author: FLYNN, J.

text:
    JANICE MURRAY v. PAUL MURRAY
    (AC 20847)
    Lavery, C. J., and Flynn and O’Connell, Js.

      Argued April 24
    officially released August 14, 2001

      Christine M. Whitehead, for the appellant (plaintiff).

      MichaelS. Taylor, with whom were Wesley W. Horton and, on the brief, Louis Kiefer, for the appellee (defendant).
   Opinion

FLYNN, J.

The plaintiff, Janice Murray, appeals from the judgment of the trial court denying her motion for permission to relocate to California with the parties’ two minor children. On appeal, the plaintiff claims that the court abused its discretion in concluding that the custodial parent’s relocation to California is not in the best interests of the children. Specifically, the plaintiff contends that the trial court improperly (1) failed to address or put proper weight on the “family unit factor” set forth in Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998) (en banc), (2) failed to focus on whether it was in the best interests of the children to move to California if the plaintiff moved to California, (3) deprived the plaintiff of equal protection of the laws because the court allegedly based its conclusions on gender biased stereotypes, (4) relied on the minor children’s opinions rather than on those of the court-appointed guardian ad litem in determining, in part, whether the move is in the best interests of the children, and (5) abused its discretion in denying the plaintiffs motion to reargue in light of certain factual findings made and by not following the opinion of the consulting psychologist in the case. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. By virtue of a separation agreement, which was incorporated into the judgment of dissolution in 1996, the plaintiff and the defendant, Paul Murray, share joint legal custody of their two minor children. Under the agreement, the plaintiff has physical custody of the children. The plaintiff and the defendant are both physicians who each have their own established practices. Their marriage was dissolved on December 23, 1996.

Our standard of review regarding factual findings of a trial court is limited. Such findings are binding on this court unless they are clearly erroneous in fight of the evidence, the pleadings and the record as a whole. Hopfer v. Hopfer, 59 Conn. App. 452, 457, 757 A.2d 673 (2000).

We first turn to the criteria set out in Ireland that the court was required to consider in determining whether the plaintiffs relocation to California with the parties’ children would be in the best interests of the children. At the outset, however, we note that the plaintiff did not seek an articulation from the court regarding her claims that the court failed to consider properly the Ireland criteria. It is the plaintiffs burden to provide an adequate record for our review of those claims. Baugher v. Baugher, 63 Conn. App. 59, 65 n.10, 774 A.2d 1089 (2001); see Practice Book § 66-5.

In Ireland, our Supreme Court adopted the criteria as set forth in Tropea v. Tropea, 87 N.Y.2d 727, 740-41, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996), as the criteria that Connecticut courts should consider in relocation cases. Ireland v. Ireland, supra, 246 Conn. 433. The court also stated that the guiding principle to be applied in such cases is the best interests and welfare of the children involved. Id., 419. After noting that the General Assembly and our courts have traditionally eschewed defining the term, “best interests of the child,” the court endorsed the use of the Tropea criteria for making that determination in future relocation cases. Id., 433.

The first of those factors is “[e]ach parent’s reasons for seeking or opposing the move . . . .” (Internal quotation marks omitted.) Id., 431. In its memorandum of decision, the court addressed each party’s reasons. The court found that “[t]he plaintiff intends to move to California with the children if permitted by the court for the purposes of marrying her boyfriend, Dan.” The court found that by so moving and marrying, the plaintiff would “reach her goal of raising the children in a two-parent home . . . without the necessity of working on a full-time basis or the assistance of a nanny.” The court also found credible, however, the testimony of a former mutual friend of the parties that another reason for the plaintiffs move to California is to “separate herself from her ex-husband and avoid the need to deal with him on a regular basis.” The court found that the defendant opposed the move “for the love of his children and the need to be an active participant in their maturation and development.” The court did not find that “hatred” for his ex-wife was one of the defendant’s reasons for opposing the move. We conclude, therefore, that the court did consider the reasons why each of the parties took their respective positions supporting and opposing the move, as Ireland requires.

The second Ireland factor involves “the quality of the relationships between the child and the custodial and noncustodial parents . . . .” (Internal quotation marks omitted.) Id., 431-32. We note that the plaintiff and the defendant in this case share joint legal custody and that the children’s physical residence has been with the plaintiff. The court’s memorandum of decision is replete with factual findings concerning the children’s relationships with their parents. The court found that both children love each parent and that they are well adjusted, good students. The court concluded that “[tjhere is no doubt that both children have strong bonds to each parent.” A careful reading of the court’s memorandum of decision makes it clear that the court considered the children’s bonds to each parent.

The third Ireland factor to be considered in relocation cases is “the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent . . . .” (Internal quotation marks omitted.) Id., 432. The court specifically found that the move from Connecticut to California will have a “deleterious effect” on the defendant’s relationship with his children. The court found that the quality and quantity of the defendant’s contact “will be negatively impacted,” in part, because of the defendant’s arduous work schedule as a physician. The court further found that the defendant presently lives in Simsbury, the plaintiff lives in West Hartford, and visitation is regularly scheduled and carried out each week. The court determined that the regular weekly visitation schedule, which both children enjoy, will be “thwarted.” Among the court’s other salient findings was that the children “will not have weekly contact for dinners, sporting and school events, and biweekly overnight stays with their father while living 3000 miles away.” The court, therefore, properly considered that factor of the Ireland inquiry. We further conclude that those findings adequately addressed the fifth factor concerning “the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.” (Internal quotation marks omitted.) Id., 432.

The fourth Ireland factor for determining whether the relocation is in the children’s best interests is “the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move . . . .” Id. Although the court determined from the evidence before it that the move would certainly enhance the plaintiffs own emotional and economic needs, the court also found that the move would not enhance the children’s economic, social or educational needs. The court found that the plaintiffs voluntary cutback from her full-time position to a part-time position would not be replaced by full-time employment in California and that the stepfather would not be obligated to extend financial support to the children. There is no evidence in the record that the plaintiff, who is highly educated, desires to relocate to enhance her own educational opportunities. Further, we are satisfied that the court adequately considered the children’s educational opportunities in its finding that the West Hartford public school system successfully addresses the children’s educational needs.

The sixth and final Ireland factor that the court considered is “the negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents, and the effect that the move may have on any extended family relationships.” (Internal quotation marks omitted.) Id. Here, the court found that although, for reasons it specified, there was tension between the parties, they have insulated their children from it. The court also found that the children would miss contact with certain cousins if required to move across the country.

We note that the plaintiff does not claim that the court’s factual findings are clearly erroneous. Rather, her argument focuses, in part, on the weight the court placed, or did not place, on the various factors articulated in Ireland. See id., 434 (no single factor carries dispositive weight). As we previously discussed, we cannot determine the amount of weight that the court actually placed on any one of those factors in the absence of an adequate record indicating how the court weighed evidence in relation to each factor and where the plaintiff failed to seek an articulation of the court’s reasoning. “[T]he resolution of conflicting factual claims falls within the province of the trial court . . . [and] [t]he 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.” (Internal quotation marks omitted.) Hopfer v. Hopfer, supra, 59 Conn. App. 457.

We now turn to the plaintiffs claim that the court failed to address or to afford proper weight to the “family unit” factor. In Ireland, our Supreme Corut stated that “[i]t may not be realistic to try to preserve completely the quality and nature of the relationship that the noncustodial parent enjoyed with the child, especially if such preservation is maintained at the cost of the custodial parent’s ability to start a new, potentially improved life for herself or himself and the child.” Ireland v. Ireland, supra, 246 Conn. 422. In determining what is in the children’s best interests, the trial court must consider what is in the custodial parent’s interest because that interest is interrelated with the children’s best interests. Id., 422-23.

In the present case, the court did address each of the six factors under Ireland and, in those findings, necessarily evaluated the impact, not only on the defendant but principally on the members of the “new family unit,” i.e., the plaintiff and each child. The court considered the plaintiffs reasons for wanting to relocate, the quality of the relationship between the plaintiff and her children, the degree to which the plaintiffs and the children’s lives may be enhanced economically, emotionally and, in the children’s case, educationally, and the negative impact of the hostility between the custodial and noncustodial parents. The court considered all six Ireland factors as they relate to the new family unit and, using its discretion, adjudicated the matter on the basis of what was in the best interests of the children. We conclude that the court did consider the effects that the relocation to California would have on the new family unit. We therefore find no merit to the plaintiffs claim.

The Ireland court stated that sometimes a move that is in the custodial parent’s best interests also may be in the children’s best interests because the relocation will remove the children from the vortex of contentious parents or provide other opportunities to the children or their custodial parent for financial, emotional or educational improvement. The court, nonetheless, adopted the Tropea factors as the guide for trial courts to follow in determining relocation cases. We find that, in this case, the court carefully applied the Tropea/Ireland factors in light of the evidence and did not abuse its discretion.

We next turn to the plaintiffs assertion that the court improperly failed to focus on whether it was in the best interests of the children to move to California if the plaintiff moved to California. We recognize that in a free country a person may travel or reside wherever she or he pleases. See id., 427 (“custodial parent with potentially bright prospects on a distant horizon should not be tethered indefinitely to the noncustodial parent’s choice of residence, as long as the proposed relocation is in the best interests of the child”); Moore v. Ganim, 233 Conn. 557, 593 n.49, 660 A.2d 742 (1995) (right to travel interstate is implicit fundamental right guaranteed by federal constitution). We also note that the court did not change the order of physical custody here. Although we appreciate the conundrum that theoretically can be created in a situation in which the party having physical custody does in fact move and the children are left without a physical custodian, the court was not confronted with such a situation here because the plaintiff testified that she would not move if her motion was denied. As the trier of fact, the court was entitled to believe her. In re Deana E., 61 Conn. App. 197, 208, 763 A.2d 45 (2000), cert, denied, 255 Conn. 941, 768 A.2d 949 (2001). We therefore find this claim to be without merit.

We next turn to the plaintiffs claim that the court violated her constitutional right to equal protection because the court allegedly based its judgment on gender biased stereotypes of women. Specifically, the plaintiff asserts that the court (1) accorded vastly different weight and deference to the parties’ career choices, (2) rewarded the defendant for “his almost gender-comic behavior while penalizing [the plaintiff] for her gender appropriateness” and (3) did not address the plaintiff as “doctor” on the two occasions the court addressed her, but referred to or addressed the defendant as “doctor” seventeen times. We are not persuaded.

As we noted in Wendt v. Wendt, 59 Conn. App. 656, 697, 757 A.2d 1225, cert, denied, 255 Conn. 918, 763 A.2d 1044 (2000), “a charge of gender bias against a trial judge in the execution of his or her duties is a most grave accusation. It strikes at the heart of the judiciary as a neutral and fair arbiter of disputes for our citizenry. Such an attack travels far beyond merely advocating that a trial judge ruled incorrectly as a matter of law or as to a finding of fact, as is the procedure in appellate practice. A judge’s personal integrity and ability to seive are thrown into question, placing a stain on the court that cannot easily be erased.

“Attorneys should be free to challenge inappropriate legal proceedings, a court’s perceived partiality without the court misconstruing such a challenge as an assault on the integrity of the court. Such challenge should, however, be made only when substantiated by the trial record.” (Internal quotation marks omitted.)

As in Wendt, the record in this case does not support the plaintiffs charge. We first observe that there is simply no evidence in the record that the plaintiffs proposed move was dictated by some necessary professional career choices, much less that the court gave more weight and deference to the male defendant’s career choices. Instead, the court found that the plaintiffs move was influenced by her remarriage plans to an individual whose career has evidently placed him on the West Coast where, when married, they intended to live.

Similarly, we find no basis in the record to justify the plaintiffs second allegation that somehow the court “rewarded” the male defendant’s “gender-comic behavior” while penalizing the plaintiffs “gender appropriateness.” We note, in this regard, that at one point in its decision, the court did find that the defendant communicated with the plaintiff by typed letters and addressed the plaintiff as Mrs. Murray, rather than by her professional title, Dr. Murray. The court characterized some of the defendant’s remarks as “insensitive and inappropriate,” including his references to court-ordered alimony checks as an “allowance.” The judge made no such findings against the plaintiff.

The plaintiffs claim misconstrues the court’s focus in relocation cases, namely, whether the proposed relocation is in the children’s best interests. The defendant’s pettiness and cruel remarks made in private correspondence to the plaintiff bore no relevance to the issue of whether the proposed relocation to California is in the children’s best interests. With regard to the plaintiffs third argument, we note that the court merely followed a pattern of addressing the plaintiff that was set by her counsel.

What the plaintiff is then left with is the faulty premise that a judge of one sex who rules against a party of another sex is gender biased. Adverse rulings alone do not constitute bias. Id., 696. Accordingly, the plaintiffs argument lacks logic.

A proper premise would be that a judge of one sex who rules against a party of the opposite sex on the basis of a predisposition against all members of that opposite sex or, without such a general disposition, nonetheless rules on the basis of the litigants’ genders, is biased. It goes without saying that a litigant must substantiate such a claim from the record of conduct at trial. Unfortunately, the false premise that the plaintiffs counsel has advanced to argue gender bias against the trial judge in this case is evidence of the very gender bias, albeit in reverse, of which she has unjustly accused the judge. As we discussed previously, there is no evidence in the record that the court was gender biased in rendering its decision in the present case. We conclude, therefore, that the plaintiffs claim is without merit.

We next consider the plaintiffs claim that the court improperly gave weight to the children’s desire not to relocate as opposed to the contrary opinion of the court-appointed guardian ad litem. The court properly was concerned with what was in the best interests of the children. We therefore are not surprised that the court would give some weight to the views of young persons who had reached the age of reason and were the focus of a best interests determination, as opposed to the contrary view of a guardian ad litem. This was a matter within the court’s discretion, which the court did not abuse. See Hopfer v. Hopfer, supra, 59 Conn. App. 460.

We need not tarry in considering the plaintiffs remaining claim that the court improperly denied her motion for reargument on the ground that the court misconstrued the testimony of Anne Phillips, the consulting psychologist and evaluator in the case. We review claims that the court improperly denied a motion for reargument under the abuse of discretion standard. Hartford v. Pan Pacific Development (Connecticut), Inc., 61 Conn. App. 481, 487, 764 A.2d 1273, cert, denied, 256 Conn. 913, 772 A.2d 1126 (2001). When reviewing a decision for an abuse of discretion, “every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Hopfer v. Hopfer, supra, 59 Conn. App. 459.

At the hearing, the court asked Phillips the ultimate question regarding whether it was in the children’s best interests to relocate. Her answer clearly indicated that it was not. The court’s finding on this issue, therefore, is not clearly erroneous. We further note, as previously discussed, that the court determined that the relocation to California was not in the children’s best interests after it carefully considered all of the Ireland factors. In short, the court’s decision does not rest solely on the court’s acceptance of Phillips’ opinion, which she later sought to distinguish in her affidavit attached to the plaintiffs motion for reargument. We conclude that the court’s denial of the plaintiffs motion for reargument was not an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because the plaintiff has physical custody of the children, we refer to her as the custodial parent.

       The court concluded in relevant part: “In addition to the negative impact the move will have on the children, the children’s relationship with their father will be damaged by the visitation schedule proposed by the plaintiff, guardian ad litem and evaluator. The father’s profession requires him to arrange his schedule to see the children on a regular basis. The move to California with phone contact or computer video access is not a sufficient substitute for the children and their father. Watching a tape delay of a soccer game or a school award is not the same as ‘being there,’ to not only the children but their noncustodial parent. While the mother intends to raise her children in a ‘two parent household’ in California, one of those parents is not the natural father, who has been financially and psychologically supportive to date.”

       The court’s memorandum of decision reflects that the court considered each of the factors within the burden shifting context as set forth in Ireland.

       Because there was abundant evidence in the record demonstrating that the plaintiff is an excellent parent, there was no reason to transfer custody of the children to the defendant.

       At the outset of the plaintiffs testimony, the following colloquy between the plaintiff and her counsel occurred:
      “Q. Janice, are you the petitioner in this action?
      “A. Yes.
      “Q. And are you seeking to get the court’s permission to move with your children to California?
      “A. Yes.
      “Q. How old are your children, Janice?
      “A. Danielle is six, and Justin will be eight on March 22nd.
      “Q. By the way, you’re a physician.
      “A. Yes.
      “Q. And your former husband is a physician.
      “A. That’s correct.
      “Q. I’m going to refer to you as Janice through this action. Is that is all right with you—
      “A. Yes.
      “Q. — to keep the confusion down. Okay. . . .”

       The following colloquy between the court and Phillips occurred:
      “Q. Ma’am, taking the facts as they exist now, with dad living in Simsbury, mom living in West Hartford, mom being the primary custodial parent, and with the problems that the parties are having in communication, is relocation in the best interest of the children? In other words, relocating with mother to California.

        % % %

      “A. It’s hard for me to answer that just yes and no. It is in the best interest of the children to maintain their relationship with their mother.

        “Q. Ma’am, what I’m asking you, is relocation in the best interest of the children. Because I believe you testified in response to [defense counsel’s] question to the effect that relocation is not in the best interest of the children.

        "A. In a general sense, no. Relocation, what is in the best interest of the children is to have a lesser disruption in their life and to have easier access to both parents. I do not believe that it is catastrophic or significantly deleterious to the children to relocate.
      “Q. Ma’am, is it in their best interest. Not is it deleterious or disturbing to the children. Is it in the children’s best interest to relocate?
      “A. No.”
      Counsel for the plaintiff and the defendant thereafter engaged Phillips in the following colloquy:
      “[Plaintiffs Counsel]: Doctor, is it in the best interest of the children to remain here if their mother is personally and professionally very sad and unhappy?
      “A. No.
      “[Plaintiffs Counsel]: Is it in the best interest of the children if [the plaintiff] moves, that they move with her?
      “A. Yes.
      “[Defendant’s Counsel]: On the professional — you don’t have any reason to believe that [the plaintiff] would be happier working in California or Texas than in New Haven or Hartford, do you?
      “A. No.
      “[Defendant’s Counsel]: So when the questions were asked about her professional happiness, going to California isn’t a particular relevant issue on her professional happiness. Is that correct?
      “A. Not that I’m aware of.
      * ** *
      “[Plaintiffs Counsel]: If she were professionally able to work part time, and as a result, were more available to her children, would that be in the best interest of the children?
      “A. Yes.
      “[Plaintiffs Counsel]: And if she could do that in California, would that be desirable for the children?
      “A. Yes.
      “[Defendant’s Counsel]: And you’re aware that she is working part time and is therefore available for the children now?
      “A. Yes.”


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DEOWRAJ BUDDHU
    (AC 20212)
    Landau, Mihalakos and Daly, Js.
    Argued January 12
    officially released August 14, 2001

      Robert J. Scheinblum, assistant state’s attorney, with whom were John M. Massameno, senior assistant state’s attorney, and, on the brief, JohnM. Bailey, chief state’s attorney, and Vernon Oliver, deputy assistant state’s attorney, for the appellant (state).

      Wesley S. Spears, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

In this criminal case, the state appeals from the judgment of the trial court dismissing the substitute information charging the defendant, Deowraj Buddhu, with 142 violations of the Penal Code. At issue is the court’s ruling prohibiting the state from introducing, in its case-in-chief, evidence that the police officers seized while executing a search warrant for the residence of the defendant and his son, Satesh Buddhu. On appeal, the state claims that the court improperly concluded that the warrant was invalid and, therefore, should not have suppressed the evidence that the police officers had seized. In support of its claim, the state asserts, inter aha, that the court improperly concluded that the warrant did not satisfy the particularity requirement of the fourth amendment to the United States constitution. We disagree with that assertion and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the state’s appeal. On November 21, 1995, two Rocky Hill police detectives applied for a warrant to search the following place: “The residence of Satesh Buddhu (date of birth 2/6/74) and Deowraj S. Buddhu (date of birth 9/18/42), 958 Broad Street, Hartford, Ct. This is also the business location of Phoenix Consulting Services, operated by Deo [Buddhu].” The detectives, Henry J. Dodenhoff and Charles Hedeen, suspected that the defendant and his son were involved in a criminal enterprise that engaged in the production of counterfeit checks and United States citizenship papers. Later that day, a magistrate granted the detectives’ application. On November 22, 1995, members of the Rocky Hill and Hartford police departments executed the warrant. Their search yielded evidence that incriminated the defendant and his son.

On December 21, 1998, the state filed an information that charged the defendant with 140 violations of the Penal Code. On April 26, 1999, the defendant filed a motion to suppress, seeking to preclude the state from introducing the evidence that the police had seized while executing the warrant. On June 10,1999, the state filed the substitute information previously described. See footnote 1. Thereafter, the court conducted a suppression hearing and granted the motion to suppress. The court found that (1) the description in the warrant of the place to be searched was “overbroad” and (2) the overbreadth was due to the fact that the police officers had conducted an “unjustifiably limited investigation.” Therefore, the court concluded, the warrant was invalid because it did not satisfy the particularity requirement of the fourth amendment. On October 27, 1999, the state filed a motion to dismiss the substitute information. That day, the court dismissed the case on the state’s representation that the state could no longer proceed as a result of the unfavorable ruling on the motion to suppress. The court also granted the state permission to appeal. This appeal followed. Additional facts and procedural history will be provided as necessary.

Before addressing the state’s claim that the court improperly concluded that the warrant did not satisfy the particularity requirement of the fourth amendment, we set forth the appropriate standard of review. “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 .... [WJhere 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. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001). Additionally, we are mindful of our authority to affirm a judgment of a trial court on a dispositive alternate ground for which there is support in the trial court record. See Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 794, 749 A.2d 1144 (2000).

After the suppression hearing, the court made the following factual findings. The complete address of the building named in the search warrant is 958-960 Broad Street. The building has three floors and there are apartments on each floor. Specifically, “[t]here [is] a total of six units in the building — two on each of the three floors.” The defendant lived in a unit on the third floor. Each of the six units had a doorbell and a mailbox. “It is evident that the officers knew prior to obtaining the warrant that the building was a multioccupancy building.” The officers also knew prior to obtaining the warrant that the defendant lived on the third floor. The state does not challenge those factual findings.

“The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one ‘particularly describing the place to be searched and the persons or things to be seized.’ The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” (Emphasis added.) Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987). The particularity requirement reflects two concerns. See United States v. Nafzger, 965 F.2d 213, 215 (7th Cir. 1992). “The first concern is the deterrence of ‘general, exploratory rummaging in a person’s belongings.’ ” Id., quoting Andresen v. Maryland, 427 U.S. 463, 480, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). “The second concern is that the scope of a lawful search will be limited to ‘the places in which there is probable cause to believe that [the items sought] may be found.’ ” United States v. Nafzger, supra, 215, quoting Maryland v. Garrison, supra, 84.

“The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate.” Maryland v. Garrison, supra, 480 U.S. 85. To conduct that assessment properly, we first must review the search warrant and the affidavit supporting the search warrant to determine what information the police officers disclosed. Second, we must review the facts established at the suppression hearing to determine what information the police officers had a duty to discover and disclose to the issuing magistrate. A warrant does not satisfy the particularity requirement of the fourth amendment if all three of the following conditions are satisfied: (1) the facts properly found at the suppression hearing establish that the search (or the seizure) authorized by the warrant was imprecise or broader than necessary; (2) the police officers failed to disclose to the issuing magistrate information that they had a duty to discover and disclose; and (3) it is reasonably probable that, but for that failure, the magistrate either would not have issued the warrant or, instead, would have issued a warrant authorizing a search (or a seizure) that was more precise.

As previously stated, the warrant in the present case authorized the police officers to search the following place: “The residence of Satesh Buddhu (date of birth 2/6/74) and Deowraj S. Buddhu (date of birth 9/18/42), 958 Broad Street, Hartford, Ct. This is also the business location of Phoenix Consulting Services, operated by Deo [Buddhu]. ” After the suppression hearing, the court found that 958 Broad Street (actually 958-960 Broad Street) was a three story building that contained two apartments on each floor. The court also found that the defendant lived on the third floor. Those findings establish that the scope of the search authorized by the warrant was imprecise because the warrant did not specify that the defendant lived in a subunit of the building.

Next, we review the affidavit submitted by Dodenhoff and Hedeen (the Rocky Hill police detectives) to assist us in determining whether they disclosed to the magistrate that the defendant lived in a subunit of the building. The affidavit does not indicate whether the structure at 958-960 Broad Street contained more than one floor. Accordingly, the affidavit does not state that the defendant lived on the third floor. It also does not indicate that the defendant’s residence did not encompass the entire structure. For instance, it does not contain the word “apartment,” “condominium,” “subunit” or “unit.” In sum, Dodenhoff and Hedeen, in their affidavit, did not even intimate that the defendant lived in a subunit of the building.

The court found that (1) the building at 958-960 Broad Street had three floors, (2) each of the building’s six units had a doorbell and a mailbox, and (3) “[i]t is evident that the officers knew prior to obtaining the warrant that the building was a multioccupancy building.” On the basis of those findings, we conclude that it was readily apparent that 958-960 Broad Street was a multiunit dwelling. Consequently, DodenhoffandHedeen had a duty to disclose to the issuing magistrate that they knew that the defendant resided in such a dwelling. The record does not establish that they did.

Had Dodenhoff and Hedeen disclosed their knowledge as required, the magistrate would have been assisted considerably in his role of determining whether the locus of the proposed search was precisely tailored and limited to places where there was probable cause to believe that the items sought might be found. Although “[s]earch warrants directed against multiple occupancy structures are generally held to be invalid where the warrant fails to describe the subunit with that degree of particularity that [in theory] precludes the search of other units within the building”; Garrison v. State, 58 Md. App. 417, 427, 473 A.2d 514 (1984), rev’d, 303 Md. 385, 494 A.2d 193 (1985), rev’d, 480 U.S. 79, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987); it can be difficult to determine when this requirement has been satisfied, especially in close cases such as this one. For this and the foregoing reason, we conclude that it is reasonably probable that but for the officers’ failure to disclose that the defendant resided in a multiunit dwelling, the magistrate would have declined to issue the warrant absent further information concerning the location of the defendant’s apartment.

All three of the conditions discussed previously have been satisfied. Accordingly, we conclude that the warrant did not comply with the particularity requirement of the fourth amendment. The court’s decision granting the defendant’s motion to suppress was proper.

We note that there is a fine but significant distinction between our holding in the present case and this court’s holding in State v. Burgos, 7 Conn. App. 265, 508 A.2d 795 (1986). In Burgos, the defendant claimed that the trial court improperly concluded that the search warrant for his residence satisfied the particularity requirement of the fourth amendment. Id., 266-68. The warrant at issue authorized a search of the following location: “# 76 West Avenue, Willimantic, CT, a green two story wood framed structure containing four separate apartments facing the building from West Avenue, two doors colored white are visible, entrance to 76 is gained from left side door, which has 76 in black to the left of it.” (Internal quotation marks omitted.) Id., 267. Thus, the description of the place to be searched indicated that the defendant lived in a multiunit dwelling. See id. Moreover, “[i]n addition to the description recited above, the warrant direct[ed] the executing officer to the affidavit which contain[ed] numerous references to the apartment at 76 West Street as being the residence of the defendant.” Id., 269. This court concluded that the warrant was sufficiently particular. Id.

In the present case, however, neither the warrant nor the affidavit indicated that the defendant lived in a multiunit dwelling. Our analysis under Maryland v. Garrison, supra, 480 U.S. 79, reveals that the police detectives were required to disclose that fact to the magistrate.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the substitute information, the state charged the defendant with 111 counts of attempt to commit forgery in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-139 (a) (3); twenty-four counts of forgery in the second degree in violation of § 53a-139 (a) (3); one count of larceny in the first degree as an accessory in violation of General Statutes §§ 53a-8 (a), 53a-119 and 53a-122; one count of forgery in the second degree in violation of § 53a-139 (a) (1); one count of money laundering in the second degree as an accessory in violation of General Statutes §§ 53a-8 (a) and 53a-277; one count of conspiracy to commit racketeering in violation of General Statutes §§ 53a-48 and 53-395; one count of racketeering in violation of § 53-395 (c); and two counts of attempt to commit larceny in the first degree as an accessory in violation of §§ 53a-8 (a), 53a-49 (a) (2), 53a-119 and 53a-122.

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
      The fourth amendment is made applicable to the states through the due process clause of the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).

       We therefore need not address the state’s remaining claims, which are as follows: (1) the court improperly rejected the issuing magistrate’s conclusion that the warrant affidavit established that there was probable cause to search the residence of the defendant and his son; (2) the court improperly concluded that the police had exceeded the scope of the search authorized by the warrant; and (3) our Supreme Court should overrule State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990) (en banc) (holding that the good faith exception to the exclusionary rule does not exist under Connecticut law). Regarding the last of those three claims, we note that it is not within our province to overrule the decisions of our Supreme Court; see State v. Robinson, 56 Conn. App. 794, 801, 746 A.2d 210, cert, denied, 253 Conn. 904, 753 A.2d 938 (2000); and that the state indicated in its principal brief to this court that it raised that claim to preserve it for possible review by our Supreme Court.


author: HENNESSY, J.

text:
    225 ASSOCIATES v. CONNECTICUT HOUSING FINANCE AUTHORITY
    (AC 19583)
    Spear, Dranginis and Hennessy, Js.

      Argued January 24
    officially released August 21, 2001

      Milo J. Altschuler, for the appellant (plaintiff).

      Thomas J. Sansone, for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiff, 225 Associates, appeals from the judgment of the trial court rendered in favor of the defendant, the Connecticut Housing Finance Authority, denying the plaintiffs claims for the return of certain escrow funds, for damages on theories of negligence and breach of contract, and for the payment of insurance proceeds received by the defendant in connection with a building loan agreement.

The plaintiff claims that the court improperly found that (1) the plaintiff was not entitled to a return of moneys it placed in escrow to supplement the contractor’s letter of credit, (2) the defendant was entitled to retain certain insurance company proceeds it received in connection with vandalism to the property at issue, (3) the defendant could retain all escrowed funds on the basis of a claim of setoff and (4) the plaintiff had not sustained damages as a consequence of the defendant’s actions. We affirm the judgment of the trial court.

The following facts are relevant to the plaintiffs appeal. The plaintiff and the defendant entered into a building loan agreement in which the plaintiff borrowed $2,659,000 from the defendant to purchase and renovate a fifty unit apartment building at 225 Golden Hill Street in Bridgeport. In August, 1992, the plaintiff complained to the defendant that the general contractor, Brack Poitier, was paid for work that was not completed in a workmanlike manner and was not making payment; to his subcontractors with the funds that he was receiving from the plaintiff, which had been disbursed to the plaintiff by the defendant for payment to Poitier under the terms of the parties’ loan documents. Due to those concerns, the plaintiff withheld subsequent payment to Poitier. Poitier responded by walking off the job. No further construction has taken place since that time. The plaintiff instituted an action against the defendant seeking damages. The plaintiff also sought to recover certain funds that were being held in escrow by the defendant. The court ruled that the plaintiff was not entitled to recover the funds it sought and rendered judgment for the defendant on all counts. The plaintiff thereafter appealed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly found that it was not entitled to recover moneys that it had placed in escrow to make up the difference between the amount of escrow that Poitier was required to deposit and that amount that Poitier actually was able to deposit. We do not agree.

Pursuant to a completion assurance agreement, Poitier was obligated to deposit with the defendant $169,790 at the loan closing to secure or indemnify the defendant or the plaintiff for expenses, loss or damage suffered as a result of any default by Poitier. Poitier was unable to post the entire amount required by the completion assurance agreement. He deposited $130,000 by means of a letter of credit established by the Connecticut National Bank, and the plaintiff posted the remaining $39,790 on Poitier’s behalf. Subsequently, Poitier walked off the job and ignored the defendant’s request to have his letter of credit extended. Following Poitier’s withdrawal from the project, the defendant released Poitier’s letter of credit, citing the fact that the defendant could not call the letter of credit unless Poitier was deemed in default. In its June 23, 1998 memorandum of decision, the court held that none of the disbursement provisions of the completion assurance agreement had been triggered and that the plaintiff, thus, was not entitled to the return of the $39,790 that it had deposited. In this appeal, the plaintiff claims that the ruling was incorrect.

As an initial matter, we set forth the applicable standard of appellate review. The court’s determination that the $39,790 put into escrow by the plaintiff should be treated differently from the contractor’s letter of credit is based on that court’s findings of fact. “To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings are clearly erroneous.” (Internal quotation marks omitted.) Commissioner of Transportation v. Towpath Associates, 255 Conn. 529, 539, 767 A.2d 1169 (2001). “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.) Holt v. People’s Bank, 62 Conn. App. 561, 564-65, 771 A.2d 266, cert, denied, 256 Conn. 917, 773 A.2d 944 (2001).

The plaintiff argues that the letter of credit and the $39,790 paid by the plaintiff on behalf of Poitier should be treated the same and that the defendant’s failure to call the letter of credit was equivalent to disbursing the other $130,000 to Poitier. The plaintiff further contends that the parties intended both the letter of credit and the $39,790 to be security under the completion assurance agreement. Hence, the plaintiff argues that if the disbursement requirements did not apply to Poitier’s letter of credit, then they should not apply to the $39,790 deposited by the plaintiff.

The defendant argues that the $39,790 should be treated differently from the letter of credit for two reasons. First, the defendant avers that the terms of the completion assurance agreement did not allow it to draw on Poitier’s letter of credit unless he performed unsatisfactorily. We agree. Because the court did not find that Poitier had breached the completion assurance agreement, under its terms, the defendant could not call Poitier’s letter of credit.

Second, the defendant argues that it is entitled to retain the $39,790 because the mortgage deed gives the defendant the right of setoff against all of the plaintiffs moneys on deposit with the defendant. Thus, the defendant argues that it should be allowed use of the $39,790 as a setoff against the more than $2 million that the plaintiff owes to the defendant. We agree.

The moneys deposited with the defendant by the plaintiff on behalf of Poitier were subject to the defendant’s right of setoff as defined in § 5.01 of the parties’ mortgage deed. As such, the $39,790 properly was subject to being applied to any outstanding debt owed to the defendant by the plaintiff. Additionally, not calling the letter of credit did not in any way invalidate the right of setoff exercised by the defendant. The court, therefore, was correct in its finding that the plaintiff was not entitled to recover the $39,790 it had placed in escrow as the balance that Poitier owed under the completion assurance agreement.

II

The plaintiff next claims that the court improperly found that the plaintiff was not entitled to recover any of the $150,000 received by the defendant from an insurance company in connection with vandalism to the property. The plaintiff limited its claim for purposes of this appeal to $73,436, the amount the defendant is prepared to release from an insurance proceeds.

The court held that the disbursement of the insurance proceeds was conditioned on compliance with the terms set forth in the January 21, 1993 letter from the defendant to the plaintiff. The plaintiff argues that the letter does not impose any conditions on the release of the initial $73,436, and that the listed requirements and conditions in the letter apply only to the release of the remaining insurance and mortgage proceeds. The plaintiff relies specifically on the following language: “Upon receipt of the insurance check ... in the amount of $150,000, the [defendant] is prepared to release $73,436 . . . .” Thus, the plaintiff argues that the court’s conclusion that the release of any funds, including the $73,436, is subject to fulfillment of the conditions set forth in the letter is clearly erroneous. Additionally, the plaintiff claims that this alleged impropriety directly affects an element of the claimed damages, which requires us to reverse the judgment and order the defendant to pay $73,436 to the plaintiff. We do not agree.

The court’s conclusion that the plaintiff was not entitled to the return of the insurance proceeds is consistent with its factual findings. The court found that the January 21, 1993 letter did not state that the $73,436 in proceeds was unconditionally promised to the plaintiff. Additionally, the court found that the plaintiff had not complied with or submitted evidence that it had met the conditions contained in the letter and, thus, did not have a right to the proceeds. The court indicated that the plaintiff incorrectly sought disbursement of the proceeds directly to itself rather than the use of the proceeds in conformance with the letter. The court also relied on the terms of the mortgage deed, which states in relevant part that the defendant “may apply the net proceeds, at its option, as a credit on any portion of the Indebtedness, or to the [plaintiff] for the purpose of restoration of the Improvements in accordance with the procedures and otheiwise under the terms and conditions of this Mortgage. . . .” “[These are] factual finding [s] that this court cannot overturn unless [they are] clearly erroneous.” State v. Jeudis, 62 Conn. App. 787, 792, 772 A.2d 715, cert, denied, 256 Conn. 923, 774 A.2d 140 (2001). The plaintiffs argument that the facts found by the court are clearly erroneous is unavailing.

We agree with the court that the plaintiff did not comply with the conditions contained in the January 21, 1993 letter and, as such, did not qualify to receive payments from the insurance proceeds. We find equally unavailing the plaintiffs contention that the defendant should release the $73,436 portion of the insurance proceeds because the letter placed no conditions on the payment of the proceeds. The mortgage deed explicitly provides that the defendant had the option of applying the insurance proceeds to any outstanding indebtedness. The plaintiff therefore has failed to show that the court’s decision was clearly erroneous.

HI

The plaintiff next claims that the court improperly ruled that the defendant could retain certain escrowed funds on the basis of a claim of setoff. Specifically, the plaintiff argues that (1) the defendant did not file a counterclaim or cross complaint alleging the right of setoff and only claimed the right of setoff as a special defense, (2) because the court did not award any damages to the plaintiff, there was no order in the plaintiffs favor against which setoff was available and (3) there were no mutual debts, which a setoff requires. The plaintiff, therefore, contends that there is no legal reason not to return the escrowed funds to the plaintiff. For purposes of clarity, we will address each of the plaintiffs three contentions regarding setoff separately.

A

The plaintiff contends that there is no right of setoff available to the defendant because it only pleaded setoff by means of a special defense and not by way of a counterclaim or cross complaint. We disagree.

“Traditionally, the distinction between a setoff and a counterclaim centers around whether the claim arises from the same transaction described in the complaint. If the claim involves a debt which is mutual and liquidated, even though it arises from separate transactions, it is characterized as a setoff. See General Statutes § 52-139. If the claim arises out of the same transaction described in the complaint, it is characterized as a counterclaim. Savings Bank of New London v. Santaniello, 130 Conn. 206, [210], 33 A.2d 126 (1943). The title of the pleading is not controlling. The issue is, rather, whether sufficient facts are pleaded that would allow recovery either as a setoff or as a counterclaim. Peters Production, Inc. v. Dawson, 182 Conn. 526, 528, 438 A.2d 747 (1980).” Northwestern Electric, Inc. v. Rozbicki, 6 Conn. App. 417, 426, 505 A.2d 750 (1986).

In its pleadings, the plaintiff alleges financial loss and moneys owed to it by the defendant resulting from the defendant’s failure to adhere to the terms of the documents executed in connection with the defendant’s lending of funds to the plaintiff. The court’s finding that the defendant had a right of setoff cannot be overturned on the basis that the claim was improperly pleaded, especially in light of the fact that the plaintiff was on notice of the claim of setoff and cannot be said to have been prejudiced in any way.

The defendant asserted in a special defense that any offset that it had against the plaintiff barred the plaintiffs cause of action. The mortgage deed and the note executed by the parties, and the other “loan documents” give the mortgagee a lien and a right of setoff for all of the mortgagor’s liabilities in connection with the funding of the project. We agree, therefore, with the defendant that sufficient facts were pleaded that would allow recovery either as a setoff or as a counterclaim.

B

The plaintiff further argues that setoff is unavailable to the defendant because the court found that the plaintiff was not entitled to damages and, as a result, there was nothing against which the defendant’s claim could be offset. We do not agree.

“The policy of the law is always to prevent unnecessary litigation, and where . . . entire justice can be done to both of the parties before the court, by the ascertainment and set-off of their mutual claims against each other, without a violation of any of the settled rules or forms of law, such set-off ought always to be made. ... A set-off is made where the defendant has a debt against the plaintiff . . . and desires to avail himself of that debt, in the existing suit, either to reduce the plaintiffs recovery, or to defeat it altogether, and, as the case may be, to recover a judgment in his own favor for a balance.” (Citation omitted; internal quotation marks omitted.) Hope’s Architectural Products, Inc. v. Fox Steel Co., 44 Conn. App. 759, 762, 692 A.2d 829, cert, denied, 241 Conn. 915, 696 A.2d 985 (1997).

The court heard testimony that the plaintiff owed the defendant more than $2 million on the mortgage note. The plaintiff argues that the note was a nonrecourse instrument, which it claims restricts the defendant from looking beyond the real property for satisfaction on the note. As the defendant correctly argues, however, the provisions of the mortgage deed grant the defendant a security interest not only in the real property, but also in the plaintiffs moneys being held by the defendant in escrow accounts. The plaintiff breached its contractual obligations and remains in debt to the defendant. The court found, and we agree, that where the plaintiff would otherwise be entitled to recover some of the escrowed moneys at issue, breach of its contractual obligations precludes it from doing so, and the defendant is entitled to use the escrowed funds as compensation in light of the plaintiffs failure to perform.

C

Additionally, the plaintiff contends that setoff is unavailable to the defendant because there are no mutual debts between the parties, as required under § 52-139. In its complaint, the plaintiff sought damages as reimbursement for the performance of work required by the defendant, for insurable losses and for work required to be done as a result of an insurable loss.

The court found that “where the plaintiff would otherwise be entitled to recover some of the escrowed moneys at issue, it is precluded from doing so due to its own breach of its contractual obligations.” The court also found that the plaintiff was obligated to pay all fees and costs for court or administrative proceedings by reason of the note, mortgage or other instruments securing the note, in addition to the outstanding balance due on the loan from the defendant. The record discloses adequate facts to support the court’s conclusion that the defendant had a right of setoff.

IV

The plaintiff also claims that the court improperly found that the plaintiff did not suffer any injury as a result of the defendant’s breach of its duty in failing to perform independent inspections, and did not suffer any injury as a result of a breach of the completion assurance agreement and the building loan agreement. We disagree.

A

Pursuant to the building loan agreement, before a requisition for payment for work performed was honored, certain individuals would conduct a walk-through to determine if the work was properly completed. The group would then sign the requisitions for payment. By signing and certifying the requisitions, the defendant impliedly affirmed that it had independently inspected the subject work and found it acceptable.

Peter Durante, the defendant’s field observer, testified that he “rubber-stamped” that which the owner, the contractor and the architect had approved. On the basis of that testimony, the court found that the defendant had breached its duty to perform independent inspections. The court, however, found that the plaintiff had failed to prove that any of the work certified by the defendant was incomplete or not performed in a workmanlike manner. The court listed factors that supported its finding. It found that Michael J. Creed, who was one of the partners of the plaintiff, and Charles Jones, the plaintiffs architect, never complained about work performed by Poitier. The court also found that the final report of the plaintiffs architect indicated that even if the work initially was not properly completed, it later was repaired or the plaintiff received a credit, and the plaintiff failed to complain about the work performed on the property until after Poitier walked off the job.

“The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence .... 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.) Melillo v. New Haven, 249 Conn. 138, 151, 732 A.2d 133 (1999). The court’s findings that the plaintiff suffered no harm even though the defendant had breached its duty were consistent and supported by the evidence. Thus, the court’s findings were not clearly erroneous.

B

The plaintiff next argues that the defendant’s failure to conduct independent inspections of the work caused the plaintiff to withhold payment to Poitier out of concern for work performance, which ultimately resulted in his walking off the job and the failure of the project. The plaintiff claims that the cessation of work on the project was a breach of the agreements executed by the parties and that it caused the plaintiff to incur financial loss. The plaintiff, however, failed to prove that the work stoppage was a result of any action of the defendant. The defendant asserted that it would have willingly accepted another contractor proffered by the plaintiff to complete the job with the remaining loan proceeds. The plaintiff did not accept that offer. Furthermore, the plaintiff was indemnified for the negligent work by Poitier out of the moneys it owed to Poitier. Thus, the plaintiffs arguments are unavailing. The court correctly found that the defendant’s failure to conduct inspections of Poitier’s work did not result in damage to the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       The negligence count is based on allegations that the defendant negligently authorized payments to the contractor, thereby preventing the plaintiff from completing the project within the approved construction costs. The breach of contract count alleges that the defendant violated the parties’ building loan agreement by not requiring the contractor to file certain forms before approval of advances of the mortgage proceeds, by failing to call the contractor’s letter of credit and by disbursing funds for work improperly performed by the contractor. The final claim alleges that the defendant refused to endorse to the plaintiff insurance proceeds that the defendant had received as a result of damage to the property caused by vandals.

       The closing documents include a mortgage deed, one of the conditions of which is that the defendant agrees to advance to the plaintiff the balance of the loan ($1,375,241 had been disbursed to the plaintiff for purposes of site acquisition) “in installments as the work progresses . . . .”

       The defendant, in accordance with the loan agreement, was releasing loan proceeds to Poitier, the general contractor, as payment for work performed and satisfactorily completed.

       In its April 23, 1999 memorandum of decision on the motion for reargument, the court found that “[t]he fund was to be maintained by the defendant and was to be disbursed (1) during the course of construction to Poitier as deemed necessary; (2) upon final closing; or (3) ‘[i]n the event of default by [Poitier] under the construction contract: the entire fund or balance remaining therein to the lender; to be used by the lender to indemnify it and the owner as the case may be, for any loss, damage or expense whatsoever which they may suffer by reason of [Poitier’s] failure to properly perform said construction contract.’ ”

       See footnote 4.

       Under article V, § 5.01, of the mortgage deed, titled “Lien and Right of Setoff,” the plaintiff and the defendant agreed as follows: “Mortgagor hereby gives the Mortgagee a lien and right of setoff for all of Mortgagor’s liabilities hereunder upon and against all deposits, credits and property of the makers, endorsers or guarantors of the Note or notes secured hereby other than the Mortgaged Property and any other collateral of a maker, endorser or guarantor now or hereafter in possession or control of Mortgagee or in transit to it. Mortgagee may, at any time, apply the same or any part thereof to any liability of Mortgagor even though unmatured.”

       A letter dated January 21, 1993, from the defendant to the plaintiff, detailed the $150,000 ($149,818) in insurance proceeds as follows:
      That which the defendant is prepared to release:
      Hart Electric $ 6,758
      P&P Carting 6,750
      Brown Elevator 24,046
      Nutmeg Adjusters 10,000
      Charles Jones, AIA 2,146
      Brack Poitier 23,736
      TOTAL 73,436
      The estimated balance of $24,202 which will be released on completion of the work.
      Items requested but not approved:
      Security $48,690
      Attorney’s fees 3,490

       See footnote 7.

       The escrow funds sought by the plaintiff are $41,000 placed with the defendant for an operating deficit guaranty, $5000 for an insurance escrow and $10,000 for approved attorney’s fees.

       General Statutes § 52-139 (a) provides: “In any action brought, for the recovery of a debt, if there are mutual debts between the plaintiff or plaintiffs, or any of them, and the defendant or defendants, or any of them, one debt may be set off against the other.”

       The individuáis who participated in the walk-throughs were Poitier, who was the contractor, Peter Durante, who was the defendant’s field observer, Charles Jones, who was the plaintiffs architect, and Michael J. Creed, who was one of the partners of the plaintiff.

       The plaintiff argues that the defendant should have called the letter of credit under the terms of the completion assurance agreement, which states in relevant part: “In the event of a default by the contractor [Poitier] under the Construction Contract: the entire Fund or balance remaining therein to the Lender; to be used by the Lender to indemnify it and the Owner as the case may be, for any loss, damage or expense whatsoever which they may suffer by reason of the Contractor’s failure to properly perform said Construction Contract.”
      The plaintiff bases its claim on the economic loss it suffered due to defectively painted doors. Although remedying the problem would cost approximately $28,600, the court found that the plaintiff had suffered no damage as a result thereof because the plaintiff was credited for work not completed or negligently completed by Poitier, including the finish on the doors.