text:
    ROOSEVELT CAMPBELL v. COMMISSIONER OF CORRECTION
    (AC 32404)
    Beach, Robinson and Alvord Js.
    Argued September 16
    officially released November 29, 2011

      Elio C. C. Morgan, special public defender, for the appellant (petitioner).

      Raheem L. Mullins, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Roosevelt Campbell, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. On appeal, the petitioner claims the habeas court (1) abused its discretion in denying his petition for certification to appeal because the habeas court improperly denied the motion to withdraw filed by his habeas counsel and (2) denied his rights to effective assistance of counsel, to representation free from conflict and to a fair trial. We dismiss the appeal.

The following facts and procedural history are relevant to the resolution of the petitioner’s claims. On February 8, 2006, the petitioner entered a guilty plea, pursuant to the Alford doctrine, to manslaughter in the first degree and assault in the first degree. The court sentenced the petitioner to twenty years on the manslaughter charge, and ten years on the assault charge, to run consecutively, with a five year mandatory minimum sentence. The petitioner did not file a direct appeal.

On January 5, 2007, the petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of trial counsel. On January 27, 2010, the petitioner’s habeas counsel filed an Anders brief seeking permission to withdraw her appearance. The court denied the motion on February 5, 2010, finding that the motion was untimely.

A habeas trial was held on February 25, 2010. The petitioner testified that when he pleaded guilty under the Alford doctrine, he believed that the sentences would run concurrently, rather than consecutively, and that after he completed the five mandatory years, he would be deported to Jamaica. The petitioner also testified that his habeas counsel “[had] done nothing.” The petitioner noted that his counsel wanted to withdraw, and stated, “[i]f she be on the case, I don’t believe she ever do a good job for me. She wants to come off.”

When the court returned with its decision, the petitioner’s counsel made a request on behalf of the petitioner “for him to have another lawyer besides [his present counsel].” The court denied the request stating that the case had been tried and a decision was to be issued.

At the conclusion of the trial, the court issued an oral decision denying the petition for a writ of habeas corpus. On March 9, 2010, the petitioner filed a petition for certification to appeal. In the petition, the petitioner stated that he was appealing on the grounds of “[s]entencing procedures.” The petitioner did not attach any additional sheets to the petition for certification to appeal that listed any additional grounds for the appeal. The court denied the petition for certification on March 10, 2010. This appeal followed.

We begin by setting forth the proper standard of review. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. ... If this burden is not satisfied, then the claim that the judgment of the habeas court should be reversed does not qualify for consideration by this court. ’ ’ (Citation omitted; internal quotation marks omitted.) Logan v. Commissioner of Correction, 125 Conn. App. 744, 750-51, 9 A.3d 776 (2010), cert. denied, 300 Conn. 918, 14 A.3d 333 (2011).

On appeal, the petitioner argues that the habeas court abused its discretion in denying his petition for certification to appeal to challenge its alleged mishandling of habeas counsel’s motion to withdraw. The petitioner also contends that, as a result of the denial of the motion to withdraw, he was denied his rights to effective assistance of counsel, to representation free from conflict and to a fair trial.

The petitioner’s petition for certification to appeal cited “[sentencing procedures” as the basis for which he sought review. The petition did not include claims relating to the court’s dismissal of habeas counsel’s motion to withdraw, or any claims regarding ineffective assistance of counsel or conflict of interest. This court has determined that a petitioner cannot demonstrate that a habeas court abused its discretion in denying a petition for certification to appeal on the basis of issues that were not actually raised in the petition for certification to appeal. See Perry v. Commissioner of Correction, 131 Conn. App. 792, 796, 28 A.3d 1015 (2011); Logan v. Commissioner of Correction, supra, 125 Conn. App. 752-53; Mitchell v. Commissioner of Correction, 68 Conn. App. 1, 6-7, 790 A.2d 463, cert. denied, 260 Conn. 903, 793 A.2d 1089 (2002). Under such circumstances, the petition for certification to appeal could not have apprised the habeas court that the petitioner was seeking certification to appeal based on such issues. See Mitchell v. Commissioner of Correction, supra, 7. A review of such claims would “amount to an ambuscade of the [habeas] judge.” (Internal quotation marks omitted.) Id.

The petition for certification to appeal listed “[sentencing procedures” as the only basis for which the petitioner sought review. No matter how broadly we construe the language in the petition for certification to appeal, we cannot conclude that the habeas court was adequately apprised of the issues the petitioner now asserts on appeal. Because the petitioner failed to raise the claims in his petition for certification to appeal that he now alleges on appeal, we decline to afford them review.

The appeal is dismissed.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The petition also included claims of racial discrimination and cruel and unusual punishment; however, they were not addressed at the habeas trial.

        Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

       The petitioner’s habeas counsel objected to the court conducting the hearing in the petitioner’s absence, as well as to the court’s not allowing the petitioner thirty days to respond to counsel’s motion to withdraw as provided by Practice Book §§ 23-41 and 23-42. The court responded that by denying the motion to withdraw, the court was protecting the petitioner’s right to object to the motion. On February 17, 2010, the petitioner’s counsel filed a request for a writ of mandamus to allow the petitioner the full thirty days allotted by the rules of practice to respond to habeas counsel’s motion to withdraw. The court denied the writ finding that “[i]n denying the motion for permission to withdraw the court is preserving the petitioner’s right to counsel. Accordingly, a response by the petitioner to the motion is unnecessary.” On February 18, 2010, the petitioner filed an application for certification to pursue a public interest appeal pursuant to General Statutes § 52-265a, which was denied by the habeas court on February 24, 2010.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RANDALL SAUNDERS
    (AC 32758)
    Lavine, Robinson and Lavery, Js.,
    Argued September 21
    officially released November 29, 2011

      Randall B. Saunders, pro se, the appellant (defendant).

      Raheem L. Mullins, assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Warren C. Murray, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Randall Saunders, appeals from the judgment of the trial court, Cobb, J., dismissing his motion to correct an illegal sentence, filed pursuant to Practice Book § 43-22. The dispositive issue on appeal is whether the court properly determined that it lacked subject matter jurisdiction to consider the defendant’s motion. We conclude that the court properly determined that it lacked jurisdiction because the defendant’s claim did not fall within the purview of § 43-22. Accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review of the defendant’s appeal. The defendant was arrested on January 26,1997, and was charged with murder in violation of General Statutes § 53a-54a (a). The initial trial resulted in a mistrial. The state retried the defendant charging him in a substituted long form information with one count of intentional manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55a (a) and 53a-55 (a) (1) and reckless manslaughter in the first degree with a firearm in violation of §§ 53a-55 (a) (3) and 53a-55a (a). On March 21, 2001, the jury found the defendant not guilty of intentional manslaughter but convicted him of reckless manslaughter. The court rendered judgment in accordance with the verdict and sentenced the defendant to twenty-seven years of incarceration. The defendant appealed his conviction, but it was affirmed by our Supreme Court. See State v. Saunders, 267 Conn. 363, 366, 838 A.2d 186, cert. denied, 541 U.S. 1036, 124 S. Ct. 2113, 158 L. Ed. 2d 722 (2004).

On August 9, 2010, the defendant filed a motion to correct an illegal sentence pursuant to Practice Book § 43-22. On the same day, the state filed a motion to dismiss the defendant’s motion, claiming that the court lacked jurisdiction. On September 14, 2010, a hearing on the motion was held, and the court granted the state’s motion to dismiss. In granting the state’s motion to dismiss for lack of jurisdiction, the trial court wrote, “[f]or the reasons stated in the motion and pursuant to State v. Lawrence, 281 Conn. 147 [913 A.2d 428 (2007)].” This appeal followed.

The defendant argues that the trial court erred when it granted the state’s motion to dismiss on the grounds that it lacked subject matter jurisdiction. He claims that his sentence was based on an inoperable statute, that it was internally contradictory and that the sentencing court relied on misinformation. To support these claims, the defendant relies on the theory that because the jury unanimously returned a verdict of not guilty as to the charge of intentional manslaughter, and his only defense was self-defense, the entire statute is rendered inoperable. Therefore, he asserts, the conviction for reckless manslaughter is invalid, and accordingly, his sentence is illegal. This, the defendant argues, gives the court jurisdiction under Practice Book § 43-22.

“Our standard of review governing an appeal from a judgment granting a motion to dismiss on the ground of lack of subject matter jurisdiction concerns a question of law and is plenary.” Mercer v. Rodriquez, 83 Conn. App. 251, 255, 849 A.2d 886 (2004). “In the absence of statutory or constitutional provisions, the limits of [the trial court’s] jurisdiction are delineated by the common law. . . . Although the [trial] court loses jurisdiction over the case when [a] defendant is committed to the custody of the commissioner of correction and begins serving [his] sentence .... [Practice Book] § 43-22 embodies a common-law exception that permits the trial court to correct an illegal sentence or other illegal disposition. . . . Thus, if the defendant cannot demonstrate that his motion to correct falls within the purview of § 43-22, the court lacks jurisdiction to entertain it.” (Citations omitted; internal quotation marks omitted.) State v. Lewis, 108 Conn. App. 486, 488, 948 A.2d 389 (2008).

Our Supreme Court has limited the types of cases that can be properly brought under Practice Book § 43-22 to four categories. “The first category has addressed whether the sentence was within the permissible range for the crimes charged. . . . The second category has considered violations of the prohibition against double jeopardy. . . . The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time. . . . The fourth category has involved questions as to which sentencing statute was applicable.” (Citations omitted; internal quotation marks omitted.) State v. Lawrence, supra, 281 Conn. 156-57.

“It is well settled that [t]he purpose of ... § 43-22 is not to attack the validity of a conviction by setting it aside but, rather to correct an illegal sentence or disposition .... State v. Motto, 63 Conn. App. 487, 491, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001); see also State v. Lawrence, supra, 281 Conn. 158. Therefore, the relief allowed by ... § 43-22 . . . require[s], as a precondition, a valid conviction. State v. Motto, supra, 491.” (Internal quotation marks omitted.) State v. Lewis, supra, 108 Conn. App. 488. The defendant’s motion, although framed as a motion to correct an illegal sentence, solely attacks his underlying conviction and not the sentence he received or the disposition of his conviction. We repeatedly have held that a motion to correct is not the proper procedural vehicle for such a challenge. See State v. Lewis, supra, 486; see also State v. Lawrence, supra, 147; State v. Mollo, supra, 487. Because the defendant’s claim does not fit within one of the four Lawrence categories, the trial court was correct in dismissing the case for lack of subject matter jurisdiction.

The judgment is affirmed.

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”


author: FLYNN, J.

text:
    TAMAS BIRO ET AL. v. VICTOR H. MATZ ET AL.
    (AC 32413)
    Gruendel, Alvord and Flynn, Js.

      Argued September 21
    officially released November 29, 2011

      Richard P. Terbrusch, for the appellants (plaintiffs).

      Thomas W. Beecher, with whom, on the brief, was Stephanie B. Nickse, for the appellees (defendants).
   Opinion

FLYNN, J.

This appeal originates from a contract for the purchase of commercial real estate in Danbury that was deeded to the buyers. The buyers appeal from the trial court’s judgment granting the sellers’ motion for summary judgment. On appeal, the buyers claim the court erred in finding there was no material question of fact with respect to their claims of breach of contract, negligent misrepresentation, intentional misrepresentation, fraudulent inducement, and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We affirm the judgment of the trial court.

The following uncontested facts inform our review. The defendants, Victor H. Matz and Ingrid M. Liming (sellers), are siblings and the former owners of a commercial warehouse (premises) located in Danbury. More than thirty years ago in 1980, the sellers hired a contractor to construct an expansion to the warehouse. According to his deposition testimony, Matz believed the contractor would provide a certificate of occupancy based on the construction contract’s warranties language, which provides in relevant part: “Warranties . . . all applicable local, state, [n]ational codes and good engineering practice . . . .” Matz also testified during his deposition that he had found a receipt from the city of Danbury for a certificate of occupancy, which he believed was indicative of issuance of a certificate of occupancy. The Danbury building department never informed Matz of any problematic issues relating to the construction either during or after the addition was built.

On or about July 11, 2006, the sellers entered into a contract with the plaintiffs, Tamas Biro and Vilmos Havasi (buyers), to sell the premises to the buyers in an “as is” condition and “with all faults . . . .” Both sellers averred in their respective affidavits that they were not in the business of selling commercial real estate. Matz’ factory had occupied the premises for years. His interest in selling the premises was to move his family’s trophy and awards manufacturing business out of state, and Luning’s interest was to invest her portion of the sale proceeds toward her retirement. Closing on this real estate transaction later took place, and the deed was delivered to the buyers.

Section 5 of the contract detailed the terms relating to the condition of the premises. Additionally, in contract terms that expressly survived the “closing and the delivery] of the deeds,” the parties agreed that the buyers had “examined . . . the [pjremises,” which were to be sold “as is,” without any representation about the condition of the premises on which the buyers relied, unless specifically embodied in the agreement, “with all faults” existing. The buyers agreed that they had been requested to “investigate all matters” relevant to the premises and to rely solely on their own inspection or information obtained or otherwise available to them. The buyers were to “assume all future obligations and liabilities” related to the premises raised subsequent to closing.

By contrast, § 8, paragraph (a) of the contract, relied on by the buyers, stipulated that the property would be conveyed “subject to . . . [a]ny restrictions or limitations imposed or to be imposed by governmental authority, including the zoning and planning rules and regulations of the [c]ity or [t]own, and region or district, if any, in which the [premises is situated, provided the same are not being violated by the subject premises and the building thereon.” This paragraph did not indicate that it would survive the passage of the deed.

A title affidavit from Fidelity National Title Insurance Company of New York, representing that “[t]here have been no additional buildings constructed, or additions added to existing buddings, on the property within the past three (3) years,” also was executed at the time of closing. The “survey update” section of the title affidavit provides in relevant part: “I/We have examined a certain survey of the property made by dated and entitled, ‘ ’.” The blank spaces were never completed by the buyers’ counsel, who prepared the affidavit, nor by the sellers.

On or about February 9, 2008, the buyers received an offer from R & J Electrical Contractors, LLC (R & J Electrical), to purchase the premises for $1.4 million. The parties entered into a contract of sale on April 27, 2008, with R & J Electrical agreeing to pay a sum of $1.4 million for the property. Prior to closing, the appraiser from the mortgage bank informed Richard Gustavson, the owner of R & J Electrical, that the appraisal value of the premises was $1 million. Gustavson also conducted his due diligence prior to closing and discovered that no certificate of occupancy ever was issued for the premises by the city of Danbury. Gustavson then submitted a new offer of $1 million to purchase the building, but this offer was rejected by the buyers. As a result of this rejection, R & J Electrical decided not to purchase the premises, and title has remained in the buyers ever since.

Because part of the premises lacked an occupancy permit, the buyers brought an action against the sellers in Danbury Superior Court on November 21,2008, alleging breach of contract, negligent misrepresentation, intentional misrepresentation, fraudulent inducement, and violations of CUTPA. The buyers relied heavily on the language in § 8 of the contract, stipulating that conveyance of the property was subject to local zoning regulations, provided they were not violated, as the primary basis for their arguments relating to the first four counts of the complaint. However, the trial court concluded that the terms of the contract merged into the conveyance deed that replaced and superseded the underlying terms of the contract, on which the buyers relied, when the deed was formally accepted by the buyers. The court then quoted the pertinent provisions of General Statutes § 42-110b (a), which is part of CUTPA and which provides in relevant part that “[n]o person shall engage in unfair . . . acts or practices in the conduct of any trade or commerce.” The court rejected the buyers’ CUTPA claim by concluding that CUTPA applies only to sellers engaged in the business of selling commercial real estate and the sellers did not engage in such business. The court rendered summary judgment as to all counts in the sellers’ favor on June 9, 2010. This appeal followed.

We begin by setting forth our well established standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a] . . . motion for summary judgment is plenary.” (Internal quotation marks omitted.) Jaiguay v. Vasquez, 287 Conn. 323, 362, 948 A.2d 955 (2008).

“An appellate court’s review of a trial court decision is circumscribed by the appropriate standard of review. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Powers v. Olson, 252 Conn. 98, 104-105, 742 A.2d 799 (2000).

“Where [as here] . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard.” (Internal quotation marks omitted.) Antonino v. Johnson, 113 Conn. App. 72, 75, 966 A.2d 261 (2009).

Because the trial court rendered judgment in favor of the sellers as a matter of law and our resolution of this appeal requires a review of the contractual language, our review is plenary. With this standard in mind, we examine each of the buyers’ claims in turn.

I

The buyers first contend that the trial court improperly concluded that there was no question of material fact with respect to the breach of contract claim. Specifically, the buyers argue that there is a genuine issue of material fact as to whether (1) the sellers breached the terms of the contract when they conveyed the property without a proper certificate of occupancy for part of its improvements, and (2) the breached terms of the contract survived the closing and delivery of the deed. We disagree.

A

We first address the issue of what terms of the contract survived the closing and delivery of the deed. Unless the contract expressly provides that certain terms shall survive, “it is axiomatic that a deed supersedes the underlying contract.” Powers v. Olson, supra, 252 Conn. 106. “[Acceptance of a deed in pursuance of articles of agreement for the conveyance of land is prima facie the completion of the contract; and all stipulations contained therein . . . are merged in the deed although omitted therefrom . . . .” (Internal quotation marks omitted.) Id., quoting Knight v. Breckheimer, 3 Conn. App. 487, 490, 489 A.2d 1066 (1985).

There are two grounds on which we can sustain the court’s judgment. One is the contractual “as is” language indicating that the covenant survives transfer of the deed, and the other is the “merger by deed” doctrine found in our case law. We address each in turn.

1

In our analysis of the “as is” clause, we first state what is not at issue in this case. The affidavits and supporting documents do not show any scienter or guilty knowledge on the part of the sellers, Matz and Luning, that there was any lack of a certificate of occupancy at the time they signed the sales agreement with the buyers or when they conveyed title to them. Nor is there any claim here that the contractual survival language violates public policy.

In analyzing the effect of the “as is” provision of the contract, we give effect to all relevant provisions and construe the contract as a whole. Lanna v. Greene, 175 Conn. 453, 458, 399 A.2d 837 (1978). Not only did the contract indicate that the premises was being sold “as is” and “with all faults,” it did not contain any representations as to whether certificates of occupancy were available for part or all of the premises. Furthermore, the contract specifically stated there was no representation on which the buyers relied except as provided in the contract. Finally, the buyers acknowledged in the agreement that they had been requested to “investigate all matters” related to the premises and to rely on the information they obtained and assumed “all obligations and liabilities” raised subsequent to the closing. The contractual language is clear.

The purpose and effect of an “as is” clause is to shift the burden regarding mistake or defect to the accepting party, in this case, the buyers. See Holly Hill Holdings v. Lowman, 226 Conn. 748, 757, 628 A.2d 1298 (1993). “[A] court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract. . . .” Id., 756. It is clear that the buyers agreed to accept the premises in an “as is” condition and with “all faults” pursuant to § 5 (b) of the contract. Assuming that a portion of the premises lacked a partial certificate of occupancy that remained a potential burden relating to the property, § 5 contained express provisions in paragraphs (b) and (e) indicating that the “as is” terms were to survive closing and deliverance of deed. By accepting the delivery of the deed, the buyers accepted the property “as is” and “with all faults,” which included assuming any potential burden associated with the premises’ lack of a certificate of occupancy for some part of it.

2

We next address how the principle of merger by deed voided certain provisions of the underlying contract while preserving others once title was conveyed. “[U]nder the principle of merger by deed, the terms of the deed . . . automatically replace and supersede the terms of the underlying contract, absent a reservation of collateral rights.” Mongillo v. Commissioner of Transportation, 214 Conn. 225, 231, 571 A.2d 112 (1990). Our case law provides examples where the terms of an underlying agreement no longer bound the parties because they merged with the deed upon conveyance of title. See id. (had terms of prior stipulated judgment in eminent domain proceeding differed from terms of deed, terms of deed would replace and supersede terms of judgment upon deed’s conveyance); Powers v. Olson, supra, 252 Conn. 108-109 (seller did not retain slope rights to property because seller removed express terms authorizing those rights in deed prior to conveying title to buyer); Knight v. Breckheimer, supra, 3 Conn. App. 490-91 (seller’s representation in sales agreement that septic system must be in working order merged with deed because of express language in agreement stating that provision would not survive delivery of deed).

In this case, the buyers reference the language of § 8 of the contract, “Encumbrances,” to support their position that the terms of this provision were breached when title was conveyed to them without a certificate of occupancy having been issued for part of the premises. That section provides in relevant part: “In addition to the exceptions to title mentioned in Schedule A, the [p]remises will be conveyed subject to . . . (a) [a]ny restrictions or limitations imposed or to be imposed by governmental authority, including the zoning and planning rules and regulations of the [c]ity or [t]own, and region or district, if any, in which the Premises are situated provided the same are not being violated by the subject premises and the building thereon.” Fatal to this claim, however, is the fact that the terms and provisions of § 8 were merged with, superseded, and replaced by the terms of the deed at the time of closing because § 8 contained no express language indicating that it would survive conveyance of title. Section 5 of the contract, however, did contain such survival language and expressly indicated that the seller had no further obligations with respect to the premises once the deed was delivered to the buyers.

Furthermore, we do not agree that § 8 contains any affirmative representations that the language “subject to . . . [a]ny restrictions or limitations imposed or to be imposed by governmental authority” made any affirmative representation about certificates of occupancy. The contract left the buyers to make their own investigations, and the provisions that there be no violations related only to whether the buyers were obligated to purchase if such violations were discovered by the buyers and raised as an objection prior to closing.

Our agreement with the trial court’s finding that § 8 merged with the deed while § 5 was preserved after conveyance of title also is consistent with the Latin maxim of expressio unius est exclusio alteráis or “the expression of one thing is the exclusion of another.” Long a staple of our statutory interpretation, this court also has applied the principle to contractual agreements. See Best Friends Pet Care, Inc. v. Design Learned, Inc., 77 Conn. App. 167, 179-80, 823 A.2d 329 (2003) (applying principle of expressio unius est exclusio alteráis to waiver clause of construction contract). Applying this principle to the present case, it is evident that only those sections of the contract containing affirmative survival language survived delivery of the deed, while those sections lacking such language were excluded from the deed by deliberate choice. Consequently, the trial court committed no error concluding that the § 8 provisions merged with the deed.

B

We next consider whether the terms of the remaining contract were breached when the premises were conveyed to the buyers without a certificate of occupancy. The buyers took title to the premises “as is” and “with all faults” as made expressly clear by § 5 (b). Accordingly, accepting the title to the property “as is” precludes the buyers from raising an argument that the property was defective for lack of a certificate of occupancy. The buyers maintain that § 5 pertains only to the physical condition of the property and is silent on the issue as to whether the premises complied with local zoning regulations, which is governed by § 8. However, even if § 8 were to survive closing, and we have held that it does not, § 5 (d) of the contract makes explicitly clear that “the [b]uyer shall assume all future obligations and liabilities related to the [premises which may be raised subsequent to the closing with respect to the [premises.” Such language is sufficiently broad to encompass obligations and liabilities assumed by the buyers for purchasing property that lacked a certificate of occupancy. Had the buyers exercised their due diligence prior to closing, they might have refused to close and accept title until any lacking certificate of occupancy was obtained. As it stands, however, there is no representation in the contract imposing liability on the sellers after closing for a claimed zoning violation of this nature where this claim was not raised by the buyers prior to closing of title.

The buyers also allege that a genuine issue exists as to whether the provisions of § 8 were breached. As explained in part I A of this opinion, § 8 (a) made no affirmative representation regarding certificates of occupancy. Nevertheless, even if § 8 did contain such an affirmative representation, § 8 contained no survival language and, consequently, merged with the deed upon conveyance of title.

We therefore conclude that the trial court committed no error in its legal and logical conclusions by finding that the breached terms did not survive closing and that no breach of the contract occurred when the sellers conveyed property without a proper certificate of occupancy.

II

The buyers also claim that the trial court improperly concluded that there was no material question of fact with regard to the buyers’ negligent misrepresentation claim. The buyers maintain that genuine questions exist as to whether (1) the sellers represented that the property did not violate local zoning laws, (2) the “as is” and “with all faults” clauses of § 5 were specific to that section and did not negate other representations expressed in the contract, and (3) the sellers represented that no additional improvements were constructed or exterior alterations were made. We disagree with the buyers.

“Our Supreme Court has long recognized liability for negligent misrepresentation. . . . The governing principles [of negligent misrepresentation] are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” (Internal quotation marks omitted.) Rafalko v. University of New Haven, 129 Conn. App. 44, 52, 19 A.3d 215 (2011). It must be established that there was a false representation in order for a plaintiff to prevail on a negligent misrepresentation claim. Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 792-93, 734 A.2d 112 (1999). A plaintiff also is required to show that he reasonably relied on the misrepresentation. Visconti v. Pepper Partners Ltd. Partnership, 77 Conn. App. 675, 682, 825 A.2d 210 (2003).

A

The buyers first claim that a genuine question exists as to whether the provisions of § 8 create an affirmative representation that the premises were not in violation of local zoning regulations at the time that title passed to them.

“[W]e interpret contract language in accordance with a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. ... If the terms of [a contract] are clear, their meaning cannot be forced or strained by an unwarranted construction to give them a meaning which the parties obviously never intended. ... A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Internal quotation marks omitted.) Santana v. Hartford, 94 Conn. App. 445, 463-64, 894 A.2d 307 (2006), aff'd, 282 Conn. 19, 918 A.2d 267 (2007).

The provisions of § 8 provide in relevant part: “In addition to the exceptions to title mentioned in Schedule A, the [premises will be conveyed subject to . . . (a) [a]ny restrictions or limitations imposed or to be imposed by governmental authority, including the zoning and planning rules and regulations of the [c]ity or [t]own, and region or district, if any, in which the [premises are situated. Provided the same are not being violated by the subject premises and building thereon.” The buyers disagree with the trial court’s interpretation that this portion of § 8 did not constitute an affirmative representation by the sellers that the property was not currently in violation of any restrictions or limitations imposed by zoning and planning rules and regulations.

Even if we were to accept the buyers’ interpretation of § 8, we would, nonetheless, still affirm the court’s judgment because the buyers have presented no genuine issue to indicate that they reasonably relied on the alleged misrepresentation to their detriment. See McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn. App. 486, 514-15, 890 A.2d 140 (buyers’ claimed reliance on sellers’ misrepresentation not reasonably justifiable when buyers contractually agreed to rely on their own investigation and examination of premises and not on any representations made by sellers), cert. denied, 277 Conn. 928, 895 A.2d 798 (2006); Visconti v. Pepper Partners Ltd. Partnership, supra, 77 Conn. App. 683-84 (buyers could not reasonably rely on oral statements by sellers regarding absence of subterranean storage tanks on property when buyers had personal knowledge of soil contamination and were contractually bound independently to investigate the environmental condition of property).

The buyers, in response to a request for admissions, conceded that they had read the contract and entered into it only after consulting legal counsel. The provisions of § 5 required that the buyers inspect the premises prior to closing, and the buyers acknowledge that they did fully inspect the premises or at least were satisfied with their opportunity to do so. Similar to the contract clause in McCann Real Equities Series XXII, LLC, § 5 (a) of the contract provided that the sellers not make “any representation or promise upon which the [buyers have] relied concerning any aspect of this transaction, including, but not limited to, the condition, quality, use or value of the [premises.” (Emphasis added.) The buyers further agreed to accept the premises in an “as is” condition and “with all faults.” There is therefore no genuine issue that § 8 created an affirmative representation that the premises were not in violation of local zoning regulations, nor that the buyers relied on this section to their detriment.

B

The buyers next contend that a genuine issue exists whether the “as is” and “with all faults” provisions of § 5 are limited to that section only and do not negate other sections of the contract. We disagree for the same reasons as previously articulated in part I B of this opinion and do not repeat that analysis.

C

The buyers also assert that a genuine question exists as to whether the sellers represented that no additional improvements were constructed or exterior alterations were made. Specifically, the buyers disagree with the trial court’s determination that the “survey update” section of the title affidavit did not constitute an affirmative representation that the sellers assured, guaranteed, or promised that the addition to the premises complied with local zoning regulations. We agree with the trial court that no affirmative representation in this section exists.

The “survey update” section of the title affidavit provides in relevant part: “(1) I/We have examined a certain survey of the property made by dated and entitled, ‘ ’. (2) There have been no additional improvements constructed or exterior alterations made since the date of this survey and the survey reflects the current status of the property.” The blank spaces of this section were never completed by either party. It is clear that this section makes no representation whatsoever that the premises complied with local zoning regulations. No piece of property is identified specifically, and the blank spaces are left unfilled indicating that a survey never took place. No representation can be discerned in § 2 of the “survey update” because the existence of any representation made by that section is dependent upon a survey being completed in the prior section. The trial court therefore correctly concluded that this portion of the title affidavit did not constitute an affirmative representation of any kind.

Ill

We next turn to the buyers’ claim that the trial court erred in finding that no genuine issue of material fact existed regarding the intentional misrepresentation and fraudulent inducement claims.

Our case law has construed fraudulent misrepresentation and intentional misrepresentation to be identical causes of action. Kramer v. Petisi, 285 Conn. 674, 684 n.9, 940 A.2d 800 (2008) (“[w]e . . . note that, at common law, fraudulent misrepresentation and intentional misrepresentation are the same tort”). This court has also used the terms fraudulent misrepresentation and fraudulent inducement interchangeably. See Harold Cohen & Co. v. Harco International, LLC, 72 Conn. App. 43, 50-51, 804 A.2d 218, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002); Dorsey v. Mancuso, 23 Conn. App. 629, 633, 583 A.2d 646 (1990), cert. denied, 217 Conn. 809, 585 A.2d 1234 (1991).

To assert a claim for intentional misrepresentation or fraudulent inducement, the buyers must prove that (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury. Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 777, 802 A.2d 44 (2002). We conclude that the trial court properly rendered summary judgment on this claim because the buyers raised no genuine issue of material fact to satisfy the second prong showing that the sellers knew that the premises lacked a certificate of occupancy.

According to his deposition testimony, Matz believed the contractor would provide a certificate of occupancy based on the construction contract’s warranties language that provided in relevant part: “Warranties . . . all applicable local, state, [n]ational codes and good engineering practice . . . .” Matz also testified during his deposition that he had found a receipt from the city of Danbury for a certificate of occupancy that he believed was indicative of issuance of a certificate of occupancy. The Danbury building department never informed Matz of any problematic issues relating to the 1980 addition either during construction or after the addition was built on the premises. The buyers raised no further factual issue in the record to dispute these facts or to show that the sellers possessed actual knowledge that a certificate of occupancy was never issued. We therefore conclude that the trial court committed no error in rendering judgment in favor of the sellers as to the intentional misrepresentation and fraudulent inducement claims.

IV

Finally, we consider the buyers’ contention that the trial court erred in finding no material issue of fact regarding whether the sellers committed a violation of CUTPA when the sellers conveyed title without first obtaining a certificate of occupancy. We agree with the trial court that, because the sellers did not primarily engage in the business of selling real estate, the CUTPA provisions do not apply to this transaction.

Section 42-110b (a) provides in relevant part that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” “Whether the defendant is subject to CUTPA is a question of law, not fact.” (Internal quotation marks omitted.) Muniz v. Kravis, 59 Conn. App. 704, 712, 757 A.2d 1207 (2000). However, claims made against noncommercial sellers of real property may fail on a determination that CUTPA does not apply to such transactions. 1 R. Langer, J. Morgan & D. Belt, Connecticut Unfair Trade Practices Act (1994) § 4.7, p. 142. “Moreover, a CUTPA violation may not be alleged for activities that are incidental to an entity’s primary trade or commerce.” (Internal quotation marks omitted.) Sovereign Bank v. Licata, 116 Conn. App. 483, 494, 977 A.2d 228, cert. granted on other grounds, 293 Conn. 935, 981 A.2d 1080 (2009). In McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., supra, 93 Conn. App. 523, this court held that a transaction to sell real property by an automobile dealership did not implicate any violation of CUTPA because the transaction was merely incidental to the sellers’ primary business of the sale and servicing of automobiles and the sellers were not “in the business” of selling real property.

Because the sellers in the present case are not in the business of selling real property, CUTPA is inapplicable to the transaction in this case. Matz sold the property to the buyers because he wanted to move his family’s trophy manufacturing and specialty gifts business to North Carolina. Luning wished to sell the property in order to help finance her retirement. Nothing in the record or the affidavits, exhibits and supporting documents attached to the motion for summary judgment or the opposition filed in response to it suggests that either of the sellers ever had engaged in the “trade or commerce” of selling real estate in the past or that they planned to do so in the future. The trial court therefore committed no error in rendering judgment in favor of the sellers as to the CUTPA violation claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The sellers and buyers each have two different versions of the written sales contract. In one version of the sales contract, § 8 (a) concludes with the phrase “provided the same are not being violated by the subject premises and the building thereon,” which was handwritten. In another version of the sales contract, § 8 (a) concludes with the phrase “provided there is no violation of the same.” The buyers reference the former language and the sellers reference the latter language in their respective briefs. Neither phrase alters our interpretation that § 8 (a) made no affirmative representations regarding certificates of occupancy.


author: BEAR, J.

text:
    KATHLEEN M. BUDRAWICH v. EDWARD BUDRAWICH, JR.
    (AC 32215)
    DiPentima, C. J., and Bear and Lavery, Js.

      Argued October 13
    officially released November 29, 2011

      Lori Welch-Rubin, with whom, on the brief, was Noah Eisenhandler, for the appellant (defendant).

      Louise T. Truax, with whom, on the brief, was Mary T. Surette, for the appellee (plaintiff).
   Opinion

BEAR, J.

The defendant, Edward Budrawich, Jr., appeals from the postdissolution judgment of the trial court, modifying certain financial orders in favor of the plaintiff, Kathleen M. Budrawich. On appeal, the defendant claims that the court improperly (1) modified child support and ordered him to pay, in addition to $100 in weekly child support, a specific dollar amount each week for anticipated expenses related to the children, (2) modified the personal property award and (3) ordered him to pay a definite amount as satisfaction of an order that he transfer to the plaintiff 55 percent of restricted stock that was not vested at the time of the judgment of dissolution. We reverse the judgment of the trial court.

The following facts are relevant to our resolution of the issues on appeal. The parties were married in 1982, and three children were bom of the marriage — the first in March, 1989, the second in April, 1992, and the third in June, 1995. The plaintiff filed an action seeking dissolution of the parties’ marriage in June, 2004. In June, 2006, the parties reached an agreement regarding a parenting plan, which the court found to be in the best interests of the children. Accordingly, it approved and incorporated the agreement by reference into the judgment of dissolution. The parties had agreed, in part, that neither of them would be responsible for child support payments to the other because they were sharing physical custody of the children. They also agreed, however, that they would share equally in the expenses of the children, including such things as sports expenses, dance expenses, college application and preparation expenses and additional identified categories of expenses. Each party was to submit proof of the payment of these expenses to the other party on the first day of the month following the occurrence of such expenses, and the other party was to reimburse 50 percent of those costs by the fifteenth of the month. The parties also entered into a binding arbitration agreement in November, 2006, and a corrected decision and award was issued on May 30, 2007, which the court approved at the time of dissolution. The arbitrator decided, in part, that the defendant would have first choice of any items located in the plaintiffs garage or cellar and that the plaintiff could have or dispose of the items that were remaining thereafter. After approving the parties’ agreement and the decision of the arbitrator, on November 28, 2007, the court rendered judgment dissolving the parties’ twenty-five year marriage.

Subsequently, each of the parties filed motions for contempt alleging that the other was not in compliance -with the orders of the court, including the plaintiffs May 21, 2009 motion alleging that the defendant was in contempt for failing to transfer stock options to the plaintiff and the defendant’s July 30, 2009 motion alleging that the plaintiff was in contempt for failing to comply with the arbitration decision incorporated in the judgment. On November 18, 2008, the plaintiff also filed a motion for modification of child support, which included a requested modification as to the method of payment of the additional expenses on behalf of the minor children, on the ground that the defendant’s income had increased significantly and that he had failed to reimburse the plaintiff his 50 percent of the additional expenses of the children. On December 31, 2009, the court rendered its decision on these motions. On January 13, 2010, the plaintiff filed a motion for clarification of the court’s decision. On January 19, 2010, the defendant also filed a motion for clarification. Despite denying both motions, on March 23, 2010, the court issued an order clarifying its December 31, 2009 decision. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly modified the parties’ agreement as to child support, ordering him to pay $100 per week, and further erred in ordering him to pay, in addition to $100 per week for child support, the specific dollar amount of $363 weekly as his contribution toward the children’s expenses. He argues, inter alia, that the parties had agreed to deviate from the child support guidelines because they were sharing physical custody of the children and that the shared custody arrangement had not changed. He explains that with the court’s modification, his total support now is $463, which exceeds the child support guidelines, fails to take into consideration the parties’ shared custody arrangement and is not based on evidence found in the record. He also contests the court’s finding that the plaintiffs income had decreased substantially since the dissolution. We agree that the court’s order was improper.

“General Statutes § 46b-86 governs the modification of a child support order after the date of a dissolution judgment. . . . Section 46b-86 (a) permits the court to modify child support orders in two alternative circumstances. Pursuant to this statute, a court may not modify a child support order unless there is first either (1) a showing of a substantial change in the circumstances of either party or (2) a showing that the final order for child support substantially deviates from the child support guidelines. . . . Both the substantial change of circumstances and the substantial deviation from child support guidelines’ provision establish the authority of the trial court to modify existing child support orders to respond to changed economic conditions. The first allows the court to modify a support order when the financial circumstances of the individual parties have changed, regardless of their prior contemplation of such changes. The second allows the court to modify child support orders that were once deemed appropriate but no longer seem equitable in the light of changed social or economic circumstances in the society as a whole. . . .

“As to the substantial change of circumstances provision of § 46b-86 (a), [w]hen presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and . . . make an order for modification. ... A party moving for a modification of a child support order must clearly and definitely establish the occurrence of a substantial change in the circumstances of either party that makes the continuation of the prior order unfair and improper. . . . The power of the trial court to modify the existing order does not, however, include the power to retry issues already decided ... or to allow the parties to use a motion to modify as an appeal. . . . Rather, [t]he court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties. . . . The inquiry, then, is limited to a comparison between the current conditions and the last court order. . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances.” (Citations omitted; internal quotation marks omitted.) Weinstein v. Weinstein, 104 Conn. App. 482, 491-93, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008).

The following additional facts are relevant to our analysis. The parties’ agreement, which was incorporated in the judgment of dissolution, provided that the parties would share custody of their children and that “[n]either party shall pay child support to the other at the present time, based upon the shared physical custody situation presently in place. The parties agree to deviate from the [c]hild [sjupport [guidelines on this basis.” The agreement also provided that the parties would share the expenses related to: camp; school activities, including, but not limited to, field trips, photographs, school supplies, classroom contributions, homecoming, prom and graduation; sport activities, including enrollment, uniforms, photographs and equipment; dance activities, including enrollment, costumes, photographs and equipment; and college applications, PSAT and SAT testing preparation and their results. The parties also agreed to share all reasonable medical expenses related to the children’s care. The agreement further provided that receipts for proof of payment of these expenses would be provided to the other party on the first day of the month following the incurrence of the expenses and that reimbursement would be made by the fifteenth of the month.

On the basis of a claimed substantial change in the defendant’s income and the defendant’s failure to reimburse the plaintiff for the children’s expenses in accordance with their agreement, the plaintiff filed a motion for modification of child support wherein she requested that the defendant be ordered to pay “an appropriate amount of child support” and a specific amount toward the children’s expenses on a quarterly basis. The motion further stated that the plaintiff would file an accounting with the defendant each quarter and that the defendant would be issued a credit for any excess payment, which would be applied to the next quarterly payment.

In a December 31, 2009 decision, the court found that the “plaintiffs income has substantially decreased to $110,000 per year and the defendant’s income has increased to $178,000 per year since the entry of the June 9,2006 order. At this time, the defendant’s income is $68,000 greater than the plaintiffs.” In an order clarifying the judgment, the court ordered, in part, that the defendant pay $100 per week for child support and $363 per week toward the children’s expenses, in lieu of the 50 percent contribution that had been agreed on previously.

The defendant complains on appeal that the combined child support order exceeds the child support guidelines, that the $363 for expenses has no basis in evidence and is “outside the extraordinary expenses permitted for an additional support order that deviates upwards from the [g]uideline[s],” that the court improperly compared the parties’ current income with their income as of June 9, 2006, rather than the date of the dissolution judgment, that the court improperly found that the plaintiffs income had decreased substantially, and that the court improperly modified the child support order when there was no change in the deviation criteria of shared custody of the children. We conclude that the court abused its discretion in failing to find the presumptive amount of child support pursuant to the guidelines and in issuing the combined child support order without justifying a deviation from the guidelines.

“To ensure the appropriateness of child support awards, General Statutes § 46b-215a provides for a commission to oversee the establishment of child support guidelines. General Statutes § 46b-215b requires that ‘[t]he . . . guidelines ... be considered in all determinations of child support amounts .... [T]here shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support .... A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the Commission for Child Support Guidelines under section 46b-215a, shall be required in order to rebut the presumption in such case.’

“The guidelines incorporate these statutory rules and contain a ‘schedule’ for calculating ‘the basic child support obligation,’ which is based on the number of children in the family and the combined net weekly income of the parents. Regs., Conn. State Agencies § 46b-215a-2b (f). Consistent with ... § 46b-215b (a), the guidelines provide that the support amounts calculated thereunder are the correct amounts to be ordered by the court unless rebutted by a specific finding on the record that the presumptive support amount would be inequitable or inappropriate. Regs., Conn. State Agencies § 46b-215a-3 (a). The finding must include a statement of the presumptive support amount and explain how application of the deviation criteria justifies the variance. Id.; see also General Statutes § 46b-215b (a). This court has stated that the reason why a trial court must make an on-the-record finding of the presumptive support amount before applying the deviation criteria is to ‘facilitate appellate review in those cases in which the trial court finds that a deviation is justified.’ Favrow v. Vargas, 231 Conn. 1, 29, 647 A.2d 731 (1994). In other words, the finding ‘will enable an appellate court to compare the ultimate order with the guideline amount and make a more informed decision on a claim that the amount of the deviation, rather than the fact of a deviation, constituted an abuse of discretion.’ Id.” Kiniry v. Kiniry, 299 Conn. 308, 319-20, 9 A.3d 708 (2010).

In the present case, although the parties earlier had agreed to deviate from the child support guidelines due, at least in part, to the shared custody arrangement, the plaintiff alleged a substantial change in circumstances because of the alleged substantial increase in the defendant’s income. The court, although recognizing that the parties previously had agreed to a deviation, and finding that the defendant’s income substantially had increased, made no findings relating to the modified order as to the presumptive amount of support under the guidelines, nor did it set forth any findings to justify a deviation from the presumptive amount of support under the guidelines. On this basis, we conclude that the court abused its discretion and that the matter must be remanded for a new hearing.

II

The defendant next claims that the court erred when it misread and modified the arbitrator’s decision and award on personal property, which had been incorporated by the court in the dissolution judgment. We agree.

“[C]ourts have no inherent power to transfer property from one spouse to another; instead, that power must rest upon an enabling statute. . . . The court’s authority to transfer property appurtenant to a dissolution proceeding rests on [General Statutes] § 46b-81. That section provides in relevant part: At the time of entering a decree . . . dissolving a marriage . . . the Superior Court may assign to either the husband or wife all or any part of the estate of the other. . . . General Statutes § 46b-81 (a). Accordingly, the court’s authority to divide the personal property of the parties, pursuant to § 46b-81, must be exercised, if at all, at the time that it renders judgment dissolving the marriage.” (Emphasis added; internal quotation marks omitted.) Hirschfeld v. Machinist, 131 Conn. App. 352, 358, 29 A.3d 159 (2011) (holding court cannot modify property award after judgment of dissolution enters).

The following additional facts are relevant to our analysis. The parties submitted to binding arbitration on a number of issues prior to the judgment of dissolution. On May 30, 2007, the arbitrator ordered in relevant part that the defendant “shall have the first choice of any items located in [the plaintiffs] garage or cellar. [The plaintiff] shall then have her choice of the remaining items. Anything left that neither party wants shall be donated to charity or disposed of by [the plaintiff].” The arbitrator’s decision was accepted by the court in its November 28, 2007 dissolution judgment. On or about July 30, 2009, the defendant filed a motion for contempt asserting that the plaintiff had failed to comply with the decision and award of the arbitrator. In its December 31, 2009 decision, specifically on the issue of the defendant’s contempt motion, the court, however, stated that the defendant “was to have first choice of any item located in the garage or cellar and [the] plaintiff was to have her choice of the remaining items which means everything after his one selection if she wanted the balance. [The] [defendant shall select the one item if he has never made a selection and it shall be his absolutely. If that item has been removed or sold by the plaintiff she shall recompense him for its value.”

The defendant contends on appeal that the court’s ruling is contrary to the arbitrator’s decision and award and to the prior orders of the court. He asks that we reverse the decision and remand the matter for a hearing on the value of the property that was in the plaintiffs garage and cellar because she has admitted that she has disposed of most of these items. The plaintiff argues, however, that the defendant waived any claim to this personal property by failing to make a timely effort to remove the property from her home or to provide a list of the items he wanted, despite her request that he do so. She also argues that the evidence showed that some of the items were destroyed in a flood and that the defendant’s wilful failure to effectuate the orders of the court in a timely manner should not be held against her. We agree that the court’s order was contrary to the arbitrator’s decision and award. Nevertheless, we farther conclude that the court, in its memorandum of decision, failed to make any relevant factual findings on the issues raised by this claim, and, therefore, the matter must be returned to the trial court for a rehearing on the defendant’s contempt motion and the plaintiffs defenses thereto.

Ill

The defendant’s final claim is that the court erred in ordering that he pay a definite sum to satisfy the court’s order regarding the transfer of stock and stock options. Specifically, he claims: “Because the restricted stock was unvested at the time of dissolution, the trial court erred when it ordered a definite amount to satisfy the transfer of the 55 [percent] of the stock and options awarded.” We conclude that the court’s order on the plaintiffs May 21, 2009 motion for contempt was improper and the matter must be remanded for a new hearing.

As explained previously in this opinion, “§ 46b-86 (a) deprives the Superior Court of continuing jurisdiction over that portion of a dissolution judgment providing for the assignment of property of one party to the other party .... A court, therefore, does not have the authority to modify the division of property once the dissolution becomes final. . . . [Despite this rule, however] the court . . . does have the authority to issue postjudgment orders effectuating its judgment.” (Citation omitted; internal quotation marks omitted.) Stechel v. Foster, 125 Conn. App. 441, 446-47, 8 A.3d 545 (2010), cert. denied, 300 Conn. 904, 12 A.3d 572 (2011). “[T]he trial court’s continuing jurisdiction to effectuate its prior judgments, either by summarily ordering compliance with a clear judgment or by interpreting an ambiguous judgment and entering orders to effectuate the judgment as interpreted, is grounded in its inherent powers, and is not limited to cases wherein the non-compliant party is in contempt . . . .” (Internal quotation marks omitted.) Fuller v. Fuller, 119 Conn. App. 105, 112, 987 A.2d 1040, cert. denied, 296 Conn. 904, 992 A.2d 329 (2010); see also Mickey v. Mickey, 292 Conn. 597, 604, 974 A.2d 641 (2009).

In this case, the court, at the time it entered the judgment of dissolution, ordered, in relevant part: “The balance of the parties’ assets listed on Attachment A shall be divided with the [plaintiff] receiving 55 [percent] and the [defendant] receiving 45 [percent] of the total. The assets shall be divided so that the [plaintiff] receives 55 [percent] of any liquid assets and the [defendant] receives 45 [percent] of any liquid assets.” Attachment A, in addition to listing saving accounts, individual retirement accounts, 401 (k) accounts and other marital property, also listed stock options, stock that was both vested and unvested, and restricted unvested stock. Each asset on Attachment A also had a listed fair market value.

On May 21, 2009, the plaintiff filed a motion for contempt, alleging that the defendant had failed to transfer to her the stock options, restricted stock and Pitney Bowes stock that had been awarded to her in the dissolution judgment. In response to that motion, the court ordered the defendant to pay “55 [percent] of the Pitney-Bowes stock options and restricted stock in the amount of $21,756.31.” The court, however, improperly ordered the defendant to pay a specific monetary amount rather than ordering him to transfer the actual stock and options that had been awarded to the plaintiff. Furthermore, the court failed to make any findings as to the dates on which the restricted or otherwise unvested stock became vested or the value of the stock upon vesting and whether the plaintiff suffered harm due to the defendant’s alleged failure to transfer the stock and options in a timely manner.

The judgment of the dissolution court awarded the plaintiff, inter alia, stock and options as listed on Attachment A. Accordingly, we agree with the defendant that the court improperly ordered him to pay to the plaintiff 55 percent of the fair market value, as of November 28, 2007, the date of dissolution, of the stock listed as “restricted stock (not [vjested 278 shares).” However, we conclude that it is necessary to remand the matter for a complete hearing on the issues raised by the plaintiffs May 21, 2009 motion for contempt.

The judgment is reversed and the matter is remanded for a new hearing on the defendant’s July 30, 2009 motion for contempt, the plaintiffs May 21,2009 motion for contempt and the plaintiffs November 18, 2008 motion for modification.

In this opinion the other judges concurred.

       The defendant also asserts that the “plaintiff moved for a modification of child support, claiming that [his] income had substantially increased and that her income had substantially decreased.” We note that our review of the plaintiffs motion reveals that she moved for a modification on the basis of a substantial increase in the defendant’s income. The motion made no mention of a decrease in the plaintiffs income, and, although we agree that the court found that the plaintiffs income had decreased and that the defendant’s income had increased, the plaintiffs claim of a substantial change of circumstances was not based on any decrease in her income. It was based solely on the alleged substantial increase in the defendant’s income. Additionally, we note that during the hearing on the motions, the plaintiffs counsel also requested that the court consider that the children now were at the plaintiffs home every day after school and that the parties were not sharing custody to the same extent as they had been at the time of dissolution.

       The June 9, 2006 order was a pendente lite order. The date of the dissolution was November 28,2007. The court should have applied the facts existing on the date of the dissolution when the final orders were entered instead of those existing on the earlier date in determining whether a modification was justified. See General Statutes § 46b-86; Weinstein v. Weinstein, supra, 104 Conn. App. 491-93 (court’s inquiry is limited to comparison between current conditions and conditions at time of last court order).

       Because we conclude that the court abused its discretion in failing to find the presumptive amount of child support under the guidelines and in entering a combined support order without justifying a deviation from the guidelines, we further conclude that a consideration of the defendant’s related arguments regarding the child support order are unnecessary, the matter necessarily having to be remanded for a new hearing.

       In Kiniry v. Kiniry, supra, 299 Conn. 325, our Supreme Court explained: “[I]t is good policy to establish a presumptive support amount in cases involving shared custody and equal parenting time because a guideline of this nature provides courts with a means of comparing a party’s request for child support with a fair and objective standard . . . thus enabling courts to malee more informed decisions and ensuring uniformity and consistency in their application of the guidelines. The same rationale applies to cases in which one or both parties seek modification of an existing child support order to alter or to eliminate a present financial award or to establish a financial award where none existed before due to changes in the parties’ circumstances.” (Citation omitted.)

       We further note, however, that the court’s modification of child support erroneously was based on the alleged changes in the parties’ gross income rather than their net income. “This court and other courts in our state have repeatedly indicated that ‘[i]t is well settled that a court must base child support and alimony orders on the available net income of the parties, not gross income.’ Morris v. Morris, 262 Conn. 299, 306, 811 A.2d 1283 (2003); Auerbach v. Auerbach, 113 Conn. App. 318, 338, 966 A.2d 292, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009); see also Fahy v. Fahy, 227 Conn. 505, 517, 630 A.2d 1328 (1993) (standard for determining alimony is net income, not gross income); Collette v. Collette, 177 Conn. 465, 469, 418 A.2d 891 (1979) (same); Tobey v. Tobey, 165 Conn. 742, 747, 345 A.2d 21 (1974) (‘Gross earnings is not a criterion for awards of alimony. It is the net income, which is available to the defendant, which the court must consider.’); Heard v. Heard, 116 Conn. 632, 634, 166 A. 67 (1933) (net income used to determine alimony); Ludgin v. McGowan, 64 Conn. App. 355, 358-59, 780 A.2d 198 (2001) (reversing trial court’s financial orders when court relied on parties’ gross rather than net income); Febbroriello v. Febbroriello, 21 Conn. App. 200, 202, 572 A.2d 1032 (1990) (trial court must base periodic alimony and child support orders on available net income); Kaplin v. Kaplan, 1 Conn. Sup. 175, 175-76 (1935) (modifying alimony based on defendant’s net income).” Maturo v. Maturo, 296 Conn. 80, 140, 995 A.2d 1 (2010) (McLachlan, J., concurring).

       We are mindful that the court, during the plaintiffs testimony, had a brief conversation with counsel and explained that it recognized that the arbitrator’s decision awarded the defendant first choice of all items in the plaintiffs garage and cellar. It questioned, however, whether, because there had been a lapse of between two and three years since that decision without the defendant seriously attempting to retrieve those items, the plaintiff had the right to do with the items whatever she wanted. The court, however, did not make any findings in its memorandum of decision related to this issue.
      Additionally, during the hearing, counsel asked the defendant if he could put together a list of all the items that he wanted, and he said that he could do so. The court then asked that the defendant provide it, before 5 p.m., with a list of all the items the defendant was seeking. In her posttrial memorandum, the plaintiff did not object to returning several items that the defendant sought but stated that the parties’ son was using several of the specified items, and she also explained that many of the items either had been discarded because of damage or were never among the items in her garage or cellar.

       Specifically, Attachment A provides:
      “Attachment A
      Budrawich fMlarital fPlropertv
      Owner and Asset. Fair Market Value
      Wife — Bank of America savings account $ 3,038.04
      Wife — Bank of America checking -0-
      Wife — stock options $ 2,060.00
      Wife — IRA $ 425,768.25
      Wife — Pitney Bowes pension $ 97,676.00
      Wife — Schwab IRA $ 31,382.30
      TOTAL $ 559,924.59
      Husband — Bank of America savings $ 2,620.41
      Husband — Bank of America checking $ 343.00
      Husband — Pitney Bowes stock $ 18,205.04
      Husband — Columbia Core IRA $ 12,321.14
      Husband — Columbia Core short-term bond IRA $ 7,988.03
      Husband — Schwab IRA $ 10,738.35
      Husband — T. Rowe Price 401 (k) $ 30,886.17
      Husband — Merrill Lynch (Chrysler) 401 (k) $ 709,793.39*
      Millick and Sexton $ 179,945.00
      Daimler Chrysler pension $ 91,330.00
      Stock options (850 at $45.93 25% vested) $ 9,972.62
      Restricted Stock (not [v]ested 278 shares) $ 13,046.54
      TOTAL $1,087,189.69
      Escrow Account (proceeds from sale of home) $179,945.00
      [The plaintiff] received $550,000 and [the defendant] received $750,000 from the sale of the marital home.
      [The plaintiff] liquidated $359,278.00 composed of stock and a 401k loan to purchase her replacement home from 2005-2007. In 2006, [the defendant] liquidated $28,245 of stock and in July 2007, took a $310,000 loan from his *Daimler Chrysler 401k above.”


author: GRUENDEL, J.

text:
    JOSEPH LEWIS v. TINA E. DREW ET AL.
    (AC 32268)
    Gruendel, Robinson and SchaUer, Js.

      Argued October 14
    officially released November 29, 2011

      Robert N. Saraco, Jr., for the appellant (plaintiff).

      Ronald D. Williams, Jr., for the appellee (defendant state of Connecticut).
   Opinion

GRUENDEL, J.

The plaintiff, Joseph Lewis, appeals from the judgment of the trial court denying his motion to set aside a verdict partially in his favor. He claims that the court abused its discretion in denying that motion in light of an allegedly improper jury instruction on apportionment of liability at trial. We affirm the judgment of the trial court.

This case concerns injuries sustained by the plaintiff while a prisoner in the custody of the commissioner of correction. From the evidence adduced at trial, the jury reasonably could have found the following facts. In the early hours of September 9, 2004, the plaintiff was a rear seat passenger in a motor vehicle (vehicle) owned by the state of Connecticut and operated by Richard J. Bellemare, an employee of the department of correction. The vehicle at that time was travelling northbound on Interstate 95 to transport the plaintiff from the Bridgeport correctional facility to the Gates correctional facility in Niantic. Just before exit 44 in West Haven, an unidentified tractor trailer truck drifted left from the center lane into the vehicle’s lane, striking the vehicle. Bellemare lost control of the vehicle, which crashed into the median barrier before coming to rest in the center of the highway. Moments later, the vehicle was struck by another motor vehicle operated by Tina E. Drew. The plaintiff sustained multiple injuries, including sprains of the cervical and lumbar spine and a labra! tear of the right shoulder.

The plaintiff thereafter commenced a civil action. The operative complaint at the time of trial consisted of two counts against the defendant state of Connecticut. In the first count, the plaintiff alleged that his injuries and damages were caused by the negligence of the state “acting by and through . . . Bellemare . . . .” The second count set forth a claim against the state for uninsured motorist benefits, asserting that at the time of the accident the vehicle was insured under an insurance policy with the state that provided $20,000 in uninsured motorist benefits. In its answer, the state admitted, inter alia, that the plaintiff “is afforded uninsured motorist coverage up to $20,000 and that said coverage is triggered by the negligence of the unidentified [tractor trailer] operator who fled the accident scene.”

A jury trial followed, at the conclusion of which the jury found in favor of the state on count one and in favor of the plaintiff on count two. The jury awarded the plaintiff $182,979 in damages, which the court subsequently reduced upon motion of the state in accordance with the $20,000 uninsured motorist policy limit. The plaintiff also moved to set aside the verdict, claiming that the court improperly charged the jury on the apportionment of liability regarding the negligence count. The court denied that motion and this appeal followed.

The plaintiffs sole contention is that the court abused its discretion in denying his motion to set aside the verdict. He argues that the court improperly failed to charge the jury that it could apportion liability among the unidentified tractor trailer driver, in addition to Bellemare and Drew, with respect to the first count of negligence against the state. Because the plaintiff neither submitted a request to charge nor took an exception to the court’s instruction in that regard, we decline to entertain the merits of that unpreserved claim.

As the court noted in its order denying the plaintiffs motion, the parties were required to file proposed jury instructions on the first day of evidence. The court further asked the parties to file any proposed verdict forms and interrogatories. It is undisputed that the plaintiff did not comply therewith.

During its instruction to the jury, the court informed the jury that if it found Bellemare negligent in the operation of the vehicle, it then must decide if that negligence was a legal cause of the plaintiffs claimed injuries. The court continued: “If you have found that the [state] is negligent [under count one], you must then decide what proportion of the plaintiffs injuries were caused by the [state’s] negligence and what proportion of the injuries were caused by the negligence of Tina Drew. Connecticut law requires that the jury specify the percentage of negligence that proximately caused the injury in relation to 100 percent, attributable to each party whose negligent actions were a proximate cause of the injury.

“So, as I said, you’ve heard evidence that the plaintiff also brought suit against Tina Drew, alleging that her negligence caused injury to the plaintiff. . . . [Assuming that you have found . . . Bellemare negligent . . . [y]ou may determine that one party is fully responsible while the other is not responsible at all or you may determine that they are both responsible. In apportioning the negligence . . . consider the nature of the negligence and the degree and extent to which the act of negligence was a proximate cause of the accident. Consider the totality of the acts and the conduct of each operator and the degree to which, if any, contributed to the occurrence. [B]ear in mind that the total percentage of negligence must be 100 percent . . . .”

With respect to count two, the court began its instruction by explaining to the jury the purpose of uninsured motorist coverage. It then stated: “For the state to be liable to the plaintiff [under count two], the plaintiff must show that the [tractor trailer] driver was negligent, that the negligence caused injury to the plaintiff and that the [tractor tráiler] driver did not have any insurance. The state has admitted that it provided uninsured motorist’s coverage to the plaintiff for the subject accident. In addition, it has admitted that the operator of the tractor trailer fled the scene and was not identified and that that triggers the uninsured motorist’s coverage provided by the state. Accordingly, the only issues in dispute concerning the second count of the complaint are, one, whether the accident was caused by the negligence of the tractor trailer driver, and, if so, two, whether that negligence caused injury and damages claimed by the plaintiff. If you find that the accident was caused by negligence of the tractor trailer driver and that the negligence caused the injury to the plaintiff, you should find in favor of the plaintiff and thereafter follow my instructions on damages.” Furthermore, in instructing the jury on the verdict forms before it, the court explained how the jury should proceed both if it found in favor of the plaintiff on count one “against [the state] as to negligence” and if it found in favor of the plaintiff on the second count concerning uninsured motorist benefits.

The plaintiff did not take an objection to the aforementioned instructions. His failure to do so is fatal to his claim on appeal. It is well established under Connecticut law that “[a] party may preserve for appeal a claim that a jury instruction was improper either by submitting a written request to charge or by taking an exception to the charge as given.” Pestey v. Cushman, 259 Conn. 345, 372-73, 788 A.2d 496 (2002); see also Menon v. Dux, 81 Conn. App. 167, 171-72, 838 A.2d 1038, cert. denied, 269 Conn. 913, 852 A.2d 743, cert. denied, 543 U.S. 1003, 125 S. Ct. 623, 160 L. Ed. 2d 463 (2004). Our rules of practice likewise set forth these prerequisites to appellate review. See Practice Book §§ 16-20 and 42-16.

The plaintiff in the present case did not submit a written request to charge as to apportionment of liability. Moreover, the transcript of February 22, 2010, indicates that he did not take an exception to the instruction of which he now complains. In his appellate brief, the plaintiff points to a colloquy with the court, in which the defendant voiced a concern over a lack of clarity in the court’s instructions on the two counts, as evincing a distinct objection on his part. The transcript belies that claim. In that colloquy, counsel for the state raised an objection as to the court’s instructions, suggesting that the court’s instruction on “how count one and count two work” was unclear. Significantly, the plaintiffs counsel responded, “I believe Your Honor’s instructions were pretty clear on the issue between counts one and two.”

Counsel for the state nevertheless argued that the court should instruct the jury that it must either “find in favor of the plaintiff on count one only if it’s proven that the negligence of . . . Bellemare caused the accident” or “find in favor of the plaintiff on count two if you find it proven that the negligence of the tractor trailer driver was the cause of the accident . . . .’’He maintained that the jury could only find, as the court stated, “one or the other.” When the court inquired as to “why couldn’t the jury find both the tractor trailer driver was negligent and . . . Bellemare was negligent,” counsel for the state replied that negligence cannot be apportioned against the tractor trailer driver “because he’s unidentified.” At that time, the plaintiffs counsel expressed his disagreement with the proposition that “if [the jury finds] the uninsured [tractor trailer driver] negligent, they can’t find [Bellemare negligent]?” The court, in apparent agreement with the plaintiffs counsel, thereafter declined to instruct the jury as requested by counsel for the state.

Under our rules of practice, a party must “state distinctly the matter objected to and the ground of objection. . . .” Practice Book § 16-20. We find untenable the plaintiffs position that, by indicating his disagreement with the aforementioned position of the state, the plaintiff thereby “objected to the charge because it would reasonably lead the jury to conclude that it could apportion negligence between . . . Bellemare and . . . Drew as to the [f]irst [c]ount, but could not include in the jury’s apportionment exercise the third alleged tortfeasor, the unidentified tractor trailer driver sued through the [uninsured motorist policy] in the [s]econd [c]ount.” Although distinctly stated in his appellate brief, no such objection was uttered before the trial court immediately after the charge was delivered. See id. It bears repeating that the plaintiff, in disagreeing with the state’s objection, at that time opined that the court’s “instructions were pretty clear on the issue between counts one and two.”

“Our review of the trial court’s action on a motion to set aside the verdict involves a determination of whether the trial court abused its discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness . . . .” (Internal quotation marks omitted.) O’Briskie v. Berry, 95 Conn. App. 300, 305-306, 897 A.2d 605 (2006). In the face of the plaintiffs noncompliance with the prerequisites to appellate review of his allegation of instructional impropriety, we cannot say that the court abused its discretion in denying the motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as defendants in the plaintiffs original complaint were Drew, Janet J. Barrett and Bellemare. The plaintiff withdrew the action with respect to Drew and Barrett on May 22, 2007, and the court, on January 2, 2008, dismissed the action against Bellemare, concluding that General Statutes § 4-165 afforded him statutory immunity from suit.

       Prior to trial, the court ruled that the jury would not be apprised as to the precise amount of uninsured motorist coverage under the policy.

       After delivering its initial instructions and outside the presence of the jury, the court inquired as to whether the plaintiff had any objections. In response, the plaintiff raised objections to an instruction concerning bias and to the nature of a verdict form detailing economic damages, neither of which is at issue in this appeal. He voiced no objection concerning the apportionment of liability.

         Titled “Requests to Charge and Exceptions; Necessity for,” Practice Book § 16-20 provides: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. The exception shall be taken out of the hearing of the jury.” Practice Book § 42-16, the counterpart to Practice Book § 16-20 for criminal matters, contains identical language.

       At oral argument, the plaintiff conceded that he did not take an explicit exception to the court’s instruction, but rather characterized his exception as an “implicit” one.

       In its order denying the motion to set aside the verdict, the court emphasized that the jury was free to find in favor of the plaintiff on both counts. During oral argument before this court, the plaintiffs counsel specifically was asked if the court instructed the jury that it could not find in favor of the plaintiff on both counts. Counsel responded affirmatively, stating that the court “instructed that it is either A or B, not both, [the court] did instruct that to the jury, that if you find in favor of the plaintiff on count one, you cannot on count two” and that the court’s instructions “said it has to be A or B, and can’t be both.” We carefully have reviewed the February 22, 2010 transcript and find no support for the plaintiffs representation. At no point in that proceeding did the court instruct the jury that it could not find in favor of the plaintiff on both counts.