author: HENNESSY, J.

text:
    WALTER KRASOWSKI ET AL. v. LOUIS FANTARELLA ET AL.
    (AC 17625)
    Foti, Landau and Hennessy, Js.
    Argued September 17
    officially released December 8, 1998

      Bernard Green, with whom were Mami Smith Katz and, on the brief, Eric M. Gross, for the appellantsappellees (named defendant et al.).

      Elizabeth F. Flynn, for the appellees-appellants (plaintiffs).
   Opinion

HENNESSY, J.

The defendants, Louis Fantarella, Jr., Laura Fantarella and Louis Fantarella, Sr., appeal from the judgment of the trial court rendered against them in an action to quiet and settle title. Pursuant to General Statutes § 47-30, the plaintiffs, Walter J. Krasowski and Genevieve Krasowski, elected to have the trial court confirm the title of the disputed property in the defendants and to have the defendants pay an equitable sum as determined by the trial court. The defendants challenge the trial court’s determination of the value of the disputed property and dispute the trial court’s award of reasonable fees to the plaintiffs pursuant to Practice Book § 241, now § 13-25. Specifically, the defendants claim that (1) the value of the disputed property, as derived by the trial court, is not supported by competent evidence and (2) the trial court improperly granted the plaintiffs’ motion for order under Practice Book § 241 postjudgment. We affirm the judgment of the trial court with regard to both of the defendants’ claims.

The plaintiffs filed a cross appeal claiming that the trial court’s determination of the equitable sum due to the plaintiffs was improper because the trial court (1) failed to award the plaintiffs the fair value of the use and occupancy of the real property during the wrongful possession and (2) failed to award attorney’s fees incurred by the plaintiffs in the prosecution of the action. With regard to the plaintiffs’ first claim on their cross appeal, we remand the action to the trial court for a hearing on whether an award of use and occupancy is warranted. We affirm the judgment of the trial court with regard to the plaintiffs’ second claim on the cross appeal.

The following procedural history is relevant to this appeal. The plaintiffs brought an action against the defendants to quiet and settle title in real property known as 528 Wheelers Farm Road in Orange. In a preliminary ruling dated May 31, 1996, the trial court found that title to the disputed property rested in the plaintiffs and directed that a hearing in damages be held pursuant to General Statutes § 47-30.

On June 20, 1996, the plaintiffs filed a notice of election pursuant to § 47-30, requesting “to have title to the property . . . confirmed in the defendants, upon payment of an equitable sum to be determined by the court.” Also on June 20, 1996, the plaintiffs filed a motion for order pursuant to Practice Book § 241, now § 13-25, requesting that the trial court award to the plaintiffs reasonable expenses, including attorney’s fees, incurred by the plaintiffs in proving the truth of matters that the defendants failed to admit in the plaintiffs’ request for admissions dated April, 27, 1994.

On December 3, 1996, the trial court held a hearing in damages pursuant to § 47-30. On December 25, 1996, the defendants filed a posttrial supplementary memorandum objecting to the plaintiffs’ motion for order.

In a memorandum of decision dated September 11, 1997, the trial court rendered judgment and awarded damages, pursuant to § 47-30, of $145,748 and costs against the defendants Louis Fantarella, Jr., and Laura Fantarella.* This award represented the trial court’s determination of the value of the disputed property as of 1995. The trial court denied the plaintiffs’ request for attorney’s fees.

On September 19, 1997, the defendants Louis Fantarella, Jr., and Laura Fantarella appealed from the September 11, 1997 judgment of the trial court. On September 30, 1997, the plaintiffs filed a cross appeal from the same judgment.

On October 1, 1997, the plaintiffs filed a motion with the trial court to reconsider its failure to award use and occupancy damages and attorney’s fees. The trial court denied the plaintiffs’ motion to reconsider on December 1, 1997. Also on December 1, 1997, the trial court granted the plaintiffs’ motion for order requesting cost and fees under Practice Book § 241.

The defendants filed an amended appeal on December 8, 1997, which included the trial court’s December 1, 1997 order granting the plaintiffs’ motion for order and added Louis Fantarella, Sr., as an appellant. Other facts will be discussed where relevant to the issues in the case.

I

The defendants first claim that the trial court improperly determined the value of the property because the valuation was not supported by competent evidence. We disagree.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book, 1978, § 3060D [now § 60-5]. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

“We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” Id., 222.

The trial court concluded that the value of the defendants’ parcel of the disputed property was $145,748. In deriving the value of only the defendants’ parcel, the trial court used the plaintiffs’ appraisal of $128,600, then “reinstated the 18 percent adjustment made by the appraiser to arrive at a 1995 value and thereafter [reduced] the figure by the amount of $6000 assessed against the Mallinson portion of the subject property.” The trial court further stated: “This compares favorably with the assessor’s value of $140,200.” This is supported by the evidence. During the hearing on December 3, 1996, the plaintiffs and the defendants presented conflicting expert witness testimony regarding the value of the disputed property. Both experts used the sales comparison method to appraise the property; however, the plaintiffs’ expert characterized the property as residential while the defendants’ expert characterized the property as excess acreage. Although the parcel was originally intended to be part of a subdivision, the road improvements were never made. The parcel occupied by the Fantarellas does not have frontage. The town zoning officer testified that while the property became nonconforming when the road improvements were not made, the town considers the lot legally nonconforming. In its September 11, 1997 memorandum of decision, the trial court stated that “the court considers the property occupied by the Fantarellas to be a building lot albeit not conforming but not illegal. Its value therefore should be determined as such.” Thereafter, the trial court accepted the opinion of the plaintiffs’ expert as to the value of the defendants’ parcel of the disputed property.

The plaintiffs’ expert witness, Richard Vincent, testified that he used three residential properties for comparison, and he testified as to the location, size and sales price of these three parcels. He arrived at an appraised value of the full parcel of $128,600 as of September, 1985, the date of the alleged taking.

The defendants argue that the trial court, in its September 11, 1997 memorandum of decision, “disavowed the testimony of the plaintiffs’ expert” and “found that the approach taken by the defendants’ appraiser was more appropriate.” This argument is without merit. The trial court found that the approach taken by the defendants’ appraiser was more appropriate only for the determination of the value of the Mallinson parcel.

We note that “[i]n determining the value of the property taken, the trier arrives at its own conclusions by weighing the opinions of the appraisers, the claims of the parties, and its own general knowledge of the elements going to establish value, and then employs the most appropriate method to determine the damages that result from the taking. Laurel, Inc. v. Commissioner of Transportation, 180 Conn. 11, 37-38, 428 A.2d 789 (1980); Greenfield Development Co. v. Wood, 172 Conn. 446, 451, 374 A.2d 1084 (1977); Esposito v. Commissioner of Transportation, 167 Conn. 439, 441, 356 A.2d 175 (1974); Slavitt v. Ives, 163 Conn. 198, 209, 303 A.2d 13 (1972); Schnier v. Ives, 162 Conn. 171, 177-78, 293 A.2d 1 (1972). It is clear that ‘the trial 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.’ Greenfield Development Co. v. Wood, supra; see Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 99, 230 A.2d 9 (1967); Bennett v. New Haven Redevelopment Agency, 148 Conn. 513, 516, 172 A.2d 612 (1961).” Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 181 Conn. 220-21.

The defendants further claim that the trial court’s observations did not support the findings. This claim is without merit. “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) McNeil v. Riccio, 45 Conn. App. 466, 472, 696 A.2d 1050 (1997). After a review of the complete record, we conclude that there is evidence to support the trial court’s determination of the value of the disputed property.

The defendants further claim that the trial court improperly applied the 18 percent adjustment. The trial court did not articulate the basis for this adjustment. “It is the responsibility of the appellant to provide an adequate record for review . . . .” Practice Book § 60-5. “Without an adequate record on which to review the rulings of the trial court, this court must assume that the trial court acted properly.” (Internal quotation marks omitted.) Lord v. Mansfield, 50 Conn. App. 21, 30, 717 A.2d 267, cert. denied, 247 Conn. 943, 723 A.2d 321 (1998).

After a careful review of the record, we conclude that the trial court’s determination of the value of the property was supported by the evidence and, therefore, is not clearly erroneous.

II

The defendants next claim that the trial court improperly granted the plaintiffs’ motion for order postjudgment. That motion requested reasonable costs pursuant to Practice Book § 241, now § 13-25. Specifically, the defendants claim that the trial court denied the plaintiffs’ request for attorney’s fees in its September 11, 1997 memorandum of decision and then improperly reversed that decision without opening the judgment when it granted the plaintiffs’ motion for order postjudgment. We are not persuaded.

The trial court had before it two separate requests. The first was a motion for order pursuant to Practice Book § 241 filed by the plaintiffs on June 20, 1996. That motion requested that the court order the defendants to pay reasonable expenses, including reasonable attorney’s fees, incurred by the plaintiffs in proving the facts that the defendants failed to admit in the plaintiffs’ request for admissions dated April 27,1994. The defem dants incorrectly assume that the motion for order pursuant to Practice Book § 241 is a request for attorney’s fees. Practice Book § 13-25, formerly § 241, like its federal counterpart, Fed. R. Civ. P. 37 (c) (2), is in essence a sanction. See Fed. R. Civ. P. 37 (c) advisory committee note to 1970 amendment (“Rule 37 [c] provides a sanction for the enforcement of Rule 36 dealing with requests for admission. . . . [and] is intended to provide posttrial relief in the form of a requirement that the party improperly refusing the admission pay the expenses of the other side in making the necessary proof at trial”).

Next, at the December 3, 1996 hearing in damages, the plaintiffs’ attorney requested attorney’s fees in connection with the damages that the court in equity can award under § 47-30. In its memorandum of decision regarding damages dated September 11, 1997, the trial court granted costs, but denied the plaintiffs’ request for attorney’s fees because “[t]he court has previously found that the Fantarellas did not act with any intent to deprive the Krasowskis of their property.” The trial court further stated that “when [Laura Fantarella and Louis Fantarella, Jr.,] purchased the property, they engaged the services of an attorney as well as having the record title examined by a qualified title examiner who led them to believe that they were the true owners of the subject property. . . . With this in mind, the court makes no award of attorney’s fees.” The trial court did not address the outstanding motion for order.

On October 1, 1997, the plaintiffs filed a motion to reconsider, which requested that the trial court reconsider its failure to award use and occupancy damages and attorney’s fees in the prosecution of the action. On. December 1, 1997, the trial court denied the plaintiffs’ motion to reconsider. On the same day, the trial court granted the plaintiffs’ motion for order requesting cost and fees under Practice Book § 241, and stated that “[t]he motion is granted except that the legal fees of $21,294 shall in equity be assessed against the defendant, Louis Fantarella, Sr.”

These rulings are consistent with the September 11, 1997 memorandum of decision. The trial court again denied the plaintiffs’ request for attorney’s fees in connection with the damages. The trial court then granted the outstanding motion for order, which was collateral to the judgment. “It is well established that a trial court maintains jurisdiction over an action subsequent to the filing of an appeal. Practice Book § 4006 [now § 61-9] . . . .” Ahneman v. Ahneman, 243 Conn. 471, 482, 706 A.2d 960 (1998). “[W]here a court is vested with jurisdiction over the subject-matter . . . and . . . obtains jurisdiction of the person, it becomes its . . . duty to determine every question which may arise in the cause . . . .” (Internal quotation marks omitted.) Id., 484.

The defendants also appear to argue that the trial court should have held a hearing on the motion for order. Both of the parties, however, concede in their briefs and at oral argument that the trial court held a hearing on April 7,1997 regarding the motion for order. Therefore, on December 1, 1997, when the trial court granted the motion for order, it had already held a hearing.

In addition, Practice Book § 13-25 does not mandate that a hearing be held. That section provides in relevant part: “The judicial authority shall make the order unless it finds that such failure to admit was reasonable. ” When the trial court granted the plaintiffs’ motion for order, the trial court also had before it the defendants’ posttrial supplementary memorandum of law objecting to the plaintiffs’ motion for order. Since the basis of the defendants’ objection was that the defendants’ failure to admit was reasonable in light of their good faith belief in their title, the trial court had an adequate basis to determine whether “such failure to admit was reasonable.”

We conclude that under these circumstances, the trial court’s granting of the plaintiffs’ motion for order post-judgment was proper.

Ill

On cross appeal, the plaintiffs first claim that the trial court should have awarded them the fair value of the use and occupancy of the disputed property during the wrongful possession pursuant to § 47-30. Specifically, the plaintiffs assert that the trial court improperly precluded an award of use and occupancy because it concluded that the plaintiffs’ election under § 47-30 was limited to the value of the property. We agree that the court should not have precluded consideration of an award of use and occupancy and should have exercised its discretion.

Section 47-30 provides in relevant part: “If the plaintiff elects to have the title confirmed in the defendant . . . the court shall ascertain what sum ought in equity to be paid to the plaintiff by the defendant . . . .” (Emphasis added.) In this case, however, the trial court concluded that the plaintiffs’ election under § 47-30 constituted an election to receive the value of the property and not use and occupancy. The trial court misinterpreted the statute. Section 47-30 directs the court to determine what equitable sum is due to the plaintiff and does not limit the court to the value of the property. Since the court awarded the plaintiffs the value of the property as of 1995, the trial court could have awarded the plaintiffs the fair value of the use and occupancy from 1985 to 1995, which were the years of the plaintiffs’ dispossession. The trial court failed to exercise its discretion.

The plaintiffs further argue that to make them whole, the trial court must either award “the value of the property at the time of the taking plus legal interest from that date, or the present day value of the property, plus an award for the use and occupancy during the period of trespass.” The plaintiffs request that we remand the case to the trial court with direction to render a supplemental judgment for the value of the use and occupancy. We are not persuaded.

Equity does not necessarily mean full compensation to the plaintiffs. Equity is “[¡justice administered according to fairness as contrasted with the strictly formulated rules of common law. . . . The term ‘equity’ denotes the spirit and habit of fairness, justness, and right dealing which would regulate the intercourse of men with men.” Black’s Law Dictionary (6th Ed. 1991). Equity takes into consideration fairness to both the plaintiff and the defendant. Since equitable determinations require the balancing of many factors and are committed to the trial court’s discretion; see Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994); we decline to order the trial court; to render a supplemental judgment for the value of the use and occupancy as requested by the plaintiffs.

We conclude that the trial court misinterpreted § 47-30 to limit the award to the value of the property and to preclude an award of use and occupancy. We remand the action to the trial court for proceedings to determine, in the exercise of its discretion, whether an award of use and occupancy is warranted.

IV

The plaintiffs next claim that under § 47-30, the trial court should have awarded them attorney’s fees incurred during the prosecution of the action. Specifically, the plaintiffs claim that they cannot be fully compensated for loss of their property without an award of attorney’s fees.

“[Ejquitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” Id. “Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling. . . . New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 92, 709 A.2d 14 (1998).” (Internal quotation marks omitted.) Wright v. Hutt, 50 Conn. App. 439, 445, 718 A.2d 969, cert. denied, 247 Conn. 939, 723 A.2d 320 (1998). On appellate review, the trial court’s rulings will not be disturbed absent an abuse of discretion. Id. “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 800, 614 A.2d 414 (1992).

Section 47-30 provides in relevant part: “If the plaintiff elects to have the title confirmed in the defendant . . . the court shall ascertain what sum ought in equity to be paid to the plaintiff by the defendant . . . .” (Emphasis added.) Under § 47-30, attorney’s fees can be awarded by the trial court if the trial court ascertains that the award of attorney’s fees is equitable. As we stated previously, equity does not necessarily mean full compensation to the plaintiffs.

During the December 3, 1996 hearing, the plaintiffs requested payment for attorney’s fees incurred in the prosecution of the action. In its memorandum of decision dated September 11, 1997, the trial court stated: “The court has previously found that the Fantarellas did not act with any intent to deprive the Krasowskis of their property. In fact, when they purchased the property, they engaged the services of an attorney as well as having the record title examined by a qualified title examiner who led them to believe that they were the true owners of the subject property. . . . With this in mind, the court makes no award of attorney’s fees.” Subsequently, on December 1, 1997, the trial court denied the plaintiffs’ October 1, 1997 motion to reconsider. On the same day, however, the trial court granted the plaintiffs’ June 20,1996 motion for order requesting cost and fees pursuant to Practice Book § 13-25.

The trial court reasonably could have concluded that it would not be equitable under the circumstances to award attorney’s fees to the plaintiffs. We conclude that the trial court did not abuse its discretion in denying the plaintiffs’ request for attorney’s fees in the prosecution of the action to quiet title.

On the cross appeal, the judgment is reversed only as to the denial of use and occupancy payments to the plaintiffs and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Louis Fantarella, Jr., and Laura Fantarella occupy a house that they built on the disputed property. They purchased the disputed property from Louis Fantarella, Sr. In the original action, Lorraine B. Mallinson, the New Haven Savings Bank and the Union Trust Company were also defendants; however, they are not parties to this appeal. We refer in this opinion to the Fantarellas as the defendants.

       General S1 atutes § 47-30 provides: “Final judgment shall not be rendered, in any action to recover the possession of land, against any defendant who has, in good faith, believing his title to the land in question absolute, made improvements on the land before the commencement of the action, or whose grantors or ancestors have made the improvements, until the court has ascertained the present value of the improvements and the amount reasonably due the plaintiff from the defendant for the use and occupation of the land. If the value of the improvements exceeds the amount due for use and occupation, execution shall not be issued until the plaintiff has paid the balance to the defendant or into court for his benefit. If the plaintiff elects to have the title confirmed in the defendant and, upon the rendition of the verdict, files notice of the election with the clerk of the court, the court shall ascertain what sum ought in equity to be paid to the plaintiff by the defendant or other parties in interest and, on payment of it, may confirm the title to the land in the parties paying it.”

       Practice Book § 13-25 provides: “If a party fails to admit the genuineness of any document or the truth of any matter as requested herein, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, such party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The judicial authority shall make the order unless it finds that such failure to admit was reasonable.”

       Additionally, the trial court awarded $6000 in damages against the defendant Mallinson.

       The September 11, 1997 memorandum of decision originally stated that the property was valued as of 1985. On December 12, 1997, the trial court granted the plaintiffs’ motion to correct this figure from 1985 to 1995 to reflect the intention of the court, to make an award based on the property value as of 1995.

       The disputed property consisted of two parcels. Only one of the parcels involved the defendants. The other parcel involved Mallinson.

       The defendants also claim that Ihe trial court improperly admitted and relied on the assessor’s appraisal. This claim is without merit. The trial court used the assessor’s value for comparative purposes only. Since the trial court did not rely on the assessor’s appraisal, any error in admitting the assessor’s report would be harmless.

       Specifically, the plaintiffs asserted that the defendants failed to admit the genuineness of the Fuller partition map and the CNB map by Harry PidlusM. The plaintiffs further asserted that the defendants failed to admit that the plaintiffs were the true legal owners of the disputed property and property abutting the Mallinson property on the south.

       The following colloquy took place at the December 3, 1996 hearing between the attorney for the plaintiffs and the attorney for the defendants:
      “[Plaintiffs’ Attorney]: Your Honor, at the hearing last January there were two documents marked for identification only, nineteen and twenty, copies of attorney fees. Now, in light of Your Honor’s ruling, I’d like to have them made full exhibits and have Mr. Krasowski identify them.
      ’’[Defendants’ Attorney]: I’d object. I don’t see how they’re in any way material to the issues before the court.
      “[Defendants’ Attorney]: In the case-in-chief, that issue was discussed, it was objected to, objection was sustained, the exhibit was marked for identification. By the statute, the court having made its finding and the plaintiff having made its election, we’re now in court on equitable evaluation of property that—
      “The Court: Well, if I’ve already ruled on it, I’m not going to rule on it again.
      “[Plaintiffs’ Attorney]: Your Honor, your ruling in January, there was never [a] determination at that time whether Mr. Krasowski did indeed own the land. Now that that’s been decided, part and parcel of his damages, which the court in equity can award him are attorney’s fees, the survey fees, the appraiser’s fees, the expert attorney’s fees. If Your Honor prefers, I will submit this separately in a memorandum and call Mr. Krasowski back one more time.
      “The Court: I think that might be the better way to proceed.”

       While the judgment file confirms that a hearing was held on April 7, 1997, it does not state the subject matter of the hearing. Neither party provided us with a copy of the transcript from that hearing.

       In the trial court’s memorandum of decision dated September 11,1997, the trial court stated: “Title to the disputed parcel has been quieted in the plaintiffs Krasowski. Pursuant to § 47-30 of the General Statutes, they have elected to have the court quiet the title thereof in the defendants Fantarella and Mallinson. There remains then for the court to assess whatever damages the plaintiffs have incurred as a result of the actions of the defendants, namely the value of the subject property being quieted in each defendant.
      “In doing so, the court makes its determination of value for the subject parcels as of the date on which the Krasowskis made their election pursuant to § 47-30 of the General Statutes. This decision by the plaintiffs constitutes an election to receive the reasonable value of the property rather than any damages incurred as a result of their use and occupancy resulting from, their trespass." (Emphasis added.)


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    MERLIN THOMSEN v. AQUA MASSAGE INTERNATIONAL, INC.
    (AC 17369)
    O’Connell, C. J., and Foti and Hennessy, Js.

      Argued September 29
    officially released December 8, 1998

      Michael J. Quinn, for the appellant (plaintiff).

      F. Jerome O’Malley, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, Merlin Thomsen, appeals from the judgment rendered by the trial court after it granted the defendant’s motion for summary enforcement of a settlement agreement purportedly reached between the plaintiff and the defendant, Aqua Massage International, Inc. The plaintiff claims that the trial court improperly (1) summarily enforced the settlement agreement, the terms of which were not clear and unambiguous, (2) concluded that a proposed draft agreement constituted an accurate recital of the terms of that agreement, (3) admitted into evidence and relied on a letter from the American Arbitration Association (association) and (4) concluded that the parties had actually reached a settlement agreement. We reverse the judgment of the trial court.

The following facts are relevant to this appeal. The dispute between the parties arose out of a 1988 exclusive license agreement for the commercial development by the defendant of the plaintiffs invention, a water jet massage apparatus. In 1995, the plaintiff filed a complaint against the defendant that alleged breach of contract, negligent misrepresentation, mutual mistake, lack of consideration, fraudulent inducement and tradem ark violations. On June 12,1996, the parties agreed to settle their dispute by submitting it to nonbinding mediation before the association. On November 4,1996, the mediation session proceeded over a nine hour period, concluding at approximately 6:30 p.m. On the following day, the association sent a letter to the parties stating: “This letter is to confirm that the mediation held on November 4, 1996, was successful. Therefore, we are closing our file.”

On November 18, 1996, David M. Cote, president of the defendant corporation, sent the plaintiff a draft of the alleged agreement, which he maintained confirmed all of the terms to which the parties had agreed at the November 4 meeting. On January 16, 1997, counsel for the plaintiff rejected the proposed draft agreement for reasons “too numerous” to articulate fully in his letter. Instead, counsel for the plaintiff submitted a substitute proposal to the defendant.

Nevertheless, on February 14, 1997, the defendant filed a motion in the trial court for judgment and summary enforcement of the original draft agreement it had sent to the plaintiff. Following an evidentiary hearing, the trial court found that an oral agreement had, in fact, been reached on November 4,1996, settling all disputes between the parties. The trial court further concluded that the proposed draft agreement prepared by the defendant accurately recited the material terms of that agreement. Thereafter, judgment was rendered in favor of the defendant. This appeal followed.

I

The plaintiff first challenges the trial court’s legal conclusion that the alleged settlement agreement was clear and unambiguous and, therefore, summarily enforceable.

Generally, “ ‘[a] trial court has the inherent power to enforce summarily a settlement agreement as a matter of law [only] when the terms of the agreement are clear and unambiguous’; Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993); and when ‘the parties do not dispute the terms of the agreement.’ Id., 812.” Ballard v. Asset Recovery Management Co., 39 Conn. App. 805, 808, 667 A.2d 1298 (1995), cert. denied, 236 Conn. 906, 670 A.2d 1306 (1996). Here, because the plaintiff challenges the trial court’s legal conclusion that the settlement agreement was summarily enforceable, we must determine whether that conclusion is “ ‘legally and logically correct and whether [it finds] support in the facts set out in the memorandum of decision . . . Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256, 524 A.2d 610 (1987).

The parties agree that this was a difficult case, involving complex issues and requiring lengthy mediation. In consideration of this fact, the trial court heard testimony from both Cote and the plaintiff concerning the issues discussed at the mediation session. In addition, the trial court viewed exhibits and resolved the conflicting testimony as to whether the parties had reached an oral settlement agreement on November 4, 1996. In its brief memorandum of decision, however, the trial court merely concluded that “[a]fter reviewing the testimony of Cote and Thomsen and the exhibits, the court is firmly convinced that there was an agreement between the parties on November 4, 1996.”

An examination of the trial court’s decision shows, however, that it did not make any findings of fact related to the terms of the parties’ agreement, nor did it make any findings related to any dispute of those terms. Additionally, it made no findings of fact as to whether the oral settlement agreement was clear and unambiguous. Following the trial court’s decision, the plaintiff did not seek an articulation, nor did he move to correct the trial court’s memorandum of decision. Normally, a determination of what the parties intended to encompass in their oral agreement is a question of the intention of the parties and an inference of fact. See Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199, 520 A.2d 208 (1987). “[W]hat the parties intended is normally a question of fact, reversible only if the trier of fact could not reasonably have arrived at the conclusion that it had reached.” Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 130, 523 A.2d 1266 (1987).

In this case, we cannot determine whether the trial court’s conclusion is reasonably supported by the facts found because the memorandum of decision did not include the necessary findings of fact. Generally, it is the appellant’s burden to furnish an adequate record on appeal. Practice Book § 61-10, formerly § 4007; Statewide Grievance Committee v. Clarke, 48 Conn. App. 545, 547, 711 A.2d 746, cert. denied, 245 Conn. 923, 717 A.2d 239 (1998). Here, the record before us is inadequate for our determination of the plaintiffs first claim that the trial court improperly enforced a settlement agreement that was not clear and unambiguous. We therefore decline to review it.

II

The plaintiff next claims that the trial court improperly concluded that the draft agreement sent to the plaintiff by the defendant reflected accurately the material terms of the oral agreement. The plaintiff asserts that the evidence in this case revealed that both parties had contemplated that further action was necessary to consummate contractual relations.

On the issue of whether the testimony supported the finding that the draft agreement reflected accurately the oral agreement of the parties, the trial court stated: “Cote was a strong and persuasive witness who clearly stated that [the] oral and written agreements were the same. Thomsen was a confused, somewhat inarticulate witness who testified that he could not remember what was agreed to or discussed at the November 4, 1996 meeting. He said he saw the agreement drafted by the defendant, but never stated any objection to Cote or his attorney. The court finds Cote’s testimony to be the more credible and, therefore, believes the written agreement does accurately reflect the oral understanding of the parties on November 4, 1996.”

This issue is one of credibility. The trial court had before it the proposed draft as well as the testimony of two individuals who differed as to whether that draft accurately reflected what was agreed on during the nine hour mediation session. “The trial court, as the finder of fact, is in the best position to assess the credibility of the witnesses testifying before it.” Vezina v. Nautilus Pools, Inc., 27 Conn. App. 810, 818, 610 A.2d 1312 (1992). We therefore leave issues of credibility to the trial court.

Ill

The plaintiff next claims that the trial court improperly admitted into evidence a letter from the association. The plaintiff asserts that this letter was inadmissible because it was described in a subpoena duces tecum, which was the subject of a successful motion to quash, and because it was hearsay. We agree that the letter constituted hearsay and that its admission was both improper and harmful.

Additional facts are necessary to the resolution of this issue. On April 29, 1997, in preparation for the hearing on its motion to enforce the settlement agreement, the defendant issued a subpoena duces tecum summoning the association mediator to appear before the trial court and ordering him to bring “[a]ny and all notes, documents, records and reports pertaining to the mediation” of the parties’ case. In response, counsel for the association filed a motion to quash the subpoena, asserting that the information sought by the defendant was privileged. A hearing on this motion was held on May 13, 1997.

At the hearing, the defendant argued that the information sought was necessary to establish that an accord had been reached between the parties. Nevertheless, the trial court granted the motion to quash, relying on rule 12 of the association’s Commercial Mediation Rules and the ruling in National Labor Relations Board v. Macaluso, Inc., 618 F.2d 51, 56 (9th Cir. 1980), which stands for the proposition that to maintain the effectiveness of mediation and the appearance of impartiality, a mediator may not be forced to testify even as to purely factual matters. Id.

Later that same day, the trial court held a hearing on the defendant’s motion to enforce the settlement agreement. During that hearing, the defendant moved to admit the November 5, 1996 letter from the association to the parties indicating that the arbitration between them had been “successful.” The trial court admitted the letter over the objection of the plaintiff who took exception to its admission on “the same grounds as to everything else from [the association],” an apparent reference to the association’s successful motion to quash on the ground that the information was privileged.

Initially, it must be noted that the plaintiffs failure to object to the letter’s introduction on hearsay grounds does not automatically foreclose our review. “Generally, where a claimed error of a nonconstitutional nature is not brought to the attention of the trial court, appellate review of that claim is available only if it constitutes plain error. ... To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial.” (Internal quotation marks omitted.) State v. Connelly, 46 Conn. App. 486, 511, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998).

In its memorandum of decision, the trial court found that an oral agreement had been reached on November 4, 1996, settling all disputes between the parties. The trial court concluded that the proposed draft agreement prepared by the defendant accurately recited the material terms of that agreement. In support of this ruling, the trial court cited not only the testimony of the plaintiff and Cote, but the November 5, 1996 letter from the association as well. It is the trial court’s reliance on this letter that the plaintiff claims was improper.

“ ‘A statement made [out of court] that is offered to establish the truth of the matter contained in the statement is hearsay, and as such is inadmissible. State v. Packard, 184 Conn. 258, 274, 439 A.2d 983 (1981).’ ” State v. Hoth, 50 Conn. App. 77, 88, 718 A.2d 28, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998). “Under the hearsay rule, extrajudicial statements have no affirmative value because they are made out-of-court by absent persons not subject to cross-examination.” State v. McDougal, 241 Conn. 502, 512, 699 A.2d 872 (1997).

The association’s letter was clearly an out-of-court statement introduced for the purpose of establishing the truth of its contents—that a settlement agreement had been reached between the parties. Because this letter is clearly inadmissible as hearsay, we must now determine whether its admission was harmful, that is, whether the letter likely affected the trial court’s conclusion that an oral settlement had been reached on November 4, 1996. We conclude that it did.

In reaching that conclusion, we need look no further than the trial court’s memorandum of decision. While the trial court made no specific findings of fact, prior to concluding that “there was an agreement between the parties on November 4,1996,” the trial court stated: “In support of its position, [the defendant] offered into evidence a letter from the American Arbitration Association dated November 5, 1996, which stated that ‘[t]his letter is to inform you that the mediation of November 4, 1996 was successful.’ ” We conclude that the trial court relied heavily on this letter in arriving at its conclusion that a settlement agreement had been reached. We determine also that the letter was not merely cumulative of other evidence that was, in and of itself, sufficient to allow that conclusion. Cf. Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 490, 586 A.2d 1157 (1991) (inadmissible hearsay evidence merely cumulative of other properly admitted evidence and therefore unlikely to have affected trial court’s judgment).

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion for summary enforcement of the alleged settlement agreement and for further proceedings.

In this opinion the other judges concurred.

       The defendant alleges that at 6:30 p.m. the mediator announced that the parties had reached an accord and that the parties shook hands before departing; the plaintiff disputes this. The trial court made no finding in this regard.

       Cote testified that an agreement had been reached to settle all matters in dispute between the parties as a result of the mediation before the association.

       In the paragraph immediately preceding that conclusion, (he trial court sta( ed: “In his letter, counsel [for the plaintiff] does not deny that the written agreement was the same as what was agreed upon at the arbitration hearing. ”

       Among the necessary actions claimed by the plaintiff is additional mediation involving issues of subleasing and collateral to support a proposed buyout of the plaintiffs interest. The plaintiff also claims that the parties intended that a written contract would consummate their negotiations.

         The parties do not dispute that they subjected themselves to the rules of the association when they sought mediation. Rule 12 of the association’s Commercial Mediation Rules provides in relevant part: “All records, reports, or other documents received by a mediator while serving in that capacity shall be confidential. The mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any proceeding or judicial forum. . . .”

       Practice Book § 60-5, formerly § 4061, provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain eiror not brought to the attention of the trial court. ...” (Emphasis added.) The plaintiff addressed the issue of plain error in his brief and requested that we review this issue under the plain error doctrine.

       Even if it were argued that the letter was admissible under an exception to the hearsay rule, i.e., to establish the declarant’s state of mind, the mediator’s state of mind is not relevant.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. NATHANIEL MCDUFFIE
    (AC 17650)
    Foti, Schaller and Daly, Js.

      Argued September 22
    officially released December 8, 1998

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Maureen M. Keegan, acting state’s attorney, and Cara Eschuk, assistant state’s attorney, for the appellant (state).
   Opinion

SCHALLER, J.

The defendant, Nathaniel McDuffie, appeals from the judgment of the trial court revoking his probation and sentencing him to a term of imprisonment. The principal issue on appeal is whether the trial judge was required to recuse himself, sua sponte, from the March 4, 1996 revocation proceeding because he had heard the defendant admit in open court on January 31, 1996, that the defendant had failed two drug tests while on probation. Because the defendant failed to preserve the issue for appeal and because we find no plain error, we affirm the judgment.

In an information dated August 9, 1993, the state charged the defendant with sexual assault in the first degree in violation of General Statutes § 53U-70. The defendant pleaded not guilty and elected a jury trial. On August 5, 1994, the defendant pleaded guilty to the charge of sexual assault under the Alford doctrine. The trial court, Kulawiz, J., committed the defendant to the custody of the commissioner of correction for a term of twelve years, execution suspended after sixteen months, and three years of probation with special conditions, primarily sex offender counseling.

On the basis of a warrant affidavit sworn out by the defendant’s probation officer, Eduardo Palmieri, stating that the defendant had violated the terms of his probation, the state filed an information dated November 20, 1995, charging the defendant with violation of probation pursuant to General Statutes § 53a-32. The defendant was arrested, and a denial of the charge was entered on December 26, 1995. On the same date, the trial court appointed a public defender for the probation revocation hearing.

On January 31,1996, the state informed the trial court, Damiani, J., that it had been unable to reach an agreement with the defendant and asked that the case be set down for a probation revocation hearing. The defendant’s attorney, when asked if he wanted to be heard, replied that he did not at that time, but indicated that his client wanted to address the court. The defendant then admitted that he had violated the conditions of his probation by using illegal drugs. The defendant stated: “Like I said, I’m guilty of these dirty urines and as a result I’m trying to gethelp. DayTop [asubstance abuse program] has accepted me, willing to take me in that program upon Your Honor granting it.” The court then responded: “Mr. McDuffie, you got into the program before you got the dirty urines. I’m not going to put you in a program. You’re going to have a hearing on March 4, [1996], okay. You should have gone into the program before you got the dirty urines.” This statement by the court is the gravamen of the defendant’s claim.

On March 4, 1996, an evidentiary hearing was held before Judge Damiani pursuant to § 53a-32 to determine whether the defendant had violated the terms of his probation. The trial court heard testimony from Palmieri regarding the defendant’s conditions of probation. Palmieri also testified that the defendant missed several appointments with his probation officer, missed appointments at his required sexual offender counseling and had used illegal substances in violation of his probation conditions. The defendant offered no testimony or evidence on his own behalf. On the basis of Palmieri’s uncontroverted testimony, the trial court held that the defendant wilfully and intentionally violated the conditions of his probation.

After the trial court found that the defendant had violated the conditions of his probation, defense counsel moved for a continuance to prepare additional information, which the trial court could consider in sentencing the defendant. The trial court initially denied the motion, but then reconsidered. The following colloquy took place between defense counsel and the court:

“[Defense Counsel]: Your Honor, the mere fact that the court has discretion in imposing the sentence on a violation of probation indicates that the legislature anticipated that the court could take into consideration not only the fact that there was a violation, but other information as well. I would like the opportunity to prepare that information so I could present it to the court.
“The Court: . . . Fine, I’ll give you time. All I can tell you is that my view is that a person who receives a sentence and gets the luxury of going on probation, I’ll listen to you, but I can only tell you it’s an uphill battle on your part. What date would you like?”

At the sentencing hearing, in addition to arguments from the state and defense counsel, the trial court allowed the defendant to speak on his own behalf. The defendant again admitted that he had violated the conditions of his probation. At the close of arguments, the trial court stated that the defendant was “not amenable to further probation.” The trial court then opened and revoked the original sentence, and committed the defendant to the custody of the commissioner of correction for a period of 114 months, approximately 90 percent of the defendant’s outstanding sentence.

The defendant claims that the statements by the trial judge during the January 31, 1996 hearing “cast serious doubt on his impartiality [and] that he committed plain error in not recusing himself prior to the revocation hearing.” The defendant also claims that the judge violated canon 3 (c) (1) (A) of the Code of Judicial Conduct by not recusing himself. The defendant failed to raise either claim at the hearing.® He now seeks review based on the plain error doctrine. We will address the claims together.

Practice Book §§ 1-22 and 1-23, formerly §§ 996 and 997, clearly provide that a motion for recusal shall be made prior to the trial or hearing. “It is well settled that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court through a motion for disqualification or a motion for mistrial. See Knock v. Knock, 224 Conn. 776, 792, 621 A.2d 267 (1993); Gillis v. Gillis, 214 Conn. 336, 343, 572 A.2d 323 (1990); Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). . . . Absent plain error, a claim of judicial bias cannot be reviewed on appeal unless preserved in the trial court. Cameron v. Cameron, supra, 168.” Small v. Stop & Shop Cos., 42 Conn. App. 660, 663, 680 A.2d 344 (1996). “To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Lindstrom, 46 Conn. App. 810, 817, 702 A.2d 410, cert. denied, 243 Conn. 947, 704 A.2d 802 (1997).

The defendant asserts that the judge’s statement at the January 31,1996 hearing “constituted a prejudgment opinion and decision that he would never at any time consider the sentencing option of continuing the defendant on intensive probation . . . .” “Because the court, rather than a jury, sits as the trier of fact in a probation revocation hearing, ‘we presume, absent an affirmative showing to the contrary, that the . . . court can put aside whatever impressions [it] may have about the [defendant] and grant him a fair hearing.’ Fair v. Warden, 211 Conn. 398, 414, 559 A.2d 1094, cert. denied, 493 U.S. 981, 110 S. Ct. 512, 107 L. Ed. 2d 514 (1989).” State v. Strickland, 42 Conn. App. 768, 776, 682 A.2d 521 (1996), rev’d on other grounds, 243 Conn. 339, 703 A.2d 109 (1997). We decline to review this claim under the plain error doctrine because we conclude that the trial judge’s conduct did not affect the fairness or integrity of the proceedings, nor did it result in manifest injustice to the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). A defendant who pleads guilty under the Alford doctrine does not admit guilt, but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea. State v. James, 197 Conn. 358, 359 n.1, 497 A.2d 402 (1985); State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985).

       General Statutes § 53a-32 provides in relevant part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. . . . Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.
      “(b) If such violation is established, the court may: (1) Continue the sentence of probation or conditional discharge; (2) modify or enlarge the conditions of probation or conditional discharge; (3) extend the period of probation or conditional discharge, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29; or (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”

       The relevant conditions of the defendant’s probation are as follows: “1. Do not violate any criminal law of the United States, this state or any other state or territory. 2. Report as the probation officer directs . . . .7. Submit to any medical and/or psychological examination, urinalysis, and/or counseling sessions as required by the court and submit to any alcohol and/or drug testing required by the probation officer. ” Additionally, the trial court entered the special condition that the defendant attend a sex offender treatment program.

       Canon 3 provides in relevant part: “(c) Disqualification. (1) A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. . . .”

       The defendant does not seek review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). A defendant’s failure to request review under Golding precludes us from such review on appeal. State v. Teel, 42 Conn. App. 500, 504, 681 A.2d 974, cert. denied, 239 Conn. 921, 682 A.2d 1012 (1996).

       Practice Book § 60-5, formerly § 4061, provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” (Emphasis added.)

       Practice Book § 1-22, formerly § 996, provides in relevant part: “A judicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein pursuant to Canon 3 (c) of the Code of Judicial Conduct . . . .”
      Practice Book § 1-23, formerly § 997, provides in relevant part: “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification .... The motion shall be filed no less than ten days before the time the case is called for trial or hearing . . . .” (Emphasis added.)

       We rely on civil cases for the standard of review of unpreserved claims of judicial bias because our Supreme Court held in State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994), that a probation revocation hearing is akin to a civil proceeding.


author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. ANTHONY HOLMES
    (AC 16182)
    Schaller, Sullivan and Dupont, Js.

      Argued September 24
    officially released December 8, 1998

      James B. Streeto, special public defender, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and George Ferko, assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant appeals from the judgment of conviction, entered after his conditional pleas of nolo contendere, to possession of narcotics with intent to sell in violation of General Statutes § 2 la-278 (b), possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b) and possession of marijuana in violation of General Statutes § 21a-279 (c).

The trial court reasonably could have found the following facts. On March 9, 1995, the defendant’s girlfriend, Angela Dark, summoned the police to her apartment. When Officers Harold Pu’sey, Garth Perri and Ronald Bair of the Hartford police department arrived at her home, Dark asked them to enter her apartment and to remove the defendant. Pu’sey found the defendant lying in the bathtub smoking a “blunt,” a marijuana cigar. He also saw a bag of marijuana on the bathroom floor next to the bathtub.

While Pu’sey was dealing with the defendant, Bair and Perri remained in the hallway outside the bathroom with Dark. At the opposite end of the hallway, there was a closet with two folding doors, one of which was open. Dark appeared to the officers to be nervous and increasingly agitated. She then made a motion to shut the closet door. Bair and Perri ordered her not to close the door and to step aside. When she complied reluctantly, they looked into the closet and saw a bag of rock cocaine on a shelf in the closet.

The police announced their intention to arrest both the defendant and Dark and to place their child in the care of the department of children and families. Upon hearing this, the defendant said that only he should be arrested for the cocaine because Dark had nothing to do with it. The police then arrested the defendant.

The defendant claims that the trial court improperly denied his motion to suppress the evidence of the rock cocaine in violation of his rights under article first, § 7, of the constitution of Connecticut, and under the fourth and fourteenth amendments to the United States constitution.

“It is a ‘basic principle of Fourth Amendment law that searches and seizures inside a [person’s] house without warrant are per se unreasonable in the absence of some one of a number of well defined “exigent circumstances.” ’ Coolidge v. New Hampshire, 403 U.S. 443, 477-78, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) . . . .” (Citations omitted.) State v. Eady, 245 Conn. 464, 469, 733 A.2d 95 (1998). Because a warrantless search is presumptively invalid, the state has the burden of affirmatively demonstrating a recognized exception to the warrant requirement. State v. Badgett, 200 Conn. 412, 423-24, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). Under the facts and circumstances of this case, the trial court found that the plain view doctrine applied to the cocaine found in the closet. We agree.

“In Coolidge v. New Hampshire, supra, [403 U.S. 443], ‘the United States Supreme Court held that in certain circumstances a warrantless seizure by police of an item that comes within plain view during their lawful search of a private area may be reasonable under the fourth amendment.’ State v. Ruscoe, 212 Conn. 223, 237, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990). The plain view exception to the warrant requirement ‘is based upon the premise that the police need not ignore incriminating evidence in plain view while they are . . . entitled to be in a position to view the items seized.’ State v. Ruth, 181 Conn. 187, 193, 435 A.2d 3 (1980); see Harris v. United States, 390 U.S. 234, 236, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968). Three requirements must be met to invoke the plain view doctrine: First, the items seized must be in the plain view of the police, second ‘the initial intrusion that enabled the police to view the items seized must have been lawful; and [third] the police must have had probable cause to believe that these items were contraband or stolen goods.’ State v. Ruscoe, supra, 237-38; Arizona v. Hicks, 480 U.S. 321, 326-27, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987).’ ” State v. Eady, supra, 245 Conn. 469-70.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Blackman, 246 Conn. 547, 553, 716 A.2d 101 (1998).

The trial court properly concluded that all three prongs of the plain view doctrine were met in this case. First, the cocaine was in plain view. It is uncontested that the closet door was open at all times. The officers saw the cocaine from their vantage points in the hallway; they did not enter the closet, nor did they do more than look inside. Second, the police were properly entitled to be where they were when they saw the cocaine. Dark summoned the police to her apartment, asked them to remove the defendant and consented to their entering her apartment. Third, on the basis of their training and experience in dealing with narcotics, the officers had probable cause to believe that the substance they saw in the closet was rock cocaine. We hold that the trial court properly admitted the evidence under the plain view doctrine.

The judgment is affirmed.

In this opinion the other judges concurred.

       Prior to trial, the defendant moved to suppress, inter alia, the cocaine evidence. The defendant entered 1he nolo contendere pleas after the trial court denied the motion to suppress.
      Practice Book § 61-6 (a) provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement, or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such appeal shall be limited to whether it was proper for the court, to have denied the motion to suppress or the motion to dismiss. . . .”

       Whether the officers used a flashlight when they looked into the closet, which was disputed in this case, is not relevant under a plain view doctrine analysis. See Texas v. Brown, 460 U.S. 730, 739, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983); State v. Bryant, 19 Conn. App. 626, 630, 563 A.2d 326, cert. denied, 212 Conn. 821, 565 A.2d 540 (1989).