author: HENNESSY, J. SCHALLER, J.,

text:
    LEVEY MILLER MARETZ v. 595 CORPORATE CIRCLE ET AL.
    (AC 18716)
    Schaller, Spear and Hennessy, Js.
    Argued September 28, 1999
    officially released March 14, 2000

      Edwin L. Doemberger, for the appellant (plaintiff).

      James C. Graham, for the appellees (defendants).
   Opinion

HENNESSY, J.

The plaintiff, Levey Miller Maretz, appeals from the judgment rendered by the trial court after it granted the motion for summary judgment filed by the defendants, 595 Corporate Circle, a Connecticut general partnership, and Charles E. Weber, Jr., and Alfred J. Secondino, Jr., the only general partners. The plaintiff claims that the court improperly held that (1) a real estate listing agreement that identifies a partnership as the owner of the property and is signed by the general partners does not satisfy the requirements of General Statutes (Rev. to 1991) § 20-325a (b)* and (2) Public Acts 1994, No. 94-240, § 3 (P.A. 94-240, § 3), does not apply retroactively. We affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. The plaintiff is a licensed real estate broker. On April 23, 1991, the plaintiff entered into a listing agreement to sell or lease for a commission certain real property, the record owner of which was 595 Corporate Circle. At the bottom of the listing agreement, the plaintiffs signature appears above the typed title, “Listing Agent.” Weber’s signature appears above the typed label, “owner’s signature,” and Secondino’s signature appears above another typed label, “owner’s signature.”

During the term of the listing agreement, 595 Corporate Circle entered into a lease with the Stop & Shop Supermarket Company without the assistance of the plaintiff. The defendants paid no commission to the plaintiff, and the plaintiff brought an action against the defendants for payment of the commission in accordance with the listing agreement. The defendants filed a motion for summary judgment alleging that the listing agreement failed to comply with § 20-325a.

The court found the listing agreement to be unenforceable and granted the defendants’ motion for summary judgment. The court held that because the signature of the record owner, 595 Coiporate Circle, did not appear on the listing agreement, the agreement failed to comply with the ownership signature requirement of § 20-325a (b) (5). The court also found that the lack of a separate writing, pursuant to General Statutes (Rev. to 1991) § 47-5, authorizing Weber and Secondino to sign the listing agreements as agents of 595 Corporate Circle, rendered their signatures on the listing agreement ineffective to bind the partnership. In addition, the court found that P.A. 94-240, § 3, which amended § 20-325a, did not apply retroactively. The plaintiff appeals from the judgment.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book [§ 17-49] provides that summary judgment ‘shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). When issues in an appeal concern questions of law, such as statutory construction, this court reviews those claims de novo. See Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995).

I

The plaintiff first claims that the statutory requirements of § 20-325a (b) were satisfied. The plaintiff claims that the listing agreement was effectively signed by the owner of the property when both general partners signed the agreement and, therefore, there was no need to have those signatures witnessed and notarized pursuant to § 47-5, as required by § 20-325a (b). We disagree.

To be enforceable, a listing contract “must be in writing and must contain the information enumerated in General Statutes § 20-325a (b).” (Internal quotation marks omitted.) M.R. Wachob Co. v. MBM Partnership, 232 Conn. 645, 656, 656 A.2d 1036 (1995). General Statutes (Rev. to 1991) § 20-325a (b) provides in relevant part that such an agreement must “(1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent.” (Emphasis added.) “It is well established that the requirements of § 20-325a (b) are mandatory rather than permissive and that the statute is to be strictly construed.” McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 520, 590 A.2d 438 (1991). “Whether a listing agreement complies with these requirements is a question of law. New England Land Co., Ltd. v. DeMarkey, 213 Conn. 612, 623, 569 A.2d 1098 (1990).” M.R. Wachob Co. v. MBM Partnership, supra, 656.

“[T]he word ‘owner’ as it is used in § 20-325a (b), refers to the owner of the property interest that is the subject of the listing agreement.” Id., 661. It is undisputed that the owner of the property interest in the present case is 595 Corporate Circle. The individual partners of 595 Corporate Circle did not in fact own the property and, therefore, could not themselves be “owners” for the puiposes of § 20-325a (b). General Statutes (Rev. to 1991) § 34-46 provides in relevant part: “(1) All property originally brought into the partnership stock or subsequently acquired by purchase or otherwise, on account of the partnership, is partnership property. ... (3) Any estate in real property may be acquired in the partnership name. Title so acquired can be conveyed only in the partnership name. . . .” (Emphasis added.) The listing agreement does not reflect that anyone signed it on behalf of 595 Corporate Circle.

Although the general partners signed the listing agreement, they could do so only as agents because they were not the owners of the property interest. Accordingly, for the listing agreement to be enforceable, it must be signed by “an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5 . . . .” General Statutes (Rev. to 1991) § 20-325a (b) (5). The listing agreement does not reflect any authorization for Weber and Secondino to sign as agents for 595 Corporate Circle. Furthermore, it is undisputed that there is no document witnessed and acknowledged pursuant to § 47-5 authorizing Weber or Secondino to enter into the agreement on behalf of 595 Corporate Circle. We hold, therefore, that the listing agreement is unenforceable because it was not in strict compliance with § 20-325a (b).

The plaintiff argues that our Supreme Court, in M.R. Wachob Co. v. MBM Partnership, supra, 232 Conn. 645 held meritless any contention that the validity of a listing agreement signed by an owner’s agent may turn on whether the agency relationship is evidenced by a document made pursuant to § 47-5. We disagree. In M.R. Wachob Co., the owner of the property interest signed the listing agreement with the broker, M.R. Wachob Company, and assumed all lease obligations of the main tenant, Glyco, Inc., to the fee owner, Minoff Properties. In a footnote, the court stated that the defendant’s claim that the listing agreement was unenforceable because it did not comply with § 47-5 was meritless because MBM Partnership was not acting as anyone’s agent. There was no issue as to the authority of the defendant, MBM Partnership, to act as an agent on anyone’s behalf. The plaintiffs reliance on M.R. Wachob Co. for the proposition that § 47-5 is inapplicable is, therefore, misplaced.

The plaintiff, relying on McCutcheon & Burr, Inc. v. Berman, supra, 218 Conn. 512, also claims that under the provisions of General Statutes (Rev. to 1991) § 34-47 (1), “[e]very partner is an agent of the partnership for the purpose of its business, and the act of every partner . . . binds the partnership . . . .” The plaintiff further claims that McCutcheon & Burr, Inc., explicitly recognized that the provisions of § 34-47 apply to real estate listing agreements signed on behalf of a partnership. The plaintiff misreads McCutcheon & Burr, Inc. That case states: “Section 34-47 is a general provision that governs the authority of partners to bind the partnership when carrying on the partnership business. Section 20-325a (b), however, includes specific provisions that dictate when the signature of an owner’s agent satisfies the requirements of the statute. Under those provisions the agent must be authorized to act on behalf of the owner pursuant to ‘a written document executed in the manner provided for conveyances in section 47-5.’ ” Id., 521-22. Pursuant to McCutcheon & Burr, Inc., unless the general partners were authorized in accordance with § 20-325a (b) and § 47-5 to execute the lease agreement on behalf of 595 Corporate Circle, the strict provisions of § 20-325a (b) were not met, and the partnership was not bound by the agreement. We conclude that the listing agreement in this case was signed by the general partners in their individual capacity and not on behalf of 595 Corporate Circle. Section 20-325a (b) requires that the owner of the property interest sign the agreement. Because this was not done, the listing agreement was unenforceable under § 20-325a (b), and the court’s decision to grant summary judgment was appropriate.

II

The plaintiff claims also that the court improperly held that § 20-325a, as amended by P. A. 94-240, § 3, does not apply retroactively to the listing agreement. The plaintiff claims that if § 20-325a, as amended, had been applied to the 1991 listing agreement, summary judgment would have been improper because there would have been a genuine issue of material fact as to the equities involved in the recovery of the real estate commission. We disagree.

Effective July 1,1994, § 20-325awas amended by P.A. 94-240, § 3, to permit recovery of commissions in cases of substantial compliance with the statute and a finding that “it would be inequitable to deny such recovery.” General Statutes § 55-3 provides: “No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.”

“The obligations referred to in [§ 55-3] are those of substantive law.” (Internal quotation marks omitted.) Darak v. Darak, 210 Conn. 462, 467, 556 A.2d 145 (1989). “Legislation which limits or increases statutory liability has generally been held to be substantive in nature.” Little v. Ives, 158 Conn. 452, 457, 262 A.2d 174 (1969). We have “uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. . . . The legislature only rebuts this presumption when it ‘clearly and unequivocally’ expresses its intent that the legislation shall apply retrospectively.” (Citations omitted.) Darak v. Darak, supra, 467-68; Anderson v. Schieffer, 35 Conn. App. 31, 39, 645 A.2d 549 (1994).

“On the other hand, [procedural statutes and rules of practice ordinarily apply retroactively to all actions whether pending or not at the time the statute [or rule] became effective, in the absence of any expressed intent to the contrary.” (Internal quotation marks omitted.) Anderson v. Schieffer, supra, 35 Conn. App. 39-40. In addition, “[w]here an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect.” (Internal quotation marks omitted.) Toise v. Rowe, 243 Conn. 623, 628, 707 A.2d 25 (1998).

The amended § 20-325a falls within the area of legislation that affects substantive rights because it increases liability under the statute. See Hunter v. Hunter, 177 Conn. 327, 332, 416 A.2d 1201 (1979); Little v. Ives, supra, 158 Conn. 457. Prior to the enactment of P.A. 94-240, an action could be brought only under § 20-325a if there was strict compliance with the statute. See McCutcheon & Burr, Inc. v. Berman, supra, 218 Conn. 520 (“[i]t is well established that the requirements of § 20-325a [b] are mandatory rather than permissive and that the statute is to be strictly construed”). After the enactment of P.A. 94-240, however, strict construction of the statute was not required when there was substantial compliance with it and “it would be inequitable to deny [any licensee from recovering any commission].” General Statutes § 20-325a (c).

Thus, because P.A. 94-240 is substantive in nature, we presume that the legislature intended it to have prospective applicability. See Westport v. State, 204 Conn. 212, 219, 527 A.2d 1177 (1987). There is no clear and unequivocal language in the act or legislative history that would support a contrary inference in favor of retrospective application. Indeed, when our Supreme Court considered the amendment to § 20-325a in M.R. Wachob Co. v. MBM Partnership, supra, 232 Conn. 647 n.1, it stated that “[b]ecause the events that form the basis of this action occurred prior to the amendment’s effective date of July 1, 1994, however, we must apply the statute in effect during that time.” Accordingly, we hold that § 20-325a, as amended by P.A. 94-240, § 3, applies prospectively only.

The judgment is affirmed.

In this opinion SPEAR, J., concurred.

SCHALLER, J.,

dissenting. The majority holds that the legislature’s 1994 amendment to General Statutes § 20-325a; Public Acts 1994, No. 94-240, § 3 (P.A. 94-240, § 3); affects substantive rights and, therefore, applies prospectively only. Because I conclude that the amendment was a clarification of the earlier statute and, accordingly, should be applied retrospectively, I respectfully dissent.

In Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 714 A.2d 1209 (1998), our Supreme Court stated the guidelines for determining whether an amendment to a statute can be applied retroactively or prospectively. “Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute. ... In order to determine the legislative intent, we utilize well established rules of statutory construction. Our point of departure is General Statutes § 55-3, which states: No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have retrospective effect. The obligations referred to in the statute are those of substantive law. . . . Thus, we have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. . . . This presumption in favor of prospective applicability, however, may be rebutted when the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively. . . . Where an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect. . . . We generally look to the statutory language and the pertinent legislative history to ascertain whether the legislature intended that the amendment be given retrospective effect.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 718-19.

Furthermore, “[statutes passed to resolve a controversy engendered by statutory ambiguity often are deemed to have a clarifying effect. . . . [I]f the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act .... As [our Supreme Court has] noted, [o]nce litigation brought [the statutory] ambiguity to light, the legislature acted to remove any doubt about its earlier intentions.” (Citations omitted; internal quotation marks omitted.) Toise v. Rowe, 243 Conn. 623, 628-29, 707 A.2d 25 (1998). It is well established that “the legislature is presumed to be aware of judicial interpretations of a statute . . . Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 279, 610 A.2d 584 (1992).

Because the 1994 amendment, P.A. 94-240, § 3, appears to be a classic response to a judicial interpretation that the legislature deemed inappropriate, I adopt the view that the amendment was an attempt to clarify what the legislature originally intended in enacting § 20-325a. The legislative history indicates that a major purpose of the original act, Public Acts 1971, No. 378 (P.A. 378), was to protect real estate licensees and brokers.* See M.R. Wachob Co. v. MBM Partnership, 232 Conn. 645, 658-60, 656 A.2d 1036 (1995). After the enactment, however, controversy arose over whether § 20-325a should be strictly or liberally construed. See New England Land Co., Ltd. v. DeMarkey, 213 Conn. 612, 623-24, 569 A.2d 1098 (1990) (listing agreement must include sale price of property); Jay Realty, Inc. v. Ahearn Development Corp., 189 Conn. 52, 54, 453 A.2d 771 (1983) (writings containing different commission rates fail to create enforceable brokerage contract); Thornton Real Estate, Inc. v. Lobdell, 184 Conn. 228, 230-31, 439 A.2d 946 (1981) (brokerage contract signed by owner’s agent unenforceable under statute as then worded); Hossan v. Hudiakoff, 178 Conn. 381, 383, 423 A.2d 108 (1979) (failure to include broker’s address fatal to listing agreement); Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 305-307, 552 A.2d 827 (1989) (omission of broker’s rate renders listing agreement invalid); Howland v. Schweir, 7 Conn. App. 709, 713-15, 510 A.2d 215 (1986) (commission not recoverable where broker could not prove he produced buyer during effective term of listing agreement); Arruda Realty, Inc. v. Doyon, 35 Conn. Sup. 617, 619-20, 401 A.2d 625, cert. denied, 176 Conn. 763, 394 A.2d 201 (1978) (owner’s address requirement not satisfied even though listing agreement included address of subject property, which was same as owner’s address). “A broker who does not follow the mandate of [§ 20-325a (b)] does so at his peril.” Thornton Real Estate, Inc. v. Lobdell, supra, 230-31. Section 20-325a (b) also was interpreted in McCutcheon & Burr, Inc. v. Berman, 218 Conn. 512, 590 A.2d 438 (1991). After examining this line of cases, our Supreme Court determined that “the requirements of § 20-325a (b) are mandatory rather than permissive and that the statute is to be strictly construed.” Id., 520.

The majority points out that “[o]ur Supreme Court has consistently held over the last two decades that § 20-325a is to be strictly construed, and there has been no attempt during that time by the legislature to change that interpretation.” Contrary to the majority’s assertion, however, our Supreme Court in M.R. Wachob Co. v. MBM Partnership, supra, 232 Conn. 660-62, already has expressed the view that there have been several clarifications of § 20-325a. The legislature amended the statute in 1984, and again in 1985, specifically to correct the misinterpretation our courts had given the statute and its amendments. Our Supreme Court stated that “the legislative history of the 1984 amendment reveals that the legislature has attempted to avoid narrow judicial constructions of the language of the statute. Indeed, the legislature altered the language of the statute in direct response to this court’s decision in Thornton Real Estate, Inc. v. Lobdell, supra, 184 Conn. 228, in which this court had held unenforceable a listing agreement that failed to satisfy the literal language of the statute. In so doing, the legislature clearly expressed its position that it did not intend the literal language of the statute necessarily to erect barriers to the recovery of otherwise valid real estate commissions.

“Finally, the legislature has stated repeatedly that the statutory requirements for listing agreements are designed to simplify and clarify the process of hiring real estate brokers.” M.R. Wachob Co. v. MBM Partnership, supra, 232 Conn. 661-62. A careful and complete reading of the entire legislative history of § 20-325a and its amendments suggests, therefore, that the enactment of the 1994 amendment was an attempt by the legislature to clarify its original intent. In all likelihood, the legislature responded to the line of decisions culminating in McCutcheon & Burr, Inc. v. Berman, supra, 218 Conn. 512, and recognized the controversy over the appropriate construction, thus enacting the 1994 amendment to eliminate any doubt that the provisions of § 20-325a should be liberally construed. It is an established principle that “[e]ven though the legislative clarification was prompted by a judicial decision that the legislature deemed mistaken, such a clarification does not constitute an invasion of judicial authority. Like legislatures, judges are fallible. The legislature has the power to make evident to us that it never intended to provide a litigant with the rights that we previously-had interpreted a statute to confer. . . . Similarly, the legislature has the power to make evident to us that it did intend to provide a litigant with rights which we previously had interpreted a statute not to confer.” (Citations omitted; internal quotation marks omitted.) State v. Magnano, 204 Conn. 259, 284, 528 A.2d 760 (1987).

An examination of the legislative history of P.A. 94-240, § 3, suggests that the legislature intended that amendment to clarify the original intent of § 20-325a. Hearings before legislative committees are a recognized source of legislative history. See Mahoney v. Lensink, 213 Conn. 548, 559-60, 569 A.2d 518 (1990). During the joint committee hearings concerning P.A. 94-240, Larry Hannafin, director of the department of consumer protection’s real estate division, testified that “the proposed changes expand [§ 20-325a (b)] so that if a broker in a real estate transaction has substantially complied with the provisions of this chapter, or this section, the broker will be permitted to pursue their claims for payment of the licensees fees in our court system.” Conn. Joint Standing Committee Hearings, Insurance and Real Estate, 1994 Sess., p. 91. In addition, Hannafin noted that the present judicial interpretations of § 20-325a (b) have required strict compliance with the provisions of the statute, and that if there is a minor omission from the contract, the agent is barred from receiving compensation. Id. Hannafin also testified that those judicial interpretations have resulted “in unjust enrichment to various sellers of properties.” Id.

The conclusion that the 1994 amendment is to be given effect as clarifying legislation is further buttressed by the presumption that the legislature intended to accomplish a reasonable and rational result. The well established principles of statutory construction “require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results.” Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). Since a principal purpose of the enactment of § 20-325a was to protect licensed real estate brokers, it is highly unlikely that the legislature would have enacted legislation requiring a level of strict construction so severe that it would bar causes of action to the precise group it was enacted to protect for minor variations and omissions. See M.R. Wachob Co. v. MBM Partnership, supra, 232 Conn. 658-62.

Given the retrospective application of the 1994 amendment, the affidavits filed in connection with the defendants’ summary judgment motion raise a genuine issue of material fact concerning substantial compliance with the requirements of General Statutes § 20-325a. Under these circumstances, this matter cannot properly be disposed of by summary judgment. Accordingly, I would reverse the judgment of the trial court and remand this case for a trial on the merits.

       General Statutes (Rev. to 1991) § 20-325a provides in relevant part: “(a) No person who is not licensed under the provisions of this chapter, and who was not so licensed at the time he performed the acts or rendered the services for which recovery is sought, shall commence or bring any action in any court of this state ... to recover any commission, compensation or other payment in respect of any act done or service rendered by him, the doing or rendering of which is prohibited under the provisions of this chapter except by persons duly licensed under this chapter.
      “(b) No person, licensed under the provisions of this chapter, shall commence or bring any action ... as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent. ...”
      General Statutes (Rev. to 1991) § 47-5 (a) provides: “All conveyances of land shall be: (1) In writing; (2) if the grantor is a natural person, subscribed, with or without a seal, by the grantor with his own hand or with his mark with his name annexed to it or by his attorney authorized for that purpose by a power executed, acknowledged and witnessed in the manner provided for conveyances or, if the grantor is a corporation or partnership, subscribed by a duly authorized person; (3) acknowledged by the grantor, his attorney or such duly authorized person to be his free act and deed; and (4) attested to by two witnesses with their own hands.”

       The M.R. Wachob Co. court stated: “As an alternative ground for affirmance, the defendant argues that the listing agreement is unenforceable because it does not comply with General Statutes § 47-5. That statute, which is cited in § 20-325a (b) (5), requires all documents purporting to convey real property to be acknowledged and witnessed.

        “The defendant’s argument is without merit. Section 20-325a (b) (5) refers to instances in which an agent may sign a listing agreement on behalf of the owner of the properly. In such a case, § 20-325a (b) (5) requires the document evidencing the agency relationship to be in writing and to comply with the conveyance formalities enumerated in § 47-5. In effect, therefore, this statutory provision limits how an agent of an owner must derive his power as an agent. It is undisputed that Glyco and the defendant did not enter into such an agency agreement and, therefore, the signature of the defendant on the listing agreement is not enforceable against the defendant or Glyco on this basis. Thus, this provision is simply irrelevant to this case.” M.R. Wachob Co. v. MBM Partnership, supra, 232 Conn. 655-56 n.12.

       The plaintiffs quotation in its principal brief of a portion of footnote 12 in M.R. Wachob Co. in support of the proposition that our Supreme Court held 1ha1 § 20-325a (b) (5) “requires all documents purporting to convey real property to be acknowledged and witnessed”; M.R. Wachob Co. v. MBM Partnership, supra, 232 Conn. 656 n.12; is misleading. The remainder of the footnote makes clear that the proposition cited is simply irrelevant to the facts of this case.

       General Statutes § 20-325a, as amended by Public Acts 1994, No. 94-240, § 3, and subsequently codified in 1995, provides in relevant part: “(a) No person who is not licensed under the provisions of this chapter, and who was not so licensed at the time he performed the acts or rendered the services for which recovery is sought, shall commence or bring any action in any court of this state, after October 1, 1971, to recover any commission, compensation or other payment in respect of any act done or service rendered by him, the doing or rendering of which is prohibited under the provisions of this chapter except by persons duly licensed under this chapter.

        ‘(b) No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts done or services rendered after July 1, 1994, as set forth in subsection (a), unless the acts or services were rendered pursuant to a contract or authorization from the person for whom the acts were done or seivices rendered. To satisfy the requirements of this subsection any contract or authorization shall: (1) Be in writing, (2) contain the names and addresses of the real estate broker performing the services and the name of the person or persons for whom the acts were done or services rendered, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization, (5) be signed by the real estate broker or the real estate broker’s authorized agent, (6) if such contract or authorization pertains to ‘commercial real property’ as defined in subsection (d) of this section, include the following statement: ‘THE REAL ESTATE BROKER MAY BE ENTITLED TO CERTAIN LIEN RIGHTS PURSUANT TO SUBSECTION (d) OF SECTION 20-325a OF THE CONNECTICUT GENERAL STATUTES’, and (7) if the acts done or services rendered involve a listing contract for the sale of real estate, be signed by the owner of the property or an agent authorized to act on behalf of such owner, pursuant to a written document executed in the manner provided for conveyances in section 47-5, and if the acts done or services rendered involve a buyer agency contract, be signed by the buyer or an agent authorized to act on behalf of that person.
      “(c) Nothing in subsection (a) of this section or subdivisions (2) to (6), inclusive, of subsection (b) of this section shall prevent any licensee from recovering any commission, compensation or other payment in respect to any acts done or services rendered, if such person has substantially complied, with subdivisions (2) to (6), inclusive, of subsection (b) of this section and it would be, inequitable to deny such recovery. . . .” (Emphasis added.)

       There also is no evidence of ambiguity in the wording of the statute. Our Supreme Court has consistently held over the last two decades that § 20-325a is to be strictly construed, and there has been no attempt during that time by the legislature to change that interpretation. Rather than clarifying its intention in enacting the original statute, the legislature decided, as a matter of policy, to change the existing law. See Darak v. Darak, supra, 210 Conn. 473. “Such a change in the law must presumptively be applied prospectively.” Id.

       Contrary to the assertions of the dissent, this statement in M.R. Wachob Co. v. MBM Partnership, supra, 232 Conn. 647 n.1, highlights the fact that the court in that case did not construe the amendment as a clarification of the statute.

       In Coldwell Banker v. Ward, Superior Court, judicial district of Waterbury, Docket No. 122435 (October 17, 1995) (15 Conn. L. Rptr. 273), the trial court, McDonald, J., concluded that the 1994 amendment to § 20-325a is to be applied retroactively because it is clarifying legislation. The court stated that “[w]hen the legislature changes the wording of a statute in order to change the interpretation that the courts have been giving the statute because of an ambiguity in the statute, the amendment is a clarifying statute that should be given retroactive application.” Id., 275, citing Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 279, 610 A.2d 584 (1992).

       In a letter to the hearing committee on P.A. 378, James F. Carey, executive director of the state real estate commission, took the position that the bill “is intended to clearly spell out that no person but a real estate licensee is entitled to pursue the collection of a commission.” Conn. Joint Standing Committee Hearings, Insurance and Real Estate, 1971 Sess., p. 249.

        Arruda Realty, Inc. v. Doyon, supra, 35 Conn. Sup. 617, appears to be the first case in which a court applied a strict construction of § 20-325a.

       We note that the Supreme Court in M.R. Wachob Co. v. MBM Partnership, supra, 232 Conn. 645, did not reach the issue of whether the 1994 amendment was a clarification of General Statutes (Rev. to 1989) § 20-325a, the statute in effect at the time of the transaction in that case. The court, instead, interpreted the language of § 20-325a and applied that language accordingly.
      Even if the 1994 amendment is determined not to be clarifying legislation, the liberal interpretation accorded § 20-325a by the M.R. Wachob Co. court provides an independent basis for determining that § 20-325a must be liberally construed in the present case as well. Under this liberal construction, the outcome would therefore be the same.

       Our Supreme Court has noted with approval earlier testimony by Hannafin in which he stated that a clarification of § 20-325a was needed. See M.R Wachob Co. v. MBM Partnership, supra, 232 Conn. 661.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MACK YOUNG
    (AC 19343)
    Landau, Mihalakos and Dupont, Js.

      Argued October 18, 1999
    officially released March 14, 2000

      Richard E. Condon, Jr., deputy assistant public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Edward R. Narus, senior assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Mack Young, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). On appeal, the defendant claims that (1) the state failed to present sufficient evidence that he intended to kill the victim, (2) the trial court improperly denied his motion for a mistrial because a witness testified that the defendant was a gang member, (3) he was denied his constitutional right to a fair trial when a witness testified that the defendant was a drug dealer, (4) the court improperly included the “ingenuity of counsel” language in its instruction on reasonable doubt and (5) the court improperly admitted, as evidence of the defendant’s consciousness of guilt, testimony related to flight. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 6,1995, the defendant approached Ademóla Adetunla on the street approximately one block from the home of the victim, Reginald Lee. The defendant asked Adetunla for money but Adetunla refused. Adetunla told the defendant that he was going to the victim’s apartment to use the telephone. The defendant informed Adetunla that he was going to the apartment also, to collect a debt that he claimed the victim owed to him. Upon arriving at the home of the victim, the two men were let into the apartment by the victim’s live-in girlfriend, Dorothy Hankerson.

The defendant made a telephone call to Bruce Rosemond who lived across the street from the victim. Rosemond owed the defendant $10, which he contended he had given to the victim and requested that it be given to the defendant. After leaving the apartment to speak with Rosemond, the defendant asked Rosemond if he would return with him to the victim’s apartment to confront him. Upon entering the apartment, the defendant proceeded to the bedroom where the victim was sleeping and began punching the victim in the chest while Rosemond asked what he had done with the money that had been given to him. The victim insisted that he did not know anything about the money and asked if he could call Rosemond’s wife to confirm his story. After speaking to her briefly, the victim handed the telephone to the defendant, who listened for a moment and then hung up the telephone. The defendant continued to punch the victim, telling him that he wanted what was his. Rosemond began to walk out of the apartment and the defendant followed him, asking Rosemond for the $10 he was owed.

Upon leaving the apartment with the defendant, Rosemond noticed that the defendant had a knife. Before Rosemond left to return to his own home, the defendant told him that he was ready to kill for what was his. The defendant then rushed into the apartment and, upon encountering the victim in the hallway, continued to demand payment of the $10 and punched the victim repeatedly. When the victim tried to cover his face from the punches, the defendant stabbed him in the chest and walked back toward the apartment door. Neither of the two witnesses, Hankerson and Adetunla, noticed that the victim had been stabbed until he yelled from his bedroom for Hankerson to call 911. As the defendant approached Adetunla, who was in the living room, he exclaimed that he had stabbed the victim by accident. The victim later died from the single stab wound.

More than five months after the stabbing, the defendant was apprehended in Minnesota and returned to Connecticut where he was charged with murder. After conviction, this appeal followed. Additional facts will be discussed where relevant.

I

The defendant contends in his first claim that the state failed to present sufficient evidence to prove beyond a reasonable doubt that he intended to kill the victim as required for a conviction of murder. We disagree.

“In reviewing a sufficiency of the evidence claim, we must apply a two part test. 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. . . . State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994).” (Internal quotation marks omitted.) State v. Potts, 55 Conn. App. 469, 471, 739 A.2d 1280, cert. denied, 252 Conn. 905, 743 A.2d 616 (1999).

“It is well settled that in reviewing a defendant’s challenge to a verdict based on insufficient evidence, we defer to the jury.” State v. Brunori, 22 Conn. App. 431, 434-35, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). “We do not sit as a thirteenth 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. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). “The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . State v. Hart, 198 Conn. 424, 427, 503 A.2d 588 (1986). [T]he 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. . . . State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).” (Emphasis in original; internal quotation marks omitted.) State v. Brown, 235 Conn. 502, 510, 668 A.2d 1288 (1995).

Our Supreme Court has held that the jury must find every element proven beyond a reasonable doubt to find the defendant guilty of the charged crime. State v. Torres, 242 Conn. 485, 489-90, 698 A.2d 898 (1997). “The specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. . . . Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . Furthermore, [ijntent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” (Internal quotation marks omitted.) State v. Potts, supra, 55 Conn. App. 472.

Immediately preceding the stabbing of the victim, the defendant was talking to Rosemond while holding a knife and stated that he was willing to kill for what was his. He expressed to both Rosemond and Adetunla that he was upset by the victim’s failure to pay him the money he was owed. Prior to the stabbing, the defendant repeatedly punched and slapped the victim while telling him that “something [was] going to happen” if he did not get his money. After stabbing the victim, the defendant did not seek medical attention for him and kicked Adetunla as he attempted to go to the victim’s aid.

The stabbing, according to the defendant, was an accident that occurred because the victim ran into the defendant’s knife. The defendant claims in his brief that the victim’s death “was the unfortunate result of the fortuitous track that the blade took.” The defendant points to the testimony of Malka Shah, the associate medical examiner for the state of Connecticut, who performed the autopsy. Shah testified that the most resistance that the knife was likely to have encountered was when it penetrated the skin. The blade entered between the victim’s ribs, missed any bone or cartilage and passed through soft tissue until it penetrated the heart. Shah also testified, however, that the knife was plunged so far into the victim’s chest that the handle left an imprint on the victim’s skin.

“[0]ne who uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn . . . that there was an intent to kill.” (Internal quotation marks omitted.) State v. McClam, 44 Conn. App. 198, 207-208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). We cannot say on the basis of the testimony presented in this case, viewed in the light most favorable to the prosecution, that the jury could not have found the element of intent proven beyond a reasonable doubt.

The defendant presented his theory that the victim’s death was an accident to the jury. We conclude that the cumulative effect of the evidence was more than sufficient to allow the jury to find beyond a reasonable doubt that the defendant intended to cause the victim’s death.

II

The defendant claims next that the trial court improperly denied his motion for a mistrial, which he based on a witness’ testimony that the defendant was a gang member. More specifically, the defendant claims that Adetunla’s unsubstantiated testimony that the defendant belonged to a gang caused irreparable and substantial prejudice. We disagree.

The following additional facts are relevant to the resolution of this claim. Adetunla was one of two witnesses who was present during the murder and testified on behalf of the prosecution at trial. Following the murder, however, Adetunla did not come forward voluntarily, and the state had been unable to locate him until shortly before trial. Defense counsel cross-examined Adetunla vigorously regarding his failure to come forward immediately, the pending criminal charges against him and the inconsistent statements he had made to the defendant’s investigator.

During the state’s redirect examination of Adetunla, the following exchange took place:

“Q. Did you say that looking back you wished you hadn’t talked to [the defendant’s investigator] at all?
“A. Yes. I—yes.
“Q. Did you have concerns for your safety?
“A. Yes, I—
“Q. Even while incarcerated?
“A. Yes.
“Q. In talking to somebody associated with the defendant?
“A. Yes.”

The defendant objected to the question as leading, and the trial court overruled the objection. The state’s attorney then asked Adetunla how his concern about getting involved affected his conversation with the investigator. Adetunla answered, “I told [him], I say I don’t want to get involved because I think [the defendant] is part of the gang, and I don’t want to get involved to testily in court against him.” The defendant moved to strike the answer as nonresponsive and the trial court denied the request.

Following Adetunla’s testimony and outside the presence of the jury, the defendant moved for a mistrial based on the comment concerning his alleged gang affiliation. He argued that the testimony was both non-responsive and highly prejudicial. The defendant indicated that, in the absence of a mistrial, he would be seeking a curative instruction from the trial court. The court denied the defendant’s motion for a mistrial finding that Adetunla’s testimony about alleged gang membership was one isolated comment that did not result in substantial and irreparable prejudice. The court did, however, instruct the jury in essentially the same manner requested by the defense that there was no evidence that the defendant was a member of a gang and that the jurors should disregard the witness’ testimony on that subject.

“While the remedy of a mistrial is permitted under the rules of practice, it is not favored. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 350, 696 A.2d 944 (1997). “The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial. . . . The trial court enjoys wide discretion in deciding whether a mistrial is warranted . . . and its evaluation as to events occurring before the jury is to be accorded the highest deference. . . . Every reasonable presumption will be given in favor of the trial court’s ruling . . . because the trial court, which has a firsthand impression of the jury, is in the best position to evaluate the critical question of whether the juror’s or jurors’ exposure has prejudiced a defendant. ... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion.” (Internal quotation marks omitted.) State v. Cruz, 40 Conn. App. 515, 524, 672 A.2d 502, cert. denied, 237 Conn. 909, 675 A.2d 457 (1996).

The trial court did not abuse its discretion by denying the defendant’s motion for a mistrial. The court found that the comment by Adetunla was isolated and made in response to a proper inquiry by the state as to why the witness was apprehensive. The court’s remedy was appropriate in that a curative instruction was given immediately upon the jury’s return, making it clear that there was no evidence of gang affiliation and that the remark should not be considered in any way. We conclude that no injustice occurred, nor was there a manifest abuse of discretion by the trial court.

Ill

In his third claim, the defendant asserts that he was denied his constitutional right to a fair trial when Adetunla testified that the defendant was a drug dealer. We are not persuaded.

Prior to the testimony of Adetunla, the defendant requested that the court restrict the witness from referring to any alleged drug involvement of the defendant. The court instructed the witness to refrain from making any reference to drugs during his testimony and stated that if something were to “come up,” the juiy would be excused and the matter would be addressed outside the jury’s presence. The witness testified on direct examination that the defendant told him that he had been “burned” by the victim. When asked by the state what he meant by “burned,” Adetunla stated, “like if he gives [the victim] something, you know, drug or some things that he never get money back. That’s what I know that he said. Burned, like mean that robbed or something like that. That I never get money back. If he give [the victim] some things, that he never get his money back.” The defendant did not object to the question, nor did he seek to strike the response. Now, for the first time on appeal, the defendant alleges that he was denied a fair trial.

“Absent a timely objection, this claim is not reviewable. . . . Only the most exceptional circumstances will save a claim from the fatal consequences of a defendant’s failure to make a timely objection. State v. Reddick, 197 Conn. 115, 125, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). The defendant has suggested no exceptional circumstances to warrant departure from the general rule that limits appellate review of all issues to those on which the trial court has had an opportunity to rule. Knight v. Bourbeau, 194 Conn. 702, 704 n.3, 485 A.2d 919 (1984).” (Citations omitted.) State v. Harvey, 27 Conn. App. 171, 176-77, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992).

In Harvey, the defendant filed a motion in limine prior to trial seeking to preclude any testimony relating to an unidentified informant’s telephone call to the police, which motion the trial court granted. A police officer, however, testified as to the contents of the telephone call in violation of the court’s instructions. The defendant made no objection to the question or the response, and we held that the claim, as to that comment, was not properly preserved for appellate review. The defendant’s claim in this case, similarly, was not properly preserved and we decline review.

IV

In his fourth claim, the defendant asserts that the trial court improperly included the “ingenuity of counsel” language in its instruction on reasonable doubt. We disagree.

The defendant submitted a written request to charge, prior to final argument, in which he requested that the court instruct the jury that “[a] reasonable doubt is not a capricious or frivolous doubt, nor a doubt which is raised by the ingenuity of counsel or by a juror and unwarranted by the evidence . . . .” The trial court, during its instruction to the jury on reasonable doubt, instructed as follows: “[T]he meaning of reasonable doubt, ladies and gentlemen, can be arrived at by emphasizing the word ‘reasonable.’ It is not a doubt based on a surmise, a guess, or a mere conjecture, nor is it a doubt suggested by the ingenuity of counsel, or of a juror not warranted by the evidence.”

The defendant did not object to the trial court’s instruction. On appeal, however, the defendant claims that the instruction was improper and seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. Practice Book § 60-5. The defendant claims that pursuant to the Supreme Court’s decisions in State v. Taylor, 239 Conn. 481, 504, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997), and State v. Edwards, 247 Conn. 318, 329-30, 721 A.2d 519 (1998), the instruction given by the court was improper and, therefore, violated his rights to a jury trial, due process of law and counsel.

The defendant correctly points out that our Supreme Court, in Taylor, exercised its supervisory powers to urge trial courts to avoid further use of the “ingenuity of counsel” instruction. In State v. Delvalle, 250 Conn. 466, 473-76, 736 A.2d 125 (1999), however, the court, following the reasoning of Taylor, held that an instruction virtually identical to that given in this case “did not, when properly considered in the broader context of the trial court’s instructions in their entirety, [dilute] the state’s burden of proof or otherwise misle[ad] the jury in any way.” (Internal quotation marks omitted.) Id., 474. Viewed in the context of the entire instruction, the instruction here did not clearly deprive the defendant of a fair trial.6

V

The defendant’s final claim is that the trial court improperly instructed the jury on consciousness of guilt by concluding that the testimony of Maurice Allen was relevant to flight. We disagree.

The jury reasonably could have found the following facts, which are relevant to the resolution of this issue. At the time of the murder, Allen had been living in an apartment where the defendant had been staying for approximately one or two weeks. On the night of the murder, two police officers came to the apartment looking for the defendant in connection with a stabbing. At the time, Allen was the only person in the apartment, and he relayed that fact to the police officers, who then waited in an unmarked police car in front of the apartment. When the defendant arrived, he grabbed some of his things, was told by Allen that the police were looking for him and then, after noticing the unmarked police car in front of the apartment, left through a side door. The defendant was not apprehended until more than five months later in Minnesota.

“Flight, when unexplained, tends to prove a consciousness of guilt. . . . Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration. . . . The probative value of evidence of flight depends upon all the facts and circumstances and is a question of fact for the jury.” (Citations omitted; internal quotation marks omitted.) State v. Thomas, 50 Conn. App. 369, 382-83, 717 A.2d 828, cert. granted on other grounds, 247 Conn. 935, 722 A.2d 1217 (1998). “Evidence that an accused has taken some kind of evasive action to avoid detection for a crime, such as flight ... is ordinarily the basis for a charge on the inference of consciousness of guilt.” State v. Williams, 27 Conn. App. 654, 663, 610 A.2d 672, cert. denied, 223 Conn. 914, 614 A.2d 829 (1992). “The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous.” (Internal quotation marks omitted.) State v. Groomes, 232 Conn. 455, 472-73, 656 A.2d 646 (1995).

The trial court properly determined that Allen’s testimony was relevant to a determination of flight. It was for the jury to consider the weight to be given to any ambiguities or explanations. The instruction regarding consciousness of guilt, therefore, was also proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       The defendant concedes that the evidence presented in this case was sufficient to convict him of one of the lesser included offenses of murder. The trial court instructed the jury on the lesser included offenses of intentional manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1), reckless indifference manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), and reckless manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1).

       “We have previously noted that ‘the defendant’s failure to summon medical assistance for [the] victim [is] part, of the evidence from which the jury could have inferred an intent to kill.’ State v. Sivri, [supra, 231 Conn. 129].” State v. Tomasko, 238 Conn. 253, 259, 681 A.2d 922 (1996).

       Defense counsel asked Adetunla about Ms alleged statement to the defendant’s mvestigator that he did not know anytMng about the incident. Although AdetuMa could not recall makmg such a statement, he did admit to being apprehensive about getting mvolved m the case.

       The trial court stated: “There was some reference to gang membership in a response given by the last witness who testified. I believe that was during the redirect examination of that witness. Ladies and gentlemen, there is no evidence whatsoever of gang affiliation or related activity in this case, and you are specifically instructed to completely disregard that reference, that remark, and, of course, it is to play absolutely no role in or have any bearing whatsoever on your decision in this case or your consideration of the evidence.”

       “[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. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.

       Additionally, because the charge was given pursuant to the defendant’s request, the defendant can not now claim on appeal that the court improperly granted such request. State v. Prioleau, 235 Conn. 274, 294, 664 A.2d 743 (1995); State v. Zollo, 36 Conn. App. 718, 736, 654 A.2d 359, cert. denied, 234 Conn. 906, 660 A.2d 859 (1995). To make such a claim on appeal “can at best be described as disingenuous.” State v. Proioleau, supra, 294.


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. ANTHONY KNIGHT
    (AC 18561)
    Schaller, Hennessy and Mihalakos, Js.

      Argued December 9, 1999
    officially released March 14, 2000

      Glenn W. Falk, special public defender, for the appellant (defendant).

      LeonF. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anthony Martin, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Anthony Knight, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance in violation of General Statutes § 21a-279 (a), possession of a narcotic substance within 1500 feet of a school in violation of General Statutes § 21a-279 (d), possession of a narcotic substance with intent to sell as a lesser included offense in violation of General Statutes § 21a-277 (a), possession of a narcotic substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b), possession of a controlled substance in violation of General Statutes § 21a-279 (c), possession of a controlled substance within 1500 feet of a school in violation of General Statutes § 21a-279 (d), possession of a controlled substance with intent to sell in violation of General Statutes § 2 la-277 (b) and possession of a controlled substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b).

On appeal, the defendant claims that (1) the trial court improperly failed to instruct the jury, for purposes of the counts alleging violations of § 21a-278a (b), that the defendant had to have the intent to sell controlled substances within 1500 feet of a school, (2) there was insufficient evidence for the jury to find beyond a reasonable doubt that the defendant intended to sell marijuana within 1500 feet of a school, and (3) the trial court improperly imposed two consecutive mandatory three year sentences for the defendant’s course of conduct in violating § 21a-278a (b), merely because such conduct involved two kinds of controlled substances. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On August 16, 1996, Detective Anthony Martinez of the vice and narcotic division of the Hartford police department received an anonymous telephone call reporting a sale of crack cocaine at apartment 203 on 57 Sumner Street in Hartford. This is an area well known for drug dealing. Martinez, together with three other plainclothes detectives, went to the premises and knocked on the door. The defendant answered and asked Martinez what he wanted. Martinez told the defendant that he wanted “ten.” The defendant removed two bags from his pocket, one containing a green, plant-like substance and the other a white, rock-like substance. Martinez gave the defendant $10 and purchased the bag containing the white, rock-like substance. Immediately after the purchase, Martinez identified himself as a police officer, whereupon the defendant ran back into the apartment. Martinez pursued the defendant into the apartment and a struggle ensued. The defendant was apprehended and handcuffed. Martinez removed the following items from the defendant’s pockets: one large bag containing fifty-two smaller bags of a green, plant-like substance, another large bag containing sixteen smaller bags of a white, rock-like substance, the $10 paid by Martinez and an additional $169. Martinez observed the defendant remove a handgun from the waistband of his pants. The pistol was later recovered from the living room floor.

During the trial, the parties stipulated that apartment 203 at 57 Sumner Street was within 1500 feet of a school and that the defendant did not have a permit for a handgun.

I

The defendant’s first claim is that the trial court failed to instruct the jury that to be convicted under § 21a-278a (b) he had to have had the intent to sell the controlled substance within 1500 feet of a school. We disagree.

Despite having failed to preserve this claim for review, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). This court has held that only under the most exceptional circumstances will it consider a claim, constitutional or otherwise, that has not been raised and decided by the trial court. State v. Washburn, 34 Conn. App. 557, 567, 642 A.2d 70, cert. denied, 230 Conn. 912, 645 A.2d 1017 (1994). However, “[i]t is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.” State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). “Consequently, the failure to instruct a jury on an element of a crime deprives a defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” (Internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 484, 668 A.2d 682 (1995). We agree with the defendant that “the jury instruction is subject to Golding review because the defendant raises a constitutional claim involving a fundamental right, and the record is adequate for review.” Id., 483. We conclude, however, that the defendant’s claim fails the third prong of Golding because the alleged constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial.

Our Supreme Court has held that the intent to sell within 1500 feet of a school is an element of the crime. Id., 481. “[T]he plain language of § 21a-278a (b) requires as an element of the offense an intent to sell or dispense the narcotics at a location that is within 1000 feet of a school. The state is not, however, required to prove that the defendant knew that this location was within the zone.” Id., 482. While the defendant’s knowledge as to his location is not an element of the offense, the state is required to prove that the defendant intended to sell or dispense those drugs in his possession in the location, which happens to be within 1500 feet of a school. Id. Thus, intent is an element required under § 21a-278a (b). The jury was specifically instructed by the trial court as to the elements of the offense, which included intent. The court’s instruction that intent was a question of fact, and that the jury could draw reasonable and logical inferences from the evidence was proper and cannot be disturbed.

II

The defendant’s second claim is that the state failed to present sufficient evidence to support the jury’s verdict convicting him of the charge of possession of marijuana with intent to sell within 1500 feet of a school in violation of § 21a-278a (b). The defendant is not disputing that he sold cocaine to Martinez at the premises where he was arrested. The site of his arrest was stipulated to be within 1500 feet of a school. The defendant is claiming that, although the defendant may have had a sufficient quantity of marijuana for the jury to infer that he had it for sale, there is not sufficient evidence to prove beyond a reasonable doubt where the defendant intended to sell the marijuana. We reject this claim.

The question of intent is generally proven by circumstantial evidence and “is purely a question of fact to be determined by the [trier of fact].” State v. Adams, 14 Conn. App. 119, 124, 539 A.2d 1022 (1988). “The jury can draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984); State v. Dumlao, 3 Conn. App. 607, 616-17, 491 A.2d 404 (1985). State v. Greene, 11 Conn. App. 575, 579, 528 A.2d 855 (1987). An individual's intention may be inferred from his or her conduct; State v. Smith, 157 Conn. 351, 354, 254 A.2d 447 [1969]; Kiernan v. Borst, 144 Conn. 1, 6, 126 A.2d 569 [1956]; and intent is usually established by circumstantial evidence. State v. Sul, 146 Conn. 78, 87, 147 A.2d 686 [1958]; State v. Nathan, 138 Conn. 485, 488, 86 A.2d 322 [1952], State v. Avila, 166 Conn. 569, 579, 353 A.2d 776 (1974). The question of intent is purely a question of fact to be determined by the jury. See State v. Miller, 202 Conn. 463, 486, 522 A.2d 249 (1987); State v. Chace, 199 Conn. 102, 105, 505 A.2d 712 (1986); State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984).” (Internal quotation marks omitted.) State v. Adams, supra, 124-25. “The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence . . . .” (Citation omitted; internal quotation marks omitted.) State v. Williams, 202 Conn. 349, 356, 521 A.2d 150 (1987). This court has consistently held that “[a] person’s intent is to be inferred from his conduct and the surrounding circumstances and is an issue for the [trier of fact] to decide.” (Internal quotation marks omitted.) State v. Nosik, 245 Conn. 196, 208, 715 A.2d 673, cert. denied, 525 U.S. 1020, 119 S. Ct. 547, 142 L. Ed. 2d 455 (1998).

The defendant argues that unless the state presents direct evidence that he sold or attempted to sell marijuana out of apartment 203 on 57 Sumner Street, it cannot be inferred that he had specific intent to sell the marijuana. We disagree. First, the defendant resides at 41 Niles Street in Hartford. He was arrested with fifty-two small retail bags of marijuana at the apartment on Sumner Street. Additionally, the defendant showed both marijuana and cocaine to Martinez when Martinez asked for a “ten.” The jury, as the trier of fact, could reasonably infer that the defendant intended to sell both cocaine and marijuana at that location. When the conclusion is one that is dependent on the resolution of conflicting evidence, it should ordinarily be left to the jury for its judgment. State v. Turner, 24 Conn. App. 264, 268, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991). The conclusion on this evidence was properly left to the jury for its judgment. We find that there was sufficient evidence presented for the jury to find as it did.

Ill

The defendant’s final claim is that the sentence imposed by the trial court violated his right against double jeopardy. We disagree.

The defendant concedes that this double jeopardy claim was not properly preserved for appellate review. Regardless, the defendant argues that this court should review this claim under State v. Golding, supra, 213 Conn. 239-40. This claim meets the first two prongs of Golding, and it therefore is reviewable. State v. Lemoine, 39 Conn. App. 657, 663 n.8, 666 A.2d 824 (1995); The defendant’s claim must fail, however, in that it does not satisfy the third prong of Golding. See State v. Patrick, 42 Conn. App. 640, 643-44, 681 A.2d 380 (1996).

“The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Lonergan, 213 Conn. 74, 78, 566 A.2d 677 (1989), cert. denied, 469 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); State v. Anderson, 212 Conn. 31, 35, 561 A.2d 897 (1989); State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). State v. Greco, 216 Conn. 282, 289-90, 579 A.2d 84 (1990).

“Although the Connecticut constitution does not include a specific double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution has been held to encompass protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962); see also State v. Anderson, 211 Conn. 18, 25 n.8, 557 A.2d 917 (1989). Nevertheless, we have not held that our state constitution affords any greater due process rights than those afforded under the federal constitution’s double jeopardy clause. State v. Laws, 37 Conn. App. 276, 294—95, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).” (Internal quotation marks omitted.) State v. Patrick, supra, 42 Conn. App. 644.

The defendant’s contention that the sentence of two consecutive terms of three years imprisonment for his conviction of each violation of § 21a-278a (b) punishes him twice for the same offense is unavailing. “Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) Id., 645. In this'case, the charges do arise from the same drug transaction, but the charged crimes are for two distinct offenses under the same statutory provision. “The proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute.” (Internal quotation marks omitted.) State v. Freeney, 228 Conn. 582, 587, 637 A.2d 1088 (1994). “The issue, though essentially constitutional, becomes one of statutory construction.” State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985).

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) State v. Garvin, 242 Conn. 296, 304-305, 699 A.2d 921 (1997). Our Supreme Court has held that the legislature did not intend to bar multiple punishments for the simultaneous possession of two different kinds of drugs. As the court has noted, “[bjecause an obvious purpose of our drug statutes is to reduce the drug trade in Connecticut, multiple punishments for the sale of two different kinds of drugs is entirely consistent with the state drug policy.” State v. Hill, 237 Conn. 81, 102, 675 A.2d 866 (1996). We find that the sentence imposed by the trial court did not violate the defendant’s double jeopardy rights.

The judgment is affirmed.

In this opinion the other judges concurred.

       The narcotic substance was cocaine.

       The controlled substance was marijuana.

       Martinez testified that in street parlance “ten” referred to the dollar value of the purchase.

       Joel Milzoff supervised tests at the state department of health toxicology laboratory, which confirmed that the fifty-two small bags contained marijuana.

       Similar tests confirmed that the sixteen small bags contained crack cocaine.

       This claim is addressed to the two counts alleging violations of § 21a-278a (b).

       Under Golding an unpreserved claim of constitutional error is reviewable only if all of the following requirements are satisfied: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.

       Section 21a-278a (b) now defines the zone as within 1500 feet of a school.

       The jury charge provided in relevant part: “If you find the defendant guilty under the ninth count you will consider the three elements as set forth in the statute predicate to the application of § 21a-278a, subsection (b), of the General Statutes in the tenth count. These elements are, one, the defendant possessed a substance with the intent to sell that substance. Two, the substance was in fact a controEed substance. Three, that the possession of the controEed substance took place within 1500 feet of the real property comprising apubEc or private elementary or secondary school. Now whether the defendant . . . had violated § 21a-277 (b) within 1500 feet of a private or pubhc elementary or secondary school are questions of fact for you to decide. And you may, as I have told you, draw reasonable and logical inferences from the evidence. If you find beyond a reasonable doubt each of the elements on the crime of possession of a controlled substance with the intent to sell that substance within 1500 feet of a public or private school in violation—public or private secondary or elementary school in violation of § 21a-278a, subsection (b), the General Statutes, tiren you shall find the defendant guilty. On the other hand, if you find that the state has failed to prove beyond a reasonable doubt any one of the elements you shall find the defendant not guilty under the tenth count.”

       The court vacated the defendant’s sentences for possession of a narcotic substance, possession of a narcotic substance within 1500 feet of a school, possession of a controlled substance and possession of a controlled substance within 1500 feet of a school. The defendant was sentenced for possession of a narcotic substance, cocaine, with intent to sell; General Statutes § 21a-277 (a); and possession of a controlled substance, marijuana, with intent to sell. General Statutes § 21a-277 (b). He also received consecutive three year sentences under § 21a-278a (b) for committing those crimes within 1500 feet of a school.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. JOHN MANN
    (AC 17941)
    O’Connell, C. J., and Foti and Schaller, Js.
    Argued December 10, 1999
    officially released March 14, 2000

      William S. Palmieri, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, John Mann, appeals from the judgment of conviction, rendered by the court, of the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A) and (B), and two counts of risk of injury to a child in violation of General Statutes § 53-21. In his appeal, the defendant challenges the trial court’s rulings limiting the defendant’s cross-examination of three prosecution witnesses as to bias and motivation for testifying. The defendant claims that he was prevented from eliciting evidence to impeach (1) the victim on the ground that in third grade she had been accused of being a liar, (2) the victim’s sister on the ground that she had been committed to the Long Lane School, a facility for delinquent children and (3) the victim’s mother on the ground that she was permitted only supervised visitation and as to her knowledge of why the defendant was not allowing her to see the children. The defendant asserts that the court’s rulings violated his sixth amendment right to confrontation.

“It is axiomatic that [a] defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. ... In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Albert, 50 Conn. App. 715, 730-31, 719 A.2d 1183 (1998), cert. granted on other grounds, 247 Conn. 954, 723 A.2d 810 (1999).

“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) Id., 731-32. After hearing oral argument and thoroughly reviewing the record, transcripts and briefs, we conclude that the court’s restriction of the cross-examination of the witnesses in question, based on the ground of relevance, was proper. See id.; see also State v. Sullivan, 244 Conn. 640, 653, 712 A.2d 919 (1998). Accordingly, the defendant’s claims are without merit.

The judgment is affirmed.


author: SCHALLER, J.

text:
    THE FOOD STUDIO, INC. v. FABIOLA’S
    (AC 18846)
    O’Connell, C. J., and Foti and Schaller, Js.
    Argued December 10, 1999
    officially released March 14, 2000

      Martin A. Goldberg, for the appellant (plaintiff).

      Henry C. Ide, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, The Food Studio, Inc., appeals from the judgment of the trial court, rendered following a court trial, awarding it $20 in damages on one count of a four count complaint concerning the alleged breach of lease agreements by the defendant partnership, Fabiola’s. On appeal, the plaintiff claims that the court improperly concluded that (1) the defendant made the required payments under a retail premises sublease agreement between it and the plaintiff, (2) the defendant made the required payments under, and otherwise complied with, an equipment lease agreement between it and the plaintiff and (3) the plaintiff was not entitled to attorney’s fees incurred in its enforcement of either the retail premises sublease or the equipment lease. We affirm the judgment of the trial court.

The court found the following facts. The plaintiff is a Connecticut corporation, the president of which is Cynthia Kruth. In 1993, an entity known as Foursquare Associates leased a portion of the premises located at 195 West Main Street in Avon (premises) to the plaintiff for the retail sale of prepared foods. After occupying the premises itself, the plaintiff entered into a sublease agreement with the defendant, a partnership the partners of which were Fabiola Bowles and Francesco Bowles, sister and brother. The parties executed a sublease on November 1,1995. That same day, the plaintiff, in a separate agreement, leased various items of restaurant equipment to the defendant.

The sublease required a security deposit of $1450, monthly rental payments of $1450 and “the cost of electricity and a pro rata share of sewer assessment and real estate taxes.” The equipment lease called for a security deposit of $300 and monthly payments of $200 with an option to buy many of the items. Both leases specified December 1, 1995, as the day that the Bowleses would open for business. Both leases provided that “[e]ither party needing to take legal action to enforce this agreement will be entitled to reasonable legal fees from the other party.” Finally, the leases were coterminous and were to expire on December 31,1996, that being the same day the lease between the plaintiff and Foursquare Associates was to terminate.

The restaurant opened on November 20, 1995, and friction between the parties occurred almost immediately. The defendant identified problems with several items of the leased equipment, including leaks in sinks, defective drains and seals in refrigerators, and a convection oven that did not cook evenly.

In the first few months of the leases, the defendant was consistently late by several days with rental payments. The leases called for the monthly rental payments to be made “in advance.” The December, 1995 payment was received on December 7; the January, 1996 payment was received on January 4; the February payment was received on February 20. Although the early payments were made to Kruth in person when she visited the premises, February marked the month that the defendant began mailing its payments. The March, 1996 payment was received on March 14, 1996.

The plaintiff brought suit against the defendant in March, 1996. The complaint, as amended, was in four counts. The first count alleged that the defendant failed to make timely sublease rental payments; the plaintiff sought to recover those amounts plus attorney’s fees and costs. The second count alleged that (1) the defendant failed to make timely equipment lease payments for which the plaintiff sought to recover those amounts plus attorney’s fees and costs, (2) the defendant failed to keep the equipment in good repair for which the plaintiff sought maintenance costs and (3) the defendant removed certain items of equipment without the plaintiffs permission for which the plaintiff requested the return of the items or their economic equivalent. Counts three and four alleged conversion and theft of equipment, respectively. In its appeal, the plaintiff does not address the propriety of the court’s judgment with respect to counts three and four.

In early 1996, the defendant had removed some equipment from the premises to be repaired. By letter dated April 18,1996, the defendant’s attorney asked the plaintiffs attorney for permission to remove an unused oven to make room for other equipment. By letter, the plaintiff conditioned its consent on, inter alia, the defendant’s paying the real estate taxes immediately as well as the plaintiffs attorney’s fees within thirty days of billing. The conditions notwithstanding, the defendant removed the oven and stored it in various places over the next year.

The defendant stored the oven and other items of equipment off the premises. Near the end of the term of the leases, the defendant’s attorney wrote to the plaintiffs attorney, indicating that the defendant wanted to exercise its option to purchase equipment. Despite the defendant’s interest, Kruth appeared on the premises on January 3,1997, demanding the immediate return of all of the equipment. Subsequent negotiations were fruitless. The parties could not consummate a deal or decide on a method of return of the equipment; the defendant wanted Krath to retrieve the items at the premises, and Krath wanted them delivered to her. Krath eventually retrieved the equipment and sold it to a third party.

Following a trial to the court, the court awarded the plaintiff $20 on count two of the complaint for the defendant’s failure to return a telephone, a wastebasket and a toaster. The court found for the defendant on the remaining counts. This appeal followed. Additional facts will be set forth as necessary in the context of the plaintiffs specific claims.

I

The plaintiff claims first that the court improperly concluded that the defendant made the required payments under the premises sublease. We disagree.

“The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... 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.) SKW Real Estate Ltd. Partnership v. Mitsubishi Motor Sales of America, Inc., 56 Conn. App. 1, 6, 741 A.2d 4 (1999).

On this-issue, the court found the following:'“It is not disputed, in any event, that the entire amount of rent due under the [sublease] has in fact been paid. At one time, there may have been some dispute over the security deposit. The last month’s rent was not paid, on the [defendant’s] understanding that the security deposit would cover the last month’s rent. [The plaintiff] disagreed, as it was not sure at that point as to any liability it may have had to Foursquare [Associates], its lessor. Whatever disagreement, however genuine, there may have been as to this matter is now academic, as [the plaintiff] is ‘off the hook’ [with respect to its lease with Foursquare Associates], and no request is currently being made for the return of the security deposit. ”

In its brief, the plaintiff concedes, and the record supports, that the defendant paid all but the final month’s rent. The court’s conclusion with respect to all but the last month’s rent is, therefore, not clearly erroneous. Regarding the final month’s rent, the plaintiff argues that the court improperly concluded that the defendant’s security deposit should be applied to satisfy the unpaid rent. The record reveals that the defendant has not made any claim for the return of its security deposit and, further, that the plaintiff was discharged from any liability under the lease with Foursquare Associates. We conclude that the court’s finding that the security deposit constituted the defendant’s final rent payment was, therefore, supported by the record and not clearly erroneous.

II

The plaintiff claims next that the court improperly concluded that the defendant made the required payments under, and otherwise complied with, the equipment lease. We disagree.

We note first that while the plaintiff posits in this claim that the court’s finding regarding equipment lease rental payments was improper, the plaintiff has failed to brief this claim adequately. “In order for this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs.” (Citation omitted; internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 100, 709 A.2d 14 (1998). In its brief, the plaintiff provides no analysis of this part of its claim. “[Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Id., 101. We, therefore, will not review this part of the claim.

We turn to that portion of the plaintiffs claim regarding the defendant’s compliance with the equipment lease. The plaintiff argues that contrary to the court’s conclusion, the uncontradicted evidence shows that the defendant damaged and failed to repair some equipment.

The court determined that the plaintiff failed to sustain its burden of proof with respect to any specific damage to the equipment. We agree with this determination. The record reveals that the plaintiff, notwithstanding the defendant’s request for a court order barring a sale of the equipment until it could be inspected for alleged damage, sold the equipment before any damage could be assessed.

Ill

The plaintiffs final claim is that the court improperly concluded that the plaintiff was not entitled to attorney’s fees incurred in its enforcement of the premises sublease or the equipment lease. We are not persuaded.

“[A]bsent contractual or statutory authorization, there can be no recovery, either as costs or damages, for the expenses of litigation or the expenditures for counsel fees by a party from his opponent. . . . Where a contract expressly provides for the recovery of reasonable attorney’s fees, an award under such a clause requires an evidentiary showing of reasonableness. ... A trial court may rely on its own general knowledge of the trial itself to supply evidence in support of an award of attorney’s fees. . . . The amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion.” (Citations omitted; internal quotation marks omitted.) Buccino v. Cable Technology, Inc., 25 Conn. App. 676, 679, 595 A.2d 376 (1991). “Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law . . . .” (Internal quotation marks omitted.) Krasowski v. Fantarella, 51 Conn. App. 186, 199-200, 720 A.2d 1123 (1998), cert. denied, 247 Conn. 961, 723 A.2d 815 (1999).

A

The Premises Sublease

The sublease provides that “[e]ither party needing to take legal action to enforce this agreement will be entitled to reasonable legal fees from the other party.” The plaintiff asked the court to award it more than $17,000 in legal expenses. The court did not award the plaintiff any legal fees. As our standard of review dictates, we review the court’s decision for abuse of discretion.

In denying the plaintiff any recovery of legal fees under the sublease, the court concluded that litigation was not necessary to enforce the terms of the agreement. The court made the following relevant findings. Following the institution of legal proceedings, the defendant continued to pay rent as it had in the past, that is to say, it consistently paid rent, but frequently late. When the disputed property taxes were computed, the defendant paid them. Commencement of the action added another level of expense and inconvenience for the parties. Otherwise late payments were further delayed as the addition of attorneys to the chain of payment increased the time consumed by the process. The plaintiffs attorney was the husband of the plaintiffs president and an officer of the plaintiff corporation and, although bills were actually presented, there was no evidence that they would be paid unless they were awarded by judgment. The hourly rates stated in the bills were equal to rates charged by attorneys specializing in litigation, although the plaintiffs attorney was not experienced in litigation. The court doubted that litigation would have been undertaken had the attorney-client relationship been an “ordinary business transaction.” The court noted finally that the sublease contained no late fee provision and that to award attorney’s fees to a party that brings suit because the other party has been consistently late in its payments would, as a practical matter, be tantamount to a late penalty far in excess of the amount of late rent, a result not agreed to by the parties.

The plaintiffs argument is essentially that at the time it brought suit, it was necessary to employ an attorney to prompt the defendant to make timely payments under the sublease. Our careful review of the record leads us to the conclusion that the court, on the basis of its findings, made an informed and logical decision on the issue of attorney’s fees under the sublease and, in reaching its decision, did not exceed its discretion. Because we find no abuse of the court’s discretion, the plaintiffs claim must fail.

B

The Equipment Lease

The plaintiff also argues that the court improperly concluded that the plaintiff did not need to incur legal expenses to enforce not only the rental provision of the equipment lease, but also the provisions on repair of equipment and removing equipment from the premises without permission. We address these claims in turn.

The language regarding attorney’s fees in both agreements is identical, and the circumstances surrounding payment were the same in both instances. Accordingly, we conclude, as we did in part III A of this opinion regarding the rental provision of the sublease, that the court did not exceed its discretion when it concluded that an attorney was not necessary to enforce the rental provision of the equipment lease.

As to the remaining provisions referred to, the plaintiff states in its brief that “the memorandum of decision does not address the issue of attorney’s fees to enforce the nonrent provisions of the equipment lease.” In its discussion of the equipment lease, however, the court stated that it did “not find that litigation was necessary to compel compliance with any of the terms of the [equipment] lease, and the [$20] actually recovered is too trivial to justify attorney’s fees under all the circumstances of this case.” (Emphasis added.) We note that the court determined that the plaintiff failed to sustain its burden of proof with respect to any specific damage to the equipment. As we concluded in part II of this opinion, we agree with this determination as well. Furthermore, at the time the plaintiff commenced the action, the only items removed from the premises were those taken by the plaintiff at the defendant’s request and others taken to be repaired by the defendant, which it was obliged to do under the agreement. As to the defendant’s having removed the oven without the plaintiffs permission, this occurred after the action was brought. We conclude that the court’s denial of attorney’s fees under the equipment lease was within its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The partners intended to use the premises for purposes similar to those of the plaintiff.

       The payment was postmarked February 6.

       The Bowleses claimed that Kruth and her husband created a disturbance when they came to the premises to collect the February rent. Because of this, the defendant informed the plaintiff that all future communications should be in writing. At that time, the defendant had not made the real estate tax payment pursuant to the sublease, as it questioned the calculation of the amount. By May or June, 1996, the defendant was current on the taxes.

       The defendant eventually returned the oven to the plaintiff with almost all the rest of the equipment. The defendant conceded that it failed to return a telephone, wastebasket and toaster.

       The plaintiff argues further that the court improperly failed to find that the defendant removed certain items of equipment from the premises without the plaintiff’s permission. We do not address this argument because, contrary to the plaintiffs assertion, the court did so find.


author: Per Curiam.

text:
    VERNON J. LEFTRIDGE v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 19149)
    O’Connell, C. J., and Spear and Mihalakos, Js.
    Submitted on briefs November 3
    officially released November 30, 1999
   Per Curiam.

The judgment is affirmed.


text:
    CONSTANTINE MORANT v. FIRST NATIONAL SUPERMARKETS, INC., ET AL.
    (AC 18907)
    O’Connell, C. J., and Hennessy and Dupont, Js.
    Argued November 2
    officially released November 30, 1999
   Per Curiam.

The judgment is affirmed.


text:
    LORRAINE MIKOLINSKI v. VALLEY VIEW JOINT VENTURE ET AL.
    (AC 18804)
    Lavery, Landau and Spear, Js.
    Argued October 28
    officially released November 30, 1999
   Per Curiam.

The judgment is affirmed.


text:
    BANCPLUS MORTGAGE CORPORATION v. THILAGAWATHY THARMAPALAN ET AL.
    (AC 18882)
    Foti, Spear and Cretella, Js.
    Argued November 2
    officially released November 30, 1999
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    IN RE DEVANICE A. ET AL.

    (AC 17911)
    O’Connell, C. J., and Lavery and Mihalakos, Js.
    Argued November 29
    officially released December 28, 1999

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    COLLARD AND ROE, P.C. v. KIRK STRAIGHT ET AL.
    (AC 19473)
    O’Connell, C. J., and Foti and Spear, Js.
    Submitted on briefs November 30
    officially released December 28, 1999
   Per Curiam.

The judgment is affirmed.


text:
    ERNA WILLIAMS v. CLEVELAND WILLIAMS
    (AC 18779)
    O’Connell, C. J., and Landau and Hennessy, Js.
    Argued December 2
    officially released December 28, 1999
   Per Curiam.

The judgment is affirmed.


text:
    STATEWIDE GRIEVANCE COMMITTEE v. ARTHUR O. KLEIN
    (AC 19331)
    Foti, Lavery and Daly, Js.
    Argued December 3
    officially released December 28, 1999
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. JOSEPH EDWARDS
    (AC 18565)
    (AC 18566)
    Spear, Mihalakos and Freedman, Js.
    Argued December 6
    officially released December 28, 1999
   Per Curiam.

The judgments are affirmed.


text:
    NANCY P. GONTOWSKI v. WALTER S. GONTOWSKI
    (AC 18395)
    O’Connell, C. J., and Landau and Stoughton, Js.
    Argued December 6
    officially released December 28, 1999
   Per Curiam.

The judgment is affirmed.