author: Daly, J.

text:
    Connecticut National Bank et al. v. I. Benyamin Oxenhandler et al.
    (11245)
    Dupont, C. J., Daly and Freedman, Js.

      Argued January 5 —
    decision released March 9, 1993

      Samuel B. Feldman, with whom, on the brief, was Lisa Maxtusis, for the appellants (defendants).

      Linda L. Morkan, with whom, on the brief, was Steven L. Richards, for the appellees (plaintiffs).
   Daly, J.

The named defendant appeals from the trial court's denial of his motion to open the default judgment rendered in favor of the plaintiffs, Connecticut National Bank (CNB) and CNB Discount Brokerage, Inc. (CNB Brokerage).*

The facts relevant to this appeal are as follows. On March 27,1986,1. Benyamin Oxenhandler opened two personal brokerage services accounts. One account was opened for International Gold Specialties, Inc. (IGS), and the other was opened for Panterra Resources, Inc. (Panterra). Benyamin executed two agreements with CNB Brokerage making him personally liable for any indebtedness owed on the accounts. From December, 1986, to April, 1987, CNB Brokerage purchased stock in accordance with the instructions of Yosef S. Oxen-handler. CNB Brokerage presented the shares to the defendants’ bank, which refused to make payment stating that it had not been authorized to do so. Benyamin refused to repay the balance on the accounts after demand by the plaintiffs. The plaintiffs liquidated the stock at a loss of $110,477.07.

By complaint dated April 23,1987, the plaintiffs instituted the underlying action against the defendants for the deficiency of $110,477.07 plus interest and costs. The plaintiffs alleged breach of contract, fraud and misrepresentation. Additionally, the plaintiffs sought a prejudgment attachment on Benyamin’s interest in real property located in West Hartford. The trial court granted the plaintiffs’ requests and the property was attached on April 27,1987. An amended complaint was filed on July 29,1987. The defendants filed an answer, four special defenses and a counterclaim on March 28, 1988.

On May 23, 1989, the defendants’ third attorney in this case, Jeffrey Nirenstein, was granted permission to withdraw as counsel due to the defendants’ refusal to cooperate with him subject to the condition that he notify the defendants of the withdrawal by certified mail. Notice of withdrawal was received by Benyamin on July 27, 1989, by certified mail. No subsequent appearance was filed on behalf of any of the defendants until April 23, 1990.

On March 9, 1990, notice was issued to Yosef and Nirenstein of the defaults entered against the defendants on March 7, 1990, for their failure to appear for pretrial and trial by order of the trial court. On March 15,1990, Yosef and Benyamin filed a handwritten document titled “Motion” with the clerk’s office. It read: “We hereby file a motion to open motion for appearance — in as much we did not receive the notice of appearance.” This motion (motion 141) was not certified and the plaintiffs had no knowledge of it. Motion 141 was not acted on by the trial court.

On April 4,1990, the plaintiffs filed a motion for judgment pursuant to Practice Book § 364. The plaintiffs also properly filed an affidavit of debt as well as a bill of costs. On April 16, 1990, judgment in the amount of $144,106.75 was rendered for the plaintiffs on the complaint. Notice of the judgment was issued on April 19, 1990. No notice was sent to the defendant Benyamin although notice was sent to Yosef and Nirenstein. On April 23,1990, Benyamin filed an appearance on his own behalf.

A judgment lien certificate was filed in the West Hartford land records on May 11,1990, a copy of which was sent to Benyamin as the record owner of the property. The plaintiffs subsequently commenced an action to foreclose that lien in October, 1990. Benyamin was defaulted in that action for failure to disclose a defense, but on February 5,1992, five days before the entry of judgment in the foreclosure action, he filed special defenses alleging that the April 16, 1990 judgment against him in the underlying action was void.

On February 6,1992, Attorney Samuel B. Feldman filed an appearance for all defendants in the present matter. On February 11, 1992, Benyamin moved to open the judgment pursuant to General Statutes § 52-212 and Practice Book §§ 376 and 377, claiming that he was “prevented by mistake, accident or other reasonable cause from appearing” at the pretrial conference. Benyamin sought not only to open the judgment but to reclaim motion 141. The motion to open was denied on March 16, 1992, and the trial court refused to consider motion 141. This appeal followed.

Benyamin now claims that (1) there was no final judgment in the underlying action, (2) the trial court improperly denied his motion to open and (3) the trial court improperly refused to address motion 141. We disagree.

Benyamin first claims that a final judgment was not rendered in this case because the counterclaim was not included in the judgment and because the judgment file was titled “partial judgment.” The judgment file stated: “This action, by writ and complaint claiming more than $15,000 in damages came to this Court on May 12,1987 and thence to March 28, 1988, when the Defendants filed their answer, special defenses and counterclaim, and thence to March 7, [1990] when default was entered . . . .” The judgment rendered for failure to appear for trial implicitly included a judgment for the plaintiffs on the defendants’ counterclaim. By their failure to appear for trial, the defendants forfeited their rights to defend against the plaintiffs’ complaint and to prosecute any cause of action they may have had arising from their counterclaim.

Benyamin next claims that the trial court improperly refused to open the twenty-two month old judgment upon default for failure to appear. Our courts have the inherent authority to open, correct and modify judgments, but this authority is restricted by statute and the rules of practice. Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990). For a trial court to open or set aside a default judgment, a motion to open or a motion to set aside must be filed within four months of the date judgment is rendered. General Statutes § 52-212 (a); Practice Book § 377. Where the motion is timely, our “review is limited to whether the court has acted unreasonably or in abuse of its discretion. Pump Services Corporation v. Roberts, 19 Conn. App. 213, 215, 561 A.2d 464 (1989).” Batory v. Bajor, supra. Where, as here, the motion to open is not timely and the time limitation has not been waived, the trial court lacks jurisdiction to open the judgment. Id., 8-9; Serrano v. Behar, 15 Conn. App. 308, 311, 544 A.2d 250 (1988). Benyamin’s motion to open was filed on February 11,1992, nearly twenty-two months after the judgment based on the defendants’ default was entered. Benyamin has not claimed that the plaintiffs waived the time limitation of the statute and rule of practice.

Benyamin claims that he was never given notice of the judgment of default, and, therefore, the four month time period did not commence until February 6,1992, when his fourth attorney filed an appearance in this matter. He claims that for this reason his motion to open was timely filed. “Only when the defendant is defaulted for failure to appear for trial may judgment be rendered without notice to the defendant. Practice Book § 364 (a).” Skyler Limited Partnership v. S.P. Douthett & Co., 18 Conn. App. 245, 250, 557 A.2d 927 (1989). Thus, it was not improper for notice not to have been issued to Benyamin.

The judgment on default was entered on April 6, 1990, and notice was issued to Yosef and the defendants’ former attorney on April 19, 1990. No appearance for Benyamin was on the record at that time. Even so, Benyamin demonstrated his knowledge of the judgment in a formal written complaint to the Connecticut director of securities on May 21, 1990. In that complaint, Benyamin and Yosef stated: “Following the general decision in Connecticut which makes the above prejudgment attachments unconstitutional CNB perfected its attachment, without trial, the courts disregarded our motion for appearance on April 23,1990 and on May 11,1990 the Superior Court granted Connecticut National Bank and CNB Discount Brokerage a Judgment [Lien] Certificate against the undersigned individuals in an amount of $144,105.75.” Thus, Benyamin knew of the judgment on default within two months of the date it was rendered. Therefore, the trial court properly denied Benyamin’s motion to open because it did not have jurisdiction to open the judgment.

Benyamin also argues that the motion to open was timely because the automatic stay provisions of our rules of practice were in effect when the judgment on default was entered. As the trial court noted, however, the defendant improperly relies on Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 579 A.2d 1054 (1990), for the proposition that the filing of a motion to set aside the default, which is how the defendants characterize motion 141, stays the rest of the proceedings pursuant to Practice Book §§ 4009 and 4046. Benyamin claims that, therefore, any action taken after the pro se motion was filed, including the judgment on default, is without effect because the trial court had to address the pro se motion first.

Farmers & Mechanics Savings Bank v. Sullivan, supra, is distinguishable. That case involved a foreclosure action in which the judgment of foreclosure had been rendered and the law days set. The issue on appeal concerned whether the automatic stay provisions of Practice Book §§ 4009 and 4046 were in effect where a motion to open and modify the judgment under General Statutes § 49-15 was timely filed before the law days passed but was not heard until after redemption by junior interest holders.

In the present case, no motion to open or set aside the judgment was filed within twenty days of the judgment on default of April 16, 1990. Motion 141, which the defendant claims is a motion to set aside the judgment, was filed after default was entered but before the judgment on default was rendered. The stay provisions discussed in Farmers & Mechanics Savings Bank v. Sullivan, supra, are not triggered by a motion to set aside the default because entry of default does not constitute a final judgment from which an appeal may be taken. Practice Book § 4000. An appealable final judgment exists when the judgment is rendered on that default. Automotive Twins, Inc. v. Klein, 138 Conn. 28, 33, 82 A.2d 146 (1951). The motion to open that the defendant is now appealing was filed twenty-two months later. Thus, nothing was filed to stay the proceedings and the provisions of §§ 4009 and 4046 did not stay the underlying action.

Benyamin also claims that motion 141 should have been addressed by the trial court. He did not press the court for action on this motion, the plaintiffs were unaware of it, and the motion does not come close to requesting the court to open a judgment. Under these circumstances the court has no obligation to act on it.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant I. Benyamin Oxenhandler is president of the defendant International Gold Specialties, Inc. (IGS), and is also vice president and treasurer of the defendant Panterra Resources, Inc. (Panterra). Yosef S. Oxenhandler, the son of I. Benyamin Oxenhandler, is a defendant and is president of Panterra and executive vice president of IGS. The motion to open, the denial of which is the basis for this appeal, was brought by only I. Benyamin Oxenhandler and, therefore, he is the only defendant properly before us.

       The matter was scheduled for trial on March 7. Customarily, parties would attend a pretrial settlement conference immediately prior to the scheduled trial. The defendants, in failing to appear on March 7, failed to appear for trial and were defaulted.

       General Statutes § 52-212 (a) provides: “Any judgment rendered or decree passed upon a default or nonsuit in the superior court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.”

       Practice Book § 377 provides in pertinent part: “Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which it was rendered or passed, and the case reinstated on the docket on such terms in respect to costs as the court deems reasonable, upon the written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. . . .”

       Yosef was not a party to the motion to open. Therefore, he is not properly before us on appeal. Even if Yosef was a proper appellant, however, notice of the judgment on default was issued to him. Therefore, Benyamin’s claims are not applicable to Yosef.

       Practice Book § 364 (a) provides: “If a defendant is defaulted for failure to appear for trial, evidence may be introduced and judgment rendered without notice to the defendant.”

       This document was attached to the “Plaintiffs’ Memorandum In Opposition to ‘Motion’ 141” filed March 13, 1992.

       Practice Book § 4009 provides in pertinent part: “The party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal in the manner prescribed by Sec. 4012; but if within the appeal period any motion is filed which, if granted, would render the judgment or decision ineffective, as, for example, a motion to open the judgment or to set aside the verdict or for judgment notwithstanding the verdict, the period of time for filing an appeal shall commence from the issuance of notice of the decision upon the motion or the expiration of the time within which a remittitur is ordered filed. . . .”

       Practice Book § 4046 provides in pertinent part: “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired . . . .”


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    State of Connecticut v. Charron Sweeney
    (10534)
    Dupont, C. J., O’Connell and Landau, Js.
    Argued October 26, 1992 —
    decision released March 9, 1993

      Brian M. O’Connell, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Paul Murray, senior assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant was convicted, after a trial by jury, of possession of less than four ounces of marihuana in violation of General Statutes § 21a-279 (c) and conspiracy to distribute marihuana in violation of General Statutes §§ 53a-48 (a) and 21a-277 (b). On appeal, the defendant claims that the trial court improperly (1) denied her motion to suppress all materials seized pursuant to the financial records warrant, alleging that the warrant failed to state with particularity the items to be seized, (2) admitted the testimony of the state’s expert witness, and (3) denied the defendant’s motion for judgment of acquittal. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 15,1990, at about 7:55 p.m., members of the North Central Municipal Narcotics Task Force executed a search warrant at 68 Arrowhead Road, Windsor, for the seizure of marihuana and drug trafficking equipment. This warrant is not the subject of this appeal. The defendant and her four children were at home at the time of the search. During the search, the officers encountered a locked door that led into the garage. They opened the door with a credit card. The inside of the garage windows were painted black, and there was a strong odor of marihuana. Inside the garage, the officers found three large green garbage bags containing a total of approximately seventy pounds of marihuana. They also found other green bags wrapped in duct tape with plant residue on the tape and in the bags, a 100 pound scale, a small electronic scale, and boxes of plastic bags in varying sizes.

From a kitchen cabinet, the officers seized a plastic bag containing approximately 1.1 ounces of marihuana. In the den, they found a business card with prices of drugs printed on the back. The officers found a triple beam Ohaus scale, three guns and various ammunition, and a total of $12,350 in two separate dresser drawers in a downstairs bedroom. From the top of a hutch in the dining room, they seized a loaded nine millimeter semiautomatic pistol. The officers found cardboard boxes filled with plastic bags of different sizes in various locations throughout the house. In an upstairs bedroom, $7660 was found in a dresser drawer. They searched the defendant’s purse and seized a passbook for a joint savings account with her father and $940. At about 10 p.m., one of the officers left the defendant’s house to secure a second warrant for the seizure of financial records. This warrant is the subject of this appeal. The second search resulted in the seizure of income tax returns, payroll stubs, a bankbook from a Jamaican bank, and receipts for the purchase of a number of personal items. The payroll records indicated that the defendant was employed at First Brands Corporation, a manufacturer of plastic bags. The income tax records established the income that she earned in this capacity.

I

The defendant’s first claim is that the trial court improperly denied her motion to suppress the evidence seized as a result of the financial records warrant. That warrant provided as follows: “All financial records, including, but not limited to cancelled checks, bank statements, bank books, income tax reports, receipts for purchases, answering machines and tapes, telephone pager records, and all records, memos, passports, telephone records, income records, and other records used as means and instrumentalities of the crimes of possession of more than one kilogram of marijuana with intent to sell, operating a drug factory, and possession of more than four ounces of marijuana.” The defendant alleges that the warrant lacked sufficient particularity to satisfy the requirements of the fourth amendment to the United States constitution and article first, § 7, of our state constitution. Specifically, the defendant alleges that the phrases but not limited to and and other records used as means and instrumentalities are so generic and unconstitutionally vague as to violate the fourth amendment. We disagree.

“The fourth amendment to the United States constitution provides that a warrant must ‘particularly [describe] . . . the persons or things to be seized.’ A particular description of the item to be seized is necessary to avoid a general exploratory rummaging in the search. Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). In determining whether a warrant is sufficiently particular in describing an item to be seized, a number of factors are relevant, namely, the purpose for which the warrant was issued, the relevance of the item to the crime charged, and the total circumstances surrounding the case. Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 72 L. Ed. 231 (1927). The warrant must be sufficiently definite so that the officer executing it can identify the property sought with reasonable certainty. Id.” State v. Gagnon, 18 Conn. App. 694, 709-10, 561 A.2d 129, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989). While the warrant must describe the objects of the search with “reasonable specificity, [it] need not be elaborately detailed. . . . Nor must the warrant enable authorities to minutely identify every item for which they are searching. . . . Thus, a description is valid if it is as specific as the circumstances and the nature of the activity under investigation permit. (Citations omitted.)” (Internal quotation marks omitted.) State v. Ruscoe, 212 Conn. 223, 234, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990).

A high degree of scrutiny is required when reviewing the particularity requirement of search warrants for documents. The Supreme Court recognized this in Andresen v. Maryland, 427 U.S. 463, 482 n.11, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976), when it stated that “[i]n searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized. Similar dangers, of course, are present in executing a warrant for the ‘seizure’ of telephone conversations. In both kinds of searches, responsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.”

The warrant and accompanying affidavit in this case were sufficiently particular to guard against this danger. The affidavit specifically described the results of the initial search and described many of the items found, relating to the possession and sale of drugs, in the course of that search. It also described how, in the affiants’ knowledge and experience, certain documents are evidence of an attempt to secrete and launder proceeds from these activities, and the fact that the affiants had specifically observed “numerous records which are pertinent to identifying assets and other property gained from this illegal activity.”

Contrary to the defendant’s assertion, the language including but not limited to is not overbroad when viewed in light of the totality of the case. First, the language of the warrant impliedly limited the seizure of records similar to those specifically outlined in the warrant and the affidavit. Second, the seizure of records was specifically limited, by the language and other records used as means and instrumentalities of the crimes, to records relating to the crimes listed in the warrant and affidavit. The warrant did not allow an unrestrained rummaging for evidence of any crime. It effectively instructed the officers to seize only those items indicating activity associated with the illegal possession and distribution of marihuana. See United States v. Washington, 782 F.2d 807, 818 (9th Cir. 1986); United States v. Vanichromanee, 742 F.2d 340, 347 (7th Cir. 1984). Therefore, the warrant and accompanying affidavit satisfy the requirements of the fourth amendment.

II

The defendant next claims that the trial court abused its discretion by allowing the testimony of the state’s expert witness concerning the relationship between the evidence seized in this case and drug trafficking. The defendant argues that the probative value of the testimony of the police officer was outweighed by its prejudicial effect. We disagree.

“A trial court has broad discretion in its rulings on the relevance of evidence and in its determination of whether the probative value of evidence outweighs its prejudicial effect. Reversal is required only when there is an abuse of discretion or when an injustice has been done.” State v. Baskins, 12 Conn. App. 313, 318, 530 A.2d 663, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987). The test for the admissibility of expert testimony is “whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the question at issue. . . . Generally, expert testimony may be admitted if the witness has a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue.” (Citations omitted; internal quotation marks omitted.) State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985). The trial court has broad discretion in applying these concepts and in ruling on the admissibility of expert opinions. State v. Rodgers, 207 Conn. 646, 651, 542 A.2d 1136 (1988); State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). “The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” State v. Douglas, 203 Conn. 445, 452, 525 A.2d 101 (1987).

In State v. Vilalastra, 207 Conn. 35, 44-45, 540 A.2d 42 (1988), our Supreme Court noted: “Under Fed. R. Evid. 702, expert testimony is admissible if it will assist the trier of fact to understand the evidence or to determine a fact in issue. The subject of the expert testimony here, i.e., the clandestine manner in which drugs are bought and sold, is unlikely to be within the knowledge of the average layman. ... We believe that a trial court should have broad discretion in the matter of the admission of expert testimony concerning the sale of illicit drugs. . . .” (Citations omitted; internal quotation marks omitted.) The trial court did not abuse its broad discretion in allowing the testimony of the state’s expert.

Ill

Finally, the defendant challenges the sufficiency of the evidence that led to her conviction of conspiracy to distribute marihuana in violation of General Statutes §§ 53a-48 (a) and 21a-277 (b). She argues that the evidence presented by the state failed to prove beyond a reasonable doubt that she and a coconspirator had the intent to agree to commit a crime. We are not persuaded.

The following additional facts are required to resolve this claim. The defendant testified that she met Uriah Anthony Walker in August, 1989. The defendant and Walker moved into the house on Arrowhead Drive in October, 1990. The defendant testified that the drugs belonged to Walker and that she knew that Walker was distributing drugs from her house. She also testified that she knew that the money that Walker gave her, often ranging from $1000 to $3000, was proceeds from the distribution of drugs. She acknowledged that she purchased the plastic bags found at the residence from her employer at a discount.

When a claim on appeal challenges the sufficiency of the evidence, we undertake a two part task. “We first review the evidence presented at trial, construing it in the light most favorable to sustaining the [jury’s verdict] .... We then decide whether, on the facts thus established and the inferences reasonably drawn therefrom, the . . . jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Citation omitted.) State v. Johnson, 26 Conn. App. 433, 435, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992).

“To establish the crime of conspiracy under § 53a-48 of the General Statutes, it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. . . . Further, the state also must show that the conspirators intended to agree and that they intended to commit the elements of the underlying offense. . . .” (Citations omitted; internal quotation marks omitted.) State v. Channer, 28 Conn. App. 161, 168, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992). “To prove the offense of conspiracy to [distribute] narcotics, the state must prove two distinct elements of intent: that the conspirators intended to agree; and that they intended to [distribute] narcotics to another person.” State v. Hernandez, 28 Conn. App. 126, 135, 612 A.2d 88, cert. denied, 223 Conn. 920, 614 A.2d 828 (1992).

It is well established that circumstantial evidence is sufficient to prove that there was an agreement because conspiracies, by their very nature, are formed in secret and only rarely can be proved by other than circumstantial evidence. State v. Holmes, 160 Conn. 140, 150, 274 A.2d 153 (1970); see State v. Ghere, 201 Conn. 289, 299, 513 A.2d 1226 (1986) (existence of a formal agreement between the conspirators need not be proved because only in rare instances can a conspiracy be established by proof of an express agreement).

Construing the evidence in light of sustaining the jury’s verdict, there was sufficient evidence to support a finding that the defendant conspired with Walker to distribute marihuana. The marihuana operation pervaded the entire residence. The plastic bags used to distribute the drugs were found throughout the house. The defendant acknowledged that she knew that the distribution operation was in her house. She admitted purchasing large quantities of plastic bags from her employer — bags that were used as part of the operation. She also admitted that she knew that the money that Walker gave her was proceeds from the distribution operation. All of this evidence supports a finding that the defendant and Walker agreed to operate a drug distribution enterprise, and that she intended to distribute the drugs to other people.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-279 (c) provides in pertinent part: “Any person who possesses ... or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollars or be imprisoned not more than five years, or be both fined and imprisoned.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 21a-277 (b) provides in pertinent part: “Any person who . . . distributes, sells . . . [or] dispenses . . . any controlled substance . . . except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       This task force is comprised of members of municipal enforcement agencies of Avon, Simsbury, Bloomfield and Windsor.

       The defendant failed to brief the state constitutional issue separately. This court may, but need not, independently undertake to engage in such an analysis where the issue has not been briefed. Here, we choose not to consider this issue. State v. Jacobs, 30 Conn. App. 340, 342 n.1, 620 A.2d 198 (1993); State v. Johnson, 28 Conn. App. 708, 713, 613 A.2d 1344, cert. granted, 224 Conn. 911, 617 A.2d 168 (1992).

       Walker was named in the information as a coconspirator. It is believed that he fled the Hartford area sometime around the middle of November, 1990. The FBI was searching for him at the time of trial.


author: Foti, J.

text:
    Susan Siracusa v. Daniel Siracusa
    (10824)
    Dupont, C. J., Foti and Heiman, Js.
    Argued January 8 —
    decision released March 9, 1993

      Christina M. Storm, with whom was Thomas A Rouse, for the appellant (defendant).

      Lloyd Frauenglass, with whom, on the brief, was Candace V. Bath, for the appellee (plaintiff).
   Foti, J.

In this dissolution action, the defendant appeals from the judgment rendered, claiming that the trial court improperly (1) determined periodic financial orders and a property distribution schedule, (2) awarded time-limited alimony, (3) distributed the marital estate, (4) determined the value of the family business, and (5) exercised excessively broad discretion over financial and commercial business issues not involving custody or marital matters. We affirm the judgment of the trial court.

The following facts are pertinent to this appeal. The parties met while attending college. Following his graduation in 1979, the defendant established a moving business called “Dan’s Moving.” The plaintiff left college in the spring of 1980 without graduating. In her spare time, she assisted the defendant in the development of his business. After their marriage on October 16,1982, the plaintiff began devoting all of her time to the moving business, serving as operations manager, hiring and firing employees, and working fifty to sixty hours per week. At the plaintiff’s urging, the business was incorporated in 1984 as Siracusa Moving and Storage Company, Inc. The plaintiff received 40 percent of the stock, and the defendant received the remaining 60 percent. About this time, the defendant’s brother began working for the company, and the plaintiff devoted substantially all of her time to caring for the parties’ residence. She also obtained her real estate agent’s license which, at the time, she felt would be of some assistance to the defendant in developing the moving business. She worked as a real estate agent for a short while. In 1985, the parties purchased a house, and in May, 1986, their daughter was born. During this period, the defendant devoted nearly all of his time to company business, leaving little or no time for social events or vacations. The plaintiff supported the defendant’s efforts and goals, and the business prospered.

In the spring of 1988, the marriage began to deteriorate. In September, 1988, divorce proceedings were initiated by the plaintiff, who claimed that the marriage had broken down irretrievably with no hope of reconciliation. On October 2,1991, the trial court rendered judgment dissolving the marriage. In making its orders as to how the marital estate should be divided, the trial court concluded “that fault on the part of neither party is a factor to be considered.”

The court found that the value of the family business at the time of the marriage was $23,408 and at the time of the dissolution was $820,000. A jointly owned condominium was valued at $117,500, with a mortgage of $68,500. The marital residence was valued at $175,000, with a mortgage of $114,000. The gross marital estate was valued at $973,604.

The court awarded the plaintiff 53 percent of the marital estate and the defendant 47 percent. The court deducted from the gross marital estate the value of the business on the date of the parties’ marriage ($23,408) and established the plaintiff’s 53 percent interest at $503,604 and the defendant’s 47 percent interest at $446,592. The court allocated property accordingly. The plaintiff was granted custody of the minor child.

The defendant was ordered to pay the plaintiff $319 a week as child support, by agreement, and $300 a week as alimony. The alimony was to be paid for a two year period. As part of its allocation of property, the trial court ordered the plaintiff to convey her interest in the family business to the defendant, who in turn would execute and deliver to the plaintiff a $428,525 promissory note, at 6 percent interest, secured by a mortgage on two of his properties. The court established a seven year payment schedule that required the defendant to make a $25,000 lump sum payment to the plaintiff within two months of the judgment, and monthly payments of $2500 thereafter, with a balloon payment of the balance due on October 2, 1998.

The defendant first claims that the trial court abused its discretion in ordering weekly payments of alimony and child support that, combined with his periodic payment of the property settlement, exceeded his weekly income. The defendant’s financial affidavit disclosed his weekly income as $1066. He argues, therefore, that there were no findings to support the court’s order of weekly payments, which he claims “grossly exceeded” his earnings.

The record shows that the trial court had before it both the financial affidavit disclosing the $1066 weekly income and other evidence indicating that the defendant’s income was $75,000 a year. (At the dissolution proceeding, the defendant’s counsel indicated to the court that the defendant had based the agreed upon amount of weekly child support on the existing child support guidelines, which recommend $319 based on a $75,000 annual income.) The court was also aware that the defendant had been paying $892 per week for the plaintiff and the minor child during the pendency of the action. The combined weekly alimony and child support payment finally ordered by the court in the judgment ($619) was therefore substantially less than the defendant had been paying prior to the order. As the plaintiff correctly points out, the seven year payout of the property settlement was ordered as a means of spreading out over time the payment of her percentage of the marital estate. The court apparently rendered this order after considering argument made by the defendant’s counsel to the effect that there was insufficient liquidity in the family business to enable the defendant to pay the plaintiff in a lump sum. This periodic payment is separate and distinct from the $619 weekly alimony and child support ordered by the court. There is no question that the trial court could have ordered a sale of the business to facilitate division of the marital assets. See General Statutes § 46b-82, footnote 5, infra.

While a trial court must consider a number of factors in awarding alimony and distributing the assets of the parties, and may exercise broad discretion in that consideration; Miller v. Miller, 22 Conn. App. 310, 314, 577 A.2d 297 (1990); it need not recite each factor in its decision, and it is sufficient that the memorandum of decision “at least reflect a proper consideration and weighing of the factors set forth in the statute.” Koper v. Koper, 17 Conn. App. 480, 484, 553 A.2d 1162 (1989). The record is clear that, in establishing these orders and structuring a seven year payment schedule, the court considered the statutory criteria enumerated under General Statutes §§ 46b-81 and 46b-82.

The court looked specifically at the occupations, skills and employability of the parties. It found that the plaintiff, with three years of college education, had worked as a waitress, had obtained her real estate agent’s license, and had some experience in the moving business. The defendant, a college graduate, is the chief executive officer of a moving and storage company he established twelve years ago. The trial court found that “[f]rom the nature of the occupations and skills of the parties . . . [the] defendant has a far greater opportunity than does the plaintiff for the future acquisition of capital assets or income.” It is a “well recognized family law principle that, in a marital dissolution proceeding, the court may base financial awards on the earning capacity rather than the actual earned income of the parties.” Carey v. Carey, 29 Conn. App. 436, 440, 615 A.2d 516 (1992).

We will not disturb a trial court order unless there has been an abuse of discretion or unless the finding of the trial court has no reasonable basis in the facts. Brash v. Brash, 20 Conn. App. 609, 612, 569 A.2d 44 (1990). The orders here were reasonably based on the facts; we conclude that there was no abuse of discretion.

The defendant next claims that there was no reasonable basis to support the court’s award of 53 percent of the marital estate to the plaintiff. Since the record establishes that he contributed the “lion’s share” to acquisition of the marital estate, and that no fault was assessed to either party as cause of the breakdown, he contends that this award was unsupported by the record in view of the relatively short length of the marriage. We disagree.

General Statutes § 46b-81 (c) sets forth numerous factors that a trial court must consider in assigning the property of the parties whose marriage is to be dissolved by the court. That section mandates that the court consider not only the contribution of each party toward acquisition of the property, but the length of the marriage, the cause of the dissolution and “the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income.” General Statutes § 46b-81 (c). The court must consider all of the statutory criteria in determining how to divide the parties’ property in a dissolution action. Leo v. Leo, 197 Conn. 1, 5, 495 A.2d 704 (1985). “A trial court, however, need not give each factor equal weight; Kane v. Parry, [24 Conn. App. 307, 313-14, 588 A.2d 227 (1991)]; or recite the statutory criteria that it considered in making its decision or make express findings as to each statutory factor.” Savage v. Savage, 25 Conn. App. 693, 701, 596 A.2d 23 (1991). An award of a larger percent of the total marital assets to one party is not a per se abuse of discretion. Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983); Damon v. Damon, 23 Conn. App. 111, 113, 579 A.2d 124 (1990). We point out that in determining the “contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates”; General Statutes § 46b-81 (c); the trial court must “accord value to those nonmonetary contributions of one spouse which enable the other spouse to devote substantial effort to paid employment which, in turn, enables the family to acquire tangible marital assets.” O’Neill v. O’Neill, 13 Conn. App. 300, 311, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).

“A fundamental principle in dissolution actions is that a trial court may exercise broad discretion . . . as long as it considers all relevant statutory criteria.” (Internal quotation marks omitted.) Id., 306. “On appeal, the defendant bears the burden of proving to this court that the trial court did not consider the proper criteria . . . .” Mihalyak v. Mihalyak, 11 Conn. App. 610, 620, 529 A.2d 213 (1987).

The record shows clearly that the court considered all of the relevant statutory factors. The trial court’s assignment of the property had a reasonable basis in the facts and thus will not be disturbed. Krause v. Krause, 189 Conn. 570, 572, 456 A.2d 1204 (1983). This order is consonant with the court’s broad discretion. See Rostain v. Rostain, 214 Conn. 713, 573 A.2d 710 (1990); Emanuelson v. Emanuelson, 26 Conn. App. 527, 602 A.2d 609 (1992).

The defendant next claims that in ascertaining the value of the gross marital estate, the trial court improperly refused his request that a minority discount be applied to the plaintiff’s 40 percent interest in the family business. Before we begin our analysis of this claim, we point out that valuation is a factual determination. “In assessing the value of . . . property . . . the trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation. . . .Thetrial court has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as he finds applicable; his determination is reviewable only if he misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was his duty to regard.” (Citations omitted; internal quotation marks omitted.) Turgeon v. Turgeon, 190 Conn. 269, 274, 460 A.2d 1260 (1983). In determining whether the trial court reasonably could have concluded as it did on the basis of the evidence before it, we will give every reasonable presumption in favor of the correctness of the court’s action. Gallo v. Gallo, 184 Conn. 36, 44-45, 440 A.2d 782 (1981).

The trial court found that the family moving and storage business is a closed corporation “with the parties as sole stockholders.” To establish its fair market value, the trial court reviewed the opinions of two certified public accountants who testified as experts, one for the plaintiff and one for the defendant. After reviewing all of the evidence, the court concluded that the “capitalization of earnings” method of valuation was the proper one and rejected the “capitalization of excess earnings” method. This conclusion was well within the trial court’s discretion. Turgeon v. Turgeon, supra.

In determining the value of the plaintiff’s interest in the corporation, the court chose not to discount her 40 percent minority interest, after weighing the defendant’s request that a minority discount be applied. At the hearing on the defendant’s motions for articulation and rectification, the trial court stated that it had considered whether to apply such a discount, but had determined that a discount was not appropriate in view of the facts of the case. The trial court specifically distinguished this case, in which the parties are the company’s sole shareholders, from those cases in which one spouse held a minority shareholder interest in the company and the remaining interests were held by third parties. In the latter cases, a discount had been applied in valuing the spouse’s minority interest.

We agree with the trial court’s determination that the value of a minority shareholder’s interest may, in the court’s discretion, be discounted by an appropriate percentage when the business is not controlled by either or both of the marital partners and would not be controlled by one of the partners even if that partner were awarded all of the couple’s shares. We find no abuse of discretion, however, in the trial court’s refusal to apply a minority discount here, where the sole shareholders were husband and wife and the defendant was awarded 100 percent of the corporation’s stock. Because the trial court’s determination is not clearly erroneous, it must stand. Id., 275-76.

The defendant’s last claim is that we should not give “wide discretion” to the trial court in our review of the commercial valuation issues he has raised. He argues that wide discretion should be accorded only to the award and division of property, that is, “the bottom-line allocation of assets and/or obligations.” The defendant urges us to narrow the “broad discretion” ordinarily given to the trial court because, “where issues involving valuation arise in a domestic relations setting, the discretionary leeway of the court should not be broadened simply because the parties are husband and wife.” We disagree.

“The trial court is accorded wide discretion in determining the proper allocation of the assets of the parties.” Graham v. Graham, 25 Conn. App. 41, 47, 592 A.2d 424 (1991). General Statutes § 46b-81 (a) expressly provides that at the time of entering a decree dissolving a marriage, the trial court may assign to either party all or any part of the estate of the other. The court is empowered to pass title or order the sale of real property “when in the judgment of the court it is the proper mode to carry the decree into effect.” In neither § 46b-81 (a) nor § 46b-81 (c), which sets out the criteria that the trial court must apply in determining a proper distribution of the parties’ assets, did our legislature establish special rules for fixing the value of the commercial assets of a marital estate. The question of value is one of many factual determinations committed to the trial court in a dissolution proceeding. Turgeon v. Turgeon, supra. We do not overturn those findings unless they are clearly erroneous. “That is the standard and scope of this court’s judicial review of [factual] decisions of the trial court.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). We cannot conclude that a different standard of review is warranted in cases where fixing the amount of the gross marital estate requires the valuation of a commercial business as opposed to other assets.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant has failed to brief this claim, and we therefore consider it abandoned. Pomazi v. Conservation Commission, 220 Conn. 476, 477-78 n.3, 600 A.2d 320 (1991); Esaw v. Friedman, 217 Conn. 553, 554 n.1, 586 A.2d 1164 (1991); State v. Walzer, 208 Conn. 420, 423 n.2, 545 A.2d 559 (1988).

       We note that while the defendant has computed this total weekly payment as $1196.36, the proper figure is $1195.92.

       In a motion for articulation, the defendant asked the trial court to state whether it specifically “found” that his gross weekly earnings were $1066. Although the trial court denied the motion, during the hearing on the motion the following colloquy occurred between the trial court and the defendant’s counsel:
      “The Court: . . . Number five, I’m a little confused about what you’re looking for.
      “Ms. Storm: I wasn’t clear by the language you mentioned. On the affidavit he grossed under $1066, and then later on in your decision you said, in addition to the findings — I simply want to delay a finding. It was found that his gross weekly earnings were $1066.
      “The Court: His financial affidavit says that’s what it is.
      “Ms. Storm: I should say, sometimes affidavits can say one thing and—
      “The Court: Well, let me make a note that plaintiff’s CPA said that’s what it was.
      “Ms. Storm: My only question is whether you found—
      “The Court: My decision mentions it. I don’t know whether I said, I specifically find — I took his word that it was true. There’s no reason that it isn’t.
      “Ms. Storm: All right.”
      The defendant did file a motion for review with this court. We granted the motion but denied the requested relief because the basis of the trial court’s decision was sufficiently illuminated, requiring no further articulation. See State v. Wilson, 199 Conn. 417, 513 A.2d 620 (1986).

       General Statutes § 46b-81 provides: “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.
      “(b) A conveyance made pursuant to the decree shall vest title in the purchaser, and shall bind all persons entitled to life estates and remainder interests in the same manner as a sale ordered by the court pursuant to the provisions of section 52-500. When the decree is recorded on the land records in the town where the real property is situated, it shall effect the transfer of the title of such real property as if it were a deed of the party or parties.
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       General Statutes § 46b-82 provides in pertinent part: “At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to ... an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .” (Emphasis added.)

       The defendant raised this minority discount issue in his motions for articulation and rectification, both of which were denied by the court. We granted the defendant’s motion for review of the trial court’s denials, but denied his request for relief.-

       A so-called “minority discount” involves first establishing the full market value of a minority interest and then discounting that value by an appropriate percentage to account for such factors as nonmarketability of the shares and the minority interest holder’s inability to control management.


author: Foti, J. Landau, J.,

text:
    State of Connecticut v. Paul B. Wohler
    (11030)
    Foti, Lavery and Landau, Js.
    Argued December 14, 1992 —
    decision released March 9, 1993

      Arthur P. Meisler, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Mark Solak, state’s attorney, and Mark Stabile, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of the crime of larceny in the fifth degree by theft of services in violation of General Statutes §§ 53a-125a (a) and 53a-119 (7) (F). The defendant claims that the trial court improperly determined that the evidence was sufficient to prove him guilty beyond a reasonable doubt of the crime charged.

The trial court reasonably could have found the following facts. In October, 1990, the defendant was employed as the assistant superintendent of the Willimantic water works, Windham water department (water department). His position required him to supervise other employees who maintained the water distribution system, and he was authorized to allow overtime pay. He was also in charge of water department equipment used on the jobs he supervised.

In early October, 1990, Dominic Shirghio, a water department customer, contacted the defendant at the water department to discuss upgrading the water lines to his house at 76/82 South Street, Willimantic. The defendant informed Shirghio that the water department would excavate the street and install a new line from the water main into the curb, but that the homeowner had to hire a private contractor to install the new line from the curb to the residence.

Although the water department was responsible for the distribution system in the street from the main to the shutoff at the curb, and the customer was responsible for the line from the curb to the residence, the water department, at the time, had “adopted” a different policy to encourage customers to replace their lead pipes with copper pipes. It had allowed its employees, at no cost to customers, to attempt to “pull” new services for the homeowner. If the water company could pull the new pipe in one try, it would do so without charge. If the one pull was unsuccessful, the contractor would have to dig a trench and lay the pipe at the homeowner’s expense. Water department employees often removed sidewalk sections and dug up the homeowner’s property in relaying water services, with the water department’s knowledge and permission, also at no cost to the homeowner.

The defendant gave Shirghio the names of certain private contractors, including Derek Dimmock, a water department employee with whom the defendant had an agreement. The defendant and Dimmock worked together on their own time replacing customers’ water services to earn extra income. Shirghio contacted Dim-mock and received two estimates to upgrade his service, $450 if the water department was able to pull the new pipe, and $1200 if Dimmock had to dig a trench for the pipe. The rental cost for the backhoe, if digging was necessary, would be $350. Dimmock was hired and shortly thereafter dropped off material at the work site.

On the following day, water department employees unsuccessfully attempted to pull the cable through for Shirghio. The defendant then told the foreman to dig up the sidewalk. When that was done, two or three additional attempts to pull the cable through were unsuccessful. The defendant then directed the foreman to dig farther onto the property. The distance between the sidewalk and the house was approximately twenty feet. After digging three to four feet beyond the sidewalk onto Shirghio’s property, the crew successfully pulled the cable.

The defendant arrived at the scene after the other employees and remained there for approximately one and one-half hours before the successful pull. He then left and returned later that day to complete the inside work. It was not unusual for water department employees to dig three feet onto a customer’s property to reach the copper pipe in order to connect it to the curb. None of the work performed by the water department employees at Shirghio’s house was unusual or different from work done at other sites for homeowners and private contractors. The defendant received no money from Shirghio for work done by the water department employees. He did receive his normal pay.

The court found the defendant guilty of larceny in the fifth degree by theft of services in that he diverted the use of water department labor and equipment to benefit Shirghio by saving him the difference between the $1200 he would have had to pay for excavation and the $450 hookup fee that he paid.

Appellate analysis of a claim of insufficiency of the evidence is a twofold task. First, “[w]e . . . review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict.” (Internal quotation marks omitted.) State v. Carpenter, 214 Conn. 77, 88, 570 A.2d 203 (1990) (Covello, J., dissenting). Second, we must determine whether, on the basis of the facts so established and the inferences reasonably drawn therefrom, the court reasonably could have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. Id. In applying this standard to the present case, we conclude that the evidence was insufficient to establish proof beyond a reasonable doubt of the crime as charged, even viewing that evidence in a light most favorable to sustaining the trial court’s findings.

The state filed, pursuant to the defendant’s request, a statement of essential facts alleging: “Count Five. On or about October 12,1990, the defendant PAUL B. WOHLER, Assistant Superintendent of the Windham Water Department, while having control over the labor, equipment and facilities of the town of Windham Water Department, knowing that he was not entitled to the use of same, and with intent to derive a benefit to himself and another, did use or divert the use of said labor, equipment and facilities in order to install a water line hookup into 76/82 South Street in Willimantic, Connecticut and received monetary gain for himself and another, with the value of said gain between $250 and $500.”

The statement of essential facts delineates the precise contours of the charge against the defendant. See State v. Hahn, 207 Conn. 555, 559, 541 A.2d 499 (1988). In it, the state alleged that the defendant, by his actions, “received monetary gain for himself and another.” (Emphasis added.) The alleged gain of “between $250 and $500” was to the defendant and another. The state chose to make its factual allegations in the conjunctive rather than the disjunctive, as in the statute, which speaks of “substantial benefit for himself or a third party.” (Emphasis added.) The state is limited to proving that the defendant has committed the offense in substantially the manner it described. Id., 561. The record, however, is abundantly clear that the defendant himself derived no benefit or gain from the actions involved here. Nor did the court find any such benefit.

The defendant might have benefited had the crew been unable to pull the cable, since he and Dimmock would have received $1200 rather than $450 for installing the system. In any event, the requisite intent claimed by the state was the intent “to derive a benefit to himself and another.” Intent may be, and usually is, inferred from conduct. State v. Jones, 215 Conn. 173, 182, 575 A.2d 216 (1990). Intent is a question of fact for the trier, and the conclusion drawn by the trier should not be reversed unless it is unreasonable. State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977). We conclude that the evidence presented was not sufficient to permit the court, as trier, reasonably to infer from the facts found that the defendant possessed the requisite intent.

The judgment is reversed and the case is remanded with direction to render judgment of acquittal.

In this opinion Lavery, J., concurred.

Landau, J.,

dissenting. I respectfully dissent from the majority. Absent compliance by the trial court with Practice Book § 4059, the appellate tribunal cannot ascertain the reasoning and findings on which the decision is based. The utilization of a sufficiency analysis by the majority is the very antithesis of its lack of a factual foundation on which to base its conclusion.

Scrutiny of the procedural posture of this appeal is necessary for its proper resolution. Following a bench trial, the court ruled orally on the various counts charged by the state. The court found the defendant guilty of theft of services in violation of General Statutes §§ 53a-125a(a) and 53-119 (7)(F). The decision was recorded by a court monitor. On appeal, however, the trial court did not order the decision transcribed, nor was the decision signed by the trial judge as mandated by Practice Book § 4059.1 believe that the trial court’s failure to adhere to this section without emendation by the defendant prevents this court from properly addressing the defendant’s claims.

Practice Book § 4059 provides in pertinent part that “when rendering judgments ... in criminal cases . . . the court shall, either orally or in writing, state its decision on the issues in the case and, if there are factual issues, the factual basis of its decision. The court shall include in its decision its conclusion as to each claim of law raised by the parties. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court within ten days of the filing of the appeal. . . .” These actions are necessary so that a reviewing court, and the parties, know the precise decision of the trial court, as well as the basis of its decision. These requirements, analogous to the memorandum requirement when a decision is written, prevent the confusion that might arise if findings in the record conflict with a trial court’s decision. See Devitt v. Manulik, 176 Conn. 657, 659 n.1, 410 A.2d 465 (1979); 1 W. Moller & W. Horton, Connecticut Practice § 138. Further, it is incumbent upon an appellant,, when preparing the record for appeal, to take whatever steps are necessary to ensure that the trial court complies with § 4059. McLaughlin v. Bronson, 206 Conn. 267, 277-78, 537 A.2d 1004 (1988).

I do agree with the majority that the state, having filed, pursuant to the defendant’s request, a statement of essential facts stating factual allegations in the conjunctive rather than the disjunctive, must then prove that the defendant committed the offense in substantially the manner described. The majority then concluded “that the evidence presented was not sufficient to permit the court, as trier [of the facts], reasonably to infer from the facts found that the defendant possessed the requisite intent [to do both].”

A careful reading of the transcript, however, reveals conflicting and inconsistent findings on the issue of the defendant’s intent. The trial court made “findings” that the defendant had the “intent to [derive] the commercial substantial benefit — to derive a substantial or commercial benefit to himself or to a third person”; that “[the court does not] think when they — [the defendant] and Mr. Dimmock started out . . . they were going to use this as a means to embezzle money or goods or services ... I don’t think that was their intent, they were going to make some money on the side. But, I have to say that I think there was a lot of impropriety that may not be illegal, but it did take place here”; (emphasis added); and “you weren’t trying to make an illegal buck, but I think it worked out that way in the end.”

Practice Book § 4059 endeavors to prevent exactly what occurred in this case. The trial court found the defendant guilty of theft of services and then made other findings on the record that conflicted directly with these earlier findings.

Because of the conflicting findings made by the court regarding the intent of the defendant, I believe that review is effectively impossible. Further, because the defendant has failed to meet these requirements, I maintain that the majority cannot review the merits of this appeal based on a sufficiency analysis. “Either we adhere to the rules or we do not adhere to them.” Osborne v. Osborne, 2 Conn. App. 635, 639, 482 A.2d 77 (1984). By positing this, I do not seek to place form over substance. This being a sufficiency claim, however, the very essence of the question is framed by parameters set in the trial court’s findings. For us to require any less diminishes the effectiveness of judicial review.

Therefore, I would dismiss the appeal.

       The defendant was charged in a separate information with two counts of larceny in the second degree and one count of conspiracy. The defendant’s motion for judgment of acquittal was granted as to one count of larceny in the second degree and conspiracy after the state had rested, and he was found not guilty of the remaining count upon the completion of all the evidence.

       General Statutes § 53a-125a (a) provides: “A person is guilty of larceny in the fifth degree when he commits larceny as defined in section 53a-119 and the value of the property or service exceeds two hundred fifty dollars.”
      We note that the charging document incorrectly listed this as § 53a-125 (a), which is larceny in the fourth degree, rather than § 53a-125a (a).

       General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to . . .
      “(7) Theft of services. A person is guilty of theft of services when . . . (F) obtaining or having control over labor in the employ or another person, or of business, commercial or industrial equipment or facilities of another person, knowing that he is not entitled to the use thereof, and with intent to derive a commercial or other substantial benefit for himself or a third person, he uses or diverts to the use of himself or a third person such labor, equipment or facilities.”

       The free pull was accomplished by placing a cable through the old lead pipe, attaching it to the customer’s new copper pipe, and attempting to pull it with a backhoe.

       The parties appear to agree that the only person who may have benefited from the defendant’s actions was Dominic Shirghio, the homeowner and customer of the water company.

       The water department apparently had no written guidelines for assisting contractors and homeowners, nor did it have a clear policy as to its employees’ responsibility regarding what work should be done to benefit customers. At the time the defendant engaged in the activity in question here, the water department also apparently did not prohibit its employees from taking jobs, on their own time, that might conflict with their full-time duties.

       To fulfill the requirements of this section in this case, the defendant’s first step would have been to file a motion with the trial court pursuant to Practice Book § 4051. In the event that the trial court refused to articulate its findings, the defendant could then have filed a motion with this court pursuant to Practice Book § 4183, which provides that this court “may . . . on its own motion or upon motion of any party, (1) order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal . . . .”


author: Lavery, J.

text:
    Total Property Services of New England, Inc. v. Q.S.C.V., Inc., et al.
    (11026)
    Foti, Laveey and Landau, Js.
    Argued October 28, 1992 —
    decision released March 9, 1993

      George A. Silvestri III, with whom, on the brief, was Stephen B. Delaney, for the appellant (defendant Bergeron/Sheehan/Therrien General Real Estate Partnership).

      Dana M. Gilland, with whom, on the brief, was George M. Purtill, for the appellee (plaintiff).
   Lavery, J.

The defendant real estate partnership (partnership) appeals from the trial court’s judgment confirming an arbitration award to the plaintiff. On appeal, the partnership claims (1) that the trial court improperly denied the partnership a hearing on the issue of whether it was bound by the arbitration agreement, despite the fact that it was not a signatory to the agreement, (2) that there was no valid arbitration agreement on which the arbitrator could obtain subject matter jurisdiction, (3) that the failure of the arbitrator to render the award within thirty days of the close of the arbitration hearing nullified that award so that it should not have been confirmed by the trial court, (4) that the plaintiff’s failure to obtain a certificate of authority to transact business in Connecticut deprived the trial court of subject matter jurisdiction to hear the application to confirm, and (5) that the partnership was not properly served with notice of the arbitration hearing. We conclude that the partnership was entitled to a hearing to determine (1) whether it was bound by the arbitration agreement, (2) whether the arbitrator had subject matter jurisdiction, and (3) whether the partnership received proper notice, and we therefore reverse the judgment of the trial court and remand the case for a new trial.

The trial court could reasonably have found the following facts. In September of 1988, the defendant Q.S.C.V., Inc., and the plaintiff Total Property Services of New England, Inc. (Total Property), entered into a contract for the construction by the plaintiff of a Dunkin’ Donuts store in Portland. The .contract designates Q.S.C.V., Inc., as the “owner” and Total Property as the “contractor.” Disputes arose between the parties regarding the plaintiff’s alleged failure to pay subcontractors, and Q.S.C.V.’s alleged failure to pay the plaintiff. On April 24, 1991, the plaintiff made a demand for arbitration. One month later, the American Arbitration Association attempted to notify the partnership that the plaintiff on May 20 had amended the demand for arbitration to include the partnership as a respondent. Neither the partnership nor Q.S.C.V. responded to the notice. An arbitration hearing was held on June 10, 1991, at the offices of the American Arbitration Association in Massachusetts. Neither defendant attended the hearing. On June 19, the arbitration proceedings were declared closed; on July 17, the arbitrator entered an award in favor of the plaintiff for $165,118 plus costs against only Q.S.C.V., Inc., which was in bankruptcy on that date. The award was amended on August 13, making the partnership jointly liable. The arbitration award was confirmed only as to Q.S.C.V., Inc., on November 18, 1991, because the partnership had filed an objection to confirmation. On January 6,1992, the trial court rendered its judgment confirming the arbitration award against the partnership.

The following procedural history is relevant to the disposition of this appeal. On January 6, 1992, counsel for the partnership and for the plaintiff appeared before the trial court. The plaintiff sought to clarify its name for the record, since different combinations of letters had been used during the proceedings to refer to “Total Property Services of New England, Inc.” An employee of the plaintiff testified as to the company’s name and initials to clarify the issue for the record. At the same hearing, counsel for the partnership presented a motion claiming (1) that the real estate partnership was not a signatory to the contract, (2) that an improper submission was made to the arbitrator because of conflicting provisions in the agreement relating to arbitration and litigation, (3) that the partnership did not receive proper notice of the arbitration hearing, and (4) that Total Property Services of New England, Inc., and Total Property Services, Inc., were two separate corporations, thus making the identity of the plaintiff unclear.

The fourth issue was heard first, since it was also raised by the plaintiff, and, as we have noted, an employee of the plaintiff testified concerning the identity of that company. Counsel for the partnership then cross-examined the employee, the plaintiffs vice president, James T. Lawson. Counsel asked Lawson to read two sections of the contract in question. The sections conflicted. The first section, § 10.8 of the construction contract between Q.S.C.V., Inc., and the plaintiff, stated: “All claims or disputes between the Contractor and the Owner arising out or relating to the Contract, or the breach thereof, shall be decided by arbitration . . . .” The second section, § 21, which was added or typed in, stated: “All disputes arising out of this contract shall be interpreted under the Commonwealth of Massachusetts with a court in the State of Massachusetts as governing body.” The following exchange occurred after Lawson finished reading the second section.

“Mr. Delaney [Counsel for the partnership]: . . . Did there come a time subsequently to the signing of this contract, Mr. Lawson, that a dispute arose between Q.S.C.V. and yourself?

“Mr. Purtill [Plaintiff’s Counsel]: Objection, Your Honor. Number one, this is beyond the scope of my examination. Number two, he’s starting to get into— we can’t relitigate the arbitration.

“The Court: I agree. I’m not going to relitigate this.” Following redirect and recross-examination of witness Lawson, this exchange occurred.

“The Court: Okay, that takes care of that issue. I find that the two corporations are one and the same.

“Mr. Purtill: Your Honor, I’m sorry, it’s our application to confirm. It’s the defendant who raised the objection and has the burden on those items.

“The Court: All right, he’s got the burden.

“Mr. Purtill: I thought Your Honor disposed, although did not rule, but took care of item — his objections one and two, and that was item number four. I assume that item three is something that Mr. Delaney is going to cover.

“Mr. Delaney: I would like to go over the notice, Your Honor.

“The Court: Well, one and two, what happened, your client was sued and he didn’t appear for the arbitration, is that correct?

“Mr. Delaney: Your Honor—

“The Court: So items one and two could have been brought up at the arbitration, is that correct?

“Mr. Delaney: Could they have been raised?

“The Court: If they had been there?

“Mr. Delaney: That’s correct, they could have been raised.

“The Court: All right, so let’s take three.”

The partnership then offered evidence to prove that it did not receive adequate notice of the arbitration demand and hearing. After testimony of the general partner of the partnership, and cross-examination of him by counsel for the plaintiff, the court determined that the partnership was given adequate notice, and confirmed the arbitration award in a ruling from the bench.

The partnership argues on appeal that the court improperly ruled that it was not entitled to a hearing on the first two issues presented by its January 6,1992 motion because those issues should have been raised in arbitration. We agree with the partnership.

Arbitration is “the voluntary submission . . . of an existing or future dispute to a disinterested person or persons for final determination . . . .” (Citation omitted; internal quotation marks omitted.) Harry Skolnick & Sons v. Heyman, 7 Conn. App. 175, 179, 508 A.2d 64, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986). “ ‘Arbitration affords a contractual remedy with a view toward expediting disputes.’ ” Dagniella v. Foremost Ins. Co., 197 Conn. 26, 33, 495 A.2d 709 (1985). Because arbitration is a matter of contract, “no one may be compelled to arbitrate a dispute outside the scope of the agreement, which constitutes the charter of the entire arbitration proceeding and defines and limits the issues to be decided by the arbitrators.” Gary Excavating, Inc. v. North Haven, 164 Conn. 119, 122, 318 A.2d 84 (1972). Arbitration is favored by the courts because “ ‘it is intended to avoid the formalities, delay, expense and vexation of ordinary litigation.’ ” Dagniella v. Foremost Ins. Co., supra, 33-34. The autonomy of voluntary submission to arbitration requires a minimum of judicial intrusion. AFSCME v. New Britain, 206 Conn. 465, 469, 538 A.2d 1022 (1988). In furtherance of these principles, our courts recognize a waiver rule, which provides that if a party does not object to the arbitrability of a dispute before the arbitrator, the objection to arbitrability is deemed waived. Waterbury Board of Education v. Waterbury Teachers Assn., 168 Conn. 54, 62, 357 A.2d 466 (1975). On the basis of the exchange between the trial court and counsel for the partnership quoted earlier, it appears that the trial court applied the waiver rule in the present case. The court ruled that since the issues of whether the partnership was a party to the contract and whether the agreement was valid were not raised before the arbitrator, they could not be raised in the trial court. Because in this case the partnership raised issues about the existence of a contract to arbitrate, and not about the arbitrability of a dispute, the application of the waiver rule was misplaced.

We turn first to the issue of whether the partnership, which was not a signatory to the contract, was required to raise the issue of its status as a nonsignatory before the arbitrator. In claiming that it was not a signatory to the contract, the partnership asserts that it is not bound by the terms and conditions of the agreement. This issue is similar to the question raised before this court in Wesleyan University v. Rissil Construction Associates, Inc., 1 Conn. App. 351, 472 A.2d 23, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). In that case, Wesleyan University agreed to arbitrate with a construction company all claims arising out of, or relating to, a construction contract between them. A subcontractor, who had entered into a contract with the construction company, sought arbitration to resolve claims directed against Wesleyan that had arisen from the subcontract. The subcontractor claimed that the construction company was an agent of Wesleyan. Wesleyan sought to enjoin the subcontractor from seeking arbitration.

We noted in Wesleyan that “arbitration agreements are to be strictly construed and such agreements should not be extended by implication”; id., 355; and that Wesleyan had never contracted with Rissil. We held that “[pjersons thus cannot compel arbitration of a disagreement between or among parties who have not contracted to arbitrate that disagreement between or among themselves.” Id.

The issue of whether a nonsignatory to an agreement to arbitrate can be compelled to arbitrate has been considered in several instances by the United States Court of Appeals for the Second Circuit. In deciding these cases, the court has turned for guidance to the Federal Arbitration Act, 9 U.S.C. §§ 1 through 15. In Fisser v. International Bank, 282 F.2d 231, 233 (2d Cir. 1960), the court wrote: “It does not follow . . . that under the [Federal Arbitration] Act an obligation to arbitrate attaches only to one who has personally signed the written arbitration provision. For the Act contains no built-in Statute of Frauds provision but merely requires that the arbitration provision itself be in writing. Ordinary contract principles determine who is bound by such written provisions and of course parties can become contractually bound absent their signatures.” In deciding two later cases, A/S Custodia v. Lessin International, Inc., 503 F.2d 318 (2d Cir. 1974), and McAllister Bros., Inc. v. A&S Transportation Co., 621 F.2d 519 (2d Cir. 1980), the court, after citing the rule in Fisser, ruled on the issue regarding nonsignatories by reference to § 4 of the Federal Arbitration Act. That section, which we note concerns an action to compel arbitration, provides that “[i]f the making of the arbitration agreement . . . [is] in issue, the court shall proceed summarily to the trial thereof.”

There is no provision in the General Statutes, under the section concerning applications for orders to proceed with arbitration or the section dealing with applications to confirm arbitration awards, that coincides exactly with the language we quoted from § 4 of the Federal Arbitration Act. General Statutes § 52-408, however, which concerns agreements to arbitrate generally, provides that an arbitration agreement shall be “valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.” A party’s claim that it is not a signatory to a contract and therefore not bound by the agreement is clearly “sufficient cause ... for the avoidance of contracts generally.” The policy embodied in both the state and federal statutes we have cited is applicable to the facts of this case. The plaintiff in this action sought and obtained arbitration of a dispute. The record before us reflects that the partnership was not a signatory to the contract. The partnership claimed at trial that it did not receive proper notice of the arbitration. The plaintiff applied for confirmation of the arbitration award. The partnership was denied a hearing in the trial court to determine if in fact it was a party to the contract with the plaintiff. If the partnership is not permitted a hearing on the issue of whether it was a party to the arbitration agreement, we would run the risk of affirming the confirmation of an arbitration award against a party that did not agree to arbitration. Such a result would be untenable, and defy both fairness and logic.

The plaintiff has asserted that the judgment of the trial court should be affirmed because although the partnership is not a signatory to the agreement, the signatory, Q.S.C.V., is an agent of the partnership. The principal-agent status between the partnership and Q.S.C.V. was never proven at trial.

“The question of the existence or nonexistence of an agency relationship is ordinarily one of fact to be determined by the trier of fact.” McLaughlin v. Chicken Delight, Inc., 164 Conn. 317, 323, 321 A.2d 456 (1973). This principle applies to the court’s role as the trier of fact in arbitration proceedings. In Wesleyan University v. Rissil Construction Associates, Inc., supra, as we have noted, the defendant subcontractor sought to bring Wesleyan into arbitration by alleging that the general contractor was an agent of Wesleyan. We concluded that the trial court improperly determined that the general contractor was an agent of Wesleyan, not because the trial court could not rule on agency, but because the facts and circumstances did not support its finding. Id., 354.

The United States Court of Appeals for the Second Circuit takes a similar approach, requiring the district court, as the trier of fact in arbitration proceedings, to apply ordinary contract and agency principles to determine who is bound by the arbitration provisions of a contract. See McAllister Bros., Inc. v. A & S Transportation Co., supra (whether affiliates or subsidiaries bound by agreement signed by principal); A/S Custodia v. Lessin International, Inc., supra (whether broker is agent of principal in context of charter party); Fisser v. International Bank, supra (whether bank must proceed to arbitration as “alter ego” of signatory corporation). In the present case, to support its claim that Q.S.C.V. is the agent of the partnership, the plaintiff points to a document it had admitted into evidence during a hearing on notice. The trial court allowed the partnership a brief hearing on its claim that it did not receive proper notice of the arbitration hearing. At issue was the partnership’s address on certain dates. The partnership put on one witness, a general partner. That witness was cross-examined by counsel for the plaintiff. During cross-examination, the plaintiff admitted into evidence a copy of a complaint that the partnership filed in Superior Court against the plaintiff. At issue was the address used by the partnership. The complaint stated that “on or about September 29, 1988, the Plaintiff, through its agent, servant or employee, [Q.S.C.V.], Inc., a corporation organized and existing under the laws of the State of Connecticut, entered into a written contract with the Defendant, Total Property Service of New England, Inc., as a general contractor, whereby the Defendant agreed to construct a building on the premises previously described in Schedule ‘A.’ ” On appeal, the plaintiff directs our attention to this document to show that Q.S.C.V. is an agent of the partnership, and that the partnership is therefore a party to the agreement to arbitrate. As we noted above, there was no hearing on the issue of whether the partnership was a party. The complaint was entered into evidence on the issue of notice. Since there was no hearing on agency or whether the partnership was a party, the trial court never decided this issue. As an appellate tribunal, we choose not to rule on an issue that was not heard by the trial court, and about which the trial court, in fact, refused a hearing.

The partnership’s second claim is that there was no valid arbitration agreement on which the arbitrator could obtain subject matter jurisdiction. The trial court declined to hold a hearing on this issue when it was raised by the partnership in its objection to the confirmation of the arbitration award because the court said the issue should have been raised before the arbitrator. We agree with the partnership that the validity of the agreement could be raised in the trial court.

The partnership claims that the agreement to arbitrate was invalid because it contains conflicting provisions, one of which is contained in a typed-in, added clause. The agreement in question is a standard American Institute of Architects document number 107. Article 10.8 of the document states that “[a]ll claims or disputes between the Contractor and the Owner arising out or relating to the Contract or the breach thereof, shall be decided by arbitration . . . .” The typewritten, presumably added, Article 21 states: “All disputes arising out of this contract shall be interpreted under the Commonwealth of Massachusetts with a court in the State of Massachusetts as governing body.”

“ ‘[WJhere there is a printed form of contract, and other words are inserted [in the printed form], in writing or otherwise, it is to be assumed that they take precedence over the printed matter.” A. Dubreuil & Sons, Inc. v. Lisbon, 215 Conn. 604, 612, 577 A.2d 709 (1990) (change of wording from “may” to “shall”). In the present case, the arbitration agreement contains terms that conflict with each other absolutely. This conflict brings into question subject matter jurisdiction, and therefore the authority of the arbitrator to hear the dispute. “The authority of the arbitrator is a subject matter jurisdiction issue, and as such it may be challenged at any time prior to a final court judgment. International Brotherhood of Teamsters v. Shapiro [138 Conn. 57, 65, 82 A.2d 345 (1951)]; Textile Workers Union v. Uncas Printing & Finishing Co., 20 Conn. Sup. 91, 96, 125 A.2d 236 (1956).” Bennett v. Meader, 208 Conn. 352, 364, 545 A.2d 553 (1988). Therefore, the partnership’s challenge to the authority of the arbitrator, although brought after the award, was not waived and was, in fact, timely.

The partnership next makes two claims not raised in the trial court that it asks us to review under the plain error provisions of Practice Book § 4185. Those claims are that the arbitrator failed to render an award within thirty days of the close of the hearing as required under General Statutes § 52-416 (a) thus nullifying the award, and that the plaintiff, because it does not have authority to transact business in Connecticut, is statutorily prohibited from maintaining any action, suit, or proceeding in any court in this state under General Statutes §§ 33-412 (a) and 33-396 (a). We decline to review these claims. “Nothing in the case gives rise to any manifest injustice amounting to plain error under all the circumstances. . . . The doctrine of plain error should be invoked sparingly. To hold otherwise would undermine the requirement that claims of law be raised in the trial court in the first instance.” (Citation omitted; internal quotation marks omitted.) Small v. South Norwalk Savings Bank, 205 Conn. 751, 760, 535 A.2d 1292 (1988).

The final claim of the partnership is that the trial court incorrectly determined that the plaintiff provided the partnership with adequate notice of the arbitration proceeding. Although the trial court did not permit a hearing on whether the partnership was a signatory to the contract or on whether the agreement was valid despite conflicting provisions, it did permit a brief hearing on the issue of notice. The partnership put on one witness, Thomas McHugh, a general partner. McHugh testified that he did not receive notice of the arbitration hearing or the award. He said that the first correspondence he received regarding the arbitration was the notice of the application to confirm the arbitration award. During cross-examination, McHugh testified that the proper address for the real estate partnership, at the time of the arbitration hearing, was 101 Oak Street, Hartford. When counsel asked McHugh if the partnership ever used the address 40 Stanford Drive, McHugh replied, “Not in three years.” Counsel for the plaintiff then offered into evidence the complaint we discussed previously, dated May 10,1990, which stated that the partnership’s address on that date, a year before the arbitration proceedings began, was 40 Stanford Drive, Farmington. The court asked to examine the document, ended the proceedings, and rendered judgment for the plaintiffs orally from the bench.

The brief, cursory hearing, cut off by the court’s rendering judgment, was insufficient under the circumstances. As we have determined, the partnership was improperly denied a hearing on the two threshold issues of whether as a nonsignatory to the agreement it could be bound, and whether the dispute was properly before an arbitrator. For this case to have been properly resolved, a full hearing on the merits of the partnership’s objection to the confirmation application was in order. Our careful review of the transcript reveals that this did not occur.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The original named defendants in this case were Q.S.C.V., Inc., doing business as Dunkin’ Donuts, and Bergeron/Sheehan/Therrien General Real Estate Partnership. This appeal was brought by only the defendant Bergeron/Sheehan/Therrien General Real Estate Partnership. The plaintiff alleges that Q.S.C.V., Inc., is an agent of the real estate partnership.

       Q.S.C.V., Inc., filed a chapter 11 bankruptcy petition on December 11, 1990. The petition was dismissed on January 2, 1992.

       General Statutes § 52-408 provides: “An agreement in any written contract, or in a separate writing executed by the parties to any written contract, to settle by arbitration any controversy thereafter arising out of such contract, or out of the failure or refusal to perform the whole or any part thereof, or a written provision in the articles of association or bylaws of an association or corporation of which both parties are members to arbitrate any controversy which may arise between them in the future, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.”

       Practice Book § 4185 provides in part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       General Statutes § 52-416 (a) provides: “If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or, if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made by an extension or ratification in writing.”

       General Statutes § 33-412 (a) provides: “No foreign corporation transacting business in this state in violation of section 33-396 shall be permitted to maintain any action, suit or proceeding in any court of this state unless such corporation has obtained a certificate of authority. Nor shall any action, suit or proceeding be maintained in any court in this state by any successor or assignee of such corporation on any right, claim or demand, arising out of the transaction of business by such corporation in this state, until a certificate of authority has been obtained by such corporation or by a corporation which has acquired all or substantially all of its assets.”

       General Statutes § 33-396 (a) provides: “No foreign corporation except an insurance or surety or indemnity company shall transact business in this state until it has procured a certificate of authority to do so from the secretary of state, and no insurance, surety or indemnity company shall transact business in this state until it has procured a license from the insurance commissioner in accordance with the provisions of § 38a-41.”