author: WEST, J.

text:
    RICHARD YOUNG v. ARNOLD RUTKIN
    (AC 23239)
    Schaller, Flynn and West, Js.
    Argued May 30
    officially released September 9, 2003

      John R. Williams, for the appellant (plaintiff).

      Paul E. Pollock, for the appellee (defendant).
   Opinion

WEST, J.

The plaintiff, Richard Young, appeals from the judgment of the trial court directing a verdict for the defendant, Arnold Rutkin, an attorney, in this legal malpractice action. The plaintiff claims that the court improperly (1) held that his expert witnesses were not qualified to offer opinion evidence and (2) directed the verdict when the evidence was sufficient for submission to the jury even in the absence of expert testimony. We disagree and affirm the judgment of the trial court.

The following facts are necessary to our resolution of the plaintiffs appeal. The defendant initially represented the plaintiff in divorce proceedings in 1989. Pursuant to the settlement of that divorce action, the plaintiff agreed to pay his former wife $13,000 per month. The settlement agreement also provided that the plaintiff’s former wife and the couple’s children would have the use of the marital home, but that in the event of a sale, the proceeds would be divided evenly between the plaintiff and his former wife. The settlement agreement also provided that in the event that the wife married or cohabited, alimony and certain other payments would cease and the marital home would be sold.

In 1993, the defendant represented the plaintiff in seeking a modification of the plaintiffs financial obligations to his former wife. Following settlement discussions between the parties to the divorce, they agreed on a modification of the divorce settlement that reduced the plaintiffs financial obligations to $30,000 per year. In exchange for that reduction, the plaintiff agreed to surrender his one-half interest in the marital home and expunge from the settlement agreement the cohabitation clause governing the use of the house.

The parties also negotiated an agreement concerning the use of an outstanding balance of a home equity line of credit that the plaintiff previously had taken out on the marital home. Of the original $150,000 equity line, $90,000 had been drawn on the account prior to the 1993 negotiations. The modification agreement provided that the plaintiffs former wife could use the remaining $60,000 balance of the credit line for “any reasonable purpose for her or [the parties’] children’s needs . . . .” The plaintiff would remain responsible for paying the interest on that loan and was obligated to repay any outstanding balance on the loan in the event that the house was sold.

During the negotiations leading to the modification agreement, the defendant, at the plaintiffs suggestion, inquired of the plaintiffs former wife whether she was dating anybody or was planning on having anyone move into the house in the immediate future. According to the defendant, the attorney representing the plaintiffs former wife replied that she was seeing a few people, one more than the others, but that she had no plans to cohabit or to remarry at that time. The plaintiff remained somewhat apprehensive, realizing that if his former wife moved someone into the house in the near future, the terms of the proposed modification agreement would cost him more than he saved. According to the plaintiff, however, the defendant assured him that the modification could be overturned on the ground of fraud in the event that the representations made by the former wife proved false.

Three weeks after finalizing the modification agreement, the plaintiffs former wife informed the plaintiff that she was living with someone. Three months after that, she wrote to the plaintiff to inform him that she had used the remainder of the available funds from the home equity loan.

Following those revelations, the plaintiff filed a motion to set aside the modification agreement on the basis of fraud or misrepresentation. At the hearing on that motion, the plaintiff testified that a representation was made that his former wife was seeing several peopie, one more than the others, but that she had no plans to cohabit. The plaintiff testified that he relied on that representation in agreeing to the proposed modification of the settlement agreement. The attorney for the plaintiffs former wife also testified at the hearing. He indicated that he had stated at the time of the modification agreement that his client had been seeing only one person. Faced with that contrary testimony at the hearing and the absence of any writing memorializing the representations that actually had been made, the attorney representing the plaintiff in the fraud action, David J. Scully, recommended that the plaintiff settle the matter. That decision was founded on Scully’s belief that the absence of concrete proof would make it impossible to satisfy the burden of proof with respect to the alleged fraud. The parties did subsequently settle the fraud action.

The plaintiff then filed an action against the defendant, alleging that the defendant had been negligent in his representation during the negotiations leading to the modification of the divorce settlement. Specifically, the plaintiff claimed that he had relied on the defendant’s oral representation that the modification agreement could be overturned in court on the ground of fraud in the event that the plaintiffs former wife had misrepresented her intentions and did cohabit or remarry within a brief period of time following the modification. The defendant failed, however, to document the representations of opposing counsel regarding the future plans of the plaintiffs former wife. The plaintiff argued that that failure to obtain written assurances made it impossible to prevail in the fraud case.

The legal malpractice case was tried to the jury. Following the close of evidence, the defendant sought a directed verdict, and the motion was granted by the court. This appeal followed. Additional facts will be set forth as necessary.

I

We first address the claim that the court improperly ruled that the plaintiffs expert witnesses were not qualified to offer opinion evidence regarding the relevant standard of care.

“[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) State v. Henry, 72 Conn. App. 640, 654, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002).

Section 7-2 of the Connecticut Code of Evidence provides that “[a] witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testily in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.” In Davis v. Margolis, 215 Conn. 408, 576 A.2d 489 (1990), our Supreme Court discussed the contours of the qualification of experts as applicable specifically to attorneys. The court held that to be qualified as an expert witness in a particular matter, an attorney “must be found to possess special knowledge beyond that exhibited by every attorney simply as a result of membership in the legal profession.” Id., 417. The court stressed, however, that such special knowledge properly may “emanate from [any of] a myriad of sources, such as teaching, scholarly writings, study or practical experience.” Id. Nevertheless, the standard regarding expert qualification requires more than casual familiarity with the area of law about which the witness seeks to testify. Id., 416.

The following additional facts are necessary for our resolution of the plaintiffs claim. The plaintiff called Scully as an expert witness. Scully had represented the plaintiff in his fraud action against the plaintiffs former wife. During direct examination, Scully comprehensively testified regarding the fraud proceedings. The defendant objected, however, when the plaintiff inquired whether Scully had a professional opinion-regarding the defendant’s failure to document the representations that allegedly had been made regarding the modification agreement. The court allowed the witness to answer that he did have such an opinion. The defendant then renewed his objection as to the witness stating that opinion. The court then excused the jury and allowed both parties to question the witness as to his experience in the area of domestic and family law.

During that examination, Scully stated that he had attended a full or half-day seminar devoted to family law in 1986 and had attended a half-day family law seminar two months prior to his testimony. He stated that family law matters constituted between 1 percent and 5 percent of his total work and that he had no experience dealing with contested cases involving cohabitation clauses. In fact, he appeared to be unaware that there is a statute governing cohabitation issues. General Statutes § 46b-86 (b). He also stated that he did not subscribe to any particular family law journals, although he would read whatever recently published family law cases “caught his eye.”

The court sustained the defendant’s objection on the basis of its finding that although the witness was an experienced civil litigator who had handled some family matters, he did not have sufficient experience in the practice of family law to render an expert opinion as to the standard of care applicable to the defendant’s performance in negotiating the modification agreement.

In an effort to salvage his witness, the plaintiff argued that the essence of the matter being litigated, the failure to memorialize the representations of the opposing attorney during the settlement modification negotiations, concerned general principles of contract negotiation and did not necessarily implicate family specific law. The defendant countered that the pressures, and the attendant negotiation and settlement strategies, in a family and matrimonial context are unique and that an attorney could not understand those pressures or judge an attorney’s conduct under such circumstances without the relevant experience in the field. The court rejected the plaintiffs argument.

On the basis of the court’s ruling with respect to Scully’s lack of qualification to testify as an expert witness, the plaintiff chose not to call another anticipated witness, attorney Jacob Wieselman, whom the plaintiff characterized as an expert in negotiations and deals, but who, the plaintiff conceded, had no experience in divorce matters.

We recognize that attorneys in Connecticut do not have formal specialties involving additional licensing requirements beyond that necessary for the practice of law generally. Nevertheless, we recognize that the relevant experience necessary to qualify one as an expert witness in a particular legal malpractice action is not shared equally by every member of the bar. Our Supreme Court has expressly stated that to qualify as an expert in a particular matter, an attorney “must be found to possess special knowledge beyond that exhibited by every attorney simply as a result of membership in the legal profession. Rather, [an attorney] must possess special knowledge, that, as properly applied, would be helpful in the determination of the question of whether the defendant’s actions were in accordance with the standard of care applicable to attorneys under comparable circumstances.” (Emphasis added.) Id., 417. “[A]n expert must show more than a ‘casual familiarity’ with the standards of the specialty in question.” (Emphasis added.) Id., 416.

In the present case, despite his eleventh-hour attempt to characterize the issue before the court as a simple contract matter, the plaintiff explicitly recognized, in his disclosure of expert witnesses and in his examination of Scully, that the question before the court specifically involved the standard of care applicable in a matrimonial matter. Although it is clear that Scully had some experience handling family and matrimonial matters, the court concluded that that experience was not sufficient to satisfy the minimum quantum necessary to qualify him to render an expert opinion. We stress, however, that to qualify as an expert in particular matter, a witness in a legal malpractice case need not formally belong to, or regularly practice in, any particular branch of practice. The relevant inquiry does not concern the superficial label that may be attached to the witness’ practice, but rather, whether the proposed expert knows what the applicable standard of care is and can evaluate the defendant’s conduct against that standard. See Fitzmaurice v. Flynn, 167 Conn. 609, 617-18, 356 A.2d 887 (1975). It is the relevant knowledge that the witness possesses, not the source of that knowledge, that determines eligibility to provide expert testimony. Davis v. Margolis, supra, 215 Conn. 417; see also Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 189, 646 A.2d 195 (1994) (expert’s testimony to be evaluated in terms of helpfulness to trier of fact on specific issues of standard of care, breach of that standard). On the basis of the evidence presented, the court properly could have concluded that notwithstanding his alleged expertise in contract law, Scully’s sparse academic and practical experience in the area of family law did not establish any more than casual familiarity with the relevant professional standard of care.

We conclude that the court did not abuse its discretion in ruling that the plaintiffs proffered witness was not qualified to provide expert testimony on the applicable standard of care.

II

We next address the plaintiffs claim that the evidence was sufficient for submission to the jury even in the absence of the expert testimony. We disagree.

“The standards for reviewing a challenge to a directed verdict are well known. Generally, litigants have a constitutional right to have factual issues resolved by the jury. . . . Directed verdicts [therefore] are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion. . . . We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. . . . A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Citations omitted; internal quotation marks omitted.) Vona v. Lerner, 72 Conn. App. 179, 186-87, 804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003).

Generally, for a plaintiff to prevail in a legal malpractice action, expert testimony is necessaiy to establish the standard of proper professional skill or care. Davis v. Margolis, supra, 215 Conn. 416; Vona v. Lerner, supra, 72 Conn. App. 188; Pearl v. Nelson, 13 Conn. App. 170, 173, 534 A.2d 1257 (1988). “The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury ... to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard.” Davis v. Margolis, supra, 416.

In the present case, the plaintiff unsuccessfully attempted to qualify Scully as an expert for the purpose of providing an opinion as to the proper standard of care. In light of the court’s unfavorable ruling on Scully’s qualifications, the plaintiff chose not to call a second anticipated expert witness whom the plaintiff conceded would not be able to meet the court’s test for expertise. As a result, the plaintiff offered no expert testimony regarding the proper standard of care applicable to an attorney conducting a renegotiation of a divorce property settlement. We conclude that in the absence of expert testimony as to the proper standard of care, the court properly directed a verdict for the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The actual question before the court in Davis involved a claim that the trial court improperly had refused to allow the plaintiff to present the proffered expert’s practical experience. The court did not, therefore, reach the merits of whether the attorney witness in question was actually qualified to testily as an expert witness. Davis v. Margolis, supra, 215 Conn. 417-18.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    NANCY BURTON v. STATEWIDE GRIEVANCE COMMITTEE
    (AC 23132)
    Dranginis, Bishop and Dupont, Js.
    Argued May 6
    officially released September 9, 2003

      Nancy Burton, pro se, the appellant (plaintiff).

      Michael P. Bowler, assistant bar counsel, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Nancy Burton, appeals from the judgment of the trial court dismissing her appeal from the reprimand issued to her by the defendant, the statewide grievance committee (committee). The committee had affirmed the decision of its reviewing committee, reprimanding the plaintiff for a violation of rule 8.2 (a) of the Rules of Professional Conduct.

The plaintiff claims that the court improperly concluded (1) that the record supported the factual findings of the committee by clear and convincing proof, and (2) that the statements she made that were found to be in violation of the Rules of Professional Conduct were not protected by the first amendment to the United States constitution.

Our examination of the record and briefs and our consideration of the arguments of the parties persuades us that the judgment should be affirmed. The issues were resolved properly in the court’s complete and well reasoned memorandum of decision. See Burton v. Statewide Grievance Committee, 48 Conn. Sup. 94, 830 A.2d 1205 (2002). Because that memorandum of decision fully addressed the arguments raised in this appeal, we adopt it as the proper statement of the issues and the applicable law concerning those issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Smith v. Trinity United Methodist Church of Springfield, Massachusetts, 263 Conn. 135, 136, 819 A.2d 225 (2003), citing Davis v. Freedom of Information Commission, 259 Conn. 45, 55-56, 787 A.2d 530 (2002).

The judgment is affirmed.

       Rule 8.2 (a) of the Rules of Professional Conduct provides: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.”

       The plaintiff also claimed that there was a due process violation in the grievance proceedings, which flowed from a due process violation that was found in Burton v. Statewide Grievance Committee, 60 Conn. App. 698, 760 A.2d 1027 (2000). The plaintiffs brief contains insufficient legal analysis and authority for that claim. Accordingly, we will not afford it review. See State v. Davila, 75 Conn. App. 432, 441 n.6, 816 A.2d 673, cert. denied, 264 Conn. 909, 826 A.2d 180 (2003).


text:
    CHRISTOPHER DUNN ET AL. v. PETER L. LEEPSON, P.C.
    (AC 23106)
    Lavery, C. J., and Bishop and McLachlan, Js.
    Argued June 10
    officially released September 9, 2003

      Christopher M. Dunn, pro se, and Nga N. Dunn, pro se, the appellants (plaintiffs).

      Paul E. Pollock, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiffs, Christopher M. Dunn and Nga N. Dunn, appeal from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant, Peter L. Leepson, P.C., on four counts of their five count complaint, and on the defendant’s counterclaim, stemming from the defendant’s representation of the plaintiffs in a real estate transaction. On appeal, the plaintiffs claim that the court improperly (1) construed the retainer agreement entered into by the parties, (2) found for the defendant on their legal malpractice and negligence claims, (3) awarded $4000 to the defendant as the fair value of its legal services, (4) failed to award them punitive damages and (5) failed to award them counsel fees pursuant to General Statutes § 52-251a. We affirm the judgment of the trial court.

The dispute between the pro se plaintiffs and their former attorney arose out of the defendant’s representation of the plaintiffs in what the court described as a “massive” real estate transaction. On December 4,2000, Christopher Dunn and Peter L. Leepson, the principal of the defendant law firm, had a conversation concerning Leepson’s representation of the plaintiff in connection with the purchase of residential real property and a related tax free exchange. Leepson testified that the fee for the transaction would be $1500 plus expenses and, if the transaction became complicated, requiring additional time, there would be additional fees. The plaintiffs claimed that the conversation called for a flat fee of $1500. The retainer letter, which Leepson sent to Christopher Dunn on December 7, 2000, called for a fee of $1500 plus $175 per hour for every hour he worked on the matter in excess of twenty hours. The real estate transaction became very complicated. The plaintiff discharged the defendant before the closing occurred when the defendant held in escrow $8319.71, which had been returned during the negotiations to the defendant by the seller’s attorney.

The plaintiffs commenced the present action in the small claims session of the Superior Court, which subsequently was transferred to the regular docket of the Superior Court on July 9, 2001. The plaintiffs’ amended complaint alleged breach of contract, breach of fiduciary duty, breach of the covenant of good faith and fair dealing, legal malpractice and negligence, and sought damages, attorney’s fees and punitive damages. The defendant filed a counterclaim alleging breach of contract. The court ruled in favor of the plaintiffs on the count alleging breach of fiduciary duty and for the defendant on the remaining counts and on its counterclaim, awarding damages to the defendant in the amount of $4000 as the reasonable value of the fees owed to the defendant by the plaintiffs. The court also ordered the defendant to return to the plaintiffs the $8319.71 held in escrow less the $4000 in fees owed. The court denied attorney’s fees and punitive damages to the plaintiffs. This appeal followed.

I

The plaintiffs’ first claim is that the court improperly found that the retainer agreement between the parties was for other than a flat fee of $1500. We disagree.

The standard of review to be applied by this court is whether the finding of fact was clearly erroneous. See Hart v. Carruthers, 77 Conn. App. 610, 612-13, 823 A.2d 1284 (2003). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Id., 615. Our review of the record indicates that there was ample evidence to support the finding of the court that the retainer agreement was not limited to a flat fee.

II

The plaintiffs next assert that the court, as a matter of law, improperly found in favor of the defendant on their legal malpractice and negligence claims due to their failure to offer expert testimony as to the standard of care applicable to Leepson’s conduct or that any alleged failure by Leepson was the proximate cause of any damages they suffered. We disagree.

“As a general rule, for a plaintiff to prevail in a legal malpractice case in Connecticut, he must present expert testimony to establish the standard of proper professional skill or care.” (Internal quotation marks omitted.) Vona v. Lerner, 72 Conn. App. 179, 188, 804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003). Not only must the plaintiffs establish the standard of care, but they must also establish that the defendant’s conduct “ legally caused’ ” the injury of which they complain. Id., 189. The plaintiffs offered no expert evidence with respect to either element. Our courts do recognize that in certain cases, the legal malpractice is so clear that expert testimony is not required. See Paul v. Gordon, 58 Conn. App. 724, 727, 754 A.2d 851 (2000). Here, however, the court found that this was not such a case because the real estate transaction at issue was “massive.”

The plaintiffs argue that the court’s finding in their favor on their claim of breach of fiduciary duty constituted sufficient proof of the defendant’s legal malpractice. In support of their claim, the plaintiffs cite numerous cases regarding an attorney’s obligation of loyalty to clients. None of those cases, however, holds that an attorney’s breach of an ethical duty creates a separate cause of action for malpractice. “The Rules of Professional Conduct caution those who seek to rely on their provisions. They provide a framework for the ethical practice of law. . . . Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. . . . Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.” (Internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 403, 766 A.2d 416 (2001).

We conclude, therefore, that the court did not improperly find for the defendant on the legal malpractice and negligence claims.

Ill

The plaintiff's next claim that the court improperly assessed and awarded $4000 to the defendant as the fair value of the defendant’s legal services. We disagree.

The court found that the plaintiffs would not have been able to purchase their residence but for the efforts of Leepson and that $4000 was a fair fee for those services. “[T]he trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 282, 823 A.2d 1172 (2003). Our courts have repeatedly held that the reasonableness of an award of attorney’s fees may be determined by the exercise of the trier’s own expert judgment. See Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 246, 440 A.2d 306 (1982). Here, there was ample evidence to support the court’s findings. Accordingly, we conclude the court did not act improperly in issuing its award.

IV

The plaintiffs’ fourth claim is that the court improperly failed to award them punitive damages. They argue that punitive damages may be awarded in an action for deceit, which they assert is the essence of the breach of fiduciary duty claim on which they prevailed. We disagree.

The plaintiffs cite no statutory authority for an award of punitive damages stemming from a breach of fiduciary duty action. We therefore must determine whether punitive damages were available to the plaintiffs in a common-law tort claim. “As a general matter, [pjunitive damages, applying the rule in this state as to torts, are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights.” (Internal quotation marks omitted.) Luciani v. Stop & Shop Cos., 15 Conn. App. 407, 413, 544 A.2d 1238, cert. denied, 209 Conn. 809, 548 A.2d 437 (1988). “Whether the defendant acted recklessly is a question of fact subject to the clearly erroneous standard of review.” Franc v. Bethel Holding Co., 73 Conn. App. 114, 138, 807 A.2d 519, cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002). Here, the court specifically found that there was no evidence that the defendant’s conduct was reckless. That conclusion is supported by our review of the record, and, therefore, is not clearly erroneous.

V

The plaintiffs’ final claim is that the court improperly failed to award attorney’s fees in accordance with § 52-251a. We disagree.

Section 52-251aprovides: “Whenever the plaintiff prevails in a small claims matter which was transferred to the regular docket in the Superior Court on the motion of the defendant, the court may allow to the plaintiff his costs, together with reasonable attorney’s fees to be taxed by the court.” In this case, the plaintiffs did prevail on a portion of their claim, and the court did, in fact, award them costs. There is no evidence in the record that the plaintiffs incurred any attorney’s fees. Pro se litigants are not entitled to attorney’s fees. See Jones v. Ippoliti, 52 Conn. App. 199, 212, 727 A.2d 713 (1999).

The judgment is affirmed.

       There was no finding by the court of any violation of the Rules of Professional Conduct by the defendant.


author: SCHALLER, J.

text:
    GUY S. LAMACCHIA v. MAGDALENA CHILINSKY
    (AC 23610)
    Foti, Schaller and McLachlan, Js.
    Argued June 4
    officially released September 9, 2003

      Guy S. Lamacchia, pro se, the appellant (plaintiff).

      Carole D. Brown, for the appellee (defendant).
   Opinion

SCHALLER, J.

In this action for dissolution of marriage, the plaintiff, Guy S. Lamacchia, appeals from the judgment of the trial court, challenging the allocation of present and future guardian ad litem fees to be paid 80 percent by the plaintiff and 20 percent by the defendant, Magdalena Chilinsky. On appeal, the plaintiff claims that the court abused its discretion in ordering payment of present and future fees. We affirm in part and reverse in part the judgment of the trial court.

The following facts and procedural history are necessary to our resolution of the plaintiffs appeal. The parties were married on June 20, 1994. The parties had two children born of the marriage. On September 13, 2000, the plaintiff commenced a dissolution of marriage action. On December 3, 2001, the defendant filed a motion for the appointment of a guardian ad litem to represent the best interests of the parties’ two children during the proceedings. At the time that the motion was filed, the parties’ children were seven years of age and three years of age. The defendant also requested that the court consider the respective financial conditions of the parties in connection with ordering payment of the guardian ad litem’s fees. The court appointed a guardian ad litem on January 3, 2002, and stated that it would subsequently determine the payment of fees for the guardian ad litem’s services.

On July 23, 2002, the guardian ad litem submitted a motion for a determination of payment of reasonable fees in the amount of $7450.01. A hearing on the guardian ad litem fees was held on October 8, 2002, at which time the court heard testimony from both of the parties regarding their respective financial circumstances. At the conclusion of that hearing, the court found that the request for guardian ad litem’s fees in the amount of $7450.01 was reasonable. The court ordered the plaintiff to pay $5960.01 of those fees and ordered the defendant to pay the remaining $1490 of the fees. The court also ordered that any future fees for the guardian ad litem were to be paid in a ratio of 80 percent by the plaintiff and 20 percent by the defendant.

On October 11, 2002, the plaintiff filed a motion to reargue the order of the court with respect to the division of the payment responsibilities for the guardian ad litem’s fees. The court denied that motion on October 15, 2002. This appeal followed.

We begin by setting forth our standard of review. “The court may order either party to pay the fees for [a] guardian ad litem pursuant to General Statutes § 46b-62, and how such expenses will be paid is within the court’s discretion.”Ruggiero v. Ruggiero, 76 Conn. App. 338, 347-48, 819 A.2d 864 (2003). “An abuse of discretion in granting [guardian ad litem] fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did.” (Internal quotation marks omitted.) Sachs v. Sachs, 60 Conn. App. 337, 347-48, 759 A.2d 510 (2000). “An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding on this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Prial v. Prial, 67 Conn. App. 7, 9-10, 787 A.2d 50 (2001). Therefore, “to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Internal quotation marks omitted.) Clark v. Clark, 66 Conn. App. 657, 668, 785 A.2d 1162, cert. denied, 259 Conn. 901, 789 A.2d 990 (2001).

The statutory authority for the award of fees for a court-appointed guardian ad litem is found in § 46b-62. Ruggerio v. Ruggerio, supra, 76 Conn. App. 347-48. Section 46b-62 provides in relevant part: “If, in any proceeding under this chapter and said sections, the court appoints an attorney for a minor child, the court may order the father, mother or an intervening party, individually or in any combination, to pay the reasonable fees of the attorney . . . .”

“The order for payment of [guardian ad litem] fees ■under General Statutes § 46b-62 requires consideration of the financial resources ofboth parties and the criteria set forth in General Statutes § 46b-82.” Merritt v. Merritt, 2 Conn. App. 425, 428, 479 A.2d 255 (1984). Section 46b-82 instructs the court to consider, inter alia, “the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . .” “Although the trial court is not required to find expressly on each of the § 46b-82 factors, it must have sufficient evidence to support each factor.” Clement v. Clement, 34 Conn. App. 641, 650, 643 A.2d 874 (1994).

In the present case, the court had ample evidence before it to support its order dividing the payment of the currently outstanding guardian ad litem fees between the plaintiff and the defendant in the proportion that it did. Accordingly, we conclude that the court did not abuse its discretion in ordering the plaintiff to pay $5960.01 and the defendant to pay $1490 of the outstanding counsel fees for the guardian ad litem.

The court had before it the following information relevant to the division of fees for the guardian ad litem. The defendant suffered a partial disability for which she received social security income. The plaintiff had a full-time job and, in addition, maintained and operated a for-profit recording studio in his home. For the tax years 2000 and 2001, the plaintiff claimed income of $49,832 and $56,451, respectively. In 2002, the plaintiff also began receiving social security disbursements in the amount of $286 for each of the two children, those disbursements deriving from the defendant’s disability. The plaintiff stated, however, that he received those payments somewhat sporadically. The plaintiff also paid alimony of $571 per month to the defendant. The plaintiff stated that he did not have any mortgage payments for which he was responsible.

At the time of the hearing, the defendant was not employed and had not been employed for the preceding four years. The defendant stated at the hearing that she received social security disability payments in the amount of $1089 per month. The defendant also stated that she received alimony payments of $571 per month. On the basis of the foregoing facts, we cannot conclude that the court abused its discretion in allocating the payment of the outstanding counsel fees between the parties as it did.

The situation is different, however, with respect to the court’s treatment of the parties’ responsibilities for future guardian ad litem fees. To provide a meaningful basis on which to assign responsibility for the payment of guardian ad litem fees, consideration of the financial situation of the parties and the statutory criteria should be made at the time that fees are sought. See General Statutes §§ 46b-62 and 46b-82; Clement v. Clement, supra, 34 Conn. App. 650; Merritt v. Merritt, supra, 2 Conn. App. 428. The record is devoid of any evidence sufficient to support an anticipatory allocation of future fees. In the present case, both the amount, if any, of future guardian ad litem fees and the respective financial capacities of the parties to pay such fees are purely speculative. Further, there is nothing in the record to guarantee that when any such guardian ad litem fees are sought, the respective financial situations of the parties will have remained unchanged. The defendant testified that she was interested in finding employment and that she was currently attempting to secure such employment. That circumstance would have to be considered by the court in the event that additional fees are incurred by the guardian ad litem.

The judgment is reversed only as to the order for the allocation of payment of future guardian ad litem fees and the case is remanded with direction to render judgment as on file except as modified to delete that order.

In this opinion the other judges concurred.

       “The appointment of a guardian ad litem is neither required nor specifically authorized in chapter 815j of the General Statutes, which governs [dissolution of marriage actions]. See generally General Statutes §§ 46b-40 through 46b-87a. The appointment of a guardian ad litem is authorized, however, pursuant to General Statutes § 45a-132 (a), which provides that the court may appoint a guardian ad litem for a minor or incompetent ‘[i]n any proceeding before a court of probate or the Superior Court including the Family Support Magistrate Division . . . The appointment of a guardian ad litem lies within the discretion of the trial court. General Statutes § 45a-132 (b).” Schult v. Schult, 241 Conn. 767, 778-79, 699 A.2d 134 (1997).

       The plaintiff, by way of this appeal, challenges only the allocation of payment of the guardian ad litem’s fees, not the reasonableness of those fees. We confine our analysis accordingly.

       We note that although General Statutes § 46b-62 addresses only the issue of attorney’s fees, we previously have recognized that the same criteria properly informs the court’s exercise of discretion regarding fees for a guardian ad litem appointed for a minor child in a dissolution of marriage action or in an action seeking a modification of custody and visitation. See
        Ruggiero v. Ruggiero, supra, 76 Conn. App. 347-48; Roach v. Roach, 20 Conn. App. 500, 568 A.2d 1037 (1990).


author: DRANGINIS, J.

text:
    DEIDRE ANN KINIRY v. ANTHONY J. KINIRY
    (AC 21175)
    Dranginis, Bishop and Peters, Js.
    Argued March 27
    officially released September 16, 2003

      Wesley W. Horton, with whom were Kenneth J. Bartschi and, on the brief, Gary I. Cohen, for the appellant (defendant).

      Mary Ellen Wynn, for the appellee (plaintiff).
   Opinion

DRANGINIS, J.

The defendant, Anthony J. Kiniry, filed a motion for reconsideration or reconsideration en banc of Kiniry v. Kiniry, 71 Conn. App. 614, 803 A.2d 352 (2002), which affirmed the judgment of the trial court in this marital dissolution action. We granted the defendant’s motion as to reconsideration and sua sponte ordered the parties to appear for oral argument. In his motion for reconsideration, the defendant claims that the record did not substantiate this court’s conclusion that the trial “court specifically noted . . . that the defendant had significant borrowing power . . . .” Id., 620. We agree with the defendant that the trial court made no specific finding that he had significant borrowing power. On further review and after hearing the parties at oral argument, however, we affirm the judgment of this court, as we conclude that there was ample evidence from which the trial court could infer, and imply in its memorandum of decision, that the defendant had significant borrowing power. Borrowing money was, in fact, the manner in which the defendant had managed his family finances prior to the dissolution of the parties’ marriage.

Our conclusion that this court could have inferred from the implications in the trial court’s memorandum of decision that the defendant has significant borrowing power is substantiated by the recitation of the facts in his brief to this court. The defendant as much as admitted that he had supported his family from bonus to bonus by borrowing money and that he had borrowed significant sums of money to sustain the type of lifestyle to which he and his family aspired. The defendant also acknowledged that he had earned significant sums of money. In the section of his brief dedicated to a statement of the facts, the defendant cited the trial court’s memorandum of decision in support of his recitation of the facts in compliance with Practice Book § 67-4 (c). Notably, on appeal, the defendant did not claim that the trial court’s findings of fact were clearly erroneous or that there was insufficient evidence to support its findings of fact. To the contrary, the claims raised by the defendant on appeal are legal claims to which the abuse of discretion standard applies. See Kiniry v. Kiniry, supra, 71 Conn. App. 615, 619.

In his motion for reconsideration, the defendant has focused on one sentence in this court’s opinion, which he has taken wholly out of context. The statement on which the defendant relies was not part of this court’s recitation of the trial court’s findings of fact. This court set forth the following relevant facts as found by the trial court: “From the very beginning of the marriage, the parties adopted an affluent style of living, regularly spending more than the substantial amount of money that they earned. They financed this lifestyle by short-term borrowing and running up credit card debt, which they later paid down after receiving the defendant’s year-end bonus at the start of the following year.” Id., 616.

This court then turned to the first of the defendant’s appellate claims, that is, “that the court improperly ordered him to pay alimony and child support out of an asset that it had awarded to him as part of its equitable distribution of the marital property.” Id., 618. This court addressed the defendant’s claim in two parts, the first of which is relevant to the defendant’s motion for reconsideration. The comí; stated that “[fjirst, [the defendant] claims that the [trial] court improperly ordered him to pay alimony and child support from his equitable share of the funds contained in the U.S. Trust savings account.” (Emphasis in original.) Id., 618. This court, however, agreed with the plaintiffs response to’the defendant’s claim, stating: “The plaintiff points out . . . that the [trial] court’s memorandum of decision does not require the defendant to pay the $40,000 unallocated order out of his share of the U.S. Trust account. . . . [The trial court’s] decision does not compel any particular solution for his cash flow problem.” (Internal quotation marks omitted.) Id., 618-19.

This court then addressed additional facts that were relevant to its analysis of the defendant’s claim that the trial court had ordered him to pay alimony and child support from his equitable share of the funds in the U.S. Trust account. This court stated that the defendant’s 2000 base salary, paid monthly, was not sufficient to meet the trial court’s monthly order of unallocated alimony and child support until he received his year-end bonus in February, 2001. The defendant claimed, in essence, that the trial court’s order required him to use his share of the U.S. Trust funds to pay the order.

This court concluded, after reviewing the trial court’s memorandum of decision, that it contained no such order. This court noted that the trial court was aware of the amount and the manner in which the defendant was compensated. This court continued its analysis to demonstrate that although the trial court had not ordered the defendant to use his U.S. Trust funds to pay the unallocated monthly order, that result was not de facto because the court understood that the defendant knew how to support, and in fact had supported, his family by borrowing money. The trial court told the defendant what to do, not how to do it. The defendant had choices of which he surely must be aware, given his history of employment on Wall Street and with international banks.

Strictly speaking, with respect to the defendant’s motion for reconsideration, we agree that the trial court in its memorandum of decision made no finding that the defendant had significant borrowing power. There were enough facts before the trial court, however, for it to draw that inference. See footnote 5.

“Ordinarily it is not the function of . . . the Appellate Court to make factual findings, but rather to decide whether the decision of the trial court was clearly erroneous in light of the evidence and pleadings in the whole record. . . . Conclusions of fact may be drawn on appeal only where the subordinate facts found [by the trial court] make such a conclusion inevitable as a matter of law ... or where the undisputed facts or uncontroverted evidence and testimony in the record make the factual conclusion so obvious as to be inherent in the trial court’s decision.” (Citations omitted; internal quotation marks omitted.) State v. Reagan, 209 Conn. 1, 8-9, 546 A.2d 839 (1988).

In its memorandum of decision, the trial court also set forth facts in such a way that it implied that the defendant had significant borrowing power. A person with only a general knowledge of what it takes to borrow money certainly could infer from the trial court’s memorandum of decision that the defendant had significant borrowing power. Perhaps this court should have chosen other words, but the distinction between “specifically noted” and “implied,” in this case, is a distinction without a difference. On the basis of the defendant’s motion for reconsideration and the oral arguments of the parties, we conclude that there is no reason to modify this court’s decision in Kiniry v. Kiniry, 71 Conn. App. 614.

The judgment is affirmed.

In this opinion the other judges concurred.

       Two members of the panel that first decided this appeal, Associate Judge E. Eugene Spear and Hon. John J. Daly, judge trial referee, died since that panel rendered its decision. The case, therefore, was assigned to the present panel.

       The parties were not asked to submit supplemental briefs.

       In his brief to this court, the defendant stated: “Neither party brought more than nominal financial assets to the marriage. Their affluent standard of living was financed by borrowings and credit from one bonus to the next. They regularly spent more during the year than they earned and then reduced their debt with the defendant’s bonus. [The parties] lived in New Jersey during the early part of their marriage and moved to New Canaan, Connecticut, in 1987. Their first New Canaan home was purchased for $1,750,000 with substantial mortgage financing.”

       The defendant set forth the following additional facts in his brief: “[The] [defendant's earnings, a combination of base salary and bonus, have been substantial, although not consistent. [The] [defendant earned $1 million in 1992 and also in 1993, but only $445,000 in 1994. Between 1995 and 2000, he earned variously from $700,000 to as much as $1.5 million.”

       “[T]he record reveals that the [trial] court was cognizant of how and when the defendant was to receive his earnings.” Kiniry v. Kiniry, supra, 71 Conn. App. 620.
      We note that the transcript of the October 2, 2000 hearing, which was before this court in Kiniry v. Kiniry, 71 Conn. App. 614, reveals the following colloquy between the trial court and the defendant’s counsel:
      “The Court: All right. Next question. There are other possibilities for ways that he could make those payments, are there not?
      “[The Defendant’s Counsel]: There is no way that he can make it out of any kind of income, Your Honor. He must liquidate assets.
      “The Court: No, that’s not true. Let me ask you this: Could the defendant borrow money to make these payments?
      “[The Defendant’s Counsel]: There has been no record, Your Honor, to establish the defendant’s borrowing power, particularly in light of the court’s memorandum that strips him of almost all of the assets and leaves him with liabilities in the sum of about a quarter of a million doEars.
      “The Court: He certainly could make application to borrow money to do that, could he not?
      “[The Defendant’s Counsel]: I suppose he could, Your Honor. Although just like [Lake v. Lake, 49 Conn. App. 89, 712 A.2d 989, cert. denied, 246 Conn. 902, 719 A.2d 1166 (1998), which] made an assumption about the availabiKty of life insurance, the AppeEate Court has held that in the absence of a record estabEshing the insurabiKty of the proposed insured and the premiums for the poEcy, the court did not have the authority, if you wiE, to make such an order.
      “The Court: Well, the court does because the court, wouldn’t you think, based on his earnings record, the court has information based on his earnings record and his financial affidavit. That would lead the court to the conclusion that he has some borrowing power.” (Emphasis added.)


text:
    FEDERAL DEPOSIT INSURANCE CORPORATION v. JOSEPH M. CALDRELLO ET AL.
    (AC 23091)
    Foti, Schaller and West, Js.

      Argued May 7
    officially released September 16, 2003

      Richard D. Haviland, for the appellants (named defendant et al.).

      William E. Murray, with whom, on the brief, was Donald E. Frechette, for the appellee (substitute plaintiff).
   Opinion

WEST, J.

The defendants Joseph M. Caldrello and Sandra V. Caldrello appeal from the judgment of the trial court ordering that excess tax sale proceeds from the sale of certain of their real property be paid to the substitute plaintiff, Republic Credit Corporation I (Republic). On appeal, the defendants claim that the court improperly determined that (1) there was no basis for a stay of execution pending a final judgment in a related foreclosure action, (2) they had not filed an application for the excess tax sale proceeds pursuant to General Statutes § 12-157 and (3) they had the burden of establishing that Republic was not a holder in due course. We affirm the judgment of the trial court.

The court found the following facts. The subject properties were sold at a tax sale on June 30,1998, pursuant to § 12-157. The tax sale resulted from the alleged failure by the defendants to pay taxes on the properties. The Federal Deposit Insurance Corporation (FDIC), Republic’s predecessor in interest, was the successful bidder at the tax sale and purchased the properties for $590,000. The amount paid by the FDIC exceeded the amount of all delinquent taxes, interest, penalties, fees and costs by a sum of $366,658.37. The properties were not redeemed pursuant to § 12-157 (f).

On October 25,1999, the FDIC commenced an action seeking the return of the tax sale overage pursuant to § 12-157 (i) (2). The defendants filed an amended answer, including four special defenses and a counterclaim, on April 19, 2000. On October 29, 2001, Republic, as the substitute plaintiff, filed a motion seeking an order of payment of the excess tax sale proceeds or, in the alternative, a hearing on the matter. Republic’s motion also requested that any existing stay of execution be lifted. The defendants objected to Republic’s motion on November 13, 2001. The court held a hearing on the application on January 30,2002. The court issued a memorandum of decision granting Republic’s motion for the payment of the excess tax sale proceeds on May 3, 2002. Additional facts will be set forth as necessary.

I

We first address the defendants’ claim that the court improperly determined that there was no basis for a stay of execution pending a final judgment in a related foreclosure action. In support of their claim, the defendants assert that a stay was in place at the time of the hearing pursuant to an agreement of the parties, made off the record, approximately two and one-half years earlier.

The following additional facts are necessary for our resolution of the defendants’ claim. The defendants executed a mortgage and note to First Constitution Bank (First Constitution) on November 22, 1988, in the amount of $2.2 million. First Constitution commenced an action to foreclose the mortgage due to nonpayment by the defendants in August, 1989. First Constitution was declared insolvent on October 2,1992, and the FDIC was appointed as receiver. The FDIC was awarded a judgment of strict foreclosure against the defendants on October 7,1999. Federal Deposit Ins. Corp. v. Caldrello, Superior Court, judicial district of New London, Docket No. 511581 (October 7, 1999). This court affirmed the foreclosure judgment on January 25, 2002. Federal Deposit Ins. Corp. v. Caldrello, 68 Conn. App. 68, 789 A.2d 1005, cert. denied, 260 Conn. 903, 793 A.2d 1088, cert. denied, 537 U.S. 824, 123 S. Ct. 111, 154 L. Ed. 2d 35 (2002).

The trial court in this matter found that the defendants remained indebted to Republic on the mortgage note in an amount exceeding the excess amount of the tax sale proceeds. At the hearing on the Republic’s motion for the proceeds, on January 30,2002, the defendants argued that (1) there was a stay of disbursement of the proceeds from the sale of the property, and (2) that the stay should not be lifted because they intended to seek certification to appeal to our Supreme Court from the judgment of strict foreclosure and, therefore, the judgment was not yet final. On March 14, 2002, the Supreme Court denied their petition for certification to appeal before the trial court issued its memorandum of decision in this matter. See Federal Deposit Ins. Corp. v. Caldrello, 260 Conn. 903, 793 A.2d 1088, cert. denied, 537 U.S. 824, 123 S. Ct. 111, 154 L. Ed. 2d 35 (2002). In the defendants’ brief to this court, they allege, for the first time, that the trial court improperly lifted the stay because it did not consider that the time period in which to file an appeal to the United States Supreme Court had not yet expired. The defendants filed a petition for a writ of certiorari with the United States Supreme Court, which, subsequent to the filing of their brief in this matter, was denied. See Caldrello v. Federal Deposit Ins. Corp., 537 U.S. 824, 123 S. Ct. 111, 154 L. Ed. 2d 35 (2002).

At the hearing regarding the excess tax sale proceeds, the trial court found nothing in the file indicating that the defendants had ever filed a motion for a stay or that the court had granted a stay. The sole evidence presented to support the existence of a stay was the representations made at the hearing by the defendants. Although the defendants claimed that the prior plaintiff, FDIC, had agreed to a stay, Republic submitted an affidavit by FDIC’s attorney denying that any such agreement had been made. To bolster their claim that the parties had agreed to a stay, the defendants referred to the forbearance of Republic and the FDIC in demanding that they be paid the overage. Republic responded that it merely had been relying on, without confirming, the defendants’ representations that FDIC had in fact agreed to such a stay. As the proceedings continued, however, and one action begat another, Republic’s patience drew to a close, and it did contact prior counsel to confirm the agreement to a stay. The FDIC’s prior counsel informed Republic that she had not agreed to any stay.

Notwithstanding the dispute over the existence of a stay, the court noted that the representations of the parties indicated that some type of informal stay had been agreed on at an earlier status conference. The court indicated, however, that it believed that such stay was only to be effective during the pendency of the trial action itself. The court further concluded that because there no longer was an appeal pending in the foreclosure action and the judgment of strict foreclosure was final, there was no basis for a stay and any stay that may have been granted in the past was lifted.

During oral argument before this court, Republic argued that the defendants’ claim is moot on the basis of the United States Supreme Court’s having denied their petition for a writ of certiorari to appeal. Republic argues that as a consequence of that denial, any stay that may have been in place terminated once there no longer was an appeal pending.

“Our standard of review regarding mootness is well settled. Mootness implicates the court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction .... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Schiavone v. Snyder, 73 Conn. App. 712, 716, 812 A.2d 26 (2002).

“Mootness presents a circumstance wherein the issue before the court has been resolved or had lost its significance because of a change in the condition of affairs between the parties. . . . Since mootness implicates subject matter jurisdiction ... it can be raised at any stage of the proceedings. ... A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists. . . . An issue is moot when the court can no longer grant any practical relief. . . . Whenever a claim of lack of jurisdiction is brought to the court’s attention, it must be resolved before the court can proceed. . . . The test for determining mootness of an appeal is whether there is any practical relief this court can grant the appellant. . . . [I]t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... If no practical relief can be afforded to the parties, the appeal must be dismissed.” (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 71 Conn. App. 43, 46, 800 A.2d 641 (2002).

The defendants have predicated their claim that the court improperly determined that there was no basis for finding that the foreclosure action was stayed on the procedural posture of the case, specifically the outstanding option to take an appeal from the judgment of foreclosure. At the time of the hearing before the trial court, that argument was directed toward the possibility of appealing to our Supreme Court from the foreclosure judgment. Before this court, the defendants premised their argument on the then pending petition for a writ of certiorari to appeal to the United States Supreme Court. They argued, on those respective bases, that there was no final judgment in the underlying action. The defendants further argued that they potentially stood to obtain a significant judgment against the FDIC if their appeal to the United States Supreme Court was granted.

Because both the United States Supreme Court and, previously, our Supreme Court have denied the defendants petitions to appeal, the defendants’ claim is now moot. The crux of the defendants’ argument to this court rested on the theory that a successful appeal would reverse the judgment of strict foreclosure. With the denials of their petitions to appeal, that outcome no longer is a possibility. With the denial of the petition for a writ of certiorari by the United States Supreme Court, the foreclosure judgment became final and, as there are no other appeals pending, the defendants’ arguments to this court no longer provide any support for their claim. Accordingly, there is no practical relief that this court can provide to the defendants, and, as such, the issue is moot.

II

We now address the defendants’ claim that the court improperly found that they did not file a timely application for the excess tax sale proceeds pursuant to § 12-157. In support of that claim, the defendants argue that § 12-157 requires only that they make a claim or application for the funds and that the statute does not set forth any specific form or manner in which an application must be filed. The defendants argue that the special defenses and counterclaim raised in their amended answer constitute an “application” under the statute. We agree with the court.

“To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous.” (Internal quotation marks omitted.) Leonard v. Commissioner of Revenue Services, 264 Conn. 286, 294, 823 A.2d 1184 (2003). General Statutes § 12-157 (i) (2) provides in relevant part that “the delinquent taxpayer, any mortgagee, hen-holder or other encumbrancer whose interest in such property is affected by the sale may, within ninety days of the date the tax collector paid the moneys to the court, file an application with the court for return of the proceeds. . . . Notice of such application shall be served in the same manner as to commence a civil action on all persons having an interest of record in such property on the date the collector’s deed is recorded. ...”

Although the defendants claim that the statute does not set forth any particular form or manner for such an application, that assertion is contrary to the language of the statute. Section 12-157 sets forth three requirements that must be satisfied by a party attempting to recover excess tax sale proceeds: (1) the party must file an application with the court, (2) the application must be filed within ninety days of the date the tax collector paid the moneys to the court and (3) the applicant must serve notice of the application in the same manner as to commence a civil action on all persons having an interest of record in such property.

The court in this case did not reach the issue of whether the special defenses and counterclaim constituted an “application” under the statute, nor did it need to do so. The court found that those pleadings were filed on April 19, 2000, almost nine months after the funds were deposited and far outside the ninety day deadline imposed by the statute. The court file contains the defendants’ answer, date stamped on April 19,2000. The defendants did not dispute that their answer was filed on that date. As such, the court’s finding that the defendants did not timely file an application under the statute was not clearly erroneous in light of the date that this so-called application was filed. That was as far as the court needed to go, and as far as this court will go, in resolving the claim.

III

The defendants’ final claim, asserts that Republic had the burden of proving that it was a holder in due course to be entitled to the tax sale overage pursuant to § 12-157 and that the court improperly shifted that burden to them. In support of their claim, the defendants assert that the holder of a note must prove that it is a holder in due course. They further claim that status as a holder in due course is an essential element of Republic’s claim to the proceeds and that Republic had the burden of proving each of the essential elements of its claim. We are not persuaded.

The defendants’ claim presents an issue of statutory construction with regard to whether status as a holder in due coruse is an “essential element” that must be proven by a party seeking to recover excess tax sale proceeds under § 12-157. “Our review of a court’s construction of a statute is plenary.” Friedman v. Meriden Orthopaedic Group, P.C., 77 Conn. App. 307, 314, 823 A.2d 364 (2003).

When interpreting a statute, “we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) State v. Courchesne, 262 Conn. 537, 577, 816 A.2d 562 (2003). “In performing this task, we begin with a searching examination of the language of the statute, because that is the most important factor to be considered.” Id.

General Statutes § 12-157 (i) (2) provides in relevant part that the delinquent taxpayer, any mortgagee, lienholder or other encumbrancer whose interest in such property is affected by the sale may, within ninety days of the date the tax collector paid the moneys to the court, file an application with the court for return of the proceeds. ...” (Emphasis added.)

Although our Supreme Court recently eschewed the plain meaning approach to statutory interpretation; State v. Courchesne, supra, 262 Conn. 537; “[t]his does not mean . . . that we will not, in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning that, when the language is considered without reference to any extratextual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning. In such a case, the more strongly the bare text supports such a meaning, the more persuasive the extratextual sources of meaning will have to be in order to yield a different meaning.” (Emphasis in original.) Id., 577-78. In this case, the plain meaning of the statutory language controls our decision because the defendants have not presented us with any extratextual support for any other interpretation of the words and we have found none.

Section 12-157 (i) (2) does not require that an applicant for the proceeds be a holder in due course. The statute explicitly states in a clear and concise list those persons who are eligible to file such an application. That list includes the delinquent taxpayer or any mortgagee, lienholder or other encumbrancer whose interest in the property is affected by the sale of the . property. Nowhere in § 12-157, in subsection (i) or otherwise, are the words “holder in due course” ever mentioned.

Republic, as the holder of the defendants’ mortgage, falls squarely into the group of eligible applicants authorized by the statute. No legislative history exists that indicates that a holder in due course requirement ever was intended or even entertained. We also have not found any case law, nor have the defendants brought any to our attention, that supports the defendants’ interpretation of the relevant statute. We therefore conclude, consistent with the outer boundaries of Courchesne, that the plain meaning of the statute governs because the language used “appears to be the meaning and . . . appears to preclude any other likely meaning”; (emphasis in original) id., 577; that would include a holder in due course requirement. Courchesne also requires that “[i]n such a case, the more strongly the bare text supports such a meaning, the more persuasive the extratextual sources of meaning will have to be in order to yield a different meaning.” Id., 577-78. In this case, in which we are asked to interpret clear language with no extratextual support for any other interpretation, we are satisfied with applying the plain meaning of the words. We conclude that an applicant’s status as a holder in due course is wholly unrelated to the ability to collect excess tax sale proceeds pursuant to § 12-157. We conclude that the court correctly determined that Republic had no burden to prove that it was a holder in due course.

The judgment is affirmed.

In this opinion the other judges concurred.

       Several subsequent encumbrancers were named as defendants in this action but are not involved in this appeal. We refer in this opinion to the Caldrellos as the defendants.

       The Federal Deposit Insurance Corporation (FDIC) was the original applicant for the excess tax sale proceeds. On July 18, 2000, Republic filed a motion to substitute itself as the applicant in place of the FDIC following the transfer of the Caldrellos’ note and mortgage from the FDIC to Republic. Republic’s motion was granted by the court on the same day.

       Republic denies that any such stay was ever agreed to, but nonetheless requested that any stay in effect be lifted.

       The defendants argue that if we find that the court improperly determined that there was no basis for a stay, then the court’s action in effectively lifting that stay was improper because there was not a final judgment in the related foreclosure action and, should their appeal in that action be successful, they could win a sizeable judgment against the FDIC. The defendants argue that without a stay, there may be no funds remaining to satisfy any such judgment against the FDIC. Because we conclude that the court properly determined that there was no basis in the record to support, a finding that a stay was in place, we do not reach that second issue.

       Although the defendants argue that the court improperly lifted the stay while their petition for a writ of certiorari was pending before the United States Supreme Court, they did not follow the proper procedures for requesting such a stay. Pursuant to Practice Book § 71-7, “[wjhen the state supreme court has denied a petition for certification from the appellate court, any stay in existence at the time of such denial shall remain in effect for twenty days. Any party to the action wishing to extend such stay of execution or to otherwise obtain a stay of execution pending a decision in the case by the United States Supreme Court shall file a motion for stay with the appellate court. . . .”
      Even if a stay of execution was in place at one time, the stay would have automatically expired twenty days following the denial of certification by our Supreme Court. Had the defendants wanted to extend the stay pending a decision by the United States Supreme Court, they were required to file a motion with this court pursuant to Practice Book § 71-7. Absent any such motion, the previous stay expired automatically on April 3, 2002.

       Even if the issue is not moot, we are precluded from addressing it on the merits because it was improperly raised on direct appeal. The defendants asserted at oral argument that the issue is not moot because although the United States Supreme Court denied their petition for a writ of certiorari, they have raised issues relating to this matter in federal court, claiming that all the state court actions should be overturned. Although it is not clear what the defendants’ federal claims are and whether they would affect this court’s finding of mootness, the absence of mootness would still not permit us to address their claim on direct appeal.
      “Pursuant to Practice Book § 61-14, [t]he sole remedy of any party desiring the court to review an order concerning a stay of execution shall be by motion for review under Section 66-6. . . . Issues regarding a stay of execution cannot be raised on direct appeal.” (Internal quotation marks omitted.) East Hartford Housing Authority v. Morales, 67 Conn. App. 139, 140, 786 A.2d 1134 (2001). Because the defendants did not file a motion for review, they are precluded from challenging the court’s stay order. See id., 140-41.
      The only avenue by which the defendants could have challenged the termination of the stay was through a motion for review. Because they did not comply with Practice Book § 61-14, and instead raised the issue on direct appeal, this court cannot review their claim.

       The court did, however, go one step further in its analysis and addressed ihe defendants’ claim for the proceeds on the merits. The court found that “[e]ven if the counterclaim were sufficient to constitute an application under General Statutes § 12-157, the [defendants] are not entitled to receive the excess sale proceeds .... The [defendants] have failed to show any reason why the are equitably entitled to return of the tax sale proceeds.” (Citation omitted; emphasis added.) Even if the finding by the court that no application had been made was improper, such error would be harmless because the court found that even with a proper application, the defendants were not entitled to the proceeds. We will not review the propriety of those findings on the merits, however, because they have not been challenged on appeal.

       The defendants claim that “the trial court erred in concluding that [Republic] was a holder in due course.” That is an inaccurate restatement of the court’s decision. The court did not make a finding that Republic was a holder in due course. In fact, the court did not make any findings with regard to that issue because it determined that “[t]his claim has not been pleaded or briefed. Furthermore, the [defendants] have not offered any evidence in support of this claim. For these reasons, the court will not consider this claim.”

       The legislature recently adopted Public Acts 2003, No. 03-154, § 1, reimplementing the plain meaning rule, which provides: “Section 1. (NEW) (Effective October 1, 2003) The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Emphasis in original.)

       We find it noteworthy that the legislature included the phrase “holder in due course” in the text of twenty-four sections of the General Statutes and excluded it from the text of § 12-157. See General Statutes §§ 1-281, 42-136, 42a-3-103, 42a-3-106, 42a-3-202, 42a-3-203, 42a-3-206, 42a-3-302, 42a-3-305, 42a-3-306, 42a-3-308, 42a-3-312, 42a-3-402, 42a-3-413, 42a-3-601, 42a-4-104, 42a-4-205, 42a-4-211, 42a-4-407, 42a-5-109, 42a-9-102, 42a-9-331, 42a-9-403, 52-572g.