author: DUPONT, C. J.

text:
    SHAWMUT BANK v. BROOKS DEVELOPMENT CORPORATION ET AL. WESTFAIR, INC. v. TORREY D. BROOKS ET AL.
    (AC 16119)
    (AC 16121)
    Dupont, C. J., and Spear and Freedman, Js.
    Argued June 9
    officially released August 26, 1997

      Geoffrey A. Hecht, with whom, on the brief, was Milton I. Copian, for the appellants (defendant West-fair, Inc., et al. in the first case, plaintiff in the second case).

      David C. Pite, for the appellants (defendant Torrey D. Brooks et al.).

      Howard C. Kaplan, with whom was Randall M. Ski-gen, for the appellee (plaintiff in the first case, defendant Shawmut Bank in the second case).
   Opinion

DUPONT, C. J.

These appeals concern two separate cases that were consolidated for trial. One action was brought by Westfair, Inc., against Torrey D. Brooks, his wife Lauren F. Brooks, Connecticut National Bank (now Fleet Bank), Westport Bank and Trust Company, and Westbrook, Inc., to foreclose on a mortgage encumbering certain real estate. The other action was brought by Shawmut Bank (now Fleet Bank) against Brooks Development Corporation (Development), Torrey D. Brooks (Torrey), Lauren F. Brooks (Lauren), Brooks, Torrey and Scott, Inc. (BTS), and Westfair, Inc. (West-fair), to collect on a promissory note, which was unsecured, and to set aside as fraudulent two mortgage conveyances, one of which was the conveyance at issue in the foreclosure action.

The trial court, Grogins, J., rendered judgments in favor of Shawmut Bank, formerly Connecticut National Bank (CNB), in accordance with a report of the attorney trial referee before whom these matters were tried. The court rendered identical judgments in both actions, setting aside the mortgages of Lauren and Torrey to Westbrook and to BTS as fraudulent and ordering that payment to CNB be made from money held in escrow from the sale of real estate of Lauren and Torrey. The escrow funds were the subject of a prior order of the trial court, Leheny, J., dated August 4, 1993, in the action filed by Westfair. Westfair, as the plaintiff in the foreclosure action and the defendant in the fraudulent conveyance action and Lauren, Torrey and BTS, the defendants in the fraudulent conveyance action, appeal from the judgments. We affirm both judgments.

The appellants claim that the trial court improperly determined that the mortgage conveyances were fraudulent. In addition, Torrey and Lauren claim that any interest CNB had in the real property of Torrey and Lauren by virtue of an attachment dated September 18, 1990, and recorded September 25, 1990, which secured the debt on the promissory note, was discharged in bankruptcy.

Development was a real estate development company established by Torrey and Lauren. In 1986, Development began construction of a condominium project in Nor-walk known as Tealbrook. To help finance the project, Development established a $500,000 line of credit with CNB. The loan was personally guaranteed by Torrey and Lauren in 1988. It is that loan that is the subject of one of the lawsuits.

By March, 1990, Development had drawn down the entire line of credit. On March 9, 1990, CNB agreed to renew the loan as an unsecured note due and payable on May 31, 1990. That note was intended to be a short term extension of the loan to permit review of the loan for another renewal. CNB agreed to an unsecured note in recognition of a long-standing business relationship with Torrey’s father, Dexter Brooks, and in reliance on a financial statement submitted by Torrey and Lauren.

The financial statement listed, as principal assets, Torrey and Lauren’s residence in Stamford and their stock in closely held family corporations. The residence was listed as having a value of $875,000, encumbered only by a first mortgage of $295,695. Torrey and Lauren had committed themselves to provide a mortgage on their home to Westfair on March 8, 1990, one day prior to the agreement of CNB to renew the loan. Later, on April 16, 1990, they committed themselves to provide a mortgage to BTS. The mortgage commitments were provided as security for antecedent loans made to Development by Westfair and BTS in 1990, when the Tealbrook project began to fail. The proceeds of the loans were used to pay debts of Development, including interest on the CNB loan. In addition to the omissions relating to the mortgage commitments, the financial statement of Torrey and Lauren omitted debts owed to various creditors, and it omitted debts of Development that were personally guaranteed by Torrey and Lauren. There were also inaccuracies with respect to the valuation of stock owned by Torrey and Lauren in the family corporations of Development, BTS, Westfair and West-brook.

Ultimately, Torrey and Lauren defaulted on payment of the note. Thereafter, CNB entered into negotiations with BTS and Dexter Brooks, acting on behalf of that entity, for renewal and modification of the loan. When those negotiations failed, CNB made a demand for payment of the note on August 2 and again on August 17, 1990.

On August 21, 1990, Torrey, as vice president of Development, sent a letter to Dexter Brooks, as president of Westfair, in which he and Lauren offered to mortgage their home as security for the loans made to Development by Westfair. On the same date, Torrey sent a similar offer to Dexter Brooks, as president of BTS, for the loans made to Development by that corporation. Thereafter, on September 12, 1990, Torrey and Lauren executed a mortgage deed for $190,000 to BTS and a mortgage deed for $140,000 to Westfair of the real estate on which their family home was located. The mortgages were recorded on September 17, 1990.

Pursuant to General Statutes §§ 52-278a through 52-278f, CNB sought and obtained an ex parte prejudgment real estate attachment as allowed in commercial transactions in which defendants have waived their rights to a notice and a hearing on whether probable cause exists to sustain the validity of an attachment on real estate. See General Statutes § 52-278L The defendants do not claim that any statute was violated in the obtaining of the prejudgment remedy, which is dated March 12, 1991, as ordered by the court, Mottolese, J. On August 4,1993, Torrey and Lauren moved to sell the subject real estate “free and clear of all encumbrances,” and their motion was granted on August 16, 1993. In February, 1994, Torrey and Lauren filed a voluntary petition in bankruptcy, and obtained a discharge in bankruptcy on May 16, 1994. These cases, which had been stayed while the voluntary bankruptcy proceedings were pending, were then tried to completion and judgments were rendered on June 14, 1996.

Westfair and BTS are corporations owned by members of the Brooks family. As of 1990, Torrey owned 24 percent of the stock in BTS and 23.33 percent of the stock in Westfair. At all times prior to September, 1990, Torrey was an officer and director of both corporations. Torrey was a salaried employee of BTS, earning approximately $80,000 per year. Dexter Brooks owned 30 percent of the stock in Westfair and 28 percent of the stock in BTS. In 1990, Dexter Brooks was the president and chief executive officer of both corporations. Torrey’s brother, Scott Brooks, and his sister, Wendy Brooks, each owned approximately 24 percent of Westfair and BTS. Torrey, Lauren and Dexter Brooks together owned all of the stock of Development. These family corporations operated out of offices at 136 Main Street in West-port, in a building owned by Dexter Brooks.

In January, 1991, Westfair brought its action to foreclose the mortgage it held on the Stamford residence of Torrey and Lauren. Shortly thereafter, CNB brought its action against Torrey and Lamen and the family corporations to collect on the promissory note Torrey and Lauren had given it, and to set aside their conveyances to Westfair and BTS as fraudulent, in connection with which it had sought and obtained the prejudgment remedy of a real estate attachment, recorded in September, 1990. After Westfair decided to institute its foreclosure action, it made two additional loans to Torrey and Lauren. Torrey and Lauren lived in the Stamford residence until the house was sold in 1993.

I

THE FRAUDULENT CONVEYANCES

Westfair, as plaintiff in the foreclosure action, and Torrey and Lauren, as defendants in the fraudulent conveyance action, claim that the conclusion of the attorney trial referee and the trial court that Torrey and Lauren fraudulently granted the subject mortgages, and that Westfair and BTS participated in the fraud, is not supported by the facts in this case.

“In addressing a challenge to the facts found by the trial referee and adopted by the trial court, this court’s function is to determine whether those findings were clearly erroneous.” (Internal quotation marks omitted.) Stamford v. Kovac, 36 Conn. App. 270, 274, 650 A.2d 626 (1994); Practice Book § 4061. “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 41, 632 A.2d 1134 (1993).

Against this background, we now discuss the trial court’s conclusion that there was a fraudulent conveyance. “ ‘The party seeking to set aside a conveyance as fraudulent bears the burden of proving either: (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligations; or (2) that the conveyance was made with a fraudulent intent in which the grantee participated. Bizzoco v. Chinitz, 193 Conn. 304, 312, 476 A.2d 572 (1984); Zapolsky v. Sacks, 191 Conn. 194, 200, 464 A.2d 30 (1983). The party seeking to set aside the conveyance need not satisfy both alternatives. Bizzoco v. Chinitz, [supra, 312].’ ” Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 115-16, 680 A.2d 1314 (1996), quoting Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990). In this case, the trial referee found that the conveyances were made with fraudulent intent in which the transferees participated, and it therefore found the existence of actual fraud. See Tessitore v. Tessitore, 31 Conn. App. 40, 42, 623 A.2d 496 (1993); see also Crepeau v. Gro-nager, 41 Conn. App. 302, 309, 675 A.2d 1361 (1996). It is that conclusion that the appellants contest.

“The determination of the question of fraudulent intent is clearly an issue of fact which must often be inferred from surrounding circumstances. . . . Such a fact is, then, not ordinarily proven by direct evidence, but rather, by inference from other facts proven—the indicia or badges of fraud.” (Internal quotation marks omitted.) Cook v. Bieluch, 32 Conn. App. 537, 551-52, 629 A.2d 1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993).

The Uniform Fraudulent Transfer Act, General Statutes § 52-552 et seq., sets forth factors that a court may consider in determining actual intent. Although Connecticut had not yet adopted the uniform act at the time of the transfers herein, the court in Molitor v. Molitor, 184 Conn. 530, 440 A.2d 215 (1981), observed the strong similarities between the act and the Connecticut law of fraudulent conveyances. The court stated that the act, like the law in Connecticut, is “largely an adoption and clarification of the standards of the common law.” Id., 535.

The trial referee’s ultimate finding of fraudulent conveyances demonstrates that he relied on factors such as those enumerated in the act in determining actual intent, namely, whether: “(1) The transfer or obligation was to an insider, (2) the debtor retained possession or control of the property transferred after the transfer, (3) the transfer or obligation was disclosed or concealed, (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit, (5) the transfer was of substantially all the debtor’s assets ... (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred . . . .” General Statutes § 52-552e (b). Prior to adoption of the act, it had been determined that inferences of fraud can arise from circumstances such as the relationship between the debtor and the transferee, the failing circumstances of the debtor at the time of the conveyances, and the fact that the debtor retained possession of the property after the transfer. Heise Industries, Inc. v. Lerman Container Corp., 18 Conn. App. 265, 269, 557 A.2d 564 (1989).

The attorney trial referee found that Torrey and Lauren committed actual fraud because they executed the mortgage deeds when they knew that CNB was actively seeking repayment of their March 1990 note, they concealed their intent to provide a mortgage to Westfair, which had been evidenced on March 8, 1990, one day before they signed the CNB note, they continued to live in the mortgaged property for over two years after Westfair instituted foreclosure proceedings, they represented to CNB that their residence would be mortgage free other than the first mortgage, they placed the mortgages on their property after CNB notified them of their intent to institute suit on the note, the mortgage conveyances constituted a transfer of all of their assets, and they were insolvent at the time the mortgages were made. The trial referee found that there was a close business relationship between Torrey and Lauren and the family corporations, Westfair and BTS, and that Dexter Brooks knew that the Tealbrook project was failing and that CNB was interested in protecting its investment loan. From those facts found, the referee then found that the mortgages were transfers to an insider and that Westfair and BTS participated in the fraud. The record in the present case supports those findings of fact, from which the fact of fraudulent conveyances can be reasonably inferred. See Zaplosky v. Sacks, 191 Conn. 194, 201, 464 A.2d 30 (1983) (“factual finding based on inferences reasonably drawn from the evidence will stand”); Cook v. Bieluch, supra, 32 Conn. App. 552. Accordingly, we are unable to conclude that the attorney trial referee’s decision that the mortgage conveyances were fraudulent is clearly erroneous.

Lauren, who did not testify at the trial, contends that there is insufficient evidence from which the trial referee could conclude that she intended to commit fraud. We disagree. The trial referee’s finding of fraudulent intent as to Lauren is supported by the record. He found that she was a party to all of the relevant transactions herein and maintained a familial relationship with Torrey and Dexter Brooks. The trial referee concluded that she concealed the mortgage commitment, that she continued in possession of the mortgaged property, and that she was under pressure from creditors at the time of the transfers. “This court cannot retiy the facts or pass upon the credibility of the witnesses.” (Internal quotation marks omitted.) Rosick v. Equipment Maintenance Service, Inc., supra, 33 Conn. App. 41.

We conclude that the trial court correctly adopted the referee’s finding that there was clear and convincing evidence that both of the mortgage conveyances were made with the fraudulent intents of Torrey and Lauren and that the grantees participated in both.

II

THE EFFECT OF BANKRUPTCY ON THE JUDGMENTS

The attorney trial referee found that the prejudgment attachment was in effect when the voluntary bankruptcy proceedings began and concluded that CNB could pursue its fraudulent conveyance action because the attachment was a secured obligation that survived the bankruptcy. The trial court agreed. Torrey and Lauren claim that a prejudgment attachment secures a future judgment on a debt, which judgment cannot be realized once the underlying debt is discharged in bankruptcy. CNB contends, however, that a recorded prejudgment attachment constitutes a judicial lien that survives a discharge in bankruptcy of the underlying indebtedness. According to CNB, the bankruptcy had no effect on the power of the trial court to render judgment. In effect, CNB contends that once the sale of the attached real estate occurred, their action became an in rem action against the escrowed funds.

In Connecticut, a prejudgment attachment is a provisional remedy afforded to a claimant to secure satisfaction of a judgment in the future. See Connecticut National Bank v. Voog, 233 Conn. 352, 658 A.2d 172 (1995). The right to a prejudgment attachment in Connecticut is statutory. General Statutes § 52-285; Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 766, 628 A.2d 1303 (1993). The requirements for an attachment of real property include recordation of the certificate of attachment on the land records. General Statutes § 52-285. Upon recordation, a claimant obtains an inchoate lien until the time of the judgment. State v. Bucchieri, 176 Conn. 339, 348, 407 A.2d 990 (1978).

A majority of cases has held that the Bankruptcy Code and its legislative history plainly establish that “valid liens that have not been disallowed or avoided survive the bankruptcy discharge of the underlying debt.” Estate of Lellock v. Prudential Ins. Co. of America, 811 F.2d 186, 189 (3d Cir. 1987), citing In re Landmark, 48 B.R. 626 (Bankr. D. Minn. 1985); In re Atoka Agricultural Systems, Inc., 39 B.R. 474, 477 (Bankr. E.D. Va. 1984); United Presidential Life Ins. Co. v. Barker, 31 B.R. 145, 147 (Bankr. N.D. Tex. 1983); In re Weathers, 15 B.R. 945, 950 (Bankr. D. Kan. 1981). “ ‘A long line of cases . . . allows a creditor with a loan secured by a hen on assets of the debtor who becomes bankrupt before the loan is repaid to ignore the bankruptcy proceeding and look to the hen for the satisfaction of the debt.’ ” In re Harris, 64 B.R. 717, 720 (Bankr. D. Conn. 1986), quoting In the Matter of Tamow, 749 F.2d 464, 465 (7th Cir. 1984). A valid judicial hen is not affected by a discharge in bankruptcy. “[T]he discharge in bankruptcy does not extinguish the underlying debt. It only prevents [the] debtor from being personally liable for the discharged debt and forecloses collection of any deficiency judgment, thereby limiting the claimant to enforce its collection efforts in in rem actions against property subject to a valid, prebankruptcy lien guaranteeing payment of the debt.” In the Matter of Moscoso Villaronga, 111 B.R. 13, 18 (Bankr. D. Puerto Rico 1989). That court found that the Bankruptcy Code “ ‘does not bar1 the creditor from enforcing a valid, prebankruptcy hen or security interest against property that has been retained by the debtor or the estate after discharge. . . . Actions to collect against the debtor personally are enjoined. The creditor’s action in enforcing a lien is against the property in rem and with no recourse against the debtor.’ ” Id., quoting 1 W. Norton, Bankruptcy Law and Practice §§ 27.02, 27.04.

The issue in this case is not whether Torrey and Lauren’s entire debt to CNB was discharged in bankruptcy, or whether it was listed as secured or unsecured in the bankruptcy proceeding, but whether the fraudulent conveyance action and the cross complaint in the foreclosure action survived the discharge in bankruptcy. If they did, the attachment remained viable and available to secure a portion of the debt upon the rendition of judgments in the cases.

In this case, Torrey and Lauren, after the suits were brought against them and after the attachment of their real estate by CNB, moved the court to allow the sale of their residence. The court granted the motion on August 16, 1993, and ordered that all parties release their encumbrances and that after payment of the first mortgage and all outstanding taxes, and a 2.5 percent commission to a broker, the balance was to be held in escrow. The court specifically ordered that no brokerage fee could be paid to “Mr. Brooks” or the brokerage company he owns (Brody Real Estate). The house was sold on October 29, 1993, free and clear of all encumbrances, and the money placed in escrow, as ordered. The bankruptcy petition of Torrey and Lauren was not filed until February 1, 1994, at which time the attachment had already been released and the escrow account substituted for it. When the bankruptcy petition was filed, the real estate that had been attached by CNB no longer belonged to the debtors. Torrey and Lauren concede in their reply brief that they “had no real monetary interest in the outcome of the litigation [Westfair’s foreclosure action in Superior Court] or any personal claim to the escrowed funds remaining from the sale of their former residence.”

The only mention of anything filed in the bankruptcy court relating to the real estate attached by CNB was on the statement of financial affairs where the debtors noted that they had transferred their home to a buyer for the sales price of $717,500, and on the schedule of their personal property, where they listed a real estate broker’s commission as due them. As previously stated, the court order specifically prevented them (Brody Real Estate) from receiving such a real estate commission.

When the trial court rendered judgment on June 14, 1996, it ordered that CNB be paid from the escrow account. The judgment was not in the amount of the debt, which, as of January 30, 1994, was $642,409. The judgment, thus, did not involve the total debt, but the lesser net amount realized from the sale of the attached real estate, which was being held in escrow, in substitution for the attachment.

General Statutes § 52-304, entitled dissolution of attachment by substitution of bond or lien, provides: “When any estate is attached, or any debt or effects taken by process of foreign attachment, the defendant may apply in writing to the court in which such action may be pending, or any judge thereof, to dissolve the attachment lien upon the substitution of (a) a bond with surety or (b) a lien on any other property of the defendant which has an equal or greater net equity value than the amount secured by such attachment.” Cash realized from the sale of property attached and placed in an escrow account can be substituted for an attachment and is subject to the same claims as the attachment. Brainard v. Smyth Mfg. Co., 178 Conn. 250, 253, 423 A.2d 881 (1979).

A bond or an escrow account substituted for an attachment prior to a bankruptcy can survive the bankruptcy. The liability that gave rise to the need to secure the payment of the debt does not necessarily end with the discharge of the debtor in bankruptcy. See Pullman Metal Specialty Co. v. Lang, 101 Conn. 26, 32, 124 A. 824 (1924); J. E. Smith & Co. v. Guillet, 15 Conn. Sup. 388, 390 (1948). This view comports with the majority view that “if the lien attaches prior to the period within which the bankruptcy trastee can avoid it as a preference, it need not be perfected in order to survive a discharge in bankruptcy of the underlying indebtedness. See generally Liens by Garnishment, 4 Collier on Bankruptcy, § 67.10 (14th ed. 1978).” Transamerica Ins. Co. v. Trout, 145 Ariz. 355, 359, 701 P.2d 851 (1985).

Here the inchoate lien, the attachment, was obtained in 1990, and subsequently converted to an escrow fund in 1993, long before the petition in bankruptcy was filed. CNB had a valid Superior Court order keeping the escrow account in place until the resolution of the fraudulent conveyance and foreclosure actions. That order was rendered before the involuntary bankruptcy petition was filed. CNB could pursue its claim to the escrow account notwithstanding that it could no longer pursue a personal claim against Torrey and Lauren for the balance of the debt owed to it after crediting the escrow sum received. The balance of the debt was the only claim that was discharged in bankruptcy. The bankruptcy petition and the discharge in bankruptcy had no effect on the power of the court to render judgments in these cases, and to order the disbursement of the funds in the escrow account in accordance with those judgments.

The judgments are affirmed.

In this opinion the other judges concurred.

       In the foreclosure action, Connecticut National Bank, one of the defendants, cross complained against Lauren Brooks and Torrey Brooks, alleging that their conveyance to Westfair, Inc., was fraudulent. That is the same claim that is the subject of the second action.

       Shawmut Bank was substituted for CNB as party plaintiff on May 17, 1995, pursuant to a name change in January, 1993. We refer to CNB since it was the party in interest when the transactions relevant to this appeal occurred. By the time the appeals were taken, Fleet Bank was the real party in interest in both cases as the successor to both CNB and Shawmut.

       These mortgage commitments were evidenced by corporate resolutions.

       An involuntary petition in bankruptcy had been filed on November 7, 1991, by CNB against Lauren Brooks and Torrey Brooks, which was dismissed in May of 1993. The proceedings in both cases, which are the subject of this appeal, were therefore stayed until that dismissal.

       The house was sold pursuant t,o an August 16, 1993 court order that all parties release their encumbrances and that, after payment of the first mortgage and all outstanding taxes, the funds from the sale of the house would be placed in escrow until resolution of these cases. The house was sold on October 29, 1993.

       At the time of the conveyances at issue in this action, General Statutes (Rev. to 1989) § 52-552 was in effect. It stated: “All fraudulent conveyances, suits, judgments, executions or contracts, made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators or assigns, to whom such debt or duty belongs.” Section 52-552 was repealed by Public Acts 1991, No. 91-127, § 13, and General Statutes §§ 52-552a through 52-5521, the Uniform Fraudulent Transfer Act, was adopted.

       General Statutes § 52-552b (7) provides in relevant part: “ ‘Insider’ includes: (A) If the debtor is an individual, (i) a relative of the debtor or . . . (iv) a corporation of which the debtor is a director, officer or person in control . . . .” Torrey had been an officer of Westfair and BTS and, in 1990, held 23.33 percent of the stock in Westfair and 24 percent of the stock in BTS. No non-family member owned any stock in Westfair or BTS. It was all owned by Dexter Brooks and his children.

       The appellants argue that the facts support a finding that the mortgage conveyances were preferential, not fraudulent. That claim is unavailing because the facts supporting a fraudulent conveyance were within the province of the attorney trial referee to find because CNB’s cause of action was one claiming a fraudulent conveyance. Whether other evidence, if believed, in copjunction with a disbelief of yet other evidence, would support a conclusion of a preferential conveyance was not the issue to be resolved by these cases.

       Brody Real Estate is one of the Brooks’ family corporations.


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROBERT PULLEY
    (AC 14644)
    Dupont, C. J., and O’Connell and Landau, Js.
    Argued April 30
    officially released August 26, 1997

      Tovah Kasin, legal intern, with whom were Timothy H. Everett, ToddFemow and Jorge Jacobo, legal intern, and, on the brief, Brian Kombrath, for the appellant (defendant).

      Eileen McCarthy Geel, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roger Dobris, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of larceny in the second degree in violation of General Statutes § 53a-123 (a) (2). The defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal, (2) instructed the jury on larceny in the second degree, and (3) admitted testimony relating to the defendant’s arrest for breach of peace. In addition, the defendant claims that he is entitled to a new trial because he was prejudiced by a defective charging document. We affirm the judgment of the trial court.

The juiy reasonably could have found the following facts. The victim, who was sixty years old at the time of the trial, was a resident of the Elm City public housing project in New Haven, and a parishioner of the defendant’s Christian Outreach Church. Because she had been legally deaf from the time she was eleven years old, she received Social Security disability benefits and supplemental security income (SSI). She also received subsidized housing from the New Haven housing authority. The defendant, a Pentecostal minister, was the pastor of the Christian Outreach Church, which was located within walking distance of the victim’s home.

In the spring of 1992, the Social Security Administration challenged the victim’s eligibility for SSI benefits because she maintained two savings accounts. The victim asked the defendant for advice, and, thereafter, the defendant accompanied the victim to a meeting with SSI officials.

On May 1, 1992, the victim withdrew all her money from her two savings accounts, taking $5958.73 from one account, and $1451.03 from the second account. The victim held the money for a brief time, but was concerned about the security of that amount of cash in her home. She discussed her concerns with the defendant and he suggested that she deposit the money in the Christian Outreach account. Although the victim questioned why the money would not be in her name, the defendant assured her that she could have her money back at any time. The victim unequivocally maintains that the money was not a donation to the church.

On May 14, 1992, the defendant drove the victim to his bank’s drive up window where she handed approximately $7600 in cash to the defendant who deposited it in church accounts. The state contends that the crime of larceny in the second degree took place at that time.

At the time the deposit was made, the Christian Outreach Church was in bad financial condition. Foreclosure proceedings were pending against the church building and its checks had been returned for insufficient funds. In early 1993, the victim requested the return of her money on several occasions. She approached other ministers and the bishop of the Christian Outreach Church, but did not receive her money. On March 7,1993, when the victim demanded the return of the money from the defendant an altercation took place and the defendant was arrested for breach of the peace. After the altercation, the defendant promised to return the victim’s money the next day. He did not do so and explained to the victim that he “used some of it.” As of the date of trial, no repayment had been made.

I

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal because there was insufficient evidence to prove his intent to steal. The thrust of the defendant’s argument is that the facts showed an embezzlement, not a plain larceny and, therefore, the trial court improperly failed to instruct the jury on the elements of embezzlement. As a result, the defendant contends that the jury was allowed to consider the uncharged crime of embezzlement.

Under our penal code, embezzlement is not a separate and distinct crime from larceny. Our statutes are organized so that a general definition of larceny is contained in General Statutes § 53a-119. That statute then includes fifteen subdivisions each defining a common method by which larceny may be committed.

A significant distinction between traditional larceny and larceny by embezzlement applicable to the present case is the time when the intent existed to deprive the owner of the money, i.e., steal. If the wrongdoer intends to steal the property at the moment it comes into his possession, it is a traditional larceny. By contrast, if the wrongdoer receives the property honestly and at a later time forms the intent to steal it, a larceny by embezzlement has taken place. In the present case, the parties are not in agreement concerning the time at which the intent to steal existed. The defendant argues that it did not arise until he failed to return the money to' the victim. The state argues, to the contrary, that the defendant possessed the intent to steal the money at the moment he received it from the victim. This was a question of fact for resolution by the jury and the jury resolved it against the defendant.

A specific intent to deprive or to misappropriate is an essential element of larceny. State v. Fernandez, 198 Conn. 1, 20, 501 A.2d 1195 (1985). “ ‘Aperson’s intention in any regard is to be inferred from his conduct’ . . . and ordinarily can be proven only by circumstantial evidence.” State v. Vars, 154 Conn. 255, 263, 224 A.2d 744 (1966). The conduct of the defendant subsequent to May 11, 1992, may be taken into consideration by the jury in determining the defendant had the intent to steal when he received the money from the victim. State v. Croom, 166 Conn. 226, 230, 348 A.2d 556 (1974).

“[W]e have consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. Id. That the evidence is circumstantial rather than direct does not diminish the probative force of that evidence. State v. Carpenter, 214 Conn. 77, 79, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992).” (Internal quotation marks omitted.) State v. DePastino, 228 Conn. 552, 570, 638 A.2d 578 (1994).

Construing the evidence in the light most favorable to sustaining the verdict, we conclude that the financial condition of defendant’s church and his conduct after he received the victim’s money was sufficient for the jury reasonably to conclude that he possessed the intent to deprive the victim of her property when he received it. The cumulative force of the evidence allowed the jury to conclude that the defendant was guilty of larceny in the second degree. Id.

The defendant complains that the trial court did not instruct the jury on embezzlement. This claim has no merit. “It has long been recognized by both the United States Supreme Court and our Supreme Court . . . that the prosecutor has broad discretion in determining what crime or crimes to charge in any particular situation. . . . The discretionary power of the state to select an appropriate charge is, of course, limited in the usual and lawful manner by the facts the prosecutor may be reasonably expected to prove at trial.” (Citations omitted; internal quotation marks omitted.) State v. Menzies, 26 Conn. App. 674, 680-81, 603 A.2d 419, cert. denied, 221 Conn. 924, 608 A.2d 690 (1992).

In the case before us, the state was of the opinion that plain larceny and not embezzlement was the proper charge. “So long as [the prosecutor] acts within the jurisdiction of his office, it is not appropriate for a court to set policy for the performance of his prosecutorial function.” State v. Haskins, 188 Conn. 432, 474, 450 A.2d 828 (1982).

The state elected to charge the defendant with larceny in the second degree, and the court instructed the jury on the elements of that crime. The defendant cannot complain because the trial court did not instruct the jury on a crime with which he was not charged. The trial court’s charge on larceny in the second degree was correct in the law and the jury is presumed to follow the instruction. State v. Nelson, 17 Conn. App. 556, 558, 555 A.2d 426 (1989).

II

The defendant next argues that he is entitled to a new trial because the trial court, in its jury instruction, failed to relate the law to the facts. “Our Supreme Court has held that, in determining whether jury instructions that do not relate the facts of the case to the law are proper, the reviewing court must consider whether the issues in the case are complicated.” (Internal quotation marks omitted.) Bushy v. Forster, 43 Conn. App. 578, 584, 684 A.2d 739 (1996); State v. Lemoine, 233 Conn. 502, 511, 659 A.2d 1194 (1995). The issues in this case were not complicated. The jury need only determine, on the basis of sufficient evidence, whether the defendant (1) intended wrongfully to deprive the victim of an amount of money greater than $5000 when he received it and (2) did so deprive the victim of her property. Accordingly, we conclude that the jury was not misled by the trial court’s failure to relate the law to the facts of this case.

III

The defendant next claims that the trial court abused its discretion by improperly admitting evidence of the defendant’s arrest for breach of peace after a confrontation with the victim. The defendant, seeking to prevent presentment of evidence of the arrest, stipulated with the state that the facts presented would be that “[o]n March 7,1993 at the Christian Outreach Church services at the Holiday Inn at 30 Whalley Avenue in New Haven the defendant, Robert Pulley, and [the victim] had a confrontation.” Despite this stipulation, defense counsel, later in the trial, elicited detailed information about the confrontation. On cross-examination, the state inquired further into the confrontation. The state, outside the presence of the jury, argued that the defendant’s solicitation of the details of the confrontation opened the door to further questions and nullified the stipulation. The trial court agreed and overruled the defendant’s objection.

“Generally, a party who delves into a particular- subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have ‘opened the door’ to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence. . . . [T]his rule operates to prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context.” (Citations omitted; internal quotation marks omitted.) State v. Paulino, 223 Conn. 461, 467, 613 A.2d 720 (1992).

The defendant has not persuaded us that the trial court abused its discretion by allowing the jury to hear the complete story after the defendant had elicited its discussion. The defendant’s questions relating to the confrontation went beyond the stipulation and characterized the victim as the aggressor, and left the jury to believe the defendant merely reacted to the victim. The state logically wanted to show that both parties engaged in the altercation and, indeed, the defendant was actually arrested for breach of peace. The trial court acted within its discretion to allow the jury to hear the complete story.

The defendant’s argument that the evidence was not probative is unavailing because he has not offered any reason why the testimony he elicited on direct examination was probative. The defendant attempted to portray the victim as a violent and unstable individual, and the trial court properly allowed the state to balance the picture presented to the jury.

IV

Finally, the defendant claims that he is entitled to a new trial because he was substantially prejudiced by a defective charging document. He now claims that the long form information, dated November 28, 1994, was fatally defective because it was replete with disjunctive terminology.

“The accused in a criminal proceeding has the right to be informed of the nature and cause of the accusation[s] . . . against him. U.S. Const., amend. VI; Conn. Const., art. I, § 8.” State v. Frazier, 194 Conn. 233, 236, 478 A.2d 1013 (1984). “When the state’s pleadings have informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty.” (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 381-82, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).

It is sufficient for the state to set forth a statutory designation of the crime charged leaving “ ‘the defendant the burden of moving for a bill of particulars where [he] wishes greater detail regarding the manner in which [the crime alleged was committed].’ ” State v. Rogers, 38 Conn. App. 777, 789, 664 A.2d 291, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995), cert. denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996). In the present case, the defendant did not file a motion for a bill of particulars, from which we infer that he was satisfied with the information as filed by the state.

The defendant also complains that the information was defective because it was replete with disjunctive terminology. When an information charges two or more separate offenses in the alternative, it is fatally defective because of its failure to inform the defendant of the specific charge against him. State v. Cofone, 164 Conn. 162, 167, 319 A.2d 381 (1972). Here, the defendant argues that he could not properly prepare for trial because he did not know with which of several crimes he was charged. If the defendant was charged with committing crime X or crime Y, he understandably could be in a quandary. See State v. Edwards, 201 Conn. 125, 131, 513 A.2d 669 (1986). That is not the situation here, however. In the present case, the disjunctive is used only in reference to alternative ways of committing the same crime. It is permissible to charge a defendant, or to instruct a jury, in the disjunctive if reference is not being made to separate offenses but if, as here, reference is being made only to alternate ways of committing the same crime. State v. Hufford, 205 Conn. 386, 397, 533 A.2d 866 (1987).

Furthermore, under circumstances similar to the present case, our Supreme Court has held that the words “taking,” “obtaining” and “withholding” are inseparable. State v. John, 210 Conn. 652, 689, 557 A.2d 93, cert3. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Pelletier, 209 Conn. 564, 576, 552 A.2d 805 (1989).

“It is the defendant’s burden on appeal to demonstrate that ‘he was in fact prejudiced in his defense on the merits’ as a result of a material variance between the allegations in [the information] and proof at trial, and that ‘substantial injustice was done to him because of the language of the state’s pleadings.’ ” State v. Steve, 208 Conn. 38, 45, 544 A.2d 1179 (1988). The defendant has not persuaded us that he was prejudiced to the extent that he was deprived of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the amount that the victim gave the defendant was in conflict. The victim testified on direct that she gave him $10,600, but on cross-examination, testified that she gave the defendant $8600. In any event, the defendant’s bank records indicate that $7600 was deposited in his account on May 14, 1996. Because that amount exceeds the threshold for conviction of larceny in the second degree, we need not resolve the question of the amount that the victim gave the defendant.

       The breach of the peace charge was subsequently nolled.

       General Statutes § 53a-119 provides in relevant part: “Larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       Larceny, as defined in General Statutes § 53a-119, includes but is not limited to: (1) embezzlement, (2) obtaining property by false pretenses, (3) obtaining property by false promise, (4) acquiring property lost, mislaid or delivered by mistake, (5) extortion, (6) defrauding of public community, (7) theft of services, (8) receiving stolen property, (9) shoplifting, (10) conversion of a motor vehicle, (11) obtaining property through fraudulent use of automated teller machine, (12) library theft, (13) conversion of leased property, (14) failure to pay prevailing rate of wages, and (15) theft of utility service.

       General Statutes § 53a-119 (1) provides: “Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody.”

       The transcript of the direct examination of the defendant’s wife, Cynthia Pulley, contains the following:
      “Q. Okay. And do you recall an incident on March 7, 1993, at a Sunday service between the Reverend Pulley, your husband, and [the victim]?
      “A. Yes.
      “Q. And could you indicate to us what you saw? Not what you heard, but what you saw?
      “A. I saw [the victim] hit Reverend Pulley with a stick, reach into her pocketboolc and threaten him that she was going to shoot him with a gun, and I saw Reverend Pulley push her and we got into the middle of it and it was over.
      “Q. Do you recall at that service whether the Reverend Pulley, your husband, indicated to [the victim] that she had demons?
      “A. No.
      -‘Q. Do you know . . . what she was reaching for her purse for, if you know?
      "A. I don’t really know. All I know is she said that she would shoot . . . him and as she was reaching into her purse—”

       The information provided, “on or about May 14,1992, at the City of New Haven, the accused, Robert Pulley, with intent to deprive [the victim] of her property or to appropriate the same to himself or a third person, wrongfully took, obtained or withheld such property from its owner, [the victim], and the value of such property exceeded five thousand dollars, in violation of Section 53a-123 (a) (2). . . .”


author: SCHALLER, J.

text:
    MICHELLE MURPHY, CONSERVATOR (ESTATE OF PAUL SYLVAN) v. GEORGE WAKELEE
    (AC 15849)
    Dupont, C. J., and Schaller and Spear, Js.
    Argued June 2
    officially released August 26, 1997

      A. Paul Spinella, for the appellant (plaintiff).

      James E. Coyne, with whom, on the brief, was Colleen D. Fries, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant. The plaintiff claims that the trial court improperly (1) excluded expert testimony, (2) instructed the jury in two respects, (3) excluded evidence of the intent of the settlor and (4) limited her cross-examination of a witness and granted the defendant’s counsel improper latitude during the trial. We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. On October 7, 1963, Theodore Sylvan created an irrevocable, inter vivos trust referred to as the Ramp Garage Trust (trust). The trust designated Paul Sylvan (Sylvan) as beneficiary. On February 24, 1989, the defendant was appointed conservator of Sylvan’s estate.

On July 23,1987, Sylvan entered the DATAHR facility, a residence for mentally handicapped individuals and applied to the state department of income maintenance (department) for financial assistance under Title XIX-ND Medical Assistance Program. On October 15, 1987, the department resources division denied Sylvan’s application for Title XIX-ND benefits claiming that the corpus of the trust was available to pay his medical expenses.

Subsequently, Sylvan timely appealed the department’s decision and an administrative hearing was held before a fair hearing officer on January 17, 1989. The fair hearing officer determined that the trust could be used to pay for Sylvan’s medical care at DATAHR. Accordingly, the fair hearing officer upheld the department’s decision to deny Sylvan Title XIX-ND benefits. No appeal was taken from the fair hearing officer’s decision and the corpus of the trust was invaded and fully exhausted to pay for Sylvan’s general medical care and support.

On February 24, 1993, the plaintiff, Michelle Murphy, was appointed to replace the defendant as conservator of Sylvan’s estate. Thereafter, Murphy filed a complaint against the defendant alleging that the defendant, in his capacity as conservator, was negligent in failing to appeal the hearing officer’s decision denying Sylvan Title XIX-ND benefits. A jury trial was held and the jury rendered a verdict in favor of the defendant on all counts in the complaint. This appeal followed.

I

The plaintiff claims first that the trial court improperly excluded expert testimony on the issue concerning whether the defendant was acting as an attorney as well as a conservator.

Additional facts are necessary for the resolution of this claim. On January 19, 1996, during the course of trial, the plaintiff moved to amend her complaint to add a new cause of action alleging that the defendant “George Wakelee, individually in his role as an attorney” negligently failed to advise “George Wakelee, in his capacity as a conservator,” with regard to whether he should appeal the department’s decision. On January 22, 1996, the trial court granted the plaintiffs request to amend her complaint.

On January 17, 18 and 19, 1996, the plaintiff sought to introduce the testimony of three expert witnesses, Mark Kostecki, Charles Silver and Robert Whitman. In the plaintiffs offers of proof, she asserted that each expert would give an opinion that the defendant did act as an attorney as well as a conservator, and that his actions in not pursuing an appeal fell below the standard of care required for an attorney. The trial court rejected the plaintiffs offers of proof each time she attempted to introduce this expert testimony because, at the tim,e the evidence was offered, the plaintiffs complaint did not state a cause of action against the defendant in his capacity as an attorney. On January 23, 1996, however, after the trial court permitted the plaintiff to amend her complaint to add a cause of action against the defendant in his capacity as an attorney, the trial court allowed the plaintiff to offer the testimony of Silver. Silver, over the objection of the defendant, testified that in his opinion the defendant deviated from the standard of care of attorneys practicing in the state of Connecticut by not pursuing the appeal.

It is well established that “[t]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the error is clear and involves a misconception of the law, its ruling will not be disturbed.” State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985). After our review of the record, we conclude that the trial court did not abuse its discretion by permitting the expert testimony on the professional malpractice claim after that cause of action became part of the plaintiffs complaint.

II

The plaintiff claims next that the trial court improperly instructed the jury in two respects. First, she claims that the trial court improperly instructed the jury regarding the shifting of the burden of proof in a case involving breach of a fiduciary duty. Second, she claims that the trial court improperly instructed the jury with regard to the nature of the trust in question. We disagree.

It is well established that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Dolphin, 195 Conn. 444, 451, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984); State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982). The whole charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict; State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980); State v. Piskorski, 177 Conn. 677, 746-47, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979); and not critically dissected in a microscopic search for possible error. Gajewski v. Pavelo, 36 Conn. App. 601, 609, 652 A.2d 509 (1994), aff'd, 236 Conn. 27, 670 A.2d 318 (1996); State v. Harris, 172 Conn. 223, 226-27, 374 A.2d 203 (1977). In this case, after examining the charge as a whole, we conclude that the trial court properly charged the jury with regard to the plaintiffs claims.

III

The plaintiff claims next that the trial court improperly excluded evidence of the intent of the settlor. We disagree.

“[W]e cannot rewrite ... a trust instrument. The expressed intent must control, although this is to be determined from reading the instrument as a whole in the light of the circumstances surrounding the . . . settlor when the instrument was executed, including the condition of his estate, his relations to his family and beneficiaries, and their situation and condition. The construing court will put itself as far as possible in the position of the . . . [settlor], in the effort to construe . . . [any] uncertain language used by him in such a way as shall, conformably to the language, give force and effect to his intention. . . . But [t]he quest is to determine the meaning of what the . . . [settlor] said and not to speculate upon what he meant to say.” (Citation omitted; emphasis added; internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Lyman, 148 Conn. 273, 278-79, 170 A.2d 130 (1961).

At trial, the plaintiff attempted to question the set-tlor’s daughter, Joy Sylvan-Post, about statements the settlor made to her nine years after the trust was executed. The defendant objected on grounds that the statements were irrelevant, that they were inadmissible hearsay, and that the only statements regarding the settlor’s intent that would be admissible were ones that were made “when the [trust] instrument was executed . . . .” Zeoli v. Commissioner of Social Services, 179 Conn. 83, 89, 425 A.2d 553 (1979). The trial court stated that “[t]he court wants evidence of intent at the time the settlor created the trust. . . . I’m ruling that it’s inadmissible. . . . [I]f you have another witness that you want to offer who knows what his intent—who can testify as to his intent at the time, you’re perfectly free to put that witness on.” “The trial court has broad discretion to determine the relevancy of evidence, and we will not disturb a trial court’s ruling on the admissibility of evidence in the absence of a clear abuse of discretion. State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990).”State v. Sauris, 227 Conn. 389, 407, 631 A.2d 289 (1993). We conclude that the trial court properly exercised its discretion in excluding this testimony.

IV

The plaintiff claims finally that the trial court improperly limited the plaintiffs cross-examination of the defendant, granted defense counsel improper latitude in both his direct and cross-examination of several witnesses and permitted the defendant to make prejudicial remarks in both his opening and closing statements. We are not persuaded.

“[I]n . . . matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed. Murphy v. Murphy, 74 Conn. 198, 50 A. 394 (1901); State v. McGowan, 66 Conn. 392, 34 Atl. 99 [1895].” Finch v. Weiner, 109 Conn. 616, 620, 145 A. 31 (1929). Moreover, “[t]he trial court is invested with a large discretion with regard to the arguments of counsel, and while its action is subject to review and control, we can interfere only in those cases where the discretion was clearly exceeded or abused to the manifest injury of some party. James v. Bowen, 83 Conn. 702, 706, 78 A. 420 [1910].” Cascella v. Jay James Camera Shop, Inc., 147 Conn. 337, 342-43, 160 A.2d 899 (1960). After a review of the transcripts and record in this case, we conclude that the trial court did not abuse its discretion in its rulings concerning the scope of the plaintiffs cross-examination of the defendant, nor did it abuse its discretion with regard to the defense counsel’s direct and cross-examination of witnesses or the defense counsel’s opening and closing arguments.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because we affirm the judgment, we need not consider the defendant’s alternate grounds for affirmance.

       With regard to the plaintiff’s claim concerning the shifting of the burden of proof in a fiduciary duty case, the trial court properly instructed the jury that “if you find that at least one of the specifications of negligence listed in count [one] . . . has been proven by a preponderance of the evidence and i1 was a substantial factor or proximate cause of the plaintiff estate’s injury, then the burden of persuasion shifts to the defendant. The defendant must then establish his freedom from liability by clear and convincing proof of his fair dealing. And, as I indicated to you, this is a higher standard of proof than a preponderance of the evidence.” See Oakhill Associates v. D'Amato, 228 Conn. 723, 726-27, 638 A.2d 31 (1994).
      With regard to the plaintiffs claim concerning the nature of the trust, the trial court properly instructed the jury that “you’ve . . . heard mention of a spendthrift trust. . . . [I]n this case we are . . . concerned with ... a determination of whether or not the beneficiary, Paul Sylvan, should have been entitled to Title XIX benefits in view of the existence of the 1963 trust. ... If that trust was intended to provide for the general support, of the beneficiary, Paul Sylvan, as opposed to his supplemental support, the trust funds would be considered available to the beneficiary, Paul Sylvan. And they would be available for the purposes of paying his maintenance and care and under the laws of this state, he would not then be entitled to Title XIX benefits until the 1963 trust property was exhausted. Consequently . . . your consideration should first focus on whether or not this is, in fact, a spendthrift, trust. And secondarily, if you find that it is a spendthrift trust, was the intent of the settlor to provide for Paul Sylvan’s general support or his supplemental support? If you believe, based upon the wording of the trust, itself, that the settlor’s intent was to provide for the general support, of Paul Sylvan, then the trust funds, including principal and interest, would be available for the DATAIIR bills applicable to the care and maintenance of Paul Sylvan and he would not be entitled to the benefits under Title XIX until the trust was exhausted. ” See Zeoli v. Commissioner of Social Services, 179 Conn. 83, 425 A.2d 553 (1979).


author: HEIMAN, J. LAVERY, J.,

text:
    L & R REALTY ET AL. v. CONNECTICUT NATIONAL BANK
    (AC 14969)
    Dupont, C. J., and Lavery and Heiman, Js.
    Argued June 6
    officially released August 26, 1997

      Robert G. Skelton, for the appellants (plaintiffs).

      Robert M. Dombroff with whom was Ann M. Sicze-wicz, for the appellee (defendant).
   Opinion

HEIMAN, J.

The plaintiffs appeal from the judgment of the trial court rendered in favor of the defendant in this lender liability action. On appeal, the plaintiffs claim that the trial court improperly (1) granted the defendant’s motion to strike the lender liability claims from the jury docket, (2) found the subordination agreement unenforceable, (3) held that the defendant was excused from subordinating because the plaintiffs could not satisfy the Mechanics Savings Bank commitment, (4) held that the plaintiffs had failed to mitigate their damages, and (5) failed to recuse itself. We conclude that the trial court improperly granted the defendant’s motion to strike the lender liability claims from the jury docket and, accordingly, we reverse the judgment of the trial court.

The following facts are pertinent to our resolution of this appeal. On or about June 30, 1989, the Connecticut National Bank (CNB) loaned L & R Realty (L & R) $500,000 in connection with the purchase by L & R of approximately three acres of land in Colchester. At the June 30, 1989 closing, L & R delivered to CNB (1) a commercial promissory note in the principal amount of $500,000 (note), (2) a guarantee agreement (guarantee) by which the general partners of L & R personally guaranteed payment of the note, (3) a mortgage by which L & R created a first mortgage lien on the Colches-ter property in favor of CNB to secure due performance of L & R’s obligations under the note, and (4) a collateral assignment of rents and security agreement by which L & R provided CNB with further security for the performance of L & R’s obligations due under the note.

The general partners of L & R claimed that prior to the closing, a senior vice president of CNB orally agreed to subordinate its mortgage to any future construction mortgage placed on the Colchester property. In reliance on this oral subordination agreement, L & R began construction on the Colchester property. In a letter dated October 26, 1990, another CNB vice president wrote to L & R that CNB intended “to stand behind the verbal representation made by [L & R’s] prior account officer concerning the subordination of the bank’s mortgage on the Colchester parcel.”

On March 25, 1991, L & R received a commitment from Mechanics Savings Bank that it would loan L & R funds for construction on the Colchester property. L & R notified CNB of the construction loan and requested that CNB subordinate its mortgage to this new construction mortgage. On April 15, 1991, CNB refused to subordinate their mortgage to this new construction mortgage without additional collateral. This refusal prevented the construction loan from closing. In April, 1991, L & R stopped paying the CNB note. On February 24, 1992, CNB commenced an action to foreclose its mortgage. L & R responded by bringing a lender liability action against CNB, claiming compensatory and punitive damages on a number of theories: (1) breach of the subordination agreement, (2) promissory estoppel, (3) breach of good faith and fair dealing, (4) fraud, (5) wrongful interference with prospective business relations, (6) economic duress, and (7) engagement in unfair and deceptive practices in violation of the Connecticut Uniform Trades Practices Act, General Statutes § 42-110a et seq. L & R also asserted those claims as counterclaims in the foreclosure action.

In November, 1992, the trial court consolidated the foreclosure and the lender liability actions. After a nine day trial, the trial court found that the note, the mortgage, and the other security documents delivered by L & R at the closing constituted a complete, final and integrated agreement, and, thus, the trial court found that there was no valid subordination agreement. Accordingly, on June 20, 1995, the trial court rendered judgment in favor of CNB in both the foreclosure and the lender liability actions. This appeal from the judgment in the lender liability action follows.

The plaintiffs first claim that the trial court improperly granted the defendant’s motion to strike the plaintiffs’ lender liability claims from the jury docket. Specifically, the plaintiffs argue that, in this case, where the record before the trial court, Hurley, J., was devoid of evidence that the jury trial waiver clauses located in the loan documents were entered into knowingly, voluntarily, and intelligently, the trial court was required to conduct an evidentiary hearing to make that factual determination.

Certain additional facts are necessary to an understanding of our resolution of this claim. On November 2, 1993, the defendant moved to strike the plaintiffs’ lender liability claims from the jury docket “on the ground that each of the plaintiffs waived their right to a trial by jury in the loan documents which form the basis for this action.” On November 22,1993, the parties’ attorneys briefly presented their arguments on the motion to strike to the trial court, Hurley, J. The plaintiffs’ attorney argued that the trial court should hold an evidentiary hearing to determine whether the contractual jury trial waivers located in the loan documents constituted a voluntary, intelligent, and knowing waiver of the right to a jury trial. Counsel for the defendant argued that the plaintiffs, one of whom was an attorney, signed a note and guarantee that contained an express waiver of the right to a jury trial, and that the execution of such documents automatically constituted a valid contractual waiver of the right to a jury trial. The trial court did not conduct any form of an evidentiary hearing, and heard no testimony. The trial court took the motion on the papers. Thus, when deciding this motion to strike, the trial court had nothing before it except the defendant’s motion to strike the plaintiffs’ claims from the jury docket, the plaintiffs’ opposition to this motion to strike, the attached memoranda of law, and brief oral arguments by the parties’ attorneys. Because attorney arguments, written or oral, do not constitute evidence; see Roberts v. Roberts, 32 Conn. App. 465, 475, 629 A.2d 1160 (1993); the trial court had before it no evidence, except perhaps a copy of the signed loan documents, when it ruled on the motion to strike.

On November 26, 1993, the trial court granted the defendant’s motion to strike the plaintiffs’ claims from the jury docket. The trial court ruling consisted of one line: “The court finds that by signing the note the [plaintiffs] waived all claims to a trial by jury.”

In Krupa v. Farmington River Power Co., 147 Conn. 153, 156, 157 A.2d 914 (1959), cert. denied, 364 U.S. 506, 81 S. Ct. 281, 5 L. Ed. 2d 258 (1960), our Supreme Court held that, “the right to a jury trial is a right which, like other rights, may be waived but that it is a right the waiver of which is not to be inferred without reasonably clear evidence of the intent to waive. . . . Whether a party has waived his right to a jury trial presents a question of fact for the trial court.” (Citation omitted.) Neither Krupa nor any subsequent Connecticut appellate case, however, has defined what constitutes “reasonably clear evidence of the intent to waive the right to a jury trial” or by what standard and method the trial court should make that factual determination. Thus, whether a trial court is required to conduct an eviden-tiary hearing in order to determine whether a contractual jury trial waiver was made knowingly, voluntarily and intelligently represents an issue of first impression in Connecticut.

We begin by examining our law regarding the general concept of waiver. “ ‘Waiver involves an intentional relinquishment of a known right. . . . There cannot be a finding of waiver unless the party has both knowledge of the existence of the right and intention to relinquish it.’ ” Cassella v. Kleffke, 38 Conn. App. 340, 347, 660 A.2d 378, cert. denied, 235 Conn. 905, 665 A.2d 899 (1995). “Inherent in the concept of waiver is the notion of assent, which is an act of understanding that presupposes that the party to be affected has knowledge of its rights but does not want to assert them.” Fisette v. DiPietro, 28 Conn. App. 379, 385, 611 A.2d 417 (1992). “Waiver may be inferred from the circumstances if it is reasonable so to do . . . . Whether conduct constitutes a waiver is a question of fact. . . . When the trial court is required to make a finding that depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and cross-examine adverse witnesses. ... In order to prevail at this trial-like hearing the movant must introduce evidence to establish his claim.” (Citations omitted; internal quotation marks omitted.) Cassella v. Kleffke, supra, 347. The party claiming waiver has the burden of proving the claim. See Cleary v. Zoning Board, 153 Conn. 513, 518, 218 A.2d 523 (1966).

Our Superior Courts have dealt extensively with the specific issue of whether an evidentiary hearing is required to determine the validity of a contractual jury trial waiver. While Connecticut Superior Court opinions are by no means binding upon us, they may be persuasive. See Johnson v. Murzyn, 1 Conn. App. 176, 181, 469 A.2d 1227, cert. denied, 192 Conn. 902, 471 A.2d 244 (1984).

Our Superior Courts have found that a valid and enforceable contractual jury trial waiver must have been made knowingly, intelligently and voluntarily. See Connecticut National Bank v. Romagna, Superior Court, judicial district of New London at New London, Docket No. 521920 (December 1, 1994). Our Superior Courts further explain that “ ‘[w]aiver may be made by the specific and knowing agreement of the parties. The mere inclusion of a waiver provision in a document. . . does not in and of itself automatically in all instances constitute a binding waiver by the party against whom waiver is claimed.’ ” Happens, LLC v. Webster Bank, Superior Court, judicial district of Meriden, Docket No. 251241 (October 2, 1996) (17 Conn. L. Rptr. 639, 640); Centerbank v. Fazzone, Superior Court, judicial district of Litchfield, Docket No. CV94-0066746 (October 19, 1995) (15 Conn. L. Rptr. 377, 378). “The mere signing of a document purporting to waive a constitutional right will [not] be automatically enforced against a party.” Connecticut National Bank v. Swanney Toyota, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 5066919 (June 9,1993) (9 Conn. L. Rptr. 241, 242).

Our Superior Courts have further held that “[i]n determining whether the jury waiver in an agreement between the parties should be enforced, a court should consider the following factors: (1) whether the jury waiver was conspicuous; (2) whether the parties were represented by counsel; (3) whether the parties were on equal footing in their negotiations; and (4) whether the party objecting to the waiver actually had a choice as to whether to accept the waiver provision.” (Internal quotation marks omitted.) Happens, LLC v. Webster Bank, supra, 17 Conn. L. Rptr. 640; see also Union Trust Co. v. Sirois, Superior Court, judicial district of New Haven at New Haven, Docket No. CV94-0368058-S (August 28, 1996) (17 Conn. L. Rptr. 467).

Our Superior Courts are split as to whether an eviden-tiary hearing is necessary to the factual determination of whether the contractual jury trial waiver was entered into knowingly, voluntarily and intelligently. See Happens, LLC v. Webster Bank, supra, 17 Conn. L. Rptr. 639. The majority of Connecticut Superior Courts, however, have held that an evidentiary hearing is necessary to this factual determination; see id.; Connecticut National Bank v. Romagna, supra, Superior Court, Docket No. 521920; Bank of Boston Connecticut v. Rus-coni, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV92-0507230 (September 9, 1994) (9 C.S.C.R. 1091); Connecticut National Bank v. Swanney Toyota, Inc., supra, 9 Conn. L. Rptr. 241; Bank of New York v. Griffis Sandler Co., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV922 0122444 (March 16, 1993); and have further held that the party seeking to enforce the waiver bears the burden of proof at such an evidentiary hearing. See Bank of Boston Connecticut v. Rusconi, supra, 1091; Connecticut National Bank v. Swanney Toyota, Inc., supra, 241.

The language in the federal constitution guaranteeing the right to a jury trial is very similar to the language in our state constitution. Thus, federal case law can be turned to for guidance in interpreting the ambit of the fundamental right to a jury trial. See State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982).

The federal standard for determining the validity of a contractual waiver of the right to a jury trial is whether the waiver was knowing, voluntary and intelligent. See Phoenix Leasing, Inc. v. Sure Broadcasting, Inc., 843 F. Sup. 1379, 1384 (D. Nev. 1994), aff'd, 89 F.3d 846 (9th Cir. 1996); see also Leasing Service Corp. v. Crane, 804 F.2d 828, 832-33 (4th Cir. 1986); In re Reggie Packing Co., 671 F. Sup. 571, 573 (N.D. Ill. 1987). The factors used by federal courts to decide whether a waiver was knowing, voluntary and intelligent are similar to the factors used by our Superior Courts and include: “ ‘(1) whether there was a gross disparity in bargaining power between the parties; (2) the business or professional experience of the party opposing the waiver; (3) whether the opposing party had an opportunity to negotiate contract terms; and (4) whether the clause containing the waiver was inconspicuous.’ ” Phoenix Leasing, Inc. v. Sure Broadcasting, Inc., supra, 1384; see also A. Dickerson, “Contractual Jury Waiver Provisions A Striking Idea,” 39 Fed. B. News & J. 206 (March/ April 1992). The federal courts often conduct an eviden-tiary hearing in order to determine the validity of a contractual juiy trial waiver. See Okura & Co. v. Careau Group, 783 F. Sup. 482, 488 (C.D. Cal. 1991); Smyly v. Hyundai Motor America, 762 F. Sup. 428, 429 (D. Mass. 1991).

The majority of the federal district courts, as well as the second and fourth circuits, have held that, in the context of an express contractual waiver of the right to a juiy trial, the party seeking enforcement of the waiver has the burden of showing that the consent of the party objecting to waiver was knowing, voluntary, and intelligent. See Leasing Service Corp. v. Crane, supra, 804 F.2d 832-33; National Equipment Rental Ltd. v. Hendrix, 565 F.2d 255, 258 (2d Cir. 1977); Phoenix Leasing, Inc. v. Sure Broadcasting, Inc., supra, 843 F. Sup. 1384; Smyly v. Hyundai Motor America, supra, 762 F. Sup. 429; Bonfield v. Aamco Transmissions, Inc., 717 F. Sup. 589, 595 (N.D. Ill. 1989); N. Feldman & Son, Ltd. v. Checker Motors Corp., 572 F. Sup. 310, 313 (1983); Dreiling v. Peugeot Motors of America, Inc., 539 F. Sup. 402, 403 (D. Colo. 1982); National Westminster Bank, U.S.A. v. Ross, 130 B.R. 656, 667 (Bankr. S.D.N.Y. 1991); see also A. Dickerson, supra, 39 Fed. B. News & J. 208 (“most reasoned approach in allocating the burden of proof is to follow general rules regarding waiver, i.e., that the party asserting waiver bears the burden of proof’); but see K.M.C. Co. v. Irving Trust Co., 757 F.2d 752, 758 (6th Cir. 1985) (burden on party attacking waiver provision).

The Connecticut Superior Courts’ resolution of the issue of whether an evidentiary hearing is required to determine the validity of a contractual jury trial waiver represents a logical application of our general waiver law to the specific issue of contractual jury trial waivers. Moreover, the similarity between the federal courts’ resolution of this issue and our Superior Courts’ resolution of this issue lends further credibility to the Connecticut Superior Courts’ position. For these reasons, we find persuasive the Connecticut Superior Courts’ reasoning in Happens L.L.C. v. Webster Bank, supra, 17 Conn. L. Rptr. 639; Union Trust Co. v. Sirois, supra, 17 Conn. L. Rptr. 467; Centerbank v. Fazzone, supra, 15 Conn. L. Rptr. 377; and Bank of Boston Connecticut v. Rusconi, supra, 9 C.S.C.R. 1091, that the execution of a document containing a contractual jury trial waiver provision does not automatically constitute an enforceable jury trial waiver. Instead, the contractual jury trial waiver must be made knowingly, voluntarily and intelligently, and this factual determination must be made via an evidentiary hearing, where the party seeking to enforce the waiver bears the burden of proof.

We conclude, therefore, that the trial court improperly granted the defendant’s motion to strike the plaintiffs’ lender liability claims from the jury docket. The only evidence before the trial court was the loan documents. Execution of a document that contains a jury trial waiver provision does not automatically constitute a valid waiver of the right to a jury trial. Moreover, evidence of the execution of such a document, in and of itself, is not sufficient evidence of a voluntary, knowing and intelligent waiver of the constitutional right to a jury trial. Thus, the trial court should have held an evidentiary hearing where the defendant bore the burden of proving that the contractual jury trial waivers were knowing, voluntary and intelligent. In determining the validity of the contractual jury trial waivers at this evidentiary hearing, the trial court should have considered such factors as (1) the conspicuousness of the waiver provisions, (2) whether the parties were represented by counsel, (3) whether there was a gross disparity in bargaining power between the parties, (4) the business or professional experience of the party opposing the waivers, and (5) whether the party opposing the waivers had an opportunity to negotiate contract terms.

The judgment is reversed and the case is remanded with direction to deny the defendant’s motion to strike the lender liability claims from the jury docket and to conduct an evidentiary hearing in accordance with this opinion.

In this opinion DUPONT, C. J., concurred.

LAVERY, J.,

dissenting. I respectfully dissent from the majority opinion for the same reasons I set forth in the dissent in the companion case of Connecticut National Bank v. L & R Realty, 46 Conn. App. 443, 446, 699 A.2d 297 (1997). I would affirm the granting of the motion to strike from the jury docket by the trial court, Hurley, J., and I would affirm the judgment rendered by the trial court, Austin, J.

       Paragraph seventeen of the note states: “Waiver of Trial By Jury: Borrower and Other Obligors irrevocably waive all right to a trial by jury in any proceeding hereafter instituted by or against the Borrower or Other Obligors in respect of this note or collateral which may secure this note.”
      Paragraph ten of the guarantee provides: “The undersigned irrevocably waives all right to a trial by jury in any proceeding hereafter instituted by or against the undersigned in respect of this guaranty or any collateral securing this guaranty.”

       The plaintiffs also argue that, under Northeast Savings, F.A. v. Plymouth Commons Realty Corp., 229 Conn. 634, 642 A.2d 1194 (1994), because the lender liability claims are legal in nature, they should have been tried to a jury. The plaintiffs further argue that the jury trial waiver does not extend to the lender liability claims. The trial court, however, granted the defendant’s motion to strike the lender liability claims from the jury docket solely on the ground that “by signing the note the [plaintiffs] waived all claims to a trial by jury.” Thus, while we agree with the plaintiffs that this first issue would be governed by Northeast Savings, F.A., we conclude that the trial court did not rule on either of these issues. Moreover, the plaintiffs failed to file a motion for articulation of the trial court’s decision granting the motion to strike or to raise these issues as alternative grounds for affirmance. For these reasons, we decline to review these two claims. See Claveloux v. Downtown Racquet Club Associates, 44 Conn. App. 691, 693 n.4, 691 A.2d 1112 (1997).

       We examine the federal courts’ treatment of contractual jury trial waivers rather than examining our sister states’ treatment of this issue because the federal courts have developed a uniform standard by which to judge the validity of a contractual jury trial waiver, while the state courts’ approaches to this issue remains quite varied. See K. Stout, “No Prehtigation Contractual Waiver of Jury Trial: Bank South, N.A. v. Howard, A Step Backward For Georgia,” 12 Ga. St. U. L. Rev. 929, 947-48 (1996). Moreover, while the federal constitution’s provision regarding the right to a jury trial is similar to our state constitution’s right to a jury trial provision, some of our sister states’ constitutional right to jury trial provisions differ significantly from article first, § 19, of the Connecticut constitution. See, e.g., Ga. Const., art. I, § 1, para. XI.; see also A. Dickerson, “Contractual Jmy Waiver Provisions A Striking Idea,” 39 Fed. B. News & J. 206 n.4 (March/April 1992).

         Our resolution of the plaintiffs’ first claim is dispositive of this appeal, and, thus, we do not reach the plaintiffs’ other claims.


text:
    CONNECTICUT NATIONAL BANK v. L & R REALTY ET AL.
    (AC 16092)
    Dupont, C. J., and Lavery and Heiman, Js.

      Argued June
    officially released August 26, 1997

      Robert G. Skelton, for the appellants (defendants).

      Robert M. Dombroff with whom was Ann Siczewicz, for the appellee (plaintiff).
   Opinion

HEIMAN, J.

The defendants appeal from the judgment of the trial court rendered in favor of the plaintiff in this foreclosure action. On appeal, the defendants claim that the trial court improperly (1) found that there was sufficient evidence to support a judgment in favor of the plaintiff, (2) lacked jurisdiction to set law days after dismissal of the first appeal, (3) granted the plaintiffs motion to strike the counterclaims from the jury list, (4) awarded attorney’s fees, (5) held the plaintiff could enforce the note, and (6) held the subordination agreement was unenforceable.

This case is governed by our decision in the companion lender liability action, L & R Realty v. Connecticut National Bank, 46 Conn. App. 432, 699 A.2d 291 (1997). The claims of L & R Realty (L & R) in that action are essentially identical to L & R’s counterclaims in this foreclosure action. In L & R Realty v. Connecticut National Bank, supra, 442, we concluded that because the only evidence before the trial court was the signed loan documents containing the jury trial waiver provisions, there was not sufficient evidence before the trial court to enable it to make the factual determination of whether L&R had knowingly, intelligently and voluntarily waived its constitutional right to a jury trial. Thus, we concluded that the trial court improperly granted Connecticut National Bank’s motion to strike L & R’s lender liability claims from the jury docket. Accordingly, we reversed the judgment of the trial court and remanded the case with direction to deny Connecticut National Bank’s motion to strike the lender liability claims from the jury docket and to conduct an evidentiary hearing to determine whether L & R’s contractual jury trial waiver was valid. Our decision in L & R Realty v. Connecticut National Bank, supra, 432, is, therefore, dispositive of this appeal.

The judgment is reversed and the case is remanded with direction to deny the plaintiffs motion to strike the lender liability claims from the jury docket and to conduct an evidentiary hearing in accordance with L & R Realty v. Connecticut National Bank, supra, 46 Conn. App. 432.

In this opinion DUPONT, C. J., concurred.

LAVERY, J.,

dissenting. I respectfully dissent from the majority opinion as to the trial court’s striking of L & R Realty’s claim for a jury trial. I agree with the trial court that by signing the note, mortgage deed and guarantee, with the jury waiver clause, the defendants waived all claims to a trial by jury and that the action is in equity. There are two issues: (1) whether the jury waiver clauses located in the loan documents should be enforced and (2) whether the trial court was correct in its ruling that the action was essentially equitable.

I

The defendants admit in their pleadings, i.e., answer, special defenses and counterclaims, that they signed and executed the commercial mortgage documents including the guarantee for which they received $500,000. Both the note and the guarantee securing the note contain sections in bold type clearly waiving the right to a jury trial. There is no allegation anywhere before the trial court that they did not know the clause was in the documents, that they did not understand the clause or that they were coerced into signing the documents with the clause in it.

In determining whether a contractual jury waiver provision is enforceable, courts require that the provision be agreed to knowingly and voluntarily. Our Supreme Court has held: “In Noren v. Wood, 72 Conn. 96, 98, 43 A. 649 [1899], we said that the right to a jury trial is a right which, like other rights, may be waived but that it is a right the waiver of which is not to be inferred without reasonably clear evidence of the intent to waive. See Leahey v. Heasley, 127 Conn. 332, 336, 16 A. 2d 609 [1940]. Whether a party has waived his right to a jury trial presents a question of fact for the trial court. Stevens v. Mutual Protection Fire Ins. Co., 84 N.H. 275, 283, 149 A. 498 [1930].” Krupa v. Farmington River Power Co., 147 Conn. 153, 156, 157 A.2d 914 (1959), cert. denied, 364 U.S. 506, 81 S. Ct. 281, 5 L. Ed. 2d 258 (1960).

Furthermore, our Supreme Court affirmed the waiver of a jury trial based entirely on a waiver provision contained in a lease. Nowey v. Kravitz, 133 Conn. 394, 395-96, 51 A.2d 495 (1947). “A right of trial by jury even when guaranteed by the constitution may be waived .... [A] binding agreement for such a waiver made in advance of the institution of such an action does not violate public policy; and there is no reason why such an agreement should not be given effect . . . .” (Citations omitted.) Id., 395-96.

Courts in other jurisdictions have compared the waiver of a jury trial by contract to the widely accepted practice of requiring arbitration of future disputes.

The Appeals Court of Massachusetts has held: “The right to a jury trial may also be waived by contract. . . . That is not surprising, as courts have been receptive to contractual waivers of broader procedural rights than the one involved here. Private parties, for example, may be bound by a contract requiring arbitration of future disputes. . . . Agreements in advance to arbitrate, it should be noted, eliminate not only the right to a jury trial on the merits of a dispute, but the right to any judicial trial. See also D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, [185-86, 92 S. Ct. 775, 31 L. Ed. 2d 124] (1972) (upholding a contract that included waiver in advance of due process rights considerably more comprehensive than the right to a jury trial).” (Citations omitted.) Chase Commercial Corp. v. Owen, 32 Mass. App. 248, 251-52, 588 N.E.2d 705 (1992). Looking to New York case law, David v. Manufacturers Hanover Trust Co., 59 Misc. 2d 248, 249, 298 N.Y.S.2d 847 (1969) held that waiver of a jury trial is neither unconscionable nor against public policy.

New York courts have held that “[a]s a general proposition, contract provisions waiving a jury trial ‘are valid and enforceable, unless adequate basis to deny enforcement is set forth by the challenging party ....”’ (Citations omitted.) Barclays Bank of New York v. Heady Electric Co., 174 App. Div. 2d 963, 964, 571 N.Y.S.2d 650 (1991). Additionally, the United States Court of Appeals for the Sixth Circuit held that “in the context of an express contractual waiver the objecting party should have the burden of demonstrating that its consent to the provisions was not knowing and voluntary.” K.M.C. Co. v. Irving Trust Co., 757 F.2d 752, 758 (6th Cir. 1985). “In determining whether to give effect to the contractual [jury] waiver against an objecting party the court should start with a presumption in favor of validity in the interest of liberty of contract. This would require the obj ecting party to point to some one or more matters that render the provision improper.” 5 J. Moore, Federal Practice (2d Ed. 1984) 1f38.46, p. 38-400.

In the present case, the jury waiver clauses in the note and mortgage are no different from those that are enforced in leases or contracts mandating arbitration. The defendants entire case revolves around their allegation that prior to and contemporaneously with the execution and delivery of the note, the mortgage and the guarantees, Connecticut National Bank (CNB) entered into an oral agreement with the defendants by which CNB agreed to subordinate its mortgage unconditionally to any construction or permanent mortgage in favor of any institutional lender if and when the defendants might request CNB to subordinate to such a mortgage. Nowhere in the pleadings or in the record is there any claim that the defendants signed and executed the loan documents unaware or ignorant of the jury waiver clause or for that matter unaware or ignorant of any clause in the mortgage instruments.

The waiver clause reads as follows: “Waiver of trial by jury: Borrower and other obligors hereby irrevocably waive all rights to a trial by jury in any proceedings by or against the borrower in respect of this note or collateral which may secure it.” As stated previously, all of the defendant’s claims related to the mortgage instruments in their claim concerning the oral subordination agreement, which they assert is an integral part of the mortgage agreements. The clear unchallenged language of the agreement precludes a jury trial. Our Supreme Court stated in Vail v. American Way Homes, Inc., 181 Conn. 449, 451, 435 A.2d 993 (1980), in upholding the enforceability of arbitration clauses in a contract “[i]f the parties have agreed in the underlying contract that their disputes shall be resolved by arbitration, the arbitration clause in the contract is a written submission to arbitration.”

As in arbitration, if the parties agree in a commercial mortgage note, deed and guarantee that their disputes shall be resolved without a jury, then their litigation will be decided by the court, as in this case. The trial court, was correct in striking the case from the jury docket because of the contract waiver.

II

The trial court, found in addition that the claims were equitable and a jury trial was not warranted.

“An action of foreclosure is peculiarly equitable and the court may entertain all questions which are necessary to be determined in order that complete justice may be done between the parties.” Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 175, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). “When legal and equitable issues are combined in a single action, whether the right to a jury trial attaches depends upon the relative importance of the two types of claims. Where incidental issues of fact are presented in an action essentially equitable, the court may determine them without a jury in the exercise of its equitable powers. . . . Because a counterclaim is an independent action . . . the question presented is whether the defendants’ counterclaim is essentially legal or essentially equitable. . . . This analysis must be performed in the context of the pleadings when read as a whole. . . . The form of the relief demanded is not dispositive.” (Citations omitted; internal quotation marks omitted.) Northeast Savings, F. A. v. Plymouth Commons Realty Corp., 229 Conn. 634, 641-42, 642 A.2d 1194 (1994).

Here the defendants’ claim, in both the special defenses and counterclaims, is based on their allegation that the mortgage was subject to subordination on demand pursuant to a concomitant oral agreement. Since this claim is equitable as it relates directly to the status and enforceability of the mortgage, the trial court was correct in striking the claim for a jury. I would affirm the judgment of the trial court.

       We note that neither party raised the issue of a prior pending action via a motion to dismiss. See Gaudio v. Gaudio, 23 Conn. App. 287, 294-97, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). We further note that the prior pending action doctrine does not implicate subject matter jurisdiction, and, thus, may not be raised at any time. See id., 294-95. We, therefore, do not address this issue.

       The dissent argues that L&R was not entitled to a jury trial on its counterclaims because the counterclaims were based on the mortgage and thus were equitable in nature. In Northeast Savings, F.A. v. Plymouth Commons Realty Corp., 229 Conn. 634, 640-42, 642 A.2d 1194 (1994), however, our Supreme Court specifically held that a counterclaim in a foreclosure action seeking damages for breach of contract, breach of fiduciary duty and negligence constitutes an independent legal action triable to the jury. As L & R’s counterclaims in this foreclosure action are essentially the same as the allegations making up the counterclaim in Northeast Savings, F.A., we conclude that L & R’s counterclaims were legal in nature and did warrant a jury trial.