author: FLYNN, J.

text:
    ARNOLD SURESKY v. JOSEPH SWEEDLER ET AL.
    (AC 33065)
    Alvord, Espinosa and Flynn, Js.

      Argued October 23, 2012
    officially released February 19, 2013

      Barbara M. Schellenberg, with whom, on the brief, were David A. Ball and Jeffrey C. Dannenberg, for the appellant (plaintiff).

      Anthony J. Diana, pro hac vice, with whom was John G. Stretton, for the appellees (defendants).
   Opinion

FLYNN, J.

The plaintiff, Arnold Suresky, appeals from the judgment of the trial court, rendered after a court trial, in favor of the defendants, Joseph Sweedler, William Sweedler, Andrew R. Tarshis, Windsong Allegiance Group, LLC (Windsong), Allegiance Apparel Group, LLC (Allegiance) and Joe Boxer Canada, LP (Joe Boxer), in his action seeking, inter alia, money damages, in which he alleged fraudulent inducement, breach of fiduciary duty, unjust enrichment, breach of contract and conversion. On appeal, the plaintiff claims that the court erroneously found that he was not entitled to more than he received under exhibit 105 (the letter), that the letter was a valid agreement supported by independent consideration, that the letter was not procured by fraud and that the plaintiff was not treated differently from other shareholders. Because the plaintiff failed to prove a necessary predicate to his claims, namely, proof that what he received was less than that to which he was entitled, he cannot prevail on any other claim raised on appeal. Accordingly, we affirm the judgment of the trial court.

The following undisputed facts and procedural history inform our review. The plaintiff and Joseph Sweedler had a close friendship since the mid-1980s. The plaintiff asked Joseph Sweedler if he knew of any investment opportunities. In March, 2001, after some discussion, the plaintiff invested $2,000,000 for 10 percent of the outstanding equity in Allegiance and 5 percent of the outstanding common equity in Windsong, companies in which Joseph Sweedler also held interests. In January, 2002, the plaintiff invested an additional $500,000 and received a 5 percent interest in Hathaway Holding Company, LLC (Hathaway).

The plaintiff was interested in receiving a money return periodically through these investments. In order to accommodate the plaintiffs desire to have a current return on his invested money, the plaintiff received a job and a title without an office, telephone or obligations outside of making himself available for consultations. The plaintiff also made two loans to Windsong, which were repaid in accordance with the agreement of the parties. At one point, the plaintiff became concerned because he was not receiving cash distributions and his accountant, Stanley Morin, was not able to reconcile the capital account entries of Windsong, Allegiance and Joe Boxer. A meeting regarding these concerns subsequently was held and, as a result, the plaintiff received substantial distributions, a benefit which none of the other shareholders received.

In January, 2004, Windsong and Joe Boxer were involved in an exchange and separation agreement (swap agreement), which augmented the plaintiffs interest in Windsong and Joe Boxer to 10 percent each. Under the agreement, Windsong became the 100 percent owner of JBC Holdings, LLC, while nZania II, LLC, Joseph Laurita and Christopher Laurita became 100 percent owners of Hathaway.

The plaintiffs lawsuit centers around the sale of the Joe Boxer mark to Iconix Brand Group, Inc. (Iconix), on July 22, 2005, for $40,000,000 in cash and 4,350,000 shares of Iconix stock, which were valued at that time at approximately $39,150,000. The dispute specifically concerns the letter signed by the plaintiff and William Sweedler.

The letter states in relevant part: “This will confirm our agreement with respect to the redemption of your entire membership interests in [Windsong] and [Allegiance] (the ‘Companies’) in consideration of the following payments (the ‘Payments’):

“1. $1,402,357 in readily available funds — to be paid immediately; and

“2. 412,250 shares of restricted stock in [Iconix] to be issued within the next 30 days. . . .

“You agree that the Payments shall be in full and complete satisfaction of the your entire membership interests in the Companies and that you will have no further interest in the Companies or any rights or privileges with respect to same and that there will be no amounts owed to you by the Companies of any kind.

The plaintiff claims that he was tricked into signing the letter under the guise that it was required for closing the Iconix deal, while, unbeknownst to the plaintiff, it was actually an agreement to redeem his interest in Windsong, Allegiance and Joe Boxer. The defendants, however, allege that the plaintiff knowingly signed the letter after a discussion of its contents, such that the plaintiff was aware that he was redeeming his interests and approved of the payment.

On June 14, 2006, the plaintiff filed his original complaint against the defendants alleging fraudulent inducement, breach of fiduciary duties, unjust enrichment, breach of contract and conversion. The defendants filed their answer, special defenses and counterclaim on November 5, 2007. The defendants answered all allegations contained in the plaintiffs amended complaint and responded to the allegations related to the plaintiffs conversion count by referencing the defendants’ motion to strike with respect to that count, which was granted on September 20, 2007. The plaintiff chose not to replead that count and otherwise denied any allegations contained therein. The defendants also put forth sixteen special defenses, and Windsong filed a one count counterclaim for setoff or breach of contract, alleging that the plaintiff owed $130,000 in satisfaction of his pro rata share of Windsong’s “claw back provision” under the Joe Boxer acquisition.

After a trial, beginning April 27, 2010, and spanning five days, the court, in its memorandum of decision and judgment dated December 21,2010, found that the letter was “a valid agreement which on its face was not manifestly unfair to the plaintiff.” Furthermore, the court found for the plaintiff on Windsong’s counterclaim. The court found that “the defendants have failed to prove that the amounts claimed were encompassed within [the letter] because the claims also involved a subsequent agreement with other parties to which the plaintiff was not a party.” This appeal by the plaintiff then followed.

On appeal, the plaintiff claims that the court erroneously found that he was not entitled to more than he received under the letter, that the letter was a valid agreement, that the letter was not procured by fraud and that the plaintiff was not treated differently from other shareholders. We first address whether the plaintiff was entitled to receive more than what he received under the letter. In order to logically reach the validity of the letter, it is necessary to first assess the court’s findings of fact as to whether the plaintiff suffered an ascertainable loss and thus received less under the letter than that to which he otherwise was entitled.

We begin by setting forth our standard of review and the principles that guide our analysis. “[W]hen reviewing findings of fact, we defer to the trial court’s determination unless it is clearly erroneous. ... 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. . . . Under the clearly erroneous standard of review, a finding of fact must stand if, on the basis of the evidence before the court and the reasonable inferences to be drawn from that evidence, a trier of fact reasonably could have found as it did.” (Citations omitted; internal quotation marks omitted.) 418 Meadow Street Associates, LLC v. Clean Air Partners, LLC, 304 Conn. 820, 829-30, 43 A.3d 607 (2012).

“The general burden of proof rests upon the plaintiff in civil actions. . . . The defendant’s failure to present any evidence in contradiction of that offered by the plaintiff gives no support to the claim that the truth of all the essential allegations of the complaint was established. A plaintiff prevails not by reason of the weakness of the defendant’s case but because of the strength of his own.” (Citation omitted.) Silva v. Hartford, 141 Conn. 126, 128, 104 A.2d 210 (1954); see Eichman v. J & J Building Co., 216 Conn. 443, 451, 582 A.2d 182 (1990). “The plaintiff in a civil case ‘sustain[s] his burden of proof as to any essential element in his cause of action if the evidence, considered fairly and impartially, induce [s] in the mind of the trier a reasonable belief that it [is] more probable than otherwise that the facts involved in that element [are] true.’ ” Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 535 n.8, 733 A.2d 197 (1999).

The corut in its memorandum of decision did not find that the plaintiff received less under the letter than what he otherwise would have been entitled to receive. In the court’s discussion, it found that “it does not appear [that the] plaintiff was treated any differently than the other shareholders except for the deductions for the amount [of the] distributions the plaintiff received to the exclusion by the other stockholders.” The court ultimately concluded: “The manner in which [the letter] treats the plaintiff is no different from the manner in which all other shareholders were treated with the exception of the fact that the plaintiffs cash 'distribution was reduced because he had received distributions over the previous months which were not given to other shareholders. . . . [T]he issue is not whether the plaintiff made out well under the transaction. The issue is whether the plaintiff has proven that he was entitled to more. The court finds that [the letter] in which the plaintiff agreed to the sums he received and agreed that he had no further claims against the defendants was a valid agreement which on its face was not manifestly unfair to the plaintiff.”

The plaintiff claims that the court’s finding that he was not entitled to more than what he received was clearly erroneous. The defendants argue that the plaintiff failed to prove that he received less under the letter than he would have received -without it because the plaintiff failed to provide expert testimony on this issue, instead relying on the fact testimony of his accountant, Stanley Morin. We agree with the defendants.

The record reveals testimony by Joseph Sweedler regarding the plaintiffs portion of the Iconix transaction. Joseph Sweedler testified that: “[A]t that point in time the [Iconix] deal was then consummated and he then got his [10] percent in the exact same proportion that we all got our percentages.”

Joseph Sweedler further testified in opposition to the plaintiffs contention that he received less than he was entitled to under the letter. The following questions were posed by the plaintiffs counsel:

“Q. Did there come a time before the lawsuit started when you were made aware of the fact that [the plaintiff] thought that he had been underpaid that to which he thought he was entitled?

“A. Yes.

“Q. How soon after the Iconix closing did you first hear that?

“A. It was either one or two days — and I am not absolutely certain of the time. But it was either one or two days that [the plaintiff] came to my office early in the morning and started explaining to me that he felt that we had no right to deduct the distributions from his cash position when I had, in fact, discussed that with him on numerous occasions and he agreed with me. Yes, you should deduct the distributions from my cash portion. But either, as I said, a day or two later he came to my office. And I had an appointment at 9 o’clock. And he was really going after me and saying that he didn’t get his fair share. And I said, Amie, you got exactly what you were entitled to, if not more than anybody else, because not only did you have the use of the 1,100,000 in distributions that nobody else got, but you had the use of that money all that time. And he said well, you shouldn’t have taken it away and you took too much and you’re — oh.”

Finally, Joseph Sweedler testified as to how the plaintiffs share was calculated and dispersed. The following exchange took place between the defendants’ counsel and Joseph Sweedler:

“A. [Exhibit 108] is the wire transfer to Deutsche Bank. I’m assuming that’s his bank. Yeah. To the beneficiary of Arnold Suresky of $1,402,357.

“Q. What did that amount of money represent?

“A. That represented the — the—his total cash distribution. If you go back to [exhibit 106 or exhibit 107], he was entitled to [2.5] — he was entitled to [10] percent of the twenty-five million some odd dollars that we received in cash, of which that twenty — he was — he was respons — well, he was entitled to $2.5 million of that money. He had already gotten 1.1 million in distributions, which nobody else had gotten. So we deducted that [1.1] from the [2.5] to give you a difference of one million four hundred and some odd thousand dollars in cash that he got right then and there.”

The record also contains testimony by William Sweedler regarding the plaintiffs portion of the Iconix transaction. The following colloquy took place between the plaintiffs counsel and William Sweedler:

“Q. Now, you testified in some detail, actually, and you kept going back to it, the fact that having gone through a few different permutations of potential buyouts over a period of months before the Iconix closing, [the plaintiff] finally came around to what you were recommending he do, which was take the Iconix deal, whatever you’re entitled to, as a [10] percent interest-holder; yes?

“A. Less his ... .

“Q. Less his — less that $1.3 million; yes?

“A. Yes.

“Q. Now, so other than the $1.3 million, he was getting pro rata what everybody else got; yes?

“A. He was getting [10] percent of the net proceeds, less his distributions.

“Q. Right. Ten percent of the cash, with all the discounts that you had on the pro rata for everybody—

“A. Not discounts; expenses.

“Q. And less percent — and [10] percent of the stock, less whatever discounts or deductions you made?

“A. The expenses.

“Q. And other than [1.3] $1.13 million, the deductions or the expenses that you knocked off in order to calculate the net amount of the proceeds, in order to take percentages, was the same for everybody; yes?

* * *

“Q. You were doing those pro rata sheets for everyone, were you not? That’s what you said?

“A. Yes.

“Q. Okay. So everybody showed the same amount of expenses being taken off on the cash side or deductions, and on the stock side, if we’re going to get to net figures from which their respective percentages would be used to calculate their share; correct?

“A. Yes, except there were additional expenses that were incurred by the company, so in fact probably lot a little bit less.”

Furthermore, the record contains exhibits 106 and 107. Exhibit 106 is a document describing how the payments, listed in the letter, were calculated. The Iconix deal yielded a gross of $40,000,000 cash and 4,350,000 shares of stock. After deductions were made from both the cash and stock, $25,323,570 and 4,122,500 shares were remaining. Exhibit 106 then allots the plaintiff 10 percent of both net amounts, $2,532,357 and 412,250 shares, respectively. The plaintiff’s 10 percent cash share was further reduced by $1,130,000, the distributions paid out to the plaintiff prior to the Iconix deal, which yielded $1,402,357 in cash to be paid to the plaintiff. Therefore, the payments as reflected in the letter, $1,402,357 in cash and 412,250 shares, match the plaintiff’s pro rata share as calculated in exhibit 106.

Exhibit 107, another document calculating the plaintiffs share of the cash and stock payouts from Iconix, contains additional notations that show that the cash paid to the plaintiff, plus the cash value of the stock paid to the plaintiff, plus the distributions he received prior to the Iconix deal totaled $6,531,182. The exhibit also illustrates that $6,531,182 was 10 percent of the net value of the Iconix transaction, $65,311,820.

The plaintiff further argues that he got less under the letter than what he was entitled to under the Windsong and Allegiance agreements because of errors in the upkeep of the capital accounts. With respect to the capital accounts, the court found the following: “There was considerable testimony that the plaintiffs investments could not be equated with the capital account as set forth in the records of the various companies. The plaintiffs accountant testified that he could not determine the appropriateness of the capital accounts. However, there was no expert testimony presented with respect to the capital account entries on the companies’ records or the effect of the inability of the plaintiffs accountant to equate the entries with the investments of the plaintiff. Thus, there was no expert testimony presented by either side as to the effect of those discrepancies [or] how it affected the other shareholders or the relationship between the shareholders.

* * *

“While the plaintiff has produced evidence as to the manner in which his investments were accounted for in the capital accounts, there was no expert evidence on that issue. In addition, there was no evidence that the other shareholders benefited because of the capital account entries.”

“As a rule, expert testimony is required when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors.” (Internal quotation marks omitted.) Latham & Associates, Inc. v. William Raveis Real Estate, Inc., 218 Conn. 297, 301, 589 A.2d 337 (1991). “Expert testimony is required only when a disputed matter is manifestly beyond the ken of the average trier of fact, be it judge or jury.” (Internal quotation marks omitted.) Michalski v. Hinz, 100 Conn. App. 389, 404, 918 A.2d 964 (2007).

The plaintiff filed his disclosure of expert witness, dated October 23,2009, on December 2,2009, for Jeffrey T. Harfenist, CPA. Harfenist was “expected to offer expert testimony in the field of tax and accounting analysis, relating in particular to the capital activity for plaintiffs membership interests in. [Windsong] and related companies (collectively, the ‘Companies’). . . . The expert opinion upon which the witness is expected to testify is that the redemption of [the] plaintiffs interest in the Companies, based upon an analysis of his capital account following his realization of proceeds from the sale of certain assets of the Companies to, and the assumption of certain liabilities of the Companies by, [Iconix], should have been in an amount no less than $4,173,631.” On December 2,2009, the plaintiff also filed a supplemental disclosure of expert witness for Harfenist, dated October 30, 2009, changing the amount to $4,673,631. The plaintiffs second supplemental disclosure of expert witness, filed on December 23, 2009, again amended the amount that the plaintiff claimed he should have received, reducing the amount claimed to “no less than $3,137,725.”

The defendants filed their disclosure of expert witness on January 8,2010, for Craig P. Casey, CPA, stating, in relevant part: “The field of expertise and the subject matter on which Mr. Casey is expected to offer expert testimony, the expert opinions to which Mr. Casey is expected to testify, and the substance of the grounds for each such expert opinion are set forth in a written report prepared by Mr. Casey and those working under his supervision . . . .” Casey’s written report focused on evaluating Harfenist’s report.

At trial, however, the plaintiff never called Harfenist to testify. Consequently, the defendants did not call Casey to testify because there was no expert testimony presented for Casey to rebut. Neither side, therefore, produced any expert testimony at trial. It was the plaintiffs burden to offer such expert testimony, and the plaintiff failed to meet that burden. See Silva v. Hartford, supra, 141 Conn. 128.

On the basis of the testimony and exhibits, as set forth in this opinion, we conclude that the corut’s determination that the plaintiff did not receive less than he was entitled to receive is not clearly erroneous. The plaintiff was a 10 percent holder of Windsong and Allegiance, and, as such, received his pro rata 10 percent share of the Ieonix deal, the same as the other members. There is evidence in the record from which the court reasonably could have found that the plaintiff was not entitled to receive more than what he received either under the letter or otherwise. See 418 Meadow Sreet Associates, LLC v. Clean Air Partners, LLC, supra, 304 Conn. 829-30. Regardless of the letter, the plaintiff failed to show that he received less than what he was entitled to receive.

Additionally, we conclude that the plaintiff has not shown any clear error by the court in determining that expert testimony was necessary to show any discrepancies in the capital accounts that might prove that the plaintiff received less under the letter than he otherwise was entitled to receive. Specifically, this case involves the capital accounts of three separate companies over a span of five years. The evidence in this case includes five years of individual income tax returns for the plaintiff, five years of tax returns for the three companies, as well as payroll records, the plaintiff’s promissory notes and repayment records. Navigating these documents, deciphering the accounting of these entities and essentially performing forensic accounting of the capital accounts undoubtedly goes beyond the field of ordinary knowledge and experience of judges acting as fact finders. See Latham & Associates, Inc. v. William Raveis Real Estate, Inc., supra, 218 Conn. 301. On the basis of the evidence presented, therefore, without some expert assistance, it would be unreasonable to expect the court to analyze and then conclude that there were discrepancies in the capital accounts and the possible effect of those purported discrepancies on the plaintiff and other shareholders.

The letter sets forth an amount to be paid to the plaintiff for his interest in the companies. Under all of the plaintiffs surviving counts, namely, fraudulent inducement, breach of fiduciary duty, unjust enrichment and breach of contract, it was the plaintiffs burden to prove his case and his injury. In other words, the plaintiff had to prove that he received less than he otherwise was entitled to receive. However, after a careful review of the record, we find it devoid of any evidence as to the dollar amount to which the plaintiff claimed entitlement, nor do we find any reasonable estimate of his claimed damages.

Because the plaintiff has not shown that the court’s determination that he received that to which he was entitled was clearly erroneous, the plaintiff has failed to prove any underlying injury and, as such, he cannot prevail on any other claim raised on appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       On September 20, 2007, the trial court granted the defendants’ motion to strike with respect to the plaintiffs conversion count. The plaintiff did not replead.

       Exhibit 105 (the letter) is a July, 2005 letter signed by the plaintiff agreeing to terms for the purchase of his interests in Windsong and Allegiance.

       In the plaintiffs “Statement of Issue” he set forth the following issue: “Did the [t]rial [c]ourt improperly conclude that [the letter] signed by [the] [pjlaintiff was a valid agreement precluding him from pursuing his claims against [the] [defendants?” Nonetheless, the plaintiff has set forth the four issues as delineated above in the body of his brief.

       The Windsong limited liability company agreement lists the plaintiff as a 6.6666 percent owner. The plaintiffs ownership was commonly referred to as a 5 percent interest because Windsong owned 75 percent of the outstanding common equity in JBC Holdings, LLC, the Joe Boxer mark holding company, and nZania II, LLC, owned the remaining 25 percent, such that 75 percent of the plaintiffs 6.6666 percent actually is 5 percent.

       Joe Boxer was a limited partnership formed to use, sell and license the Joe Boxer mark in Canada. In May, 2001, the plaintiff acquired a 4.975 percent interest in Joe Boxer. Although William Sweedler, Joseph Sweedler, David Sweedler, Alan Rummelsburg and the plaintiff owned a combined 51.411 percent and Windsong owned 48.092 percent of Joe Boxer, Windsong was considered the parent company of Joe Boxer. Tarshis testified that Joe Boxer had been structured in this way because “when a licensing [company] in Canada pays royalties it’s required in Canada to withhold, I believe 20 percent of those royalties. And we were advised that this structure would enable the company to realize a greater benefit.”

       The court, in its memorandum of decision, found that “[tjhere is no dispute, however, that the plaintiff held a 5 percent interest at the time these businesses [were] eventually sold to Iconix Brand Group, Inc., for $40,000,000.00 in cash and shares of restricted stock.” This finding is inaccurate, as the parties do not dispute that at the time of the Iconix deal the plaintiff held a 10 percent interest, which also is reflected in the record.

       At trial, the plaintiff and the defendants presented very different accounts of the circumstances surrounding the signing of the letter.

       The defendants filed a request to revise the plaintiffs complaint on August 17,2006. The plaintiffs amended complaint, dated December 6,2006, was filed as served on April 26, 2010, and, although some language was amended, the plaintiffs five counts remained substantively the same.

       Under the “claw back provision” in Windsong’s swap agreement, Wind-song was obligated to pay 5 percent of the first $5 million received in excess of $25 million plus 10 percent of any amount received in excess of $30 million, capped at $4 million, back to Hathaway, in the event the Joe Boxer mark was sold by Windsong within two years of the swap agreement. After the letter was signed, Windsong was able to reach a settlement with Hathaway for a total amount of $1,300,000. The defendants sought for the plaintiff to pay 10 percent of the settlement in accordance with his 10 percent ownership interest and the letter.

       We note that this amount, $3,137,725, is less than the amount that the plaintiff undisputedly received under the letter, $5,401,182, namely, $1,402,357 in cash and 412,250 shares of stock with a value at the time of transfer of approximately $3,998,825.

       Windsong’s tax return lists seven partners, Allegiance’s tax return lists nine partners and Joe Boxer’s tax return lists ten partners, each with their own individual capital account.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    SUSAN WINTERS v. BRUCE WINTERS
    (AC 33317)
    Alvord, Bear and Flynn, Js.
    Argued October 17, 2012
    officially released February 19, 2013

      Susan Winters, pro se, the appellant (plaintiff).

      Bruce Winters, pro se, the appellee (defendant).
   Opinion

ALVORD, J.

The plaintiff, Susan Winters, appeals from the judgment of the trial court denying a postjudgment motion for modification of the child support and alimony payments owed to her by her former husband, the defendant, Bruce Winters. The plaintiff claims that the court improperly denied the motion for modification because it based its determination that there had not been a substantial change in circumstances on a flawed calculation of the defendant’s available income. We agree and, accordingly, reverse the judgment of the trial court.

The record discloses the following relevant information. The plaintiff and the defendant were divorced on August 26, 2009, after twenty-nine years of marriage. Before the divorce, the defendant worked as an information technology auditor, earning an annual salary of approximately $230,000. At the time of the divorce, the defendant’s personal assets, minus his liabilities, totaled over one million dollars. The defendant was unemployed, however, and the trial court ordered him to pay only $1 per year in alimony and $66 per week in child support, pursuant to the application of the child support guidelines to his weekly unemployment income. Thereafter, the defendant filed a motion for modification of his weekly child support payment from $55 to $0, representing to the court that his unemployment compensation payments had ceased. In February, 2010, the court denied the defendant’s motion; the amount of child and spousal support remains unchanged since the date of dissolution.

In the 2009 dissolution of marriage judgment, the court also ordered the defendant to maintain insurance coverage for the plaintiff and their son through December 31, 2011. At the time of the divorce, the defendant had health insurance through the Consolidated Omnibus Budget Reconciliation Act (COBRA); see Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. §§ 1161 through 1168; and, as ordered, he maintained the plaintiff and their son on COBRA coverage as well. In February, 2010, the court granted the defendant’s motion for modification of his medical insurance responsibility, allowing the defendant to remove his son from his COBRA coverage. The defendant and his son currently are insured through the state of Connecticut’s low-income, public health insurance program, which is commonly referred to as the HUSKY Plan. See General Statutes §§ 17b-289 through 17b-303. The defendant remarried in October, 2010, and it is his position that he remains unable to find employment.

The plaintiff filed a postjudgment motion dated July 30, 2010, seeking to modify child and spousal support, arguing that there had been a substantial change in circumstances with regard to the defendant’s earnings or finances. The court summarily denied the motion: “The court, on January 27 and 28, 2011, having listened to the testimony, considered the evidence, and taken into account all statutory authority, finds that there has been no substantial change in circumstances. Accordingly, the motion is denied.” The plaintiff filed a motion to reargue, which the court denied on the papers. The plaintiff then filed a motion for review with this court, and, pursuant to that motion, this court ordered the trial court to articulate the factual and legal basis of its conclusion that there had been no substantial change in circumstances. Specifically, this court ordered the trial court to articulate (1) what income was attributed to the defendant since the date of the parties’ dissolution, and (2) how the court categorized the funds received by the defendant from his new wife.

In its articulation pursuant to this court’s order, the trial court found the following facts. “The defendant testified that he had done some consulting work post-divorce but had no other source of income. The defendant testified that he was actively seeking employment, but, to date, had been unsuccessful. The plaintiff provided no credible evidence to the contrary. . . .

“The defendant testified that he paid his expenses, approximately $3000 per [week], from his assets, and provided the court with an attachment to his financial affidavit listing $20,000 of cashed-in investments. . . . The plaintiff argued that the defendant’s assets increased and that was evidence of unreported income. . . . The plaintiff provided no evidence of fraud.

“The plaintiff also argued that the funds received by the defendant from his new wife were gifts and should be included as income. The defendant testified that he borrowed just under $49,000 from his new wife for payment of living expenses. The defendant listed the debt on the attachment to his financial affidavit provided to the court. The defendant provided credible evidence of bona fide loans. The plaintiff provided no specific, credible evidence on which the court could conclude that the funds provided to the defendant were gifts, not loans. . . .

“The court was presented with credible evidence from the defendant and determined that the conventional methods for determining the defendant’s income were adequate. The plaintiff did not present specific, credible evidence showing that the defendant had increased income, but merely speculated that the defendant had unreported income.” (Citations omitted; internal quotation marks omitted.)

Having set forth both the undisputed facts and those facts found by the trial court, we turn to a review of the relevant law and legal claims. “Our standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... 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.) Milazzo-Panico v. Panico, 103 Conn. App. 464, 467-68, 929 A.2d 361 (2007).

“General Statutes § 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment. ... In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award .... To obtain a modification, the moving party must demonstrate that circumstances have changed since the last court order such that it would be unjust or inequitable to hold either party to it. Because the establishment of changed circumstances is a condition precedent to a party’s relief, it is pertinent for the trial court to inquire as to what, if any, new circumstance warrants a modification of the existing order. In making such an inquiry, the trial court’s discretion is essential.” (Internal quotation marks omitted.) McRae v. McRae, 139 Conn. App. 75, 82-83, 54 A.3d 1049 (2012).

The trial court concluded that there had been no substantial change in circumstances. This determination was based, in part, on the court’s finding that the money the defendant had received from his new wife was a loan. The court’s articulation stated: “The plaintiff also argued that the funds received by the defendant from his new wife were gifts and should be included as income. The defendant testified that he borrowed just under $49,000 from his new wife for payment of living expenses. The defendant listed the debt on the attachment to his financial affidavit provided to the court. The defendant provided credible evidence of bona fide loans. The plaintiff provided no specific, credible evidence on which the court could conclude that the funds provided to the defendant were gifts, not loans.” The determination that $49,000 was transferred from the defendant’s new wife to the defendant in the form of loans is a finding of fact, and, as it is based on the defendant’s testimony and his January 3, 2011 financial affidavit, it has support in the record. The trial court is afforded great deference in determining the credibility of a witness in the fact finding process, and, throughout its articulation, it credited the testimony of the defendant.

The record also reveals, however, that the defendant received recurring monetary gifts from his new wife. While a spouse’s regularly recurring gifts generally may not be used in the calculation of child support, there is a regulatory exception that is potentially applicable to the facts of this case. See Regs., Conn. State Agencies § 46b-215a-3 (b) (1) (D). The distinction between money received as a gift or as a loan informs whether a substantial change in circumstances occurred in the present case. In finding that the plaintiff did not provide “specific, credible evidence on which the court could conclude that the funds provided to the defendant were gifts, not loans,” the court disregarded its colloquy with the defendant wherein the defendant testified that the $94,000 he received from his new wife was in the form of gifts, loans and cash advances. Likewise, the court overlooked a colloquy where the defendant testified that the check he received on January 14, 2010 was a gift and a statement under oath where the defendant testified that, at the time of trial, he was receiving monetary gifts from his new wife. Despite the defendant’s repeated admissions that he received gifts from his new wife, and the court’s expressed reliance on the defendant’s testimony, the court concluded that there was no credible evidence the defendant received gifts from his new wife.

We are aware that we afford the trial court great deference in its factual findings and give every reasonable presumption in favor of its determination. See Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 507-508, 4 A.3d 288 (2010). In the present case, however, where the court consistently credited the defendant’s testimony, and the defendant consistently testified he received gifts from his new wife, a finding of fact that there was “no specific, credible evidence on which the court could conclude that the funds provided to the defendant were gifts, not loans” is inescapably incongruent. We are forced to conclude that this finding is clearly erroneous, as it directly contradicts testimony the trial court credited and relied upon in denying the plaintiffs motion.

The court’s conclusion that no substantial change in circumstances had occurred also was based, in part, on the court’s determination it could not consider the plaintiffs argument that the increase in the defendant’s assets was evidence of unreported income. Rather, the court summarily disregarded any inquiry into the defendant’s assets, stating: “ ‘Only in cases of fraud can a modification be based on an increase in the value of assets.’ Simms v. Simms, 25 Conn. App. 231, 234, 593 A.2d 161, cert. denied, 220 Conn. 911, 597 A.2d 335 (1991). The plaintiff provided no evidence of fraud.” Subsequent to the decision in Simms relied upon by the trial court, however, our Supreme Court stated: “The fact that capital gains on property distributed at dissolution may not be considered income under [General Statutes] § 46b-82 does not mean . . . that the court cannot consider a change in the value of that property in determining whether there has been a substantial change of circumstances justifying the modification of an alimony award [pursuant to § 46b-86].” (Emphasis in original.) Gay v. Gay, 266 Conn. 641, 648, 835 A.2d 1 (2003). The fraud requirement noted in Simms is absent from the substantial change in circumstances analysis our Supreme Court set forth in Gay, which allows a court to consider the change in the value of an asset. Pursuant to Gay, a court need not find fraud in order to determine that an asset’s change in value is a relevant factor in determining whether a substantial change in circumstances has occurred.

In the present case, the trial court had the discretion to assign the proper weight to evidence of the gifts the defendant received from his new wife in assessing whether a substantial change in circumstances had occurred, but the court did not exercise its discretion. “While it is normally true that this court will refrain from interfering with a trial court’s exercise of discretion . . . this presupposes that the trial court did in fact exercise its discretion. . . . Where . . . the trial court is properly called upon to exercise its discretion, its failure to do so is error.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Martin, 201 Conn. 74, 88, 513 A.2d 116 (1986). Instead of exercising its discretion, the trial court erroneously found that the defendant had not received any gifts from his new wife, and, on that basis, refused to consider how the $45,000 nonloan portion of the $94,000 the defendant received from his new wife in 2010 factored into a change of circumstances analysis. Further, the trial court had the discretion to assign the proper weight to evidence of an $80,000 increase in the defendant’s assets from June, 2010, to January, 2011, but the court did not exercise its discretion. Instead, it summarily dismissed all evidence of the defendant’s increased assets by applying an incorrect legal standard from Simms.

The judgment is reversed and the case is remanded for a new hearing on the plaintiffs motion for modification of child and spousal support.

In this opinion the other judges concurred.

       Included in the plaintiffs broader claim that the defendant’s financial resources were calculated improperly are several specific claims. First, the plaintiff contends that the court made a clearly erroneous statement of fact concerning the defendant’s weekly expenses. In accordance with this court’s order, the trial court issued an articulation, which stated that the defendant had expenses amounting to $3000 per month, whereas the record clearly reflects that he had expenses of $3000 per week. After the plaintiff raised this issue on appeal, the defendant filed a motion for rectification, seeking to darby the error. The trial court issued an order correcting the error. Because the error has been corrected, we need not address it further.
      Second, the plaintiff claims that the trial court erred when it relied, in its articulation, on an addendum to the defendant’s financial affidavit because it was not submitted into evidence. As proof of this reliance, the plaintiff directs this court to the sentence in the trial court’s articulation stating: “The defendant testified that he paid his expenses, approximately $3000 per month, from his assets, and provided the court with an attachment to his financial affidavit listing $20,000 of cashed-in investments.” The information used by the court in making this finding was in an addendum to a financial affidavit filed with the court on January 3, 2011. As such, it is part of the record the court can use to find fact, and relying on the properly filed affidavit was not erroneous. “[T]he financial affidavits and any other relevant documents that the parties filed at the time of the dissolution, as well as financial affidavits subsequently filed by the parties, are in the court’s case file. The court may take judicial notice of the contents of that file.” Syragakis v. Syragakis, 79 Conn. App. 170, 175, 829 A.2d 885 (2003).
      Third, the plaintiff claims that the court erroneously credited the defendant’s testimony. “This court defers to the trial court’s discretion in matters of determining credibility and the weight to be given to a witness’ testimony. ... We cannot retry the matter, nor can we pass on the credibility of a witness.” (Citation omitted; internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 878-79, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). We therefore accept the trial court’s credibility determinations.

       See footnote 1 of this opinion.

       The front page of the defendant’s January 3, 2011 financial affidavit attested to a liability of $48,992.84 owed to “K. Grygier/Winters,” the defendant’s new wife. The attachment to this affidavit provided a list of the defendant’s “income/deposits” in 2010, derived from: the defendant’s new wife, wedding gifts, consulting income, interest income and unemployment compensation.

       General Statutes § 46b-86 provides in relevant part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support . . . may, at any time thereafter, be continued, set aside, altered or modified by the court upon a showing of a substantial change in the circumstances of either party . . . . ”

       In its articulation, the court credited the defendant’s testimony with regard to the following facts: he had done consulting work after the divorce; he was actively seeking employment, but had been unsuccessful; he paid his monthly expenses from his assets; he “cashed-in” $20,000 worth of investments; and he borrowed $49,000 from his new wife in the form of loans for the payment of living expenses. The court did not discredit any of the defendant’s testimony or information attested to in his financial affidavits in the articulation. likewise, the court did not find the plaintiff credible.

       The following colloquy between the court and the defendant took place on January 27, 2010:
      “The Court: What about the $12,000 check [dated] January 14th, 2010? Is that part of [money you would repay to your new wife]?
      “[The Defendant]: No, it’s not. That was — that should — she paid some of the bills, and I — at that point, she was just helping out and I was—
      “The Court: So that’s a gift.
      “[The Defendant]: Yeah, that was a gift. That was part of just helping the house out.”

       The child support and arrearage guideline regulations (regulations) state that “the income and regularly recurring contributions or gifts of a spouse or domestic partner” are excluded from the calculation of gross income for the purpose of determining child support payments. Regs., Conn. State Agencies § 46b-215a-l (11) (B) (v). The regulations, however, also state that one of the factors that can be considered in deviating from presumptive support amounts is “the regularly recurring contributions or gifts of a spouse or domestic partner, but only if it is found that the parent has reduced his or her income or has experienced an extraordinary reduction of his or her living expenses as a direct result of such contributions or gifts.” Regs., Conn. State Agencies § 46b-215a-3 (b) (1) (D).

       The following colloquy regarding the transfer of money from the defendant’s new wife to the defendant occurred when the defendant testified at trial on January 28, 2011:
      “The Court: Between what you’re claiming to be gifts, and loans, and cash advances, she gave you $94,000 last year.
      “[The Defendant]: Correct. Correct. And — and I have all the sources that she gave me from . . .

       “[The Plaintiffs Attorney]: Okay. According to the detail section of this addendum here that you have, you see — show a check from [your new wife dated] January 14, 2010.
      “[The Defendant]: Correct.
      “[The Plaintiffs Attorney]: And you’re saying that was a loan?
      “[The Defendant]: No. That — that—that money she had given me, she had — she had helped pay some of our expenses.”

       While on the witness stand, the defendant testified: “So I’m — I’m, you know — that—that’s, you know, I think — and—and there won’t be recurring gifts. I mean, [my new wife] doesn’t have an unlimited fund that — but right now there are — there are gifts.”

       The plaintiffs position that the defendant’s assets have increased is supported by the trial court record. In the defendant’s financial affidavit dated June 13,2010, he lists $632,885 in assets and $0 in liabilities, revealing a net worth — subtraction of liabilities from assets — of $632,885. The defendant’s financial affidavit dated January 3, 2011, shows $761,071.56 in assets and $48,992.84 in liabilities, revealing a net worth of $712,078.72. In less than seven months, the defendant, according to his own sworn financial affidavit, increased his net worth by nearly $80,000 while, according to his testimony, remaining unemployed.


author: BEACH, J.

text:
    SILICON VALLEY BANK v. MIRACLE FAITH WORLD OUTREACH, INC.
    (AC 33898)
    Beach, Sheldon and Borden, Js.

      Argued October 16, 2012
    officially released February 19, 2013

      David E. Rosenberg, for the appellant (defendant).

      Elizabeth Slater Massey, with whom was Linda L. Morkan, for the appellee (plaintiff).
   Opinion

BEACH, J.

The issues presented in this appeal from a judgment on a promissory note and foreclosure of a mortgage relate to matters entrusted to the sound discretion of the trial court. The defendant, Miracle Faith World Outreach, Inc., claims that the court abused its discretion by (1) admitting a copy of the promissory note and admitting screenshots detailing the transaction history of the subject loan, and (2) permitting the plaintiff, Silicon Valley Bank, to open its case-in-chief to offer evidence of its attorney’s fees. We affirm the judgment of the court.

Many of the facts relevant to the disposition of this appeal were articulated in the court’s memorandum of decision. “The plaintiff ... is a California banking coiporation with its principal place of business in Santa Clara, California. The defendant ... is a Connecticut religious corporation . . . [and] is the owner of a certain parcel of land with a building, structures, and improvements thereon, located at 754 Main Street, Monroe ....

“The defendant executed and delivered to [the] plaintiff a certain [promissory [n]ote [sjecured [b]y [a] [m]ortgage dated May 14, 2002, in the original principal amount of one million nine hundred sixty-two thousand dollars ($1,962,000) .... In order to secure repayment of the promissory note, also on or about May 14, 2002, the defendant duly made, executed and delivered to the plaintiff an [a]mended and [Restated [m]ortgage, [assignment of [1] eases and [r]ents and [s]ecurity [agreement dated May 14, 2002. The plaintiff and [the] defendant also entered into a [t]erm [l]oan [agreement dated May 14, 2002. The term on the promissory note is for a period of ten years, maturing on May 14, 2012. On or about April 15, 2002, the plaintiff filed in the Connecticut [secretary of [the] [s]tate’s [o]ffice aUCC [financing [statement fisting the plaintiff as the secured party and the defendant as the debtor. Thereafter, on or about August 27, 2008, the mortgage was amended pursuant to a modification agreement entered into by the defendant and the plaintiff. The plaintiff is the owner and holder of the promissory note, the term loan agreement, the mortgage as amended by the modification agreement and the original financing statement as amended by the amended financing statement.”

Following a period of reduced payments permitted pursuant to the loan modification agreement, the defendant failed to pay the full amounts due under the terms of the note between December 1,2008, and May 1,2009. “On May 6, 2009, the plaintiff sent a notice of default to the defendant notifying it that it was in default under the note, mortgage, and other loan documents because of its failure to pay all amounts due as provided in the note.”

On or about September 15, 2009, the plaintiff commenced this action against the defendant seeking judgment on the promissory note and foreclosure of the mortgage. A three day trial to the court, Hartmere, J., began on December 8,2010. Eugene Wong, an associate at Silicon Valley Bank, testified for the plaintiff. He produced a copy of the promissory note because, as he explained, he was unable to locate the original, despite efforts to find it at several of the plaintiffs offices and at a third party storage facility. The defendant objected to the admission of the copy of the note on the basis that the plaintiff had failed to meet the burden of proof required to admit a lost instrument. See General Statutes § 42a-3-309. The court overruled the objection and found that the plaintiff had sustained its burden by showing that the original note was lost and that the copy produced was authentic.

Wong also testified regarding the amount of the debt owed to the plaintiff. To demonstrate the basis for Wong’s calculations, the plaintiff introduced screens-hots that captured its records of the defendant’s loan activity from May 31, 2002, to the time of trial. The loan activity was recorded in an accounting program called Silicon Valley Bank Online (SVB Online). Wong testified that the loan records depicted in the screenshots were updated at the time each payment or charge was assessed against the loan, that it was the plaintiffs regular course of business to keep such records, and that the records were made in the regular course of the plaintiffs business. Although Wong was not the employee who entered the information into the accounting program, he testified that he reviewed the entries to make sure that they were accurate and applied correctly as between principal and interest. The defendant objected to the admission of the screenshots on the ground that the plaintiff had failed to establish the elements of the business records exception. See Conn. Code Evid. § 8-4. Specifically, the defendant took issue with the fact that Wong had not personally entered the loan repayment data into the SVB Online system. The defendant’s objection was overruled.

Additionally, the plaintiff introduced a spreadsheet created by Wong that summarized the transactions related to the subject loan. Wong testified that he had created the spreadsheet with information he had obtained from SVB Online. The spreadsheet was admitted without objection. Referring to the spreadsheet, Wong went on to testify regarding the outstanding principal balance, the amount of interest that had accrued and late fees that were assessed.

Also during Wong’s testimony, the plaintiff sought to introduce invoices for legal expenses that the plaintiff had incurred during the course of the foreclosure litigation. The defendant’s objection that the invoices were inadmissible hearsay was sustained by the court. At the close of the plaintiffs case-in-chief, without a proper witness through whom it could introduce documentary evidence of its legal expenses, counsel for the plaintiff stated that “there is no claim for attorney’s fees.”

After the defendant had rested, the court permitted the plaintiff, over the defendant’s objection, to open its case-in-chief to offer evidence of its attorney’s fees. The court noted that, “ordinarily motions to open direct [to present evidence that] should’ve been presented during the case-in-chief are not viewed favorably. On the other hand, the facts here are somewhat unique in that the original attorney didn’t appear to be available . . . .” The court therefore allowed the plaintiff to open its case-in-chief for the purpose of establishing its attorney’s fees. Accordingly, on February 25, 2011, Judge Lisa Kelly Morgan, who became a Superior Court judge during the pendency of the case, testified regarding her past experience in commercial foreclosures, the scope of her work on the present foreclosure action, the number of hours she dedicated to the case, and the manner in which her bills were calculated. Gina Varano, whose firm represented the plaintiff after Judge Morgan was appointed a judge, similarly testified about her work on the case, which commenced when trial was imminent. In its memorandum of decision, the court found that the fees of the two attorneys were “reasonable under all of the circumstances.”

The court issued its memorandum of decision, finding in favor of the plaintiff, and rendered a judgment of foreclosure by sale. The defendant’s motion to reargue was denied by the court. This appeal followed.

I

The defendant’s first two claims on appeal pertain to evidentiary rulings. Our standard of review, therefore, is abuse of discretion. “The trial court’s ruling on eviden-tiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . [Ejviden-tiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) Stokes v. Norwich Taxi, LLC, 289 Conn. 465, 489, 958 A.2d 1195 (2008).

A

The defendant first claims that the court abused its discretion by determining that the plaintiff was the owner and holder of the note, despite the fact that the original note was lost. We disagree.

“A bill or note is not a debt; it is only primary evidence of a debt; and where this is lost, impaired or destroyed bona fide, it may be supplied by secondary evidence. . . . The loss of a bill or note alters not the rights of the owner, but merely renders secondary evidence necessary and proper.” (Citation omitted; internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 760, 680 A.2d 301 (1996); see also 1 D. Caron & G. Milne, Connecticut Foreclosures (5th Ed. 2011) § 6-2:1.3, p. 315 (“[t]he plaintiffs ability to prosecute an action despite the fact that the original mortgage note and/or deed are lost is well established, although these circumstances do impose additional burdens on the plaintiff’).

“The Uniform Commercial Code . . . addresses situations . . . where the instrument sought to be enforced is unavailable, by creating an exception to the general rule that one must hold an instrument in order to enforce its payment.” Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 381, 494 A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985). Section 42a-3-309 (a) provides: “A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.”

Here, the court found that the plaintiff had sustained its burden of showing that the note was lost and that the copy it produced was authentic. Despite the defendant’s contention to the contrary, there is no specific requirement under § 42a-3-309 that the proponent of a lost note produce an affidavit detailing how the instrument was lost. To the contrary, “[t]he special problems and burdens of proof imposed on a plaintiff seeking to enforce lost instruments strongly suggest that the debt, including the circumstances under which the documents were lost and the attempts to find them, should be proven by testimony, and not merely by an affidavit.” 1 D. Caron & G. Milne, supra, § 6-2.T.3, p. 316.

The plaintiff established that it had entered into a transaction including a promissory note secured by a mortgage, a term loan agreement, and a mortgage with the defendant. Wong testified that ordinarily the original note would have been kept in the plaintiffs California headquarters. After a period of time, it would have been sent to a third party storage facility. Wong testified that he checked “all the places where [the note] could possibly be,” but he was unable to locate it. Although the original was lost, a copy of the note had been kept in the plaintiffs credit file for the subject loan. Although the defendant takes issue with the admission of the copy of the note, it does not claim that the copy was in any way inaccurate. See Guaranty Bank & Trust Co. v. Dowling, supra, 4 Conn. App. 382 (“[although the defendant objected to the introduction of the photocopy, he offered no evidence that it was not an accurate copy nor . . . did he dispute its terms”). The court, therefore, did not abuse its discretion in admitting a copy of the note.

B

The defendant next claims that the trial court abused its discretion by admitting, pursuant to the business record exception to the hearsay rule, the screenshots that captured the transaction history of the subject loan. The defendant’s primary contention is that our Supreme Court’s holding in New England Savings Bank v. Bedford Realty Corp., supra, 238 Conn. 745, precluded Wong’s testimony regarding the amount of the debt because he had only limited knowledge of the loan. The defendant also seems to argue, as it did at trial, that the fact that Wong did not create the records depicted in the screenshots precluded application of the business record exception. We disagree.

The defendant’s reliance on New England Savings Bank is misplaced. In New England Savings Bank, our Supreme Court held that the trial court had improperly admitted the testimony of a bank employee regarding the amount of the outstanding debt. Id., 757-58. The witness “had not closed or serviced the note and mortgage, and . . . [the plaintiff] had employed a subser-vicer to make collections.” Id., 758. Thus, the witness’ testimony regarding the amount of the debt was based “exclusively on what she had gleaned from the file . . . and from . . . computer records.” Id., 767. What was problematic about the testimony, the court reasoned, was that the plaintiff had not offered into evidence the documents on which the witness relied. Id., 768; see Central Bank v. Colonial Romanelli Associates, 38 Conn. App. 575, 680, 662 A.2d 157 (1995) (“Because the contents of the computer records were at issue, the records themselves were the best evidence of the amount of the debt and the interest calculation. Accordingly, they should have been admitted into evidence before [a witness] was permitted to testify concerning their contents.”). Because the documents that Wong relied on to explain the total outstanding debt were admitted here, New England Savings Bank is clearly distinguishable.

The defendant also asserts that the screenshots were inadmissible because of Wong’s “limited” role in the administration of the loan, or because other employees more involved with the loan were available to testify. This claim merits little discussion. As the Connecticut Code of Evidence makes explicitly clear, a business record is “not . . . rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record ... or (2) the party’s failure to show that such persons are unavailable as witnesses. . . .” (Internal quotation marks omitted.) Conn. Code Evid. § 8-4 (b).

It is also clear that Wong was competent to testify regarding the screenshots. The party proffering a document under the business records exception must present a witness who can establish the foundational requirements of the exception. See Berkeley Federal Bank & Trust, FSB v. Ogalin, 48 Conn. App. 205, 208, 708 A.2d 620, cert. denied, 244 Conn. 933, 711 A.2d 726 (1998). Regarding electronic documents, our Supreme Court recognized in American Oil Co. v. Valenti, 179 Conn. 349, 360-61, 426 A.2d 306 (1979), that “[w]hat is crucial is not the witness’ job description but rather his knowledgeability about the basic elements that afford reliability to computer printouts. . . . The witness must be a person who is familiar with computerized records not only as a user but also as someone with some working acquaintance with the methods by which such records are made.” (Citation omitted.) Wong certainly exceeded this threshold. He testified that he was responsible for overseeing the subject loan, that he was familiar with the relevant loan documents, and that he was fluent with SVB Online, having used the program for two and a half years. Thus, the court properly admitted the screenshots.

II

The defendant finally claims that the court abused its discretion by permitting the plaintiff to open its casein-chief for the purpose of presenting evidence related to its attorney’s fees. We are not persuaded.

“Whether or not a trial court will permit further evidence to be offered after the close of testimony in the case is a matter resting within its discretion. ... In the ordinary situation where a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided.” (Citations omitted.) Bortner v. Woodbridge, 250 Conn. 241, 265, 736 A.2d 104 (1999).

The defendant’s claim fails for several reasons. First, the court reasonably found that the plaintiffs failure to present evidence regarding attorney’s fees was caused by “inadvertence or mistake,” in that there was confusion regarding whether the plaintiffs initial counsel, Morgan, was available to testify regarding her fees. Moreover, the court reasonably could have concluded that it would have been unfair to preclude recovery of attorney’s fees when the defendant had agreed to pay all such costs under the terms of the loan and related documents. Finally, the defendant does not even attempt to describe how opening the case was prejudicial, except for the fact that it will be required to pay costs to which it had contractually obligated itself. See DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 134 n.35, 998 A.2d 730 (2010) (granting of motion to reopen evidence appropriate where “defendants did not alert the trial court to any possible prejudice that might arise from the granting of the motion”). As the hearing on attorney’s fees took place two months after the motion to open was granted, certainly the defendant cannot claim that it did not have adequate time to prepare to contest the amount of the fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       Counsel for the defendant also stated that the defendant is “not denying that [it] did sign the note.” In fact, the defendant had included a copy of the note as an exhibit to its amended answer and special defenses.

       The court found that pursuant to the note and related loan documents, the defendant had agreed to pay all costs of collection incurred by the plaintiff including, but not limited to, attorney’s fees and related costs.

       Attorney Lisa Kelly Morgan had represented the plaintiff before being confirmed as a judge of the Superior Court on November 5, 2010. During its case-in-chief, the plaintiff was apparently unsure about the propriety of calling a judge as a witness.

       Pursuant to General Statutes § 42a-3-301, a person not in possession of an instrument is entitled to enforce the instrument in accordance with General Statutes §§ 42a-3-309 or 42a-3-418 (d).

       The defendant mistakenly asserts that the plaintiff had “transferred” the note to its third party storage facility. Storing an instrument with a third party does not make the storage company the “holder” of the instrument except, of course, in the literal, physical sense of the word.

       The defendant repeatedly mischaracterizes Wong’s involvement with the administration of the subject loan. The defendant asserts, for example, that Wong “testified that he did not have any access or input into the account reporting in the present action . ...” In fact, Wong testified that he was familiar with the subject loan documents and that, although he did not input the transactions into SVB Online, he had reviewed the payment information to make sure it was entered accurately and applied correctly to principal and interest.

       It is worth noting that the defendant did not obj ect at trial to the admission of the spreadsheet that Wong had created, which also delineated the amount of the debt. Nor does the defendant claim on appeal that the spreadsheet was improperly admitted.

       On appeal, the defendant also challenges the reasonableness of the fees awarded, stating that, “upon information and belief,” the $325 hourly rate charged by the plaintiffs attorneys was “approximately $100 [per] hour more than what is allowed in foreclosure proceedings.” The defendant complains that at trial, the court focused “solely on the services alleged to have been rendered by [the plaintiffs attorneys], andpaidno mind to the excessive hourly rates charged.” The defendant, however, failed to raise the precise issue of the reasonableness of the hourly rates at trial. As such, this claim was not preserved for appellate review. “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 requirement that [a] claim be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked.” (Emphasis added; internal quotation marks omitted.) State v. Colon, 82 Conn. App. 658, 659, 847 A.2d 315, cert. denied, 269 Conn. 915, 852 A.2d 745 (2004).


author: ESPINOSA, J.

text:
    MUHOZA ZUBERI v. COMMISSIONER OF CORRECTION
    (AC 33426)
    Alvord, Espinosa and Sullivan, Js.
    Argued September 11, 2012
    officially released February 19, 2013

      Daniel J. Foster, special public defender, for the appellant (petitioner).

      Marjorie Allen Daus ter, senior assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Nicholas J. Bove, Jr., senior assistant state’s attorney, for the appellee (respondent).
   Opinion

ESPINOSA, J.

The petitioner, Muhoza Zuberi, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court committed plain error by refusing to grant his amended petition when the court failed to apply a clearly applicable statute, General Statutes § 54-lj, which he claims required the habeas court to vacate his conviction due to the trial court’s failure to advise him of the possible immigration consequences of his guilty plea before rendering a judgment of conviction. The petitioner claims that the habeas court’s refusal to grant his amended petition constituted a manifest injustice. Alternatively, the petitioner asks this court to exercise its supervisory authority to remedy the trial court’s failure to comply with § 54-lj (a). We disagree that plain error exists and decline to exercise our supervisory authority. Accordingly, we affirm the judgment of the habeas court.

The following facts as found by the habeas court are relevant to our resolution of this appeal. The petitioner was the defendant in a criminal case in which he was charged with possession of narcotics in violation of General Statutes § 21a-279 (a), possession of narcotics with intent to sell in violation of General Statutes § 2 la-278 (b) and possession of narcotics with intent to sell within 1500 feet of a school, a public housing project or a licensed child day care center in violation of General Statutes § 21a-278a (b). The court found: “On April 30, 2007, pursuant to a plea agreement, the petitioner entered a guilty plea to the charge of possession of narcotics. The trial court . . . canvassed the petitioner and found his plea to be knowingly and voluntarily made with the assistance of competent counsel. The trial court did not advise the petitioner that the possible consequence of his plea, if he were not a citizen of the United States, might be deportation.” In exchange for his guilty plea, the petitioner received a sentence of three years imprisonment, execution suspended, and three years probation.

On July 9, 2009, the petitioner filed a pro se petition for a writ of habeas corpus. The petitioner later obtained counsel and, on June 11, 2010, through counsel, filed the amended petition underlying this appeal. The only claim raised in the amended petition was that the petitioner had been denied the effective representation of trial counsel. Specifically, the petitioner claimed that his right to the effective assistance of trial counsel was denied because (1) “[t]rial counsel failed to ensure that the petitioner’s plea of guilty was made knowingly, intelligently and voluntarily, in that . . . the trial counsel failed to advise the petitioner that the petitioner’s immigration status could be implicated by his plea of guilty, and . . . the trial counsel failed to advise the petitioner that his plea of guilty made him subject to deportation from [the United States],” and (2) “[t]rial counsel failed to advise the petitioner concerning the (i) consequences of his plea of guilty, and (ii) the petitioner’s right to withdraw his plea under certain circumstances as set forth in ... § 54-lj via [the] petitioner’s motion to vacate his plea.”

On April 15, 2011, in a memorandum of decision, the court denied the petitioner’s amended petition, finding that the petitioner’s trial counsel “more likely than not advised the petitioner about the immigration consequences of his guilty plea.” Further, the court stated that “even if this court were to presume deficiency in [trial counsel’s] representation, the petitioner’s claim would still fail, as he has not made the required showing of prejudice. . . . [I]t is far from clear that, but for [trial counsel’s] alleged failure to inform [the petitioner] of the immigration consequences of his guilty plea, he would have rejected the plea bargain and insisted on going to trial. Additionally, had the petitioner gone to trial, it is not likely that he would have fared any better.” The petitioner filed the present appeal on May 5, 2011.

I

First, we address the petitioner’s claim that plain error exists. “[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. ... In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . Implicit in this very demanding standard is the notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review. . . . [Thus, an appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . .

“[W]e recently clarified the two step framework under which we review claims of plain error. First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discemable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . [T]his inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal. . . .

“In addition, although a clear and obvious mistake on the part of the trial court is a prerequisite for reversal under the plain error doctrine, such a finding is not, without more, sufficient to warrant the application of the doctrine. Because [a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice . . . under the second prong of the analysis we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust. . . . Only if both prongs of the analysis are satisfied can the appealing party obtain relief.” (Citation omitted; internal quotation marks omitted.) State v. Davenport, 127 Conn. App. 760, 764-65, 15 A.3d 1154, cert. denied, 301 Conn. 917, 21 A.3d 464 (2011).

“To obtain relief through a habeas petition, the petitioner must plead facts that, if proven, establish that the petitioner is entitled to relief. In a writ of habeas corpus alleging illegal confinement the application must set forth specific grounds for the issuance of the writ including the basis for the claim of illegal confinement. . . . [T]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.” (Citation omitted; internal quotation marks omitted.) Kaddah v. Commissioner of Correction, 299 Conn. 129, 136-37, 7 A.3d 911 (2010). “[A] habeas court does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised. ... In addition, while courts should not construe pleadings narrowly and technically, courts also cannot contort pleadings in such a way so as to strain the bounds of rational comprehension.” (Internal quotation marks omitted.) Richardson v. Commissioner of Correction, 298 Conn. 690, 702, 6 A.3d 52 (2010).

On appeal, the petitioner does not challenge the court’s findings and conclusions regarding the alleged ineffective assistance of his trial counsel, the only error claimed in his amended habeas petition. Instead, the petitioner contends that he was entitled to the relief sought in his amended habeas petition because it was mandated by § 54-lj (c), even though he did not make any such argument in his amended petition. The petitioner claims that he satisfied the requirements of § 54-lj (c), thereby entitling him to have his conviction vacated, by (1) filing his habeas petition seeking to vacate his plea and (2) providing evidence, during the hearing on the petition, that his guilty plea may have had one of the consequences enumerated in § 54-lj (a). Effectively, the petitioner argues that it was plain error for the habeas court not to vacate his conviction, through a sua sponte application of § 54-lj (c), after the petitioner brought to the court’s attention, in the context of his ineffective assistance of counsel claim, the trial court’s failure to advise him of the immigration consequences of his guilty plea. We disagree.

Based on our thorough review of the record, we conclude that the petitioner has failed to demonstrate plain error by the habeas court. The court was not required, nor permitted, to look beyond the issues raised in the petitioner’s amended habeas petition. See id. The petitioner acknowledges that the alleged ineffective assistance of his trial counsel was the sole argument presented as the basis for the relief sought in the amended habeas petition. In its memorandum of decision, the court appropriately confined its discussion and analysis to the petitioner’s claims regarding ineffective assistance of counsel.

The court did not, as the petitioner argues, fail to follow a clearly applicable mandatory statute because § 54-lj imposes mandatory requirements on the trial court, not the habeas court. Because the statute relied on by the petitioner applies to the trial court, there was no error by the habeas court in failing to grant relief under the statute. Because we conclude that there was no plain error by the court, we need not reach the second prong of the plain error analysis to determine whether the consequences of such error are manifestly unjust.

II

Alternatively, the petitioner invites this court to vacate his conviction in the exercise of its inherent supervisory authority over the administration of justice. See, e.g., State v. Jimenez-Jaramill, 134 Conn. App. 346, 380-81, 38 A.3d 239, cert. denied, 305 Conn. 913, 45 A.3d 100 (2012). The petitioner seeks such a remedy on the basis of a claim that was not set forth in his amended petition, and which was not properly before the habeas court. Before the trial court, the petitioner had the proper opportunity to seek relief under § 54-lj (c). The petitioner has the right to plead grounds upon which he seeks habeas relief and to obtain a judicial determination related to those grounds. Thus, there is no showing that the traditional protections available to the petitioner are inadequate. Moreover, insofar as the habeas court lacked the discretion to go beyond the grounds raised in the amended petition, there is no showing that the court acted in a manner that may be perceived as unfair or that its conduct was unduly offensive to the maintenance of a sound judicial process. For these reasons, the petitioner has not demonstrated that this is one of the rare instances in which this court should exercise its supervisory authority.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner seeks plain error review of the habeas court’s judgment because, as he acknowledges, his current claim on appeal was not raised or argued before the habeas court.

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

       The record reflects that, as of September 14, 2010, the petitioner had been in the custody of the United States Department of Homeland Security since June, 2008, pending a deportation hearing as a consequence of his April 30, 2007 sentence. The record is barren as to the petitioner’s present status.

       With respect to the petitioner’s claim that his trial counsel failed to advise him concerning his “right to withdraw his plea under certain circumstances as set forth in ... § 54-lj via [the] petitioner’s motion to vacate his plea,” the habeas court found that “[t]he petitioner did not present any evidence on this claim and did not directly address it in his posttrial brief. Accordingly, [the habeas court found] that the petitioner . . . abandoned this claim.”
      In addition, based upon this court’s review of the record, there does not appear to be any evidence that the petitioner ever filed a motion to vacate his plea with the trial court.

       The petitioner does appear to challenge the habeas court’s suggestion that his prior conviction for an earlier domestic assault matter may have, by itself, exposed him to deportation. To the extent that the court’s suggestion constituted a factual finding, it is not relevant to the resolution of this appeal.

       Although the petitioner made reference to § 54-lj in his argument, it was in the context of his ineffective assistance of counsel claim.

       On appeal, the petitioner claims that he was “indisputably entitled under § 54-lj to the relief he sought in his habeas petition.” The petitioner’s claim is predicated on the faulty presumption that his actions in the habeas court, rather than in the trial court, were sufficient to entitle him to relief under § 54-lj (c). Because the statute refers to the trial court, the petitioner would only be entitled to relief by making the requisite showing of trial court error and the motion to vacate specified in § 54-lj (c) to the trial court. In resolving this appeal, we do not decide whether the petitioner properly satisfied this statutory requirement before the trial court. We conclude only that his amended habeas petition and presentation of evidence to the habeas court could not serve as a substitute for the required showing and motion to the trial court.
      We note that, during oral argument before this court, the petitioner specifically recognized that the trial court is the court specified in the provisions of § 54-lj. The petitioner nonetheless argues that the statute does not limit the habeas court from granting the same relief specified in § 54-lj (c). The petitioner’s argument is unavailing because the issue is not whether the habeas court had the authority to grant such relief under the statute, but, rather, whether it was required to do so sua sponte based on the petitioner’s passing reference to the statute in the context of his argument about ineffective assistance of counsel.
      Moreover, the cases relied on by the petitioner for the proposition that “[i]t is plain error for a trial court to fail to apply an applicable statute, even in the absence of the statute having been brought to its attention by the parties”; (internal quotation marks omitted); are inapposite to the present case because the petitioner appeals from the judgment of the habeas court, not the trial court. Because the statute relied on by the petitioner applies to the trial court, there was no error by the habeas court in failing to grant relief under the statute.