author: BEACH, J. MCDONALD, J.,

text:
    MIDDLESEX MUTUAL ASSURANCE COMPANY v. MARGUERITE A. KOMONDY
    (AC 29665)
    Beach, Robinson and McDonald, Js.

      Argued April 15, 2009
    officially released March 30, 2010

      Robert T. Rimmer, for the appellant (defendant).

      Heather J. Adams-Beman, for the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant, Marguerite A. Komondy, appeals from the judgment of the trial court granting the application to confirm an arbitration award filed by the plaintiff, Middlesex Mutual Assurance Company, and denying her motion to vacate the award. The defendant claims that the court improperly (1) confirmed the award and denied her motion to vacate and (2) failed to issue an order specifying the manner of payment of the award. We reverse in part the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s appeal. The defendant owned a home in Chester. She purchased the home before she married Christopher Komondy and has been at all relevant times the sole owner of the property. The defendant was insured against loss to her home pursuant to a “restora-tionist” policy (policy) issued by the plaintiff. The policy provides coverage that includes payment of the amount necessary to restore a home to its original state after a fire or other loss.

On March 5, 2005, while the policy was in effect, the defendant’s home was destroyed in a fire. The defendant and the plaintiff were unable to agree on an estimate of an amount necessary to restore the property, and the plaintiff demanded arbitration to resolve the dispute. Following a provision in the policy, the parties submitted the dispute to arbitration by appraisers. The submission directed the arbitrators to determine the actual cash value and the replacement cost of the property. Each party appointed an appraiser to act on its own behalf, and the appraisers in turn selected an umpire for the arbitration.

Arbitration proceeded. A total award in the amount of $1,794,919.76 for “replacement cost damage” was signed by the two appraisers and the umpire on August 1, 2007. David C. Jones, the appraiser appointed by the defendant, sent a letter providing notice of the award to the defendant’s address. The letter was dated August 9, 2007, and was mailed on August 14, 2007. The envelope containing the letter was addressed only to Christopher Komondy; the salutation of the letter itself was to “Chris and Marguerite.” Jones also faxed a copy of the award to Christopher Komondy on August 14,2007. The cover sheet of the fax was directed to “Chris.” The defendant testified that she recognized the letter as a document that Christopher Komondy had received from Jones.

The plaintiff filed an application for confirmation of the award on August 27, 2007. On October 10, 2007, the defendant objected to the application and moved to vacate the award. On February 19, 2008, the court confirmed the award and denied the defendant’s motion to vacate as untimely because it was not filed within thirty days of notice of the reward, as required by General Statutes § 52-420 (b). The court concluded that the defendant “received actual notice via her husband [Christopher Komondy],” and “[t]here is no dispute that [Christopher] Komondy was serving de facto, as [the defendant’s] agent and representative in the discussions and negotiations with [the plaintiff].” (Emphasis in original.) This appeal followed.

I

We first address the defendant’s claim that the court improperly confirmed the arbitration award and denied her motion to vacate, in which she claimed that she never properly received written notice of the award. We disagree with her claim.

Unless a provision in the arbitration agreement provides otherwise, General Statutes § 52-416 requires that notice of an arbitration award be given to parties within thirty days from the date the hearing or hearings are completed. Hayes v. Travelers Indemnity Co., 26 Conn. App. 418, 421, 601 A.2d 555 (1992). Section 52-416 (b) specifically states that “[w]ritten notice of the award shall be given to each party.” The statute does not specify the manner in which notice must be given to the parties. The arbitration hearings were completed on August 1, 2007. The letter and the fax were sent by Jones on August 14, 2007, within the prescribed period.

The defendant, however, argues that there is no evidence in the record that anyone gave written notice of the award to her personally. This argument is based on the facts that the defendant at all times relevant was the sole owner of the property, and both the fax and the envelope containing the letter were addressed to Christopher Komondy. We disagree with the defendant because Christopher Komondy possessed apparent authority to receive the written notice on the defendant’s behalf.

We begin with the applicable standard of review. Whether Christopher Komondy had apparent authority to accept notice on behalf of the defendant is an issue of fact that we review under the clearly erroneous standard. See Host America Corp. v. Ramsey, 107 Conn. App. 849, 858, 947 A.2d 957 (“[t]he issue of apparent authority is one of fact” [internal quotation marks omitted]), cert. denied, 289 Conn. 904, 957 A.2d 870 (2008); Union Trust Co. v. McKeon, 76 Conn. 508, 514, 57 A. 109 (1904) (“the existence of an apparent agency is essentially a question of fact”). The clearly erroneous standard of review provides that “[a] court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006). Because the defendant does not claim that the notice given to Christopher Komondy was defective, we must determine only whether the court’s finding that Christopher Komondy had apparent authority was clearly erroneous.

“Apparent authority must be derived not from the acts of the agent but from the acts of his principal. [T]he acts of the principal must be such that (1) the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority, and (2) in consequence thereof the person dealing with the agent, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority.” (Internal quotation marks omitted.) Hallas v. Boehmke & Dobosz, Inc., 239 Conn. 658, 674, 686 A.2d 491 (1997).

“[A] course of conduct . . . may give rise to the apparent authority of one spouse to act on behalf of the other. ... [A spouse] habitually permitted by [the other spouse] to attend to some of [his or her] business matters may be found to have authority to transact all of [his or her] business affairs. . . . An act routinely performed by one spouse for the other may give rise to apparent authority for that spouse to perform the same or a closely related act.” (Internal quotation marks omitted.) Lopez v. United States, 201 F.3d 478, 482 (D.C. Cir. 2000), quoting 1 Restatement (Second), Agency § 22, comment (b) (1958); see also Cyclone Fence Co. v. McAviney, 121 Conn. 656, 659, 186 A. 635 (1936).

The defendant and Christopher Komondy were married and lived together. These facts alone do not create apparent authority for him to accept written notice of the award on behalf of the defendant. See Cyclone Fence Co. v. McAviney, supra, 121 Conn. 659. The following additional facts, however, support the court’s conclusion that he was acting as the defendant’s agent with regard to the various communications between those involved in the arbitration process. At trial, the defendant testified that Christopher Komondy was the one who was actively communicating with Jones and representatives of the plaintiff regarding the arbitration process. She testified that “ [everybody seemed to be sending all communications to [Christopher Komondy].” The defendant further testified that she never notified anyone involved in the arbitration process that they should be speaking to her instead of Christopher Komondy. Christopher Komondy testified at trial that he personally made telephone calls to and received them from Jones and William M. Zimmer, a claims representative of the plaintiff, on multiple occasions. He also testified that he corresponded via mail on multiple occasions with Jones and Zimmer. Zimmer testified that he dealt primarily with Christopher Komondy and not the defendant. Both the envelope containing the letter and the fax from Jones were addressed to Christopher Komondy. Jones testified that by sending the letter and the fax, he believed that he was providing written notice of the award to “the Komondys.”

The court reasonably could have found that the defendant knowingly permitted Christopher Komondy to act as though he possessed authority to receive communications between the parties to the arbitration, including the written notice of the award, on her behalf. Moreover, the court reasonably could have found that Jones believed that Christopher Komondy had authority to receive notice of the award. These conclusions are supported by the testimony that Christopher Komondy handled all of the communications and that the defendant never informed anyone that she should be the point of contact instead of Christopher Komondy. We conclude that the court’s finding that Christopher Komondy had apparent authority to accept written notice on behalf of the defendant was not clearly erroneous. Because the defendant’s agent received the fax on August 14, 2007, and presumably received the letter shortly thereafter, the defendant’s motion to vacate the award filed on October 10, 2007, properly was denied as untimely pursuant to § 52-420, and the application to confirm properly was granted.

n

The defendant further argues that the court, having confirmed the award, improperly failed to specify the manner of its payment as required by General Statutes § 52-421 (b). Specifically, the defendant argues that the court improperly failed to require that the award be paid in a lump sum within sixty days as required by General Statutes § 38a-307 and subsection 10 of § I of the policy. We disagree.

“Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Pritchard v. Pritchard, 103 Conn. App. 276, 283, 928 A.2d 566 (2007).

We first note that neither § 38a-307 nor subsection 10 of § I of the policy is controlling. Both concern standard fire insurance policies, by the terms of which the company agrees to pay actual cash value. Section 38a-307 sets forth the standard form fire insurance policy, which provides coverage to an insured for loss to property “to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss . . . .” General Statutes § 38a-313 provides: “Nothing contained in section 38a-307 shall be construed to preclude insurance indemnifying the insured against the amount actually expended, in excess of actual cash value at the time any loss or damage occurs, to repair, rebuild or replace the insured property.” Section 38a-307 does not apply to “restora-tionist” policies such as the one at issue in the present case because it expressly governs only coverage for actual cash value, not coverage for replacement cost. This distinction is made more clear by § 38a-313.

Moreover, in context, the specific policy provision cited by the defendant regarding payment within sixty days, subsection 10 of § I, applies to actual cash value, not replacement cost. In context, subsection 3 (a) (2) of § I specifically refers to the timing of payment for replacement cost: “We will pay no more than the actual cash value of the damage until actual repair, restoration or replacement is complete. Once actual repair, restoration or replacement is complete, we will settle the loss . . . .” Subsection 3, rather than subsection 10, applies specifically to the defendant’s replacement costs and does not direct payment to be made within sixty days.

In any event, the court declined to issue an order specifying the manner of payment on the ground that § 52-421 (b) permits a court to direct the manner of enforcement of an award only when the award requires the performance of any act other than the payment of money. It concluded that “[b]ecause the award in this case is exclusively monetary, the court does not believe it has the authority to direct that the award be disbursed ... as requested by the defendant.” The court further concluded that it was limited to confirming the award by our decision in Amalgamated Transit Union Local 1588 v. Laidlaw Transit, Inc., 33 Conn. App. 1, 632 A.2d 713 (1993). In that case, this courtheldthat General Statutes § 52-417 “contains no provision for finding facts or resolving additional disputes.” Id., 5. Section 52-417 provides that in ruling on an application to confirm an arbitration award “[t]he court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.” In the present case, the court concluded that it was limited to either confirming, modifying or vacating the award and was without authority to issue an order specifying the manner of its payment.

We agree with the court and conclude that in these circumstances the court was without authority to issue an order specifying the manner of payment within the context of the application to confirm this award. There is no requirement in § 52-421 (b) that the court, in confirming an award, specify the manner of payment. Moreover, § 52-417 “sets forth the authority of the trial court in ruling on an application to confirm an arbitration award.” Amalgamated Transit Union Local 1588 v. Laidlaw Transit, Inc., supra, 33 Conn. App. 5. “The trial court lacks any discretion in confirming the arbitration award unless the award suffers from any of the defects described in . . . §§ 52-418 and 52-419.” Id., 4. In Amalgamated Transit Union Local 1588, we stated that, absent a motion to vacate, modify or correct filed within the thirty day time limit specified in § 52-420, § 52-417 requires the court to confirm the award and “contains no provision for finding facts or resolving additional issues.” (Emphasis added.) Id., 4-5. As we stated in part I of this opinion, the defendant failed to file a timely motion to vacate the award. Thus, the court was limited to confirming or not confirming the award and was without authority to resolve additional issues such as specifying the manner of payment.

Furthermore, arbitrators are limited to deciding the issues included in the submission. See General Statutes § 52-419 (a); see also Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn. App. 224, 228-29, 755 A.2d 990, cert. denied, 254 Conn. 939, 761 A.2d 760 (2000). The submission in this case requested resolution only of the appropriate numeric values and the time in which the restoration was to be completed. The award addressed only those values, and the court’s resulting judgment confirmed only those values. Any issue of manner of payment was appropriately not addressed in the ruling confirming the award.

Finally, the award of the arbitrators, dated August 1, 2007, provided that the “period of restoration shall not exceed February 1, 2009.” During the pendency of this appeal, the time period expired. In these circumstances, the case is remanded to the trial court for further proceedings in order to set a new date.

The judgment is reversed only as to the restoration date and the case is remanded for further proceedings consistent with this opinion. The judgment is affirmed in all other respects.

In this opinion ROBINSON, J., concurred.

MCDONALD, J.,

concurring in part and dissenting in part. I agree with part I of the majority opinion. I also agree with the portion of part II of the majority opinion that reverses the restoration date award and remands the matter to the trial court to set a new date.

I disagree as to part II of the majority opinion that sustains the court’s decision not to direct progress payments while enforcing the award. I would hold that, contrary to the majority’s reading of General Statutes § 52-421, the court had the authority to direct progress payments during the restoration period, so that the defendant, Marguerite A. Komondy, could have completed the restoration within the restoration period.

Section 52-421 (b) provides in relevant part: “When the [arbitration] award requires the performance of any other act than the payment of money, the court . . . may direct the enforcement thereof in the manner provided by law for the enforcement of equitable decrees.” The court read § 52-421 as limiting the authority of the court to enter an order for progress payments. The award for restoration in this case was in the form of a dollar amount that also specified that the period of restoration was to end on February 1,2009. The restoration period was, therefore, part of the judgment and required the defendant, Komondy, to do the restoration work, an act other than the payment of money, by February 1, 2009.

Our Supreme Court in Bodner v. United Services Automobile Assn., 222 Conn. 480, 505, 610 A.2d 1212 (1992), however, stated that it did not read § 52-421 as limiting the jurisdiction of the court over arbitrated contract disputes. The Supreme Court explained that the arbitration statutes do not create the jurisdiction of the Superior Court but, rather, validate it. The Supreme Court held that the court’s power is inherent in the judicial power conferred on the court by article five, § 1, of the constitution of Connecticut. Reading § 52-421 in this light, I would conclude that the Superior Court had the authority or power to direct progress payments during the restoration period as the court had the power to direct the manner in which restoration would proceed, by ordering payments during the restoration period. Although, I agree with the observation in footnote 14 of the majority opinion that an insured would be entitled to progress payments after the insured entered into a valid construction contract. I would also conclude that expeditious progress payments are required to ensure that the restoration date is met. A condition providing that the plaintiff make expeditious progress payments would ensure that the defendant would not be required to finance the restoration before receiving any indemnity from the plaintiff.

Our Supreme Court in Northrop v. Allstate Ins. Co., 247 Conn. 242, 249-51, 720 A.2d 879 (1998), commented on the argument by the defendant in that case that the insured be required to pay out the money for repair or replacement, rather than to incur a valid debt for the completed repairs before any payment was required of the defendant. In Northrop, our Supreme Court stated that “it would defy the reasonable expectations of the insured, and in many cases place undue burdens on him, to require the insured to finance the withheld depreciation portion of the repair or replacement of a fire loss in order to secure the replacement cost coverage from which an additional premium had been paid.” Id., 251. Applying Northrop, it is unreasonable in this case to expect that a lender would finance a restoration cost of more than $1 million over the fair market value of the defendant’s home.

Moreover, following the court’s confirmation of the arbitration award, the defendant filed a motion for articulation as to satisfaction of the award. This issue had not been addressed in the court’s decision confirming the arbitration award. When the issue of payments had been argued before the court, the plaintiff took the position that the award would be paid incrementally as restoration construction progressed. The defendant’s husband testified that he would be satisfied by progress payments but complained that it was after a long fight and an arbitrator’s award that architectural fees were paid. The court, however, concluded that it did not have the authority to order such payments. The court stated that it did not have the authority and, as a result, “decline [ed] to order that the arbitrator’s award be disbursed as progress payments.”

During oral argument before us, when the issue of the defendant’s ability to do the restoration work was raised, counsel for the plaintiff stated that the plaintiff “typically” would pay the defendant’s restoration expense when the defendant made an agreement binding herself to restoration. We should therefore remand this case for the trial court to consider requiring the typical, as stated by the plaintiff, and expeditious release of restoration funds so that the defendant could find it possible to enter into a contract for the reconstruction of her home contingent on such payments by the plaintiff. Otherwise, as our Supreme Court stated in Northrop, the failure to pay for the restoration work until it is completed and paid for by the defendant would render the restoration coverage “largely illusory.” Northrop v. Allstate Ins. Co., supra, 247 Conn. 251.

Accordingly, I concur with the decision to remand the matter to the trial court to set a new restoration date. I respectfully dissent, however, regarding the decision that the court not direct progress payments. I would remand the matter to the trial court to implement the defendant’s restoration by making definite the plaintiffs agreement to make progress payments and to do so promptly.

      The submission specifically directed the appraisers to determine the following: (1) the actual cash value of the property before the fire, (2) the actual cash value of the loss caused by the fire, (3) the replacement cost prior to the fire, (4) the replacement cost of the damaged property and (5) the period of time required for restoration. The submission further provided: “It is expressly understood and agreed that the sole purpose of this agreement and the appraisal herein provided for is to ascertain and fix the aforesaid amounts . . . and said appraisal shall not determine, waive or in otherwise affect any question of liability to first party or any right of any subscriber of this agreement except to fix the [aforesaid] amounts . . . .” (Emphasis added.)

       The award also included the amount of $475,000 for “sound value,” which was defined in the submission as actual cash value. At oral argument it was agreed that the actual cash value has been paid.

       General Statutes § 52-420 (b) provides: “No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.”

       This court recently stated that “[t]he concept of notice concerns notions of fundamental fairness, affording parties the opportunity to be apprised when their interests are implicated in a given matter. . . . Notice is not a rigid concept. Section 2 of the Restatement (Second) of Judgments, entitled Adequate Notice . . . explains that [t]he modem approach to notice-giving attaches primary importance to actual notice and treats technical compliance with notice procedures as a secondary consideration.” (Citations omitted; internal quotation marks omitted.) Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray, 96 Conn. App. 616, 622-23, 902 A.2d 24 (2006).

       We construe the court’s finding that Christopher Komondy was “serving de facto"; (emphasis in original); as the defendant’s agent as a finding of apparent authority on the part of Christopher Komondy.

       The court’s conclusion is reinforced by the uncontested finding that the defendant had actual notice of the award.

       General Statutes § 52-421 (b) provides: “The judgment or decree confirming, modifying or correcting an award shall be docketed as if it were rendered in a civil action. The judgment or decree so entered shall have the same force and effect in all respects as, and be subject to all the provisions of law relating to, a judgment or decree in a civil action; and it may be enforced as if it had been rendered in a civil action in the court in which it is entered. When the award requires the performance of any other act than the payment of money, the court or judge entering the judgment or decree may direct the enforcement thereof in the manner provided by law for the enforcement of equitable decrees.”

       General Statutes § 38a-307 sets forth the standard form of a fire insurance policy in Connecticut and provides in relevant part: “When loss payable. The amount of loss for which this Company may be liable shall be payable sixty days after proof of loss, as herein provided, is received by this Company and ascertainment of the loss is made either by agreement between the insured and this Company expressed in writing or by the filing with this Company of an award as herein provided. . .

       Subsection 10 of § I of the policy provides: “Loss payment. We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable 60 days after we receive your proof of loss and: [a] reach an agreement with you; [b] there is an entry of a final judgment; or [c] there is a filing of an appraisal award with us.”

       At oral argument, the plaintiff stated that the defendant has been paid the amount of actual cash value, and the statement was not contradicted. No issue has been raised regarding the timeliness of that payment.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parlies resides . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part, of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient, cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       General Statutes § 52-419 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.”

       See footnote 1 of this opinion. The method or timing of payment was not otherwise addressed.

       See footnote 7 of this opinion. Such an enforcement action is complementary to § 52-421 (b) but is conceptually distinct from the action of the court in confirming an award. Section 52-421 (b) concerns enforcement of the judgment resulting from the confirmation. The court may enforce the resulting judgment as any civil judgment, and, if the judgment is equitable in nature, the court may issue enforcement orders accordingly.
      The dissent suggests that by virtue of § 52-421 (b) the court had the statutory power to order the time of payments and, thus, could have ordered that progress payments be made during the course of construction. The dissent finds such authority in the following statutory language: “[w]hen the award requires the performance of any other act than the payment of money, the court or judge entering the judgment or decree may direct the enforcement thereof in the manner provided by law for the enforcement of equitable decrees.” General Statutes § 52-421 (b).
      first, the defendant never asked this court to remand the case for the purpose of compelling progress payments, after execution of a valid construction contract or otherwise; rather, the defendant in her brief sought as relief an order that the full amount of the restoration award be paid within sixty days. Second, once the award is confirmed, the court, as noted previously, does not have the authority to add terms to the award. On its face, § 52-421 provides for the enforcement of the judgment resulting from the confirmation. If a resulting judgment is equitable, such as an order requiring an employer to reinstate an employee, then the order is enforceable through the usual means, such as contempt. It is difficult to see how a judgment establishing the restoration value and the time period in which the restoration may occur is equitable.

        Northrup v. Allstate Ins. Co., 247 Conn. 242, 720 A.2d 879 (1998), mentioned by the dissent, arises in a different context and addresses a different issue. Northrup did not arise out of arbitration; rather, it was an original action alleging breach of contract. It had nothing to do with the powers and duties of the court regarding enforcement of arbitration awards. Northrup did hold that the phrase in a restoration policy “the amount actually and necessarily spent” on restoration includes amounts validly incurred as debts, even if not actually paid. Id., 249-52. The insured, therefore, was contractually entitled to progress payments after the insured entered into a valid contract with a contractor and did not actually have to spend the entire amount before he was entitled to any payment from the company. It should be noted that this is generally the arrangement that the lawyer for the plaintiff in this case indicated was the usual practice. If in this case the defendant had brought an independent action addressing the maimer of payment, and especially had the defendant entered into a valid contract with a contractor for reconstruction, this argument might have more persuasive force.

       The court asked if the plaintiff would put its commitment to make progress payments in writing as a matter of fairness, and counsel for the plaintiff did not object. The court stated its purpose was to avoid a “catch-22” situation.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MICHAEL P. MILLER
    (AC 29672)
    Bishop, Alvord and Foti, Js.

      Submitted on briefs November 17, 2009
    officially released March 30, 2010

      Katharines. Goodbody, special public defender, filed a brief for the appellant (defendant).

      Michael Dearington, state’s attorney, Mitchell S. Brody, senior assistant state’s attorney, and Devant Joiner, deputy assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

FOTI, J.

The defendant, Michael P. Miller, appeals from the judgments of conviction, rendered following a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (1) and two counts of operating a motor vehicle with a suspended license in violation of General Statutes § 14-215 (a). On appeal, the defendant claims that the trial court improperly admitted into evidence two redacted versions of suspension notices issued by the department of motor vehicles (department) that informed him that his operator’s license was suspended and also failed to redact portions of those suspension notices that indicated the length of the respective suspensions. The defendant also contends that prosecutorial impropriety deprived him of a fair trial. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On July 3, 2006, Officer Sean Anderson of the North Branford police department was on duty and patrolling the town in his police cruiser. At approximately 8:30 p.m., as he drove along Maltby Lane and approached Line Street, Anderson observed the defendant driving his Dodge Ram pickup truck on the wrong side of Line Street. Anderson turned onto Line Street and proceeded to follow the defendant’s vehicle. He observed the vehicle swerve back and forth and activated the cruiser’s overhead emergency lights in order to stop the vehicle. Prior to exiting his cruiser, Anderson radioed his dispatcher, who, based on the registration number of the vehicle, informed him that the vehicle was registered to the defendant. Anderson approached the vehicle and requested that the defendant give him his operator’s license and the vehicle registration. He observed that the defendant had slurred speech and watery eyes and was “fumbling” through papers, unable to locate the vehicle’s registration or his insurance card. Anderson also smelled the strong odor of alcohol emanating from the defendant’s breath. He then asked the defendant to exit his vehicle. As the defendant exited the vehicle, Anderson observed that he was unsteady on his feet. The defendant used the truck door, as he exited the vehicle, and the bed of the truck, as he made his way to the back of the vehicle, to maintain his balance and to keep from falling over. Anderson determined that he would conduct field sobriety tests on the defendant in order to establish whether the defendant was impaired by alcohol. While Anderson was explaining the horizontal gaze nystagmus test, the defendant, although he was located on a level, paved road, could not stand without Anderson’s assistance. Anderson then determined that because of the level of the defendant’s intoxication, it was unsafe to conduct any field sobriety test, placed him under arrest and charged him with operating a motor vehicle while under the influence of intoxicating liquor or drugs.

After transporting the defendant to the North Bran-ford police station, Anderson and his colleague, Officer James Lovelace, processed and booked him. Anderson advised the defendant of his Miranda rights, as well as the implied consent advisory concerning a Breathalyzer test, which involves a chemical analysis of a person’s breath, and afforded him an opportunity to contact an attorney. The defendant declined to contact an attorney and refused to take the Breathalyzer test. Anderson informed the defendant that his refusal to take the Breathalyzer test would result in the revocation of his operator’s license for twenty-four hours and its suspension for at least six months. During the booking procedure, Anderson received information from the department indicating that the defendant’s driver’s license was suspended at the time of the traffic stop that night. Anderson charged the defendant with one count of operating a motor vehicle with a suspended license; see footnote 1 of this opinion; gave him a date for a court appearance and released him from custody.

The next morning, on July 4, 2006 at approximately 9:25 a.m., Lovelace was on duty and patrolling the town in his police cruiser. He saw the defendant in the passenger seat of a vehicle in the vicinity of and heading toward the tow truck company that had towed the defendant’s pickup truck the night before. Lovelace radioed the police dispatcher and requested the license plate number of the defendant’s pickup truck that he had been driving the night before at the time of the traffic stop. Lovelace then observed the vehicle in which the defendant had been a passenger going in the opposite direction and without the defendant inside. He soon thereafter saw the defendant’s pickup truck exit the tow truck company parking lot. Lovelace then initiated a traffic stop and subsequently identified the driver as the defendant, whom he recognized from the previous night at the police station. He issued the defendant a summons for operating a motor vehicle with a suspended license; see footnote 1 of this opinion; and released him.

Following a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a and two counts of operating a motor vehicle with a suspended license in violation of § 14-215 (a). Thereafter, in a trial to the court on a part B information, the trial judge found the defendant guilty of one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs or both as a third time offender, in violation of § 14-227a and two counts of operating a motor vehicle with a suspended license, where the suspension was on account of a violation of § 14-227a, in violation of § 14-215 (c). The defendant was sentenced to a term of five years incarceration, execution suspended after two and one-half years, fourteen months of which was mandatory, and five years probation. This appeal followed.

I

We first address the defendant’s evidentiary claim. On appeal, the defendant claims that the court improperly admitted into evidence two redacted versions of suspension notices issued by the department that informed him that his operator’s license was suspended and failed to redact portions of those suspension notices that indicated the length of their respective suspensions. We disagree.

Preliminarily, we note that “[o]ur standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) Breen v. Synthes-Stratec, Inc., 108 Conn. App. 105, 122, 947 A.2d 383 (2008).

The following additional facts provide the necessary backdrop for our resolution of these claims. On May 24, 2007, prior to the taking of evidence, the state indicated that it would seek to admit into evidence, through the testimony of Joanna Bisaupski, a department employee, redacted versions of two suspension notices issued by the department to the defendant. After defense counsel stated that she wanted an “opportunity to review those documents with [the defendant] as they pertain to his license suspension and the notice received,” the state agreed to call Bisaupski last in its case-in-chief. Later in the trial, prior to Bisaupski’s taking the witness stand, the defendant objected to the admission into evidence of both suspension notices. Defense counsel stated that the basis for the objection was “the fact that [the suspension notices are] redacted, and the method [by which they are redacted] suggests that the reason for the suspension is alcohol or drug related.” Counsel argued that “any reasonable person would infer from the blacked out [portion] that the suspension notice [was] alcohol related, and . . . that would be unduly prejudicial for [the defendant].” During the discussion with the court that ensued, defense counsel further claimed that “the duration of the suspensions [which is not redacted] suggest an alcohol related suspension” and contended that evidence concerning the suspension notices, the information contained therein and the fact that they were sent to the defendant should “be presented in just oral form [because] there is no need for the documents to be admitted.”

The court, after reviewing the documents, overruled the objection, stating that because the reasons for the suspensions were redacted, the defendant’s argument that the suspension notices were more prejudicial than probative was mere speculation and was not founded in the evidence before the court or in the law. The court indicated that it would, if requested, “give a limiting instruction that [jury members] are not to speculate as to reasons for suspensions [and that] all that is being alleged here [by the state with the suspension notices] is that the defendant was under suspension.”

The defendant claims on appeal that the suspension notices were improperly admitted into evidence because their probative value was outweighed by their prejudicial impact on the defendant. Specifically, the defendant argues that the prejudicial impact of the notices outweighed their probative value because the redactions of the reasons for the suspensions and the respective lengths of the suspensions, which were not redacted, in combination, “were likely to have caused the jurors to believe that the defendant had [been convicted of] prior alcohol related offenses.” The defendant also seems to argue that the fact that the durations of the suspensions were not redacted on the notices, in and of itself, heightened the prejudicial impact of this evidence. This is so, he contends, because the increase from one year to three years in duration of suspension suggests “serious bases for the suspensions which was highly likely to be interpreted by the jury as alcohol related.” “A determination regarding undue prejudice is a highly fact and context-specific inquiry. . . . [T]he determination of whether the prejudicial impact of evidence outweighs its probative value is left to the sound discretion of the trial court . . . and is subject to reversal only [when] an abuse of discretion is manifest or injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. Jordan, 117 Conn. App. 160, 171, 978 A.2d 150, cert. denied, 294 Conn. 904, 982 A.2d 648 (2009).

On the basis of our review of the record, we cannot conclude that the court abused its discretion in admitting the suspension notices into evidence. That the notices were relevant is manifestly clear. In order to convict the defendant of the charges of operating a motor vehicle with a suspended license, the state had to prove beyond a reasonable doubt that his license was suspended on July 3 and July 4, 2006, the dates of the violations. See General Statutes § 14-215 (a); see also State v. Swain, 245 Conn. 442, 462-63, 718 A.2d 1 (1998). The defendant has offered no compelling bases for this court to conclude that the notices were unduly prejudicial because of the redacted “reasons” for his license suspensions or because of the visibility of the duration of the suspensions. The court’s determination that the defendant’s contentions were rooted in speculation and not based on the evidence before it or in the law is supported in the record. Moreover, the court, in its charge to the jury, gave a limiting instruction. “Our Supreme Court has consistently held that an instruction limiting the jury’s consideration to the specific purpose for which [evidence] was admitted ... is the most important method for reducing the prejudicial impact the evidence may have. See, e.g., State v. Jones, 205 Conn. 638, 663-64, 534 A.2d 1199 (1987); State v. Brown, 199 Conn. 47, [57-58], 505 A.2d 1225 (1986); State v. Howard, 187 Conn. 681, 688, 447 A.2d 1167 (1982).” State v. Curley, 25 Conn. App. 318, 328, 595 A.2d 352, cert. denied, 220 Conn. 925, 598 A.2d 366 (1991). Therefore, even if the admission of this evidence prejudicially impacted the defendant because it may have caused the jury to believe that he was a “chronic drunk driver,” that impact was lessened, if not eliminated, by this limiting instruction. See State v. Lemay, 105 Conn. App. 486, 493, 938 A.2d 611 (“[i]n the absence of a showing that the jury failed or declined to follow the court’s instructions, we presume that it heeded them” [internal quotation marks omitted]), cert. denied, 286 Conn. 915, 945 A.2d 978 (2008). This claim, therefore, fails.

n

Next, the defendant claims that prosecutorial impropriety deprived him of a fair trial. Specifically, he argues that the state impermissibly bolstered Anderson’s testimony by improperly referring to evidence that was not in the record during its closing argument and thus depriving the defendant of a fair trial. We disagree.

Although the defendant did not object at trial to any of the state’s comments that he now claims improperly referred to evidence that was not in the record, “a claim of prosecutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987). ... In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial.” (Internal quotation marks omitted.) State v. Ovechka, 118 Conn. App. 733, 743-44, 984 A.2d 796, cert. denied, 295 Conn. 905, 989 A.2d 120 (2010). “Because the claimed prosecutorial [improprieties] occurred during closing arguments, we advance the following legal principles. [P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [an impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) Id., 744. “If we conclude that prosecutorial impropriety has occurred, we then must determine, by applying the six factors enumerated in State v. Williams, [supra, 540], whether the entire trial was so infected with unfairness so as to deprive the defendant of his due process right to a fair trial. . . . These factors include the extent to which the impropriety was invited by defense conduct, the severity of the impropriety, the frequency of the impropriety, the centrality of the impropriety to the critical issues in the case, the effectiveness of the curative measures adopted and the strength of the state’s case.” (Internal quotation marks omitted.) State v. Jordan, supra, 117 Conn. App. 164. “[T]he touchstone of due process analysis in cases of allegedly] [harmful] prosecutorial [impropriety] is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s [actions at trial] so infected [it] with unfairness as to make the resulting conviction a denial of due process. ... In determining whether the defendant was denied a fair trial . . . we must view the prosecutor’s [actions] in the context of the entire trial.” (Internal quotation marks omitted.) State v. Melendez, 291 Conn. 693, 714-15, 970 A.2d 64 (2009).

By stipulation, the state admitted into evidence the A-44 form Anderson had completed during the booking procedure on the night of the defendant’s arrest for operating a motor vehicle under the influence. Anderson had checked boxes on the form indicating that the defendant had “refused to perform” both the horizontal gaze nystagmus and the walk and turn test. During direct examination, Anderson testified that he did not conduct any sobriety tests because he had determined that the defendant was too intoxicated to perform them safely. During cross-examination, defense counsel questioned Anderson as to why he had checked the boxes indicating that the defendant had refused to perform the tests in light of his testimony that he did not conduct the tests. Anderson responded that he was trained to check that box if a person was unable to perform. During her closing argument, defense counsel drew attention to the discrepancy between the A-44 form and Anderson’s testimony. The state, in its rebuttal argument responded by stating: “A lot of attention is going to the A-44 form and the refusal to perform box. You are going to have [the A-44] with you when you go into the deliberation room, and I ask you to look at the boxes that are [on it], and I ask you to look—is there anything, is there any place in there that says [that the] defendant [is] unable to perform because of his safety? You won’t see a box marked like that. You will see a refusal to perform box, and that is the only one [available]. This [form] is not a North Branford form; this is a . . . Connecticut standardized form that was voted on by the legislature, and they decided what was going to be in this form, not the town of North Branford and not . . . Anderson.” It is this last sentence that the defendant claims amounts to prosecutorial impropriety that deprived him of his due process right to a fair trial.

On the basis of our review of the record, we conclude that the statement at issue did, in fact, rise to the level of an impropriety. Nowhere is there any evidence referring to, let alone supporting, the notion that our General Assembly voted on and determined the contents of the A-44 report form. As a result, the comment amounts to unsworn testimony, which is not proper in closing argument. See State v. Jordan, supra, 117 Conn. App. 166. This statement amounts to an impropriety.

Our conclusion that this statement was improper does not, of course, put an end to the inquiry. We still must determine whether this impropriety was egregious enough to deprive the defendant of his constitutional right to a fair trial, and, therefore, we next review it in the context of the whole trial using the aforementioned factors set out in State v. Williams, supra, 204 Conn. 540. As for the first factor, we find no evidence in the record to indicate that the improper remarks were invited by defense counsel. Defense counsel was entitled to call the jury’s attention to the inconsistencies in Anderson’s testimony concerning the reason for his not performing the sobriety tests and the way in which he filled out the A-44 form. Moreover, nothing stated by defense counsel in her closing argument suggests that she was arguing that Anderson or North Branford was responsible for the content of the A-44 form, generally, but merely the content of the form used in processing the defendant.

We next proceed to the second Williams factor, the severity of the misconduct, and the high bar set for this factor by our Supreme Court in State v. Thompson, 266 Conn. 440, 479-80, 832 A.2d 626 (2003). In the present case, the prosecutor, by once stating that our legislature decided on the contents of the A-44 form, did not engage in repeated Thompson like patterns of bitter invective. See State v. Hayward, 116 Conn. App. 511, 520, 976 A.2d 791, cert. denied, 293 Conn. 934, 981 A.2d 1077 (2009). By the Thompson standard, which constrains our review, we conclude that the prosecutor’s conduct was far less egregious than that in Thompson and that the defendant has not satisfied the severity prong. See id.

The third prong measures the frequency of the instances of the impropriety. Here, the impropriety was but one phrase found in the state’s rebuttal argument. This one instance in the course of the state’s rebuttal was not frequent. Cf. State v. Jordan, supra, 117 Conn. App. 169 (finding fourteen instances of impropriety over course of eighteen pages of transcripts frequent).

The fourth prong relates to the centrality of the impropriety to the issues of the case. The reference to facts that were not in evidence concerned the source of the content of the A-44 form itself and not the manner in which it was filled out by Anderson. The defendant’s contention that the state somehow bolstered Anderson’s testimony by suggesting that the content of the A-44 form itself was attributable to the legislature misses the mark. The central issue was not which governmental entity was responsible for the content of the A-44 but whether the defendant was operating a motor vehicle, on a public highway, while under the influence of intoxicating liquor or drugs. See State v. Bereis, 117 Conn. App. 360, 365, 978 A.2d 1122 (2009).

Fifth, we assess the strength of the curative measures adopted by the court. The defendant did not object to the prosecutor’s statements or request any curative instructions, and the court did not give any. Although the court did not provide the jury with any curative instructions, in the general jury charge, the court instructed the jury on the basic guiding principle that “[c]ertain things are not evidence, and you may not consider them in deciding what the facts are. These include, first, the arguments and statements by the lawyers. The lawyers are not witnesses, what they have said during closing arguments is intended to help you interpret the evidence but it is not evidence.” “In the absence of a showing that the jury failed or declined to follow the court’s [general] instructions, we presume that it heeded them.” (Internal quotation marks omitted.) State v. Gordon, 104 Conn. App. 69, 83-84, 931 A.2d 939, cert. denied, 284 Conn. 937, 937 A.2d 695 (2007). There is no suggestion in the present case that the jury did not follow the court’s general instructions.

The last factor we review is the strength of the state’s case. Our Supreme Court has “never stated that the state’s evidence must have been overwhelming in order to support a conclusion that prosecutorial [impropriety] did not deprive the defendant of a fair trial.” (Internal quotation marks omitted.) State v. Jordan, supra, 117 Conn. App. 170. There was testimony that just prior to Anderson’s initiating the traffic stop, the defendant was driving on the wrong side of the road and that his truck was weaving about the roadway. When Anderson approached the truck, he observed that the defendant’s speech was slurred, his eyes were watery and he exuded a strong odor of alcohol on his breath. The defendant also was unable to stand and had to use his truck or have Anderson’s assistance to stay on his feet. The defendant fell asleep in the cruiser during the short drive to the police station and needed physical assistance to exit the vehicle and to enter the station where he refused to submit to a Breathalyzer test. See State v. Morelli, 293 Conn. 147, 150, 976 A.2d 678 (2009) (defendant’s refusal to take Breathalyzer test raised statutory inference of guilt). There was sufficient testimony for the jury to conclude that the defendant was guilty of operating a motor vehicle while intoxicated. Despite the impropriety, the state’s case was strong.

On the basis of the foregoing, we cannot conclude that there is a reasonable likelihood that the state’s comment deprived the defendant of a fair trial. As a result, the defendant’s claim fails.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant was charged with one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs and one count of operating a motor vehicle with a suspended license under docket number MV-06-0034604-S. He was subsequently charged with one count of operating a motor vehicle with a suspended license under docket number MV-06-0034531-S. On May 22, 2007, the prosecutor filed a corrected amended information bearing both docket numbers, charging the defendant with the two counts from docket number MV-06-0034604-S as counts one and two and with the one count from docket number MV-06-0034531-S as count three. On May 22, 2007, the prosecutor also filed a three count amended part B information bearing both docket numbers and charging the defendant as a previous offender. The defendant raises no claims on this appeal with respect to that amended part B information, which was tried to the court.

       The three field sobriety tests are the horizontal gaze nystagmus, the walk and turn and the one leg stand.

       Anderson also called a tow truck to remove the defendant’s vehicle from the vicinity.

       See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Pursuant to General Statutes § 14-227b (a), “[a]ny person who operates a motor vehicle in this state shall be deemed to have given such person’s consent to a chemical analysis of such person’s blood, breath or urine . . . .”

       Attached to each suspension notice was a certificate of bulk mailing, indicating that each notice was sent via bulk certified mail. “If a letter is sent by ‘bulk mail certified’ a record exists of only the fact that it was mailed by the sender and not of its receipt by the recipient, since the recipient’s signature is not required. United States Postal Service Domestic Mail Manual, Issue 43, Item 931.1.” Yanni v. DelPonte, 31 Conn. App. 350, 356, 624 A.2d 1175 (1993).

       We note that each suspension notice had visible after redaction the word “reason” followed by a blacked out line of text. Before redaction, both of those lines of text referred to a “conviction of operating [a motor vehicle] under the influence of alcohol, drugs or both” as the reason for the suspensions.

       The court gave the following limiting instruction during its jury charge: “Now, in this case some evidence has been received for a limited purpose, and you must consider that evidence only for the puipose for which it was admitted and no other purpose. Now, state’s exhibits four and five, which were the suspension notices stapled with the bulk mailing certificate that [Bisaupski] testified as to, those were admitted for the puipose of proving that the defendant’s motor vehicle license was suspended on July 3, and July 4, 2006, and that the defendant had been notified of the suspension by bulk mailing. Those are the only reasons that you may consider this evidence, whether or not the elements of operation while under suspension have been proven beyond a reasonable doubt.”

       “The A-44 form is used by the police to report an arrest related to operating a motor vehicle under the influence and the results of any sobriety tests administered or the refusal to submit to such tests. ” (Internal quotation marks omitted.) State v. Bereis, 117 Conn. App. 360, 368 n.7, 978 A.2d 1122 (2009).

       In her closing argument, defense counsel stated, in relevant part: “The judge will instruct you that if you find that a witness has been inaccurate in one respect, remember it in judging the rest of the person’s testimony and give it the weight that it deserves. I want to talk to you about that instruction in the context of . . . Anderson’s testimony. . . . Anderson testified that for [the defendant’s] safety, he was unable to perform the horizontal gaze nystagmus test. Yet, in his report he checked the box [on the A-44] that said [the defendant] refused to perform. That is not accurate. Inability to perform is vastly different than a refusal to perform. . . . Anderson also testified that for [the defendant’s] safety, he was unable to perform the walk-turn test. Yet in his report, again, he checked that [the defendant] refused to perform; again, not accurate. The judge will instruct you that in deciding whether or not to believe a witness, you may take into account whether the witness’ testimony was contradicted by what the witness has said or done at another time. . . . Anderson wants you to believe that there was no room, no room to write in unable on his report. You have got to be kidding me. There is no room [on the A-44], there is no back, there is no side, there is no second sheet; suddenly, North Branford police have run out of paper? He claims that he couldn’t fit it onto the [A-44], so instead he settled for an inaccuracy. It is a misrepresentation. It is a lie. ... If this characterization of [the defendant’s] behavior is so careless and so inaccurate in this context, in this all important [A-44], that his commanding officer and the prosecution rely on in deciding whether or not to prosecute this case, how can we rely on the rest of his testimony?”

       The A-44 report form itself states that it was issued by the department under General Statutes § 14-227b. Section 14-227b (c) mandates that, after an individual arrestedfor operating amotorvehicle while under the influence of intoxicating liquor or any drug or both either fails or refuses to submit to chemical analysis of his blood, breath or urine, the arresting officer must, inter alia, “prepare a written report of the incident and shall mail the report and a copy of the results of any chemical test or analysis to the Department of Motor Vehicles within three business days. . . .” Section 14-227b (c) goes on to state that “[t]he report shall be made on a form, approved by the Commissioner of Motor Vehicles and shall be subscribed and sworn to under penalty of false statement as provided in section 53a-157b by the arresting officer. . . .” (Emphasis added.)

       “In Thompson, a murder prosecution, our Supreme Court reviewed and found improper the prosecutor’s repeatedly calling the defendant a ‘killer’. . . calling the testimony of the defendant’s two principal witnesses ‘reprehensible,’ saying that they were ‘lying’ and lacked both ‘moral fortitude’ and ‘conscience,’ lived in a ‘twisted world,’ were not ‘stand-up enough guy[s]’ and let misguided loyalty to a friend influence their testimony, and that by doing so, they had ‘reserved a place in hell for themselves’ . . . and they were truthful in their earlier, recanted pretrial statements and that to believe their trial testimony, jurors had to believe that the state’s witnesses had lied, and suggesting to the jury that the witnesses would be arrested in connection with the homicide. . . . Our Supreme Court in Thompson also concluded that the prosecutor improperly importuned the jury to give the victim’s family justice by convicting the defendant . . . and, finally, that he improperly urged the jury to use impeachment evidence against a third defense witness substantively. .. . . Nonetheless, our Supreme Court held that this misconduct ‘was not, for the most part, severe.’ ” (Citations omitted.) State v. Dews, 87 Conn. App. 63, 77-78, 864 A.2d 59, cert. denied, 274 Conn. 901, 876 A.2d 13 (2005).


author: BISHOP, J.

text:
    73-75 MAIN AVENUE, LLC v. PP DOOR ENTERPRISE, INC., ET AL.
    (AC 30667)
    Bishop, DiPentima and Schaller, Js.

      Argued December 4, 2009
    officially released March 30, 2010

      Lewis Guangwei Hu, for the appellants (named defendant et al.).

      Anthony D. Truglia, Jr., for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendants, PP Door Enterprise, Inc. (PP Door), and Ping Ying Li, appeal from the judgment of the trial court in favor of the plaintiff, 73-75 Main Avenue, LLC, for breach of a commercial lease agreement. On appeal, the defendants claim that the court (1) lacked subject matter jurisdiction, (2) improperly found PP Door liable without proof that the lease was entered into under its name and under its authority and (3) based its conclusion on improper evidence. Additionally, Li claims that the court improperly held her liable as a guarantor without proof that she signed the guarantee agreement. We affirm in part and reverse in part the judgment of the trial court.

The court reasonably could have found the following facts. On or about August 8, 2005, the plaintiff, the owner of commercial real estate located at 73 Main Street, Norwalk, entered into a written lease agreement with PP Door for the use and occupancy of a portion of the property, identified as Store #2. The lease was executed by Lawrence W. Goichman, who was the principal member of the plaintiff and of S.C.G. Commercial Real Estate (S.C.G.), a property management company that managed the property at 73 Main Street. The lease also was signed by Nan Zhang, as manager of PP Door. Each page of the lease agreement also was initialed by the signatories.

Prior to finalizing the lease agreement, and in accordance with its standard policy, the plaintiff required that the principal officers of PP Door execute personal guarantees of the tenant’s obligations, in the event of a default under the lease. Pursuant to this policy, the principal officers were asked to provide their credit information. On August 2, 2005, Zhang sent a facsimile transmission from PP Door to Darienne Donovan, a real estate broker, who was aiding with the lease transaction, and attached a completed form authorizing the release of credit information. The form contained the names, social security numbers, home addresses, dates of birth and the signatures of Zhang and Li. On the fax cover sheet, which bore the business name, address, telephone and fax numbers of PP Door, Zhang wrote to Donovan that “[a]ll plans for the Norwalk store [were] laid out last week. My company ha[s] put people and resources into this project. I understand the landlord is holding up time. Would you please try to expedite the lease-signing process.”

In addition to completing the credit check, S.C.G. also conducted a corporate database search that verified that PP Door was a registered New York corporation located at 36-33 College Point Boulevard, Flushing, New York, which was the same address that appeared on the fax Zhang sent to Donovan. After this due diligence was completed, the lease and guarantee agreements were sent to Zhang and Li. Shortly thereafter, the documents were returned to the plaintiff with signatures. On August 8, 2005, the day the lease was executed, a check in the amount of $5209.75, which represented the first month’s rent, the last month’s rent and one month security deposit, was paid to the plaintiff. The check bore the name Splendid Prosperity Company, and there was no testimony as to who signed the check. Upon receipt of the check and the signed lease agreement, the plaintiff permitted PP Door to take possession of the property and to commence its business operations.

As part of the agreement, the lease term was to commence September 1, 2005, and the defendants were given two months free rent. Thus, the portion of the August 8, 2005 check that represented the first month’s rent, was payment for the month of November. The next five monthly payments, December through April, ail were paid on schedule, and each of the checks was signed by Li. The December payment was written on a check from PYML U.S.A., Inc., which Ii testified was the same as PP Door. The next four payments were all written on PP Door checks. The April payment was the last monthly payment received by the plaintiff. PP Door failed to make any further monthly payments, nor did it pay the common charges.

At trial, Li testified that she was the sole owner and operator of PP Door. She denied that Zhang was the manager of PP Door and that he was employed in any way by PP Door. She also denied signing the guarantee agreement. She claimed that she signed the credit authorization form because Zhang told her that he was too young to have good credit, and, therefore, he needed her help so that he could lease the building. Li claimed that she had no knowledge of the lease until she received notice that she was being sued. She admitted, however, that she paid the rent required by the lease and that she visited the store location to see the space before agreeing to make those payments. Li testified that Zhang was her “[f]irst retail person” and that he wanted to be PP Door’s Connecticut retailer, but, she maintained, nevertheless, Zhang did not have the authority to act on behalf of PP Door. Li represented that toward the end of 2005, Zhang was in a car accident and came to her for help paying his bills, and that before she would agree to pay the rent, she went to Norwalk to see the store location and its contents. She testified that she counted 107 doors, which she valued at $45,000. Despite this attention to the inventory, Li testified that she did not see the name “PP Door” on the storefront because she was sick from the drive to Connecticut. After five months, Li stopped payments when she realized that she was going to lose money. Li testified that Zhang had promised to pay her back for the rental payments she made, and when he failed to do so, she stopped payment.

After months went by without receiving payment, the plaintiff initiated a summary process action to recover possession of the property, in which it was successful. Additionally, on August 3, 2006, the plaintiff filed this action in order to recover money damages for past rent and the cost of finding a new tenant. Following trial, the court found in favor of the plaintiff. In its decision, the court rejected the defendants’ special defense that it lacked personal jurisdiction over PP Door or Li because neither had done business in Connecticut. Despite the fact that PP Door was a registered New York corporation that did business primarily in New York, the court found that there was sufficient evidence that PP Door had done business in Connecticut. The court cited as evidence the existence of the fax from Zhang to the real estate broker in Connecticut, which mentioned the company’s plans to open a Norwalk store and was faxed from the offices at PP Door to Connecticut. The court also took note of the lease agreement, which was negotiated with a Connecticut real estate company, and was completed for the purpose of operating a retail store in Connecticut.

In addition, the court found that as to PP Door’s liability, even if Li did not sign the lease and the guarantee, PP Door had held Zhang out as its representative. Specifically, the court found that “Li and the company, PP Door, entered into this lease through the execution of that lease document. They have clearly put themselves out to the landlord that they were the authorized party renting that property and, or, authorizing Zhang to act as their representative. And the further binding fact is the first check of August 8, 2005, made out to [the plaintiff] . . . for . . . the first month’s rent and the last month’s rent and one month security. Now, why would PP Door and ... Li make out a check for the equivalent of three month’s rent—actually two month’s rent plus one month of security, if it was not their intention to allow . . . Zhang to initiate this lease and that they were the responsible parties and that they were authorized or that he was authorized to act as their representative?” After the court rendered its decision, the defendants filed this appeal.

I

The defendants first claim that the court lacked subject matter jurisdiction. Specifically, the defendants argue that although it was appropriate for the plaintiff to have filed the action in the Superior Court Housing Session, once issues arose related to forgery, partnership, agency and apparent or actual authority, the housing court no longer had subject matter jurisdiction. This claim is without merit.

“[A] determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary . . . .” (Internal quotation marks omitted.) Ross v. Zoning Board of Appeals, 118 Conn. App. 90, 96, 983 A.2d 11 (2009).

In Savage v. Aronson, 214 Conn. 256, 571 A.2d 696 (1990), our Supreme Court answered the question that the defendants now raise. In that case, the court explained that, “[d]espite the familiar reference to the judicial district courtroom where the judge assigned to hear housing matters presides as the housing court, our statutes create no such special jurisdictional entity. Housing matters are included within the jurisdiction of the Superior Court .... The evident purpose of the statutes and rules relating to the divisions of the Superior Court was not to impose any jurisdictional limitation on judges but to achieve greater efficiency in the administration of the judicial department. . . . A judge assigned to the housing division at a particular judicial district is authorized by [General Statutes] § 47a-70 (a), after a case has first been placed on the housing docket, to transfer such matter to the regular docket for a geographical area or judicial district if he determines that such matter is not a housing matter or that such docket is more suitable for the disposition of the case.” (Citations omitted; internal quotation marks omitted.) Id., 262. However, “[e]ven if it were clear that [a] complaint fails to allege circumstances constituting a housing matter as defined by [General Statutes] § 47a-68, it is plain that such a deficiency did not deprive the trial court of jurisdiction over the action. A judge of the Superior Court assigned to hear housing matters does not lose his general authority to hear any cause of action pending in that court. Since the plaintiffs’ action was properly brought to the Superior Court, the trial judge, as a member of that court, did not lack jurisdiction to decide it.” Id., 263.

On the basis of the foregoing, the defendants’ claim that the court lacked subject matter jurisdiction fails.

II

The defendants next claim that the court improperly found PP Door hable under the lease because the evidence presented at trial was insufficient to prove that the lease, which was signed by Zhang, was entered into with its actual or apparent authority. We are not persuaded.

Initially, because the court did not find that Zhang possessed actual authority to act on behalf of PP Door, we review only the court’s finding of apparent authority. “Whether apparent authority exists is a question of fact, requiring the trier of fact to evaluate the parties’ conduct in light of the attenuating circumstances. . . . Only in the clearest of circumstances, where no other conclusion could reasonably be reached, is the trier’s determination of fact to be disturbed.” (Citation omitted; internal quotation marks omitted.) LeBlanc v. New England Raceway, LLC, 116 Conn. App. 267, 278, 976 A.2d 750 (2009). Thus, we review the court’s finding under the clearly erroneous standard. Id., 274. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed .... As a reviewing court [w]e must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude. . . . The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact. . . . In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption . . . in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) Id.

“Apparent authority is that semblance of authority which a principal, through his own acts or inadver-tences, causes or allows third persons to believe his agent possesses. . . . Consequently, apparent authority is to be determined, not by the agent’s own acts, but by the acts of the agent’s principal. . . . The issue of apparent authority is one of fact to be determined based on two criteria. . . . First, it must appear from the principal’s conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority. . . . Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessaiy authority to bind the principal to the agent’s action.” (Internal quotation marks omitted.) Id., 277-78.

On the basis of these criteria, we examine the trial evidence to determine whether the court could have found that Zhang had apparent authority to enter into the lease on behalf of PP Door. Linda Gargano, an operations manager at S.C.G., testified that before the plaintiff would enter into a contract to lease space to PP Door, the principal officers of PP Door were required to execute personal guarantees and to authorize the plaintiff to do credit checks. At trial, the plaintiff presented a copy of a fax from Zhang that bore PP Door’s name, had been sent from its office and sent using its fax number. The fax cover sheet contained a note from Zhang, which stated that “[m]y company ha[s] put people and resources into this project.” Attached to the fax was the credit authorization form, which contained Li’s personal information, including her social security number, and was personally signed by her.

Subsequently, the plaintiff sent the lease and guarantee agreements to PP Door, and received the documents back with signatures, including the guarantee agreement that was meant for Li. After the initial lease payment, which included the first and last month’s rent and security deposit, each of the next five rent payments was by check from PP Door or its affiliate, PYML U.S.A., Inc., and all of the five checks were signed by Li. Contesting the liability of PP Door as to the lease, Li testified that Zhang needed her credit information so that he would be able to lease the building. On the basis of the foregoing evidence, we conclude that there was adequate evidence before the court on which it could have found that PP Door held Zhang out as possessing sufficient authority to sign the lease and that the plaintiff, acting in good faith, reasonably believed that Zhang had the necessary authority to bind PP Door. Thus, the court’s determination that apparent authority existed, was not clearly erroneous.

m

The defendants next claim that the court’s judgment should be reversed because it was based on evidence that was incorrect or was not presented at trial. We are not persuaded.

The defendants first object to the court’s conclusion, during the reading of its decision, that “we have exhibits E, F, G, H, I, J, which are made out to [the plaintiff] and, in fact, check number 1452 is on the heading or the check heading of [PP Door], and [Li] herself admitted that she signed those checks.” The defendants correctly point out that Li did not testify to signing all of those checks, but, rather, only that she signed exhibits E, F, G, H and I. There was no evidence presented as to who signed the check shown in exhibit J, which was the initial payment consisting of first month’s rent, last month’s rent and security deposit. The defendants argue that this represents more than a mere misstatement by the court, as was evident from the court’s subsequent rhetorical question, “why would PP Door and ... Li make out a check for the equivalent of three month’s rent—actually two months rent plus one month of security, if it was not their intention to allow . . . Zhang to initiate this lease and that they were the responsible parties and . . . that he was authorized to act as their representative?” The court went on to say that “[t]he fact that [Li] thought later on and stopped paying because [Zhang] had an accident and she realized that it probably was not a profitable lease any longer is of no consequence.” The defendants claim that the court had no factual basis on which to make this statement. In sum, the defendants reason that the court’s decision cannot stand because it relied on incorrect factual findings.

Initially, we set out the applicable standard of review. “[W]here 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.” (Internal quotation marks omitted.) Wyszo-mierski v. Siracusa, 290 Conn. 225, 237, 963 A.2d 943 (2009). Further, “[w]here . . . some of the facts found [by the trial court] are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole. . . . If, when taken as a whole, they undermine appellate confidence in the court’s fact finding process, a new hearing is required.” (Internal quotation marks omitted.) Lambert v. Donahue, 78 Conn. App. 493, 507, 827 A.2d 729 (2003).

The defendants correctly note that there was no evidence that Li signed the check shown in exhibit J. The court’s statement that Li “admitted that she signed those checks,” was inaccurate as it pertained to exhibit J. The court’s statement was clearly erroneous; however, the court’s ultimate conclusion that the check was written on behalf of PP Door was not clearly erroneous. There was testimony that the plaintiff received the check at the same time the lease and the guarantee agreements were returned with signatures. Under the circumstances, it would have been reasonable for the plaintiff to assume that the check was written on behalf of PP Door, and, for the court to conclude as such. Accordingly, the court’s conclusion that the check was made out on behalf of PP Door was not clearly erroneous.

Even if we assume that the court’s factual finding in this regard was clearly erroneous, it was harmless. The court did not base its decision solely on this single fact. As noted previously, the court based its decision on, among other things, the fax that was sent from PP Door to the real estate broker, the fact that Li willingly gave her credit information so that Zhang would be able to lease the building and that she made the next five monthly payments after the initial payment. Due to the overall strength of the evidence, which favors the court’s conclusion, we conclude that the court’s single erroneous factual finding was harmless.

The defendants next challenge the court’s conclusion that “[t]he fact that [Li] thought later on and stopped paying because [Zhang] had an accident and she realized that it probably was not a profitable lease any longer is of no consequence.” The defendants claim, to the contrary, that Li made the rent payments only to help Zhang after the accident. The defendants also claim that Li only intended to help Zhang temporarily and that she expected to be paid back, and that it was only when she realized that she was not going to be paid back that she stopped paying the rent. Li testified that she stopped paying the rent when she realized that she was going to lose money.

There was, in fact, testimony that Zhang was in an accident late in 2005, but there was no evidence as to the specific date, the existence of, or extent of, any injuries or the circumstances of the accident. There was also no direct evidence that Li stopped paying the rent as a result of the accident, nor does the time line of events necessarily suggest such a conclusion. The first check that Li admitted to writing was in December, 2005, which could support Li’s claim that she only helped Zhang financially due to his accident. Li’s testimony, however, was somewhat contradictory. On direct examination, she testified that Zhang came to her for help after the accident and, before she wrote a check to pay the rent, she went to the leased building to “take a look” and counted the inventoiy. Shortly thereafter, during cross-examination, Li testified that she had not been to the store before she wrote the first check and that it was only after the car accident, when Zhang came to her for help, that she went to look at the store. At the store, Li took inventory and calculated the value of the doors on the premises. As a matter of common sense, if Li only intended to help Zhang because he was injured, it is unlikely that there would be a need to calculate the value of the inventory. Also, as the plaintiff pointed out at trial, it is noteworthy that Li claimed that she entered through the front door of the store but did not notice the name “PP Door” on the wall above the door in large lettering. She testified that she was not paying attention because she was sick due to the car trip to Connecticut. She was not, however, too sick to count all 107 doors that were stocked in the store and to calculate their approximate value. This apparently contradictory testimony provided the court ample opportunity to gauge the credibility of Li’s testimony in this regard.

Additionally, the court was faced with evidence that Zhang had a business relationship with Li, that he wanted to be PP Door’s retailer in Connecticut and that Li had provided her credit information knowing that Zhang was attempting to lease a building in Connecticut. On the basis of the foregoing evidence, and keeping in mind, as we must, that the trial court is in the best position to assess the credibility of the witnesses “on the basis of its firsthand observation of their conduct, demeanor and attitude”; (internal quotation marks omitted) LeBlanc v. New England Raceway, LLC, supra, 116 Conn. App. 274; we conclude that the court’s conclusion, while not the only logical interpretation of the facts, was not clearly erroneous.

IV

Li claims finally that the court improperly held her personally liable as a guarantor of the lease between the plaintiff and PP Door, without proof that she signed the guarantee agreement. Specifically, she alleges that because there was no evidence that she signed the guarantee agreement, the agreement is unenforceable against her. We agree.

We start by setting forth the standard of review and applicable legal principles. “To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, 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.) Kelly v. Stop & Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007). “Whether a contract . . . exists is a question of fact for the court to determine. ... If the factual basis of the court’s decision is challenged, our review includes determining 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.” (Internal quotation marks omitted.) Baron v. Culver & Associates, LLC, 106 Conn. App. 600, 601-602, 942 A.2d 552 (2008).

A guarantee, similar to a suretyship, is a contract, in which a party, sometimes referred to as a secondary obligor, “contracts to fulfill an obligation upon the default of the principal obligor.” Restatement (Third), Suretyship and Guaranty § 1, comment (c), p. 6 (1996). To illustrate more clearly, in a situation involving a guarantee, there are typically two contracts that exist, one between A and B, and a second contract between A and C, whereby C promises that if B does not fulfill its obligation to A, then C will be responsible to A for B’s obligation. See id., § 2, pp. 19-20. This type of agreement is generally subject to the same “requisites of contract formation” that apply to the formation of any other contract. Id., § 7. Furthermore, “[p]ursuant to the Statute of Frauds, a contract creating a secondary obligation is unenforceable as a contract to answer for the duty of another unless there is a written memorandum satisfying the Statute of Frauds or an exception applies.” Id., § 11 (1); see also General Statutes § 52-550. Specifically, “[a] promise to be surety for the performance of a contractual obligation, made to the obligee, is binding if (a) the promise is in writing and signed by the promisor and recites a purported consideration . . . .” (Emphasis added.) 1 Restatement (Second), Contracts § 88, p. 234 (1981).

Therefore, in order for the court to have found Li personally hable as a guarantor of the lease, it had to find that there was a written guarantee agreement that satisfied the statute of frauds. More pointedly, the court had to find that the agreement had been personally signed by Li. There was, however, no factual basis presented at trial on which the court could have reached the conclusion that Li signed as guarantor.

At trial, the plaintiff entered into evidence a written guarantee agreement, which it claimed had been signed by Li. As noted, there was testimony that, pursuant to the lease agreement, the plaintiff required personal guarantees from the officers of PP Door, that the plaintiff sent the lease and guarantee agreements for Li and Zhang to Donovan, who in turn was to forward the documents along to PP Door, and that the plaintiff received back the guarantee agreement addressed to Li with a signature. Li testified that she did not sign the guarantee agreement and that the signature on the document was not hers. The plaintiff did not present any evidence to prove otherwise. Additionally, although the plaintiff presented the signed guarantee agreement, there was no evidence that Li had ever seen the agreement, let alone that she had executed it. The guarantee was also signed by a witness, but that person did not testify and was not even identified. There were no other witnesses who claimed to know anything about the document, and there were no handwriting experts presented to identify the signature on the purported guarantee. Indeed, the court noted in issuing its decision orally that when comparing the signatures on the lease and guarantee agreements, “the court cannot determine whether or not they are . . . Li’s signatures.” On the basis of the evidence presented at trial, the court had no basis on which it could find that Li had signed the guarantee. Without evidence that Li signed the guarantee, the agreement is not binding on Li, and, accordingly, she cannot be held liable as a guarantor.

The judgment is reversed only with respect to Li and the case is remanded with direction to render judgment in her favor. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

      A third defendant, Nan Zhang, was defaulted for failure to appear, and a default judgment was rendered against him. Because he is not a party to this appeal, we refer in this opinion to PP Door and Li as the defendants. Additionally, we note that there have been various spellings of the names Nan Zhang and Ping Ying Li throughout the pleadings of this case. We use the spellings set forth in the trial court transcripts.

       The record does not contain a memorandum of decision or a signed transcript setting forth the court’s reasons for rendering judgment in favor of the plaintiff, as required by Practice Book § 64-1. Although this court has often declined to review claims on appeal when the requirements of Practice Book § 64-1 were not followed; see Jezierny v. Jezierny, 99 Conn. App. 158, 160-61, 912 A.2d 1127 (2007); we have, however, reviewed claims when an unsigned transcript has been filed that adequately reveals the basis for the court’s decision. In this instance, we review the claims on that basis. See Robinson v. Robinson, 103 Conn. App. 69, 74 n.3, 927 A.2d 364 (2007).

       The lease was for a term of five years and two months, and PP Door agreed to pay $1669.79 per month in base rent for a period of two years, with an annual increase in the monthly rate during the remaining years of the lease term, plus 10.25 percent of certain common charges.

       The defendants deny that Zhang was a manager for PP Door or that he was authorized to act on their behalf.

       Linda Gargano, an operations manager at S.C.G., testified that at the time the signed documents were received, the plaintiff had no reason to doubt the authenticity of the signatures.

       Li testified that PYML U.S.A., Inc., had the same tax identification number as PP Door and that the business address listed for this entity was the same as her home address.

       On cross-examination, Li first testified that Zhang needed her to sign the credit authorization form because he was afraid he would not be able to lease the building. Then, when asked by the plaintiffs counsel, “[ljease which building, ma’am? The budding in Connecticut, correct?” she backtracked and said, “Every time he did not talk about leasing the building. He only said he needed a credit report because he wanted to do business.”

       In the defendants’ appellate brief, it is noted that when Zhang came to see Ii about the credit authorization, she was aware that he was about to lease a space in Connecticut.

       The Restatement (Third) of Suretyship and Guaranty notes that “surety-ship” and “guaranty” are two “common contractual mechanisms resulting in suretyship status .... Although there are important differences between the two mechanisms that should not be obscured, these differences relate to the duties contractually imposed on the secondary obligor by the secondary obligation and not to the nature of the rights inherent in suretyship status. . . . Thus, both are governed by the principles set forth in this Restatement.” Restatement (Third), Suretyship and Guaranty § 1, comment (c), pp. 6-7 (1996).

       General Statutes § 52-550 (a) provides: “No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; (5) upon any agreement that is not to be performed within one year from the making thereof; or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.” (Emphasis added.)