author: HENNESSY, J.

text:
    BARBARA KOSTRZEWSKI v. COMMISSIONER OF MOTOR VEHICLES
    (AC 17359)
    Foti, Landau and Hennessy, Js.

      Argued September 17, 1998
    officially released March 23, 1999

      Jeffrey D. Brownstein, with whom, on the brief, was Gregory A. Thompson, for the appellant (plaintiff).

      Robert L. Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiff, Barbara Kostrzewski, appeals from the judgment of the trial court dismissing her appeal from the decision of the defendant, the Connecticut commissioner of motor vehicles. The commissioner suspended the plaintiffs Connecticut license to operate a motor vehicle pursuant to General Statutes § 14-111c, the driver license compact (compact), following her conviction in Florida for operating a motor vehicle while under the influence of alcohol.

The plaintiff claims that the trial court improperly (1) upheld the hearing officer’s admission of the Florida traffic citation and report of conviction into evidence and allowed the plaintiffs conviction, which was based on a plea of nolo contendere, to be considered as a basis for suspending her license under the compact, (2) held that the compact was constitutional, (3) held that the enforcement of the compact did not violate the equal protection clause of the Connecticut constitution, (4) held that the Connecticut and Florida statutes are substantially similar for purposes of the compact, (5) held that the report of conviction from Florida complied with the requirements of the compact and (6) held that the suspension of the plaintiffs license did not violate the double jeopardy clause of the United States constitution and the Connecticut constitution. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The plaintiff, a holder of a Connecticut motor vehicle operator’s license, was arrested in Florida for operating a motor vehicle while under the influence of alcoholic beverages in violation of Florida Statutes § 316.193. The plaintiff pleaded nolo conten-dere to the charge and, as a result, the Florida trial court found her guilty of operating a motor vehicle under the influence of alcoholic beverages.

Pursuant to the compact, of which both Florida and Connecticut are member states, the Florida authorities sent notification of the plaintiffs Florida conviction to the commissioner. Upon receipt of the notification from Florida, the commissioner issued the plaintiff a notice of hearing to determine whether her Connecticut license should be suspended as a result of her Florida conviction. On November 1, 1996, the commissioner conducted a hearing on the license suspension before a hearing officer. The plaintiff was present at the hearing and was represented by an attorney.

Subsequent to the hearing, the hearing officer found that the plaintiff was arrested and convicted in Florida for operating a motor vehicle while under the influence of alcohol and that this conviction remains on the plaintiffs driver history. The hearing officer concluded that, under the compact, “any conviction in Florida for driving under the influence shall result in Connecticut treating the conviction as if it had occurred [in Connecticut].” The hearing officer further concluded that a conviction in Connecticut for operating a motor vehicle while under the influence of alcohol would result in the suspension of a motor vehicle operator’s license for one year. Accordingly, the hearing officer ordered that the plaintiffs Connecticut license be suspended for one year.

The plaintiff appealed to the Superior Court pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-183. The Superior Court rendered judgment dismissing the plaintiffs appeal. This appeal followed. Other facts will be discussed where relevant to the issues on appeal.

I

The plaintiff first claims that the trial court improperly upheld the hearing officer’s admission of a report of conviction and traffic citation, marked as state’s exhibit B, into evidence and allowed the plaintiffs conviction, which was based on a plea of nolo contendere, to be considered as a basis for suspending her license under the compact.

“Judicial review of an administrative agency’s action is governed by the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., and the scope of that review is limited. . . . When reviewing the trial court’s decision, we seek to determine whether it comports with the [UAPA]. . . . We look to see if the [trial] court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion. . . . Dortenzio v. Freedom of Information Commission, 48 Conn. App. 424, 430, 710 A.2d 801 (1998).” (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, 51 Conn. App. 100, 104, 720 A.2d 268 (1998).

A

The plaintiff first argues that exhibit B was not sufficiently rehable or trustworthy and, therefore, its admission in evidence substantially prejudiced the plaintiffs rights. Specifically, the plaintiff argues that the documents contained in exhibit B are not in compliance with article III of the compact because there was no proof that her conviction in Florida was reported by the “licensing authority” in Florida, as required, because there was no signature or logo evidencing that the documents were reported by the Florida department of motor vehicles.

The following additional facts are necessary to the resolution of this issue. The trial court; found that exhibit B, as introduced by the state at the administrative hearing, included “the original traffic ticket citing the plaintiff on the drunk driving charge.” The Florida “DUI Uniform Traffic Citation” provides the date and time of the offense, the statute violated and the blood alcohol level of the plaintiff, and contains the signatures of the arresting officer and the plaintiff. The other side of the document is an abstract of the court disposition and indicates the name of the presiding judge and bears an original signature, although there is no indication of the signer’s title or position. The information from the Florida trial court indicates that the plaintiff pleaded nolo contendere, was found guilty, fined and placed on probation and had her driving privileges revoked in Florida for a period of six months.

The trial court concluded that the hearing officer properly admitted the document into evidence and used it to support his final decision because the document bore sufficient indicia of reliability, including the signature of the plaintiff. The trial court further concluded that it is of no significance that “there is no evidence to show whether it was the Florida department of motor vehicles or the Florida court that forwarded it to Connecticut.”

Insofar as the plaintiff is arguing that exhibit B itself is inadmissible, we note that “[administrative tribunals are not strictly bound by the rules of evidence and . . . they may consider evidence which would normally be incompetent in a judicial proceeding, so long as the evidence is reliable and probative. . . . There is, moreover, no specific prohibition against hearsay evidence in the [UAPA], which provides that [a]ny oral or documentary evidence may be received, but [that] the agency shall, as a matter of policy, provide for the exclusion of irrelevant, immaterial or unduly repetitious evidence.” (Citations omitted; internal quotation marks omitted.) Cassella v. Civil Service Commission, 4 Conn. App. 359, 362, 494 A.2d 909 (1985), aff'd, 202 Conn. 28, 519 A.2d 67 (1987).

We conclude, as did the trial court, that the document bears sufficient indicia of reliability, including the signature of the plaintiff. The information contained on the uniform traffic citation was not disputed by the plaintiff nor was it irrelevant or immaterial.

Insofar as the plaintiff is arguing that the compact requires that the conviction be provided by the “licensing authority” and, if not, it is inadmissible as evidence of a conviction, we note that “[w]ith regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . Judicial review of the conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of discretion. . . . Although the interpretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Citations omitted; internal quotation marks omitted.) State Board of Labor Relations v. Freedom of Information Commission, 244 Conn. 487, 494, 709 A.2d 1129 (1998).

Because the information is reliable and probative its admissibility into evidence by the commissioner was proper despite the fact that there is no evidence to show whether it was the Florida department of motor vehicles or the Florida trial court that forwarded the document to the commissioner. We conclude, therefore, that the trial court acted reasonably and did not abuse its discretion in upholding the decision of the hearing officer.

B

The plaintiff next claims that the her plea of nolo contendere cannot be the basis for a suspension of her license. Specifically, the plaintiff argues, relying on Lawrence v. Kozlowski, 171 Conn. 705, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977), that a plea of nolo contendere and the arrest report are inadmissible even in an administrative hearing and, even if admissible, would be insufficient to sustain the commissioner’s decision because they do not amount to substantial evidence.

The plaintiffs reliance on Lawrence is misplaced. In Lawrence, our Supreme Court held that a nolo conten-dere plea and arrest report were not admissible in an administrative hearing on a suspension of a license after a fatal accident pursuant to General Statutes (Rev. to 1975) § 14-111 (c), which required a finding that the operator caused or contributed to the death. Lawrence v. Kozlowski, supra, 171 Conn. 711-12 n.4.

In this case, however, the trial court was reviewing the hearing officer’s decision under the tenets of the compact, which provides in relevant part that “[t]he licensing authority in the home state . . . shall give the same effect to the conduct reported . . . as it would if such conduct had occurred in the home state, in the case of convictions for ... (2) [d]riving a motor vehicle while under the influence of intoxicating liquor . . . .” (Emphasis added.) General Statutes § 14-lllc, Article IV (a).

Under the compact, it is the out-of-state conviction that triggers the application of the compact. Therefore, the trial court properly determined that the “commissioner acts on the basis of an out-of-state conviction” and that it “does not matter how the conviction was obtained, whether by guilty plea, or by trial after a plea of not guilty, or, as in this case, by a finding of the court after a plea of nolo contendere.”

The plaintiff further argues that even if the evidence of conviction was admissible, it did not amount to substantial evidence. “An agency’s factual determination must be sustained if it is reasonably supported by substantial evidence in the record taken as a whole. . . . Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . This substantial evidence standard is highly deferential and permits less judicial scrutiny than a clearly erroneous or weight of the evidence standard of review.” (Citations omitted; internal quotation marks omitted.) Office of Consumer Counsel v. Dept. of Public Utility Control, 246 Conn. 18, 36, 716 A.2d 78 (1998).

The hearing officer had the original traffic citation and an abstract of the court disposition, which indicated that the plaintiff pleaded nolo contendere and was subsequently found guilty by the Florida trial court. The plaintiff did not dispute the information contained in the citation. On review, the trial court found that “[s]ince it is the fact of the conviction that is relevant to the Connecticut commissioner’s decision, not the nature of the plea that produced the conviction, the admission of evidence concerning that plea constituted no prejudice to the plaintiff.” We agree with the trial court.

Because the original citation and the abstract of the court disposition were reliable and provided a substantial basis of fact from which the plaintiffs conviction could reasonably be inferred, we conclude that the trial court acted reasonably and did not abuse its discretion in upholding the decision of the hearing officer to consider the conviction of the plaintiff, which resulted from her nolo contendere plea, as a basis for suspending her license.

II

The plaintiff next claims that her due process rights were violated because the hearing before the commissioner was limited to the issue of whether she was convicted of driving a motor vehicle while under the influence of alcohol in Florida. The plaintiff argues that the compact is unconstitutional on its face, or was applied unconstitutionally, in that the compact itself or the hearing officer did not allow the plaintiff a full hearing to contest various aspects of the out-of-state conviction, including procedural safeguards, the validity of the conviction and the underlying conduct.

“The fourteenth amendment to the United States constitution provides that the State [shall not] deprive any person of life, liberty, or property, without due process of law .... In order to prevail on his due process claim, the plaintiff must prove that: (1) he has been deprived of a property interest cognizable under the due process clause; and (2) the deprivation of the property interest has occurred without due process of law.” (Internal quotation marks omitted.) Tedesco v. Stamford, 222 Conn. 233, 241, 610 A.2d 574 (1992). A driver’s license, as a property interest, may not be suspended or revoked without due process of law. See Bell v. Burson, 402 U.S. 535, 542-43, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971); State v. Washburn, 34 Conn. App. 557, 565, 642 A.2d 70, cert. denied, 230 Conn. 912, 645 A.2d 1017 (1994). “[D]ue process . . . is not a technical conception with a fixed content unrelated to time, place and circumstances. . . . [D]ue process is flexible and calls for such procedural protections as the particular situation demands.” (Citation omitted; internal quotation marks omitted.) Tedesco v. Stamford, supra, 242.

In Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), the Supreme Court indicated that to determine the level of procedural due process necessary, we must consider three factors: (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedure used and the probable value, if any, of additional substitute procedural safeguards and (3) the state’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. We conclude that the plaintiffs right to procedural due process was not violated under the compact.

Applying the factors to the present case, we conclude that a one year license suspension is not an unreasonable restriction on the use and enjoyment of the driver’s license and its imposition is within reasonable limits. The risk of erroneous deprivation is rather low considering the other safeguards that exist. The state of Florida afforded the plaintiff the opportunity for a trial where she was represented by counsel. Furthermore, she had the opportunity to contest the findings or judgment of conviction by appeal in the Florida courts. Under the compact, the plaintiff was given a hearing in Connecticut, where again she was represented by counsel. This hearing was to determine whether she was indeed convicted in Florida of the offense of operating a motor vehicle while under the influence of alcohol.

Finally, the state’s interest in promoting public safety, through the implementation of the compact, clearly outweighs the plaintiffs claimed right to a full hearing in Connecticut to contest the out-of-state conviction, which she had an opportunity to contest in Florida. The compact indicates that “[t]he continuance in force of a license to drive is predicated upon compliance with laws and ordinances relating to the operation of motor vehicles, in whichever jurisdiction the vehicle is operated.” General Statutes § 14-111c, Article I (a) (3). The compact also provides that “[t]he safety of their streets and highways [of the party states] is materially affected by the degree of compliance with state and local ordinances relating to the operation of motor vehicles. . . . Violation of such a law or ordinance is evidence that the violator engages in conduct that is likely to endanger the safety of persons and property.” General Statutes § 14-lllc Article I (a) (1) and (2). In addition, “Connecticut’s statutory scheme [reflects] an unambiguous policy aimed at ensuring that our highways are safe from the carnage associated with drunken drivers.” (Internal quotation marks omitted.) State v. Washburn, 34 Conn. App. 566.

Therefore, public policy, as well as the statute itself, dictates that public safety must take priority over an individual’s right to have a second full hearing in Connecticut to contest the procedural safeguards and validity of the Florida conviction. We do not find, under these circumstances, that the plaintiffs due process rights were violated because the hearing before the commissioner was limited to whether she was convicted of driving a motor vehicle while under the influence of alcohol in Florida.

The plaintiff further argues that, because the compact provides that a violation is only evidence that the violator engages in conduct that is likely to endanger the safety of persons and property, a conviction in Florida does not require the commissioner to accept the conviction without holding a hearing. We are not persuaded. General Statutes § 14-227a mandates a one year suspension of a motor vehicle license if a person is convicted of operating a motor vehicle while under the influence of alcohol in Connecticut. The compact indicates that “[t]he continuance in force of a license to drive is predicated upon compliance with laws and ordinances . . . in whichever jurisdiction the vehicle is operated.” General Statutes § 14-lllc Article I (a) (3). It is clear that Connecticut considers a conviction of operating a motor vehicle while under the influence of alcohol to be conduct that is likely to endanger the safety of persons and property.

III

The plaintiff next claims that the compact violates the equal protection clause of the United States constitution or article first, § 20, of the constitution of Connecticut, as amended by article twenty-one of the amendments. Specifically, the plaintiff argues that since it was her first arrest for operating a motor vehicle while under the influence of alcohol she would, had the arrest taken place in Connecticut, have had the unequivocal right to apply for the alcohol education program under General Statutes § 54-56g, and, upon successful completion of the program, the charge would be dismissed and no suspension of her license would occur. The plaintiff further argues that she received unequal treatment from the commissioner compared to another citizen of Connecticut who also has been arrested for operating a motor vehicle while under the influence of liquor for the first time.

“When a statute is challenged on equal protection grounds, whether under the United States constitution or the Connecticut constitution, the reviewing court must first determine the standard by which the challenged statute’s constitutional validity will be determined. If, in distinguishing between classes, the statute either intrudes on the exercise of a fundamental right or burdens a suspect class of persons, the court will apply a strict scrutiny standard wherein the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest. ... If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge.” (Internal quotation marks omitted.) Luce v. United Technologies Corp., 247 Conn. 126, 143, 717 A.2d 747 (1998).

The plaintiff does not claim that the statute impinges on a suspect class or a fundamental right, nor is there a basis for such a claim. Participation in the alcohol education program in Connecticut is not a right, it is a discretionary disposition invoked by the court for those arrested in Connecticut for operating a motor vehicle while under the influence of alcohol. Because the granting of a request to participate in the program is discretionary, there is no denial to the plaintiff of a fundamental right. The plaintiff is also not a member of a suspect class. She is not being treated any differently from other individuals convicted of operating a motor vehicle while under the influence of alcohol in a foreign state who are reported to Connecticut in accordance with the compact. We conclude, therefore, that the rational basis analysis governs the plaintiffs claim.

“We next undertake the analytical predicate [of consideration of an equal protection claim, namely] . . . a determination of who are the persons similarly situated.” (Internal quotation marks omitted.) State v. Wright, 246 Conn. 132, 141, 716 A.2d 870 (1998). The plaintiffs claim is predicated on a comparison of her Florida conviction for operating a motor vehicle while under the influence of alcoholic beverages and her subsequent administrative license suspension in Connecticut under the compact, § 14-111c, with a person convicted in Connecticut for operating while under the influence of liquor in violation of § 14-227a. In our opinion, these two classes are not similarly situated. People convicted under § 14-227a face a criminal sanction in Connecticut; however, people convicted under a similar foreign state statute face an administrative license suspension in Connecticut under the compact.

As in Wright, where the two classifications consisted of defendants convicted of two separate and distinct crimes, the plaintiffs claim in this case is also “ill-suited to the framework of equal protection analysis.” State v. Wright, supra, 246 Conn. 143. Therefore, as in Wright, the plaintiffs claim, as a matter of analytical categorization, would have been brought more appropriately as a substantive due process claim. “As we often have done when confronted with ill conceived equal protection claims, however, we choose to proceed in the framework of equal protection analysis by [assuming arguendo that the two categories . . . identified by the [plaintiff] are similarly situated with respect to the [statutory scheme] .... Doing so allows us to engage in a rational basis analysis that, for all material purposes, is indistinguishable from the analysis in which we would engage pursuant to a due process claim.” Id., 143-44.

“Under the rational basis test, [t]he court’s function . . . is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way. ... In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification . . . the legislative facts on which the classification is apparently based rationally may have been considered to be true by the government decisionmaker . . . and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational .... Thus, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. ... In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” (Citations omitted; internal quotation marks omitted.) Luce v. United Technologies Corp., supra, 247 Conn. 143-44.

The state has a legitimate interest in highway safety and a responsibility to protect its citizens from those who would drive on its roads while under the influence of alcohol, thereby placing themselves and others in harm’s way. Operating a motor vehicle while under the influence of liquor, in violation of § 14-227a, results in a conviction, while a license suspension in Connecticut under the compact results in a license suspension and not a Connecticut conviction. The legislature rationally could have concluded that people, when facing a conviction under § 14-227a, should be entitled to apply for the alcohol education program. People facing an administrative license suspension under the compact, however, should not be entitled to apply for the alcohol education program because there is no Connecticut conviction involved. The fact that Florida does not offer an alcohol education program to first time offenders in Florida, as Connecticut does, is not relevant to this case. Therefore, we conclude that the compact does not violate the equal protection clause of the United States or the Connecticut constitutions.

IV

The plaintiff next claims that “there was not substantial evidence to show that the Connecticut and Florida statutes are substantially similar1 pursuant to article IV of the compact.” Specifically, the plaintiff argues that her license cannot be suspended under the compact unless there is a finding by the trial court, or evidence introduced at the hearing, that the statutes are substantially similar. The plaintiff cites General Statutes § 52-163a for the proposition that the trial court, in determining the law of a foreign jurisdiction, must find facts based on evidence presented at the hearing. We are not persuaded.

The plaintiffs argument that the trial court must find facts regarding whether the Connecticut statute pertaining to operating a motor vehicle while under the influence of alcohol, § 14-227a, and the Florida statute pertaining to operating a motor vehicle while under the influence of alcohol, Florida Statutes § 316.193, are substantially similar is misplaced. Article IV (c) of § 14-111c does not mandate a comparison of the party states’ statutes with each other.

Article IV (c) of § 14-111c provides: “If the laws of a party state do not provide for offenses or violations denominated or described in precisely the words employed in subsection (a) of this article, such party state shall construe the denominations and descriptions appearing in said subsection (a) as being applicable to and identifying those offenses or violations of a substantially similar nature, and the laws of such party state shall contain such provisions as may be necessary to ensure that full force and effect is given to this article.” (Emphasis added.)

Both Connecticut and Florida are party states. The Connecticut legislature, however, has already determined that § 14-227a is comparable to article IV (a) of § 14-lllc. See General Statutes § 14-llld (c) (2). Article IV (c) of § 14-lllc does not mandate that the Connecticut court determine whether the Florida offense or violation, § 316.193, is substantially similar to the compact; instead, it mandates that the “party state,” in this case Florida, identify those offenses that are substantially similar in nature to those listed in article IV (a) of § 14-lllc. In this case, the authorities in Florida sent the plaintiffs conviction to the Connecticut commissioner pursuant to the compact. We conclude, therefore, that article IV (c) of § 14-lllc does not require the trial court to make findings of fact regarding whether each party state’s statutes are substantially similar.

V

The plaintiff next claims that exhibit B, the report of conviction from Florida, was defective on its face because it did not comply with the mandates of article III of the compact.

Article III of the compact provides: “The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report shall clearly identify the person convicted; describe the violation specifying the section of the statute, code or ordinance violated; identify the court in which action was taken; indicate whether a plea of guilty or not guilty was entered, or the security; and shall include any special findings made in connection therewith.”

The plaintiff does not argue that any specific item listed in article III of the compact was not reported by the authorities in Florida. Instead, the plaintiff argues that “[a]rticle III is essentially the same as subsection (c) of § 14-227b, which requires that the report set forth the grounds for probable cause to make the arrest.” This argument is misplaced. Article III of the compact does not mention § 14-227b (c), which applies to probable cause in a criminal proceeding.

In essence, the plaintiff is again arguing that she should have been afforded a full hearing to contest the various aspects of the Florida conviction, which we already addressed. The Florida “DUI uniform traffic citation” entered into evidence at the hearing in Connecticut contained the following information: the name, address and driver’s license number of the plaintiff, the name of the offense and the specific statute number, the designated number of the city and the county court where the case was heard, including the name of the presiding judge, the fact that a plea of nolo contendere was entered and a finding of guilty entered. In addition, the penalty imposed was recorded. There were no special findings listed and none was alleged to have been made. We find that the information contained in the report from Florida complied with the requirements set forth in article IH of the compact.

VI

The plaintiff finally claims that the suspension of her license violated the double jeopardy clause of the United States constitution. We disagree.

“The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb . . . .’ The double jeopardy clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” State v. Hickam, 235 Conn. 614, 617-18, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996). This constitutional guarantee is applicable to the states through the due process clause of the fourteenth amendment. See Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Woodson, 227 Conn. 1, 7, 629 A.2d 386 (1993).

The plaintiff was arrested and convicted in Florida for operating a motor vehicle while under the influence of alcoholic beverages in violation of Florida Statutes § 316.193. As a result of this criminal conviction, the plaintiff was fined, placed on probation and had her driving privileges revoked for a period of six months in Florida. In addition, the plaintiff was subjected to a one year administrative license suspension in Connecticut under the compact.

The plaintiff argues that the commissioner’s suspension of the plaintiffs license to operate a motor vehicle in Connecticut under the compact is a violation of the double jeopardy clause because the suspension stems from her conviction of driving while under the influence of alcohol in Florida, an offense for which she has already been punished by the state of Florida. The plaintiff further argues that her suspension under the compact is for penal purposes because it is borrowed from § 14-227 (a).

In United States v. Halper, 490 U.S. 435, 448-49, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), the United States Supreme Court held that “under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” (Emphasis added.) Our Supreme Court had the opportunity to interpret the holding of Halper in State v. Hickam, supra, 235 Conn. 614. In Hickam, our Supreme Court found that “[t]he majority of courts that have addressed the issue of whether the imposition of a civil sanction constitutes punishment for purposes of the double jeopardy clause . . . have rejected the notion that Halper intended to characterize as punishment all civil or administrative sanctions that have any deterrent effect. . . . The majority of courts have also concluded that administrative sanctions that have the remedial purpose of advancing public safety interests do not constitute punishment for purposes of double jeopardy analysis.” (Citations omitted.) Id., 621. Therefore, the court concluded that “Halper stands for the proposition that a civil or administrative sanction that serves a legitimate remedial purpose and is related rationally to that purpose does not give rise to a double jeopardy violation even if the sanction has some deterrent effect.” Id., 623. We conclude that the compact is remedial for double jeopardy purposes.

The purpose of the compact, as set forth in article I (a) (1) and (2) of § 14-111c, is to promote safety because “[t]he safety of [a party state’s] streets and highways is materially affected by the degree of compliance with state and local ordinances relating to the operation of motor vehicles” and “[violation of such a law or ordinance is evidence that the violator engages in conduct that is likely to endanger the safety of persons and property.” We conclude, therefore, that the suspension of the plaintiffs operator’s license pursuant to the compact is an administrative sanction, remedial in nature advancing the interests of public safety, and, as such, does not violate the plaintiffs right against double jeopardy.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-lllc provides in relevant part: “The driver license compact is hereby enacted into law and entered into with any and all of the states legally joining therein in the form substantially as follows:
      ARTICLE III
      Reports of Conviction
      The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report shall clearly identify the person convicted; describe the violation specifying the section of the statute, code or ordinance violated; identify the court in which action was taken; indicate whether a plea of guilty or not guilty was entered, or the security; and shall include any special findings made in connection therewith.
      ARTICLE IV
      Effect of Conviction
      (a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to article III of this compact, as it would if such conduct had occurred in the home state, in the case of convictions for:
      * ** *
      (2) Driving a motor vehicle while under the influence of intoxicating liquor or narcotic drug, or under the influence of any other drug to a degree that renders the driver incapable of safely driving a motor vehicle;
      *
      (c) If the laws of a party state do not provide for offenses or violations denominated Or described in precisely the words employed in subsection (a) of this article, such party state shall construe the denominations and descriptions appearing in said subsection (a) as being applicable to and identifying those offenses or violations of a substantially similar nature, and the laws of such party state shall contain such provisions as may be necessary to ensure that full force and effect is given to this article. . .

       The trial court also noted that the plaintiff appended to her petition in the trial court appeal a copy of the Florida court’s written order setting forth the conviction following the plaintiffs nolo contendere plea and the placing of the plaintiff on probation. The trial court indicated that the document was also signed by the plaintiff and contained information consistent with that set forth in exhibit B. The trial court concluded thatthis “constitutes an admission by the plaintiff’ and “essentially nullifies any argument that the document admitted in evidence at the hearing is not reliable.”

       Article III of the compact provides in relevant part that “[t]he licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. . . .”

       Although there was no plea of guilty entered by the plaintiff, her plea of nolo contendere resulted in the Florida court adjudging her guilty.

       See footnote 2.

       While the plaintiff indicates that her due process rights were violated, she does not indicate whether it was her due process rights under the United States constitution or the Connecticut constitution, nor does she cite any constitutional provision in support of her claim. Since the plaintiff failed to offer a separate analysis under the state constitution, “[w]e, therefore, choose to consider the claim solely under the federal constitution.” State v. Garvin, 43 Conn. App. 142, 146 n.5, 682 A.2d 562 (1996), aff’d, 242 Conn. 296, 699 A.2d 921 (1997). In any event, “[o]ur Supreme Court has repeatedly held that, as a general rule, the due process clauses of both the United States and Connecticut constitutions have the same meanings and impose similar limitations. State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982).” (Internal quotation marks omitted.) State v. Foster, 45 Conn. App. 369, 388, 696 A.2d 1003, cert. denied, 243 Conn. 904, 701 A.2d 335 (1997).

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. . . .”

       Article first, § 20, of the constitution of Connecticut, as amended by article twenty-one of the amendments, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability." Because the plaintiff does not contend that she is entitled to any greater protection under the state constitution than under the federal constitution, we treat those provisions as embodying the same level of protection. Lash v. Aetna, Casualty & Surety Co., 236 Conn. 318, 329-30, 673 A.2d 84 (1996).

       The plaintiff argues that the right to a driver’s license is a fundamental right that is protected by strict scrutiny analysis. This argument is misplaced. The plaintiffs equal protection claim is based on the fact that she was denied the right to apply for the alcohol education program.

       The applicable provision of subsection (a) is article IV (a) (2) of § 14-111c, which provides in relevant part that “[d]riving a motor vehicle while under the influence of intoxicating liquor . . . that renders the driver incapable of safely driving a motor vehicle . . . .”

       The plaintiff also claims a violation of the double jeopardy clause of the Connecticut constitution. “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.” (Internal quotation marks omitted.) State v. Belcher, 51 Conn. App. 117, 119 n.7, 721 A.2d 899 (1998). The plaintiff, however, did not provide a separate analysis under the Connecticut constitution and, therefore, we are not bound to consider this claim. State v. Blocker, 46 Conn. App. 734, 738 n.7, 700 A.2d 1186, cert. denied, 243 Conn. 946, 704 A.2d 799 (1997). In any event, we have consistently held that the Connecticut constitution affords no greater protection than the United States constitution’s double jeopardy clause. Id.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    CITICORP MORTGAGE, INC. v. RONNI L. WEINSTEIN ET AL.
    (AC 17878)
    Landau, Spear and Dupont, Js.
    Argued November 2, 1998
    officially released March 23, 1999

      David M. Fisher, with whom, on the brief, was Robert T. Francis, for the appellants (named defendant et al.).

      Pierre-Yves Kolakowski, for the appellee (plaintiff).
   Opinion

LANDAU, J.

This is an appeal from a deficiency judgment rendered by the trial court in favor of the plaintiff, Citicorp Mortgage, Inc., and from a denial of the motion filed by the named defendant et al. to open and set aside the deficiency judgment. The defendants claim that the trial court improperly (1) accepted an exterior appraisal of the fair market value of the defendants’ residence during the deficiency judgment hearing and (2) denied the motion to open and set aside the judgment in that the trial court improperly (A) overruled the defendants’ objection to hearsay testimony offered at the hearing, (B) determined the date stamped on the appearance forms filed by plaintiff’s counsel and (C) permitted the appearance of counsel for the plaintiff. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In 1996, the plaintiff sought to foreclose its mortgage on property owned by the defendants located at 41 Porter Drive, West Hartford. The trial court rendered a judgment of strict foreclosure with respect to the subject property, set the plaintiffs debt at $501,294.39, the fair market value of the subject property at $310,000 and May 19, 1997, as the law day for the defendants, owners of the equity of redemption. The defendants failed to redeem on their law day, and, there being no subsequent encumbrances, title to the subject premises vested in the plaintiff on May 21,1997.

The plaintiff filed a motion for a deficiency judgment on May 22, 1997, pursuant to General Statutes § 49-14. On November 21, 1997, following a hearing, the trial court set the fair market value of the property at $310,000, and rendered a $207,151.13 deficiency judgment for the plaintiff. This appeal followed. The defendants, on December 26, 1997, filed a motion to open and set aside the deficiency judgment, which the trial court denied on January 26,1998. Thereafter, the defendants amended their appeal to challenge that denial. Other facts will be discussed where relevant to the issues in the case.

I

The defendants first claim that the trial court improperly accepted the opinion of the plaintiffs appraiser as to the fair market value of the subject property because her testimony and appraisal report were based only on a drive-by inspection of the exterior. We disagree.

The following additional facts and procedural history are relevant to the disposition of this claim. To determine the fair market value of the subject property, the plaintiff offered the testimony of Laura Callahan, a licensed real estate appraiser and expert witness. Callahan testified that she conducted only an exterior inspection, which is a typical procedure in appraising properties. Furthermore, Callahan testified that on the basis of the exterior inspection, the fair market value of the subject property as of the date of title vesting, May 21, 1997, was $310,000. Callahan, while admitting that she was never refused entry to the subject property and that her evaluation of the interior was based on an assumption, also researched town hall records, comparable sales, Multiple Listing Service information and did “everything pertinent an appraiser would do in order to establish the value of the property.”

The defendants conducted their own appraisal but did not introduce that evidence at the hearing. Moreover, the defendants did not introduce any evidence regarding the interior of the subject property that might suggest a different fair market value, leading the trial court to infer that information regarding the interior of the property would not have increased the value. In rendering its oral decision, the trial court stated: “I have evidence before me by a qualified real estate appraiser based upon an assumption that I find completely justified; namely, to infer average interior condition from average exterior condition and a practice in the trade to do so, to justify my receiving her report as a reasonable estimate of value and on the basis of which I would render a deficiency judgment.”

“A deficiency proceeding has a very limited purpose. In the hearing contemplated under § 49-14 to obtain a deficiency judgment, the court, after hearing the party’s appraisers, determines the value of the property and calculates any deficiency. This deficiency judgment procedure presumes the amount of the debt as established by the foreclosure judgment and merely provides for a hearing on the value of the property. . . . The deficiency hearing concerns the fair market value of the subject property as of the date title vests in the foreclosing plaintiff under § 49-14.” (Citations omitted; internal quotation marks omitted.) First Federal Bank, FSB v. Gallup, 51 Conn. App. 39, 42, 719 A.2d 923 (1998). “[I]mplicit in ... § 49-14 is the requirement that the party seeking a deficiency judgment satisfy her burden of proof regarding the fair market value of the property”; Eichman v. J & J Building Co., 216 Conn. 443, 445, 582 A.2d 182 (1990); in particular, the requirement “that the plaintiff provide the court with sufficient evidence to demonstrate that she is entitled to a deficiency judgment.” Id., 450.

“When considering a motion for a deficiency judgment, the trial court may make an independent determination as to the valuation of the property. . . . Our Supreme Court has held that, in a deficiency judgment proceeding, [t]he determination of [a property’s] value by a court is the expression of the court’s opinion aided ordinarily by the opinions of expert witnesses, and reached by weighing those opinions in light of all the circumstances in evidence bearing upon value and its own general knowledge of the elements going to establish it. . . . [T]he determination of the credibility of expert witnesses and the weight to be accorded their testimony is within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible. . . .

“In determining valuation pursuant to [General Statutes] § 49-14, the trier, as in other areas of the law, is not bound by the opinion of the expert witnesses .... The evaluation of testimony is the sole province of the trier of fact. We do not retry the case. The conclusion of the trial court must stand unless there was an error of law or a legal or logical inconsistency with the facts found. . . . We will disturb the trial court’s determination of valuation, therefore, only when it appears on the record before us that the court misapplied or overlooked, or gave a wrong or improper effect to, any test or consideration which it was [its] duty to regard.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Bank of Southeastern Connecticut v. Nazarko Realty Group, 49 Conn. App. 452, 456-57, 714 A.2d 722 (1998).

The defendants claim that no rational inference can be made that the quality of the interior of a building bears any relationship to its exterior, that an exterior appraisal is simply not enough for a deficiency judgment. The defendants do not claim that an exterior appraisal is never adequate evidence to establish an accurate fair market value. In fact, the defendants acknowledge that Farmers & Mechanics Bank v. Arbucci, 24 Conn. App. 486, 589 A.2d 14, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991), supports the proposition that an exterior appraisal is “acceptable evidence of value in cases where countervailing considerations brought about by the opposing parties’ misconduct [necessitate] its acceptance by the trial court.” The defendants argue, however, that no countervailing considerations exist in this case. The essence of the defendants’ claim, therefore, is that an exterior appraisal does not provide, as a matter of law, a sufficient basis for the determination of fair market value in a deficiency judgment proceeding.

We are guided in the resolution of this claim by Bank of Boston Connecticut v. Moniz, 47 Conn. App. 234, 702 A.2d 655 (1997), appeal dismissed, 247 Conn. 394, 720 A.2d 1111 (1998). In Moniz, at a hearing regarding a strict foreclosure action, the plaintiff presented an appraisal of the property based on an exterior inspection and waived its right to rely on an interior inspection to increase the amount of any deficiency judgment. Id., 241. The defendants objected, arguing that the exterior appraisal was insufficient, but chose not to present any evidence regarding the value of the property. Id. As the evidence presented was uncontradicted, the trial court chose to rely on the appraiser’s testimony in establishing value, which was within the trial court’s province as the trier of fact. Id.

In obiter dicta, we stated that “[a]ny remedy the defendants might have regarding the value of the property would arise in proceedings for a deficiency judgment. If, as the defendants assert, an interior inspection would have increased the appraised value of the property, they can present that evidence at the hearing for a deficiency judgment.” Id., 241-42. It is implicit in this statement that if the defendants were allowed to present evidence of the interior inspection at the deficiency judgment hearing, certainly the plaintiff would be allowed to offer evidence at the hearing based on the exterior inspection, as it had waived its right to rely on any interior inspection.

Furthermore, in the present case, the appraiser’s opinion of the fair market value of the subject property was not based solely on a drive-by inspection of the exterior. Callahan testified that in addition to the exterior inspection, she also researched town hall records, comparable sales and Multiple Listing Service information and did everything pertinent to establish the value of the subject property. As such, the trial court’s determination as to the valuation of the property was based on weighing all the evidence bearing on the value, not solely the exterior appraisal, which was within the trial court’s province as the trier of fact.

We conclude, therefore, that in determining the fair market value of the subject property, the trial court properly relied on the appraisal.

II

The defendants next challenge the trial court’s denial of their motion to open and set aside the judgment. Specifically, the defendants claim that the trial court improperly (1) overruled their objection to hearsay testimony offered at the hearing, (2) determined the date stamped on the appearance form filed by plaintiffs counsel and (3) permitted the appearance of counsel for the plaintiff. Again, we disagree.

The following additional facts and procedural history are necessary for the resolution of these issues. On May 22, 1997, the law firm of Zeichner, Ellman & Krause (Zeichner) filed a motion for a deficiency judgment on behalf of the plaintiff. On June 4, 1997, the law firm of Gussak, Silver, Sklar & Kirsch, P.C. (Gussak), filed an amended appearance form indicating that its appearance was in addition to, rather than in lieu of, Zeichner. The trial court rendered an oral decision at the hearing regarding the motion to open and set aside the judgment, stating: “All right. I am going to deny the motion.” Immediately thereafter, the trial court found that Gus-sak filed the in lieu of appearance on May 28, 1997.

A

The defendants first claim that the trial court improperly overruled the defendants’ objection to hearsay testimony offered by plaintiffs counsel, Zeichner, concerning his authority to pursue a deficiency judgment on behalf of the plaintiff. We disagree.

“[Hjearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” (Emphasis added; internal quotation marks omitted.) State v. Jarzbek, 204 Conn. 683, 696 n.7, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988); see also 2 C. McCormick, Evidence (4th Ed. 1992) § 246, p. 97. “The rule against hearsay reflects the proposition that hearsay evidence is less reliable than sworn, in-court testimony because the declarant has not been subjected to the safeguards that advance the accuracy of a witness’s testimony, the declarant’s statements were not made under oath; he is not present at trial so that the jury may observe his demeanor and thereby judge his credibility; and he cannot be cross-examined.” (Emphasis added.) State v. Jarzbek, supra, 696 n.7.

At the hearing on the motion to open and set aside the judgment, the plaintiffs counsel offered the court an explanation regarding the appearance forms filed by Gussak. The plaintiffs counsel, however, neither offered this explanation in the form of testimony, nor offered any evidence. Accordingly, since the rule of evidence regarding hearsay was inapplicable, the defendants’ claim is without merit.

B

The defendants next claim that the trial court improperly determined the date stamped on the appearance form filed by plaintiffs counsel. Specifically, the defendants claim that the trial clerk’s docket summary indicates that Gussak’s in lieu of appearance was entered by the clerk’s office on May 20, 1997, and, therefore, the trial court’s finding that Gussak’s appearance was filed on May 28 was clearly erroneous. The defendants argue that because Zeichner’s appearance was effectively withdrawn on May 20 because of the Gussak appearance, Zeichner had no right to file the May 22 motion for deficiency judgment and, therefore, “no deficiency judgment should have or can ever enter.” We disagree.

“Appellate review of findings of fact is limited to deciding whether such findings were clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached.” (Citation omitted; internal quotation marks omitted.) Sivilla v. Philips Medical Systems of North America, Inc., 46 Conn. App. 699, 708-709, 700 A.2d 1179 (1997).

An examination of the complete record reveals that there is evidence to support the trial court’s determination that the date stamped on the appearance form was May 28. We conclude, therefore, that the trial court’s finding was not clearly erroneous.

C

The defendants finally claim that on June 4, 1997, there was no counsel of record in addition to which Gussak could file an appearance, and the effective withdrawal of Zeichner on May 20, 1997, invalidates and voids the motion for deficiency judgment that Zeichner filed on May 22,1997, and argued on November 21,1997.

Essentially, the defendants’ claim is premised on the Gussak in lieu of appearance’s being filed on May 20 rather than May 28. Because of our conclusion that the trial court’s finding as to the date stamped on the appearance form was not clearly erroneous, we will not pursue the defendant’s final claim, which is rendered purely academic. See Christensen v. Bic Corp., 18 Conn. App. 451, 458-59, 558 A.2d 273 (1989).

The judgment is affirmed.

In this opinion the other judges concurred.

      The original complaint named Centerbank, formerly known as First Central Bank, Robert H. Weinstein and Ronni L. Weinstein as defendants. Centerbank was a junior lienholder at the time that the complaint was filed. On appeal, all references to the defendants are only to Robert II. Weinstein and Ronni L. Weinstein.

       “The appellant bears the burden of providing this court, with an adequate record for review. Practice Book § 4061 [now § 60-5]; State v. Ong, 30 Conn. App. 45, 50, 618 A.2d 583 [cert. denied, 225 Conn. 909, 621 A.2d 290 (1993)].” State v. Lawler, 30 Conn. App. 827, 828 n.2, 622 A.2d 1040 (1993). In the present case, the trial court did not file a written memorandum of decision and the appellant cites to the oral decision of the trial court, as transcribed, which was not signed by the trial judge. “Practice Book § 4059 [now § 64-1] indicates that the trial court is required to state the factual basis of its oral or written decision. In the event that the trial court fails to perform its mandated duty, the appellant must file a motion with this court under either Practice Book § 4183 (1) [now § 60-2 (1)], seeking an order to compel the trial court to file a memorandum, or Practice Book § 4051 [now § 66-5], seeking an articulation. When an appellant . . . fails to present the factual basis of the court’s decision, he has failed to provide an adequate record.” State v. Lawler, supra, 828 n.2.
      Although not fully complying with § 64-1, the trial court did issue a detailed statement of its findings in connection with its decision. While we do not condone the defendants’ noncompliance, we choose to review the defendants’ claims where the trial court’s oral decision is sufficiently detailed so as not to “exalt form over substance.” (Internal quotation marks omitted.) Fiddelman v. Redmon, 31 Conn. App. 201, 209 n.6, 623 A.2d 1064, cert. denied, 226 Conn. 915, 628 A.2d 986 (1993); see also State v. Lawler, supra, 30 Conn. App. 828 n.2.

       General Statutes § 49-14 (a) provides in relevant part: “At any time within thirty days after the time limited for redemption has expired, any party to a mortgage foreclosure may file a motion seeking a deficiency judgment. Such motion shall be placed on the short calendar for an evidentiary hearing. ... At such hearing the court shall hear the evidence, establish a valuation for the mortgaged property and shall render judgment for the plaintiff for the difference, if any, between such valuation and the plaintiff’s claim. The plaintiff in any further action upon the debt, note or obligation, shall recover only the amount of such judgment.”

       At oral argument before this court, plaintiffs counsel claimed that the defendants failed to object to the admissibility of the evidence or the appraisal report at trial. We disagree. A review of the transcript reveals that the defendant stated the following at the deficiency judgment hearing: “My argument fundamentally goes to the competency of the testimony, which has been offered by the appraisal. My argument, Your Honor, is quite simply, when you boil it down, that absent interior inspection, there is no reasonable basis to allow for the assumptions that are made by the appraiser, regardless of whether or not she says it is standard in the industry, to allow this court to have any sense of what the interior is like, and resultingly, what the value of the properly is like.” We conclude, therefore, that the defendants properly preserved the issue for appeal.

       We note that at oral argument before this court, defendants’ counsel conceded that the defendants had their own appraisal done.

         Moreover, our review of the record discloses that the trial court considered the only evidence that it had before it, the expert testimony offered by the appraiser. The defendants decided, for whatever reason, not to offer evidence regarding the value of the subject property. As such, while the trial court was not bound by the opinion of the expert witness, it chose to credit her testimony. It was within the province of the trial court as the trier of fact to adopt the testimony that it reasonably believed was credible. See Bank of Southeastern Connecticut v. Nazarko Realty Group, supra, 49 Conn. App. 456.

       When Gussak filed the initial in lieu of appearance, the name of this law firm was Gussak, Jacobson, Silver & McChristian.

       The following cohoquy between the defendants’ counsel and the trial court took place at the conclusion of the hearing:
      “[Defense Counsel]: Your Honor, may I ask for a finding of fact as to the date that the substitute appearance or the appearance in lieu was filed with the court because my review of the court file and my review of the computer system indicated May 20 was the date.
      “The Court: May 28 is the date the appearance is dated and it is date stamped.”

       The following colloquy took place during the hearing:
      “[Plaintiffs Counsel]: What happened was title vested on May 21. Our office filed deficiency judgment. Subsequent to that, [the plaintiff] requested that attorney Gussak’s office undertake ejectment of the property.
      “[Defense Counsel]: Your Honor, I apologize for interrupting, but that is hearsay, what his client instructed him or another law office to do. What my motion is based upon is what the court’s file reflects and I am going to object to any characterization as to what his client instructed law offices to do unless there is someone competent to testify to that.
      “The Court: Well, your whole argument is premised on the fact that the plaintiff wanted one law firm to appear in lieu of another and I am going to—I’ll hear' him as to what the plaintiff wanted. . . .
      “[Plaintiffs Counsel]: As I was saying, Your Honor . . . what happened was attorney Gussak’s office filed an appearance in lieu of ours and we received that on May 30. We immediately filed—wrote a letter to attorney Gussak’s office . . . indicating to him that our office was processing the deficiency judgment. Could they please fix the appearance so that our firm doesn’t get knocked out. On May—on June 4, immediately following that letter, they filed an amended appearance. Although it may not have been the exact procedure by which to do it, they filed this amended appearance which stated their appearance was actually in addition to ours, so inside of approximately six days, the matter had been clarified and our office proceeded with the deficiency judgment and obtained a deficiency judgment. At all times our office had authority to execute or prosecute the deficiency judgment with [the plaintiffs] authority to do so. It is really defense counsel’s form over substance. We always had the authority to do so and [it was] just a simple clerical error.”

       The defendants state in their brief that Practice Book § 7X, now § 3-9 (a), indicates that a party is deemed to have withdrawn an appearance “upon failure to file a written objection within ten days after written notice has been given or mailed to such attorney or party that a new appearance has been filed in place of the appearance of such attorney or party . . . Similar to the argument, in part II B, the defendants argue that because Gussak filed an appearance on May 20, 1997, and Zeichner did not object within ten days, Zeichner is deemed to have withdrawn from the case on May 20, 1997. Practice Book § 7X was a temporary number assigned to the former rule 77 as of July 29, 1977, and replaced in the 1998 revision of Practice Book § 3-9.


author: PER CURIAM.

text:
    RAYMOND PELLETIER ET AL. v. BELLA GOODNOFF ET AL.
    (AC 18335)
    O’Connell, C. X, and Foti and Sullivan, Js.
    Submitted on briefs January 28
    officially released March 23, 1999

      William Howard filed a brief for the appellants (defendants).

      Paul D. Buhl filed a brief for the appellees (plaintiffs).
   Opinion

PER CURIAM.

The defendants appeal from the judgment of the trial court denying their motion to open a judgment that was rendered in favor of the plaintiffs. The sole issue raised on appeal is whether the trial court abused its discretion in denying the motion to open. We affirm the judgment of the trial court.

Examination of the record discloses the following relevant facts. The plaintiffs live in Connecticut and the defendants live in New York. The parties entered into a purchase and sale agreement regarding a house in East Haddam. The defendants claimed that, despite their good faith efforts, they could not obtain financing to complete the transaction. They sought to terminate the agreement and a return of their $19,250 deposit, which was being held in escrow. The plaintiffs subsequently filed this breach of contract action, claiming that the defendants were not diligent in their search for financing and, thus, the plaintiffs were entitled to recover the $19,250 deposit as liquidated damages. After numerous attempts to serve notice of the suit on the defendants, the plaintiffs eventually obtained a default judgment against the defendants, which the defendants sought to open. The trial court denied the motion to open, finding that the defendants had actual notice of the lawsuit and had not alleged or proven that they were prevented by fraud, mistake or other reasonable cause from defending the action. On appeal, the parties vigorously dispute whether the plaintiffs ever served proper notice of this action on the out-of-state defendants and whether the defendants had actual notice of the suit.

“A motion to open and vacate a judgment filed during the four months after which judgment was rendered is addressed to the court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.” (Internal quotation marks omitted.) Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985). We will indulge every reasonable presumption in favor of affirming the judgment. Celanese Fiber v. Pic Yarns, Inc., 184 Conn. 461, 466-67, 440 A.2d 159 (1981).

Our examination of the record and briefs persuades us that the judgment of the trial court should be affirmed. The issues regarding the underlying dispute as to whether the judgment should be opened were resolved properly in the trial court’s thoughtful and comprehensive memorandum of decision. Pelletier v. Goodnoff, 45 Conn. Sup. 563, 727 A.2d 277 (1998). Because that memorandum of decision fully addresses the arguments raised in this appeal, we adopt it as a proper statement of the facts and the applicable law on those issues. It would serve no useful purpose for us to repeat the discussion contained therein. In re Karrlo K., 40 Conn. App. 73, 75, 668 A.2d 1353 (1996).

The judgment is affirmed.


text:
    PACIFIC LAND EXCHANGE v. STANLEY M. HUNTS ET AL.
    (AC 17406)
    O’Connell, C. J., and Hennessy and Dupont, Js.
    Argued November 3, 1998
    officially released March 23, 1999

      David F. Borrino, for the appellant (plaintiff).

      William C. Franklin, for the appellee (named defendant).
   Opinion

HENNESSY, J.

The plaintiff, Pacific Land Exchange, appeals from the trial court’s denial of its motion for a deficiency judgment against the defendant Stanley M. Hunts after the trial court rendered a judgment of strict foreclosure in its favor. The plaintiff claims that the trial court improperly denied its motion for a deficiency judgment because it improperly excluded evidence of the listing of the subject property for sale and excluded the testimony of the plaintiffs expert witness as to the effect the excluded evidence would have on his opinion regarding the fair market value of the property. The plaintiff argues, therefore, that the trial court failed to provide it with a full and complete hearing on its motion and urges this court to reverse the decision of the trial court and to remand the matter for a full and complete hearing. We affirm the judgment of the trial court.

The following procedural history is relevant to this appeal. The plaintiff commenced a mortgage foreclosure action against the defendant with respect to two parcels of property located in Litchfield. On December 9, 1996, the trial court rendered a judgment of strict foreclosure, and the title to the property vested in the plaintiff in January, 1997. On January 27,1997, the plaintiff filed a motion for a deficiency judgment.

The plaintiffs claims challenge the evidentiary rulings of the trial court. “Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [party raising the challenge] of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) O'Brien v. Coburn, 46 Conn. App. 620, 630-31, 700 A.2d 81, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997).

I

The plaintiff first argues that the trial court improperly excluded evidence of the listing price and evidence of the property’s failure to sell at the listing price, which it claims is the most probative evidence as to the fair market value of the property and is not hearsay.

The following facts are relevant to our resolution of this issue. At the June 24, 1997 hearing, the plaintiff called Arthur Oles, a real estate appraiser, as a witness. On direct examination, Oles was asked, “Has there been anything that happened since you have appraised the property as of January 13, 1997, which indicates whether or not your appraised value for that is accurate or whether there has been a change.” Oles answered that “the property is now on the market. It is in the Litchfield County Multiple Listing Services.” The defendant’s counsel objected, stating, “I don’t want any hearsay when Pacific Land is looking for a deficiency as to what Pacific Land listed the property for. If they want to come in and testify to its value, fine, but I don’t want any testimony in this regard on a hearsay basis.” The trial court sustained the objection. The plaintiff did not offer any argument to contest the trial court’s ruling. On appeal, the plaintiff argues that the listing price was probative, relevant, and was not hearsay because it was not offered to prove the truth of the matter asserted— the value of the property—but was offered only “to show the upper range of the value of the property in the marketplace.”

“An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies.” State v. Hines, 243 Conn. 796, 803, 709 A.2d 522 (1998). It was the plaintiffs responsibility to alert the trial court that it planned to offer the testimony for a purpose other than to prove the truth of the matter asserted so as to preserve its claim for appellate review. “We have not yet reached a jurisprudential stage where we require trial judges to be mentally telepathic.” State v. Ulen, 31 Conn. App. 20, 29, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). “To review the [plaintiffs] claim, articulated for the first time on appeal, would result in a trial by ambuscade of the trial judge. See State v. Newsome, 238 Conn. 588, 597, 682 A.2d 972 (1996); State v. Prioleau, 235 Conn. 274, 311, 664 A.2d 743 (1995).” O'Shea v. Mignone, 50 Conn. App. 577, 587, 719 A.2d 1176 cert. denied, 247 Conn. 941, 723 A.2d 319 (1998). Because we are not required to consider a claim raised for the first time on appeal or not properly preserved at the trial court; Practice Book § 60-5; we decline to review the trial court’s ruling on the basis of the plaintiffs newly articulated ground for admissibility. The only ground with which the trial court was presented for excluding the testimony was that it was hearsay. On the basis of that objection, we conclude that the ruling to sustain the objection was not an abuse of discretion.

II

The plaintiff further argues that the trial court improperly excluded testimony by its expert regarding the effect that the excluded evidence would have had on his opinion as to the fair market value of the property. We disagree.

The following facts are relevant to our resolution of this issue. After the trial court sustained the defendant’s objection on the admissibility of the listing price and evidence of the property’s failure to sell at that listing price, the plaintiffs attorney continued to question Oles. Oles was asked on direct examination, “Let me approach it this way. Has a certified real estate appraiser actually considered the marketplace to be a more or less reliable indicator of fair market value than an appraisal done by an appraiser without regard to what actually happened in the marketplace?” Oles answered, “Well, certainly the market place is the ultimate arbiters, the ultimate source of appraisers’ information and appraisers’ opinion. So the marketplace is what we are supposed to be reflecting.”

Oles was next asked, “If a property has been listed at a particular price in the marketplace for a significant period of time and has not sold, what information would that convey to you as an expert with regard to value in real property in . . . Connecticut?” The defendant’s counsel objected, stating, “I am going to object to that, Your Honor. That is totally speculative. You can have a piece of property on for half its value and pile junk up in the front yard and nobody would be interested in buying it no matter what its price is. So I think that calls for pure speculation.” The trial court sustained the objection. The plaintiff did not offer any argument to the trial court as to the admissibility of the testimony. On appeal, however, the plaintiff argues as if the objection were sustained because the testimony was hearsay. The plaintiff claims that an expert, testifying as to fair market value of property, routinely forms an opinion based on hearsay evidence and the trial court should not have precluded the expert from expressing an opinion based on this information. The only ground with which the trial court was presented for excluding the testimony was that it was speculative. On the basis of that objection, we conclude that the ruling to sustain the objection was not an abuse of discretion.

The plaintiff further argues that, because the trial court improperly excluded evidence, the trial court failed to provide the plaintiff with a full and complete hearing on its motion for deficiency judgment and that equity requires reversal for a full and complete hearing. We disagree. Because we find that the trial court did not abuse its discretion, the plaintiffs claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to the named defendant, Stanley M. Hunts, several subsequent encumbrancers were named as defendants. We refer in this opinion to Hunts as the defendant.


text:
    NAEK CONSTRUCTION COMPANY, INC. v. WILCOX EXCAVATING CONSTRUCTION COMPANY, INC.
    (AC 17548)
    Landau, Sullivan and Kulawiz, Js.
    Argued December 9, 1998
    officially released March 23, 1999

      Lawrence G. Rosenthal, for the appellant (plaintiff).

      Charles W. Bauer, for the appellee (defendant).
   Opinion

LANDAU, J.

The plaintiff, Naek Construction Company, Inc., appeals from the judgment of the trial court denying the plaintiffs motion to vacate an arbitration award rendered in favor of the defendant, Wilcox Excavating Construction Company, Inc., and granting the cross application to confirm the award. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiff, as general contractor, entered into a contract (prime contract) with the state of Connecticut to construct barracks for Troop C of the state police in Tolland (project). The plaintiff subsequently entered into a subcontract with the defendant, who was to perform the site excavation for the project. Thereafter, disputes arose between the parties and the subcontract was terminated. Consequently, the defendant commenced an arbitration proceeding pursuant to the arbitration clause of the subcontract. The plaintiff filed a counterclaim. On June 5, 1996, the arbitrator awarded $96,837.80 to the defendant and $67,152 to the plaintiff on its counterclaim. The plaintiff filed an application to vacate the award, pursuant to General Statutes § 52-420, and the defendant filed a cross application to confirm the award. The trial court denied the application to vacate the award and granted the defendant’s cross application to confirm the award. This appeal followed.

On appeal, the plaintiff claims that the trial court improperly confirmed the award because the form of the award does not conform with the arbitration clause in the subcontract, which by reference incorporates the arbitration provision of the prime contract. The trial court, however, in ruling that the award conformed with the submission, determined that the original or a copy of the executed prime contract was not in evidence before the arbitrator and that the plaintiff failed to prove that the award did not comply with General Statutes § 4-61 (d) and (e). We agree.

“The [appellate] court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law. . . .” Practice Book § 60-5. “The scope of review by the court of an arbitrator’s power to make an award is limited. Arbitration is a creature of contract between the parties and its autonomy requires a minimum of judicial intrusion. . . . The parties themselves, by the agreement of the submission, define the powers of the arbitrator. . . . The submission constitutes the charter of the entire arbitration proceedings and defines and limits the issues to be decided. . . . When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits. . . . An application to vacate or correct an award should be granted when an arbitrator has exceeded his power. In deciding whether an arbitrator has exceeded his power, we need only examine the submission and the award to determine whether the award conforms to the submission. (Citations omitted.) Bic Pen Corp. v. Local No. 134, 183 Conn. 579, 583-84, 440 A.2d 774 (1981).” (Internal quotation marks omitted.) Hartford v. International Assn. of Firefighters, Local 760, 49 Conn. App. 805, 811-12, 717 A.2d 258, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998).

“In determining whether a submission is unrestricted, we look at the authority of the arbitrator. The authority of the arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of such qualifications, an agreement is unrestricted. . . . Perkins & Mario, P. C. v. Annunziata, 45 Conn. App. 237, 239-40, 694 A.2d 1388 (1997).” (Internal quotation marks omitted.) Hartford v. International Assn. of Firefighters, Local 760, supra, 49 Conn. App. 812.

The following additional facts and procedural histoiy are necessary for our resolution of this appeal. During the arbitration proceedings, the parties submitted joint exhibits to the arbitrator. Although one of the exhibits purported to be a copy of the prime contract, it was incomplete and not signed. After the arbitrator issued his award, the plaintiff asked that the arbitrator conform his award to § 4-61 (e). The arbitrator denied the request. The plaintiff then moved to vacate the award claiming that (1) the award did not conform to the contract requirement to follow § 4-61 (e), (2) the arbitrator was guilty of misconduct in accepting evidence after the close of the proceedings and (3) the arbitrator imperfectly executed his powers in not providing a mutual, final and definite award. At oral argument, the plaintiff claimed that because the arbitrator failed to issue an award that conforms with § 4-61 (e), it cannot pursue its claims against the state.

The trial court heard oral argument on the parties’ motions on several days. On December 30, 1996, with the consent of the parties and with their agreement as to the language of the request, the trial court asked the arbitrator for an articulation of his award. The arbitrator responded to the trial court on March 14, 1997. The articulation consisted of several attachments or tabs; tab B sets forth how the defendant’s award was computed and tab C sets forth how the plaintiffs award was computed. The plaintiff renewed its application to vacate the award, claiming that the articulation articulated only the damages without any conclusions of law or findings of fact as required by § 4-61 (e). The defendant renewed its objection to the application to vacate.

The trial court determined that the submission to the arbitrator was the subcontract between the parties and that article I of the subcontract provides that “the subcontract documents consist of . . . (2) the Prime Contract, consisting of the Agreement between the [state and the plaintiff] . . . .” Article 6.1 of the subcontract provides that arbitration “shall be conducted in the same manner and under the same procedure as provided in the Prime Contract with respect to claims between the [state and the plaintiff] .... If the Prime Contract does not provide for arbitration or fails to specify the manner and procedure for arbitration, it shall be conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. . . .’’The trial court found that the prime contract between the state and the plaintiff was never in evidence before the arbitrator. In response to the plaintiffs claim that the prime contract was incorporated by reference, the trial court reasoned that, assuming the plaintiffs argument is correct, the original or a copy of the executed prime contract should have been submitted to the arbitrator to ensure its accuracy and to advise the arbitrator of its provisions. Without the provisions of the prime contract before him, the arbitrator properly concluded that the submission was made pursuant to the construction industry arbitration rules of the American Arbitration Association. The trial court, therefore, concluded that the submission to the arbitrator was unrestricted and that the award conformed with the submission. We agree with the trial court’s reasoning.

As we have stated, the parties determine the scope of the arbitration submission by the terms of their agreement. See Hartford v. International Assn. of Firefighters, Local 760, supra, 49 Conn. App. 811-12. Section 6.1 of the subcontract provided for arbitration of the parties’ differences. Assuming, without deciding whether the prime contract was incorporated by reference in the subcontract, we conclude that it was incumbent upon the plaintiff to put the prime contract in evidence before the arbitrator. The incomplete, unexecuted copy of the prime contract included in the joint exhibits submitted to the arbitrator is not evidence of the terms of the prime contract. See Suffield Development Associates Ltd. Partnership v. Society for Savings, 243 Conn. 832, 843, 708 A.2d 1361 (1998); Smallmill Brook Racing Assn., Inc. v. Boston Realty Advisors, Inc., 39 Conn. App. 444, 453, 664 A.2d 819 (1995). Without evidence of the terms of the prime contract, the arbitrator could conclude only that the submission was to conform to the construction industry arbitration rules and that the arbitration was, therefore, unrestricted.

Because the submission was unrestricted, the trial court properly confirmed the arbitration award, and we need not consider the issues subsumed in the plaintiffs main claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Some of the disputes allegedly arose due to changes requested by the state.

       The award also included the following language: “In accordance with the request of the parties, included in the [defendant’s] award are the following: Tomlco Electric Company’s claim $6625, MPH’s claim $1325.”

       The plaintiff framed the issue as follows: “Did the trial court err in not finding that the arbitrator failed to perform his duties in failing to issue findings of fact pursuant to General Statutes § 4-61?” The following issues are subsumed in the plaintiffs primary claim: (1) the contract specified that the provisions of any submittal to arbitration would be pursuant to the same rules and procedures as set forth in § 4-61; (2) the rendition of the arbitration award was restricted to the terms of § 4-61 and thus findings of fact were mandated by these procedures; and (3) the arbitrator did not perform his duties as specified and in violation of General Statutes § 52-414.

         Section 6.1 of the subcontract provides: “Any controversy or claim between the Contractor and Subcontractor arising out of or related to this Subcontract, or the breach thereof, shall be settled by arbitration, which shall be conducted in the same manner and under the same procedure as provided in the Prime Contract with respect to claims between the Owner and the Contractor, except that a decision by the Architect shall not be a condition precedent to arbitration. If the Prime Contract does not provide for arbitration or fails to specify the manner and procedure for arbitration, it shall be conducted in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise.”

       The plaintiff claims that the prime contract provides that, pursuant to state mandate, arbitration proceedings are to be controlled by subsections (d) and (e) of General Statutes § 4-61, which is entitled “Actions against the state on highway and public works contracts. Arbitration.” The plaintiff claims that the arbitrator’s factual determinations are necessary in order for it to present its claims against the state.

       General Statutes § 4-61 provides in relevant part: “(d) Hearings shall be scheduled for arbitration in a manner that shall ensure that each party shall have reasonable time and opportunity to prepare and present its case, taking into consideration the size and complexity of the claims presented. . . .

        “(e) The arbitrators shall conduct the hearing and shall hear evidence as to the facts, and arguments as to the interpretation and application of contractual provisions. After the hearing, the arbitrators shall issue in writing: (1) Findings of fact, (2) a decision in which the arbitrators interpret the contract and apply it to the facts found and (3) an award. ...”

       These issues are subsumed in the plaintiffs appeal to this court.

       The trial court also determined that to confirm the award it need not address the plaintiffs additional claims, but it did address them in its memorandum of decision. Even if we were to assume that § 4-61 applies to the proceedings, the trial court found in its memorandum of decision that the award was in compliance with the statute: “There is no question that a written award was made on June 5, 1996. Findings of fact were clearly set out in the award and in the arbitrator’s articulation dated March 14, 1997, in which he broke down the amounts awarded and described them. The descriptions in tabs B and C, i.e., ‘surveyor’s mistakes, additional cost for protection due to project hold-up, cost to correct work not acceptable, cost to complete the Mizzy contract less Wilcox remaining,’ clearly show to those in the construction industry the basis of the awards as they are applicable to the terms of the contract.” (Emphasis added.)
      The trial court also found that the plaintiff did not sustain its burden of proof that the arbitrator accepted and used evidence from the defendant submitted after the close of evidence. The defendant claimed that what the plaintiff terms “new evidence” was merely a summary or comparison of evidence before the arbitrator. The trial court found that the defendant filed the “new evidence” with its posttrial brief. The plaintiff filed a lengthy objection to the “new evidence” dated March 16,1996. Although the arbitrator advised the parties that he was keeping the hearings open beyond the submission of briefs until April 30, 1996, the plaintiff never requested a hearing. The trial court found that the arbitrator clearly considered the objection by granting objections as to appendices four, seven and nine, and had them removed from his copy of the defendant’s brief. The trial court then concluded that the plaintiff had not sustained its burden that it had been denied a full and fair hearing pursuant to General Statutes § 52-418 (a) (3).


author: O’CONNELL, C. J.

text:
    SOUTH END PLAZA ASSOCIATION, INC. v. JOHN C. COTE, SR., ET AL.
    (AC 18148)
    O’Connell, C. J., and Lavery and Spear, Js.
    Argued November 2, 1998
    officially released March 23, 1999

      Thomas J. Morrissey, pro hac vice, with whom were James N. Tallberg and, on the brief, R. Alisha Verdone and Jennifer A. Osowiecki, for the appellant (defendant Premier Capital, Inc.).

      Darcy Kochiss Ellis, with whom, on the brief, were Tamis Reid and Robert A. Maniscalco, for the appellee (defendant Wilshire Credit Corporation).
   Opinion

O’CONNELL, C. J.

Premier Capital, Inc. (Premier), a defendant in this foreclosure action, appeals from the judgment of the trial court on a motion for determination of priorities and supplemental judgment. The trial court ruled in favor of Wilshire Credit Corporation (Wil-shire), another defendant in the foreclosure action, and found that Wilshire had priority over Premier to the proceeds of the foreclosure sale. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In July, 1987, John C. Cote, Sr., the owner of the equity of redemption and a defendant in the foreclosure action, acquired units 59 and 60 of the South End Plaza common interest community by means of a single warranty deed. To finance the purchase, Cote executed two promissory notes to Brookfield Bank, each in the original principal amount of $112,000. Both notes originated as preprinted forms and both contained a section entitled “Security Interests and Other Rights.” Under this section, the forms had the words, “I am giving you a mortgage on real estate of mine located at (give street address),” followed by a blank line. On one note, Cote filled in the blank with typewritten words, so that the sentence read, “I am giving you a mortgage on real estate of mine located at Unit #59, South End Plaza, New Milford, Conn.” The other note read, “I am giving you a mortgage on real estate of mine located at Unit #60, South End Plaza, New Milford, Conn.”

The notes were secured by two mortgage deeds, one for unit 59 and the other for unit 60. Each mortgage stated that the mortgagor was indebted to the mortgagee pursuant to the terms of a commercial promissory note that was attached as schedule D. The schedule D that was recorded following the unit 59 mortgage consists of a copy of the note on which is typewritten, “I am giving you a mortgage on . . . Unit #60.” The schedule D attached to the mortgage deed to unit 60 was a copy of the note that read, “I am giving you a mortgage on . . . Unit #59.”

Brookfield Bank retained ownership of the loan documents until its closure in 1992. The original notes and mortgages subsequently came into the possession of the Federal Deposit Insurance Corporation (FDIC) as receiver of Brookfield Bank. The FDIC foreclosed its mortgage on unit 59 in July, 1994. In December, 1995, the FDIC endorsed to Premier the unit 59 promissory note with the intention that Premier would have the right to collect any deficiency that remained under the unit 59 note. In January, 1996, the FDIC endorsed to Wilshire the note containing the statement that Cote was giving a mortgage on unit 60. In April, 1997, South End Plaza Association, Inc. (South End), the plaintiff, initiated the foreclosure action underlying this appeal. South End sought to foreclose its lien on unit 60 for the nonpayment of condominium fees. Both Wilshire and Premier were named as defendants in the action, each alleging an interest in unit 60.

Following a judgment of foreclosure by sale and the subsequent sale of unit 60, the trial court held a separate hearing to determine whether Premier or Wilshire owned the mortgage to unit 60 and was entitled to the proceeds of the sale in excess of the amount due South End. The trial court found that Wilshire’s note was secured by the mortgage on unit 60 and, therefore, it had priority to the sale proceeds. Premier appeals from that ruling.

Premier argues that its note referencing unit 59 was secured by a mortgage on unit 60 because its note was recorded as schedule D of the unit 60 mortgage. We are not persuaded.

It is axiomatic that the meaning and intent of language in both a contract and a deed are determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in light of the surrounding circumstances. Grigerik v. Sharpe, 45 Conn. App. 775, 786-87, 699 A.2d 189 (1997), rev’d on other grounds, 247 Conn. 293, 721 A.2d 526 (1998); Castonguay v. Plourde, 46 Conn. App. 251, 258, 699 A.2d 226, cert. denied, 243 Conn. 931, 701 A.2d 660 (1997). Furthermore, “[i]n giving meaning to the language of a contract, we presume that the parties did not intend to create an absurd result.” New England Savings Bank v. FTN Properties Ltd. Partnership, 32 Conn. App. 143, 145, 628 A.2d 30 (1993).

Here, Premier’s promissory note for unit 59 clearly states that it is secured by a mortgage on unit 59. Likewise, Wilshire’s note for unit 60 expressly states that it is secured by a mortgage on unit 60. Both documents were signed and properly executed. Moreover, the mortgage deeds were presented for recording at the same time and were recorded on successive pages of the land records. These facts support the interpretation that Wilshire’s note was secured by a mortgage on unit 60 and that the schedule D pages of the mortgage deeds were transposed accidentally.

Furthermore, the assignment of the debt to Premier and Wilshire did not alter the parties’ original intent. “[T]he assignment of the note evidencing the debt automatically carries with it the assignment of the mortgage.” New Milford Savings Bank v. Jajer, 244 Conn. 251, 266, 708 A.2d 1378 (1998). This principle holds true even when the mortgage is in the hands of another. General Statutes § 49-10; Pettus v. Gault, 81 Conn. 415, 422, 71 A. 509 (1908). Thus, Premier’s mere possession of the mortgage deed to unit 60 is not dispositive of its ownership. Furthermore, Premier’s interpretation of intent would lead to the absurd result that a note that states it is secured by one mortgage is actually intended to be secured by another mortgage. We therefore conclude that Wilshire’s note is secured by the unit 60 mortgage.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court also declined Premier’s request for reformation of the promissory note or an equitable apportionment of the sale proceeds. At oral argument on its appeal, Premier abandoned its equitable claims.