author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. VALDIR M. LAGE
    (AC 32945)
    Beach, Espinosa and Dupont, Js.

      Argued November 14, 2012
    officially released March 26, 2013

      April E. Brodeur, assigned counsel, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Marjorie L. Sozanski, assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

DUPONT, J.

The defendant, Valdir M. Lage, appeals from the trial court’s judgment denying his motion to vacate the judgments and withdraw his guilty pleas, related to six distinct charges, which he entered at two separate proceedings. The present appeal is complicated by the fact that it represents the culmination of a series of charges and guilty pleas thereto, which resulted in a prison sentence and probation for each offense. The probation in each instance was violated by the defendant’s subsequent arrest, with each arrest providing the basis for another sentence of probation, as well as the new substantive crime. On appeal, the defendant claims that the court erred in denying his motion to vacate the judgments and withdraw his guilty pleas because (1) the court failed to comply with the requirements of General Statutes § 54-lj when it canvassed the defendant before accepting his plea of guilty to a violation of probation from a prior conviction of possession of narcotics and for the crime of burglary in the third degree, and (2) none of the defendant’s six pleas were entered knowingly, intelligently or voluntarily because the court’s canvass was improper and, therefore, violated his constitutional rights. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The defendant is a permanent resident of the United States. He came to the United States from Brazil and has been a lawful permanent resident since childhood, although he never acquired citizenship. On December 20, 2005, the defendant entered a guilty plea to possession of narcotics in violation of General Statutes § 2 la-279 (a). The court canvassed the defendant and, after accepting his plea as satisfactory, sentenced him to one year incarceration, execution suspended, and two years of probation.

On April 3, 2008, the defendant pleaded guilty to burglary in the third degree, as well as admitting the violation of his 2005 probation resulting from the burglary conviction (2008 proceeding). The court, Sequino, J., canvassed the defendant, asking if the pleas were entered voluntarily, if he had had an opportunity to discuss his pleas with his counsel and if he understood the possible immigration consequences of his pleas. After accepting the defendant’s answers as satisfactory, the court sentenced him to three years incarceration, execution suspended after nine months, and three years of probation.

Subsequently, on September 8, 2009, the defendant admitted violating his probation in relation to the 2008 burglary conviction and pleaded guilty to separate charges of criminal trespass in the first degree in violation of General Statutes § 53a-107, interfering with an officer/resisting arrest in violation of General Statutes § 53a-167a and criminal mischief in the third degree in violation of General Statutes § 53a-117 (2009 proceeding). The defendant intended to enter a plea of guilty to each of these charges, which might have resulted in a suspended sentence with a possibility of up to twenty-seven months of incarceration, predicated on his willingness to enter and complete a drug treatment program. He indicated to the court that he had discussed the plea fully with his attorney and was satisfied with the advice he had received.

During the canvass, however, it came to the court’s attention that the defendant was subject to a United States Bureau of Immigration and Customs Enforcement (immigration bureau) detainer based on his 2008 burglary conviction because he was not a United States citizen, and this detainer could preclude his participation in the treatment program. After .a sidebar with the defendant’s counsel, the court explained to the defendant that there was such a detainer, which might prohibit him from being released into the treatment program. The court told the defendant that if he were prohibited from entering the program, he would still have a chance to accept an alternate sentence of eighteen months incarceration without probation.

At that point, the court continued the canvass of the defendant, asking him specifically if he understood the possible immigration consequences of his plea and if he had gone over these with his attorney, to which the defendant answered in the affirmative. After the court was satisfied that the defendant’s pleas were being entered intelligently, knowingly and voluntarily, it continued the sentencing hearing until the defendant’s eligibility for the treatment program could be determined. At the subsequent sentencing hearing, the defendant’s counsel indicated that the immigration bureau intended to detain the defendant, and the court, therefore, rendered an eighteen month sentence without probation against him in lieu of a possible maximum twenty-seven month sentence predicated on completion of the treatment program. The defendant was detained by the immigration bureau following the proceeding. He subsequently moved the court to withdraw and vacate his pleas from the 2008 and 2009 proceedings. Additional facts will be set forth as necessary.

A hearing was held on December 20, 2010, on the defendant’s motion to vacate the judgments and withdraw his admissions and guilty pleas from the 2008 and 2009 proceedings on the basis of the court’s allegedly improper canvassing and failure to comply with § 54-lj. The court denied the defendant’s motion in its entirety, holding that the court substantially complied with the statutory requirements of § 54-lj, addressed the defendant personally, determined that he had spoken with his attorney and that he understood the possible immigration consequences of his pleas. This appeal followed.

I

The principal issue in this appeal is whether the court substantially complied with the requirements of § 54-lj when it accepted the defendant’s guilty pleas at the 2008 proceeding. The defendant claims that the court erred in denying his motion to vacate the judgments and withdraw his guilty pleas because the court did not comply substantially with the requirements of § 54-lj when it canvassed him regarding the possible immigration consequences of his pleas. We disagree.

We first set forth our standard of review. “[A guilty] plea, once accepted, may be withdrawn only with the permission of the court. . . . Section 54-lj (c) permits the defendant, not later than three years after the acceptance of his guilty plea, to move to withdraw his plea if he can show that the court failed to comply with the requirements of § 54-lj (a) [during the defendant’s plea canvass]. The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty. . . . Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused.” (Citation omitted; internal quotation marks omitted.) State v. Hall, 303 Conn. 527, 532-33, 35 A.3d 237 (2012).

The defendant claims that, although the court recited the language of § 54-lj when it canvassed him at the 2008 proceeding, it did not properly determine whether he understood the immigration consequences of his plea. Pursuant to State v. Malcolm, 257 Conn. 653, 662, 778 A.2d 134 (2001), however, “it [is] not necessary for the trial corut to read the statute verbatim . . . [and, instead] only substantial compliance with the statute is required to validate a defendant’s guilty plea.” Although the corut in this case actually recited the statute in its entirety, the defendant argues that the court failed to determine specifically whether he understood the possible immigration consequences of his guilty pleas, or if he had discussed these with his attorney.

In reference to the immigration consequences of the defendant’s pleas to burglary in the third degree and violation of probation, the transcript of the canvass of the defendant from the 2008 proceeding provides in relevant part:

“The Court: If you are not a citizen of the United States, this is a felony, it could result in deportation, removal, denial of admission, exclusion from readmission, or denial of naturalization. . . . Any questions about anything I’ve said?

“The Defendant: No, ma’am.
“The Court: Do you agree to all of that?
“The Defendant: Yes, ma’am.
“The Court: And you discussed it all with your attorney?
“The Defendant: Yes, ma’am.
“The Court: Do you need any more time to talk to him?
“The Defendant: No, ma’am.
“The Court: Did anyone force or threaten you to enter this plea?
“The Defendant: No, ma’am.
“The Court: Are you doing it voluntarily of your own free will?
“The Defendant: Yes, ma’am.
“The Court: Any questions for me about anything I’ve said or that’s happening?
“The Defendant: No, ma’am.
“The Court: Do you have anything you wish to say?
“The Defendant: No.
“The Court: Are you satisfied with your attorney’s representation?
“The Defendant: Yes.”

During the 2010 hearing on the defendant’s motion to withdraw his guilty pleas, the court found that, based on the previously mentioned questioning, the canvass was sufficient. The court noted that § 54-lj does not require that a defendant realize the likelihood of immigration consequences arising from a plea, but rather that he understands the possibility of them. We agree.

The defendant, moreover, claims that the language of § 54-lj requires that the warnings of the statute be delivered separately. He argues that by asking if he agreed with “all of that,” the court did not determine if his understanding included the possible immigration consequences of his pleas. The defendant, however, sets forth no legal authority requiring that such questions be asked separately, and we are aware of none. As our Supreme Court made clear in State v. Malcolm, supra, 257 Conn. 664, the substantial compliance test does not permit a withdrawal of a plea based on imperfect compliance. “[T]his court repeatedly has held that only substantial compliance is required when warning the defendant of the direct consequences of a guilty plea .... We will not require stricter compliance with regard to the collateral consequences of the guilty plea.” (Citations omitted; emphasis added.) Id., 662-63.

Furthermore, adequate plea canvasses do not háve a set formula, and there is no reason to believe, based on the defendant’s responses during the canvass at issue, that he did not understand the possible consequences of his pleas. A “trial court . . . may properly rely on . . . the responses of the [defendant] at the time he responded to the trial court’s plea canvass, in determining that he was adequately informed of the elements of the offense charged.” Bowers v. Warden, 19 Conn. App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). The court’s canvass of the defendant in the present case, therefore, was more than sufficient to determine, on the basis of his responses, that he understood the possible immigration consequences of his pleas, and to comport with the requirements of § 54-lj.

The defendant also maintains that the 2008 canvass was insufficient because the court failed to determine if he discussed the possible immigration consequences of his pleas with his attorney. He argues that in order to comply with the requirements of § 54-lj, the court must specifically address the defendant or his counsel regarding their discussion of these consequences, and that the question asked by the court in this case, “[a]nd you discussed it all with your attorney?” did not satisfy this requirement. His claim is without merit.

This court recently held in State v. James, 139 Conn. App. 308, 57 A.3d 366 (2012), that the language of § 54-lj is plain and unambiguous. The court reasoned that although the statute dictates that “[i]f the defendant has not discussed these possible consequences with the defendant’s attorney, the court shall permit the defendant to do so prior to accepting the defendant’s plea”; (emphasis added) id., 312; this language does not require the court to determine whether the defendant has actually discussed such possible consequences with his counsel. Id., 313. The court further explained that “the plain and unambiguous language of § 54-lj does not require the court to inquire specifically whether defense counsel has advised the defendant regarding the possible immigration consequences of entering a guilty plea. Section 54-lj requires only that the court address the defendant personally and determine that the defendant understands fully the possible immigration consequences that may result from the plea if the defendant is a noncitizen.” Id., 315.

The court’s canvass in the present case clearly satisfied this burden with regard to the requirement that the court permit the defendant to discuss the immigration consequences with his attorney. The court specifically asked whether the defendant needed more time to discuss anything with his attorney, and the defendant indicated that he had discussed all the plea consequences with him. Further, the court personally addressed the defendant’s counsel when it asked: “Counsel, anything further?” Counsel responded: “No, Your Honor.” The court was entitled to rely on this response, through which defense counsel assured the court that the defendant understood the possible consequences of his plea. See State v. Hall, supra, 303 Conn. 535. Because the court properly complied with the statutory requirements of § 54-lj when it canvassed the defendant at the 2008 proceeding, it did not abuse its discretion by determining that the canvass was satisfactory and denying the defendant’s motion to vacate the judgments and withdraw his guilty pleas.

II

The defendant further claims that his various pleas, entered in the 2008 and 2009 proceedings against him, were not entered knowingly, intelligently and voluntarily because the canvass conducted by the trial court in each instance was improper and violated his constitutional rights. The defendant maintains that although he did not raise this issue before the trial court, his claim is reviewable pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We are not persuaded.

We first set forth the standard of review. “It is a bedrock principle of appellate jurisprudence that, generally, claims of error not raised before the trial court will not be considered by a reviewing court. The principle is rooted in considerations of fairness as well as judicial economy. . . . Nonetheless, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Pacelli, 132 Conn. App. 408, 411-12, 31 A.3d 891 (2011).

The defendant’s claim, which is that the court violated his constitutional rights when it accepted his various guilty pleas, is premised on a litany of different theories, none of which is tenable in this case. The defendant argues that his pleas in both the 2008 and 2009 proceedings were not knowingly, intelligently and voluntarily made because the court (1) did not properly inform him of his right to a jury trial at the 2008 proceeding, (2) did not pause to allow him the opportunity to speak with his attorney after learning of the immigration bureau detainer during the 2009 proceeding and (3) violated Practice Book § 39-19 during the canvass in the 2009 proceeding.

A

The defendant maintains that he was not told of his right to a jury trial in the 2008 proceeding because the court only informed him of his right to “a trial” and did not specifically reference a jury trial, as required by Practice Book § 39-19 (5).

The record is adequate for Golding review because it contains a full transcript of the plea hearing, and the claim is of constitutional magnitude because an inadequate plea canvass implicates due process rights. See, e.g., State v. Fagan, 280 Conn. 69, 90, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). The defendant’s claim fails to satisfy the third Golding prong, however, because he has not established that a violation of his constitutional right to a jury trial clearly exists.

In order for a guilty plea to comport with due process, the plea must be voluntary and knowingly entered. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). “[W]e conduct a plenary review of the circumstances surrounding the plea to determine if it was knowing and voluntary.” (Internal quotation marks omitted.) State v. Burgos, 118 Conn. App. 465, 468, 984 A.2d 77 (2009).

There are three constitutional rights of which a defendant must be cognizant prior to entering a guilty plea. They are (1) the privilege against self-incrimination, (2) the right to a trial by jury and (3) the right to confront accusers. Boykin v. Alabama, supra, 395 U.S. 243-44. Although the purpose of Practice Book § 39-19 is to ensure that guilty pleas comport with due process, a guilty plea “may satisfy constitutional requirements even in the absence of literal compliance with [its] prophylactic safeguards .... In other words, substantial compliance is sufficient.” (Citation omitted; internal quotation marks omitted.) State v. Claudio, 123 Conn. App. 286, 292, 1 A.3d 1131 (2010).

The court’s explanation of the defendant’s waiver of his right to a trial substantially complied with Practice Book § 39-19 (5), even though the court did not specifically state that he had the right to a jury trial. “By expressly mentioning and describing the defendant’s right to a trial, and by confirming that the defendant had access to adequate representation, the court substantially complied with Practice Book § 39-19 (5).” Id., 293; see also State v. Badgett, 200 Conn. 412, 419-20, 512 A.2d 160 (concluding that defendant’s plea canvass, which described only his “ ‘right to trial’ ” without specifying jury trial, was constitutionally sufficient because trial court expressly mentioned waiver of right to trial and defendant had both prior experience with criminal proceedings and adequate representation), cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

In the present case, the court explained to the defendant that by pleading guilty, he was giving up “the right to have a trial with the assistance of your attorney, your right to confront and cross-examine witnesses against you, your privilege against self-incrimination, all your right or opportunity to have a trial or a hearing.” Moreover, the defendant affirmed that he had discussed his pleas with his attorney, did not need more time to speak with him and was satisfied with his counsel’s representation. We conclude, therefore, that the defendant’s knowledge of his right to a trial sufficiently advised him of his constitutional right to a jury trial, particularly because he was represented by an attorney. The defendant, thus, cannot satisfy the third prong of Golding. Accordingly, we reject this portion of the defendant’s second claim.

B

The defendant next repeats his claim that the court’s canvass during the 2009 proceeding was improper, not only because it violated § 54-lj, but also because the court did not pause, after learning of the immigration bureau detainer, to allow him to confer with his attorney about the possible immigration consequences of his plea. The defendant argues that because the court did not continue the proceeding so that he could discuss this information with his attorney, he was not properly canvassed concerning his right to a jury trial.

The defendant cannot prevail under Golding on his claim that his constitutional right to a jury trial was violated during the 2009 proceeding. The defendant has not met his burden to prove that his constitutional right was somehow violated when he was not afforded time to speak with his counsel following the sidebar discussion. It was not the duty of the court, but that of the defendant’s counsel, to request such a conference with the defendant. “Except for those inquiries which are constitutionally mandated or are required by our rules; [Practice Book §§ 39-19 through 39-21]; the court is not obliged to assume the role of the defendant’s counselor.” (Internal quotation marks omitted.) State v. Brown, 18 Conn. App. 716, 721, 559 A.2d 1179, cert. denied, 212 Conn. 811, 564 A.2d 1072 (1989). The defendant cites no authority, and we are aware of none, which requires that a court order a continuance sua sponte following a sidebar with counsel. “Our Supreme Court expressly has declined to impose on the trial courts the duty to order a continuance sua sponte.” Pasiakos v. BJ’s Wholesale Club, Inc., 93 Conn. App. 641, 645, 889 A.2d 916, cert. denied, 277 Conn. 929, 896 A.2d 101 (2006); see also State v. Gilnite, 202 Conn. 369, 383 n.17, 521 A.2d 547 (1987) (“[t]he failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense”).

Furthermore, even if such an opportunity for discussion with counsel had been constitutionally mandated, the record in this case does not support the assumption that such a conversation between the defendant and his counsel had not occurred. After the court discovered the possible existence of an immigration bureau detainer, the sentencing hearing was continued for two days to determine if the defendant was eligible to enter a treatment program, giving the defendant ample time to consult with his counsel. When the sentencing hearing resumed, the defendant’s counsel made no indication that the defendant wanted to withdraw his pleas. The defendant’s affirmative acceptance of the alternate eighteen month sentence was again confirmed by his counsel at that hearing, during which he told the court that the defendant was prepared to accept the eighteen month sentence. The canvass of the defendant during the 2009 proceeding, therefore, sufficiently advised him of his constitutional right to a jury trial, and the pleas were voluntarily entered. As the defendant has not satisfied the third prong of Golding, we accordingly reject this part of his second claim.

C

Finally, the defendant claims that the court improperly failed to make a finding as to the voluntariness of his pleas in the 2008 proceeding and violated Practice Book § 39-19 by failing to advise him of his right to counsel and his right against self-incrimination. These claims, however, are baldly asserted without adequate briefing. “Where an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived. . . . [C]laims on appeal that are inadequately briefed are deemed abandoned.” (Citation omitted; internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 281 n.30, 764 A.2d 1251 (2001). We decline, therefore, to consider these claims.

The court properly complied with § 54-lj when it canvassed the defendant with respect to the possible immigration consequences of his pleas during the 2008 proceeding, and properly - accepted the defendant’s pleas of guilty at the 2008 and 2009 proceedings because they were entered knowingly, intelligently and voluntarily. The court, therefore, was within its discretion in denying the defendant’s motion to vacate the judgments and withdraw his guilty pleas.

The judgment is affirmed.

In this opinion the other judges concurred.

       Between 2005 and the filing of the defendant’s 2010 motion to vacate the judgments and withdraw his guilty pleas, he was charged and subsequently convicted of: possession of narcotics in violation of General Statutes § 21a-279 (a); burglary in the third degree in violation of General Statutes § 53a-103; criminal trespass in violation of General Statutes § 53a-107; interfering with an officer in violation of General Statutes § 53a-167a; criminal mischief in the third degree in violation of General Statutes § 53a-117; and two separate violations of probation in violation of General Statutes § 53a-32. The defendant’s pleas with regard to each of these charges, except his guilty plea to possession of narcotics, are at issue on appeal.

       General Statutes § 54-lj provides in relevant part: “(a) The court shall not accept a plea of guilty . . . from any defendant in any criminal proceeding unless the court first addresses the defendant personally and determines that the defendant fully understands that if the defendant is not a citizen of the United States, conviction of the offense for which the defendant has been charged may have the consequences of deportation or removal from the United States, exclusion from readmission to the United States or denial of naturalization, pursuant to the laws of the United States. If the defendant has not discussed these possible consequences with the defendant’s attorney, the court shall permit the defendant to do so prior to accepting the defendant’s plea.
      “(b) The defendant shall not be required at the time of the plea to disclose the defendant’s legal status in the United States to the court.
      “(c) If the court fails to address the defendant personally and determine that the defendant fully understands the possible consequences of the defendant’s plea, as required in subsection (a) of this section, and the defendant not later than three years after the acceptance of the plea shows that the defendant’s plea and conviction may have one of the enumerated consequences, the court, on the defendant’s motion, shall vacate the judgment, and permit the defendant to withdraw the plea of guilty . . . and enter a plea of not guilty.”

       The Child Citizenship Act of 2000 provides in relevant part: “(a) A child bom outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled: (1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization. (2) The child is under the age of eighteen years [and] (3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence. ...” 8 U.S.C. § 1431 (a) (2012). This law became effective in 2001 but is not retroactive, and, therefore, does not confer citizenship on the defendant, who came to the United States in the 1980s as a child and was subsequently adopted by United States citizens.
      The defendant may have believed at one point that he was a United States citizen, as indicated by his answer to a question asked by the trial judge who accepted his plea of guilty to the possession of narcotics charge in 2005. We note that § 54-lj leaves open the question of whether the statute allows a defendant to withdraw a plea if he has reason to mistakenly believe that he is a citizen of the United States and that deportation or other consequences do not apply to him, particularly because § 54-lj (b) does not allow the court to review his “legal status” in the United States. No case has yet interpreted the statute in this regard, which is within the province of the legislature, and we need not interpret the statute for the purposes of this decision.

       The violation of probation charges arose from the defendant’s sentence on a former charge of possession of narcotics, to which he pleaded guilty in 2005, as well as his 2008 conviction of burglary in the third degree. The defendant’s motion to vacate his guilty plea, however, did not reference the substantive 2005 conviction of possession of narcotics but, rather, included only his admission to a violation of probation stemming from that conviction.

       The defendant is not presently in custody of the immigration bureau. Further, in addition to the present appeal, he had also filed a habeas petition in 2010, which is currently pending and scheduled for trial in May, 2013.

       The state argues that the defendant’s 2008 conviction of burglary in the third degree is beyond the scope of this appeal. Although the defendant did not file a timely appeal, this court granted his motion for permission to file a late appeal and granted his motion to amend that appeal to include the convictions springing from his plea of guilty to burglary in the third degree. The state claims that this court’s order did not include both the conviction of the substantive offense and the finding of violation of probation. We disagree and, therefore, review the defendant’s claims of error.

       Although the defendant also claims that he was not properly canvassed pursuant to § 54-lj at the proceeding in 2005, during which he pleaded guilty to possession of narcotics, he did not move to vacate the judgment and withdraw that plea in his 2010 motion, nor would such a motion have been timely. The defendant’s 2005 conviction of the substantive crime of possession of narcotics is, therefore, beyond the scope of this appeal.

       The defendant also argues that plain error exists and that we should utilize this court’s supervisory authority. We agree with the state that the defendant has not adequately briefed these claims and, therefore, decline to address them. See, e.g., State v. Myers, 290 Conn. 278, 290-91, 963 A.2d 11 (2009); State v. Elson, 125 Conn. App. 328, 360, 9 A.3d 731 (2010), cert. granted on other grounds, 300 Conn. 904, 12 A.3d 572 (2011).

       Practice Book § 39-19 provides in relevant part: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered . . .
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”

       The transcript of the canvass of the defendant from the 2009 proceeding provides in relevant part:
      “The Court: Okay. So, sir, the most you could get is the twenty-seven months that you owe, that’s two years and three months on the violation, and two years and six months on the new counts, so that’s four years and nine months and a total of $5000. Now, if you’re available to be released to the program on Thursday, the understanding will be twenty-seven months flat.
      “It’s come to the court’s attention that there may be a detainer against you which may prohibit you from being released to a program. If that’s the case, sir, then on Thursday you can, if you’re not released, have the other offer of eighteen months and resolve the case because you won’t be allowed to go to the program. Is that your understanding?
      “The Defendant: Yes.
      “The Court: Okay. So, it will either release you on Thursday to go into the program or, if there’s a detainer, you’ll be sentenced to eighteen months and you’ll have to deal with the detainer when you get out. You understand that?
      “The Defendant: Okay.
      “The Court: Now, when you plead guilty and admit a violation of probation you give up certain rights, the right to remain silent in all cases; with regard to the violation, the right to deny the violation and have a hearing. At that hearing, the state would have to prove you’re in violation by a fair preponderance of the evidence.
      “With regard to the criminal offenses, you give up the right to plead not guilty, have a court trial or a jury trial where the state would have to prove you guilty beyond a reasonable doubt. In all cases, you give up the right for your attorney to cross-examine the state’s witnesses, call witnesses, and present evidence on your behalf. You understand you give up all of those rights?
      “The Defendant: Yes. . . .
      “The Court: You understand that if you’re not a U.S. citizen, your pleas could result in your deportation, exclusion from the U.S., or denial of naturalization citizenship. You understand that? . . .
      “The Defendant: (Affirmative nod.)
      “The Court: You have to say yes or no, sir.
      “The Defendant: Yes.
      “The Court: Is that correct, counsel?
      “[The Defendant’s Counsel]: That’s correct, Your Honor.”


source: Caselaw Access Project

author: BEACH, J. BORDEN, J.,

license: Public Domain

text:
    ANTHONY H. SALCE, SR. v. WALTER WOLCZEK
    (AC 33624)
    Beach, Sheldon and Borden, Js.

      Argued September 13, 2012
    officially released March 26, 2013

      Laura Pascóle Zaino, with whom, on the brief, were John B. Farley and Dan E. LaBelle, for the appellant (defendant).

      Jeffrey J. White, with whom was Benjamin C. Jensen, for the appellee (plaintiff).
   Opinion

BEACH, J.

In this breach of contract action, the defendant, Walter Wolczek, appeals from the judgment of the trial court rendered in favor of the plaintiff, Anthony H. Salce, Sr. The defendant claims the court erred in (1) granting the plaintiffs motion for summary judgment on the breach of contract count of the complaint, (2) awarding $1 million in damages for breach of contract and (3) awarding 8 percent postjudgment interest. We affirm the judgment of the trial court.

The parties stipulated to the following facts. Prior to April 13, 2007, the plaintiff and the defendant each owned a 50 percent interest in Anwalt, LLC (Anwait). In 2007, Anwalt owned real property located at 2 Corporate Drive in Trumbull (premises). On April 13, 2007, the plaintiff and the defendant entered into a written agreement pursuant to which the plaintiff agreed to sell his 50 percent interest in Anwalt to the defendant for $1.75 million (buyout agreement).

The buyout agreement provided, in clause 2 (b) (contingency clause), in relevant part: “Contingent Addition to Purchase Price. If within one year of the closing hereunder any ownership interest in the Premises . . . is transferred to a ‘Non-Wolczek Person’ based on a whole property value of more than $3,500,000, Buyer [defendant] shall pay to Seller [plaintiff] an additional purchase price equal to one-half the excess at the same time as the transfer. The ‘excess’ is the amount by which the whole property value for the transfer exceeds $3,500,000. The ‘whole value’ for any sale is the 100% value on which any percentage interest being transferred is based. For example, a one-quarter interest transferred for $1,000,000 would equate to a whole property value of $4,000,000. A ‘Non-Wolczek Person’ is someone other than Walter Wolczek or his immediate family member or lineal descendant.” (Emphasis added.)

The parties closed on the sale of the plaintiffs interest in Anwalt pursuant to the buyout agreement on May 31, 2007. Subsequently, Anwalt conveyed the premises to Corporate Drive Office Center, LLC (Corporate Drive), an entity comprising family members of the defendant. On March 19, 2008, within one year of the closing of the buyout agreement, Corporate Drive entered into a real property purchase agreement with Brian Vaughn (Vaughn purchase agreement) to sell the premises for $5.5 million to Vaughn or an entity designated by him. The Vaughn purchase agreement was executed by the defendant in his capacity as a member of Corporate Drive. Vaughn organized and designated an entity known as Corporate Drive, LLC, to take title to the premises. Neither Vaughn nor Corporate Drive, LLC is an immediate family member or lineal descendant of the defendant. On July 1, 2008, more than one year from the date of the closing of the buyout agreement, the closing of the Vaughn purchase agreement for the sale of the premises took place.

The plaintiff brought a seven count complaint against the defendant to recover damages for the defendant’s alleged breach of the buyout agreement. The plaintiff moved for summary judgment on the first count of the complaint, which alleged breach of contract. He argued that he was entitled to summary judgment on count one because an ownership interest was transferred within one year of the execution of the buyout agreement; that is, equitable ownership of the premises was transferred by the Vaughn purchase agreement. The court, Dooley, J., granted the motion for summary judgment as to count one. The court concluded that, on the basis of the doctrine of equitable conversion, there unambiguously was a transfer of equitable title to Vaughn on March 19, 2008, that this was a transfer of an ownership interest, and that, therefore, the contingency clause unambiguously required the additional payment.

The plaintiff then withdrew the remaining six counts of the complaint; see footnote 2 of this opinion; and moved for final judgment on the first count, requesting damages of $1 million, prejudgment interest, attorney’s fees, offer of compromise interest, costs and postjudgment interest. The court granted the motion and rendered judgment for the plaintiff as follows: damages for breach of contract in the amount of $1 million; attorney’s fees in the amount of $98,718.20; offer of compromise interest at the rate of 8 percent per year in the amount of $264,172.69; and costs in the amount of $1140.83; for a total judgment of $1,364,026.20, plus postjudgment interest to accrue at the rate of 8 percent per year. This appeal followed.

I

The defendant first claims that the court improperly determined that the contingency clause was unambiguous and, therefore, that the court improperly rendered summary judgment on count one of the complaint. We do not agree.

“Where the language of the [writing] is clear and unambiguous, the [writing] is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a [written instrument] must emanate from the language used in the [writing] rather than from one party’s subjective perception of the terms. . . . If a contract is unambiguous within its four comers, the determination of what the parties intended by their contractual commitments is a question of law.” (Citation omitted; internal quotation marks omitted.) Murtha v. Hartford, 303 Conn. 1, 7-8, 35 A.3d 177 (2011).

The contingency clause provided that if, within one year from May 31, 2007, “any ownership interest in the Premises ... is transferred to a ‘Non-Wolczek Person’ based on a whole property value of more than $3,500,000, Buyer [defendant] shall pay to Seller [plaintiff] an additional purchase price. ...” (Emphasis added.) By its plain terms, the buyout agreement made clear that the transfer of “any ownership interest” to a requisite person for at least a certain minimum amount triggered the contingency clause. It is uncontested that, on March 19, 2008, within the one year deadline under the buyout agreement, the defendant entered into the Vaughn purchase agreement.

The Vaughn purchase agreement unambiguously accomplished a transfer of an ownership interest, despite the fact that physical passing of title was to be accomplished later. As stated by our Supreme Court in Francis T. Zappone Co. v. Mark, 197 Conn. 264, 267 497 A.2d 32 (1985) (Zappone): “Under the doctrine of equitable conversion . . . the purchaser of land under an executory contract is regarded as the owner, subject to the vendor’s lien for the unpaid purchase price, and the vendor holds the legal title in trust for the purchaser. . . . The vendor’s interest thereafter in equity is in the unpaid purchase price, and is treated as personalty . . . while the purchaser’s interest is in the land and is treated as realty.” (Citations omitted; internal quotation marks omitted.) Id.

Zappone resolved a factual situation in which a real estate broker, having properly brought together a buyer and a seller of real estate, sought its commission. The buyer and seller had contractually agreed to a sale and a “bond for deed” had been executed, whereby the seller would transfer to the buyer a warranty deed when the buyer had fully performed the terms of the agreement. Title apparently never was physically transferred. Id., 265-66. The defendant claimed that no commission was due because title had not passed; the listing agreement had stated that the commission was due “upon the sale, exchange or transfer, or upon the exercise of any option to purchase” the property. (Internal quotation marks omitted.) Id., 268. Our Supreme Court disagreed, holding that “[a] binding sales agreement such as a valid bond for deed passes equitable title, under the doctrine of equitable conversion, upon its execution. . . . The parties are bound from that instant and the formal transfer of ‘paper’ title can occur at some future date." (Citation omitted; emphasis added.) Id.

The defendant in the present case argues that the language is ambiguous because, inter alia, a “transfer” of an ownership interest might ordinarily be associated with the passing of title at a closing and the additional funds may not ordinarily be available until the time of closing. But the Vaughn purchase agreement necessarily transferred an ownership interest independent of physical title; see id.; see siso New England Yacht Sales, Inc. v. Commissioner of Revenue Services, 198 Conn. 624, 625-36, 504 A.2d 506 (1986); and, in any event, the buyout agreement was drafted by lawyers, who are deemed to be aware of the meanings of “transfer” and “any ownership interest.” See Restatement 2d, Contracts § 202 (3) (b). Had the drafters intended “transfer of title at closing” to be the triggering event, they could have said so; the chosen phrase, “any ownership interest,” is broad and sweeping. Finally, the additional amount is not due as a share of the proceeds of the subsequent sale; rather, it is an adjustment of the buyout price that was triggered by a recognition by the defendant of a market value of the premises greater than $3.5 million within one year of the buyout. It, thus, is not logically dependent on the actual receipt of additional proceeds.

II

The defendant next claims that the court erred in awarding $1 million in damages. The court arrived at the $1 million award by “taking [50 percent] of the difference between the [$3.5 million] and the re-sale price to Brian Vaughn, [$5.5 million].” The defendant does not contest the formula for calculating damages as found in the contingency clause of the buyout agreement, which provided that if any ownership interest was transferred to a non-Wolczek person within one year “based on a whole property value of more than $3,500,000, Buyer [defendant] shall pay to Seller [plaintiff] an additional purchase price equal to one-half the excess at the same time as the transfer. The ‘excess’ is the amount by which the whole property value for the transfer exceeds $3,500,000. . . .” The defendant argues that the court’s using $5.5 million as the purchase price was improper because as of March 19, 2008, the defendant “had not sold anything to . . . Vaughn. Rather, there was a contract for sale under which $550,000 in deposit money had changed hands, but a very real risk remained, as exists with any contract for the sale of property, that the sale might not close.”

Although the defendant’s argument is phrased in terms of damages, it is, essentially, an argument that he did not breach the buyout agreement and trigger the contingency clause. As we held previously in this opinion, an ownership interest was transferred to Vaughn on March 19, 2008. The court applied the language of the contingency clause properly to calculate damages at $1 million. Although the full $5.5 million did not transfer hands on March 19, 2008, the defendant and Vaughn signed an agreement on that date thereby entering into a commitment to perform the sale for the price of $5.5 million. The court properly held that an additional $1 million, one-half of the amount of the purchase price exceeding $3.5 million, was owed to the plaintiff at that time.

m

The defendant finally claims that the court erred in awarding 8 percent postjudgment interest. We disagree.

In his motion for judgment, the plaintiff requested, inter alia, postjudgment interest at a rate of 10 percent per annum. In its memorandum of decision on the motion for judgment, the corut determined that it had no evidence before it that the defendant withheld the funds in bad faith. The court, however, noted that it is not required to find bad faith in order to determine that the detention of the money was wrongful. The court stated that since the date of the closing on the sale to Vaughn, the defendant had the benefit of $1 million that he should have paid to the plaintiff. The court awarded postjudgment interest at an annual rate of 8 percent.

A trial court’s decision to award postjudgment interest is subject to review for an abuse of discretion. Bower v. D’Onfro, 45 Conn. App. 543, 551, 696 A.2d 1285 (1997). General Statutes § 37-3a (a) provides in relevant part: “Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. . . .” “Because § 37-3a provides that interest may be recovered ... it is clear that the statute does not require an award of interest in every case in which money has been detained after it has become payable. Rather, an award of interest is discretionary.” (Internal quotation marks omitted.) Sosin v. Sosin, 300 Conn. 205, 228, 14 A.3d 307 (2011).

The defendant argues that the award of postjudgment interest was improper because the court declined to award prejudgment interest based on the same considerations and it had determined that the defendant pursued his defense in good faith. First, the defendant points to no Connecticut case law, and we are aware of none, that provides that a court cannot both award postjudgment interest and deny prejudgment interest. Second, although the court found that defendant pursued his defense in good faith, that is not inconsistent with a finding that the defendant had wrongfully withheld the money. “Although bad faith is one factor that the court may look at when deciding whether to award interest under § 37-3a ... in the context of the statute, wrongful is not synonymous with bad faith conduct. Rather, wrongful means simply that the act is performed without the legal right to do so. . . . [This is] consistent with the primary purpose of § 37-3a, which is not to punish persons who have detained money owed to others in bad faith but, rather, to compensate parties that have been deprived of the use of their money.” (Citation omitted; internal quotation marks omitted.) Id., 229-30. The court acted within its discretion in awarding an 8 percent postjudgment interest rate.

The judgment is affirmed.

In this opinion SHELDON, J., concurred.

BORDEN, J.,

dissenting. I disagree with the majority that the contractual clause in question is unambiguous. I conclude, to the contrary, that it is ambiguous. I would, therefore, reverse the summary judgment of the trial court in the plaintiff’s favor.

As the majority indicates, the parties stipulated to the following facts. Prior to April 13, 2007, the plaintiff, Anthony H. Salce, Sr., and the defendant, Walter Wolc-zek, each owned a 50 percent interest in Anwalt, LLC (Anwalt). As of May 30, 2007, Anwalt owned real property located at 2 Corporate Drive in Trumbull (premises). On or about April 13, 2007, the plaintiff and the defendant entered into a written buyout agreement pursuant to which the plaintiff agreed to sell his 50 percent interest in Anwalt to the defendant for $1.75 million (buyout agreement).

The contingency clause, clause 2 (b) of the buyout agreement, provided in relevant part: “Contingent Addition to Purchase Price. If within one year of the closing hereunder any ownership interest in the Premises . . . is transferred to a ‘Non-Wolczek Person’ based on a whole property value of more than $3,500,000, Buyer [defendant] shall pay to Seller [plaintiff] an additional pinchase price equal to one-half the excess at the same time as the transfer. The ‘excess’ is the amount by which the whole property value for the transfer exceeds $3,500,000. The ‘whole value’ for any sale is the 100% value on which any percentage interest being transferred is based. For example, a one-quarter interest transferred for $ 1,000,000 would equate to a whole property value of $4,000,000. A ‘Non-Wolczek Person’ is someone other than Walter Wolczek or his immediate family member or lineal descendant.” (Emphasis added.)

The parties closed on the sale of the plaintiffs interest in Anwalt on May 31, 2007. Subsequently, Anwalt conveyed the premises to Corporate Drive Office Center, LLC (Corporate Drive), an entity comprised of family members of the defendant.

On March 19, 2008, within one year of the closing of the buyout agreement, Corporate Drive entered into a real property purchase agreement with Brian Vaughn (Vaughn purchase agreement) to sell the premises for $5.5 million to Vaughn or an entity designated by him. The Vaughn purchase agreement was executed by the defendant in his capacity as a member of Corporate Drive. Vaughn organized and designated an entity known as Corporate Drive, LLC, to take title to the premises. Neither Vaughn nor Corporate Drive, LLC is an immediate family member or lineal descendant of the defendant. On July 1,2008, more than one year from the date of the closing of the buyout agreement, the closing of the Vaughn purchase agreement for the sale of the premises took place.

In addition to these stipulated facts, the defendant asserts, and the plaintiff does not dispute, that the contract language in question was drawn by the plaintiff. Furthermore, the plaintiff asserts, and the defendant does not dispute, that both parties are commercially sophisticated and were represented by counsel.

Thus, the issue on appeal centers on the language of the contingency clause providing that if, within one year from May 31, 2007, “any ownership interest in the Premises ... is transferred to a ‘Non-Wolczek Person’ based on a whole property value of more than $3,500,000, Buyer [defendant] shall pay to Seller [plaintiff] an additional purchase price equal to one-half the excess at the same time as the transfer. The ‘excess’ is the amount by which the whole property value for the transfer exceeds $3,500,000. The ‘whole value’ for any sale is the 100% value on which any percentage interest being transferred is based. For example, a one-quarter interest transferred for $1,000,000 would equate to a whole property value of $4,000,000.” (Emphasis added.) If, as the plaintiff contends and the majority concludes, that language unambiguously includes the entry by the defendant into the Vaughn purchase agreement on March 19, 2008 — less than one year from the date of the closing of the buyout agreement — the plaintiff was entitled to summary judgment. If, however, as the defendant contends and I conclude, that language is susceptible to an alternative reasonable interpretation, namely, that the language in question refers to the actual closing of the Vaughn purchase agreement on July 1, 2008 — more than one year from the date of the buyout agreement — the plaintiff was not entitled to summary judgment.

The majority concludes that, on the basis of the doctrine of equitable conversion; see Francis T. Zappone Co. v. Mark, 197 Conn. 264, 268, 497 A.2d 32 (1985) (“A binding [real estate] sales agreement . . . passes equitable title, under the doctrine of equitable conversion, upon its execution .... The parties are bound from that instant and the formal transfer of ‘paper’ title can occur at some future date.” [Citation omitted.]); there was a transfer of equitable title to Vaughn on March 19, 2008; that this accomplished a transfer of an ownership interest; and that, therefore, the contingency clause unambiguously included the entry into the Vaughn purchase agreement. If, however, there is any ambiguity — as that term is defined in our law — as to whether the buyout agreement language includes the entry into the Vaughn purchase agreement, the plaintiff was not entitled to summary judgment. That is because of the court’s function in interpreting a contract.

The question of contract interpretation involves a question of the intent of the parties, which ordinarily presents a question of fact for the ultimate fact-finder. Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000). Where, however, the language of the contract is unambiguous, its interpretation presents a question of law for the court. Id. Furthermore, whether the language is ambiguous is itself a question of law, upon which our review on appeal is de novo. United Illuminating Co. v. Wisvest-Connecticut, LLC, 259 Conn. 665, 669-70, 791 A.2d 546 (2002).

“In determining whether a contract is ambiguous, the words of the contract must be given their natural and ordinary meaning. Kelly v. Figueiredo, 223 Conn. 31, 35, 610 A.2d 1296 (1992). A contract is unambiguous when its language is clear and conveys a definite and precise intent. Levine v. Massey, 232 Conn. 272, 278, 654 A.2d 737 (1995). The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. . . . Id., 279. Moreover, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . . Stephan v. Pennsylvania General Ins. Co., 224 Conn. 758, 764, 621 A.2d 258 (1993). Furthermore, a presumption that the language used is definitive arises when, as in the present case, the contract at issue is between sophisticated parties and is commercial in nature. Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P. [supra, 252 Conn. 494-97].” (Internal quotation marks omitted.) Id., 670.

“In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. . . . [A]ny ambiguity in a contract must emanate from the language used by the parties. . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so. . . . If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.” (Citations omitted; internal quotation marks omitted.) Id., 670-71. In addition, “[a] contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.” (Internal quotation marks omitted.) Alstom Power, Inc. v. Balcke-Durr, Inc., 269 Conn. 599, 610, 849 A.2d 804 (2004); see also Flaherty v. Flaherty, 120 Corm. App. 266, 269, 990 A.2d 1274 (2010).

Thus, our task is not to determine which party’s interpretation of the contract is the correct — or even the stronger — one. Our sole task is to determine, applying all of these guidelines, whether, on one hand, the language of the contract is clear and conveys a definite and precise intent, or, on the other hand, the language of the contract is susceptible to more than one reasonable interpretation. I conclude that, applying these guidelines, the language of the contractual clause is susceptible to more than one reasonable interpretation, namely, that the time of the transfer of an ownership interest in the premises contemplated by the contingency clause was at the time of the closing of the Vaughn purchase agreement.

I therefore focus on the language of the contingency clause, that, if within the one year period, “any ownership interest in the Premises ... is transferred to a ‘Non-Wolczek Person’ based on a whole property value of more than $3,500,000, Buyer [Wolczek] shall pay to Seller [Salce] an additional purchase price equal to one-half of the excess at the same time of the transfer. The ‘excess’ is the amount by which the whole property value for the transfer exceeds $3,500,000. The ‘whole value’ for any sale is the 100% value on which any percentage interest being transferred is based. For example, a one-quarter interest transferred for $1,000,000 would equate to a whole property value of $4,000,000.” Viewed in the context of the entire transaction between the parties, it is a reasonable interpretation of this language that its general purpose was to ensure that, if the defendant sold the premises at a profit (measured by the parties’ valuation when the defendant bought out the plaintiff) within one year of his purchase of the plaintiffs interest, the plaintiff would share proportionally in that profit.

It is true, as the majority concludes, that the language “any ownership interest ... is transferred” could well have been intended to include the doctrine of equitable conversion. Our Supreme Court has stated: “Under the doctrine of equitable conversion . . . the purchaser of land under an executory contract is regarded as the owner, subject to the vendor’s lien for the unpaid purchase price, and the vendor holds the legal title in trust for the purchaser. . . . The vendor’s interest thereafter in equity is in the unpaid purchase price, and is treated as personalty . . . while the purchaser’s interest is in the land and is treated as realty.” (Citations omitted; internal quotation marks omitted.) Francis T. Zappone Co. v. Mark, supra, 197 Conn. 267. It is also true, however, that this statement regarding the purported limited interest of a contract seller before the closing is over-broad because, until the closing, the seller generally retains the right to possession of the premises, and remains responsible for its real estate taxes and for keeping it insured and maintained. See Reid v. Landsberger, 123 Conn. App. 260, 269, 1 A.3d 1149, cert. denied, 298 Conn. 933, 10 A.3d 517 (2010); see also 14 R. Powell & P. Rohan, Powell on Real Property §§ 81.01, 81.03 [3], pp. 81-6 through 81-8, 81-101 through 81-102. Thus, even under the doctrine of equitable conversion, a purchase agreement does not transfer a 100 percent ownership interest in a property.

A close examination of the language of the contingency clause, read in the context of the entire buyout agreement and in the context of the transaction as a whole, discloses an alternative reasonable interpretation of the phrase “[i]f . . . any ownership interest ... is transferred,” namely, if a 100 percent ownership of the property or any fractional interest therein is transferred. That alternative reasonable interpretation is as follows.

The language of the contingency clause directly links the transfer of “any ownership interest” to the excess over the original “whole property value,” established by the parties in their buyout agreement. The “whole property value” is then defined (although referred to here, not as the “whole property value” but as the “whole value”) as “the 100% value on which any percentage interest being transferred is based.” (Emphasis added.) That linkage is then directly linked to the sole example given by the parties themselves, namely, a transfer of a one-quarter interest in the property.

To explain further, under the language of the contingency clause, the only significance of the transfer of an ownership interest by the defendant is if the transfer is for more than the parties valued it. The consequence of such a transfer to a “Non-Wolczek Person” is that, if the transfer is for more than the “whole property value” of $3.5 million, the defendant must pay the plaintiff an amount equal to “one-half the excess at the time of the transfer,” the “excess” being defined explicitly as “the amount by which the whole property value for the transfer exceeds $3,500,000.” (Emphasis added.) Further, the “whole value” is defined specifically as “the 100% value on which any percentage interest being transferred is based.” (Emphasis added.) This language is then illustrated by the single example chosen by the parties: “For example, a one-quarter interest transferred for $1,000,000 would equate to a whole property value of $4,000,000.” This linkage — a transfer of an ownership interest, linked to the whole property value, linked to the 100 percent value or any fractional value — lends itself to the reasonable interpretation that, in using the language, “if any ownership interest ... is transferred,” the parties were referring to a 100 percent ownership interest or any fractional interest being transferred, rather than referring to an equitable interest being transferred, which is not easily equated to either a 100 percent ownership interest or a fraction thereof.

My point here is not that the majority is necessarily incorrect in its assertion that the doctrine of equitable conversion triggered the additional purchase price. My point is solely that it is not unambiguously so that the parties intended to refer to the doctrine of equitable conversion when they used the phrase “any ownership interest ... is transferred.”

Furthermore, the language of the clause, “Buyer [defendant] shall pay to Seller [plaintiff] an additional purchase price equal to one-half the excess at the same time as the transfer,” further renders the contingency clause ambiguous, because it supports the reasonable interpretation that such an obligation arises at the time of the closing on the Vaughn purchase agreement, rather than at the time of the entry into the Vaughn purchase agreement. It is a reasonable interpretation of this language that the parties intended the phrases “ownership interest ... is transferred” and “at the same time as the transfer” to refer to the actual transfer of legal title — either the full legal title or some fractional interest thereof — at the closing, because that would, under ordinary expectations of real estate transactions, be the time when the defendant would have the funds available to satisfy that obligation. Indeed, the plaintiff acknowledged at oral argument before this court that his interpretation would obligate the defendant to pay the required excess at the time the defendant entered into the Vaughn purchase agreement, even if that agreement never closed through no fault of the defendant and, therefore, the defendant never realized the profit that the parties’ buyout agreement contemplated he would share with the plaintiff. The somewhat unlikelihood of this scenario being what the parties intended by their language lends further support to the alternative reasonable interpretation that I propose.

It is also trae, as the plaintiff argues, that the fact that the contract at issue is between sophisticated parties and is commercial in nature raises a presumption that the contract language is definitive. It is equally true, however, that in the present case, the plaintiff drafted the language in question, which ordinarily means that any ambiguity would be resolved against the drafter. See Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13-14, 938 A.2d 576 (2008). Although that does not itself create an ambiguity; see Mongillo v. Commissioner of Transportation, 214 Conn. 225, 231, 571 A.2d 112 (1990); I do think that, in the present case, the language in question is ambiguous enough to overcome the presumption, and the fact that the plaintiff drafted the language supports the reasonableness of the alternative interpretation offered by the defendant.

I would, therefore, reverse the judgment of the trial court and remand the case for further proceedings according to law.

       The plaintiff does not claim that this transfer was to a “Non-Wolczek Person” or that it triggered the contingency clause.

       Although the plaintiffs complaint was in seven counts, only the first count alleging breach of contract is at issue in this appeal. Furthermore, although the defendant filed a counterclaim, that also is not at issue in this appeal.

       The court did not award prejudgment interest attributable to the period of time between the breach and the judgment.

       The defendant also argues that 8 percent was excessive, and references lower interest rates. The court was not bound to apply these lower interest rates, and was within its discretion in awarding 8 percent, which was lower than the statutory maximum of ten percent. See General Statutes § 37-3a.

       The plaintiff does not claim that this transfer was to a “Non-Wolczek Person” or that it triggered the contingency clause.

       Because the summary judgment was litigated and based solely on the language of the contract in question, it did not involve, and this appeal does not involve, the legal consequences, if any, of any claim by the plaintiff that the defendant intentionally structured the timing of the closing of the Vaughn purchase agreement to avoid the one year deadline.


author: PER CURIAM.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY v. MICHAEL GABRIELE ET AL.
    (AC 32318)
    Gruendel, Beach and Peters, Js.
    Argued December 10, 2012
    officially released March 26, 2013

      J. Hanson Guest, for the appellants (named defendant et al.).

      Douglas S. Sauve, with whom, on the brief, was Jonathan A. Kaplan, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendants Michael Gabriele and Victoria Gabriele appeal from the judgment of strict foreclosure rendered by the trial court in favor of the plaintiff, Deutsche Bank National Trust Company. On appeal, the defendants claim that the court erred in rendering judgment of strict foreclosure because the plaintiffs motion for default, which the court granted, was filed prematurely. We agree and reverse the judgment of the trial court.

The plaintiff commenced this residential mortgage foreclosure action against the defendants on November 13,2009. The complaint stated that, pursuant to Practice Book § 10-29, “exhibits to this complaint are not recited or annexed in full, but shall be served upon each party to this action forthwith upon receipt of notice of the appearance of such party, and shall further be filed in court with proof of service upon each appearing party.”

In December, 2009, the defendants filed a motion for extension of time to file a responsive pleading to the complaint, seeking “an extension of time to plead of thirty (30) days or such other time as the court shall determine from the later of the date that the plaintiff files and forwards any unattached exhibits to its complaint ... as required by [Practice Book] § 10-29 or the date the court grants this motion for extension of time.” On December 21, 2009, the court granted the defendants’ motion. On January 28, 2010, the plaintiff filed an amended certification of service of exhibits. On February 25, 2010, the plaintiff filed a motion for default for failure to plead. The defendants filed an objection to the plaintiffs motion for default. The court overruled the objection and implicitly granted the motion for default.

After having been defaulted, the defendants filed a request to revise the foreclosure complaint and a motion to set aside and/or to open the default, both of which the court denied. On September 7,2010, the court held a hearing on the plaintiffs motion for a judgment of strict foreclosure and granted the motion. This appeal followed.

Our standard of review in assessing the defendants’ claim that the court erred in granting the plaintiffs motion for default is mixed. Ordinarily, we review a court’s ruling on a motion for default under an abuse of discretion standard. See Otwell v. Bulduc, 76 Conn. App. 775, 777, 821 A.2d 793 (2003). In this case, however, review of the court’s granting of the motion for default requires us to interpret an order, and “[t]he construction of an order is a question of law over which we exercise plenary review.” Gianetti v. Gerardi, 122 Conn. App. 126, 130, 998 A.2d 807 (2010).

In their motion for extension of time, the defendants requested a thirty day extension of time to plead “from the later” of either the date that the plaintiff filed the exhibits that had not been attached to the complaint or from the date of the granting of the motion, or any such other time as the court may have determined. (Emphasis added.) The court did not determine any other time frame, but rather ordered the motion “granted” without elaboration. The only logical interpretation is that the defendants had thirty days from the plaintiffs filing of unattached exhibits on January 28, 2010, which was later than the court’s granting of the plaintiffs motion for extension of time on December 21, 2009. The plaintiffs February 25, 2010 motion for default was filed within this thirty day period. As such, the defendants were not in default at the time the motion was filed. We conclude that the court abused its discretion in granting the plaintiffs February 25, 2010 motion for default.

The judgment is reversed and the case is remanded for further proceedings according to law.

       Sand Canyon Corporation and Farmington Valley Orthodontic also were named as defendants; however, they are not parties to this appeal. The term defendants will refer to Michael Gabriele and Victoria Gabriele only.

       The defendants also claim that the court erred in denying their request to revise and their motion to open the default, and that the judgment of strict foreclosure was rendered upon an insufficient affidavit. Because we reverse the judgment on the basis of the erroneous granting of the plaintiffs motion for default, we need not consider these additional claims.

       Practice Book § 10-29 (a) provides in relevant part: “Any plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length; but in such case the plaintiff shall serve a copy of such exhibit or exhibits on each other party to the action forthwith upon receipt of notice of the appearance of such party and file the original or a copy of such exhibit or exhibits in court with proof of service on each appearing party. . .

       The original judgment of strict foreclosure, rendered in June, 2010, was vacated by the trial court. In this matter, the defendants filed an original appeal, a first amended appeal, a second amended appeal, and the present appeal. In October, 2010, we issued an order stating in part: “In light of the dismissal of the appeal and first amended appeal, THE FILING AND FORM OF THE AMENDED APPEAL AND ALL SUBSEQUENT PROCEEDINGS SHALL BE THE SAME AS THOUGH THE AMENDED APPEAL WERE AN ORIGINAL APPEAL . . . .”


author: ESPINOSA, J.

text:
    G POWER INVESTMENTS, LLC v. GTHERM, INC. ET AL.
    (AC 33999)
    Gruendel, Robinson and Espinosa, Js.

      Argued November 30, 2012
    officially released March 26, 2013

      Susanna LaPlante, with whom was Michael Berman, for the appellants (proposed intervenors).

      Kerry M. Wisser, with whom was Nathan A. Schatz, for the appellee (plaintiff).

      Kelly Bums Gallagher, with whom, on the brief, was Eric W. Wiechmann, for the appellee (defendants).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ESPINOSA, J.

The proposed intervenors, Jerrold M. Metcoff and David B. Wilson, appeal from the trial court’s denial of their motion to intervene in the underlying civil action between the plaintiff, G Power Investments, LLC, and the defendants, GTherm, Inc. (GTherm), Michael Parrella and Pardev, LLC (Pardev), and from the judgment of the trial court granting the defendants’ motion for judgment based on a stipulation agreed to by the plaintiff and the defendants. The proposed intervenors claim that the trial court erred (1) by not allowing them to intervene, either as a matter of right or permissively, in order to exercise their rights as judgment hen creditors of Parrella, and (2) by rendering judgment in accordance with the stipulation of the parties, which they claim violated their rights as judgment hen creditors. We do not reach the merits of these claims because the appeal has been rendered moot. Accordingly, we dismiss the appeal. .

The following undisputed facts and procedural history are relevant to our resolution of this appeal. On May 17,2011, the plaintiff initiated the action underlying this appeal and filed a nine count complaint against the defendants. In count one of the complaint, the plaintiff alleged that, on August 4, 2010, GTherm executed a promissory note for $1 million in favor of the plaintiff. It alleged farther that Parrella unconditionally guaranteed the note and that, in the note, Parrella and GTherm “agreed to pay the total sum due and owing plus . . . [i]nterest accrued thereon . . . simple interest . . . accrued and unpaid interest and any other sums due hereunder.” The plaintiff also alleged that GTherm had defaulted on the note after failing to make payments.

In count two, the plaintiff alleged that, to secure the note, GTherm and Parrella entered into a security agreement with the plaintiff, which granted the plaintiff a security interest in property belonging to GTherm and Parrella, including Parrella’s interest in the stock of a Connecticut corporation, Discount Power, Inc. (Discount Power), as well as GTherm and Parrella’s interest in “any and all patents whether related to the production of energy or other purposes . . . .” The plaintiff further alleged that GTherm and Parrella were in default under the terms of the security agreement. In count three, the plaintiff alleged that the GTherm and Parrella also breached an assignment agreement they had entered into with the plaintiff as additional security for the note. In count four, the plaintiff alleged that, under a separate guarantee agreement with the plaintiff, GTherm pledged its stock and all patents related to and owned by GTherm to guarantee the repayment of the note. In count five, the plaintiff alleged that Parrella pledged the same GTherm stock and patents, as well as any patents that he owned, to guarantee repayment of the note. In count six, the plaintiff alleged that, as further collateral security for repayment of the note, Parrella and Pardev pledged 500 shares of stock in GTherm owned by Pardev “and/or” Parrella, and that the pledge agreement called for the foreclosure of the pledged shares upon default of the note. The plaintiff sought money damages, foreclosure of the pledges of shares of stock, and possession of GTherm stock and all patents belonging to GTherm and Parrella.

On June 29, 2011, the plaintiff filed an application for a prejudgment remedy to secure the sum of $1,090,000 with the attachment of the defendants’ property and an order restraining the defendants from selling, trading, assigning or disposing of any stocks, property or patents they own during the pendency of the action. On September 13, 2011, the plaintiff, with the consent of the defendants, filed a motion for continuance with respect to its prejudgment remedy application, indicating that the parties were in the process of negotiating a settlement, which would be finalized within ninety days. The court granted the plaintiffs motion on the same day.

On February 17, 2011, before the present action was initiated, the proposed intervenors obtained a judgment against Parrella in the amount of $2,385,256 in an unrelated action. The proposed intervenors also filed with the secretary of state judgment lien certificates against Parrella’s assets, including his shares of stock and patents.

On October 3, 2011, the proposed intervenors filed a motion to intervene in the present action for the purpose of being heard on the plaintiffs prejudgment remedy application and any proposed settlement in this action. In the motion, they claimed that the court should permit them to intervene, either as of right or permissively, in order to protect their rights as judgment lien creditors of property and assets of Parrella because the plaintiffs prejudgment remedy application and the parties’ proposed settlement jeopardized the effectiveness and priority of their judgment liens. Specifically, the proposed intervenors argued they were entitled to notice of any proposed attachment or transfer of Parrel-la’s assets and property and that they had the right to ensure that any such attachment or transfer “properly reflects, protects and preserves” their judgment lien rights. On October 17,2011, the court denied the motion to intervene. In its order denying the motion, the court stated that “[t]he proposed intervenors do not meet the test for intervention as of right. After weighing the factors set forth in case law for permissive intervention . . . the court declines to allow intervention at this point in the proceedings and given the nature of the movants’ interest.” (Citation omitted.)

On October 21, 2011, the defendants filed a motion for judgment requesting that the court render judgment in accordance with a stipulation between the plaintiff and the defendants. The stipulation, dated October 7, 2011, stated that judgment would enter for the plaintiff in the amount of $2.3 million in accordance with its terms. The stipulation provided in relevant part: “Defendants hereby immediately and irrevocably pledge and assign all rights, title and interest owned in the 119,000 shares of [cjommon [s]tock and 2,000 shares of [preferred A stock in Discount Power . . . and the [5 percent] of GTherm . . . [s]tock set forth in the original loan agreement between the parties to the [p]laintiff.” On October 24, 2011, the court granted the defendants’ motion for judgment and rendered judgment in accordance with the stipulation.

The proposed intervenors appealed from the denial of their motion to intervene on November 9, 2011. On November 17, 2011, they amended their appeal to include a challenge to the stipulated judgment rendered on October 24, 2011. On February 15, 2012, this appeal was placed on the court’s own motion calendar for dismissal on the ground of mootness because the underlying action had gone to judgment. After a hearing on the matter, this court marked the matter off and ordered that the parties brief the mootness issue.

On July 10, 2012, during the pendency of this appeal, the plaintiff filed a notice of satisfaction of judgment indicating that the stipulated judgment rendered on October 24, 2011, had been satisfied “as to all defendants in accordance with its terms by virtue of [Pardev] having assigned and transferred to [the] plaintiff . . . the following shares of stock, which stock was owned by . . . Pardev: 1. 119,000 shares of common stock in Discount Power . . . and 2. 2000 shares of [cjlass A preferred stock in Discount Power .... None of the other defendants provided any payment or any other consideration to the plaintiff for the purpose of satisfying the judgment. Only . . . Pardev provided the above-consideration in accordance with the terms of the [stipulated [j]udgment in order to obtain a [satisfaction of [j]udgment as to all of the defendants.”

We do not reach the merits of the proposed interve-nors’ claims because their appeal has been rendered moot. “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; it 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. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pen-dency 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. . . . Because mootness implicates subject matter jurisdiction, it presents a question of law over which our review is plenary.” (Internal quotation marks omitted.) Wells Fargo Bank, NA v. Cornelius, 131 Conn. App. 216, 219-20, 26 A.3d 700, cert. denied, 302 Conn. 946, 30 A.3d 1 (2011).

In Wells Fargo Bank, NA v. Cornelius, this court held that Connecticut case law “indicates that the filing of a satisfaction of judgment does not render appeals moot because of the possibility of restitution or reimbursement.” Id., 220. In that case, the defendant appealed from the judgment of foreclosure by sale rendered in favor of the plaintiff. Id., 217. After the court rendered judgment and found the debt and fair market value of the property, the plaintiff filed a satisfaction of judgment indicating that the defendant had paid the plaintiff all amounts due as found by the court. Id., 219. As a preliminary matter, this court asked the parties to address the issue of whether the defendant’s appeal had been rendered moot due to the filing of the satisfaction of judgment. Id. The defendant argued that the court could order restitution as a remedy and, therefore, practical relief could be granted. Id., 220. This court agreed and determined that the appeal was not moot because the court had the option of ordering the plaintiff to pay restitution if there had been merit to any of the defendant’s claims. Id., 220-21.

“The law of judgments and satisfaction of judgments is well settled. The construction of a judgment is a question of law with the determinative factor being the intent of the court as gathered from all parts of the judgment. ... As a general rule, the court should construe [a] judgment as it would construe any document or written contract in evidence before it. . . . Effect must be given to that which is clearly implied as well as to that which is expressed. . . . [Although ordinarily the question of contractual intent presents a question of fact for the ultimate fact finder, where the language is clear and unambiguous it becomes a question of law for the court.

“The satisfaction of a judgment refers to compliance with or fulfillment of the mandate thereof. . . . There is realistically no substantial difference between the words paid and satisfied in the judgment context. . . . Whether the satisfaction of judgment operates to discharge the judgment in any given case also depends upon intent; specifically, the clearly expressed intention of the parties making and accepting the payment. . . . The cardinal rule of interpretation is the discovery of the intent and meaning of the parties from the language used .... As with a contract, in determining the meaning and effect of the controverted language in the satisfaction, the inquiry must focus on the intention expressed in the document and not on what intention existed in the minds of the parties.” (Citations omitted; internal quotation marks omitted.) Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 806-807, 695 A.2d 1010 (1997).

The proposed intervenors argue that the stipulated judgment did not render their appeal moot because it required a transfer of assets belonging to Parrella in light of the fact that it applied to all defendants. They also argue that the satisfaction of judgment did not render their appeal moot because the Discount Power stock that was transferred pursuant to the terms of the satisfaction of judgment necessarily was stock owned by Parrella. Specifically, they argue that, based on the language of the stipulated judgment, the parties intended for the shares of Discount Power stock in which the plaintiff had a security interest to be subject to the transfer. Therefore, they argue that, because the plaintiff only had a security interest in Parrella’s Discount Power stock, that stock was the only stock that could have been transferred to satisfy the stipulated judgment. Further, they argue that because the plaintiff never sought to foreclose on Discount Power stock owned by Pardev in its complaint, they argue that it could not properly have obtained such relief in a stipulated judgment, nor could the stipulated judgment be satisfied by the transfer of Pardev’s shares of stock. The plaintiff and defendants argue that the satisfaction of judgment rendered the proposed intervenors’ appeal moot because it indicates that the stipulated judgment was fully satisfied as to all defendants by the transfer of shares of stock in Discount Power owned by Pardev, not Parrella. Because the proposed intervenors have claimed an interest only in Parrella’s assets and because no defendant other than Pardev provided payment or any other consideration to the plaintiff to satisfy the judgment, the plaintiff and defendants assert that the satisfaction of judgment rendered moot any interest that the proposed intervenors claimed to have in this litigation. We agree with the plaintiff and the defendants.

Preliminarily, the proposed intervenors correctly note that, because the stipulated judgment applied to all defendants, when the court rendered judgment in accordance with the stipulation on October 24, 2011, the assets of Parrella could have been subject to the judgment at that time. The language in the July 10, 2012 satisfaction of judgment notice, however, clearly expressed the parties’ intent that the satisfaction of judgment would operate to discharge the judgment against all defendants. See Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 807. The satisfaction of judgment indicated that the stipulated judgment was satisfied as to all defendants in accordance with its terms by virtue of Pardev’s assignment and transfer to the plaintiff of its stock shares in Discount Power. Accordingly, as the plaintiff itself readily argues in this appeal, any claim against Parrella’s assets that it may have had before the judgment was satisfied no longer exists.

While we acknowledge that the filing of a satisfaction of judgment does not render an appeal moot when there is a possibility of restitution or reimbursement; Wells Fargo Bank, NA v. Cornelius, supra, 131 Conn. App. 220; the satisfaction of judgment in the present case has rendered the proposed intervenors’ appeal moot because there is no such possibility here. According to the plain language of the satisfaction of judgment, only Pardev provided the consideration to satisfy the judgment and “[n]one of the other defendants provided any payment or any other consideration to the plaintiff for purpose of satisfying the judgment.” Because the notice unambiguously states that no defendant other than Par-dev provided any payment or consideration to satisfy the stipulated judgment, Parrella’s assets were not affected by the satisfaction of the judgment. Therefore, there is no possibility of restitution or reimbursement to the proposed intervenors because their interest in this litigation is limited to the assets of Parrella that are subject to their judgment liens. The plaintiff and the proposed intervenors may once have had competing claims to Parella’s assets. Because the plaintiffs claims against Parella have been satisfied by Pardev’s assets, and because the proposed intervenors only claim an interest in Parella’s assets, there is no practical relief that this court can grant to the proposed intervenors. Accordingly, their appeal has been rendered moot.

The appeal is dismissed.

In this opinion the other judges concurred.

       On November 17, 2011, the proposed intervenors amended their original November 9, 2011 appeal from the denial of their motion to intervene to include an appeal from the stipulated judgment rendered on October 24, 2011.

       Specifically, the proposed intervenors claim that, pursuant to General Statutes § 42a-9-611 et seq., they were entitled to notice of any proposed disposition of Parrella’s assets, the right to ensure that the sale of such assets was commercially reasonable and the right to reject any proposed settlement of the underlying action through the strict foreclosure of Parrel-la’s assets.

       In count seven, the plaintiff alleged that GTherm and Parella breached the guarantee agreements in a manner different from the manner alleged in counts four and five. In counts eight and nine, the plaintiff sought to recover damages under theories of promissory estoppel and unjust enrichment, respectively.
      We note that the plaintiff filed an amended complaint on October 13, 2011, with the defendants’ consent. The amended complaint added two additional paragraphs containing allegations that were necessary to state the plaintiffs claims accurately, but these allegations are not relevant to the issues on appeal.

       The argument of the proposed intervenors regarding the satisfaction of judgment is not logically sound because, although the security agreement provides evidence of the plaintiffs security interest in Parrella’s shares of Discount Power stock, there is nothing in the record that indicates the plaintiff did not have an interest in Pardev’s shares of Discount Power stock that were used to satisfy the judgment. Further, their argument invites us to disregard the plain language of the satisfaction of judgment when there is no basis in the record for us to do so. Accordingly, we find no merit in their argument.
      The proposed intervenors also argue that if the parties intended for the defendants to transfer only shares of Discount Power stock owned by Pardev, they would have specifically stated that intention in the stipulation. To the extent that they suggest that, in order for the satisfaction of judgment to validly discharge the judgment, the parties were required to have specifically stated in the stipulation that the shares transferred would be limited to those owned by Pardev, we find no support for this claim.

       We need not resolve any argument that the stipulated judgment was improper because it did not adequately reflect the relief that was sought in the complaint because any such argument has been rendered moot by the satisfaction of judgment.