author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. ROBERT SMITH
    (AC 21427)
    Dranginis, Flynn and Bishop, Js.

      Argued February 28
    officially released June 11, 2002

      Arnold V. Amove, special public defender, for the appellant (defendant).

      Thomas M. DeLillo, special deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Robert Smith, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit kidnapping in the second degree in violation of General Statutes §§ 53a-94 and 53a-48, and conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-122 (a) (3) and 53a-48. On appeal, the defendant claims that the trial court improperly (1) charged the jury on the conspiracy counts and (2) denied his motion for judgment of acquittal. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 12, 2000, Edward Lepak was working as a salesman at Gale Toyota in Enfield. At approximately 5 p.m., two men entered the showroom and requested to test drive a 1997, black Lexus ES300. Lepak brought the two men to the car and the defendant got into the driver’s seat, Lepak sat in the front passenger seat and the other man sat in the rear passenger seat directly behind Lepak. After a few minutes of driving, the defendant stated that he wanted to drive the car on the highway. The car was low on fuel so they returned to the dealership so that Lepak could get a gasoline voucher. Lepak asked the men for an operator’s license and the man in the backseat handed Lepak his. Lepak proceeded inside the dealership, made a copy of the license and gave it to his sales manager, John Duran. At that point, Lepak told Duran that he felt uncomfortable taking the two men out on a test drive. Lepak obtained a $10 gasoline voucher and returned to the car.

After putting gasoline into the vehicle, the two men and Lepak took the car onto the highway. The defendant moved into the left lane of the highway and accelerated to approximately seventy to eighty miles per hour. When Lepak told the defendant to slow down and move back to the right lane in order to exit the highway, both men began screaming at him. The men told Lepak that they were taking the car and instructed him to put his hands on his knees and his head down or they would kill him. The man in the backseat grabbed Lepak about the face and jerked his head back, causing his glasses to fall off. Lepak then felt what he thought was a gun pressed against the back of his head and he was instructed to empty his pockets and place the contents in the glove compartment. Lepak placed cash, an identification card and credit cards into the glove compartment.

When the defendant began to decelerate, Lepak grabbed the car door in an attempt to jump from the car. The defendant told Lepak that the other man would shoot him in the head if he tried to escape again. Eventually, the men allowed Lepak to exit the vehicle and they left him on the side of the southbound lane of Interstate 91. Lepak walked to a truck depot and telephoned his employer and the police.

On January 14, 2000, police located the Lexus parked in front of 160 Marshall Street in Hartford and impounded the vehicle. Because the defendant had been residing at that address since September, 1999, the police added his photograph to a photographic array to be viewed by Lepak. On January 15, 2000, detectives showed Lepak the photographic array and he identified the defendant’s photograph as the driver of the Lexus. Based on that identification, an arrest warrant was prepared and executed for the defendant.

Following a jury trial, the defendant was convicted of conspiracy to commit kidnapping in the second degree and conspiracy to commit larceny in the first degree. The court sentenced the defendant separately on the each of the conspiracy counts. The defendant was sentenced to a total effective sentence of twelve years incarceration followed by six years special parole.

The defendant claims that the court’s instruction to the jury regarding both counts of conspiracy omitted essential elements and, therefore, violated his due process rights as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. We do not agree.

The defendant’s first instructional claim is that the court failed to instruct the jury as to when an agreement must take place in order to enter into a conspiracy. The defendant failed to object to the jury instructions and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or, in the alternative, under the plain error doctrine. We will review this claim under the Golding doctrine because the record is adequate for review and the claim that the juiy was not instructed on an essential element of an offense is of constitutional magnitude; see State v. Denby, 235 Conn. 477, 483-84, 668 A.2d 682 (1995); but we conclude that the defendant cannot prevail under the third prong of Golding because he has not established that a constitutional violation clearly exists that clearly deprived him of a fair trial.

“We begin by noting that an improper jury instruction as to an essential element of the crime charged may result in the violation of the defendant’s due process right to a fair trial, and thus require the reversal of a conviction based upon that instruction. . . . When reviewing the challenged jury instruction, however, we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Hair, 68 Conn. App. 695, 705-706, 792 A.2d 179, cert. denied, 260 Conn. 925, 797 A.2d 522 (2002). “[I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Internal quotation marks omitted.) State v. Crnkovic, 68 Conn. App. 757, 767, 793 A.2d 1139, cert. denied, 260 Conn. 925, 797 A.2d 521 (2002).

“To establish the crime of conspiracy under § 53a-48 ... it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. . . . Further, the prosecution must show both that the conspirators intended to agree and that they intended to commit the elements of the underlying offense.” (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 657-58, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).

In this case, the court gave a thorough instruction on the elements of conspiracy. The court clearly expressed that the essence of a conspiracy is an agreement to commit a crime intentionally followed by an overt act in furtherance of that agreement. Furthermore, the defendant has failed to cite any authority for his assertion that in cases where the court instructs that the necessary overt act must follow the agreement to commit the crime, the court must further instruct the jury, as an essential element of the crime of conspiracy, as to when the agreement had to take place to enter into a conspiracy.

Viewing the court’s instructions as a whole, we conclude that it is not reasonably possible that the jury was misled. The jury was properly instructed that the conspirators’ agreement to commit the crime must precede the commission of the overt act. The defendant, therefore, has failed to prove that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial, and his claim must fail under the third prong of Golding.

The defendant also cannot prevail under the plain error doctrine. As this court has noted, “[p]lain error review is reserved for truly extraordinary situations . . . and is not even implicated unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Clark, 69 Corm. App. 41, 49, 794 A.2d 541 (2002). On the basis of our thorough review of the record and briefs, we conclude that this situation does not involve any such obvious error and does not invoke any exceptional circumstances warranting plain error review.

The defendant also claims that the court’s instruction on the conspiracy to commit larceny count was incomplete in another respect. Specifically, he claims that the court failed to instruct the jury about the defendant’s statement to a witness. Likewise, the defendant seeks review of this claim under the Golding doctrine or, in the alternative, the plain error doctrine. We decline to review this claim.

In the days following the incident at Gale Toyota, the defendant traveled to Arizona to pick up Jessica Vasquez, a former girlfriend, who had just been released from jail. While in Vasquez’s presence, the defendant made a telephone call in which she heard him say, “[T]ell them stupid guys to get the car from the front of my house.” Vasquez testified that the defendant told her he had driven two men to a dealership and that they had stolen a car.

In this claim, the defendant does not, as he did in his previous claim, argue that an essential element of conspiracy was omitted from the court’s instruction. Rather, he claims that the jury should have been instructed on how to consider Vasquez’s testimony. Specifically, he claims that the trial court’s charge was incomplete as it failed to instruct the jury that it must find the defendant’s statements, as testified to by Vasquez, to have been made during the conspiracy and not to conceal the conspiracy. As such, the defendant’s claim can be more properly viewed as evidentiary in nature rather than constitutional. See State v. Wild, 43 Conn. App. 458, 467, 684 A.2d 720 (failure of trial court to give limiting instruction as to constancy of accusation testimony is not matter of constitutional magnitude), cert. denied, 239 Conn. 954, 688 A.2d 326 (1996). Because the defendant has failed to demonstrate that this claim is of constitutional magnitude, we decline to afford this claim Golding review.

In addition, we conclude that this claim does not involve any obvious error or implicate any of the exceptional circumstances warranting plain error review. Our rules of evidence permit admitting into evidence the inculpatory admissions of a party. Conn. Code Evid. § 8-3 (1); State v. Woodson, 227 Conn. 1, 15, 629 A.2d 386 (1993). The defendant’s argument confuses hearsay statements of a coconspirator with the actual admissions of the defendant himself.

We next turn to the defendant’s final claim that the court improperly denied his motion for a judgment of acquittal because the state failed to produce sufficient evidence of an agreement to enter into a conspiracy. We do not agree.

“In reviewing claims of insufficiency of the evidence, an appellate court employs a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” (Internal quotation marks omitted.) State v. Corbin, 61 Conn. App. 496, 517-18, 765 A.2d 14, cert. granted on other grounds, 256 Conn. 910, 911, 772 A.2d 1124, 1125 (2001).

At the conclusion of the state’s case, the defendant moved for a judgment of acquittal on the ground that the state presented insufficient evidence to prove that he had entered into an agreement to engage in criminal activity. In denying the motion, the court stated that “considering that there were two people who went into the dealership, had discussions, went out for a test drive around the block, came back, had to get a car gas credit slip and then one of the two had to give over his license or a license that was [photocopied] and then they went back on the road, one, according to the testimony, provided the driving and the other provided the threatening, the jury could conclude that while there was no formal agreement, there was a meeting of the minds

The defendant claims that the only evidence offered to link him to the conspiracy to commit kidnapping and larceny was the testimony of Vasquez. The defendant asserts that the jury could not have reasonably concluded solely on the basis of Vasquez’ testimony that the defendant had entered into an agreement to engage in criminal activity.

“While the state must prove an agreement, the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts.” (Internal quotation marks omitted.) State v. Davis, 68 Conn. App. 794, 799, 793 A.2d 1151, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002).

In this case, the jury reasonably could have found from the circumstantial evidence that the defendant entered into an agreement to commit a crime. It could have reasonably found that two men entered the Gale Toyota dealership together on the date of the incident and that Lepak identified the defendant as one of those men. During the test drive, the men made it known to Lepak that they intended to steal the car’. While in the car, the defendant drove while the other man held what Lepak thought was a gun to the back of his head. While there was no direct evidence of an agreement between the defendant and the other man, there was sufficient evidence for the jury to infer by their actions that such an agreement existed. “We cannot speculate, as the [defendant] would have us do, as to how and why the jury arrived at its verdict.” (Internal quotation marks omitted.) State v. McCall, 62 Conn. App. 161, 168, 780 A.2d 134, cert. denied, 258 Conn. 935, 785 A.2d 231, petition dismissed, 258 Conn. 935, 785 A.2d 232 (2001). Furthermore, there was no evidence that either of the men objected to the actions of the other or tried to withdraw from the agreement.

On the basis of our review of the record, we conclude that the evidence was sufficient to sustain the inference that the defendant entered into an agreement to engage in the kind of criminal activity for which he was convicted.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his brief, 1he defendant also claims that the trial court improperly sentenced him separately as to each conspiracy count. During the pendency of this appeal, the state filed a motion to correct the illegal sentence. The trial court granted the motion and vacated the defendant’s sentence for conspiracy to commit larceny in the first degree. The defendant’s original sentence for conspiracy to commit kidnapping in the second degree remained in effect. The defendant concedes that this issue was rendered moot by the resentencing and, therefore, we lack subject matter jurisdiction over this claim.

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       “[T]he plain error doctrine, which is now codified at Practice Book § 60-5, provides in relevant part: The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . . The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . . Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Citation omitted; internal quotation marks omitted.) State v. Trotter, 69 Conn. App. 1, 11-12, 793 A.2d 1172, cert. denied, 260 Conn. 932, 799 A.2d 297 (2002).

       The court’s instruction to the jury on the conspiracy counts, in relevant part, was as follows: “The essence, but not all the elements of conspiracy, the essence is a criminal agreement to intentionally commit a crime followed by an overt act in furtherance of that intentional criminal agreement. Conspiracy may be completed by entering into that criminal agreement and by committing an overt act, which I’ll define for you, in furtherance of that criminal agreement by two or more persons even though the underlying crime is never completed.
      sfi Hi
      “To constitute the crime of conspiracy, the state must prove the following elements beyond a reasonable doubt. One, there was an agreement between the defendant and one or more persons to engage in conduct constituting a crime. . . . Two, that there was an overt act in furtherance of the subject of the agreement by any one of those persons who were parties to the agreement. And three, there was an intent on the part of the defendant . . . that conduct constituting a crime be performed.
      * ** *
      “The first element is the agreement between two or more persons. . . . It is sufficient to show that the parties knowingly engaged in a mutual plan to do a criminal act. ... It is enough if he knows a conspiracy exists or that he creates one and that he is joining with at least one other person in agreement to commit a crime. . . . [T]he first element that the state must prove on conspiracy ... is that the defendant entered into an agreement with at least one other person to engage in conduct constituting a crime.
      * * *

        “An overt act is any step, action or conduct that is taken to achieve or further the objective of the conspiracy. An overt act, therefore, is one that is committed. . . by any member of the conspiracy in an effort to accomplish some objective or purpose of the conspiracy. . . . The overt act must be subsequent, a subsequent independent act that follows the formation of the conspiracy. . . . Now, if you find that there was an agreement to engage in conduct constituting a crime, and the agreement was followed by an overt act or acts directed to achieve — to further the objective of the conspiracy, you must still determine whether the defendant had criminal intent.” (Emphasis added.)


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    ORIGINAL GRASSO CONSTRUCTION COMPANY, INC. v. JOHN SHEPHERD
    (AC 21679)
    (AC 21925)
    Schaller, Mihalakos and Flynn, Js.

      Argued February 22
    officially released June 11, 2002

      James H. Lee, for the appellant-appellee (defendant).

      Neal L. Moskow, with whom, on the brief, was Deborah M. Garskof, for the appellee-appellant (plaintiff).
   Opinion

MIHALAKOS, J.

This opinion concerns two separate appeals, which have been consolidated, involving the same parties. In the first appeal, AC 21679, the defendant, John Shepherd, appeals from the judgment of foreclosure by sale rendered by the trial court in favor of the plaintiff, Original Grasso Construction Company, Inc. (Original Grasso). In his statement of the issues, the defendant claims that the court improperly (1) sustained the conclusion of the attorney trial referee (referee) that an unsigned proposal embodied the contract between the parties and (2) accepted the referee’s report. In the second appeal, AC 21925, Original Grasso appeals from the court’s denial of an award of attorney’s fees relating to the underlying contract action. On appeal, the plaintiff claims that the court improperly denied it reasonable attorney’s fees, which are provided for in General Statutes § 52-249. We affirm the judgment of foreclosure by sale in AC 21679 and reverse the judgment denying attorney’s fees in AC 21925.

The predicate facts and procedural history involved in both appeals are as follows. The defendant is the owner of a horse boarding and riding facility known as Lion Hill Farm (Lion Hill) located in Easton. In early 1997, the defendant communicated to the plaintiff his desire to have certain construction work performed at Lion Hill. After months of negotiation, the plaintiff presented to the defendant a quote, dated April 10,1997, outlining the work to be done.

The plaintiff began construction in May, 1997. After the relationship between the parties deteriorated, the defendant hired a third party to complete the project and neglected to inform the plaintiff of that fact. In October, the plaintiff provided the defendant with a final invoice in the amount of $14,620.33, representing the remaining balance due under the contract and for additional work performed.

The plaintiff recorded a mechanic’s lien against the property on the Easton land records. Thereafter, the plaintiff sought to foreclose the mechanic’s lien. The defendant filed an answer, special defenses and a counterclaim for damages alleging that the plaintiff had failed to complete the riding ring in a timely manner resulting in lost income to the defendant. The matter was tried before a referee on March 10, 1999, and post-trial briefs were filed by March 31, 1999.

On July 29, 1999, the referee filed his report recommending that judgment enter in favor of the plaintiff on the complaint in the amount of $14,620.33 plus costs and interest, and that judgment enter in favor of the plaintiff on the special defenses and counterclaim. In addition, the report recommended that each party pay his or its own attorney’s fees.

On August 10, 1999, the parties each filed a motion to correct the report, which the referee summarily denied. Thereafter, the defendant objected to the acceptance of the report, and the plaintiff opposed the objection. On July 7, 2000, the court remanded the matter to the referee with direction to amend the report to state the subordinate facts necessary to support $6244 of the recommended damages award. In response to the court’s order, the referee filed an amendment incorporating the report and making additional findings of fact to support the $6244. The defendant filed motions for rejection of the report and for referral of the matter to a different attorney trial referee.

On September 28, 2000, the court accepted the report and rendered judgment accordingly. On December 13, 2000, the plaintiff filed a motion for strict foreclosure of the mechanic’s lien. The court, however, rendered judgment of foreclosure by sale on February 26, 2001. These appeals followed. Additional facts will be set forth as necessary.

I

DEFENDANT’S APPEAL

The defendant claims that the court improperly sustained the referee’s conclusion that the unsigned proposal embodied the contract between the parties. In addition, he claims that the court improperly remanded the matter to the same attorney trial referee rather than either accepting the report or rejecting the report and revoking the referral. We address each claim seriatim.

A

The defendant poses three arguments to support his claim that the court improperly sustained the referee’s conclusion that the unsigned proposal embodied the contract. He first argues that (1) the evidence does not support finding number thirteen of the report, (2) the referee’s additional findings do not support the conclusion that the proposal is the contract and (3) if the proposal is the contract, that contract and the findings made do not support the award of damages. The defendant’s first contention is that the referee’s finding that paragraph D of the April 10, 1997 quote encompassed the parties’ agreement regarding the scope of the work to be done was clearly erroneous. He further contends that the referee’s additional findings do not support the conclusion that the proposal is the contract. In the alternative, the defendant argues that the findings do not support the damages awarded to the plaintiff. We disagree.

Our review of an attorney trial referee’s findings of facts is extremely limited. “[Our Supreme Court] has articulated that attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.” (Internal quotation marks omitted.) Killion v. Davis, 257 Conn. 98, 102, 776 A.2d 456 (2001). Indeed, “[attorney trial referees are empowered to hear and decide issues of fact.” (Internal quotation marks omitted.) Anastasia v. Beautiful You Hair Designs, Inc., 61 Conn. App. 471, 475, 767 A.2d 118 (2001). Neither this court, nor the trial court, may substitute its findings for those of the referee. See Killion v. Davis, supra, 102. Our task is to determine whether the evidence supports the facts set forth in the report. See id.

“[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.) Hoye v. DeWolfe Co., 61 Conn. App. 558, 562, 764 A.2d 1269 (2001). “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Shapero v. Mercede, 66 Conn. App. 343, 347, 784 A.2d 435, cert. granted on other grounds, 258 Conn. 944, 786 A.2d 430 (2001). “While the reports of [attorney trial referees] in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based upon evidence, in the absence of errors of law, and the parties have no right to demand that the court shall redetermine the fact thus found.” (Internal quotation marks omitted.) Killion v. Davis, supra, 257 Conn. 102. “The trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee.” (Internal quotation marks omitted.) Anastasia v. Beautiful You Hair Designs, Inc., supra, 61 Conn. App. 475.

“Although it is true that when the trial court reviews the attorney trial referee’s report the trial court may not retry the case and pass on the credibility of the witnesses, the trial court must review the referee’s entire report to determine whether the recommendations contained in it are supported by findings of fact in the report.” (Internal quotation marks omitted.) Killion v. Davis, supra, 257 Conn. 102. “Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the [attorney trial] referee.” (Internal quotation marks omitted.) Anastasia v. Beautiful You Hair Designs, Inc., supra, 61 Conn. App. 475.

“To be enforceable, an agreement must be definite and certain as to its terms and requirements. . . . Whether and on what terms a contractual commitment has been undertaken are ultimately questions of fact for the trier of facts.” (Internal quotation marks omitted.) Sivilla v. Philips Medical Systems of North America, Inc., 46 Conn. App. 699, 708, 700 A.2d 1179 (1997). A fact finder’s determination of whether a contract existed must be based on all of the evidence. Furthermore, “[t]o form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties. ... To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties. . . . Because the . . . claim involves a finding of fact, we must adhere to the long-standing principle that findings of fact are ordinarily left undisturbed upon judicial review.” (Internal quotation marks omitted.) Lussier v. Spinnato, 69 Conn. App. 136, 140, 794 A.2d 1008 (2002).

“A manifestation of mutual assent may be made even though neither offer nor acceptance can be identified and even though the moment of formation cannot be determined.” (Internal quotation marks omitted.) Sivilla v. Philips Medical Systems of North America, Inc., supra, 46 Conn. App. 709. “Parties are bound to the terms of a contract even though it is not signed if their assent is otherwise indicated.” Hoye v. DeWolfe Co., supra, 61 Conn. App. 563-64. In addition, “[w]hat the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact.” (Internal quotation marks omitted.) Suburban Sanitation Service, Inc. v. Millstein, 19 Conn. App. 283, 287, 562 A.2d 551 (1989).

The defendant focuses his argument on finding number thirteen of the report, which states: “The return of the document to the plaintiff together with a check indicates the defendant’s intent to engage the plaintiff to perform at least the portion of the work described in paragraph D, ‘Riding Ring Reconstruction.’ The lack of any change or attempted change to any of the provisions of exhibit A, together with the lack of any indication otherwise, written, oral or testimonial by the defendant may be and is taken as the defendant’s agreement to the terms, if not all of the quoted work, set forth in exhibit A.”

The following additional facts, as found by the referee, are relevant to our disposition of the defendant’s claim. In January, 1997, the parties began negotiating regarding construction work to be performed at Lion Hill, including reconstructing the existing riding ring. On April 10, 1997, the plaintiff forwarded to the defendant a quote outlining the work to be done. The defendant returned to the plaintiff an unsigned copy of the quote accompanied by a check in the amount of $10,000 containing “Ring const” in the memo field. Thereafter, the plaintiff began construction on the riding ring in accordance with paragraph D of the quote. The defendant paid to the plaintiff $43,200 for work on the riding ring and $32,781.38 for extra work outside the contract.

The referee found that there existed a contract between the parties and that the terms were set forth in paragraph D of the quote. Our review of the record persuades us that the findings of the referee, as expressed in his report, are sufficiently supported by the record. The parties negotiated the terms of their agreement for months prior to the plaintiff submitting a quote to the defendant. The plaintiff manifested its intention to enter into a contract by forwarding to the defendant the quote outlining the terms of the agreement. Upon receipt of the quote, the defendant forwarded $10,000 to the plaintiff representing a deposit toward work to be done on the riding ring. The defendant made additional payments to the plaintiff as the work on the ring progressed. Although there was no evidence that the defendant signed the quote, the payments to the plaintiff were sufficient to manifest his intent to enter into the contract. In addition, the defendant’s testimony regarding his expectations was consistent with the terms outlined in paragraph D of the proposal.

We conclude that the referee’s finding number thirteen is fully supported by the evidence and, therefore, is not clearly erroneous. Consequently, the referee’s additional findings, coupled with finding number thirteen, do support the conclusion that paragraph D of the unsigned proposal encompasses the terms of the contract. Thus, the defendant’s second argument also must fail.

The defendant’s alternative argument that if the proposal does encompass the terms of the contract, then it and the findings based thereon do not support the award of damages also has no merit. The defendant does not contest the manner in which the referee calculated the damages. He does claim, however, that the factual findings of the referee underlying the damages award were not supported by the evidence.

“In making its assessment of damages for breach of [any] contract the trier must determine the existence and extent of any deficiency and then calculate its loss to the injured party. The determination of both of these issues involves a question of fact which will not be overturned unless the determination is clearly erroneous.” (Internal quotation marks omitted.) Maloney v. PCRE, LLC, 68 Conn. App. 727, 741, 793 A.2d 1118 (2002).

The referee found that the work described in paragraph D of the quote had a value of $49,200, and the defendant paid only $43,300, leaving a balance due of $6000. He further found that the work performed outside the parameters of paragraph D had a value of $35,157.71, for which the defendant had paid $32,781.38, leaving an additional balance due of $2376.33. In addition to the two sums found owed, the referee found that the plaintiff had performed additional work between September 5 and 9, 1997, which had a value of $6244. After reviewing the record and the testimony of the parties, we conclude that the evidence supported the $14,620.33 in damages awarded to the plaintiff.

B

The defendant’s second claim is that the court improperly remanded the case to the same attorney trial referee for additional findings of fact more than one year after the hearing. He argues that pursuant to Practice Book § 19-17, the court was restricted to one of two choices, namely, either (1) accept the report or (2) reject the report and revoke the referral. We disagree.

Resolution of the defendant’s claim requires us to examine three rules of practice, Practice Book § 19-4, which pertains to deadlines for filing a report, Practice Book § 19-11, which pertains to amendments to a report, and Practice Book § 19-17, which pertains to the function of the court. That examination requires us to apply our well settled principles of statutory construction. “Statutory construction is a question of law and therefore our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) HUD/Willow Street Apartments v. Gonzalez, 68 Conn. App. 638, 647, 792 A.2d 165 (2002).

“The rules of statutory construction apply with equal force to Practice Book rules. . . . Where the meaning of a statute [or rule] is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction. ... A cardinal rule of statutoiy construction is that where the words of a statute [or rule] are plain and unambiguous the intent of the [drafters] in enacting the statute [or rule] is to be derived from the words used. . . . Where the court is provided with a clearly written rule, it need look no further for interpretive guidance.” (Citation omitted; internal quotation marks omitted.) Schiappa v. Ferrero, 61 Conn. App. 876, 882, 767 A.2d 785 (2001).

The language of the relevant mies of practice is not ambiguous. There is nothing in the language of Practice Book § 19-17 that prohibits the court from remanding the matter to the same attorney trial referee for clarification of the report without first rejecting the report. Contrary to the defendant’s contention, the court is mandated to reject the report only if it finds that the referee has “materially erred in its rulings or that there are other sufficient reasons why the report should not be accepted . . . .” Practice Book § 19-17; see also Hassane v. Lawrence, 31 Conn. App. 723, 727, 626 A.2d 1336 (1993). Moreover, an attorney trial referee may amend the report at any time before it is accepted. (Emphasis added.) Practice Book § 19-11; cf. Pilato v. Kapur, 22 Conn. App. 282, 284, 576 A.2d 1315 (after rejecting report for application of incorrect standard of law, court should remand to same attorney trial referee for determination of whether interest is appropriate because attorney trial referee is most familiar with facts), cert. granted on other grounds, 216 Conn. 813, 580 A.2d 59 (1990) (appeal withdrawn).

In the present case, the court did not find that the referee materially erred in his rulings, nor did it find any other reason to reject the report. As in Hassane, the court “merely asked the trial referee to clarify his report by stating the basis of the awards. The court, in effect, declared that it could not determine whether to accept or reject the report without knowing the basis of the trial referee’s decision.” Hassane v. Lawrence, supra, 31 Conn. App. 727. Therefore, the court was not required to reject the report and properly remanded the matter to the same attorney trial referee for additional findings of fact to support the conclusions. See Practice Book § 19-11.

II

PLAINTIFFS APPEAL

The sole issue involved in the plaintiffs appeal is whether the court properly denied it attorney’s fees. The plaintiff claims that whether it was entitled to attorney’s fees pursuant to § 52-249 is a question of law for the court to decide in the foreclosure action. We agree.

The following additional facts and procedural history are relevant to our disposition of the plaintiffs appeal. On February 22, 2001, the plaintiff filed an updated affidavit of attorney’s fees seeking $8325. In its March 1, 2001 memorandum of decision, the court denied the plaintiffs request for attorney’s fees relating to the underlying action, but awarded $675 to the plaintiff for attorney’s fees in the foreclosure action. The court concluded that the plaintiffs “remedy for obtaining attorney’s fees in the underlying action existed up to the time that judgment was entered accepting the [attorney trial referee’s] report. Thus, the plaintiffs entitlement to attorney’s fees and enforcing payment under the contract between the parties has already been adjudicated. Its attorney’s fees are thereby limited to those which are associated exclusively with postjudgment services.” The court reasoned that the plaintiff “makes no claim that the trial of the underlying mechanic’s lien constituted a ‘hearing on an issue of fact’ within the meaning of [§ 52-249].”

The issue before the court was whether the plaintiff was entitled to attorney’s fees incurred in the litigation of the contract dispute pursuant to § 52-249. “The question of whether a particular statute . . . applies to a given state of facts is a question of statutory interpretation .... Statutory interpretation presents a question of law for the court.” (Citation omitted; internal quotation marks omitted.) Meadows v. Higgins, 49 Conn. App. 286, 291, 714 A.2d 51 (1998), rev’d on other grounds, 249 Conn. 155, 733 A.2d 172 (1999). Our review is, therefore, plenary. State v. Corona, 69 Conn. App. 267, 276, 794 A.2d 565 (2002).

“Connecticut case law follows the general rule, frequently referred to as the ‘American Rule,’ that attorney’s fees are not allowed to the prevailing party as an element of damages unless such recovery is allowed by statute or contract. . . . General Statutes § 52-249 (a) succinctly and unambiguously provides for the allowance of attorney’s fees in actions for foreclosure of mortgages or liens.” (Citation omitted.) A. Secondino & Son, Inc. v. LoRicco, 19 Conn. App. 8, 15-16, 561 A.2d 142 (1989).

In addition, § 52-249 provides that the plaintiff may be awarded attorney’s fees in an action to foreclose a lien “upon obtaining judgment of foreclosure . . . .” (Emphasis added.) General Statutes § 52-249 (a). According to § 52-249, the plaintiff must argue for attorney’s fees during the foreclosure action. Therefore, the court’s conclusion that the plaintiffs remedy for obtaining attorney’s fees in the contract action was extinguished at the time it rendered judgment was an improper application of the law.

Furthermore, the plaintiff could not present evidence of attorney’s fees to the referee because the referee possesses no authority to determine questions of law. “An attorney trial referee does not exercise the powers of a court and is simply a fact finder. ” Liberty Plumbing Supply Co. v. Paul S. Yoney, Inc., 41 Conn. App. 594, 597, 677 A.2d 13 (1996). “Any legal conclusions reached by an attorney trial referee have no conclusive effect. . . . The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment.” (Citation omitted; internal quotation marks omitted.) State Bank of Westchester v. New Dimension Homes of Connecticut, Inc., 38 Conn. App. 491, 497, 661 A.2d 119 (1995).

In his report, the referee found that the “plaintiff offered no evidence of the amount of attorney’s fees incurred and therefore has waived any claim for attorney’s fees.” That finding is in complete derogation of § 52-249. Section 52-249 (a) mandates that the plaintiff in a foreclosure action shall be allowed reasonable attorney’s fees “when there has been a hearing as to the form of judgment” during the foreclosure action.

Because the question as to whether the plaintiff is entitled to attorney’s fees pursuant to § 52-249 is a question of law, an attorney trial referee cannot decide the issue. We therefore hold that the court in the foreclosure action must determine whether a party is entitled to attorney’s fees pursuant to § 52-249 that were incurred in the litigation of the underlying action.

The judgment in AC 21679 is affirmed. The judgment in AC 21925 is reversed as to the denial of attorney’s fees and that matter is remanded for determination of whether and to what extent the plaintiff may be entitled to attorney’s fees pursuant to § 52-249.

In this opinion the other judges concurred.

       On March 8, 2001, the plaintiff filed a cross appeal regarding attorney’s fees. On May 10, 2001, this court granted the defendant’s motion to dismiss the cross appeal and, sua sponte, granted the plaintiff permission to file a late appeal. Although the cases have been briefed and argued separately, we address them together because they are based on the same record.

       Paragraph D of the plaintiffs exhibit A outlined the specifications for the riding ring reconstruction that would cost $57,600. The quote states in relevant part: “Work included:
      “1. To remove existing wood fence and dispose.
      “2. To excavate and remove existing sub base materials and haul to onsite location.
      “3. To subgrade ring pitching all water towards existing swale and compact with a 20 ton vibrating roller.
      “4. To regrade existing slope and swale on west side of ring and reseed.
      “5. To supply and install 8” of 3/4” 1-4” and compact with a 20 ton vibrating roller.
      “6. To supply and install 4” of screen sand and stone dust mixture (specification to be supplied by owner).
      “7. To construct a field stone wall on the east side of ring to retain slope.”

       We agree that the referee applied the proper legal standard when he assessed the plaintiffs claim of damages. “It is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed. . . . The injured party, however, is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain. . . . Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach.” (Internal quotation marks omitted.) Maloney v. PCRE, LLC, 68 Conn. App. 727, 742, 793 A.2d 1118 (2002).

       Practice Book § 19-4 provides: “An attorney trial referee to whom a case has been referred shall file a report with the clerk of the court, with sufficient copies for all counsel, within one hundred and twenty days of the completion of the trial before such referee.”

       Practice Book § 19-11 provides: “A committee or attorney trial referee may, at any time before a report is accepted, file an amendment to it or an amended report.”

       Practice Book § 19-17 provides in relevant part: “(a) The court shall render such judgment as the law requires upon the facts in the report. If the court finds that the . . . attorney trial referee has materially erred in its rulings or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another . . . attorney trial referee . . . for a new trial or revoke the reference and leave the case to be disposed of in court.
      “(b) The court may correct a report at any time before judgment upon the written stipulation of the parties or it may upon its own motion add a fact which is admitted or undisputed or strike out a fact improperly found.”

       The defendant heavily relies on this court’s decision in Schiappa v. Perrero, supra, 61 Conn. App. 876. He appears to argue that the report was untimely because the amendment to the report was not filed until well after the 120 day deadline for filing the report had expired. His reliance is misplaced. In Schiappa, no report was filed within the 120 day deadline. See id., 878. In the present case, it is undisputed that the first report was filed on the one hundred twentieth day. Therefore, Schiappa is inapposite to the case at hand.

       General Statutes § 52-249 (a) provides in relevant part: “The plaintiff in any action of foreclosure of a mortgage or lien, upon obtaining judgment of foreclosure, when there has been a hearing as to the form of judgment or the limitation of time for redemption, shall be allowed the same costs, including a reasonable attorney’s fee, as if there had been a hearing on an issue of fact. . . .”

       The plaintiff does not claim that it is entitled to attorney’s fees pursuant to the contract. In fact, the record is devoid of any reference to that effect.


text:
    MIDSTATES RESOURCES CORPORATION v. GARY N. DOBRINDT
    (AC 21546)
    Mihalakos, Dranginis and Dupont, Js.
    Argued April 2
    officially released June 11, 2002

      NealL. Moskow, with whom, on the brief, were Frederic S. Ury and Deborah M. Garskof for the appellant (substitute plaintiff).

      Francis R. Sablone, Jr., for the appellee (defendant).
   Opinion

MIHALAKOS, J.

This is an action by the plaintiff, Midstates Resources Corporation (Midstates), to collect moneys due pursuant to a promissory note. After a full hearing in damages, the trial court awarded only nominal damages to the substitute plaintiff, National Loan Investors, L.P. (National Loan). National Loan now appeals from that judgment. On appeal, it essentially claims that the court improperly ruled that it failed to prove, by a preponderance of the evidence, the amount of the debt due under the note. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On May 25, 1989, a promissory note in the principal amount of $70,000, payable to Saybrook Bank and Trust Company, was executed, which bore the signature of the defendant, Gary N. Dobrindt, as maker. After Saybrook Bank and Trust Company failed, the Federal Deposit Insurance Corporation (FDIC) was appointed as receiver. Midstates subsequently purchased the note from the FDIC for value. On January 27,1998, Midstates accelerated the note and declared the entire amount immediately due.

On September 24, 1998, Midstates commenced this action to collect the moneys due under the note. On June 27, 2000, the court granted Midstates’ motion for summary judgment as to liability only. After Midstates obtained judgment in its favor, it assigned the note to National Loan. Thereafter, National Loan was substituted for Midstates as the plaintiff in this action.

At the hearing in damages, National Loan proffered exhibit four as evidence of the amount of debt. The exhibit was introduced through Diana Tubbs, an account officer with National Loan. Tubbs testified that she previously was employed by the FDIC and was familiar with the standard banking practices relating to failed banks. Although she had no personal knowledge of who had prepared the document or the underlying figures, she did testify that similar documents are produced in the ordinary course of business when a bank has failed. On the basis of her interpretation of exhibit four, Tubbs testified that the principal balance outstanding was $62,800. In addition, National Loan proffered exhibits five and six to establish the debt due. The court rendered judgment in favor of National Loan in the amount of $1. This appeal followed.

National Loan claims on appeal that the court improperly ruled that it had failed to establish by a preponderance of the evidence the probity and credibility of exhibit four. In the alternative, National Loan claims that it produced additional evidence to establish by a preponderance of the evidence the amount owed on the debt. We are not persuaded. We will address these claims together.

In reviewing National Loan’s claims on appeal, we employ our well settled standard of review. “On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. ... A factual finding may be rejected by this court only if it is clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Weyel v. Catania, 52 Conn. App. 292, 295, 728 A.2d 512, cert. denied, 248 Conn. 922, 733 A.2d 846 (1999).

“[G]reat weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence.” (Internal quotation marks omitted.) In re Daniel C., 63 Conn. App. 339, 348, 776 A.2d 487 (2001). “We repeatedly have held that credibility is a matter for the trier of fact to determine. In a [proceeding] tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . Where there is conflicting evidence . . . we do not retry the facts or pass on the credibility of the witnesses. . . . The probative force of conflicting evidence is for the trier to determine.” (Internal quotation marks omitted.) State v. Nelson, 67 Conn. App. 168, 179, 786 A.2d 1171 (2001).

As a preliminary matter, the parties do not dispute that the spreadsheet in question was properly admitted into evidence pursuant to the business records exception to the rule against hearsay. See General Statutes § 52-180. National Loan argues, however, that the “liberal standards with regard to admissibility apply equally to the weight to be given these documents once admitted into evidence.” We do not agree.

National Loan’s argument focuses on the reliability of the business record. It contends that because the record was admissible, it was inherently trustworthy, and, therefore, the court could not discredit the evidence. Admissibility, however, is not the issue before us. Although business records do contain independent “indicia of reliability”; see, e.g., State v. Waterman, 7 Conn. App. 326, 341-42, 509 A.2d 518 (conformity with statutory conditions that permit admission of business records is deemed to provide reasonable indicia of reliability), cert. denied, 200 Conn. 807, 512 A.2d 231 (1986); it is for the trier of fact to determine the weight to be given to the business record. To require the court to extend the standards for admissibility to apply to the weight to be given the evidence would be to invade the sole province of the fact finder. This, we will not do.

“Conformity with the statutory conditions which permit the admission of business records is deemed to provide reasonable indicia of reliability. . . . Even when properly admitted, [however,] such records carry no presumption of accuracy, their credibility remaining a question for the trier of fact. . . . While the circumstances of the making of the [records] may be shown to affect the weight of that evidence . . . there is no requirement that the accuracy of a business record be proved as a prerequisite to its admission.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Carabetta, 55 Conn. App. 369, 375, 739 A.2d 301, cert. denied, 251 Conn. 927, 742 A.2d 362 (1999).

“It has long been recognized that a record kept in the usual course of business is admissible. ... It is equally clear that business records do not carry any presumption of accuracy merely because they are admissible. The credibility of such records remains a question for the trier of fact.” (Citations omitted.) State v. Ward, 172 Conn. 163, 170, 374 A.2d 168 (1976); see also New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 602, 717 A.2d 713 (1998) (proponent need not prove accuracy of record to be admissible; its weight is issue for trier of fact); State v. Waterman, supra, 7 Conn. App. 341-42 (properly admitted records carry no presumption of accuracy, their credibility remaining question for trier of fact).

In the present case, the defendant objected to the admission into evidence of exhibit four, arguing that it was not within the business records exception to the rule against hearsay because Tubbs lacked any personal knowledge relating to the record. In response, National Loan argued that the concerns held by the defendant addressed the weight of the evidence and not its admissibility. The court was persuaded by that argument and admitted the spreadsheet into evidence.

In its memorandum of decision, the court found that Tubbs “did not prepare exhibit [four], was not employed by the bank that prepared the document, did not know who prepared the document, did not know the Say-brook Bank and Trust Company officers or procedures, did not work for the FDIC when it took over the Say-brook Bank and Trust Company, did not know from her own knowledge the accuracy of the figures contained in exhibit four, and, could not testify whether or not Saybrook Bank and Trust Company followed general banking procedures on a day-to-day basis.” In addition, the court concluded that “the credibility and accuracy of the balance due under the note was not established by the [substitute] plaintiff by a preponderance of the evidence.”

We conclude that the court’s finding that National Loan did not establish by a preponderance of the evidence the amount owed on the debt was not clearly erroneous. The court properly admitted into evidence the computer generated spreadsheet. Achieving the threshold of admissibility, however, does not somehow transform a business record into an undisputed fact. It was completely within the province of the trier of fact, here, the trial court, to determine the weight to be afforded the testimony and exhibits. Therefore, the court properly considered Tubbs’ lack of personal knowledge of exhibits four and five and, impliedly, her lack of personal knowledge of the underlying figures used in her preparation of exhibit six. See General Statutes § 52-180.

The judgment is affirmed.

In this opinion the other judges concurred.

       After commencement of the action, Midstates assigned its interest in the subject note to National Loan Investors, L.P. On October 10, 2000, the court granted the motion filed by National Loan Investors, L.P., to be substituted as party plaintiff.

       National Loan’s exhibit four is a computer generated spreadsheet entitled “Trial Balance/Posting Journal” and dated December 6, 1991. In addition, Saybrook Bank and Trust Company is in the caption.

       National Loan’s exhibit five is a computer generated spreadsheet by which the defendant calculated the interest due on the principal balance supplied by exhibit four.

       National Loan’s exhibit six is a computer generated spreadsheet entitled “Accrual Loan Payment Journal” and dated November 27, 1991. The name “Saybrook Bank & Trust Co.” is also in the caption.

       General Statutes § 52-180 provides in relevant part: “(a) Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.
      “(b) The writing or record shall not be rendered inadmissible by (1) a party’s failure to produce as witnesses the person or persons who made the writing or record, or who have personal knowledge of the act, transaction, occurrence or event recorded or (2) the party’s failure to show that such persons are unavailable as witnesses. Either of such facts and all other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect the weight of the evidence, but not to affect its admissibility. . . .” (Emphasis added.)

       At. trial, it was the defendant’s position that the exhibit -was not admissible. In his brief and at oral argument before this court, the defendant conceded that the document was properly admitted as a business record.

         The following exchange took place:
      “[National Loan’s Counsel]: Because there has been a series of cases, Your Honor, that have said, familiarity with other files from that particular bank, familiarity with their procedures of that other bank, even though they did not work at that bank or [did] not [work] for the FDIC, malee that document admissible as a business record.
      “The issue as to whether or not they believe it’s accurate or not goes to the weight, but the admissibility of that document as a business record has been found by the Supreme Court to allow documents prepared by other entities ....
      * * *
      “The Court: And how does the court determine the accuracy of the debt?
      “[National Loan’s Counsel]: It goes to the weight, Your Honor.” (Emphasis added.)


author: PELLEGRINO, J.

text:
    GEORGE A. THOMPSON, TRUSTEE v. DAVID ORCUTT ET AL.
    (AC 19769)
    Schaller, Pellegrino and Dupont, Js.
    Submitted November 1, 2001
    officially released June 18, 2002

      Clifton E. Thompson filed a brief for the appellant (plaintiff).

      Bruce S. Beck filed a brief for the appellees (named defendant et al.).
   Opinion

PELLEGRINO, J.

This foreclosure action comes to us on remand from our Supreme Court. Thompson v. Orcutt, 257 Conn. 301, 777 A.2d 670 (2001). The plaintiff, George A. Thompson, trustee, previously appealed to this court from the judgment of the trial court determining that he had unclean hands, and ordering him to release a mortgage and the underlying note to the defendants, David Orcutt and Sandra Orcutt. We reversed the judgment on the ground that the doctrine of unclean hands did not apply as a defense to the plaintiffs foreclosure of the mortgage because the wrong committed by the plaintiff was not in connection with the matter before the court. Thompson v. Orcutt, 59 Conn. App. 201, 205-206, 756 A.2d 332 (2000). Our Supreme Court granted certification and upon review concluded that the clean hands doctrine is applicable to the plaintiff in the present action and that public policy considerations support application of the doctrine. Thompson v. Orcutt, supra, 257 Conn. 313-14, 316-18. The court directed us on remand to address the remaining issues raised by the plaintiff.

On appeal, the plaintiffs remaining claims are that the trial court improperly (1) found his partner, Jack L. Rosenblit, had unclean hands, (2) ordered the plaintiff to release a mortgage and the underlying note to the defendants, (3) ordered the plaintiff to provide a valid release of a lien in favor of Northeast Financial Services, (4) found that there was no trust agreement between the plaintiff and Rosenblit, and (5) overlooked the appearance in the foreclosure action of the bankruptcy trustee, John J. O’Neil, Jr. We affirm, in part, and reverse, in part, the judgment of the trial court.

The following factual and procedural history is relevant to our resolution of the plaintiffs appeal. “The plaintiff commenced this action against the defendants to foreclose on a mortgage that secured a note, the original balance of which was $25,000. The note was signed by the defendant David Orcutt as president of Alpha Equipment Sales and Rentals, Inc., and by the defendants individually and severally. The note was secured by a mortgage (Thompson mortgage) on property owned by the defendants known as 95 Greenwood Drive in Manchester, which mortgage was the subject of the foreclosure action. Although the plaintiff claimed that he was the trustee of that mortgage for himself and Jack L. Rosenblit, a business associate, no written trust agreement existed. . . .

“The mortgaged premises were subject to three encumbrances superior to the Thompson mortgage: A first mortgage to the New Haven Savings Bank in the amount of $60,000, a second mortgage in favor of the Connecticut Bank and Trust Company in the amount of $35,000 and a lien in favor of Northeast Financial Services (Northeast) [in the amount of $32,712], The principals of Northeast were the plaintiff and Rosenblit, and [although] the debt securing the mortgage to Northeast [had been] paid prior to the creation of the Thompson mortgage, [the hen] had not been released.

“In January, 1992, the plaintiff filed a voluntary petition in [chapter 7] bankruptcy in the United States Bankruptcy Court for the District of Connecticut, listing as an asset a one-half interest in the Thompson mortgage. The [B]ankruptcy [C]ourt appointed [a bankruptcy trustee to administer the bankruptcy] estate.....

“During the pendency of the bankruptcy case, the plaintiff represented to the bankruptcy trustee that the property securing the Thompson mortgage was encumbered in excess of its value .... On the basis of that representation, the bankruptcy trustee abandoned the Thompson mortgage as an asset of the bankruptcy estate because it ‘[did] not justify further administration.’ See 11 U.S.C. § 554 (a) (bankruptcy trustee may abandon property of estate ‘that is burdensome to the estate or that is of inconsequential value and benefit to the estate’).

“In their answer to the foreclosure complaint, the defendants admitted the existence of the debt, and the execution of the loan agreement and mortgage deed, but filed a special defense asserting that the plaintiff was guilty of unclean hands insofar as he had induced the bankruptcy trustee to abandon the [Thompson mortgage]. . . . The trial court concluded that the plaintiff had committed misrepresentation or fraud in the bankruptcy case. The trial court determined that because the misrepresentation or fraud concerned the Thompson mortgage, and that mortgage was the subject of the plaintiffs foreclosure action, the clean hands doctrine could apply. Although the trial court recognized that the clean hands doctrine generally applies only where the wrong [has been] done to the party against whom [affirmative] relief is sought, and the plaintiffs conduct in this case had occurred in the [B]ankruptcy [C]ourt, the trial court determined that the plaintiffs misrepresentation or fraud in the bankruptcy case involved an important public interest that justified a broader application of the doctrine. Accordingly, the trial court applied the clean hands doctrine, denied the relief sought by the plaintiff, and rendered judgment for the defendants. In addition, the trial court ordered the plaintiff to release the Northeast lien.” (Citations omitted; internal quotation marks omitted.) Thompson v. Orcutt, supra, 257 Conn. 303-305.

I

The plaintiff first claims that the court improperly found that Rosenblit had unclean hands. We agree.

“[Application of the doctrine of unclean hands rests within the sound discretion of the trial court. . . . The exercise of [such] equitable authority ... is subject only to limited review on appeal. . . . The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of [the trial court’s] action.” (Citations omitted; internal quotation marks omitted.) Id., 308.

The trial court’s judgment was based on the plaintiffs fraudulent conduct during the administration of his bankruptcy estate. The doctrine of unclean hands permits a court of equity to deny relief to a party whose claim “grows out of or depends upon or is inseparably connected with his own prior fraud . . . .” (Emphasis added; internal quotation marks omitted.) Id., 312. The defendants asserted the defense of unclean hands against Rosenblit as a beneficiary of the plaintiffs fraud. The trial court found that Rosenblit had unclean hands “since he was and is the active partner with [the plaintiff] concerning this mortgage.” The court did not directly address whether Rosenblit benefited from the plaintiffs fraud. In essence, therefore, the claim before this court requires us to address two separate possible justifications for applying the clean hands doctrine to Rosenblit. The first ground is the reason adopted by the trial court, i.e., the mere incidence of partnership between the plaintiff and Rosenblit. The second is the argument advanced by the defendants that Rosenblit benefited from the plaintiffs fraud.

Because the defendants seek the application of the clean hands doctrine to deny relief to the business partner of the party whose fraudulent conduct is at issue, we refer to well established principles of partnership law concerning liability for a partner’s actionable conduct. To hold the partnership hable for a fraud committed by one partner, the fraud must have been committed in the course of partnership business. General Statutes § 34-326; 59A Am. Jur. 2d, Partnership § 667 (1987). In general, to hold one hable for the tortious conduct of his partner, “[t]he connection with the partnership business or objective must rise above the level of mere speculation or surmise in order to estabhsh a partnership purpose in the tortfeasor’s conduct. [59A Am. Jur. 2d, supra] § 651.” (Internal quotation marks omitted.) Sheridan v. Desmond, 45 Conn. App. 686, 692, 697 A.2d 1162 (1997).

A

We first inquire into whether the plaintiffs fraud occurred within the ordinary scope of partnership business. We conclude that it did not.

To conclude that the plaintiffs conduct occurred within the scope of partnership business, that conduct must have (1) occurred substantially within the authorized time and geographic limits of the partnership, (2) been the kind of activity that a person engaged in the particular' business would perform and (3) been motivated at least in part by a purpose to serve the partnership. See id., 692-94. The plaintiffs conduct fails to satisfy the second and third factors. The partnership between the plaintiff and Rosenblit was engaged in the business of mortgage lending. The fraud complained of occurred in the context of the plaintiffs personal, chapter 7 bankruptcy proceeding. As such, the conduct bore no relation to the type of activity typically involved in mortgage lending.

Additionally, we find that the conduct was not motivated by a purpose to serve the partnership. Only the plaintiffs half-interest in the subject mortgage was before the Bankruptcy Court for consideration as an asset of the bankruptcy estate, and the plaintiffs fraudulent misrepresentations were explicitly directed only at that hall-interest. Because the asset at issue was limited to the plaintiffs interest in the partnership’s mortgage, the plaintiffs sole motive in misleading the bankruptcy trustee could only have been preserving that personal interest.

“Ordinarily, the determination of whether one is acting within the scope of partnership business is a question of fact. . . . Where, however, it is clear that one is not acting within the scope of employment, the question becomes one of law.” (Citations omitted.) Id., 695. We conclude, as a matter of law, that the plaintiffs fraud took place outside the scope of the partnership’s business.

B

We must next determine whether Rosenblit benefited from the plaintiffs fraudulent conduct. We conclude that he did not.

We first briefly note the defendants’ argument with respect to that issue. The defendants argue that the plaintiffs fraudulent misrepresentation to the bankruptcy trustee took place as an agent of the partnership because it was necessary to preserve Rosenblit’s one-half interest in the mortgage. Therefore, they argue that because the fraud was alleged to have benefited both partners, both partners equitably may be barred from pursuing foreclosure of the mortgage, regardless of the plaintiffs motive. We are not convinced.

We note that no evidence was presented at trial that implicated Rosenblit in the plaintiffs fraud. Further, an independent analysis reveals no possible motive for Rosenblit to have participated in the plaintiffs fraud because there was no benefit to be gained by him. Notwithstanding the fact that the fraud concerned an asset of the partnership, the fraud took place in the context of the plaintiffs personal, chapter 7 bankruptcy proceedings. Even in the absence of the plaintiffs fraud, Rosenblit’s interest in the mortgage was not subject to attachment by the plaintiffs creditors in bankruptcy. A creditor of one partner in his individual capacity may obtain satisfaction of the debt owed him only from the debtor’s share in the partnership property. Robinson v. Security Co., 87 Conn. 268, 281, 87 A. 879 (1913); Witter v. Richards, 10 Conn. 37, 40 (1833). Even if we assume, therefore, that the mortgage had been duly administered as an asset of the bankruptcy estate, the plaintiffs personal creditors would have been able to claim only against the plaintiffs one-half interest.

In determining that the clean hands doctrine should bar the plaintiff from foreclosing on the property, our Supreme Court noted that it was the plaintiffs fraud that allowed him to retain his interest in the Thompson mortgage. Thompson v. Orcutt, supra, 257 Conn. 316. Although the plaintiffs fraud allowed him personally to retain an interest in the mortgage, the fraud had no effect on Rosenblit’s interest. Rosenblit would have retained a one-half interest in the Thompson mortgage with or without the plaintiffs fraud.

Because there is no evidence that the plaintiffs business partner was involved with, or benefited from, the fraud that the plaintiff perpetrated on the Bankruptcy Court in the course of his personal bankruptcy proceeding, the trial court could not reasonably have found that Rosenblit was guilty of unclean hands. Accordingly, we conclude that the court improperly applied the clean hands doctrine to Rosenblit as a bar to his future pursuit of his interest in the subject note and mortgage.

II

The plaintiff next claims that the court improperly ordered him to release the subject mortgage and note to the defendants. We agree to the extent that the release ordered by the court was overbroad in that it improperly prejudiced the interest of the plaintiffs business partner in the subject note and mortgage.

We review the plaintiffs claim under an abuse of discretion standard. “This court will reverse a trial court’s exercise of its equitable powers only if it appears that the trial court’s decision is unreasonable or creates an injustice. . . . [E]quitable power must be exercised equitably . . . [but] [t]he determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 161-62, 622 A.2d 536 (1993).

“Since a mortgage foreclosure is an equitable proceeding, either a forfeiture or a windfall should be avoided if possible. In a foreclosure proceeding the trial court must exercise its discretion and equitable powers with fairness not only to the foreclosing mortgagee, but also to subsequent encumbrancers and the owner.” (Internal quotation marks omitted.) Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 354, 579 A.2d 1054 (1990). The trial court in a foreclosure action has broad discretion in determining whether to permit a foreclosure or to lessen the stated indebtedness. Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980); Gulack v. Gulack, 30 Conn. App. 305, 317-18, 620 A.2d 181 (1993).

Here, the court found that the plaintiff had induced the bankruptcy trustee to abandon the mortgage as an asset of the bankruptcy estate by fraudulently misrepresenting the value of the mortgage. The court also found, however, that the defendants themselves did not suffer any adverse consequences as a result of the plaintiffs fraud. On the contrary, the court found that but for that fraud, the mortgage properly would have been administered as an asset of the bankruptcy estate and that the bankruptcy trustee would have foreclosed the mortgage for the benefit of the plaintiffs creditors in bankruptcy.

As those circumstances suggest, had the bankruptcy trustee foreclosed the mortgage, the defendants’ debt to the plaintiff would have been extinguished. In light of the plaintiffs fraud, equity requires that he retain no greater interest in the note than if that asset had been made a part of his bankruptcy estate, as it properly should have been, and disposed of accordingly. To allow the plaintiff to retain his interest in the note and to collect on the underlying debt would be tantamount to a judicial sanction of a legal fraud. Accordingly, we conclude that the court had the authority to release the note under the circumstances of the present case, and that such release was not an abuse of the court’s discretion as it pertains to the plaintiffs interest in the note and mortgage. The matter stands on a different footing, however, with respect to Rosenblit’s interest in the mortgage.

The court improperly concluded that the plaintiffs partner, Rosenblit, was barred from pursuing his interest in the note and mortgage. Because we have concluded that the clean hands doctrine does not bar Rosenblit from pursuing either the equitable or legal remedies available to him to enforce his rights with respect to the subject note and mortgage, it would work an obvious injustice to deny Rosenblit the opportunity to pursue such remedies by extinguishing the debt through judicial fiat.

“Courts of equity will not permit one seeking to repudiate a deed or contract to gain any undue advantage over other innocent parties to it . . . .” Nichols v. Nichols, 79 Conn. 644, 653, 66 A. 161 (1907). Having found that the mortgage was an asset of the partnership between the plaintiff and Rosenblit, the court was bound by the principles of equity to comport its judgment with the interest of the plaintiffs business partner in the mortgage. The court’s unconditional release of the mortgage and note to the defendants was unreasonable and created an injustice by depriving Rosenblit, as an innocent party, of his interest in the mortgage and the possibility of recovering on the partnership’s loan to the defendants.

We are mindful that the release of the plaintiffs interest in the Thompson note and mortgage to the defendants may frustrate the ability of the plaintiffs bankruptcy creditors to collect on the debt. That difficulty, however, is at least partially of the creditors’ own making. The creditors have had two opportunities to claim the asset and have been delinquent in both instances. First, it appears from the record that the bankruptcy trustee failed independently to assess the value of the subject mortgage during the bankruptcy proceeding itself, relying instead on the plaintiffs representations. Second, after having been joined to this action as an indispensable party, the bankruptcy trustee failed to prosecute his claim with the requisite diligence and was defaulted. “It is a general rule of equity that he who seeks the aid of equity must show that he has used reasonable diligence in asserting his rights and demanding their protection, and unreasonable delay in seeking the aid of a court of equity will generally prove a bar to the exercise of the jurisdiction.” 2 J. Pomeroy, Equity Jurisprudence (5th Ed. 1941) § 418 n.2. Because equity aids the vigilant, we see no reason to be more solicitous of the bankruptcy creditors’ interest in the Thompson mortgage than were the creditors themselves.

Accordingly, we conclude that the proper disposition of the plaintiffs claim requires the release of the plaintiffs interest in the note and mortgage only and the corresponding reduction of the defendants’ liability on the mortgage note only to the extent that such obligation represents the plaintiffs share of the partnership’s loan to the defendants. Although it appears from the record that the appropriate course of action consistent with that objective would be to reduce the defendants’ liability on the note by half, the trial court on remand must determine the exact amount of the defendants’ outstanding liability on the debt based on Rosenblit’s interest in the loan. Because the mortgage secures the loan in total, rather than any specific portion of it, the mortgage itself should remain in place as security for the defendants’ continuing liability to Rosenblit on the partnership loan.

Ill

The plaintiff also claims that the court improperly ordered him to provide a valid release of a hen held by Northeast on the subject property. We disagree.

“A foreclosure action is an equitable proceeding. . . . The determination of what equity requires is a matter for the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the . . . discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citations omitted; internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Conant, 54 Conn. App. 529, 532, 736 A.2d 928, cert. denied, 251 Conn. 909, 739 A.2d 264 (1999).

“The governing motive of equity in the administration of its remedial system is to grant full relief, and to adjust in the one suit the rights and duties of all the parties, which really grow out of or are connected with the subject-matter of that suit .... 1 J. Pomeroy, [supra, § 114] ... . Equity regards as done what ought to be done ... or which ought to have been done.” (Citations omitted; internal quotation marks omitted.) Natural Harmony, Inc. v. Normand, 211 Conn. 145, 149, 558 A.2d 231 (1989).

“Because [foreclosure is peculiarly an equitable action . . . the court may entertain such questions as are necessary to be determined in order that complete justice may be done. ... In a foreclosure proceeding, the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Citation omitted; internal quotation marks omitted.) Amresco New England II, L.P. v. Colossale, 63 Conn. App. 49, 55, 774 A.2d 1083 (2001). “The rule that equity, having taken jurisdiction for one purpose, will hear all issues is applied to cases in which the court, on a proper ground for the intervention of equity, has taken jurisdiction in respect to questions concerning partnership matters. 1 J. Pomeroy, [supra] §§ 114, 239.” Maruca v. Phillips, 139 Conn. 79, 83, 90 A.2d 159 (1952).

The court found that the mortgaged premises were subject to three encumbrances superior to the Thompson mortgage, one of which was a lien in favor of Northeast. The principals of Northeast are the plaintiff and Rosenblit. The parties do not dispute that the lien held by Northeast had been paid but never was released. The plaintiff, however, claims that the court did not have personal jurisdiction over Northeast and, therefore, that the order concerning Northeast was improper. That argument is without merit.

The plaintiff invoked the equity jurisdiction of the court to adjudicate a claim of the partnership. Having found that the hen encumbering the subject property also was an asset of the partnership and that it had been discharged, it was well within the court’s sound discretion to adjudicate the release of that hen.

IV

The plaintiff claims that the court improperly found that there was no trust agreement between himself and Rosenblit. We disagree. The existence of a trust agreement is a question of fact for the trial court. “To the extent that the court has made findings of fact, our review is limited to deciding whether such findings are clearly erroneous. See Practice Book § 60-5; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Belanger v. Planning & Zoning Commission, 64 Conn. App. 184, 188-89, 779 A.2d 833 (2001).

In its memorandum of decision, the court stated: “The court further finds that there was no trust agreement, and the plaintiffs title of trustee is nothing more than a sham, that the owners of said mortgage were and are the plaintiff, George A. Thompson, and Jack Rosenblit . . . .’’In its subsequent articulation, the court stated that the “[pjlaintiff established that he was acting . . . as a partner on behalf of a partnership in which he and Jack Rosenblit were partners.

Upon review of both the transcript of the hearing before the court and the articulation provided in response to the defendants’ request, we conclude that the court’s finding in that regard is unclear and ambiguous. Although the court denied the existence of a trust relationship between the plaintiff and Rosenblit, the court nevertheless found that they were business partners and that the subject mortgage had been entered into in the course of that partnership. Given that factual finding, it is unclear what significance, if any, the alleged trust relationship, or lack thereof, could have to the issues facing this court;.

“It is a well established principle of appellate procedure that the appellant has the duty of providing this court with an adequate record to afford review. . . . Where the factual or legal basis of the trial court’s ruling is unclear, the appellant should seek articulation pursuant to Practice Book § 4051 [now § 66-5], . . . [W]e read an ambiguous record, in the absence of a motion for articulation, to support rather than to undermine the judgment.” (Citations omitted; internal quotation marks omitted.) State v. Marquis, 36 Conn. App. 803, 804, 653 A.2d 833, rev’d on other grounds, 235 Conn. 659, 668 A.2d 710 (1995). Although in the present case an articulation was requested and provided, the effect of the articulation is to cloud as much as it clarifies. The plaintiff failed to file a motion for review. Accordingly, we must assume that the trial court’s finding was proper.

V

The plaintiffs final claim is that the court improperly overlooked the appearance of the bankruptcy trustee and defaulted him for failure to appear. We disagree.

Entry of a default for failure to appear for trial is a matter left to the sound discretion of the trial court. Brunswick School, Inc. v. Hutter, 53 Conn. App. 455, 459, 730 A.2d 1206 (1999). Practice Book § 17-19 provides in relevant part: “If a party . . . fails without proper excuse to appear in person or by counsel for trial, the party may be nonsuited or defaulted by the judicial authority.” In response to the defendants’ motion for articulation, the trial court stated that the bankruptcy trustee had been defaulted for failure to appear at trial. Apart from the entry of a formal appearance on February 23, 1999, O’Neil did not submit any pleadings in the case, did not appear on the scheduled trial date and has not filed a motion to open the default. We conclude that the court did not abuse its discretion in defaulting O’Neil for his failure to appear at trial.

The judgment is reversed with respect to the holding that Rosenblit had unclean hands and the absolute release of the subject mortgage and note to the defendants and the case is remanded for further proceedings to determine the amount of the defendants’ outstanding liability on the subject note consistent with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       We agree with the plaintiffs first and second claims. We disagree, however, with the remaining claims raised by the plaintiff.

       The court found that the plaintiff had established that he was acting as a partner on behalf of a partnership consisting of himself and Rosenblit.

       We note as well that to fail to acknowledge the interest of the plaintiffs business partner and to grant an absolute release of 1he subject mortgage and note would be tantamount to the unjust enrichment of the defendants insofar as it would discharge them of all liability on the mortgage loan after having received the full benefit of that loan.