source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    CHERYL TERRY v. WILLIAM TERRY
    (AC 26843)
    Flynn, C. J., and Bishop and DiPentima, Js.

      Argued March 22
    officially released July 3, 2007

      Campbell D. Barrett, with whom were Kevin W. Had-field and, on the brief, C. Michael Budlong, for the appellant (defendant).

      Ralph J. Monaco, with whom, on the brief, was Thomas J. Londregan, for the appellee (plaintiff).
   Opinion

FLYNN, C. J.

The defendant, William Terry, appeals from the postjudgment orders of the trial court issued after the dissolution of his marriage to the plaintiff, Cheryl Terry. On appeal, the defendant claims that the court (1) improperly denied his motion to open the dissolution judgment on the basis of fraud or mutual mistake and (2) improperly denied his motion to vacate or reargue the denial of his motion to open. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The parties were married on August 30, 1981. A dissolution action was filed in 1997, and a judgment of dissolution was rendered on July 20, 1999. On June 23, 2005, the defendant filed a postjudgment motion to open and modify the judgment of dissolution. The defendant claimed that the judgment should be opened on the basis of fraud or mutual mistake because the plaintiff had failed to list the existence of a pending civil lawsuit on the sworn financial affidavit that she had filed at the time of the dissolution trial. The defendant requested that he be allocated a portion of the lawsuit proceeds.

The circumstances that gave rise to the lawsuit, which is at the center of this appeal, began in July, 1998. During that time, the plaintiff owned a school bus company and submitted a bid to the city of Hartford (city) in response to an invitation to bid for a proposed contract to provide bus transportation services for Hartford public schools. Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 623, 854 A.2d 1066 (2004). Her bid was rejected by the city, despite being the lowest bid. Id. Thereafter, in July, 1998, the plaintiff filed an action alleging, inter alia, equal protection and antitrust violations against the city, seeking money damages as well as temporary and permanent injunctive relief preventing the city from awarding the contract to any company other than itself. Id. The plaintiffs request for a temporary injunction was denied. Id.

In July, 1998, a hearing was held in the parties’ dissolution action concerning the sale of the plaintiffs other two bus companies, and at that hearing the subject of the action against the city was discussed in open court before the defendant and his counsel. Additionally, the entire file pertaining to that action was turned over to the defendant’s counsel prior to the final hearings in the dissolution matter.

In April, 1999, the plaintiff filed her financial affidavit. Although the plaintiffs financial affidavit listed assets of almost $2 million and liabilities of only approximately $170,000, the lawsuit against the city was not listed as an asset or a contingent asset.

The court rendered a judgment of dissolution in July, 1999. The decision of the court provided for the distribution of the parties’ assets and the custody of their minor child.

The lawsuit against the city proceeded, and, on February 3, 2000, the plaintiff authorized her attorneys to file an offer of judgment for $25,000. If the city had accepted the offer, then pursuant to the statute in effect at the time of the offer, namely, General Statutes (Rev. to 1999) § 52-192a (a), and Practice Book (2000) § 17-14, judgment would have entered in the plaintiffs favor for $25,000. The court granted the city’s motion for a directed verdict on all of the counts in the plaintiffs complaint, with the exception of the antitrust claim, which went to the jury. Cheryl Terry Enterprises, Ltd. v. Hartford, supra, 270 Conn. 619. The jury returned a verdict in favor of the plaintiff for $500,000 on that claim. Thereafter, the court granted the city’s motion to set aside the verdict.

Piior to the resolution of the claim for permanent injunctive relief, the plaintiff appealed from the judgment of the trial court setting aside the verdict on the antitrust claim. See Cheryl Terry Enterprises, Ltd. v. Hartford, 262 Conn. 240, 811 A.2d 1272 (2002). Our Supreme Court dismissed the appeal, concluding that the plaintiff had not appealed from a final judgment because the claim for injunctive relief had not been determined. Id., 242. The case thereafter was reclaimed to the trial list, the trial court denied the plaintiffs request for a mandatory injunction to prevent the city from awarding the contract to another bidder, and the plaintiff again appealed. See Cheryl Terry Enterprises, Ltd. v. Hartford, supra, 270 Conn. 619. In August, 2004, our Supreme Court reversed the decision of the trial court setting aside the verdict and ordered that the verdict be reinstated. See id. In May, 2005, the plaintiff and the city entered into a stipulated judgment in the plaintiffs favor for $2.5 million, which represented the $500,000 jury verdict trebled and an award of $1 million in attorney’s fees and costs. In the defendant’s June, 2004 postjudgnaent motion to open and modify the judgment of dissolution, he requested that he be allocated a portion of the $1.5 million received by the plaintiff. He based his motion on claims of fraud and mutual mistake. On July 28, 2005, a hearing was held on this motion and other pending motions. The defendant did not appear in court, and his attorney proceeded on the motion to open the judgment without requesting a continuance of the proceeding. Ruling from the bench, the trial court denied the defendant’s motion to open the judgment, reasoning that the defendant had full knowledge of the lawsuit.

On July 29, 2005, the defendant filed a motion for a continuance and a motion to vacate or reargue the July 28, 2005 order denying his motion to open. The motion to vacate or reargue was based on the claim that the defendant had been unable to attend the July 28 hearing on the motion to open due to health reasons and that his attorney was unable to present evidence in his absence. The defendant was present in court on July 29, 2005, and testified that he had been suffering from chest pains the previous day, had gone to a hospital and had remained there until four o’clock in the evening when he signed out against medical advice. The court granted the continuance of other unrelated motions because of the defendant’s medical reasons and rescheduled hearings on those other motions to the following month. However, it did address the motion to vacate or reargue. In denying the defendant’s motion to vacate or reargue, the court reasoned that the order it had issued denying the motion to open was appropriate given the plaintiffs testimony that the defendant and his attorney had the plaintiffs litigation file pertaining to the Hartford lawsuit prior to the dissolution hearing. The court further reasoned that the defendant was aware of the lawsuit and, even though it had no specific value at that time, he easily could have requested a percentage of whatever verdict might be rendered in a subsequent trial.

On September 9, 2005, the court issued a memorandum of decision resolving pending motions. With respect to the motions pertaining to the Hartford lawsuit, the court reasoned that it had denied both the motion to open and motion to vacate or reargue because “[although this lawsuit was instituted in 1998 and was not listed as an asset on the plaintiffs financial affidavit . . . the defendant had knowledge of the pending lawsuit and although no value could be ascribed to the lawsuit at that time, [the] defendant could have requested an order for a percentage of any proceeds that might be recovered.”

Subsequently, on January 19, 2006, the defendant filed a motion for articulation, requesting that the court articulate the basis for the orders issued on July 28 and 29, 2005. On June 15, 2006, the court explained that although the plaintiff had not listed the lawsuit on her financial affidavit, she had disclosed fully everything concerning the lawsuit and had not concealed any information. The court explained that it had denied the defendant’s motion to open because there was no basis to the defendant’s claim that the plaintiff was aware of the value of the lawsuit on July 20, 1999, nor any basis to his claim that she intentionally had withheld this information from him. The court further explained that it had denied the defendant’s July 29 motion to vacate or reargue because the defendant’s attorney had proceeded with the July 28 hearing on the defendant’s motion to open without his client being present, and, on the basis of the evidence presented on July 28, 2005, it had found no reason or grounds to vacate the decision denying the motion to open.

This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to open the dissolution judgment on the basis of fraud or mutual mistake. We disagree.

“It is a well-established general rule that . . . a judgment rendered by the court . . . can subsequently be opened [after the four month limitation set forth in General Statutes § 52-212a and Practice Book § 17-43] ... if it is shown that . . . the judgment . . . was obtained by fraud ... or because of mutual mistake.” (Internal quotation marks omitted.) Nelson v. Charlesworth, 82 Conn. App. 710, 713, 846 A.2d 923 (2004).

“We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. ... In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (2005). A court’s determinations as to the elements of fraud and whether there has been a mutual mistake are findings of fact that we will not disturb unless they are clearly erroneous. Id.; BRJM, LLC v. Output Systems, Inc., 100 Conn. App. 143, 148, 917 A.2d 605 (2007).

A

The defendant first claims that the court misinterpreted decisional law relating to the opening of judgments and that the evidence presented warranted the opening of the dissolution judgment on the basis of fraud. We disagree.

The party claiming fraud has the burden of proof. Weinstein v. Weinstein, supra, 275 Conn. 684. “Fraud consists in deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed. . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment. . . .

“There are three limitations on a court’s ability to grant relief from a dissolution judgment secured by fraud: (1) there must have been no laches or unreasonable delay by the injured party after the fraud was discovered; (2) there must be clear proof of the fraud; and (3) there is a substantial likelihood that the result of the new trial will be different.” (Internal quotation marks omitted.) Id., 685.

The defendant claims that the plaintiffs failure to disclose her lawsuit against the city of Hartford on her financial affidavit was fraudulent. The defendant and his attorney, however, knew about the Hartford lawsuit. It was discussed in open court at a July, 1998 hearing one year prior to the dissolution, and the file was turned over to the defendant’s counsel prior to the final hearings in the dissolution matter. After the court rendered its decision in open court on the dissolution, the court specifically asked counsel if there were any other issues to be addressed. The defendant raised some unrelated issues but mentioned nothing about the Hartford lawsuit.

The plaintiff testified, at the July 28 hearing, that she had submitted on her financial affidavit what she thought was the sum total of the value of her assets. She explained that she did not believe the Hartford lawsuit had any value because she was seeking to obtain the school bus contract and because her injunction to prevent the city from awarding the contract to another company had been denied. The time line of events supports the plaintiffs testimony. The plaintiffs application for a temporary injunction was denied in August, 1998, eleven months before the judgment of dissolution. In February, 2000, several months after the July, 1999 dissolution, the plaintiff authorized her attorneys to file an offer of judgment for $25,000, and she testified at the July 28 hearing that she would have accepted as little as $15,000 in settlement of the lawsuit. The court, in its articulation of the denial of the defendant’s motion to open, found that this offer, which was an indication of her opinion on the value of the lawsuit, was a relatively insignificant amount in light of the approximately $2 million in assets listed on her financial affidavit. The case against the city was not tried until September, 2000. The jury returned a verdict in favor of the plaintiff for $500,000 on the plaintiffs antitrust claim, but the court granted the defendant’s motion to set aside the verdict. In August, 2004, our Supreme Court reversed the decision of the trial court setting aside the verdict and ordered that the verdict be reinstated. In May, 2005, almost six years after the date of dissolution, the plaintiff and the city entered into a stipulated judgment.

Furthermore, the defendant admitted at the July 28 hearing on his motion to open that there was no fraud. “A party is bound by a concession made during the trial by his attorney.” (Internal quotation marks omitted.) Levine v. Levine, 88 Conn. App. 795, 804, 871 A.2d 1034 (2005).

The defendant relies, in part, on Weinstein v. Weinstein, supra, 275 Conn. 671, in support of his claim of fraud. In Weinstein, the defendant owned an interest in a small, privately held software company. Id., 675. Our Supreme Court held that the trial court improperly had denied the plaintiffs motion to open the dissolution judgment because the defendant knew of the value of the asset and fraudulently had undervalued his ownership interest in the company. Id., 688-96. The defendant represented at the dissolution hearing that the value of the company, in which he held an interest, was approximately $200,000. Id., 688. However, an offer to purchase the company for $2.5 million was made after the dissolution judgment was entered, but before the defendant’s motion for reconsideration of the financial orders was heard, and he deemed the offer too low. Id. The defendant in Weinstein testified that he had based his valuation in his financial affidavit on the company’s book value and that he had failed to account for the worth of the intellectual property asset of the software company, in which he owned a substantial minority interest. Id., 689. The court held that this constituted a blatant and deliberate misrepresentation. Id., 691. In order to comply with the requirement of full and frank disclosure, the defendant had a duty to disclose the fact that the company owned this asset and to offer an accurate assessment of the asset’s worth, instead of merely providing to the plaintiffs expert reams of documents in which information was buried that might have alerted the plaintiffs expert as to the asset’s worth. Id., 690 n. 12.

The defendant argues on the basis of Weinstein, that it constituted fraud for the plaintiff to have provided him with documentation concerning the Hartford lawsuit but not to have included a value on her financial affidavits. In Weinstein, the court concluded that the defendant knew of the value of the asset and fraudulently undervalued his ownership interest in the company. Id., 688-89. The court in Weinstein also determined that he was equipped to value that asset because he created it and knew its worth better than anyone else involved in the marriage dissolution proceedings. Id., 690 n.12. Unlike the defendant in Weinstein, the plaintiff in the present case did not know at the time of dissolution whether the asset had any value. The plaintiff testified at the July 28 hearing that she would have accepted $15,000 to settle the action after filing a $25,000 offer of judgment in 2000. The value of the parties’ assets must be determined as of the time the judgment of dissolution is rendered. Weinstein v. Weinstein, supra, 275 Conn. 696-97. The court found that the plaintiffs financial affidavit reflected her honest opinion of her assets at that date. The plaintiffs testimony revealed that she was seeking to obtain the school bus contract and to continue her business pursuits. The plaintiffs application for a temporary injunction had been denied in August, 1998, eleven months before the judgment of dissolution. The plaintiff testified at the July 28 hearing that she had not included the Hartford lawsuit on her 1999 financial affidavit because the injunction had been denied. The plaintiff was still pursuing the contract several years after the judgment of dissolution, and in June, 2003, her request for mandatory injunctive relief was denied. See Cheryl Terry Enterprises, Ltd. v. Hartford, Superior Court, judicial district of New London, Docket No. CV-98-0547097-S (June 4, 2003). She, however, in the initial divorce case, disclosed to the defendant, to his attorney and to the court the existence of the Hartford lawsuit. When ruling from the bench on the motion to open, the court, Goldberg, J., found that both parties had full knowledge of the lawsuit. In its articulation of the denial of the defendant’s motion to open, the court further explained that there was no basis to the defendant’s claim that the plaintiff was aware of the value of the lawsuit on the date of dissolution and that the plaintiff did not withhold information from the defendant intentionally. Although the plaintiff technically violated Practice Book § 25-30 (a) by not listing the Hartford lawsuit as at least a contingent asset, the record adequately supports the court’s findings.

In light of the entire record before it, we conclude that the court did not abuse its discretion in denying the defendant’s motion to open the dissolution judgment on the basis of fraud.

B

The defendant claims, alternatively, that if the plaintiffs actions did not constitute fraud, then the court should have granted the defendant’s motion to open on the ground of mutual mistake. Specifically, the defendant argues that if it is assumed that the plaintiff omitted the value of the Hartford lawsuit from her financial affidavit because she thought the suit had no value at the time of the divorce and the defendant did not pursue the suit as an asset to be divided, then it is clear that neither party placed a significant value on the suit. Because the value of the lawsuit became apparent several years after the dissolution, the parties’ prior thoughts regarding the value of the lawsuit constituted a mutual mistake. We disagree.

“Courts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate any judgment obtained by fraud, duress or mutual mistake.” In re Baby Girl B., 224 Conn. 263, 283, 618 A.2d 1 (1992). This court has defined a mutual mistake as “one that is common to both parties and effects a result that neither intended.” (Internal quotation marks omitted.) Regis v. Connecticut Real Estate Investors Balanced Fund, Inc., 28 Conn. App. 760, 765, 613 A.2d 321, cert. denied, 224 Conn. 907, 615 A.2d 1048 (1992); see also Dainty Rubbish Service, Inc. v. Beacon Hill Assn., Inc., 32 Conn. App. 530, 537, 630 A.2d 115 (1993) (“mutual mistake exists where both parties are mutually mistaken about the same material fact”).

At the time of dissolution, both parties knew of the existence of the Llartford lawsuit. Neither party was clairvoyant, and thus neither knew what the final outcome of the lawsuit would be. The ultimate value of the lawsuit was unknown at the time of dissolution. The plaintiff testified that she did not believe the Hartford lawsuit had any value. As the court observed, the defendant could have requested a percentage of whatever award might be issued in a subsequent trial but did not do so. The fact that the plaintiff later prevailed in the lawsuit and a specific value was attributed to it by a jury does not constitute a mutual mistake. With the assistance of skilled attorneys, the plaintiffs lawsuit went twice to our Supreme Court, the case was developed, and approximately six years after the date of dissolution, the plaintiff finally prevailed, receiving a sum that dwarfed what she would have settled for shortly after the divorce. The long path through the courts changed the value of the case. A change in circumstances is not tantamount to a mutual mistake. See Magowan v. Magowan, 73 Conn. App. 733, 742, 812 A.2d 30 (2002) (trial court did not abuse discretion in denying motion to open judgment due to postjudgment change in circumstances), cert. denied, 262 Conn. 934, 815 A.2d 134 (2003); Pascarelli v. Monliterno Stone Sales, 44 Conn. App. 397, 401 n.7, 689 A.2d 1132 (claim to open voluntary agreement based on mutual mistake must fail because preemption of the statute governing agreement occurred after parties had entered into agreement), cert. denied, 240 Conn. 926, 692 A.2d 1282 (1997). After reviewing the record, we conclude that the court properly rejected the defendant’s claim of mutual mistake.

II

The defendant next claims that the court improperly denied his motion to vacate or reargue. We disagree.

The standard of review for a court’s denial of a motion to vacate or reargue is abuse of discretion. Valentine v. LaBow, 95 Conn. App. 436, 451, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006). “As with any discretionary action of the trial court . . . the ultimate [question for appellate review] is whether the trial court could have reasonably concluded as it did.” (Internal quotation marks omitted.) Id., 451-52.

Despite the defendant’s absence from the July 28 hearing, his attorney did not request a continuance and proceeded to argue the motion to open. See LaMacchia v. Chilinsky, 85 Conn. App. 1, 6 n.4, 856 A.2d 459 (plaintiff should have requested continuance from court on issue if he desired to reargue motion on further inquiry), cert. denied, 271 Conn. 942, 861 A.2d 514 (2004). Furthermore, at the July 28 hearing, the plaintiff testified that the defendant and his attorney had the file pertaining to the Hartford lawsuit. The court denied the motion to vacate or reargue its July 28 orders denying the defendant’s motion to open on the basis of fraud or mutual mistake, reasoning that the defendant had the file and was aware of the lawsuit and that his attorney proceeded with the July 28 hearing on his motion to open without his client being present and based on the evidence presented on July 28, 2005. The court did not abuse its discretion and could have reasonably concluded as it did.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1999) § 52-192a (a) provides: “After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to the defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment’ and prior to the rendering of a verdict by the jury or an award by the court, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiffs ‘offer of judgment’. Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.” Practice Book (2000) § 17-14 provides: “After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may, before trial, file with the clerk of the court a written ‘offer of judgment’ signed by the plaintiff or the plaintiff’s attorney, directed to the defendant or the defendant’s attorney, offering to settle the claim underlying such action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of such offer of settlement to the defendant’s attorney, or if the defendant is not represented by an attorney, to the defendant.”

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and the appeal was transferred to the Supreme Court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

       See footnote 2.

       General Statutes § 35-35 of the Connecticut Antitrust Act provides for the recovery of treble damages together with a reasonable attorney’s fee and costs for any violations of the provisions of that chapter.

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .” Practice Book § 17-43 contains similar language. Courts have interpreted the phrase, “[ujnless otherwise provided by law,” as preserving the common-law authority of a court to open a judgment after the four month period. See In re Jonathan M., 255 Conn. 208, 238-39, 764 A.2d 739 (2001).

       Practice Book § 25-30 (a) requires parties in a marital dissolution action to file “a sworn statement substantially in accordance with a form prescribed by the chief court administrator, of current income, expenses, assets and liabilities. . . .”

       On July 20, 1999, after rendering its decision on the dissolution, the court asked the defendant’s attorney if she had any questions. The defendant’s attorney asked a series of questions, none pertaining to the Hartford lawsuit. Thereafter, the court asked the defendant if he had any questions about the orders, and the defendant’s only question pertained to a bed and breakfast that he was purchasing with his mother.

       The following colloquy occurred:
      “The Court: Yeah, but the matter was already in litigation—
      “[Defendant’s Counsel]: Yes.
      “The Court:—and your client knew of the litigation. He knew of it.
      “[Defendant’s Counsel]: Yes.
      “The Court: And he had a chance to evaluate it as well.
      “ [Defendant’s Counsel]: And he didn’t know what it was worth. She placed no value on it.
      “The Court: Well, she didn’t either.
      “[Defendant’s Counsel]: I think under the case law under—
      “The Court: So, how—how could you put a value down on something you don’t know?
      “[Defendant’s Counsel]: That’s why I’m saying it’s not a fraud on her part, it’s a mutual mistake on her part.” (Emphasis added.)

       The defendant also relies on Billington v. Billington, 220 Conn. 212, 595 A.2d 1377 (1991), and Jackson v. Jackson, 2 Conn. App. 179, 478 A.2d 1026, cert. denied, 194 Conn. 805, 482 A.2d 710 (1984), in support, of his claim of fraud. Both cases are inapposite. In Billington, the defendant husband did not disclose the fact that he received an offer for a parcel of real estate that was significantly greater than the value he assigned to the property on his financial affidavit. Billington v. Billington, supra, 214. The Supreme Court held that a party seeking to open a judgment concerning the financial aspects of a marriage dissolution on the basis of fraud need not have exercised diligence in an effort to discover and expose the marital fraud because the requirement of due diligence in commercial transactions is not applicable in the marital context. Id., 219-20. In the present case, the defendant and his attorney knew about the allegedly concealed fact, the Hartford lawsuit.
      In Jackson v. Jackson, supra, 2 Conn. App. 179, the defendant wife sought to open the judgment on the basis of the allegation that the plaintiff husband fraudulently failed to disclose that certain stock, which had been bargained for as part of the property settlement, had split three for one prior to the entry of judgment. In that case, we held that the trial court could not reasonably have found that the husband’s conduct was not fraudulent, and, accordingly, the trial court’s denial of the defendant’s motion was clearly erroneous. The husband in Jackson knowingly made an untrue representation intended to induce the defendant to act to her detriment, as made abundantly clear by his response at a deposition, where, when asked whether the defendant and her attorney knew about the stock split at the time they agreed to take a certain amount of shares as part of the settlement, the plaintiff replied: “If they didn’t know it was their problem.” (Internal quotation marks omitted.) Id., 195. In the present case, as the court explained in its articulation of the denial of the defendant’s motion to open, there was no basis to the defendant’s claim that the plaintiff was aware of the value of the lawsuit on the date of dissolution. Additionally, the plaintiff disclosed the existence of the lawsuit in open court.


author: BISHOP, J.

text:
    BANKS BUILDING COMPANY, LLC v. MALANGA FAMILY REAL ESTATE HOLDING, LLC
    (AC 27822)
    Bishop, Gruendel and Lavine, Js.
    Argued March 23
    officially released July 3, 2007

      Michael T. McCormack, for the appellant (defendant).

      Steven M. Basche, for the appellee (plaintiff).
   Opinion

BISHOP, J.

This case concerns a construction contract dispute. The matter was referred to an attorney fact finder, who filed a report, on the basis of which the trial court subsequently rendered judgment in favor of the plaintiff, Banks Building Company, LLC. The defendant, Malanga Family Real Estate Holding, LLC, claims on appeal that the judgment was premised on an erroneous conclusion by the court that the defendant had waived a provision of the contract. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our discussion of the issues on appeal. In August, 2002, the plaintiff began to construct the “outer shell” of a building for the defendant pursuant to an oral agreement. Subsequent to a dispute regarding the demolition of another building, the parties, on September 3, 2002, entered into a formal written contract with supplementary conditions, pursuant to which the plaintiff agreed to construct the shell of a building in the Gateway Shopping Plaza in Manchester for the defendant in exchange for $93,360. The contract imposed a deadline of September 13, 2002, for completion of construction and included a time is of the essence clause regarding this date. The defendant made one progress payment to the plaintiff in the amount of $46,680 on September 6, 2002, in satisfaction of its obligation under the contract. Final payment was due under the terms of the contract “within one (1) day of completion of the [w]ork . . . .”

The construction of the building’s shell, however, was not completed by September 13, 2002. The plaintiff sent its final invoice for $46,680 on October 23, 2002, the date it claimed to have completed its performance of the contract. The defendant, in turn, refused to pay the invoice on the ground that the plaintiff had not completed its performance obligation by September 13, 2002. Therefore, the defendant claimed, it was relieved of its obligation to pay the plaintiff because the project was not completed by the contract completion date.

Subsequently, as a result of the defendant’s failure to pay the remaining amount purportedly due, the plaintiff filed a two count complaint, alleging breach of contract and, alternatively, unjust enrichment. The defendant filed an answer, three special defenses and a counterclaim, alleging that the plaintiff had materially breached the parties’ contract, thereby excusing the defendant’s performance. In a previous appeal of this matter involving a different issue, this court set forth the matter’s procedural history as follows: “Because the amount in dispute was less than $50,000, the court referred the matter to an attorney fact finder. . . . The fact finder held a hearing on February 2 and 9, 2004, and, on April 12, 2004, filed a report outlining his findings of fact and recommended disposition. . . . The fact finder made a number of subordinate findings, including that the defendant through its actions had waived a provision of the contract stating that ‘time is of the essence,’ and that the defendant was entitled to certain offsets from the amount due to the plaintiff under the contract. [He concluded that] judgment [should enter] in favor of the plaintiff in the amount of $22,336.80 [and against the defendant on its counterclaim].” (Citations omitted.) Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, 92 Conn. App. 394, 395-96, 885 A.2d 204 (2005).

On the basis of the attorney fact finder’s report, the court, Hon. Mary R. Hennessey, judge trial referee, issued a memorandum of decision adopting the fact finder’s recommendation and rendering judgment in favor of the plaintiff. The court concluded that “[sufficient evidence was presented to support the fact finder’s conclusion that the defendant waived the ‘time is of the essence’ requirement in the contract. The fact finder concluded that ‘[t]here were delays on the project, but the parties adopted a course of dealings where the defendant completed some of the construction items that were the plaintiffs responsibility under the contract. The defendant waived reliance on the time is of the essence provision of the contract by its actions.’ ” This appeal followed.

We begin our analysis of the defendant’s claim on appeal by setting forth the applicable standard of review. “Attorney fact finders are empowered to hear and decide issues of fact on contract actions pending in the Superior Court .... On appeal, [o]ur function ... is not to examine the record to see if the trier of fact could have reached a contrary conclusion. . . . Rather, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Premier Capital, Inc. v. Grossman, 68 Conn. App. 51, 57, 789 A.2d 565, cert. denied, 260 Conn. 917, 797 A.2d 514 (2002), aff'd after remand, 82 Conn. App. 390, 845 A.2d 442, cert. denied, 271 Conn. 901, 859 A.2d 564 (2004). With the foregoing in mind, we now turn to the defendant’s specific claim.

At the heart of this appeal is the defendant’s claim that the court improperly found that it had waived the time is of the essence clause in the parties’ written contract. On the basis of this determination, the court found that the plaintiff had not breached the contract and, accordingly, awarded damages to the plaintiff for the work it performed pursuant to the contract. The defendant argues that the court’s finding that the defendant implicitly waived the time is of the essence provision in the contract was not supported by the evidence at trial and, thus, was clearly erroneous. We are unpersuaded.

The record reveals that the plaintiff continued construction work after the original September 13, 2002 deadline on matters that were its contractual responsibility. The defendant’s agent testified that “[t]hey were still working on the building sometime—probably by mid-September, but after September 13, they were still working on the building.” The record also supports the court’s conclusion that the parties modified their original agreement concerning the allocation of work to be performed under the contract. For example, the court found that after the plaintiff had difficulty locating a contractor to complete the stairs in the building, originally the plaintiffs responsibility, the parties agreed that the defendant could use a contractor it had located to complete the stairs. Accordingly, the court found that “[the defendant] went ahead and hired P & M Ceiling & Textures to put in the stairs at a cost of $2200. The defendant maintains that this was after September 13, 2002.” Moreover, the record reveals that although the original contract required the plaintiff to install a fire suppression system, the defendant worked with Northeast Fire Prevention, one of the plaintiffs subcontractors, to do this work with the plaintiffs implied consent. Additionally, following an inspection by the town of Manchester on September 11, 2002, in which certain work was found to be nonconforming, the parties agreed to remedy the nonconformity with an arrangement calling for the plaintiff to provide the materials and the defendant to provide the labor.

Finally, there was uncontroverted testimony that the defendant did not notify the plaintiff at any time that it was in breach of the contract or that the defendant intended to hold the plaintiff to the September 13, 2002 deadline. There also was no evidence that the defendant asked the plaintiff to cease all work on September 13, 2002. Rather, not until the plaintiff sought payment for the balance due on the contract and the parties disagreed on the credits due the defendant for work it assumed, did the defendant inform the plaintiff that it was not going to pay the balance on the basis of the plaintiffs failure to complete construction by the September 13, 2002 deadline.

“When it is said that time is of the essence, the proper meaning of the phrase is that the performance by one party at the time specified in the contract or within the period specified in the contract is essential in order to enable him to require performance from the other party.” (Internal quotation marks omitted.) Mazzotta v. Bomstein, 104 Conn. 430, 437, 133 A. 677 (1926). “Its commonly understood meaning is that insofar as a time for performance is specified in the contract, failure to comply with the time requirement will be considered to be a material breach of the agreement. See [id., 437] . . . .” (Citations omitted.) Retrofit Partners I, L.P. v. Lucas Industries, Inc., 201 F.3d 155, 160 (2d Cir. 2000).

Here, it is undisputed that the construction project was not completed by the specified “time is of the essence” date. The defendant argues, accordingly, that the plaintiffs failure to complete construction in a timely manner constituted a material breach and, thus, excused the defendant from paying the remaining balance due on the contract price. In response, the plaintiff argued at trial, and the court found, that the defendant had implicitly waived the time is of the essence provision in the contract through its conduct. Therefore, the attorney fact finder reasoned, and the court affirmed, that the plaintiff did not materially breach the contract by completing the construction after September 13, 2002. We agree with the plaintiff.

“Waiver involves an intentional relinquishment of a known right.” (Internal quotation marks omitted.) Cassella v. Kleffke, 38 Conn. App. 340, 347, 660 A.2d 378, cert. denied, 235 Conn. 905, 665 A.2d 899 (1995). “Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Citation omitted; internal quotation marks omitted.) Hensley v. Commissioner of Transportation, 211 Conn. 173, 179, 558 A.2d 971 (1989). Furthermore, whether a waiver has occurred is a factual question for the trier. See Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 340, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002). “Our review of the trial court’s determination [therefore] is guided by the principle that, because waiver [is a question] of fact ... we will not disturb the trial court’s [finding] unless [it is] clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Naftzger v. Naftzger & Kuhe, Inc., 26 Conn. App. 521, 526, 602 A.2d 606 (1992). Thus, the inquiry in the present case is whether there was evidence from which the court reasonably could have found acts and conduct of the defendant consistent with waiver of the time is of the essence provision. See Hendsey v. Southern New England Telephone Co., 128 Conn. 132, 135-36, 20 A.2d 722 (1941).

We agree with the defendant that a finding of waiver, without any evidence to support it, is clearly erroneous. We disagree, however, with the defendant’s assertion that there was no evidence in the present case to support the findings of fact that led to the court’s conclusion that the defendant implicitly waived the time is of the essence provision.

In this instance, as the defendant correctly asserts, the fact finder heard evidence that the contract expressly imposed the September 13, 2002 deadline for completion of construction, that the contract included a provision that time was of the essence regarding this date and that the plaintiff had not fully performed all of its contractual obligations by September 13, 2002. If the record contained no more, we might agree with the defendant. As the court noted, however, the record also revealed that the plaintiff agreed to allow the defendant to work on the interior before September 13, 2002; the parties agreed that the defendant would hire a subcontractor to finish the stair system, thus undertaking a responsibility originally assigned by the contract to the plaintiff; the defendant worked directly with one of the plaintiffs subcontractors to complete a portion of the plaintiffs work obligation; and the parties worked in tandem with the plaintiff supplying materials and the defendant supplying labor to remedy a nonconformity with the construction that contributed to the delay in completion. Additionally, the court noted that there was uncontroverted testimony that the defendant never notified the plaintiff that because the deadline had passed, it intended not to pay any balance claimed by the plaintiff, and, finally, the defendant took no steps to prevent the plaintiff from completing the project once the original deadline had passed.

Faced with this evidence, the court determined that the attorney fact finder’s finding of an implicit waiver of the time is of the essence provision of the contract was supported by the trial evidence. We agree.

Here, the failure of the defendant to enforce the September 13, 2002 deadline, its conduct in allowing the plaintiff to continue to work toward finalizing construction, and working collectively with the plaintiff to finish the project constitute more than mere acquiescence and support the court’s finding that the time is of the essence provision was waived. The record amply supports the court’s conclusion that rather than stand by its right to enforce the contract’s original contract completion date, the defendant actively participated with the plaintiff in amending the terms of the agreement by reassigning responsibilities for completion of the project, thus working together with the common goal of finishing the work as soon as practicable. We conclude that the court’s findings pertaining to waiver of the time is of the essence provision find support in the evidence and, therefore, are not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claims that the judgment is internally inconsistent because the court rendered judgment in favor of the plaintiff on the defendant’s counterclaim and yet awarded $2500 for lost rental income to the defendant on a claim that appears to have been part of the defendant’s counterclaim. The defendant is likely correct. The court’s award to the defendant of $2500 for lost rental income could stem only from the defendant’s counterclaim, as it arose as a consequence of the alleged delay in completion of the construction, which, in turn, purportedly prevented a tenant from commencing its lease with the defendant. Because this delay arose as a consequence of a delay in completion of the contract, it logically arose from the transaction described in the complaint. See Northwestern Electric, Inc. v. Rozbicki, 6 Conn. App. 417, 426, 505 A.2d 750 (1986) (“[i]f the claim arises out of the same transaction described in the complaint, it is characterized as a counterclaim”). Although we agree with the defendant that the court’s award of $2500 to the defendant as lost rental income is inconsistent with its findings in favor of the plaintiff on the defendant’s counterclaim for breach of contract and the related determination that the defendant had waived the time of the essence clause in the parties’ contract, we note that the plaintiff did not file a cross appeal claiming that the court improperly made this award. Thus, we decline to reach the issue. See Housing Authority v. Charter Oak Terrace/Rice Heights Health Center, Inc., 82 Conn. App. 18, 19 n.2, 842 A.2d 601 (2004). To the extent that this award is inconsistent with the court’s finding in favor of the plaintiff on its complaint, we can not determine from this record whether the court mistakenly believed it to be a matter of setoff rather than a counterclaim issue. Accordingly, the inconsistency itself does not provide an adequate basis for reversal.

       One such condition provided that after substantial completion of the shell by the plaintiff, the defendant could begin its interior projects, such as electrical work, for the building. The defendant commenced work on its interior projects on September 5, 2002.

       Upon completion, the building, as all parties were aware, would be leased by the defendant to a jewelry store known as “Christie’s Fine Jewelry.”

       The parties agree that the plaintiffs work under the contract could not be considered completed until the work passed inspection. That did not occur until October 31, 2002.

       As noted, the total contract price was $93,360 of which $46,680 was paid in September, 2002. The plaintiff invoiced the defendant on October 23, 2002, for the contract balance of $46,680 but discounted that amount by $24,210 for work paid for or performed by the defendant.

       The court’s judgment in this instance is based solely on the contract count.

       Initially, the court, adopted the fact finder’s recommendation and improperly rendered judgment in favor of the plaintiff without holding a hearing on the defendant’s objections to the fact finder’s report. On appeal, this court reversed the court’s judgment and remanded the case for a hearing on the defendant’s objections to the fact finder’s report. See Banks Building Co., LLC v. Malanga Family Real Estate Holding, LLC, supra, 92 Conn. App. 394. Following ahearing on the defendant’s objection to the fact finder’s report, the court again rendered judgment in favor of the plaintiff.

       The defendant also claims that the issue of waiver was not properly before the court because it was not expressly raised by the plaintiff at trial or in the pleadings. Although we agree with the defendant that waiver should be specially pleaded, “[wjhere, however, facts are sufficiently set up in a pleading to warrant the inference of waiver, it will be considered though it is not expressly alleged.” (Internal quotation marks omitted.) Jenkins v.
        Indemnity Ins. Co. of North America, 152 Conn. 249, 256, 205 A.2d 780 (1964). In this instance, the complaint contained allegations material to a claim of waiver, and the attorney fact finder, court and counsel treated waiver as a pivotal issue at trial and on appeal. Furthermore, the defendant failed to object to the offer of evidence at trial by the plaintiff on the issue of waiver as it related to the time is of the essence clause. “[T]he proper way to attack a variance between pleadings and proof is by objection at the trial to the admissibility of that evidence which varies from the pleadings, and failure to do so at the trial constitutes a waiver of any objection to such variance.” (Internal quotation marks omitted.) Tedesco v. Stamford, 215 Conn. 450, 461, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992). Because the defendant did not object to waiver evidence on the ground that waiver had not been pleaded specifically, any insufficiency in the pleading was waived by the defendant at trial.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. GUY CLAUSEN
    (AC 27690)
    Flynn, C. J., and Lavine and Pellegrino, Js.
    Argued April 23
    officially released July 3, 2007

      John F. Cocheo, for the appellant (defendant).

      Sarah Hanna, deputy assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Mary Jean Kanabis, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Guy Clausen, appeals from the judgment of conviction following his conditional plea of nolo contendere to operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The plea followed the trial court’s denial of the defendant’s motion to dismiss, which the defendant claims on appeal was improper because he was not operating a motor vehicle at the time of his arrest. We affirm the judgment of the trial court.

In the early morning hours of December 24, 2005, after failing multiple field sobriety tests administered by the police, the defendant was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a. Thereafter, the defendant was transported to the Ston-ington police department, where two blood alcohol content tests were performed, indicating a blood alcohol level of 0.182 on the first test and a blood alcohol level of 0.171 on the second test. The defendant moved to dismiss the charge on the ground that he was not operating a motor vehicle within the meaning of the statute. Evidence was presented at the March 7, 2006 hearing on the defendant’s motion to dismiss that the defendant had fallen asleep behind the steering wheel of his vehicle, with the engine running. The court, Strackbein, J., denied the defendant’s motion to dismiss. Subsequently, the defendant entered a conditional plea of nolo contendere pursuant to General Statutes § 54-94a, reserving the right to appeal from the denial of the motion to dismiss. The court, McMahon, J., found the issue of operation to be dispositive. The defendant’s plea was accepted by the court, and the defendant was sentenced. This appeal followed.

The defendant claims that the court improperly denied his motion to dismiss. He argues that the court’s legal conclusion that he was operating the motor vehicle is incorrect because it was not supported by sufficient evidence. The defendant argues that he merely was asleep in his motor vehicle on a cold night with the motor running only to provide heat and power to run the radio.

“Our standard of review of a trial court’s findings of fact and conclusions of law in connection with a motion to dismiss is well settled. A finding of fact will not be disturbed unless it is clearly erroneous. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts . . . . Thus, our review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.” (Citations omitted; internal quotation marks omitted.) State v. Wiggs, 60 Conn. App. 551, 553-54, 760 A.2d 148 (2000).

The issue of operation of a motor vehicle was settled by our Supreme Court in State v. Haight, 279 Conn. 546, 903 A.2d 217 (2006). The Haight court held: “We previously have recognized Connecticut’s unambiguous policy . . . [of] ensuring that our highways are safe from the carnage associated with drunken drivers. . . . In light of this policy and the fact that the insertion of a key into the ignition is an act . . . which alone or in sequence will set in motion the motive power of the vehicle ... we conclude that the defendant’s act of inserting the key into the ignition constituted operation of a motor vehicle within the meaning of § 14-227a (a).” (Citations omitted; internal quotation marks omitted.) Id., 555.

The defendant, while intoxicated, was in the driver’s seat of a motor vehicle while the engine was running. On the basis of State v. Haight, supra, 279 Conn. 546, and other controlling precedent, the defendant’s actions constituted operation of a motor vehicle. See State v. Wiggs, supra, 60 Conn. App. 554-55 (defendant in driver’s seat of vehicle with engine running sufficient to establish operation); State v. Angueira, 51 Conn. App. 782, 787, 725 A.2d 967 (1999) (defendant, unconscious in driver’s seat of vehicle with engine running, operated vehicle); State v. Ducatt, 22 Conn. App. 88, 89, 575 A.2d 708 (same), cert. denied, 217 Conn. 804, 584 A.2d 472 (1990). Because there was sufficient evidence that the defendant operated his vehicle, the court properly denied his motion to dismiss.

The judgment is affirmed.

       The defendant also claims in one sentence, without citation to any authority and without any analysis, that there was no evidence of when he had consumed alcohol and, therefore, no evidence that the vehicle was operated by the defendant when the ratio of alcohol in his blood was greater than 0.08. Notwithstanding the inadequate briefing, this claim is not reviewable because it falls outside the scope of his motion to dismiss, which was limited to the issue of operation. “General Statutes § 54-94a expressly limits the issues to be considered on appeal to those concerning the correctness of the trial court’s denial of a motion to suppress or a motion to dismiss.” State v. Jenkins, 82 Conn. App. 802, 814 n.3, 847 A.2d 1044, cert. denied, 269 Conn. 915, 852 A.2d 745, cert. denied, 543 U.S. 1025, 125 S. Ct. 667, 160 L. Ed. 2d 503 (2004).

       The facts of the present case are readily distinguishable from our recent holding in State v. Cyr, 101 Conn. App. 701, 923 A.2d 772 (2007). In State v. Cyr, we were constrained by sparse stipulated facts. No key was used. Rather, a remote control device was used to start the car. Id., 703. However, there was no evidence that starting the car by use of such a remote control device could permit the vehicle to be set in motion unless a key was also used. Id., 708.


author: STOUGHTON, J.

text:
    BELLA VISTA CONDOMINIUM ASSOCIATION, INC. v. DENNIS BYARS
    (AC 27124)
    Flynn, C. J., and Rogers and Stoughton, Js.
    Argued January 9
    officially released July 3, 2007

      Dennis Byars, pro se, the appellant (defendant).

      Robert E. Ghent, for the appellee (plaintiff).
   Opinion

STOUGHTON, J.

The pro se defendant, Dennis Byars, appeals from the judgment of the trial court rendered in favor of the plaintiff, the Bella Vista Condominium Association, Inc., in an action to foreclose a statutory lien for unpaid common expense assessments levied pursuant to the Common Interest Ownership Act (act), General Statutes §§ 47-200 through 47-295. The defendant claims that the court improperly (1) found that the plaintiffs executive board was constituted properly to adopt the budgets of March 5 and December 4, 2003, to charge him common fees pursuant to those budgets and to initiate this foreclosure action, (2) found that he was the owner of the condominium at the time the common fees were due and (3) failed to award him relief pursuant to General Statutes § 47-278. We affirm the judgment of the trial court.

The following facts found by the court are relevant to the defendant’s appeal. Byars is the owner of 276 Waterville Street, a unit in a condominium complex in Waterbury, and has been the owner since at least April 4, 2003. The plaintiff is a nonstock Connecticut corporation in good standing and the unit owners’ association for the condominium. The common charges for the period from April 4,2003, were $171 per unit per month. The court found that the common fees for 2003 and 2004 were determined pursuant to budgets validly adopted on March 5 and December 4,2003, respectively. The defendant admitted that he had not paid any of these charges. At the time that the plaintiff adopted the March 5, 2003 budget, its executive board consisted of three members, one of whom was not a unit owner, though he was a resident. The court did not make a specific finding of the composition of the board when the 2004 budget was adopted on December 4, 2003. There is evidence in the record, however, which suggests that the board consisted of one unit owner, one person who was not a unit owner, and one resident who was the husband of the unit owner on record and whose status as a unit owner, under the statute and the plaintiffs bylaws, is ambiguous. The plaintiff filed a complaint against the defendant, requesting, among other things, foreclosure of its lien on the property on August 28, 2003. After trial, the court found the defendant liable on the debt and ordered a foreclosure by sale of the unit to satisfy the defendant’s debt. From this judgment, the defendant appeals.

I

The defendant first claims that the executive board of the plaintiff was not constituted in conformity with General Statutes § 47-243 and its own bylaws and, therefore, that its actions in adopting budgets and instituting this foreclosure were invalid. We disagree.

Statutory construction is a matter of law, and our review thereof is plenary. Celentano v. Oaks Condominium Assn., 265 Conn. 579, 588, 830 A.2d 164 (2003). We also conduct plenary review of corporate articles and bylaws. Weldy v. Northbrook Condominium Assn., Inc., 279 Conn. 728, 736, 904 A.2d 188 (2006). To the extent that the findings of fact made by the court are challenged, our review is limited to determining whether such findings are clearly erroneous. Celentano v. Oaks Condominium Assn., supra, 617.

We have previously noted the clear intention in the act that a unit owners’ association should not operate without a budget or without the collection of common assessments. South End Plaza Assn., Inc. v. Johnson, 62 Conn. App. 462, 467, 767 A.2d 1267, cert. denied, 256 Conn. 922, 774 A.2d 138 (2001). When an association fails to adopt a budget, the court will presume that the association operates pursuant to the last validly adopted budget. Id., 469. Here, the common fee assessment did not change for the relevant years.

The defendant first argues that both the act and the plaintiffs bylaws require that all executive board members be unit owners and that the plaintiffs executive board could not adopt budgets or institute a foreclosure action against him because all of the board members were not unit owners at the relevant times. Section 47-243 provides that the membership of the plaintiff shall consist exclusively of all unit owners. The defendant argues that the executive board is a part of the plaintiff and that therefore its members must all be unit owners.

Executive board membership is governed by General Statutes § 47-245 (f). Section 47-245 (f) provides that only a majority of board members must be unit owners. Section 2.1 of the plaintiffs bylaws, which governs executive board membership, also provides that only a majority of the board must be unit owners.

We conclude that the court properly determined that neither the act nor the plaintiffs bylaws require each executive board member to be a unit owner. Instead, the clear language of both requires that only a majority of board members be unit owners. The record shows that the majority of board members were unit owners at the time the 2003 budget was adopted and that its composition did not change until after the plaintiff commenced this action.

The defendant next argues that the plaintiffs bylaws require the executive board to have four members in order to conduct business. He argues that a quorum of four was lacking when the board adopted the budgets for 2003 and 2004 and when it authorized the foreclosure action.

The defendant accurately notes that § 2.1 of the bylaws allows for a four member executive board. Section 2.12, which governs quorum, however, states: “At all meetings of the Executive Board, a majority of the members shall constitute a quorum for the transaction of business.” We conclude that the court properly determined that the bylaws require only three members, a majority, of the board to conduct business. Further, in this case there were three members of the board, sufficient to constitute a majority present at the time relevant to the adoption of the budgets and the initiation of the foreclosure action.

Finally, we must determine whether the bylaws require a minimum of three unit owners to be numbered among the necessary quorum of three required to conduct business or if two is sufficient. At the time of the adoption of the March 5, 2003 budget, and the decision to commence a foreclosure action against the plaintiff, the board consisted of two unit owners and one nonowner.

To answer this question, we examine the interaction between § 2.1 and § 2.12 of the plaintiffs bylaws. Section 2.1 provides that of the four available seats, one may be filled by someone who is not a unit owner and three by unit owners. Section 2.12 provides that board action requires a majority of board members.

We first consider the statutory scheme under which the bylaws were drafted and the language of the bylaws. See Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 734. Section 47-245 (f); see footnote 2; appears to require a minimum of only two unit owners to conduct business. The plaintiffs bylaws vary somewhat from the statutory language, though, overall, the scheme is quite similar. One variation in the bylaws is that the maximum number of board members is increased from three to four. This increase is authorized by § 45-245 (f) and is explicitly provided for in the bylaws. In contrast, there is no language in the bylaws explicitly providing that a minimum of three unit owners must be present at all times in order to conduct business on such a four person board. Were this the intended meaning, it could have been included easily, and its absence suggests that this was not the intent.

Next, we examine the scheme created by the bylaws. See Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 736. If the bylaws require a minimum of three unit owners to conduct business, assuming that one member is not a unit owner, each of the three unit owners would have to be present at each board meeting in order to conduct business. The one person who is not a unit owner, in contrast, would never have to be present. There is no indication in the bylaws, however, that the board members who own and do not own units should be treated differently. The provisions refer only to “persons,” treating those who own and those who do not own units alike. Instead, the language of the two provisions suggests that the scheme envisioned was that there should be a maximum of four members of the board, only three of whom need to be present in order to conduct business, regardless of their status relative to unit ownership. This takes account of the fact that board membership is not a professional position and that it is often difficult for board members to schedule meetings at a time when eveiy board member is available.

Finally, we consider the policy of the act that a condominium association should not be found to be operating without a budget or ability to collect common fees. See South End Plaza Assn., Inc. v. Johnson, supra, 62 Conn. App. 467. This policy suggests that, in cases of doubt, ambiguous terms should be interpreted in favor of finding that the condominium association has the authority to levy and collect fees, which includes the ability to collect those fees by resorting to court when other means prove fruitless. We conclude that the bylaws authorize the board to act when two of the three board members, required by § 2.12, are unit owners and one is not an owner.

The court determined that at the time the March 5, 2003 budget was passed, the board consisted of two unit owners and one person who did not own a unit. Further, the record indicates that the composition of the board did not change between the time of the March 5, 2003 budget meeting and the plaintiffs commencement of the action of foreclosure. Therefore, we conclude that there was a quorum present and that those actions of the board were valid.

We note that the executive board that adopted the 2004 budget, on December 4, 2003, may have been improperly constituted, having less than the required minimum number of unit owners. This, however, is of little avail to the defendant. When a budget, apparently adopted, of an association covered by the act fails to be adopted properly, the association is presumed to operate on the previous validly adopted budget. South End Plaza Assn., Inc. v. Johnson, supra, 62 Conn. App. 469. Moreover, the 2004 budget, like all others, was ratified by the plaintiff at its annual meeting. See Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 530, 757 A.2d 1103 (2000); M. Ford, Connecticut Corporation Law and Practice (2d Ed. 2007) § 5.02, p. 5-10. Thus, even though the budget passed on December 4,2003, may have been passed irregularly, the defendant was still liable to pay the common fees pursuant to the budget validly adopted on March 5,2003. Therefore, the defendant’s claim as to the 2004 common charges fails.

II

The defendant also claims that the deed to his premises is invalid, arguing that he, therefore, is not liable to pay the common fees. We disagree.

The defendant’s argument appears to be that Dolores Smith, who signed the deed on behalf of the plaintiff, was not a duly authorized officer of the plaintiff at the time of the transaction. The defendant does not cite any case law, statute or provision of the declaration or the bylaws requiring that the plaintiffs representative at a unit sale be a valid board member. The court found that the defendant received the benefits of the services provided by the plaintiff. The defendant admits that he was represented by counsel at the time he purchased the unit. The court found that the deed was signed by Smith as the duly authorized secretary of the plaintiff on December 18, 2002. The record contains an affidavit from Smith stating that she was the secretaiy on that date. The court found that she was a validly elected officer of the plaintiff on that date, and this is supported by the record.

Even if there were some technical defect in Smith’s position as secretary at the time of the sale, general rules of agency law provide that “[t]he other party to a contract made by an agent for a disclosed . . . principal, acting within his . . . apparent authority ... is liable to the principal . . . .” Restatement (Second) Agency § 292, p. 19 (1958). An agent has apparent authority to represent the principal when “a principal through his own acts or inadvertences, causes or allows third persons to believe his agent possesses” such authority. (Internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 734, 629 A.2d 333 (1993).

The defendant here was represented by counsel at the time he signed the deed and has subsequently enjoyed the benefits of condominium ownership. The defendant has waived his ability to challenge Smith’s validity as agent of the plaintiff. We conclude that the defendant was the owner of the unit for purposes of common fee liability during the relevant periods.

Ill

Finally, the defendant claims that the court erred in denying him any relief pursuant to § 47-278. We are not persuaded.

Section 47-278 provides a cause of action against the declarant or others who are subject to the provisions of the act when such parties violate the terms of either the act or the particular association’s declaration or bylaws. See Grey v. Coastal States Holding Co., 22 Conn. App. 497, 505, 578 A.2d 1080, cert. denied, 216 Conn. 817, 580 A.2d 57 (1990). The defendant has not raised a counterclaim invoking the provisions of § 47-278 but, rather, relies on the statute as a defense to paying the common charges assessed against him. The defendant does not appear to have raised the applicability, if any, of § 47-278 before the trial court. Additionally, the defendant cites no case law or makes any argument in his appellate brief as to how this section excuses him from paying the common charges. See Mullen & Mahon, Inc. v. Mobilmed Support Services, LLC, 62 Conn. App. 1, 10, 773 A.2d 952 (2001). Instead, the defendant merely recites the errors that he alleges the plaintiff made while drafting the budget and selling him the unit, as described previously. Despite our solicitude of the rights of pro se parties, we conclude that the defendant neither preserved this claim at trial nor supplied us with a sufficient basis from which to review the claim, and so we do not reach it.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       The court found that the defendant purchased the unit from the plaintiff “on or about April 4, 2003 . . . .” It noted that the plaintiff had introduced a certified copy of the deed “from the plaintiff to the defendant dated December 18, 2002, recorded April 4, 2003.” Because the specific amount of the debt is not at issue, we need not determine on which date the defendant’s liability to pay the common charges commenced.

       General Statutes § 47-245 (f) provides in relevant part: “[T]he unit owners shall elect an executive board of at least three members, at least a majority of whom shall be unit owners. . . .”

       Section 2.1 provides in relevant part: “The affairs of the Common Interest Community and the Association shall be governed by an Executive Board consisting of four (4) persons, the majority of whom . . . shall be Unit Owners.”

       We need not consider whether, in other circumstances, a unit owner might have a right to force a condominium association to hold elections in order to fill an empty board seat.

       In a motion for summary judgment, the defendant argued that the plaintiff lacked standing to bring this foreclosure action. The court denied the motion. Questions regarding standing implicate the trial court’s jurisdiction to hear a case. LoRicco Towers Condominium Assn. v. Pantani, 90 Conn. App. 43, 48, 876 A.2d 1211, cert. denied, 276 Conn. 925, 888 A.2d 93 (2005). The defendant asserts that the plaintiff did not follow its own internal procedures in commencing the present foreclosure action. He argues that, because of this alleged failure, the plaintiff lacked standing to commence the action, and, therefore, the court lacked jurisdiction to hear the plaintiffs complaint. Neither in his motion nor in his appellate brief does the plaintiff cite any case law supporting his assertion that a condominium association’s failure to follow its own internal procedures in commencing a foreclosure action deprives the court of jurisdiction to hear the complaint. Because we determine that the plaintiff did adequately follow its own internal procedures, we need not consider whether its failure to do so would have implicated the court’s subject matter jurisdiction.

       General Statutes § 47-278 (a) provides in relevant part: “If a declarant or any other person subject to this chapter fails to comply with any of its provisions or any provision of the declaration or bylaws, any person or class of persons adversely affected by the failure to comply has a claim for appropriate relief. . . .”

       We have stated frequently that we are aware of the difficulties faced by pro se parties and are solicitous of their rights. Although we have construed the rules of practice liberally for pro se litigants, as long as that does not interfere with the rights of other parties, we cannot ignore the statutes and rales of practice. Rosato v. Rosato, 53 Conn. App. 387, 390, 731 A.2d 323 (1999).


author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. LAMONT BARNWELL
    (AC 26964)
    Flynn, C. X, and DiPentima and Berdon, Js.

      Argued February 14
    officially released July 3, 2007

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Kathryn Ward Bare, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dear-ington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Lamont Barnwell, appeals from the judgment of the trial court rendered following the denial of his motion to withdraw his guilty plea. He claims that (1) his guilty plea was constitutionally defective because it was not knowingly, intelligently and voluntarily entered and (2) the court abused its discretion in failing to hold an evidentiary hearing on his claim of ineffective assistance of counsel. We disagree with both claims and affirm the judgment of the trial court.

On June 30, 2005, the defendant entered a plea of guilty to the charge of kidnapping in the first degree as an accessory in violation of General Statutes §§ 53a-92 (a) (2) (B) and 53a-8. The court conducted a plea canvass to ascertain whether the defendant’s plea was knowing, intelligent and voluntary. Prior to the sentencing date, the defendant filed a motion to withdraw his plea, alleging that the plea was entered involuntarily in violation of Practice Book § 39-27 (2). On July 21, 2005, the defendant appeared before the court and orally amended his motion to add a claim of ineffective assistance of counsel as a basis for his motion to withdraw. The defendant read a lengthy statement regarding his dissatisfaction with his attorney’s performance. Defense counsel then requested an evidentiary hearing on the defendant’s behalf. The court reviewed the transcript of the plea canvass and denied both the request for an evidentiary hearing and the motion to withdraw the plea. This appeal followed.

I

The defendant first claims that his plea was constitutionally defective because he did not understand the elements of the charged offense and therefore the plea was not entered knowingly, intelligently and voluntarily. As the defendant concedes, his claim was not preserved properly, and we therefore review it pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the record is adequate for review and the defendant has raised an issue of constitutional magnitude, we will review his claim. The defendant’s claim fails, however, because he has not established that a constitutional violation clearly exists that clearly deprived him of a fair trial.

“Before a guilty plea is accepted a defendant may withdraw it as a matter of right. Practice Book [§ 39-26]. After a guilty plea is accepted but before the imposition of sentence the court is obligated to permit withdrawal upon proof of one of the grounds in [Practice Book § 39-27].” State v. Torres, 182 Conn. 176, 185, 438 A.2d 46 (1980). “The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty. ... To warrant consideration, the defendant must allege and provide facts which justify permitting him to withdraw his plea under [Practice Book § 39-27].” (Citations omitted; internal quotation marks omitted.) State v. Johnson, 253 Conn. 1, 51, 751 A.2d 298 (2000).

In support of his claim that his plea was not entered into knowingly, intelligently and voluntarily, the defendant argues that the court failed (1) to explain the elements of the kidnapping charge, (2) to ask him whether he understood those elements and (3) to ask him if his attorney had explained those elements to him. He also argues that the court should have explained that his liability under the kidnapping charge was as an accessory. We are not persuaded.

“It is well established that a plea of guilty cannot be voluntary in the sense that it constitutes an intelligent admission that the accused committed the offense unless the accused has received real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.” (Internal quotation marks omitted.) Marshall v. Lonberger, 459 U.S. 422, 436, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983);State v. Johnson, supra, 253 Conn. 38. “[T]he determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances [and] the plea may satisfy constitutional requirements even in the absence of literal compliance with the prophylactic safeguards of [Practice Book §§ 39-19 and39-20].” (Internalquotation marks omitted.) State v. Johnson, supra, 44; see also State v. Reid, 277 Conn. 764, 783, 894 A.2d 963 (2006).

Defense counsel generally is presumed to have informed the defendant of the charges against him. “[E]ven without an express statement by the court of the elements of the dimes charged, it is appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. . . . [U]nless a record contains some positive suggestion that the defendant’s attorney had not informed the defendant of the elements of the crimes to which he was pleading guilty, the normal presumption applies.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Lopez, 269 Conn. 799, 802, 850 A.2d 143 (2004); see also Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S. Ct. 2398, 162 L. Ed. 2d 143 (2005) (“[W]e have never held that the judge must himself explain the elements of each charge to the defendant on the record. Rather, the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel.”).

We can find no case, nor does the defendant cite to one, which instructed the trial court to explain the elements of the crime to the defendant. To the contrary, our appellate courts have held that atrial court’s reading the relevant provisions of the statute is sufficient. See State v. Johnson, supra, 253 Conn. 38; State v. Parker, 67 Conn. App. 351, 355, 786 A.2d 1252 (2001), cert. denied, 281 Conn. 912, 916 A.2d 54 (2007). In fact, this court has stated that the trial court need not describe every element of the offense. “Our courts have stopped short of adopting a per se rule that notice of the true nature of the charge always requires the court to give a description of every element of the offense charged. . . . The trial court’s failure to explicate an element renders the plea invalid only where the omitted element is a critical one . . . and only where it is not appropriate to presume that defense counsel has explained the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” (Citations omitted; internal quotation marks omitted.) State v. Hackett, 16 Conn. App. 601, 603, 548 A.2d 16 (1988).

On the basis of the record before us, we conclude that the defendant adequately was apprised of the charges against him. The court informed the defendant that he was charged with kidnapping in the first degree in violation of § 53a-92 (a), read the relevant portion of the statute and asked him whether he understood it, to which he responded affirmatively. Nothing in the record indicates that defense counsel failed to explain to the defendant the charges against him. The state read the factual basis into the record, which also covered the elements of the offense, and therefore further served to put the defendant on notice of the elements of the crime. See State v. Johnson, supra, 253 Conn. 40. The court then specifically asked the defendant whether he was satisfied with counsel’s representation, to which he responded: “Yes, sir. Very much.” The court also twice asked the defendant whether his plea was voluntary, whether he wanted the court to accept it and whether he was sure he wanted to plead guilty.

The defendant’s argument that the plea canvass was constitutionally defective because the court did not explain the requirements of the accessoiy statute is similarly unavailing. In addition to the court’s specific reference to the accessorial liability statute during the plea canvass and the presumption that defense counsel explained accessory liability to the defendant, both the substitute information and the clerk of the court at the time of the plea informed the defendant that he was being charged under the accessory statute. Moreover, because accessorial liability is not an independent crime but, rather, an alternate means by which a substantive crime can be committed, there is no practical difference between accessoiy or principal status; whether the defendant is labeled an accessoiy or a principal, the state must prove that he committed every element of the underlying offense. State v. Martinez, 278 Conn. 598, 618, 900 A.2d 485 (2006). Thus, informing the defendant of the elements of the underlying offense, in this case, kidnapping, sufficed to provide him with notice of the charged crime. We conclude that the defendant’s plea did not suffer from any constitutional infirmity and that he was not deprived of a fair trial.

II

The defendant next claims that the court abused its discretion by denying his request for an evidentiary hearing on his claim of ineffective assistance of counsel. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. In support of his motion to withdraw his guilty plea on the basis of ineffective assistance of counsel, the defendant read a statement into the record regarding his counsel’s representation. The defendant claimed that his counsel had failed to pursue, or failed to obtain in a timely fashion, certain items of evidence, namely, video footage, police reports, telephone call recordings and certain documents relevant to the victim’s alleged criminal background and credibility.

The court reviewed the transcript of the plea proceeding with the defendant. At the plea proceeding, the court asked if the defendant was satisfied with his attorney’s representation, and the defendant replied: “Yes, sir. Very much.” The court noted that the transcript of the plea proceeding was bereft of any indication that the defendant was unsatisfied with his attorney’s representation. The court denied the motion to withdraw the plea, concluding that the record was complete and that the defendant’s claim lacked merit.

At the outset, we note that the applicable standard of review of a trial court’s denial of an evidentiary hearing is abuse of discretion. See, e.g., State v. Webb, 62 Conn. App. 805, 815, 772 A.2d 690 (2001).

“In considering whether to hold an evidentiary hearing on a motion to withdraw a guilty plea the court may disregard any allegations of fact, whether contained in the motion or made in an offer of proof, which are either conclusory, vague or oblique. For the purpose of determining whether to hold an evidentiary hearing, the court should ordinarily assume any specific allegations of fact to be true. If such allegations furnish a basis for withdrawal of the plea under [Practice Book § 39-27] and are not conclusively refuted by the record of the plea proceedings and other information contained in the court file, then an evidentiary hearing is required.” (Internal quotation marks omitted.) State v. Torres, supra, 182 Conn. 185-86; see also State v. Blue, 230 Conn. 109, 125, 644 A.2d 859 (1994).

In the present case, the defendant’s allegations against his counsel all involved issues of which the defendant was aware prior to the plea proceeding, yet the defendant asserted during the plea proceeding that he was satisfied with his counsel’s representation. As we have noted, the defendant affirmatively indicated that he was satisfied with his counsel’s representation. This court has stated that “a trial court . . . may properly rely on . . . the responses of the [defendant] at the time he responded to the trial court’s plea canvass . . . .” Bowers v. Warden, 19 Conn. App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989); see also State v. Casado, 42 Conn. App. 371, 377-78, 680 A.2d 981 (in denying request for evidentiary hearing, court properly relied on defendant’s representation during plea proceeding that she was not forced or coerced into entering plea), cert. denied, 239 Conn. 920, 682 A.2d 1006 (1996).

In this case, the court properly relied on the defendant’s representation that he was very satisfied with his counsel’s representation and on the absence of any indicia to the contrary. Thus, the record of the plea canvass conclusively refutes the defendant’s argument that his plea lacked the benefit of effective assistance of counsel. We conclude that the court did not abuse its discretion in denying the defendant an evidentiary hearing.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the plea canvass, the court included the following questions:
      “Q. Okay. Kidnapping, commit the offense as outlined when you abduct another person and, let’s see, [General Statutes § 53a-92 (a) (2) (B)]. . . . Restrain the person abducted with the intent to accomplish or advance the commission of a felony; understand that, sir?
      “YYes,sk. . . .
      “Q. Understood all my questions?
      “A. Yes, sir.
      ‘•Q. And you’re satisfied with your lawyer’s representation?
      “A. Yes, sir. Very much.
      “Q. And you want me to accept your plea of guilty?
      “A. Yes, sir.
      “The Court: Plea is accepted, finding of guilty is made, there’s a factual basis, assisted by competent counsel.”

       Practice Book § 39-27 provides in relevant part: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows . . .
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed . . . .”

       At the hearing on the motion, the defendant argued only that the plea resulted from the denial of effective assistance of counsel in violation of Practice Book § 39-27 (4).

       Under State v. Golding, supra, 213 Conn. 239-40, “[a] defendant can prevail only if all of the following 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. . . . The first two [prongs of Golding] involve a determination of whether the claim is renewable; the second two . . . involve a determination of whether the defendant may prevail.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Farr, 98 Conn. App. 93, 98-99, 908 A.2d 556 (2006).

       Despite the defendant’s contention to the contrary, the court also was not required to make an explicit finding as to the defendant’s understanding of the charges. We readily may infer from the court’s acceptance of the plea that the court found that it was knowingly, intelligently and voluntarily entered. See State v. Johnson, supra, 253 Conn. 25.

       The defendant’s ineffective assistance of counsel claim alleged that counsel failed to follow up on several items of potential evidence; the defendant never claimed that counsel failed to explain the law to him. Moreover, on appeal, the defendant limited his argument to the denial of the evidentiary hearing and did not brief the merits of his claim that the plea should be withdrawn on the basis of his ineffective assistance of counsel claim.

       We note that on appeal, the defendant limited his argument to the denial of the evidentiary hearing and did not brief the merits of his claim that the plea should have been withdrawn on the basis of his ineffective assistance of counsel claim. Consequently, we limit our review to the issue of an evidentiary hearing.

       “Although some form of meaningful dialogue is preferable to monosyllabic responses by the defendant, we have never held that single-word responses require an automatic vacation of a guilty plea.” State v. Torres, supra, 182 Conn. 179-80.

       We note that during jury selection on June 30, 2005, the defendant made a pro se oral motion for appointment of new counsel, in which he raised concerns regarding his counsel’s choice of strategy for the case. After a short recess, however, the defendant and his counsel stated that they had reconciled, and the defendant affirmed that he and his counsel were on the “same wavelength.”


text:
    BNY WESTERN TRUST v. DIANE L. ROMAN ET AL.
    (AC 27574)
    Harper, Rogers and Lavine, Js.
    Argued February 16
    officially released July 3, 2007

      Louis Roman, pro se, the appellant (intervening defendant).

      Michele D. Sensale, for the appellee (substitute plaintiff).
   Opinion

PER CURIAM.

The intervening defendant, Louis Roman, appeals from the judgment of the trial court granting the motion to release the committee deed and set a closing date or forfeit deposit filed by the substitute plaintiff, the Bank of New York, trustee. We dismiss the appeal.

This foreclosure action was commenced in 2000 and has a tortuous history of delays. The sale finally took place on December 10, 2005, and the court, Hon. Howard T. Owens, Jr., judge trial referee, approved the sale on January 9, 2006. On January 23,2006, the intervening defendant filed a bankruptcy petition in United States Bankruptcy Court. On January 24, 2006, Diane L. Roman, did likewise. On January 26, 2006, the successful bidder filed a motion for return of deposit due to the bankruptcy filings. On January 30, 2006, notice of the court’s January 9, 2006 rulings were mailed to the parties, but the committee’s deed was held by the court in view of the bankruptcy proceedings. On February 10, 2006, the substitute plaintiff filed an objection to the return of deposit, and a motion to release the deed and set a closing date or forfeit the deposit. On April 3, 2006, after a hearing, the court, Richards, J., denied the motion for return of deposit and granted the motion to release the deed and set a closing date.

On April 12, 2006, the intervening defendant filed an appeal, claiming in essence that Judge Richards had violated the stay provision of the United States Bankruptcy Code. Furthermore, he argued that he was prevented from appealing from the judgment approving the sale because the filing of the bankruptcy petitions stayed the appeal period. Following oral argument in this court, a review of the record disclosed that the petitions in bankruptcy had been dismissed in August, 2006, and the matters closed on October 4, 2006. No appeal has been filed challenging the judgment approving the sale.

“Mootness implicates subject matter jurisdiction, and, therefore, we will not review claims that are moot. . . . [T]he test for determining mootness is not [w]hether the [appellant] would ultimately be granted relief .... The test, instead, is whether there is any practical relief this court can grant the [appellant]. . . . If no practical relief can be afforded to the parties, the appeal must be dismissed.” (Citation omitted; internal quotation marks omitted.) In re Jeremy M., 100 Conn. App. 436, 441-42, 918 A.2d 944 (2007).

“Under Connecticut law, a judicial sale becomes complete and creates a legal right to obligations among parties when it is confirmed and ratified by the court.” Hartford Federal Savings & Loan Assn. v. Tucker, 13 Conn. App. 239, 247, 536 A.2d 962, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988). “Generally, once a court has approved the foreclosure sale and the applicable appeal period has elapsed, the mortgagor’s right of redemption is extinguished and the court’s jurisdiction to modify that judgment ends. See D. Caron & G. Milne, Connecticut Foreclosures (4th Ed. 2004) § 9.01B, p. 203 (‘absent the possibility of an appeal from [the court’s] determination, the approval of the sale generally operates to divest the owner of his equity of redemption and consequently places the property beyond the power of the court’). Accordingly, after the sale is approved and the relevant appeal periods have expired, any action by the mortgagor to redeem should be dismissed as moot.” Wells Fargo Bank of Minnesota, N.A. v. Morgan, 98 Conn. App. 72, 79-80, 909 A.2d 526 (2006).

The appeal is dismissed.

       The defendants, Diane L. Roman and Ralph Flamini, are not parties to this appeal. We therefore refer in this opinion to Louis Roman as the intervening defendant.

       On the appeal form filed by the intervening defendant, he indicated that he was appealing from the April 3, 2006 judgment of the court, although he indicated that the action that constituted the final judgment was the substitute plaintiffs “motion to confirm foreclosure sale in lieu of chapter 13 bankruptcy filing by defendant.”

       In this opinion, we offer no opinion as to whether Judge Richards properly released the deed and set a closing date.

       We ordered the parties to file simultaneously supplemental briefs explaining why the appeal should not be dismissed as moot.