author: E. Y. O’Connell, J.

text:
    State of Connecticut v. Justiniano Torres
    (10922)
    O’Connell, Foti and Landau, Js.
    Argued January 11
    decision released May 25, 1993

      Gregory T. D’Auria, special public defender, with whom, on the brief, was Michael J. Palmieri, special public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Bernadette Conway, assistant state’s attorney, for the appellee (state).
   E. Y. O’Connell, J.

The defendant appeals from the judgment of conviction, following the denial of his motion to suppress evidence and subsequent nolo con-tendere plea, of the crimes of possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b) and possession of drug paraphernalia in violation of General Statutes § 2la-267 (a).

The defendant argues that the judgment of conviction should be reversed and the case remanded to the trial court with direction to grant his motion to suppress because (1) a dog sniff constitutes a search under both the United States and Connecticut constitutions and there was no articulable suspicion to justify such a search, and (2) there was no probable cause to justify a search under the hood of his automobile. We affirm the judgment of the trial court.

The following facts were found by the trial court at the hearing on the motion to suppress. On August 13, 1990, at approximately 8 p.m., State Trooper David Mitch was informed by his dispatcher that the state police had received an anonymous tip that “Junior Torres” had gone to New York to pick up marijuana and would be returning to 93 Atwood Street in Hartford within the next one to two hours. According to the informant, Torres would be operating a black 1977 Ford Thunderbird with Massachusetts license plates.

Acting on the tip, Mitch proceeded with Yukon Jack, a German shepherd police dog trained to sniff out narcotics, to the Middletown rest area of Interstate 91 to monitor the northbound traffic lanes. At approximately 9:35 p.m., Mitch observed a black Thunderbird with Massachusetts license plates traveling north at seventy miles per hour. Mitch followed the automobile and radioed a request for a registration check. Upon receiving a reply that the license number was not listed on the computer, Mitch directed the operator of the automobile to pull over and asked for his license and registration. The defendant was the operator of the automobile. He did not have a license but identified himself as Justiniano Torres and said that he was from New York en route to 93 Atwood Street in Hartford.

Acting on the corroboration of the details supplied by the informant, Mitch utilized Yukon Jack to conduct an exterior search of the automobile while the defendant and his passenger remained seated in the automobile. Yukon Jack began to circle the automobile and exhibited a positive alert for narcotics at the trunk of the vehicle. Mitch, now accompanied by another trooper and a detective, searched the trunk but found no narcotics. Reasoning that the odor of narcotics had been carried by wind currents to the trunk area from the front of the automobile, they searched the engine compartment, where they discovered a large cellophane envelope containing marijuana hidden under the automobile’s battery. Mitch then placed the defendant under arrest.

At trial, the defendant moved to suppress the marijuana on the ground that the warrantless search of the automobile was not supported by probable cause. The court, O’Keefe, J., denied the motion and the defendant pleaded nolo contendere. This appeal followed.

I

The defendant’s first claim implicates the constitutionality of the dog sniff. The defendant concedes that the constitutional issues he attempts to argue before us were not raised in the trial court. No principle of appellate jurisdiction is more fundamental than the rule that an appellate court shall not be bound to consider a claim unless it was distinctly raised at trial. See Practice Book § 4185.

An exception to this principle was carved out for certain claims of constitutional error in State v. Evans, 165 Conn. 61, 66-70, 327 A.2d 576 (1976). Because the Evans standard of review was inconsistently applied; State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989); C. Tait, Connecticut Appellate Practice and Procedure § 7.10 (b); the Supreme Court in Golding articulated guidelines to promote a more uniform application of the standard. Under Golding, a claim of constitutional error not preserved at trial will prevail only if four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 239-40; State v. Pin-nock, 220 Conn. 765, 778, 601 A.2d 521 (1992). The defendant’s claim will fail if any one of these conditions is not met. State v. Leary, 217 Conn. 404, 416, 587 A.2d 85 (1991).

The present case fails to satisfy the first prong of the Golding test. The appellant has the responsibility of providing an adequate record for review. State v. Leary, supra. This is no less true where the claims are of constitutional magnitude. In State v. Evans, supra, the court, in articulating the standard of review for unpreserved constitutional claims, declined to review one of the defendant’s constitutional claims because it was not adequately supported by the record. Id., 70-71. The court explained that an unpreserved claim not involving a constitutional right that has arisen after the trial is reviewable only if the record “adequately supports” the claim. Id., 70. Subsequently, our Supreme Court explained that the term “adequately supports,” as used by the Evans court, is synonymous with “adequate to review.” State v. Golding, supra, 239 n.9.

This prong of the Golding test has been employed frequently by both our Supreme Court and this court. See, e.g., State v. Cerilli, 222 Conn. 556, 581-82, 610 A.2d 1130 (1992) (portion of claim that police failed to produce crucial evidence); State v. Smith, 219 Conn. 160, 163-64, 592 A.2d 382 (1991) (claimed denial of rights to due process, compulsory process and confrontation); State v. Santiago, 218 Conn. 483, 485, 590 A.2d 434 (1991) (challenge to the constitutionality of General Statutes § 53a-167b as applied); State v. Leary, supra, 415-17 (claim that General Statutes § 42-110b is unconstitutionally vague); State v. Moye, 214 Conn. 89, 97-99, 570 A.2d 209 (1990) (claimed violation of the confrontation clause); State v. Carpenter, 214 Conn. 77, 86-87, 570 A.2d 203 (1990), cert. denied, U.S. , 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992) (claimed violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution); State v. Ephraim, 28 Conn. App. 306, 310, 610 A.2d 1320, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992) (claim that prosecution was barred by the first amendment to the United States constitution); State v. Irving, 27 Conn. App. 279, 283-84, 606 A.2d 17, cert. denied, 222 Conn. 907, 608 A.2d 694 (1992) (Miranda challenge); State v. Ober, 24 Conn. App. 347, 353-54, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134, cert. denied, U.S. , 112 S. Ct. 319, 116 L. Ed. 2d 26 (1991) (validity of Terry stop); State v. Suarez, 23 Conn. App. 705, 707-708, 584 A.2d 1194 (1991) (claimed violation of privilege against self-incrimination); State v. Jones, 22 Conn. App. 303, 308-10, 577 A.2d 293 (1990) (claimed denial of due process); State v. Aleksiewicz, 20 Conn. App. 643, 653, 569 A.2d 567 (1990) (challenge to jury instruction).

Our Supreme Court recently explored the application of this prong in State v. Stanley, 223 Conn. 674, 688-90, 613 A.2d 788 (1992). The defendant in Stanley claimed that, under the state constitution, the state must prove a Miranda waiver beyond a reasonable doubt, as contrasted with the preponderance of'the evidence standard required by the federal constitution. The record was deemed inadequate because the defendant never asked the trial court to determine whether the state had proven the waiver beyond a reasonable doubt. Therefore, our Supreme Court could not determine whether the outcome of the case would have been different. The court enunciated that “[sjince such a determination is a question of fact, even if we were to agree with the defendant, we would have to remand the case to the trial court for that factual determination, rather than to grant the defendant a new trial. Since, under the test in Golding, we must determine whether the defendant can prevail on his claim, a remand to the trial court would be inappropriate. The first prong of Golding was designed to avoid remands for the purpose of supplementing the record.” (Emphasis in original.) Id., 689-90.

Similarly, here, to determine the constitutionality of the dog sniff, the trial court would have had to make factual findings. During argument on the motion to suppress, the defendant conceded that he was not contesting the validity of the stop. Consequently, the trial court’s memorandum of decision explicitly stated that “[t]he legality of the initial stop and the sniffing of the car by the dog are not issues.” The sole issue before the trial court was whether probable cause existed to search the automobile trunk and engine compartment. The defendant, therefore, never asked the trial court to make the determination that he is asking us to make: whether the dog sniff was a fourth amendment search and, if so, whether the search was supported by articulable or some other appropriate degree of suspicion. Consequently, there was no reason for the trial court to make factual findings on these issues.

When the facts in the record are “insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” (Internal quotation marks omitted.) State v. Moye, supra, 98. In the present case, because we do not know what facts the trial court would have found had the claim been raised, we cannot determine whether the outcome of the case would have been different at the trial level. Accordingly, we do not review the defendant’s first claim.

II

The defendant next claims, as he did before the trial court, that the police lacked probable cause to search the automobile’s engine compartment and remove its battery. Pursuant to the “automobile exception,” a warrantless search of an automobile will pass muster under the fourteenth amendment to the United States constitution if there is probable cause to believe that the automobile contains either evidence of a crime; State v. Calovine, 23 Conn. App. 123, 126-27, 579 A.2d 126 (1990); or contraband; State v. Quinones, 21 Conn. App. 506, 510, 574 A.2d 1308, cert. denied, 215 Conn. 816, 576 A.2d 546 (1990); and there is probable cause to believe that the items will be found in the place searched. State v. Badgett, 200 Conn. 412, 429, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). There must be a “fair probability” that the search will yield the item sought. State v. Rodriguez, 27 Conn. App. 307, 313-14, 606 A.2d 22 (1992). We review the trial court’s finding of probable cause under the clearly erroneous standard, wherein we defer to the trial court’s factual findings unless they are clearly erroneous and defer to the trial court’s legal conclusion unless it is not legally and logically consistent with the factual findings. State v. Royce, 29 Conn. App. 512, 516, 616 A.2d 284 (1992).

The trial court based its conclusion that probable cause existed on the circumstances surrounding Yukon Jack’s positive alert for narcotics coupled with the corroboration of the details supplied by the informant. The trial court found that Yukon Jack had exhibited a high degree of accuracy in detecting narcotics in training sessions and that he and Mitch had undergone extensive training together. The court further found that Mitch had been the dog’s handler for five years and that both were certified in general patrol work and narcotics detection. Moreover, the court found that “[i]t is common knowledge among dog handlers . . . that drugs or narcotics placed further up in the vehicle would emit odors that, via wind currents, would be carried to the rear of the vehicle as the car traveled down the highway.” The court concluded that the totality of all of these factors was sufficient to provide probable cause to search the entire automobile including its engine compartment and under its battery. See United States v. Ross, 456 U.S. 798, 821, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982) (where police have probable cause to believe that contraband is concealed somewhere in the automobile, they may thoroughly search the automobile and every part of it that might contain the object of the search); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925) (probable cause existed for police to tear open the seat covers of the defendants’ automobile in search of bootleg liquor).

It is well recognized that a dog’s positive alert for narcotics may be sufficient to constitute probable cause, or at least an important component thereof, where there is a showing that the dog is reliable in detecting the particular narcotics at issue. See W. LaFave, Search and Seizure (2d Ed.) § 2.2 (f); see also United States v. Hernandez, 937 F.2d 1490 (9th Cir. 1991); United States v. Trayer, 898 F.2d 805 (D.C. Cir.), cert. denied, 498 U.S. 839, 111 S. Ct. 113, 112 L. Ed. 2d 83 (1990); United States v. Dovali-Avila, 895 F.2d 206 (5th Cir. 1990); United States v. Massac, 867 F.2d 174 (3d Cir. 1989); United States v. Stone, 866 F.2d 359 (10th Cir. 1989); United States v. Meyer, 536 F.2d 963 (1st Cir. 1976).

In the present case, the trial court’s conclusion that probable cause existed to search the entire automobile was grounded not only on the dog sniff, which the court found to be reliable, but also on its finding that several details of the informant’s tip had been corroborated. We conclude that, in light of those findings, the court properly determined that probable cause existed.

The judgment is affirmed.

In this opinion the other judges concurred.

       This claim has three parts. The defendant argues that (1) under the facts of this case, the dog sniff was a search within the meaning of the fourth amendment to the United States constitution, (2) the dog sniff was a search within the meaning of article first, § 7, of the Connecticut constitution, and (3) there was no reasonable articulable suspicion for the police to conduct the search.
      In his reply brief, the defendant argues for the first time that the police unconstitutionally “seized” him and his car. We decline to consider this claim. It is a well established principle that arguments cannot be raised for the first time in a reply brief. Protter v. Brown Thompson & Co., 25 Conn. App. 360, 363-64 n.2, 593 A.2d 524 (1991); L. F. Pace & Sons, Inc. v. Traveler’s Indemnity Co., 9 Conn. App. 30, 45 n.8, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 866 (1986). “Claims of error by an appellant must be raised in his original brief... so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim of error.” (Citation omitted; internal quotation marks omitted.) Commissioner v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 659 n.2, 594 A.2d 958 (1991).

       The defendant’s reply brief states this claim differently than it is stated in the brief. The brief challenges the search under the hood of the automobile and the removal of the automobile’s battery, while the reply brief challenges only the removal of the battery. Notwithstanding this difference we address the entire claim as originally stated in the brief.

       The defendant does not argue that the search of the automobile violated article first, § 7, of the Connecticut constitution. See State v. Miller, 29 Conn. App. 207, 614 A.2d 1229, cert. granted, 224 Conn. 914, 915, 617 A.2d 170 (1992).

       The trial court’s findings on these points may create the impression that the trial court made the necessary findings to furnish a record for reviewing the constitutional issues addressed in part I. This is not the case. The trial court made such findings about the dog sniff as were necessary for its determination of the probable cause issue. These are not necessarily the same findings the court would have made if it were considering the constitutional issues. We do not know what additional factual findings the court would have made or what questions the court might have asked in making its findings and drawing its conclusions on the constitutional issues.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    State of Connecticut v. Koungthong Sirimanochanh
    (9352)
    Dupont, C. J., O’Connell and Foti, Js.
    Submitted on briefs March 2
    decision released June 1, 1993

      Donald A. Browne, state’s attorney, and Marjorie Allen Dauster and Gerard Eisenman, assistant state’s attorneys, filed a brief for the appellant (state).

      Sandra P. Lax filed a brief for the appellee (defendant).
   Dupont, C. J.

Our Supreme Court remanded this criminal case to this court, after granting the state’s petition for certification, to determine whether the trial court was correct when it set aside a jury verdict finding the defendant guilty of sexual assault in the fourth degree. State v. Sirimanochanh, 224 Conn. 656, 620 A.2d 761 (1993). This determination rests on whether the evidence was sufficient for a conviction on that charge.

General Statutes § 53a-73a provides in relevant part: “(a) A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .” General Statutes § 53a-65 (3) provides: “ ‘Sexual contact’ means any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person .. . .”

The jury reasonably could have found that at the time of the alleged offense the victim was four years old, and that she had gone next door to play with a friend, the nephew of the defendant. The victim knocked on the friend’s door and the defendant asked the victim to come in. When they were in the living room, the defendant told her to kneel down. The defendant then lowered her pants and underpants to her ankles and the defendant, in the words of the victim, “put my crotch into his crotch” and “his peepee in my peepee.” She testified that the defendant’s penis was standing straight and that later the defendant got a paper towel, wet it with cold water and wiped her crotch with it. Forensic tests indicated that antigenic substances that were present in the defendant’s blood and semen were also present in a stain found in the crotch of the victim’s underpants and that only 4 percent of the population has this blood type. The victim did not have this blood type. Spermatozoa were present in the stain but it was not determined whether the spermatozoa were human or animal.

The defendant denied having any sexual contact with the victim, testifying that, although the victim had come to his house to play with his nephew, she had left when he told her that her playmate was not at home. There were also inconsistencies in the victim’s testimony. It was for the jury, however, to decide whether to believe all or a part of a witness’ testimony and to determine the credibility of the witnesses. State v. McCarthy, 197 Conn. 166, 179, 496 A.2d 190 (1985). When a claim of insufficiency of the evidence is made, an appellate court is not concerned with the credibility of the witnesses but need only decide whether there was evidence from which the jury could conclude that the defendant was guilty beyond a reasonable doubt. Id.

Our review of the record reveals that there was sufficient evidence from which the jury could conclude that the defendant had intentionally subjected a four year old child to sexual contact with the intimate parts of her person for the purpose of the sexual gratification of the defendant.

The judgment of acquittal of sexual assault in the fourth degree is reversed and the case is remanded to the trial court with direction to render judgment reinstating the conviction on the charge of violating General Statutes § 53a-73a.

In this opinion the other judges concurred.

       On the initial appeal, we had affirmed the trial court’s judgment of acquittal on the charge of sexual assault in the fourth degree because sexual assault in the fourth degree is not a lesser included offense of sexual assault in the second degree and the defendant had not been charged with sexual assault in the fourth degree. State v. Sirimanochanh, 26 Conn. App. 625, 602 A.2d 1029 (1992). Our Supreme Court granted the state’s petition for certification on an issue that we did not consider, namely, whether the defendant had waived his claim that the crimes are separate ones, rather than being lesser and greater offenses. State v. Sirimanochanh, 221 Conn. 917, 603 A.2d 748 (1992). Our Supreme Court held that, although we had correctly determined that sexual assault in the fourth degree is not a lesser included offense of the crime of sexual assault in the second degree, the defendant had waived that claim at trial. Since the judgment of acquittal could no longer stand on that basis, it became necessary to determine whether the evidence was sufficient to convict on the charge of sexual assault in the fourth degree. State v. Sirimanochanh, 224 Conn. 656, 620 A.2d 761 (1993).


author: O’Connell, J.

text:
    Emlee Equipment Leasing Corporation v. Waterbury Transmission, Inc., et al.
    (11105)
    O’Connell, Foti and Landau, Js.

      Argued February 9
    decision released June 1, 1993

      Frederick W. Krug, for the appellant-appellee (plaintiff).

      Salvatore C. Agati, for the appellee (named defendant).

      Alvin Rosenbaum, for the appellee-appellant (defendant Marvin S. Mann).
   O’Connell, J.

This case arises from an equipment lease executed by the plaintiff and the defendant Waterbury Transmission, Inc., and personally guaranteed by the defendant Marvin S. Mann, the president and sole stockholder of Waterbury Transmission. Following a trial to the court, judgment was rendered for the defendants on the complaint and for the plaintiff on a counterclaim filed by Mann.

The plaintiff appealed, claiming that the trial court improperly (1) found the remedies provision of the lease to be unconscionable, (2) failed, in the alternative, to limit the unconscionable portion of the remedies provision, and (3) refused to award interest and attorney’s fees. Mann filed a cross appeal claiming that the trial court improperly (1) found that he had abandoned his counterclaim, and (2) found that there was insufficient evidence to support the counterclaim. We reverse the judgment on the complaint and remand the case for further proceedings. We affirm the judgment on the counterclaim.

The following facts are necessary to decide this appeal. In early 1984, Waterbury Transmission decided to expand its automobile transmission business to include the installation and repair of mufflers. The new business required acquisition of a pipe bending machine. As president of Waterbury Transmission, Mann contacted Custom Muffler Specialists, Inc., of Nashua, New Hampshire (Custom), a distributor of pipe bending machines. Thereafter, a representative of Custom came to the defendants’ place of business and, on March 5, 1984, Waterbury Transmission entered into a contract with Custom for the purchase of a muffler pipe bender for $15,980. As part of the same transaction, Waterbury Transmission paid a $1500 deposit and also entered into a distributorship agreement with Custom.

Before the equipment was delivered, the plaintiff contacted Mann and discussed the advantages of leasing the equipment instead of purchasing the equipment outright. Mann decided that leasing was the better way to go and, on April 24,1984, Waterbury Transmission, acting through Mann as its president, signed a lease with the plaintiff to make sixty monthly rental payments of $398 in addition to a $1500 deposit already paid. Mann also signed a personal guarantee.

The plaintiff is solely in the leasing business and does not maintain an inventory of equipment for leasing. The plaintiff’s practice is to purchase equipment designated by a lessee and then to supply the equipment to the lessee subject to a written lease. The lease at issue here is a standard contract used by the plaintiff in all of its equipment leases. The plaintiff borrowed $14,388 from Citibank and executed a promissory note containing an acceleration clause that permitted Citibank to declare the entire unpaid balance of principal and interest due upon default in payment of any monthly installment. The agreement between the plaintiff and Waterbury Transmission called for Waterbury Transmission to make its monthly rental payments to Citibank.

The lease further provided for five “events of default.” The only one relevant to this appeal was the failure to pay rent or other required payments. The lease provided for various remedies in the event of default, including provisions that permitted the plaintiff to declare all unpaid sums immediately due and payable and to demand 10 percent interest on the unpaid balance together with legal fees and costs.

Waterbury Transmission defaulted after its December, 1984 payment, having made only eleven of the sixty payments required, including credit for the $1500 deposit. A check issued by Waterbury Transmission on June 17, 1985, to cover its January, February and March, 1985 payments was returned by the bank for insufficient funds.

As a result of Waterbury Transmission’s seven month default, Citibank accelerated the balance of the plaintiff’s note, thereby requiring the plaintiff to pay Citibank the full unpaid balance. On July 17, 1985, the plaintiff accelerated the payments under the lease and demanded the full amount due. Neither Waterbury Transmission nor Mann, as guarantor, paid any portion of the amount demanded. Waterbury Transmission remained in possession of the equipment, which the defendants now claim is defective and inoperative.

The plaintiff commenced this action seeking $19,502 (forty-nine months rental payments at $398) plus interest at 10 percent from the date of default and attorney’s fees and costs. Both defendants filed special defenses alleging that (1) the pipe bending machine was defective and, therefore, there was a total failure of consideration and (2) the terms of the lease were unconscionable and violative of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA). Waterbury Transmission also filed a special defense alleging that the plaintiff failed to mitigate its damages.

Mann filed a counterclaim asserting that the plaintiff violated CUTPA in that the plaintiff (1) provided the pipe bender knowing that it was obsolete and would fall into disrepair and (2) represented that Waterbury Transmission would have the benefit of any manufacturer’s warranties when no such warranties existed.

The trial court found that the lease was unconscionable under General Statutes § 42a-2-302 (l) and rendered judgment in favor of both defendants on the complaint and rendered judgment for the plaintiff on the counterclaim on the grounds that (1) the counterclaim had been abandoned by Mann and (2) Mann had failed to sustain his burden of proof. The plaintiff appealed and Mann cross appealed. Additional facts are included in the discussion of individual claims.

I

The Plaintiff’s Appeal

The plaintiff first claims that the trial court improperly found that the default and remedies provisions of the lease were unconscionable. We begin our analysis of this claim by considering the standard of review. Because unconscionability is a matter of law to be decided by the court; Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 88, 612 A.2d 1130 (1992); Hamm v. Taylor, 180 Conn. 491, 493, 429 A.2d 946 (1980); Fairfield Lease Corporation v. Romano’s Auto Service, 4 Conn. App. 495, 498, 495 A.2d 286 (1985); Iamartino v. Avallone, 2 Conn. App. 119, 125, 477 A.2d 124, cert. denied, 194 Conn. 802, 478 A.2d 1025 (1984); see General Statutes § 42a-2-302; our review on appeal is not limited by the clearly erroneous standard; Texaco, Inc. v. Golart, 206 Conn. 454, 461, 538 A.2d 1017 (1988); Iamartino v. Avallone, supra; but is, rather, a plenary review. Cheshire Mortgage Service, Inc. v. Montes, supra. We defer, however, to the trial court’s factual findings that underlie the determination of unconscionability unless they are clearly erroneous. Id.; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Iamartino v. Avallone, supra.

In the present case, the trial court determined that the accelerated payment clause of paragraph nine was punitive and, therefore, void. See General Statutes § 42a-2-718. The court further determined that the combination of this paragraph and the provisions of paragraph four (disclaimer of warranties), paragraph six (lessee must pay all taxes), paragraph twelve (lessee must pay and maintain insurance) and paragraph fifteen (no cancellation for any reason; all sums are due absolute and unconditional) rendered the lease unenforceable.

We evaluate this lease with the recognition that the purpose of the doctrine of unconscionability “is to prevent oppression and unfair surprise. J. Calamari & J. Perillo, Contracts (3d Ed.) § 9-40.” (Internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, supra. There is no bright line test to establish when a contract is unconscionable. Official Comment 1 to § 2-302 of the Uniform Commercial Code (General Statutes § 42a-2-302) suggests, however, that the test is “whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract.” Under that test, “the plaintiffs actions must be weighed against the defendant’s business experience, the business practices of the community, and the relatively equal bargaining power of the parties.” Edart Truck Rental Corporation v. B. Swirsky & Co., 23 Conn. App. 137, 143, 579 A.2d 133 (1990). Unconscionability generally requires a demonstration of “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965). Each case must be decided individually on its particular facts and circumstances. Cheshire Mortgage Service, Inc. v. Montes, supra, 89. The party claiming unconscionability bears the burden of proof. Arkwright-Boston Manufacturers Mutual Ins. Co. v. Westinghouse Electric Corporation, 844 F.2d 1174, 1184 (5th Cir. 1988); Flow Industries, Inc. v. Fields Construction Co., 683 F. Sup. 527, 531 (D. Md. 1988); 1 J. White & R. Summers, Uniform Commercial Code (3d Ed. 1988) p. 202. Courts do not generally find contracts unconscionable where the parties are businesspersons. Edart Truck Rental Corporation v. B. Swirsky & Co., supra; 1 J. White & R. Summers, supra, p. 225.

In the present case, the trial court made no findings as to either the commercial background surrounding the execution of this lease or the relative bargaining power of the parties. Nevertheless, the record discloses, and the parties concur, that this was a commercial transaction entered into by two corporate entities. Negotiations took place between the plaintiff and Mann, as president of Waterbury Transmission, regarding the advantages of leasing after Waterbury Transmission had entered into the contract to purchase the pipe bender from Custom. Waterbury Transmission did not rely on any representations by the plaintiff in its decision to purchase the pipe bender.

Although Waterbury Transmission was free to purchase the pipe bender outright from Custom, it opted to enter into the leasing arrangement because that arrangement eliminated the need to make a large initial outlay of cash. The record further discloses that Mann initialed each page of the lease agreement before signing on behalf of Waterbury Transmission and as guarantor. Consequently, in the absence of any contrary findings by the trial court, we infer from our review of the record that the parties were of relatively equal bargaining power and that there were no improprieties in the contract formation process.

We next consider whether the individual clauses or their cumulative effect was so one-sided and oppressive as to be unconscionable. Although such provisions might be unconscionable in an ordinary consumer lease, a different conclusion may follow where, as here, the contract is a commercial finance lease executed by two corporate entities. A finance lease differs considerably from an ordinary lease, which typically involves only a lessor and a lessee, because it involves an additional party, the equipment supplier or manufacturer. Because the finance lessor is strictly a financing entity, the lessee ordinarily must look to that additional party for warranty liability. “In effect, the finance lessee ... is relying upon the manufacturer ... to provide the promised goods and stand by its promises and warranties; the [lessee] does not look to the [lessor] for these. The [lessor] is only a finance lessor, and deals largely in paper, rather than goods. In that situation, it makes no sense to treat the [lessor] as a seller to the [lessee] with warranty liability, nor does it make any sense to free the manufacturer . . . from liability for breach of promises and warranties that it would have given in an outright sale to the [lessee]. Usually, the [lessor] expects to be paid, even though the [product] might prove to be defective or totally unsuitable for the [lessor’s] particular business. Thus, a finance lease is a very different animal from an ordinary lease.” 1A J. White & R. Summers, supra, p. 20.

Evidence of the growing recognition of finance leases may be found in the case law as well as in the promulgation in 1987 of Uniform Commercial Code article 2A, governing leases of goods. Professor Hazard, in his foreword to this section of the code, noted the “exponential expansion of the number and scale of personal property lease transactions” and estimated as of 1987, that those transactions involved billions of dollars annually.

The impetus behind the promulgation of article 2A was the impracticality of applying ordinary sales contract law to finance leases. Although article 2A has not been adopted in Connecticut, its provisions and commentary are instructive in the present case. See Texaco, Inc. v. Golart, supra, 461-62 (the standards set forth in the Uniform Commercial Code are a useful guide in examining claims of unconscionability). The essential characteristics of a finance lease were described by Professors White and Summers in their treatise on this article: “The parties can draft a lease agreement that carefully excludes warranty and promissory liability of the finance lessor to the lessee, and that sets out what is known in the trade as a ‘hell or high water clause,’ namely, a clause that requires the lessee to continue to make rent payments to the finance lessor even though the [equipment] is unsuitable, defective, or destroyed. How the lessee is to be assured that it will enjoy the benefit of the promises and warranties made by the manufacturer may be less obvious, but that too can be accomplished by agreement through a clause in the agreement between the manufacturer and the finance lessor to the effect that the warranties and other promises in that agreement will run to the benefit of the lessee. Thus the finance lessee becomes a third party beneficiary of the contract between the supplier and the finance lessor.” 1A J. White & R. Summers, supra.

Professors White and Summers later discuss the rationale behind the validity of such leases: “After all, the parties have actually entered into a financing transaction in which the lessor is really lending money and dealing largely in paper rather than goods. Put another way, the lessor as lender has no interest in how the lessee as debtor chooses to spend the money for goods. If the lessee should order an aircraft which is unsuitable or defective, this is not the lessor’s problem. The lessor’s responsibility is merely to provide the money, not to instruct the lessee like a wayward child concerning a suitable purchase. . . . Absent contrary agreement, even if [for example] our Boeing 747 explodes into small pieces in flight and is completely uninsured, lessee’s obligation to pay continues.” Id., p. 25.

Against that backdrop, we consider the defendants’ arguments seriatim. Their principal claim concerns paragraph nine, which provides at the discretion of the plaintiff, an accumulation of remedies in the event of default including the acceleration of all outstanding payments plus interest at 10 percent from the date of default together with legal fees and costs. The trial court concluded that “[s]uch a clause is punitive and cannot be construed otherwise. . . .”

Accelerated payment clauses are unexceptional in contracts; 2 J. White & R. Summers, Uniform Commercial Code (3d Ed. 1988) p. 565; and are in fact authorized by statute. See General Statutes § 42a-l-208; see also Uniform Commercial Code § 2A-109. Given the context of a commercial finance lease involving parties of relatively equal bargaining power, we conclude that the provision here is not unconscionable. Nor do the additional remedies of legal fees and costs and interest at the rate of 10 percent make this clause unconscionable. Depending on the circumstances of the case, contractual provisions that provide for legal fees and interest are valid and enforceable. See J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 14-35 (legal fees recoverable as provided in a lease); see also Ruscito v. F-Dyne Electronics Co., 177 Conn. 149, 163, 411 A.2d 1371 (1979) (“[i]t is fundamental that interest is allowed on the ground of some contract express or implied to pay it, or as damage for the breach of some contract”); Litton Industries Credit Corporation v. Catanuto, 175 Conn. 69, 76, 394 A.2d 191 (1978) (leasing agreement may provide for the payment of attorneys’ fees); Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 494 A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985) (legal fees and interest recoverable as provided in a promissory note); Equitable Lumber Corporation v. IPA Land Development Corporation, 38 N.Y.2d 516, 344 N.E.2d 391, 381 N.Y.S.2d 459 (1976) (legal fees recoverable as provided in a lease). Likewise, in the present case these provisions are enforceable.

The defendants also contend that paragraph four, which disclaims all express or implied warranties and assigns any manufacturer’s warranties to Waterbury Transmission, is unconscionable. Courts have recognized that such clauses are generally enforceable in leasing agreements. See, e.g., U.S. Roofing, Inc. v. Credit Alliance Corporation, 228 Cal. App. 3d 1431, 279 Cal. Rptr. 533 (1991) (financing lessor may validly disclaim all warranties if the lessee has an adequate remedy' against the manufacturer or supplier for a defect in the equipment); Trans Leasing International v. Schomer, 194 Ill. App. 3d 70, 550 N.E.2d 1085 (1990); All-States Leasing v. Top Hat Lounge, Inc., 198 Mont. 1, 649 P.2d 1250 (1982); Master Lease v. Manhattan Limousine, Ltd., 177 App. Div. 2d 85, 580 N.Y.S.2d 952 (1992); Irving Leasing Corporation v. M & H Tire Co., 16 Ohio. App. 3d 191, 475 N.E.2d 127 (1984) (a lessor’s disclaimer is generally valid as to equipment of which it had no active dealings in the manufacture or selection if the lessee is not left without a remedy); compare Pactel Finance v. D.C. Marine Service Corporation, 136 Misc. 2d 194, 518 N.Y.S.2d 317 (1987) (disclaimer unconscionable because contract was more in the nature of a sale than a lease).

The defendants argue, nevertheless, that this provision is unconscionable because (1) the disclaimer violated General Statutes § 42a-2-316 in that it was not conspicuous, and (2) it left the defendants with no recourse when the pipe bender failed to perform as expected.

First, we consider whether the disclaimer was conspicuous. General Statutes § 42a-l-201 (10) provides: “ ‘Conspicuous’: A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: NONNEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color. . . . Whether a term or clause is ‘conspicuous’ or not is for decision by the court.”

The disclaimer here states: “LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE WITH RESPECT TO THE EQUIPMENT AND HEREBY DISCLAIMS THE SAME.” This is the sole portion of text on the entire page of the lease in capital letters. In addition, the spacing of the characters differs in that it is more generous than any other portion of text on the page. Moreover, the heading of the paragraph, entitled “WARRANTIES,” is also in capital letters as suggested by the statute. Accordingly, we conclude as a matter of law that the disclaimer complies with the statutory definition of “conspicuous.”

The defendants also reason that the clause is unconscionable because it left them with no recourse when the pipe bender failed to perform as expected. While the lease disclaimed all warranties, it specifically assigned any manufacturer’s warranties to the defendants. Although this type of clause in finance leases has been found to be enforceable by the courts, the defendants claim that in the present case the clause is objectionable because there actually were no manufacturer’s warranties, thus leaving them with no remedy. Some courts have recognized that in such a situation, a lease may be unconscionable. See, e.g., U.S. Roofing, Inc., v. Credit Alliance Corporation, supra; Irving Leasing Corporation v. M & H Tire Co., supra. In the present case, however, the trial court found that “[t]he defendants, notwithstanding the provisions of paragraph 9, could have enforced their rights under the sales agreement with Custom. ” (Emphasis added.) Accordingly, we reject the defendants’ argument on this point as well.

The defendants also attack the validity of paragraph fifteen, which states that the lease cannot be canceled or terminated by Waterbury Transmission and that its obligation to pay is absolute and unconditional. This provision is frequently part of a finance lease because upon delivery and acceptance of the subject equipment, the lessor’s promised obligation, which is to purchase the equipment, has been fulfilled. The lessor’s money has been spent and it is required to do nothing further. In that respect, the lessor’s position is similar to that of a bank holding a note for the price of the equipment. The lessee, however, will not have fulfilled its promised obligations until all rental payments have been made. The purpose of the clause, therefore, is to ensure completion of the lessee’s performance. This is not unconscionable in the context of a finance lease where, as here, the facts and circumstances do not indicate any inequality of bargaining power or element of unfair surprise.

Similarly, paragraph six, which requires Waterbury Transmission to pay all taxes on the equipment and paragraph twelve, which requires it to provide insurance on the equipment, are neither individually nor, within the entire framework of the lease, cumulatively unconscionable.

We conclude, under the facts and circumstances of this case, that the individual provisions of this finance lease were not unconscionable and that the cumulative 'effect of the provisions was not unconscionable. Because of our resolution of this claim, we do not reach the plaintiff’s remaining claim that the trial court improperly failed to limit the unconscionable portion of the remedies provision.

II

Cross Appeal of the Defendant Marvin Mann

The defendant Mann claims that the trial court improperly found (l)that he had abandoned his counterclaim and (2) that there was insufficient evidence to support the counterclaim. We decline to address Mann’s second argument because our resolution of his first is dispositive of the cross appeal.

The trial court had ordered the parties to file briefs setting forth proposed findings and claims of law. Neither Mann’s brief nor his supplemental brief mentioned either claim raised by the counterclaim. As a result, the trial court ruled that the counterclaim “is deemed to have been abandoned.”

Practice Book § 285A provides: “The parties . . . shall, if the court so orders, file, at such time as the court shall determine, written trial briefs discussing the issues in the case and the factual or legal basis upon which they ought to be resolved. If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim. ” (Emphasis added.)

Accordingly, because Mann did not raise these issues in his trial brief or supplemental trial brief, we do not decide them now.

Ill

Special Defenses

Because we conclude that the trial court improperly decided that the lease was unconscionable, we next consider the request of the defendant Waterbury Transmission that we remand the case for a new trial on its other special defenses. In addition to the special defense of unconscionability, Waterbury Transmission also alleged that (1) because the pipe bending machine was defective, there was a total failure of consideration and (2) the plaintiff failed to mitigate its damages.

The trial court did not include its conclusions as to these special defenses in its memorandum of decision. See Practice Book § 4059. Nevertheless, a new trial is not necessary. First, the special defense alleging a failure of consideration was not raised in either of Waterbury Transmission’s trial briefs and, consequently, as was the case with the defendant Mann’s counterclaim; see part II, supra; the trial court was under no duty to decide this issue. Practice Book § 285A. We will not remand the matter to the trial court for consideration of a claim that Waterbury Transmission did not distinctly raise in its trial brief.

Second, Waterbury Transmission’s special defense alleging that the plaintiff failed to mitigate damages, although raised in the trial brief, similarly does not require a new trial. The trial brief stated that “if the court finds an enforceable lease, it must reduce the plaintiff’s damages by a commercially reasonable amount for its failure to take any steps to mitigate its damages.” The court did not address the claim because it found the lease to be unenforceable.

Our review of the transcript reveals that Waterbury Transmission had ample opportunity to present evidence on this defense at trial and availed itself of that opportunity. Consequently, because Waterbury Transmission has already had the opportunity to fully litigate this issue and because this issue affects only the amount of the judgment, a new trial is inappropriate and unnecessary. Instead, we remand the case to the trial court with direction to determine and articulate the effect, if any, of this special defense on the amount of the judgment.

The judgment is reversed and the case is remanded to the trial court with direction to render judgment for the plaintiff and to determine (1) the amount of interest and attorney’s fees, if any, to be awarded to the plaintiff and (2) the effect on the amount of the judgment of Waterbury Transmission’s special defense alleging that the plaintiff failed to mitigate damages. The judgment on the counterclaim is affirmed.

In this opinion the other judges concurred.

       Mann was no longer associated with Waterbury Transmission, Inc., at the time of trial.

       The application of the monthly payments was as follows:
      Applied to plaintiff’s note with Citibank $345.07
      Applied to plaintiffs cash flow account 52.93
      $398.00

       The other four events of default were (1) failure to perform covenants for ten days after written notice from lessor, (2) attempts to sell, encumber or sublet the equipment, (3) insolvency or bankruptcy, and (4) an adverse material change in lessee’s financial condition.

       General Statutes § 42a-2-302 (1) provides: “If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause to avoid any unconscionable result.”

       Although this is a lease and not a contract for the sale of goods, the standards set forth in article 2 of the Uniform Commercial Code have been recognized by our Supreme Court as being applicable to a claim of unconscionability involving a lease. See Texaco, Inc. v. Golart, 206 Conn. 454, 461-62, 538 A.2d 1017 (1988). This court has done so as well. See Edart Truck Rental Corporation v. B. Swirsky & Co., 23 Conn. App. 137, 579 A.2d 133 (1990). Moreover, most courts that have addressed the issue of whether article 2 applies to commercial equipment leases have assumed
        that it does. J. Schmitt, “Unconscionability and Disclaimer of Warranties in Lease Agreements Under the Uniform Commercial Code,” A.B.A. Committee on Commercial & Banking Litigation, Fall 1992, pp. 2, 3. In the present case, the trial court applied the principles of the Uniform Commercial Code and the parties have briefed it accordingly. We will, therefore, measure the provisions of the lease against the relevant Uniform Commercial Code principles.

       Paragraph nine provided:
      “REMEDIES. Upon the occurrence of any event of default and at any time thereafter Lessor may, in its sole discretion, do any one or more of the following: (i) upon notice to Lessee, terminate this Lease; (ii) declare all sums due and to become due hereunder for the full term of the Lease immediately due and payable; (iii) demand that Lessee return all Equipment to Lessor in accordance with Paragraph 13 hereof; (iv) enter the premises where such Equipment is located and take immediate possession of and remove the same, without liability to Lessor or its agents for such entry, or for damage to property or otherwise; (v) sell any or all of the Equipment at public or private sale, with or without notice to Lessor or advertisement, or otherwise dispose of, lease to others or keep idle such Equipment, all free and clear of any rights of Lessee and without any duty to account to Lessee for such action or inaction or for any proceeds with respect thereto; (vi) by written notice to Lessee, demand Lessee (and Lessee agrees that it will) pay to Lessor (as liquidated damages for loss of a bargain and not as a penalty) on the date specified in such notice an amount (plus interest thereon at the rate of 10% per annum from said date to the date of actual payment) equal to all unpaid rent payments (and any renewal or purchase options) which absent a default would have been payable by Lessee hereunder for the full term hereof; or (vii) excise any other right or remedy which may be available to it under the Uniform Commercial Code or any other applicable law or proceed by court action to enforce the terms hereof or to recover damages for the breach hereof. In addition, Lessee shall be liable for all legal fees and other costs and expenses resulting from the foregoing defaults or the exercise of Lessor’s remedies, including placing any Equipment in the condition required by Paragraph 13 hereof. If this Lease be deemed at any time to be one intended as security then Lessee agrees that the Equipment shall secure, in addition to the indebtedness set forth herein, all other indebtedness at any time owing by Lessee to Lessor. No remedy referred to in this paragraph is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to Lessor at law or in equity. No express or implied waiver by Lessor or any default shall constitute a waiver of any other default by Lessee or a waiver of any of Lessor’s rights. To the extent permitted by applicable law, Lessee hereby waives any rights now or hereafter conferred by statute or otherwise which may require Lessor to sell, lease or otherwise use any Equipment in mitigation of Lessor’s damages as set forth in the paragraph or which may otherwise limit or modify any of Lessor’s rights or remedies under this paragraph.”

       General Statutes § 42a-2-718 provides in pertinent part: “(1) Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.”

       Paragraph four provided:
      “WARRANTIES. Lessee acknowledges that it has made the selection of each item of Equipment based upon its own judgment and expressly disclaims any reliance upon statements made by Lessor. LESSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE WITH RESPECT TO THE EQUIPMENT AND HEREBY DISCLAIMS THE SAME. Lessor agrees that Lessee shall be entitled to the benefit of any manufacturer’s Warranties on the Equipment to the extent permitted by applicable law.”

       Paragraph six provided in relevant part:
      “TAXES: INDEMNITY. Lessee agrees to comply with all laws, regulations and orders relating to this Lease and to pay to Lessor when due, all license fees, assessments and sales, use, property, excise and other taxes. . . .”

       Paragraph twelve provided in pertinent part:
      “INSURANCE. Lessee, at its own cost and expense, shall obtain and maintain for the entire term of the lease, property damage and liability insurance and insurance against loss or damage to the Equipment. . . .”

       Paragraph fifteen provided:
      “NON-CANCELABLE LEASE, LESSEE’S OBLIGATIONS UNCONDITIONAL. This lease cannot be canceled or terminated except as expressly provided herein. Lessee hereby agrees that a Lessee’s obligation to pay all rent and any other amounts owing hereunder shall be absolute and unconditional.”

       This definition suggests that there are two elements of unconscionability: unfair surprise and oppression. The element of unfair surprise has frequently been termed by commentators and courts as “procedural unconscionability” and is implicated by bargaining improprieties in the contract formation process. The element of oppression has been termed “substantive unconscionability” and is implicated by overly harsh contract terms. See A & M Produce Co. v. FMC Corporation, 135 Cal. App. 3d 473, 186 Cal. Rptr. 114 (1982); Master Lease v. Manhattan Limousine, Ltd., 177 App. Div. 2d 85, 580 N.Y.S.2d 952 (1992); 1 J. White & R. Summers, Uniform Commercial Code (3d Ed. 1981) § 4-3 et seq.; J. Calamari & J. Perillo, Contracts (3d Ed. 1987) §§ 9-37, 9-38; A. Leff, “Unconscionability and The Code — The Emperor’s New Clause,” 115 U. Pa. L. Rev. 485, 487 (1967).

       This lack of reliance is specifically recited in the lease: “Lessee acknowledges that it has made the selection of each item of Equipment based upon its own judgment. ...”

       For analyses of article 2A, see R. Strauss, “Equipment Leases Under U.C.C. Article 2A — Analysis and Practice Suggestions. U.C.C. Revisions: Promises and Pitfalls,” 43 Mercer L. Rev. 853 (1992); D. King, “Major Problems With Article 2A: Unfairness, ‘Cutting Off Consumer Defenses, Unfiled Interests and Uneven Adoption,” 43 Mercer L. Rev. 869 (1992); W. Lawrence & J. Minan, “Deviations From the Statutory Analogues: The New U.C.C. Article 2A,” 40 U. Kan. L. Rev. 531 (1992); P. Breslauer, “Finance Lease, Hell or High Water Clause, and Third Party Beneficiary Theory in Article 2A of the Uniform Commercial Code,” 77 Cornell L. Rev. 318 (1992); C. Heckman, “Article 2A of the Uniform Commercial Code: Government of the Lessor, by the Lessor, and for the Lessor,” 36 Saint Louis U. L.J. 309 (1992).

       By the end of 1991, twenty states had adopted article 2A. W. Lawrence & J. Minan, “Deviations From the Statutory Analogues: The New U.C.C. Article 2A,” 40 U. Kan. L. Rev. 531, 532 n.2 (1992).

       The parties agree that this clause is a liquidated damages provision.

       General Statutes § 42a-l-208 provides: “A term providing that one party of his successor in interest may accelerate payment or performance or require collateral or additional collateral ‘at will’ or ‘when he deems himself insecure’ or in words of similar import shall be construed to mean that he shall have power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.”

       Uniform Commercial Code § 2A-109 provides: “(1) A term providing that one party or his [or her] successor in interest may accelerate payment or performance or require collateral or additional collateral ‘at will’ or ‘when he [or she] deems himself [or herself] insecure’ or in words of similar import must be construed to mean that he [or she] has power to do so only if he [or she] in good faith believes that the prospect of payment or performance is impaired.
      “(2) With respect to a consumer lease, the burden of establishing good faith under subsection (1) is on the party who exercised the power; otherwise the burden of establishing lack of good faith is on the party against whom the power has been exercised.”

       Cf. General Statutes § 42-150aa limiting attorney’s fees in consumer contracts and leases.

       The rate of 10 percent is less than the rate prohibited for loans by General Statutes § 37-4 and is equal to the rate recoverable in negligence actions; General Statutes § 37-3b; and as damages. General Statutes § 37-3a.

       The validity of the provisions regarding legal fees, costs, and interest comprises the plaintiffs third claim. Because the trial court considered these provisions in the context of the overall unconscionability of the lease, we address them at this juncture rather than as a separate claim.

       Uniform Commercial Code § 2A-108 provides for the award of reasonable attorney’s fees in claims of unconscionability apart from the terms of the contract.

       See also J. Schmitt, “Unconscionability and Disclaimer of Warranties in Lease Agreements Under the Uniform Commercial Code,” A.B. A. Committee on Commercial & Banking Litigation, Fall 1992, p. 2.

       General Statutes § 42a-2-316 provides in relevant part: “(2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous.”

       The defendants also argue that the disclaimer should be considered unconscionable in view of their relative lack of experience and sophistication. As we have previously stated, there was no such finding by the trial court and we, therefore, decline to review this aspect of the defendants’ argument.

       There is no claim in the briefs that the defendants revoked their acceptance of the pipe bender.

       Article 2A of the Uniform Commercial Code addresses this problem in the following manner:
      “§ 2A-407. IRREVOCABLE PROMISES: FINANCE LEASES
      “(1) In the case of a finance lease that is not a consumer lease the lessee’s promises under the lease contract become irrevocable and independent upon the lessee’s acceptance of the goods.
      “(2) A promise that has become irrevocable and independent under subsection (1):
      “(a) is effective and enforceable between the parties, and by or against third parties including assignees of the parties, and
      “(b) is not subject to cancellation, termination, modification, repudiation, excuse, or substitution without the consent of the party to whom the promise runs.
      “(3) This section does not affect the validity under any other law of a covenant in any lease contract making the lessee’s promises irrevocable and independent upon the lessee’s acceptance of the goods.”

       The ruling was part of the court’s memorandum of decision on the defendant’s motion for articulation.


author: Lavery, J.

text:
    The Investors Mortgage Company, Trustee v. Fay Louise Rodia et al.
    (11629)
    O’Connell, Foti and La very, Js.
    Argued February 19
    decision released June 1, 1993

      Richards. Scalo, with whom were Abraham I. Gordon and Ronald D. Japha, for the appellants (plaintiff Moneyhelpers, Inc.).

      Jonathan S. Bowman, with whom were Thomas S. Hyman and, on the brief, Neil R. Marcus, for the appellees (defendants).
   Lavery, J.

The sole issue in this case is whether the beneficiary of a trust, who, without objection, is substituted for the trustee as the plaintiff in a foreclosure action after title has vested in the trustee, has standing to file a motion for a deficiency judgment. The substitute plaintiff, the beneficial owner of the mortgage, claims that the defendants’ motion to dismiss was improperly granted because the substitute plaintiff had standing to file the motion for a deficiency judgment. We agree and reverse the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. The defendants, Fay Louise Rodia and John A. Rodia, were indebted to the original plaintiff, The Investors Mortgage Company, as trustee, in the amount of $100,000 by their promissory note dated January 13,1989. To secure this note, the defendants gave a blanket mortgage to The Investors Mortgage Company, as trustee, on four separate parcels of land situated in Shelton. That same day, the plaintiff, Moneyhelpers, Inc., entered into a trust agreement with The Investors Mortgage Company whereby the plaintiff would own the mortgage but The Investors Mortgage Company would act as trustee for Money-helpers, Inc., in closing, servicing and administering and holding legal title to the blanket mortgage.

The defendants defaulted on the note. By complaint dated January 15,1991, The Investors Mortgage Company, as trustee, instituted proceedings to foreclose the blanket mortgage. On June 6, 1991, a judgment of strict foreclosure was entered in favor of The Investors Mortgage Company, as trustee, on the properties mortgaged by the defendants. The defendants failed to redeem on their law day, and all subsequent encum-brancers also failed to redeem. Title to the subject premises vested in The Investors Mortgage Company, as trustee, on October 9, 1991.

On or about October 11, 1991, The Investors Mortgage Company, as trustee, transferred the subject premises by quitclaim deed to the substitute plaintiff, Moneyhelpers, Inc. On October 30, 1991, The Investors Mortgage Company filed a motion for a deficiency judgment, and a motion to substitute Moneyhelpers, Inc., as the plaintiff. When the motion for a deficiency judgment and the motion to substitute the plaintiff appeared on the court calendar, the defendants requested that the motion for a deficiency judgment go off, to which the Investors Mortgage Company agreed. The defendants, however, had no objection to Moneyhelpers, Inc., being substituted as the plaintiff. The motion to substitute the plaintiff was granted by the court.

On February 18,1992, the defendants filed a motion to dismiss the motion for a deficiency judgment. The trial court held that the substitute plaintiff, Moneyhel-pers, Inc., lacked standing to prosecute the motion for a deficiency judgment because Moneyhelpers, Inc., was not the foreclosing plaintiff as is required by the deficiency judgment statute, General Statutes § 49-14. The trial court decided that the remedy provided by § 49-14 is available only to foreclosing plaintiffs, and, in this case, The Investors Mortgage Company was the foreclosing plaintiff, not Moneyhelpers, Inc. The trial court determined that Moneyhelpers, Inc., lacked the required standing to seek a deficiency judgment and dismissed its motion. We disagree.

Standing is the legal right to set the judicial process in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of the action, or a legal or equitable right, title or interest in the subject matter of the controversy. Horton v. Hydra Systems International, Inc., 16 Conn. App. 420, 425, 547 A.2d 926 (1988); Hiland v. Ives, 28 Conn. Sup. 243, 245, 257 A.2d 822 (1966). Standing is “a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” Maloney v. Pac, 183 Conn. 313, 320, 439 A.2d 349 (1981). These two objectives are met “when a complainant makes a colorable claim of direct injury he has suffered or is likely to suffer, in an individual or representative capacity.” Id., 321. Standing focuses on whether a party is a proper party to request adjudication of the issues, rather than on the substantive rights of the aggrieved parties. Nye v. Marcus, 198 Conn. 138, 141, 502 A.2d 869 (1985).

We begin our review of the issue of standing with an analysis of the language of paragraph three of the trust agreement between The Investors Mortgage Company and Moneyhelpers, Inc. Paragraph three states “[s]uch blanket mortgage note and mortgage deed shall be held by and in the name of the Company, as Trustee for the benefit of the Mortgage Owner.” Pursuant to General Statutes § 52-106, The Investors Mortgage Company, as trustee, had the right to sue for a deficiency judgment without joining those benefi-daily interested in the action. In this case, Money-helpers, Inc., was the beneficial owner.

The motion to substitute the plaintiff was granted by the court, bringing Moneyhelpers, Inc., into the case in place of The Investors Mortgage Company pursuant to General Statutes § 52-107 and Practice Book § 99. “Most of our cases discuss the admission of new parties as coming within the ‘broad discretion’ of the trial court. E.g., Manter v. Manter, 185 Conn. 502, 507, 441 A.2d 146 (1981); Jones v. Ricker, 172 Conn. 572, 575n., 375 A.2d 1034 (1977); Nikitiuk v. Pishtey, 153 Conn. 545, 555, 219 A.2d 225 (1966). But there are also cases which make clear that intervention of right exists in Connecticut practice. Ricard v. Stanadyne, Inc., 181 Conn. 321, 322n., 435 A.2d 352 (1980); Greenwich Gas Co. v. Tuthill, 113 Conn. 684, 695, 155 A. 850 (1931); Bucky v. Zoning Board of Appeals, 33 Conn. Sup. 606, 608, 363 A.2d 1119 (1976); DeFelice v. Federal Grain Corporation, 12 Conn. Sup. 199, 201 (1943).” Horton v. Meskill, 187 Conn. 187, 192, 445 A.2d 579 (1982). The principle of intervention of right is derived from the second sentence of Practice Book § 99, which provides: “If a person not a party has an interest or title which the judgment will affect, the court, on his motion, shall direct him to be made a party.” (Emphasis added.) Section 52-107 contains nearly identical language providing in pertinent part: “If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.” (Emphasis added.) “An applicant for intervention has a right to intervene under Practice Book § 99 where the applicant’s interest is of such a direct and immediate character that the applicant ‘ “will either gain or lose by the direct legal operation and effect of the judgment.” ’ Bucky v. Zoning Board of Appeals, supra, 608; DeFelice v. Federal Grain Corporation, supra, 201; see Smith v. Gale, 144 U.S. 509, 518, 12 S. Ct. 674, 36 L. Ed. 521 (1892).” Horton v. Meskill, supra, 195. In this case the moving party, Moneyhelpers, Inc., had taken title to the subject premises from the original plaintiff, The Investors Mortgage Company, as trustee, and therefore had a direct and immediate interest in the case. The trial court properly allowed Moneyhelpers, Inc., to intervene as of right.

We note that the defendants did not object to the motion to substitute the plaintiff. The Supreme Court of Alabama, encountering a similar situation, held that when there is no objection from a defendant to the granting of a motion for substitution of a plaintiff, the defendant may not later claim that the proper party is not present. Magic City Metals, Inc. v. Orange Steel Industries, Inc., 404 So. 2d 57, 58 (Ala. 1981). Here, the defendants cannot now claim that the substituted plaintiff is not the proper party. The motion fully set forth the reasons for the substitution in compliance with Practice Book § 103.

In seeking to affirm the trial court’s decision, the defendants rely on First Bank v. Simpson, 199 Conn. 368, 373, 507 A.2d 997 (1986), for the proposition that only a foreclosing plaintiff can obtain a deficiency judgment pursuant to General Statutes § 49-14 (a). The First Bank court held that General Statutes § 49-1 would prohibit a foreclosing first mortgagee that had failed to avail itself of the deficiency judgment procedure of § 49-14, from instituting any further action against the defendants. Id., 372. A nonforeclosing second mortgagee is not barred by § 49-1 from bringing further action on its underlying obligation; id.; but this is not the issue in this case. In this matter, the deficiency judgment is sought by the owner of the foreclosed debt, who was substituted for the original plaintiff and is now the plaintiff in this action.

General Statutes § 49-14 provides that if a deficiency is established, the court shall “render judgment for the plaintiff.” In this case, the deficiency judgment is being requested by the owner of the debt who was substituted for the original plaintiff in this action. After title vested in the trustee, it then conveyed legal title to the premises, via quitclaim deed, to the beneficial owner, Money-helpers, Inc., which at all times owned the underlying obligation. The substitute plaintiff, as owner of the underlying mortgage debt obligation that had been held in trust by The Investors Mortgage Company is the proper party to seek recovery of its own assets. The owner of the underlying obligation is the party seeking the deficiency judgment, and the value of the property foreclosed is being applied to the underlying obligations. Moneyhelpers, Inc., as the owner of the debt, is the plaintiff as contemplated by General Statutes § 49-14 (a).

The defendants were not prejudiced by the fact that Moneyhelpers, Inc., sought a deficiency judgment. As we recently noted in Federal Deposit Ins. Corporation v. Retirement Management Group, Inc., 31 Conn. App. 80, 84, 623 A.2d 517 (1993), “[o]ur rules of practice . . . permit the substitution of parties as the interests of justice require. General Statutes §§ 52-108, 52-109; Practice Book §§ 100, 101; see also United States Trust Co. v. DiGhello, 179 Conn. 246, 247 n.1, 425 A.2d 1287 (1979); Hagearty v. Ryan, 123 Conn. 372, 195 A. 730 (1937); Wickes Mfg. Co. v. Currier Electric Co., 25 Conn. App. 751, 760-61, 596 A.2d 1331 (1991).” We further noted that “[t]hese rules are to be construed so as to alter the harsh and inefficient result that attached to the mispleading of parties at common law. See Hagearty v. Ryan, supra, 375-76.” Federal Deposit Ins. Corporation v. Retirement Management Group, Inc., supra. We specifically addressed the issue of potential prejudice to a defendant when a plaintiff is substituted under similar federal rules of intervention and substitution of parties. “ ‘[Wjhere the change is made on the plaintiffs side to supply an indispensable party or to correct a mistake in ascertaining the real party in interest, in order to pursue effectively the original claim, the defendant will rarely be unfairly prejudiced by letting the amendment relate back to the original pleading.’ F. James & G. Hazard, Civil Procedure (2d Ed. 1977) § 5.7, pp. 167-68. ‘As long as [the] defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected if a new plaintiff is added . . . .’ 6A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1501, pp. 154-57; see also Health Research Group v. Kennedy, 82 F.R.D. 21 (D.D.C. 1979) (substitution of real party in interest as plaintiff permitted to cure lack of standing of original plaintiff).” Federal Deposit Ins. Corporation v. Retirement Management Group, Inc., supra, 84-85. Because the substitution of Moneyhelpers, Inc., as the plaintiff did not hinder the defendants’ ability to defend themselves in this action, we conclude that the substitution did not result in prejudice to the defendants.

Because Moneyhelpers, Inc., has standing to prosecute the motion for a deficiency judgment, the trial court has subject matter jurisdiction to determine the cause.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 52-106 provides: “An executor, administrator, or trustee of an express trust may sue or be sued without joining the persons represented by him and beneficially interested in the action.”

       General Statutes § 52-107 provides: “The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that such other parties be brought in. If a person not a party has an interest or title which the judgment will affect, the court, on his application, shall direct him to be made a party.”

       Practice Book § 99 provides: “The court may determine the controversy as between the parties before it, if it can do so without prejudice to the rights of others; but, if a complete determination cannot be had without the presence of other parties, the court may direct that they be brought in. If a person not a party has an interest or title which the judgment will affect, the court, on his motion, shall direct him to be made a party.”

       “motion to substitute plaintiff
      “This action was commenced by The Investors Mortgage Company, Trustee, to foreclose a Blanket Mortgage on four (4) separate parcels of real estate located in Shelton, Connecticut, owned by the defendants, Fay Louise Rodia and John A. Rodia. Pursuant to a Trust Agreement dated January 13, 1989, The Investors Mortgage Company agreed to act as Trustee for the substitute plaintiff, Moneyhelpers, Inc., in closing, servicing, administering and holding legal title to the mortgage referred to herein.
      “The Court entered a Judgment of Strict Foreclosure and set the law day for the owner of the equity of redemption on October 7,1991. All defendants failed to redeem and title vested in the plaintiff, the investors mortgage company, trustee, on October 9, 1991.
      “Pursuant to the terms of the Trust Agreement, The Investors Mortgage Company, Trustee, by Quit Claim Deed, transferred legal title to the subject premises to the mortgage-owner, moneyhelpers, INC.
      “The substitute-plaintiff, Moneyhelpers, Inc., believes that the property foreclosed is insufficient to satisfy the debt due and, accordingly, moves to be substituted as the plaintiff in this action so that any deficiency judgment may be rendered in favor of the plaintiff, moneyhelpers, inc., the mortgage owner.”
      Practice Book § 103 provides: “Any motion to cite in or admit new parties must comply with Sec. 196 and state briefly the grounds upon which it is made.”

       General Statutes § 49-14 (a) provides: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. Such hearing shall be held not less than fifteen days following the filing of the motion, except as the court may otherwise order. At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiff’s claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”

       General Statutes § 49-1 provides: “The foreclosure of a mortgage is a bar to any further action upon the mortgage debt, note or obligation against the person or persons who are liable for the payment thereof who are made parties to the foreclosure and also against any person or persons upon whom service of process to constitute an action in personam could have been made within this state at the commencement of the foreclosure; but the foreclosure is not a bar to any further action upon the mortgage debt, note or obligation as to any person liable for the payment thereof upon whom service of process to constitute an action in personam could not have been made within this state at the commencement of foreclosure. The judgment in each such case shall state the names of all persons upon whom service of process has been made as herein provided.”