in their complaint that the Fairfield Greenwich defendants acted in concert not only with Madoff, but also with the Maxam defendants and other feeder funds, in inducing them to invest in the Maxam Fund. We do not agree.

“The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book § 10-31 (a). [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.” (Internal quotation marks omitted.) McWeeny v. Hartford, 287 Conn. 56, 63-64, 946 A.2d 862 (2008). “When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . The motion to dismiss . . . admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Internal quotation marks omitted.) Keller v. Beckenstein, 122 Conn. App. 438, 443, 998 A.2d 838, cert. granted on other grounds, 298 Conn. 921, 4 A.3d 1227, 5 A.3d 486 (2010).

“It is well established that [a] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . 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. . . . [T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. . . . Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. . . . Our review of the question of [a] plaintiffs standing is plenary.” (Citations omitted; internal quotation marks omitted.) Megin v. New Milford, 125 Conn. App. 35, 37, 6 A.3d 1176 (2010).

“[A]s a general rule, a plaintiff lacks standing unless the harm alleged is direct rather than derivative or indirect.” Connecticut State Medical Society v. Oxford Health Plans (CT), Inc., 272 Conn. 469, 481, 863 A.2d 645 (2005). “[I]f the injuries claimed by the plaintiff are remote, indirect or derivative with respect to the defendant’s conduct, the plaintiff is not the proper party to assert them and lacks standing to do so. Where, for example, the harms asserted to have been suffered directly by a plaintiff are in reality derivative of injuries to a third party, the injuries are not direct but are indirect, and the plaintiff has no standing to assert them.” Ganim v. Smith & Wesson Corp., 258 Conn. 313, 347-48, 780 A.2d 98 (2001).

Because the plaintiffs lost their investment in the Maxam Fund, and the Maxam Fund is a Delaware partnership, the parties agree that Delaware law controls in determining whether the plaintiffs’ claims are derivative. The Delaware Supreme Court has “set forth the analytical framework for ascertaining whether a cause of action is direct or derivative. . . . [TJhis determination can be made by answering two questions: [W]ho suffered the alleged harm . . . and who would receive the benefit of any recovery or other remedy . . . ? If the corporation alone, rather than the individual stockholder, suffered the alleged harm, the corporation alone is entitled to recover, and the claim in question is derivative. Conversely, if the stockholder suffered harm independent of any injury to the corporation that would entitle him to an individualized recovery, the cause of action is direct.” (Internal quotation marks omitted.) Feldman v. Cutaia, 951 A.2d 727, 732 (Del. 2008).

“Where all of a corporation’s stockholders are harmed and would recover pro rata in proportion with their ownership of the corporation’s stock solely because they are stockholders, then the claim is derivative in nature. The mere fact that the alleged harm is ultimately suffered by, or the recovery would ultimately inure to the benefit of, the stockholders does not make a claim direct .... In order to state a direct claim, the plaintiff must have suffered some individualized harm not suffered by all of the stockholders at large.” Id., 733. To maintain a direct claim, a “stockholder must demonstrate that the duty breached was owed to the stockholder and that he or she can prevail without showing an injury to the corporation.” Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1039 (Del. 2004).

The plaintiffs contend on appeal that their claims as to the Fairfield Greenwich defendants and Peter B. Madoff are not derivative because they are not premised upon an injury to the Maxam Fund, but, rather, on the losses that they suffered as a result of the actions of those defendants in wrongfully inducing them to invest in the Maxam Fund. The plaintiffs claim that it is this behavior that distinguishes their claims from those made by other Maxam Fund investors and makes their claim direct rather than derivative.

The complaint filed by the plaintiffs belies their claim on appeal. Although the plaintiffs’ complaint is rich with allegations that the Fairfield Greenwich defendants acted in concert with Madoff or in furtherance of Madoff s fraudulent plan, it is devoid of any allegation that the Fairfield Greenwich defendants played any role in inducing the plaintiffs to invest in the Maxam Fund or in any other feeder fund, or with Madoff directly. The plaintiffs’ claims against the Fairfield Greenwich defendants can be found in three counts. In count four of their complaint, the plaintiffs allege that the Fairfield Greenwich defendants are liable for damages for statutory theft; in count eight, for aiding and abetting Madoff s theft of their funds; and in count fifteen, for a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. Although they make the cursory claim, in the fourth count of their complaint, that the “illegal conduct of the Fairfield Greenwich . . . defendants, acting in concert with . . . Madoff, the other feeder fund defendants and Peter B. Madoff,” resulted in their “lost investments, lost investment opportunities and losses from payment of unwarranted fees,” the complaint is bereft of any allegation that the Fairfield Greenwich defendants collaborated with the Maxam defendants or any other party in inducing the plaintiffs to invest in the Maxam Fund or any other fund. In the absence of such an allegation, the plaintiffs have failed to set forth any claim to distinguish theirs from the other Maxam Fund investors. Rather, on appeal, they have simply attempted to recast their derivative claim as a direct claim.

Similarly, the plaintiffs fail to allege that Peter B. Madoff played any role in inducing them to invest in the Maxam Fund. The plaintiffs’ allegations as to Peter B. Madoff are based on the claim that his actions furthered the fraudulent scheme of his brother. Because the harm suffered by the plaintiffs is based solely on the loss sustained by the Maxam Fund, and there is no claim that Peter B. Madoff played any role in inducing the plaintiffs to invest in the Maxam Fund, the plaintiffs’ claims in this regard are derivative.

On the basis of the foregoing, the court properly determined that the plaintiffs’ claims against the Fair-field Greenwich defendants and Peter B. Madoff were derivative and, accordingly, the plaintiffs lack standing to bring those claims. Accordingly, the court properly dismissed the plaintiffs’ claims as to those defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

       The two programs are the Retirement Program for Employees of the Town of Fairfield and the Retirement Program for Police Officers and Firemen of the Town of Fairfield.

       The original complaint named sixteen defendants. One individual, Andres Piedrahita, was never served and is not a party to this appeal. The other named defendants were: Bernard L. Madoff, Tremont Partners, Inc., Tremont Group Holdings, Inc., Oppenheimer Acquisition Corp., Maxam Capital Management, LLC, Maxam Capital GP LLC, Maxam Capital Management Limited, Sandra L. Manzke, Robert I. Schulman, Walter M. Noel, Jr., Jeffrey H. Tucker, Peter B. Madoff, Ruth Madoff, Mark D. Madoff and Andrew H. Madoff. Only Noel, Tucker and Peter B. Madoff are parties to this appeal. We will refer to individual defendants by name unless otherwise indicated in the opinion.

       A Ponzi scheme has been described as “a pyramid scheme where earlier investors are paid from the investments of more recent investors, rather than from any underlying business concern, until the scheme ceases to attract new investors and the pyramid collapses.” Eberhard v. Marcu, 530 F.3d 122, 132 n.7 (2d Cir. 2008).

         The plaintiffs withdrew their claims against Madoffs wife, Ruth Madoff, in August, 2009.

       The plaintiffs withdrew their claims as to Tremont Partners, Tremont Group Holdings, Inc., Oppenheimer Acquisition Corp. and Robert I. Schulman in February, 2010.

       Manzke and Maxam Capital Management, LLC, Maxam Capital GP LLC, and Maxam Capital Management Limited collectively are referred to herein as the Maxam defendants.

       On January 6, 2011, the plaintiffs withdrew their appeal as to Mark D. Madoff and Andrew H. Madoff.

       Regardless of the appropriate choice of law, the parties also agree that Connecticut law and Delaware law as to this issue are substantially the same.

       We note that the plaintiffs acknowledge that the feeder fund defendants did not know that Madoff was running a Ponzi scheme, but, rather, allege that they should have known that he was involved in other illegal activity involving the funds fed to him.

       In fact, the plaintiffs represented to the trial court that they were not claiming a conspiracy among the feeder fund defendants. As Peter B. Madoff notes in his brief, although “[t]he interpretation of pleadings is always a question of law for the court . . . [i]f the parties at trial have adopted a certain construction of the pleadings ... we should give deference to that construction.” (Citations omitted; internal quotation marks omitted.) Travelers Ins. Co. v. Namerow, 261 Conn. 784, 795-96, 807 A.2d 467 (2002).


author: PETERS, J.

text:
    RUTH F. PERRY v. STEPHEN C. PERRY
    (AC 31947)
    (AC 32485)
    Lavine, Robinson and Peters, Js.
    Argued May 31
    officially released August 16, 2011

      Richard L. Albrecht, with whom was Barbara M. Schellenberg, for the appellant (defendant).

      Louise T. Truax, with whom was Daniel J. Roberts, for the appellee (plaintiff).

      Catherine P. Whelan, for the minor children.
   Opinion

PETERS, J.

“It is well established that [t]he court’s judgment in an action for dissolution of a marriage is final and binding [on] the parties, where no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of [practice] permit the setting aside or modification of that judgment. ” (Internal quotation marks omitted.) Mickey v. Mickey, 292 Conn. 597, 603-604, 974 A.2d 641 (2009). While courts have continuing jurisdiction to clarify or to modify such a judgment with respect to the custody of children; General Statutes § 46b-56; they have only limited authority to revisit a judgment with respect to the division of marital assets. Bauer v. Bauer, 130 Conn. App. 185, 190-91, 21 A.3d 964 (2011). In this case, we affirm the trial court’s clarification of a visitation order and reverse its clarification of a property order.

In a complaint filed January 9,2006, the plaintiff, Ruth F. Perry, alleged that her marriage to the defendant, Stephen C. Perry, had broken down irretrievably and sought dissolution of their marriage, an order regarding custody and support of their two minor children, alimony, educational support orders and attorney’s fees. The child custody and financial issues were bifurcated for trial. On April 9,2008, the court, Dewey, J., approved and entered, as an order, a custody and parenting time stipulation (stipulation).

On August 11 and 12,2008, a trial was held to resolve the parties’ financial issues. During that trial and in her proposed orders, the plaintiff requested that the court correct the custody stipulation, which allegedly had misstated the father’s weekend visitation rights. The defendant did not oppose the plaintiffs request. Indeed, through his attorney, he acknowledged that the stipulation contained a scrivener’s error in assigning weekend visitations to the father for every weekend rather than every other weekend. Furthermore, in response to questioning by the court, the defendant stated, consistently, that he had parenting time with the children every other weekend.

On November 26, 2008, the court, Gordon, J., rendered judgment dissolving the parties’ marriage. The judgment incorporated the uncorrected custody stipulation, ordered alimony and child support, divided the parties’ assets and ordered that attorney’s fees for both parties be paid from a designated brokerage account. In addition, the court ordered the defendant to indemnify the plaintiff for “any and all future claims, demands and/or suits with respect to any federal, state or municipal income tax claims for any year in which the parties filed a joint income tax return . . . .”

On July 2, 2009, the plaintiff filed an ex parte motion for an order and to clarify postjudgment, alleging that the defendant had notified her of his intention to begin exercising his visitation rights to have the children every weekend pursuant to the uncorrected custody stipulation. The plaintiff asked the court to clarify its decision to allow her to have parenting time every other weekend, including the weekend of July 3, 4 and 5, 2009. The court, Schofield, J., ordered that the plaintiff have parenting time for that weekend and set a date for a hearing on the clarification issue.

Thereafter, on July 27, 2009, the plaintiff filed a motion to open on the grounds of a scrivener’s error or mutual mistake with respect to the parenting time as expressed in the stipulation. The plaintiff alleged that, at all times between the institution of the action and July, 2009, the defendant had exercised his right to parenting time with the children every other weekend. Furthermore, she argued that other paragraphs in the stipulation were inconsistent with the defendant’s having parenting time every weekend. On January 5, 2010, the defendant filed an objection and motion to dismiss the plaintiffs motion to clarify and to open the judgment.

At a hearing on the proposed clarification, held on January 5, 2010, the court, Shay, J., determined that the motion for clarification should be addressed to Judge Gordon. In response, on January 25,2010, Judge Gordon issued a clarification, sua sponte, that the parenting time stipulation, as incorporated into the court’s November, 2008 memorandum of decision, should have read: “The minor children shall be with the father every other Friday from 4:00 p.m. until Sunday at 8:00 p.m.”

I

AC 31947

The defendant’s first appeal challenges the propriety of the January 25, 2010 order. He maintains that the court’s order was improper because it was an untimely modification and because he was not afforded a hearing to contest its merits. A well established standard of review governs our determination of the propriety of Judge Gordon’s revision of her November 26,2008judg-ment. “Because [t]he construction of [an order or] judgment is a question of law for the court . . . our review ... is plenary. As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment. . . . The interpretation of [an order or] judgment may involve the circumstances surrounding [its] making .... Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The [order or] judgment should admit of a consistent construction as a whole.” (Internal quotation marks omitted.) Bauer v. Bauer, 130 Conn. App. 189. We disagree with both of the defendant’s claims of error.

A

Section 46b-56 permits a court to modify child custody and visitation orders at any time. Although the defendant repeatedly raises the specter of a four month jurisdictional limitation on the court’s authority to modify the judgment with respect to the custody and visitation orders, in his brief to this court, he correctly concedes that the “court has continuing jurisdiction to modify a visitation order.” Even if Judge Gordon’s order was timely, the defendant maintains that the court improperly characterized its order changing the defendant’s visitation rights as a clarification rather than as a modification. If, as he argues, it was a modification, it was improper because, prior to modifying an order of child custody, a court must hold a hearing and make the requisite findings of fact. See Berglass v. Berglass, 71 Conn. App. 771, 782-83, 804 A.2d 889 (2002).

In support of his contention that the court’s January 25, 2010 order constituted a modification rather than a clarification, the defendant relies on the language of the original judgment. He maintains that the original order unambiguously gave him parenting time with his children on Friday through Sunday, and that the addition of the words “every other” substantively modifies the judgment. He emphasizes that the plaintiff was unsuccessful in her attempt to obtain a change in the visitation order at the time of the August, 2008 trial. In his view, the court’s failure to adopt the requested changes at that time manifests its intent to reject them.

In a related context, our Supreme Court held that “[i]n order to determine the substance of the trial court’s actions ... we begin by examining the definitions of both alteration and clarification. An alteration is defined as [a] change of a thing from one form or state to another; making a thing different from what it was without destroying its identity. Black’s Law Dictionary (4th Ed. 1968). An alteration is an act done upon the instrument by which its meaning or language is changed. If what is written upon or erased from the instrument has no tendency to produce this result, or to mislead any person, it is not an alteration. Id. Similarly, a modification is defined as [a] change; an alteration or amendment which introduces new elements into the details or cancels some of them, but leaves the general purpose and effect of the subject-matter intact. Black’s Law Dictionary (6th Ed. 1990).

“Conversely, to clarify something means to free it from confusion. Webster’s New World Dictionary of the American Language (2d Ed. 1972). Thus, the purpose of a clarification is to take a prior statement, decision or order and make it easier to understand. Motions for clarification, therefore, maybe appropriate where there is an ambiguous term in a judgment or decision . . . but, not where the movant’s request would cause a substantive change in the existing decision. Moreover, motions for clarification may be made at any time and are grounded in the trial court’s equitable authority to protect the integrity of its judgments.” (Citation omitted; internal quotation marks omitted.) In re Haley B., 262 Conn. 406, 413, 815 A.2d 113 (2003); Perugini v. Devino, 111 Conn. App. 436, 443-44, 959 A.2d 1031 (2008).

The defendant cites In re Haley B., supra, 262 Conn. 406, in support of his argument that, in the present case, Judge Gordon’s order was a modification rather than a clarification. In that case, our Supreme Court held that a court’s postjudgment order granting monthly visitation to the grandparent instead of the weekly visitation awarded in its original judgment was a modification, not a clarification. In re Haley B., is, however, distinguishable because, in that case, there was neither a claim of an ambiguity in the original judgment nor a factual basis for an agreement to monthly visitation.

Because the record in the present case discloses several ambiguities, it supports the court’s decision to correct the visitation stipulation. It is uncontested that the stipulation provides for the children to have primary residence with the plaintiff. The defendant’s interpretation of the stipulation allows him to have parenting time every weekend and Tuesdays and Thursdays, including overnights on those occasions when the defendant has someone available to get the children ready for school. Such an arrangement would be inconsistent with the children having their primary residence with the plaintiff.

Additionally, the stipulation refers to plans for holidays, such as Mother’s Day and Father’s Day, and provides for special arrangements in case that day “does not fall on that parent’s weekend . . . .” (Emphasis added.) The stipulation also provides: “In the event any of the holidays or vacations result in one parent being scheduled to have the minor children for three weekends in a row, then the weekend which is not associated with the holiday or vacation period shall go to the parent who does not have them for that holiday or vacation.” In these various respects, the terms of the stipulation are inconsistent with the defendant’s present position.

Even more important, at the August, 2008 hearing before Judge Gordon, there was no dispute that the stipulation reflected a scrivener’s error and that the visitation should be every other weekend. Both the defendant and his attorney stated, on the record, that the defendant had the children with him every other weekend. The defendant’s attorney acknowledged that there was a scrivener’s error in the stipulation. Although the record does not disclose why the court did not make the requested changes in August, 2008, it provides ample support for the court’s decision to issue an order of a clarification on January 25, 2010.

The case law, including this court’s recent holding in Bauer, makes it clear that the formal title of a motion is not determinative of whether a court’s subsequent order is a clarification or a modification. In the present case, the original judgment contained an ambiguity that the court had the authority to correct. Its order fit readily within the class of permissible clarifications that a court has the authority to enter to “protect the integrity of its judgments.” In re Haley B., supra, 262 Conn. 413. We therefore agree with the plaintiff that the January, 2010 order did not modify any of the substantive terms of the prior judgment but clarified an ambiguity therein.

B

Alternatively, the defendant argues that, even if it was proper for the court to have found an internal inconsistency in the original judgment, the court should have held a hearing (1) to determine the parties’ actual intentions with respect to the weekend visitation or (2) to decide whether the clarified order was in the best interest of their children. Under the circumstances of this case, we are not persuaded that a hearing was required.

The defendant’s first argument is unsustainable because it is inconsistent with his position as documented elsewhere in the record of this case. Prior to this appeal, the defendant never objected to the plaintiffs request to correct the court order to provide for visitation every other weekend. In open court, before Judge Gordon and in the defendant’s presence, the defendant’s attorney agreed with the plaintiffs request to correct the order. The defendant did not, in any fashion, or at any time, dispute the inaccuracy of the original order. In the absence of any controversy about what the parties had intended in their stipulation, there was no issue that the court had to resolve at a hearing.

Alternatively, the defendant maintains that, even if the court’s order was a clarification, the court was required to hold a hearing because the court should not have altered the children’s custodial arrangements without hearing argument about whether the clarified order was in the children’s best interest. We need not decide, in this case, whether a judicial clarification might not, under some circumstances, make such a hearing appropriate. On the present record, however, at the time of the judgment of dissolution, the parties had agreed that the children would spend every other weekend with the defendant. Rectification of the improper recordation of this agreement did not alter its substance. There was, therefore, no need for the court to inquire further into the best interests of the children.

II

AC 32485

On March 15, 2010, the plaintiff filed a second motion for clarification postjudgment, asking the court to clarify its judgment to hold the plaintiff harmless from a liability listed on the defendant’s financial affidavit. In the dissolution judgment, the court had ordered the defendant to indemnify the plaintiff with respect to any tax claims for any year in which the parties had filed a joint income tax return. After holding a hearing, Judge Gordon, on June 30, 2010, issued a clarification. Stating that it had been the court’s original intention to leave the parties responsible for the liabilities listed on their respective financial affidavits, the court clarified its memorandum of decision to include an order to that effect and further specified that each of them was required to “indemnify and hold harmless the other thereon.”

The defendant’s second appeal challenges this order of clarification on two grounds. He maintains that the order (1) was not a clarification but instead was a modification that improperly altered the resolution of the parties’ property and financial issues in the dissolution judgment, and (2) was untimely because it was rendered more than four months after the date of the dissolution judgment. Because both claims raise issues of law, they are entitled to plenary review. See Bauer v. Bauer, supra, 130 Conn. App. 189. We agree with the defendant.

The record discloses that, in the defendant’s submissions at the dissolution trial, he had listed as a liability an agreement that allegedly entitled his parents to exercise an option, in exchange for startup capital, to collect 90 percent of the profits from an investment the defendant had made. The plaintiff and the defendant jointly were liable for this contingent liability. The plaintiff did not fist the option agreement on her financial affidavit. The court’s financial orders did not address the option agreement. Apparently, an effort by the defendant’s parents to collect their share of the profits under the option agreement from the plaintiff prompted the plaintiff to file a motion for clarification with the court.

In Bauer v. Bauer, supra, 130 Conn. App. 185, this court recently restated the ground rules that govern motions for clarification with respect to property divisions in marital dissolution cases. This court held that “[u]nder Practice Book [§ 17-4], a civil judgment may be opened or set aside . . . [when] a motion seeking to do so is filed within four months from the date of its rendition. . . . Absent waiver, consent or other submission to jurisdiction, however, a court is without jurisdiction to modify or correct a judgment, in other than clerical respects, after the expiration of [that four month period] .... Even beyond the four month time frame set forth in Practice Book § 17-4, however, courts have continuing jurisdiction to fashion a remedy appropriate to the vindication of a prior . . . judgment . . . pursuant to [their] inherent powers .... When an ambiguity in the language of a prior judgment has arisen as a result of postjudgment events, therefore, a trial court may, at any time, exercise its continuing jurisdiction to effectuate its prior [judgment] ... by interpreting [the] ambiguous judgment and entering orders to effectuate the judgment as interpreted .... In cases in which execution of the original judgment occurs over a period of years, a motion for clarification is an appropriate procedural vehicle to ensure that the original judgment is properly effectuated. . . . Motions for clarification may not, however, be used to modify or to alter the substantive terms of a prior judgment . . . and we look to the substance of the relief sought by the motion rather than the form to determine whether a motion is properly characterized as one seeking a clarification or a modification.” (Emphasis added; internal quotation marks omitted.) Id., 188-89.

The timeliness of the plaintiffs motion turns, therefore, on whether the court properly characterized its order as a clarification, rather than a modification. The defendant argues that the order was not a clarification because the court did not identify any apparent ambiguity in its earlier judgment. The defendant further maintains that there was no latent ambiguity in an order requiring him to hold the plaintiff harmless only with respect to income tax claims.

In response, the plaintiff relies on Mickey v. Mickey, supra, 292 Conn. 604, and Holcombe v. Holcombe, 22 Conn. App. 363, 576 A.2d 1317 (1990), to support her claim that the court’s order was proper. We agree with the defendant that these cases are distinguishable.

In Mickey, our Supreme Court held that the defendant properly requested a clarification to ascertain whether the trial court’s division of his retirement benefits included subsequent disability benefits that were not anticipated at the time of trial. Mickey v. Mickey, supra, 292 Conn. 606-607. In that case, “the defendant asserted that there was an ambiguity as to whether the trial court intended the term ‘monthly retirement benefit’ to include his disability benefits, which ambiguity arose from the legal question of whether disability benefits are marital property subject to distribution.” Id., 605. The plaintiff has not identified any such legal question or latent ambiguity in the court’s original order in the present case.

In Holcombe, the court dealt with the inverse of the present case. In that case, the plaintiff listed as a liability on his financial affidavit a second mortgage taken in his name only. Holcombe v. Holcombe, supra, 22 Conn. App. 364-65. When the plaintiff insisted that the proceeds from the sale of the marital home be used to cover the second mortgage, the defendant filed a motion for clarification. Id. The trial court held that, in the original judgment, it specifically had enumerated those debts that were to be paid with the proceeds of the sale, and that its failure to include the second mortgage in that list manifested its intention to allocate that liability to the plaintiff. Id., 365. This court concluded that the clarification was proper: “The court’s clarification order merely determined that the original judgment intended to make the parties separately responsible for items not specifically listed. The court’s determination that these carrying charges were not so specifically listed did not alter the property division or result in a modification of the original judgment.” Id., 366.

Unlike the facts of Holcombe, Judge Gordon’s original dissolution judgment did not manifest any intention to have each party be responsible for the liabilities listed on their financial affidavits. Our holding in Bauer makes it clear that “we look to the substance of the relief sought by the motion rather than the form to determine whether a motion is properly characterized as one seeking a clarification or a modification. ” (Internal quotation marks omitted.) Bauer v. Bauer, supra, 130 Conn. App. 188-89. The underlying judgment in the present case contains no provision concerning the parties’ liabilities except for the order expressly requiring the defendant to indemnify the plaintiff for any tax liabilities arising out of jointly filed returns. Unlike the order at issue in Holcombe, the court’s order of clarification in this case, if sustained, would impose an indemnification obligation on the defendant to which the underlying judgment does not expressly or impliedly refer.

We therefore agree with the defendant that the trial court in this case did not have the authority to issue, as a clarifying order, its modification of the dissolution judgment with respect to the division of the parties’ property. The absence of reference to the option agreement in the dissolution judgment did not create an ambiguity in the judgment. We agree with the defendant that, without the predicate ambiguity in the court’s property orders, the court’s order requiring the defendant to indemnify the plaintiff with respect to the option agreement was a modification rather than a clarification of its prior judgment.

The court’s authority to modify a judgment is, however, subject to statutory time constraints. As a rule, General Statutes § 52-212a provides that “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. . . .” The plaintiff has not contested the propriety of the defendant’s argument that, in this case, the court lacked the authority to modify its prior property order at the time of its decision. We agree, therefore, with the defendant, that the court’s order imposing liability on the defendant with respect to the option agreement must be set aside.

In AC 31947, the January 25, 2010judgment clarifying the visitation order is affirmed. In AC 32485, the June 30, 2010 judgment granting the plaintiffs motion for clarification as to the division of the parties’ property is reversed and the case is remanded with direction to deny that motion.

In this opinion the other judges concurred.

       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. . . .” See also Practice Book § 17-4.

       In fact, in that case the record reflected that the grandparent had “inquired about” weekly visitation. In re Haley B., supra, 262 Conn. 409.

       We note that either party could, at any time, file amotion for modification of the children’s custodial arrangements. Indeed, the record indicates that the plaintiff has filed a motion to obtain sole custody of the children. At the time of issuance of this opinion, a hearing on that motion had been scheduled for July, 2011.

       The agreement was signed by both the plaintiff and the defendant at a time when they were living in California, a community property state.


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. LAURA WOODTKE
    (AC 32487)
    Gruendel, Robinson and West, Js.
    Argued May 25
    officially released August 23, 2011

      Jennifer Mellon, deputy assistant public defender, for the appellant (defendant).

      Emily Graner Sexton, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Judith Dicine, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Lama Woodtke, appeals from the judgment of conviction, rendered following her conditional plea of nolo contendere, of criminal damage to a landlord’s property in the second degree in violation of General Statutes § 53a-117f. On appeal, the defendant claims that the trial court improperly denied her motion to dismiss because her prosecution was time barred by the statute of limitation's set forth in General Statutes (Rev. to 2005) § 54-193. We agree and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant’s claim. On August 8, 2006, New Haven police responded to allegations of vandalism to a rental property. On September 15,2006, an arrest warrant was issued for the defendant for the charge of criminal damage to a landlord’s property in the second degree. Lieutenant Raymond Hassett of the New Haven police department served the warrant on July 16, 2009, two years and ten months after the warrant initially was issued, after he discovered it when he checked the defendant’s name in connection with an unrelated incident.

By motion dated October 29, 2009, the defendant sought to dismiss the matter based on the delay between the issuance and the service of the arrest warrant. The defendant argued that the warrant was executed with unreasonable delay and a lack of due diligence so that prosecution of the defendant violated § 54-193, the due process clause of the fourteenth amendment to the United States constitution, and article first, § 8, of the Connecticut constitution.

On February 5, 2010, following an evidentiary hearing, the court denied the defendant’s motion to dismiss. In its memorandum of decision, the court determined that the “defendant lived openly in the city of New Haven during the relevant time period, making no attempts to consciously elude service of the warrant.” The court noted that the fact that the defendant did not consciously elude authorities militated in favor of dismissal of the action. The court, however, also found that the New Haven police department’s warrant unit had been phased out several years ago, leaving the primary means of locating individuals with outstanding warrants to be identification checks during traffic stops or investigation of unrelated criminal activities. Thereafter, the court determined that although the delay in executing the warrant may have been unreasonable in a small community where the defendant did not consciously elude the authorities, New Haven is a large urban area with critical issues to attend to that take precedence over locating subjects of warrants for misdemeanors. Ultimately, the court concluded that the delay of service of the arrest warrant was not unreasonable and denied the motion to dismiss. The court did not address whether the defendant’s rights under the United States constitution or the Connecticut constitution had been violated.

On May 20, 2010, the defendant entered a plea of nolo contendere, conditioned on her right to appeal from the court’s denial of her motion to dismiss pursuant to General Statutes § 54-94a. The court accepted the plea and determined that the motion was dispositive of the case. The defendant was sentenced to one year incarceration, execution suspended, and two years of probation. The defendant was also ordered to pay $917 in restitution to the victim. This appeal followed.

The defendant claims that the court improperly denied her motion to dismiss because her prosecution was time barred by the statute of limitations set forth in § 54-193. In making this claim, the defendant concedes that the arrest warrant was issued within the applicable limitations period. She argues, however, that the statute of limitations was not tolled, and thus the prosecution was time barred, because the arrest warrant was executed with unreasonable delay after the limitations period had expired. We agree.

We begin by setting forth the applicable standard of review. “Our standard of review of a trial court’s . . . conclusions of law in connection with a motion to dismiss is well settled. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts .... Thus, our review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) State v. Soldi, 92 Conn. App. 849, 852-53, 887 A.2d 436, cert. denied, 277 Conn. 913, 895 A.2d 792 (2006).

Section 54-193 (b) provides in relevant part that an individual may be prosecuted for a misdemeanor only if prosecution commences within one year after the offense was committed. The offense of criminal damage of a landlord’s property in the second degree is a misdemeanor; General Statutes § 53a-117f (d); and thus § 54-193 (b) applies. In the present case, the police were notified of the alleged vandalism on August 8, 2006, and an arrest warrant for the defendant was issued on September 15, 2006. The warrant was not served on the defendant until July 16, 2009, two years and ten months after the warrant was initially issued. The question then, is whether the statute of limitations under § 54-193 (b) tolled after the warrant was issued on September 15, 2006, so that the state was not time barred from prosecuting the defendant two years and ten months after the warrant was issued.

In State v. Crawford, 202 Conn. 443, 450, 521 A.2d 1034 (1987), our Supreme Court explained that “[w]hen an arrest warrant has been issued, and the prosecutorial official has promptly delivered it to a proper officer for service, he has done all he can under our existing law to initiate prosecution and to set in motion the machinery that will provide notice to the accused of the charges against him. When the prosecutorial authority has done everything possible within the period of limitation to evidence and effectuate an intent to prosecute, the statute of limitations is tolled. ... An accused should not be rewarded, absent evidence of a lack of due diligence on the part of the officer charged with executing the warrant, for managing to avoid apprehension to a point in time beyond the period of limitation.” (Citation omitted.)

The Crawford court, however, noted that there must be some limit as to the time in which an arrest warrant may be executed so as to protect a defendant from a stale prosecution. Id. The Crawford court adopted the approach of the Model Penal Code and concluded that “in order to toll the statute of limitations, an arrest warrant, when issued within the time limitations of § 54-193 (b), must be executed without unreasonable delay. . . . We do not adopt a per se approach as to what period of time to execute an arrest warrant is reasonable. A reasonable period of time is a question of fact that will depend on the circumstances of each case. If the facts indicate that an accused consciously eluded the authorities, or for other reasons was difficult to apprehend, these factors will be considered in determining what time is reasonable. If, on the other hand, the accused did not relocate or take evasive action to avoid apprehension, failure to execute an arrest warrant for even a short period of time might be unreasonable and fail to toll the statute of limitations.” (Citations omitted.) Id., 450-51. Therefore, the issuance of an arrest warrant within the statute of limitations will effectively toll the statute of limitations, even if the warrant is not executed within that time frame, provided that the warrant is executed without unreasonable delay. See, e.g., State v. Jennings, 101 Conn. App. 810, 818, 928 A.2d 541 (2007).

A statute of limitations claim is an affirmative defense for which the burden rests with the defendant to prove the elements of the defense by a preponderance of the evidence. State v. Crawford, supra, 202 Conn. 451; see also State v. Ali, 233 Conn. 403, 416, 660 A.2d 337 (1995). Despite this, “once a defendant puts forth evidence to suggest that she was not elusive, was available and was readily approachable, the burden shifts to the state to prove that the delay in executing the warrant was not unreasonable.” State v. Soldi, supra, 92 Conn. App. 857.

The state argues that to claim effectively a violation of § 54-193 (b), the defendant must also demonstrate that she suffered some type of prejudice or disadvantage. A prejudice requirement however is only necessary for a due process claim, not a statute of limitations claim. “Connecticut courts consistently have considered only two events when ruling on whether a defendant may successfully raise the statute of limitations as an affirmative defense: (1) the issuance of the warrant by a judicial authority; and (2) the execution or service of the warrant on the accused.” State v. Kruelski, 41 Conn. App. 476, 480, 677 A.2d 951, cert. denied, 238 Conn. 903, 677 A.2d 1376 (1996). “An accused’s primary protection from having to answer to stale criminal charges is the statute of limitations. . . . When it can be shown, however, that a delay has been intentional, and actual significant prejudice to the accused has thereby resulted, due process requires dismissal of the information. . . . Where a delay does not prejudice the accused, no balance need be struck between the cause and effect of delay. The statute of limitations, not the due process clause, defines the limits of protection in such cases.” (Citations omitted.) State v. Echols, 170 Conn. 11, 16-17, 364 A.2d 225 (1975).

The defendant in this matter was not elusive and was available in New Haven during the time period in question. The court determined that it was “abundantly clear that the defendant lived openly in the city of New Haven during the relevant time period, making no attempts to consciously elude service of the warrant.” As a result, the burden shifted to the state to demonstrate that the delay of two years and ten months was reasonable. In determining whether the state has met this burden, we must consider the factual circumstances of the particular case, including the actions of both the defendant and the state. See State v. Crawford, supra, 202 Conn. 450-51. To help determine if the state has met their burden, we look to other cases for guidance.

In State v. Soldi, supra, 92 Conn. App. 852, an arrest warrant was issued for the defendant in August, 1997; id., 853; after she violated a condition of her probation. Id., 851. When the probation officer’s attempts to contact the defendant proved unsuccessful, he transferred the warrant to the West Haven police department. Id. On January 28, 2003, the warrant was served on the defendant when she appeared in court on an unrelated charge. Id. The defendant filed a motion to dismiss, arguing that a five year delay in executing a parole violation warrant was unreasonable under the statute of limitations. Id. The court denied the defendant’s motion to dismiss. Id.

On appeal, this court determined that the burden should have shifted to the state to demonstrate that the delay was reasonable after the defendant put forth evidence that she was living in West Haven for almost all of the five year period, she had utilities in her name, her daughter attended West Haven schools, and her driver’s license and vehicle registration listed her addresses. Id., 854. The state, however, did not proffer any testimony explaining the five year delay in executing the warrant. As a result, without an explanation for the police department’s delay, this court determined that the delay was not reasonable and reversed the denial of the motion to dismiss. Id., 860.

A review of the case law from other jurisdictions, while not binding, is also instructive. Courts in other jurisdictions also have found the delay between issuance and execution of the warrant to be unreasonable when authorities took minimal action to locate the subject of the arrest warrant. For example, in State v. Dozal, 31 Kan. App. 2d 344, 347-48, 65 P.3d 217 (2003), the court held that an eighty-four day delay between issuance and service of a warrant was unreasonable. The record indicated that during this period of delay, the state’s only attempt at contacting the defendant was by a letter, which requested that the defendant stop by the sheriffs office to be arrested. Id., 348. The court concluded that this could not be considered a “bona fide effort to serve a warrant”; id.; particularly where the defendant did not leave the county and continually resided at the same place during the period in question. Id., 347.

Similarly, in Coleman v. State, 655 So. 2d 1239 (Fla. App. 1995), the court concluded that a lapse of approximately two years and ten months between the issuance and execution of an arrest warrant for a first degree misdemeanor offense was unreasonable when the record revealed that the state’s efforts to locate the defendant consisted solely of sending an unsuccessful mailing. The court stated that “the complete absence of a search, diligent or otherwise, precluded the discovery of leads in this case.” Id. As a result, the court determined that the lapse in time between the issuance and execution of the arrest warrant was unreasonable. Id.

In contrast, other Connecticut cases have determined that a delay in executing an arrest warrant is not unreasonable when a defendant has relocated outside of the state. See, e.g., Gonzalez v. Commissioner of Correction, 122 Conn. App. 271, 999 A.2d 781 (in habeas corpus case alleging ineffective assistance of counsel, habeas court found that defendant would likely not succeed on motion to dismiss when he had relocated to Puerto Rico and authorities did not have his address), cert. denied, 298 Conn. 913, 4 A.3d 831 (2010); Merriam v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-04-0004319 (May 25, 2007) (finding no unreasonable delay when defendant fled state after learning of victim’s mother’s intention to contact police and police continued in their effort to locate him), appeal dismissed, 111 Conn. App. 830, 960 A.2d 1115 (2008), cert. denied, 290 Conn. 915, 965 A.2d 553 (2009); State v. Tomczak, Superior Court, judicial district of Tolland, Docket No. CR-9659766 (August 21, 1996) (17 Conn. L. Rptr. 478) (finding delay of nearly five years reasonable where defendant left Connecticut before warrant issued and police continued to make efforts to locate defendant after he left state).

Part of the reasonableness inquiry includes determining whether the defendant may have been difficult to apprehend. See State v. Crawford, supra, 202 Conn. 451. Unlike the defendants in Tomczak, Gonzalez and Merriam, the defendant in the present case at no point attempted to elude service of the warrant by leaving the state. Rather, similar to the defendant in Soldi, the defendant continued to openly reside in her community during the two year and ten month delay. Thus, the difficulty of apprehending the defendant was not at issue in this case.

To evaluate unreasonable delay and due diligence, we must also consider the police department’s actions in executing the warrant. See State v. Soldi, supra, 92 Conn. App. 854. In the present case, unlike the police in Tomczak and Merriam, the police did not diligently engage in any active search for the defendant. Instead, the police relied on checking names at traffic stops and during unrelated criminal investigations as the primary means of locating an individual subject to an arrest warrant. The facts, therefore, are more akin to Soldi and the cases cited from other jurisdictions where the police put forth minimal effort to locate the defendant. Although the police may have faced pressing matters that demanded their immediate attention during the period of delay, this alone will not fulfill the state’s burden of showing reasonableness of delay and due diligence. There must be sufficient effort on the part of the police department to ensure that warrants are timely served, even for simple misdemeanors. The mere fact that a police department is “a very busy urban police department” is not enough for it to avoid its obligation to serve the warrants in a timely manner. Without a showing of the required effort on the part of the New Haven police department to serve the defendant with the arrest warrant, the state cannot demonstrate that the delay of two years and ten months is reasonable in order to toll the statute of limitations under § 54-193 (b).

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to dismiss and to render judgment thereon.

In this opinion the other judges concurred.

       General Statutes § 53a-117f (a) provides in relevant part: “A tenant is guilty of criminal damage of a landlord’s property in the second degree when, having no reasonable ground to believe that a tenant has a right to do so, such tenant (1) intentionally damages the tangible property of the landlord of the premises in an amount exceeding two hundred fifty dollars, or (2) recklessly damages the tangible property of the landlord of the premises in an amount exceeding one thousand five hundred dollars. . . .
      “(d) Criminal damage of a landlord’s property in the second degree is a class A misdemeanor.”

       General Statutes (Rev. to 2005) § 54-193 was amended by No. 10-180 of the 2010 Public Acts. Subdivision (b) has been amended and separated into subsections (b) and (c); however the substance of those provisions has remained similar. Section 54-193 (c) as amended now reads: “No person may be prosecuted for any offense, other than an offense set forth in subsection (a) or (b) of this section, except within one year next after the offense has been committed.” The amendment, however, is not to be applied retroactively in this case. Public Acts 2010, No. 10-180, § 6. Thus, we refer to the 2005 revision of the statute, which was in effect on August 6, 2006, when the offense at issue allegedly occurred: “No person may be prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d or 53a-169, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony, a class A felony or a violation of section 53a-54d or 53a-169, except within one year next after the offense has been committed.” General Statutes (Rev. to 2005) § 54-193 (b).

       The arrest warrant affidavit and the warrant data sheet indicate that the warrant initially was sought for criminal damage to landlord’s property in the first degree in violation of General Statutes § 53a-117e. On the information sheet, however, the first degree portion of the count is crossed out and “second degree” is written above, and § 53a-117e is changed to § 53a-117f. Both changes were signed and initialed by the state’s attorney on September 13, 2006. After reviewing the record and the hearing transcript, it is clear that the warrant was actually issued for criminal damage to a landlord’s property in the second degree.

       General Statutes § 54-94a provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s . . . motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such . . . motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied . . . the motion to dismiss. ...”

       We note that on appeal, the defendant did not contend that the delay between the issuance and service of the arrest warrant violated her right to due process.