source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Anthony Bartone et al. v. Robert L. Day Company, Inc., et al.
    (15094) (15096)
    Peters, C. J., and Borden, Berdon, Katz and Palmer, Js.
    Argued February 9
    decision released April 4, 1995

      Constance L. Epstein, with whom, on the brief, was Robert P. Volpe, for the appellant in Docket No. 15094, appellee in Docket No. 15096 (named defendant).

      Philip M. Block, for the appellees in Docket No. 15094, appellants in Docket No. 15096 (plaintiffs).

      Charles J. Irving, for the appellees in Docket No. 15096 (defendant Gene Gualazzi et al.).

      JohnR. McLain, for the appellee in Docket No. 15096 (defendant Robert L. Day.).

      Thomas A. Kyzivat, for the appellees in Docket No. 15096 (defendant town of Deep River et al.).
   Peters, C. J.

In this case involving the allegedly negligent installation of a septic system as part of a newly constructed home, the principal issue is whether otherwise applicable statutes of limitation have been superseded by the fraudulent concealment of the existence of the home owners’ cause of action. The plaintiffs, Anthony Bartone and Linda Bartone, filed an amended complaint charging the defendants Robert L. Day Company, Inc. (Day Company), Robert L. Day and Robert L. Day II, the general contractor, with five counts of tortious misconduct, including a claim that these defendants had violated General Statutes § 42-110b of the Connecticut Unfair Trade Practices Act (CUTPA). The plaintiffs’ fourth amended complaint contained five additional counts claiming similar misconduct on the part of the defendants Gene Gualazzi and Jerry Gualazzi, the installers of the septic system. In three further counts, the plaintiffs’ complaint charged the defendant Landon Woodcock, the public health officer of the town of Deep River, and the defendant town of Deep River (town), with negligence and fraud in the issuance of permits relating to the plaintiffs’ septic system.

The trial court, Arena, J., granted motions for summary judgment filed by the defendants Gene Gualazzi, Woodcock and the town. The trial court, Arena, J., granted a motion filed by the defendant Jerry Gualazzi to strike the fourth amended complaint insofar as it added an allegation of fraudulent concealment on his part. The trial court, J. Walsh, J., struck the plaintiffs’ CUTPA claim, but allowed their remaining counts to be determined by a jury. In accordance with the jury’s verdict, the trial court, J. Walsh, J., rendered judgment in favor of Robert L. Day and Robert L. Day II, and against the Day Company.

The plaintiffs have appealed from the granting of the motions for summary judgment and of the motion to strike, and from the verdict with respect to Robert L. Day. The Day Company has appealed from the judgment rendered against it. After consolidation of the appeals, we transferred them from the Appellate Court to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). On the Day Company’s appeal, we reverse the judgment holding it liable; on the plaintiffs’ appeal, we affirm the judgment finding no liability on the part of any of the remaining defendants.

For the purposes of these appeals, the following facts are not disputed. On June 9, 1986, the plaintiffs contracted with the Day Company for the construction of a new home on property in a subdivision in Deep River. Radcliffe Engineering, P.C. (Radcliffe), was the Day Company’s subcontractor for the design of the septic system on the plaintiffs’ property. Twin Oaks Construction, Inc. (Twin Oaks), was the Day Company’s subcontractor for the installation of the septic system; Jerry Gualazzi, a licensed septic system installer, performed the actual work of installation on behalf of Twin Oaks. Woodcock, the sanitarian of the town, issued a permit for the construction of the septic system as designed by Radcliffe. Woodcock subsequently issued a certificate of occupancy, implying that all necessary inspections had been successfully completed, on February 10, 1987. That same day, the closing between the plaintiffs and the Day Company took place.

The parties did not discuss any possible problems with the septic system until March, 1991, more than four years after the date of the closing. On March 6, 1991, at the plaintiffs’ request, the Day Company dug up and replaced a portion of damaged piping within the septic system. The damaged pipe was left on the plaintiffs’ property. Subsequent investigators of the septic system found its construction to be significantly deficient because of improper fill, foreign objects in the fill, improper placement of pipes and a hole in the septic tank.

Between July, 1991, when the plaintiffs filed their intitial complaint, and July, 1993, when they filed their fourth amended complaint, the plaintiffs amplified their pleadings to charge all the defendants with tortious misconduct and violations of CUTPA. Each of the defendants replied by citing applicable statutes of limitations that, on their face, would have barred the plaintiffs’ complaint because it had not been filed within three years of “the act or omission complained of.” See General Statutes §§ 52-577, 52-584 and 42-110g(f). In response, the plaintiffs have, in the main, invoked General Statutes § 52-595, which provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”

The applicability of § 52-595 in the circumstances of this case is, therefore, the dispositive issue in these appeals. The question before us is whether the plaintiffs have adduced any credible evidence that any of the defendants fraudulently concealed the existence of the plaintiffs’ cause of action. “To meet this burden, it was not sufficient for the plaintiffs to prove merely that it was more likely than not that the defendants had concealed the cause of action. Instead, the plaintiffs had to prove fraudulent concealment by the more exacting standard of clear, precise, and unequivocal evidence. Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 163, 464 A.2d 18 (1983); Puro v. Henry, [188 Conn. 301, 308, 449 A.2d 176 (1982)]; Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982).” (Internal quotation marks omitted.) Bound Brook Assn. v. Norwalk, 198 Conn. 660, 666, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986). Under our case law, to prove fraudulent concealment, the plaintiffs were required to show: (1) a defendant’s actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiffs’ cause of action; (2) that defendant’s intentional concealment of these facts from the plaintiffs; and (3) that defendant’s concealment of the facts for the purpose of obtaining delay on the plaintiffs’ part in filing a complaint on their cause of action. Connell v. Colwell, 214 Conn. 242, 250-51, 571 A.2d 116 (1990); Bound Brook Assn. v. Norwalk, supra, 665-66; Lippitt v. Ashley, 89 Conn. 451, 480, 94 A. 995 (1915). Our examination of the evidence persuades us that the plaintiffs have failed to make such a showing.

The plaintiffs’ argument on fraudulent concealment is principally predicated on the proposition that, because a septic system is buried in the course of construction, any defects arising out of its negligent construction or out of its failure to correspond with representations about its reliability are necessarily concealed by those who have any responsibility, direct or indirect, for its construction. If that argument were to prevail, it would toll, until the time of discovery, the statute of limitations with respect to any latent defects in a construction project.

The plaintiffs’ argument cannot be sustained in light of our decision directing a verdict for similarly situated defendants in Bound Brook Assn. v. Norwalk, supra, 198 Conn. 660. In that case, this court held that the defendants could not be held liable for fraudulent concealment without a showing of their actual knowledge of deficiencies in the construction of the plaintiffs’ homes. Id., 668. This court further held that the defendants’ failure to warn the plaintiffs “after problems had developed” with respect to their homes did not prove fraudulent concealment without a showing that such a failure to warn was motivated by an intent to conceal from the plaintiffs the existence of a cause of action in order to delay their filing suit. Id., 669-70.

Our holding in Bound Brook Assn, is, moreover, fully consistent with statutory policy regarding liability for new home construction. General Statutes § 47-121, which provides for a home owner an implied warranty that a newly constructed single-family home complies with the building code, expressly limits such a cause of action to a period of three years from the issuance of a certificate of occupancy. Although noncompliance with the building code often will not be immediately apparent to home owners, the legislature chose not to postpone the running of the statutory cause of action until the time when such noncompliance could reasonably be discovered. The legislature has, therefore, impliedly rejected the broad imposition of liability that the plaintiffs are urging upon us in this case.

The record in this case discloses that, after the issuance of the certificate of occupancy and the closing, none of the defendants said or did anything with respect to the plaintiffs’ septic system until well after the expiration of the applicable statutes of limitations. There is no evidence that, during the three year period prescribed by §§ 52-577, 52-584 and 42-110g (f), any of the defendants discovered evidence of deficiencies in the construction of the plaintiffs’ septic system and failed to disclose such evidence to them. With respect to this crucial time period, the plaintiffs have, therefore, wholly failed to provide clear and convincing evidence of the defendants’ fraudulent intent to conceal from the plaintiffs the existence of a cause of action in order to delay the plaintiffs in their filing suit while such a course of action was still open to them.

The only defendants who allegedly had any contact with the plaintiffs after that time are the Day Company and Robert L. Day, who investigated the plaintiffs’ complaints about the septic system on March 6, 1991. Far from concealing anything, these defendants replaced a defective pipe in full view of one of the plaintiffs, and left the defective part on the plaintiffs’ property. As we observed in Bound Brook Assn. v. Norwalk, supra, 198 Conn. 669, the “intensely public nature” of these repairs “cannot reasonably be construed as evidentiary of an intent to conceal the problems with the [septic system] and thus to delay the plaintiffs’ discovery of their cause of action.”

We recognize that we should not lightly overturn a trial court’s refusal to direct a verdict or to render judgment notwithstanding the verdict. In reviewing the trial court’s action, we must consider the evidence, including reasonable inferences that may be drawn therefrom, in the light most favorable to the parties who were successful at trial, giving particular weight to the “concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony . . . .” Chanosky v. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965). It would be improper for us to set the verdict aside and direct judgment unless we are firmly persuaded that the jury could not reasonably and legally have reached its conclusion. Bound Brook Assn. v. Norwalk, supra, 198 Conn. 667; Bleich v. Ortiz, 196 Conn. 498, 500-501, 493 A.2d 236 (1985); Labatt v. Grunewald, 182 Conn. 236, 240, 438 A.2d 85 (1980). Applying this stringent standard, we are convinced nonetheless on the basis of our examination of the record in this case, that the jury’s verdict cannot be sustained because the plaintiffs have failed, as a matter of law, to prove that any of the defendants fraudulently concealed the existence of the cause of action.

On the named defendant’s appeal, the judgment is reversed and the case is remanded with direction to render judgment in its favor; on the plaintiffs’ appeal, the judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 42-110b provides in relevant part: “UNFAIR trade practices prohibited, legislative intent, (a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

       General Statutes § 52-577 provides: “action founded upon a tort. No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”
      General Statutes § 52-584 provides in relevant part: “limitation of action for injury to person or property. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”
      General Statutes § 42-110g provides in relevant part: “action for damages. CLASS ACTIONS. COSTS AND FEES. EQUITABLE RELIEF, (a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper. . . .
      “(f) An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.”

       With respect to Woodcock and the town, the plaintiffs also argue that the liability of these defendants did not accrue until April, 1991, when the plaintiffs were ordered to correct their defective septic system. That argument is unsustainable in light of the particulars of counts seven, eight and nine of the complaint, as amended, which charge these defendants only with tortious failure to inspect or supervise the initial construction of the plaintiffs’ septic system. Although these counts incorporate by reference paragraph eleven of the first count, a charge of fraudulent concealment against all the defendants, we construe paragraph eleven as an invocation of General Statutes § 52-595 rather than as a new claim of subsequent misconduct.
      With respect to Jerry Gualazzi and Gene Gualazzi, the plaintiffs further argue that the trial court, Arena, J., improperly granted Jerry Gualazzi’s motion to strike portions of the plaintiffs’ fourth amended complaint dated July 14, 1993, improperly granted Gene Gualazzi’s motion for summary judgment, and improperly precluded the plaintiffs from filing further pleadings or amendments to their pleadings. The trial court’s decisions were premised on the plaintiffs’ failure to comply with the time constraints under the applicable statutes of limitations, and their failure to include in earlier pleadings any express allegation of fraudulent concealment to avoid the running of the statutes. The trial court precluded further pleadings by the plaintiffs on October 6, 1993, within days of the beginning of the trial.
      The plaintiffs’ convoluted briefing of these issues fails to persuade us that the trial court’s rulings were incorrect. Even if they were, however, any error would be harmless in the absence of any evidence of fraudulent concealment by these defendants. Although Jerry Gualazzi, as the actual installer of the septic system, may be charged with actual knowledge of defects in its construction, there is no evidence of misrepresentations on his part that were intended to delay the plaintiffs from timely pursuit of their cause of action.

       Because we conclude that the plaintiffs have failed to prove fraudulent concealment, we need not consider their contention that, despite our decision in Fichera v. Mine Hill Corp., 207 Conn. 204, 215-17, 541 A.2d 472 (1988), the statute of limitations contained in CUTPA; General Statutes § 42-110g (f); may be avoided by proof of such fraudulent concealment.

       The plaintiffs also advert to the fact that, during the construction of their home, they discovered water in their unfinished foundation and received assurances from Robert L. Day for the Day Company that this water was not a problem. They presented no evidence, however, to link this occurrence to the alleged deficiencies in the construction of their septic system. Even if such a linkage had been demonstrated, such assurances would not constitute clear and convincing evidence of fraudulent concealment. Evidence of a misrepresentation does not itself establish that a defendant “misrepresented those facts with the intent necessary to constitute fraudulent concealment. The actions of the defendant must be ‘directed to the very point of obtaining the delay of which he afterward seeks to take advantage by pleading the statute.’ Lippitt v. Ashley, [supra, 89 Conn. 480].” Connell v. Colwell, supra, 214 Conn. 251.

       General Statutes § 47-121 provides: “implied warranty with certificate of occupancy. Subject to the provisions of section 29-265, the issuance by the building department of any municipality of a certificate of occupancy for any newly constructed single-family dwelling shall carry an implied warranty to the purchaser of such dwelling from the vendor who constructed it that such vendor has complied with the building code or the customary application and interpretation of the building code of such municipality. No action shall be brought on such implied warranty but within three years next from the date of the issuance of such certificate of occupancy.” Although General Statutes § 47-120 provides that the warranty created by § 47-121 “shall be in addition to any other warranties created or implied by law,” the plaintiffs do not claim on appeal to have alleged either a breach of warranty or a breach of contract in their amended complaint.


author: Norcott, J.

text:
    State of Connecticut v. Che Carter State of Connecticut v. Norman Dillon
    (14934) (14958)
    Peters, C. J., and Callahan, Borden, Berdon and Norcott, Js.
    Argued January 12
    deciosion released April 4, 1995

      John R. Williams, for the appellant in the first case (defendant Che Carter).

      Susan M. Hankins, assistant public defender, for the appellant in the second case (defendant Norman Dillon).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were James Turcotte, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee in both cases (state).
   Norcott, J.

The sole issue in these certified appeals is whether the Appellate Court properly concluded that the defendants were not entitled to a jury instruction on the law of self-defense. The defendants, Che Carter and Norman Dillon, were convicted, after a joint jury trial, of murder in violation of General Statutes § 53a-54a (a). The defendants’ convictions were affirmed by the Appellate Court. State v. Carter, 34 Conn. App. 58, 640 A.2d 610 (1994); State v. Dillon, 34 Conn. App. 96, 640 A.2d 630 (1994). We granted certification to each of the defendants separately, limited to the issue of whether the trial court had improperly denied the defendants’ written requests to instruct the jury on self-defense. State v. Carter, 229 Conn. 919, 644 A.2d 915 (1994); State v. Dillon, 230 Conn. 906, 644 A. 2d 920 (1994). We conclude that, under the circumstances of these cases, each of the defendants was entitled to a self-defense instruction. We therefore reverse their convictions and remand the cases for a new trial.

The pertinent facts are set forth in the Appellate Court opinion in the case of Che Carter as follows. “On December 28, 1989, at about 3 p.m., Willie Peterson, John Peterson and Wilbert Cannon were passengers in a gray Jeep Cherokee being operated by Paul Darden and owned by Darden’s sister. The vehicle was traveling on Sylvan Avenue in New Haven. Cannon was armed with a Mac-11 gun, while Willie Peterson was armed with a .380 handgun. Darden stopped the vehicle at the corner of Asylum Street and Sylvan Avenue and John Peterson exited the car. He entered a corner store on the right side of the street and emerged approximately five minutes later. Cannon and Willie Peterson then exited the vehicle and began to walk up the left side of Asylum Street toward Davenport Street. Darden remained standing by the vehicle. Norman Dillon, Eric Bush, Paul Anderson, [Che Carter] and possibly one other person appeared in the middle of Asylum Street about fifteen feet from Cannon and Willie Peterson. Several members of that group had threatened Cannon and Willie Peterson in the past.

“Upon seeing the group, Willie Peterson and Cannon turned around and walked away. Gunshots rang out. The group then consisted of only three or four people, each of whom had a gun and was firing toward Cannon and Willie Peterson. The group firing at Willie Peterson and Cannon included the defendants] [Carter and Dillon]. Cannon turned around, pulled out his gun, fired about thirty shots toward the group and ran toward a field on the left side of the street while Willie Peterson ran toward John Peterson on the right side of the street. John Peterson observed Willie Peterson grab his back and fall to the ground, landing on top of his gun, which was cocked and in firing position. [Carter], Dillon and Bush ran up Asylum Street toward Davenport Street. Four males were also seen running down Davenport Street after the shooting.

“Paul Halloran, an emergency medical technician employed by the New Haven fire department, arrived at the shooting scene approximately three minutes later. He observed a black male lying face down on the sidewalk of Asylum Street approximately two houses from the corner of Sylvan Avenue. The person did not appear to be breathing. He also observed a stainless steel gun lying a few feet away from the body, which he believed was a nine millimeter or .380 automatic, and several shell casings. Halloran assessed the victim’s condition and found that the victim lacked vital signs. He then proceeded to remove the victim’s clothes to initiate CPR. At that time, Halloran noticed that the victim had suffered a gunshot wound to the back rib cage area. The victim was transported by ambulance to the Yale-New Haven Hospital. The victim lacked vital signs upon arrival at the hospital, and was pronounced dead.

“The New Haven police conducted an investigation at the scene and discovered on Asylum Street thirty-four nine millimeter shell casings, one .380 shell casing and one shell casing of unknown caliber. In addition, the police extracted one live round from the .380 handgun lying next to the victim. Twenty-six nine millimeter shell casings were located on the left side of Asylum Street near the comer of Sylvan Avenue. These casings were found in the same area as the single .380 caliber casing. Eight nine millimeter shell casings were found on the left side of Asylum Street closer to Davenport Street. These nine millimeter casings were found in the same area as the five .45 caliber casings.

“The next day, from a photographic array, John Peterson identified [Carter and Dillon] as being at the scene of the shooting. On December 30,1989, Cannon identified [Carter] as having been involved in the shooting of Willie Peterson.

“On December 29, 1989, H. Wayne Carver, chief medical examiner for the state of Connecticut, performed an autopsy on the victim. The autopsy revealed a gunshot wound in the back. It showed that the bullet entered the body at a forty-five degree angle from the left side and below the body, so that the trace of the bullet in the body followed an upward path from left to right, as if the victim was bending over when he was shot. The path of the bullet in the body also indicated that the shot was fired from behind the victim. The bullet followed a path through the eleventh rib, the lower half of the left lung, the sac around the heart, and passed by the right lung and lodged in the collar bone. It caused damage to the left lung, the upper chambers of the heart, the aorta, the pulmonary artery, the superior vena cava, bruised the right lung and partially fractured the clavicle. A .45 caliber bullet was removed from the victim’s body during the autopsy. The state forensic laboratory determined that that bullet had not been fired from Cannon’s nine millimeter gun or from Willie Peterson’s .380 caliber weapon. Although the autopsy revealed cocaine in the nose of the victim, it failed to reveal its presence in the victim’s blood.

“On January 4, 1990, Detective Anthony Dilullo of the New Haven police department interviewed Maria Diaz about the shooting. Diaz identified [Carter and Dillon] as [two] of the persons involved. She also told Dilullo that Carter was on the left side of the street during the shooting.

“On October 6,1990, Adam Luth, an Orange police officer, observed a green Saab on Route 1, Boston Post Road, in Orange. He noted that the vehicle displayed a rear marker plate, but lacked a front plate. Luth noted that there was a passenger in the car. The officer sought information about the vehicle from the department of motor vehicles. The department advised Luth that it had no information about the vehicle. The Saab pulled into a gas station on Boston Post Road and stopped. The officer approached the vehicle and asked the driver for his operator’s license, registration and insurance card. The operator identified himself as Carlos Carter. The officer checked his name with the dispatcher and was informed that there possibly was a warrant for the operator’s arrest. The officer then asked the passenger for identification. The passenger stated that he had no identification and that he was Harold Goldston. The officer then requested information from the dispatcher concerning Goldston. Luth returned to talk with the vehicle’s operator, who was pumping gas. The officer asked the operator the name of the passenger and the operator told the officer that the passenger was his brother Che. The officer then asked the passenger to exit the vehicle and asked him for his real name. The passenger said that his name was Che Carter. The dispatcher informed the officer that the arrest warrant was for Che Carter. The New Haven police department informed the Orange police that Che Carter had a round scar on the right forearm. The officer saw such a scar on the passenger’s right forearm. The Orange police then detained [Carter] until the New Haven police arrived. Dilullo came to the Orange police department and positively identified [Carter] as the person wanted for murder. The detective then placed [Carter] under arrest.” State v. Carter, supra, 34 Conn. App. 60-64; see also State v. Dillon, supra, 34 Conn. App. 98.

At trial, the defendants submitted written requests for a jury instruction on the issue of self-defense. The trial court rejected the defendants’ requests on the dual grounds that the defendants had presented no evidence at trial to support such an instruction, and that the requests were untimely because they did not comply with Practice Book § 853. The Appellate Court affirmed the trial court’s decision, concluding that “[o]n the basis of the evidence, a reasonable doubt in the mind of a rational juror that the defendants] acted in self-defense could not have been raised.” State v. Carter, supra, 34 Conn. App. 68, citing State v. Lewis, 220 Conn. 602, 619, 600 A.2d 1330 (1991).

The defendants, on appeal, claim that the Appellate Court improperly upheld the trial court’s failure to instruct the jury on the defense of self-defense. They argue that because they had adduced sufficient evidence at trial to warrant a self-defense instruction, their federal constitutional rights to due process of law required that the jury be informed of the availability and the elements of self-defense. We agree.

“ Tf the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction.’ State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). The defendant’s right to such an instruction is founded on the principles of due process. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Miller, 186 Conn. 654, 660-61, 443 A.2d 906 (1982); State v. Rosado, 178 Conn. 704, 707, 425 A.2d 108 (1979). Certainly, self-defense is a recognized legal defense. General Statutes § 53a-19; State v. Miller, supra, 661; State v. Rosado, supra, 708. Before an instruction is warranted, however, ‘[a] defendant bears the initial burden of producing sufficient evidence to inject self-defense into the case.’ State v. Bailey, 209 Conn. 322, 335, 551 A.2d 1206 (1988). To meet that burden, the evidence adduced at trial, whether by the state or the defense, must be sufficient to raise a reasonable doubt in the mind of a rational juror as to whether the defendant acted in self-defense. State v. Cassino, 188 Conn. 237, 243, 449 A.2d 154 (1982); State v. Folson, 10 Conn. App. 643, 647, 525 A.2d 126 (1987). Only when the issue has been sufficiently raised does the state ‘have the burden of disproving such defense beyond a reasonable doubt.’ General Statutes § 53a-12 (a); State v. Miller, supra, 661; State v. Gelormino, 24 Conn. App. 556, 561, 590 A.2d 476, cert. denied, 219 Conn. 911, 593 A.2d 136 (1991).” State v. Lewis, supra, 220 Conn. 618-19.

In order sufficiently to raise self-defense, a defendant must introduce evidence that the defendant reasonably believed his adversary’s unlawful violence to be “imminent” or “immediate.” W. LaFave & A. Scott, Handbook on Criminal Law (1972) § 53, p. 394. “Under General Statutes § 53a-19 (a), a person can, under appropriate circumstances, justifiably exercise repeated deadly force if he reasonably believes both that his attacker is using or about to use deadly force against him and that deadly force is necessary to repel such attack. State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427(1982). . . . The Connecticut test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the perspective of the defendant. Section 53a-19 (a) requires, however, that the defendant’s belief ultimately must be found to be reasonable.” State v. Dejesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984). Moreover, “[i]t is not the law . . . that the person who first uses physical force is necessarily the initial aggressor under § 53a-19 (c) (2).” State v. Jimenez, 228 Conn. 335, 340, 636 A.2d 782 (1994).

When we are called on to review a trial court’s refusal to give a self-defense instruction, “ ‘we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.’ ” State v. Lewis, supra, 220 Conn. 619, quoting State v. Havican, 213 Conn. 593, 595, 569 A.2d 1089 (1990). “[A] defendant is entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . .” (Internal quotation marks omitted.) State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). The defendants argue that although the Appellate Court properly enunciated this standard of review, it improperly applied this standard to the facts of their cases. Specifically, the defendants contend that the Appellate Court adopted a version of the facts most favorable to sustaining the verdict, treating the defendants’ claim as one of sufficiency of the evidence, rather than adopting a version of the facts most favorable to the defendants.

Throughout the course of the trial, an underlying issue was what and who had precipitated the violent encounter. By all the witnesses’ accounts, the scene that unfolded on the afternoon of December 28,1989, near the intersection of Sylvan Avenue and Asylum Street, was tantamount to a “Wild West” shoot-out. Although neither defendant testified, the jury heard divergent testimony detailing the confrontation between the two armed, hostile groups that resulted in gunfire and the fatal shooting of Willie Peterson. Darden and Cannon, both members of the victim’s group, stated that members of the defendants’ group had begun the shooting melee. John Peterson, also a member of the victim’s group, testified that at some point he saw Cannon reach for his Uzi-like Mac-11 weapon. Maria Diaz, the sole disinterested witness, could not identify the instigator. In addition, the jury reasonably could have inferred from the evidence that bad blood existed between the two groups and that the victim’s group had sought out the clash by driving around the neighborhood of the defendants’ group with semiautomatic weapons. The jury also could have concluded that the two armed groups were engaged in a volatile confrontation and that members of both groups believed that they were in imminent danger and that immediate defensive action was necessary and justified. Also, the evidence from the crime scene demonstrated that both groups participated in the barrage of gunfire and all of the witnesses testified that both sides retreated from the shooting.

Indeed, in recognition of the questions raised by the evidence presented at trial, the state and both defendants submitted written requests for a self-defense instruction and argued to the jury in summation concerning who was the initial aggressor. Moreover, the jury itself expressed concern as to the issue of self-defense by sending a note to the trial judge during deliberations asking whether the court had addressed the issue of self-defense in its charge, and if so, asking the court to repeat it. We have recognized that a request by a jury may be a significant indicator of their concern about evidence and issues important to their resolution of the case. See State v. Santiago, 224 Conn. 325, 334, 618 A.2d 32 (1992); State v. Moody, 214 Conn. 616, 629, 573 A.2d 716 (1990).

Adopting the version of the facts most favorable to the defendants, we conclude that there was, if believed, evidence sufficient to have raised a reasonable doubt in the mind of a rational juror as to whether the defendants acted in self-defense. State v. Lewis, supra, 220 Conn. 619. The evidence was not of such a nature that the jury needed to resort to speculation that the defendants reasonably believed that they had to act in self-defense. See State v. Belle, 215 Conn. 257, 275, 576 A.2d 139 (1990). Consequently, the question of self-defense should have been one for the jury ultimately to consider and resolve. We conclude, therefore, that the defendants were entitled to a jury instruction on self-defense, and that the trial court improperly refused to give such an instruction.

The judgments of the Appellate Court are reversed, and the cases are remanded to that court with direction that they be remanded to the trial court for a new trial.

In this opinion the other justices concurred.

       Because the defendants were tried together and both appeals involve the same issue, we resolve them together in one opinion. See Kolich v. Shugrue, 198 Conn. 322, 323 n.1, 502 A.2d 918 (1986); Woodbury Water Co. v. Public Utilities Commission, 174 Conn. 258, 259, 386 A.2d 232 (1978); State v. Crowe, 174 Conn. 129, 130-31, 384 A.2d 340 (1977); State v. DiLorenzo, 138 Conn. 281, 282, 83 A.2d 479 (1951).

       The defendants also were charged with conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a), but they were acquitted of these charges.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       “John Peterson testified that a Mac-11 is an Uzi. Cannon testified that the gun was an automatic weapon that holds thirty-six bullets.” State v. Carter, supra, 34 Conn. App. 60 n.4.

       “John Peterson testified that a .380 is a type of automatic handgun. Cannon testified that the gun held nine bullets.” State v. Carter, supra, 34 Conn. App. 60 n.5.

       “The prosecution elicited testimony that the first gunshots originated from the group of three or four. The defense elicited testimony from witnesses who did not know where the first gunshots originated.” State v. Carter, supra, 34 Conn. App. 61 n.6.

       “The testimony of Cannon indicated that one member of the group walked away before the shooting began.” State v. Carter, supra, 34 Conn. App. 61 n.7.

       “There also was testimony that a white BMW was slowly backing down Asylum Street toward Sylvan Avenue. None of the witnesses, however, testified that any gunshots were fired from the car.” State v. Carter, supra, 34 Conn. App. 61 n.8.

       The record reveals that Carter did not take exception to the trial court’s failure to give a self-defense instruction. Practice Book § 852, however, provides that “[t]he supreme court shall not be bound to consider error as to . . . the failure to give . . . an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing . . . .” (Emphasis added.) Because Carter submitted a written request to charge the jury on the issue of self-defense, his failure to take exception is of no consequence.

       Practice Book § 853 provides: “bequests to charge on specific claims
      “Written requests to charge the jury must be filed in triplicate with the clerk before the beginning of the arguments or at such earlier time during the trial as the court directs, and the clerk shall file them and forthwith hand one copy to the judicial authority and one to opposing counsel.”
      The Appellate Court declined to determine whether the trial court properly excluded the requested charge in light of the trial court’s conclusion that the defendants’ requests were untimely. State v. Carter, supra, 34 Conn. App. 64-65. Initially, we note that the state does not argue that the alleged untimeliness of the defendants’ requests to charge on self-defense constitutes a valid alternative ground for affirming the decision of the Appellate Court. See, e.g., Practice Book § 4140 (c); Quire v. Stamford, 231 Conn. 370, 377 n.7, 650 A.2d 535 (1994). Moreover, it is clear that the court was apprised of the parties’ concern regarding this instruction. Not only did the state file a timely request for the self-defense instruction, but the issue was also addressed by all parties in closing arguments. Because the trial court was fully aware of the self-defense issue in advance of preparing its charge to the jury, we conclude, on the basis of this record, that the defendants’ failure to make a timely request was not a valid reason for excluding the jury charge.

       Self-defense is defined in General Statutes § 53a-19, which provides: “use of physical force in defense of person, (a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”

       Given that this often conflicting testimony came from two participants, both of whom were reluctant to testify, and who had an interest in the outcome, the jury rationally could have discounted this testimony. For example, many of these witnesses’ statements were introduced by virtue of prior inconsistent statements made to the police or at earlier probable cause hearings. Indeed, in order to secure Darden’s testimony, he had to be arrested, held as a material witness and brought to court against his will.

       John Peterson’s testimony on cross-examination in this regard was as follows:
      “[The State]: What did Wilbert Cannon do during this time? . . . During the time of the shooting.
      “[The Witness]: He was running through a field when I seen him.
      “Q. You said that you had seen him pull his gun?
      “A. He was running through the field.
      “Q. All right. But earlier today you said that you saw him pull his gun?
      “A. Yes.
      “Q. At what point did he pull his gun?
      “A. I can’t recall that, I don’t know at what point in time when he pulled his gun, I know he was reaching. When I looked up and turned around, whatever happened, he was running through the field.
      “Q. You said he was reaching. Did you indicate his waistband?

        “A. He was reaching.
      “Q. He was reaching, was he reaching while on the sidewalk, while on the field, or what?
      “A. He was reaching when he was on the sidewalk.”

       In viewing evidence that could yield contrary inferences, “[t]he rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991); see also State v. Sauris, 227 Conn. 389, 399-400, 631 A.2d 238 (1993).

       Evidence adduced at trial suggested that the defendants had threatened members of the victim’s group. Cannon testified that Carter had stated, prior to this confrontation, that “he was going to get me.” Later, Cannon added that Carter meant that he was going to get “all of you” (victim’s group of friends). Cannon further testified that he perceived that his group was threatened by the presence of the defendants’ group at the time of the shooting.

       According to Cannon’s testimony, he, John Peterson, Darden and the victim drove around for approximately four hours before ending up at Sylvan Avenue and Asylum Street to buy candy and to look for an unidentified woman named “Rachel.” In addition, Benjamin Evans testified that he had seen Darden and John Peterson riding around the neighborhood for forty-five minutes to one hour.

       At least two members of the victim’s group, Cannon and the victim, were armed with semiautomatic weapons that were displayed in their waistbands.

       In light of Cannon’s testimony that he was cognizant of Carter’s threat against his group and that he was armed with a semiautomatic weapon when they confronted the defendants’ group, a rational jury could have rejected Cannon’s testimony that he turned his back on the group and walked away. Instead, the jury could have drawn the reasonable inference that Cannon and his group were the aggressors, and that the defendants justifiably retaliated.

       For example, Cannon fired in excess of thirty rounds and the victim was found with a .380 Bursa semiautomatic handgun, “cocked and in the firing position,” and an expired shell from that gun next to his body.

       The second question of the bifurcated request from the jury is as follows: “Did you address the issue of self-defense, and if so, please repeat?”


author: Callahan, J.

text:
    Gerald Devlin v. Gloria Maddox Wiener et al.
    (15010)
    Peters, C. J., and Callahan, Berdon, Norcott and Katz, Js.
    Argued January 11
    decision released April 4, 1995

      John C. Heffernan, with whom, on the brief, was James M.S. Ullman, for the appellant (named defendant).

      Robert T. Harrington, for the appellee (plaintiff).
   Callahan, J.

This appeal requires us to determine whether a mortgage deed and the underlying obligation that the deed purports to secure are sufficiently definite to sustain the plaintiff’s foreclosure action. The trial court concluded that a debt is owed the plaintiff and that the debt is secured by a valid mortgage. We agree.

The record reveals the following facts. The plaintiff, Gerald Devlin, owned a nine acre parcel of real estate in Branford, on which his residence was located. The defendants Pine Orchard Associates, Inc., and Pine Orchard Development Corporation (collectively, Pine Orchard), sought to acquire and then subdivide the plaintiff’s land. On February 18,1984, the plaintiff executed a written contract to sell the nine acre parcel and his residence to Pine Orchard. The agreement entered into by the parties, although convoluted, essentially provided that the plaintiff would convey his interest in his Branford real estate to Pine Orchard for a cash payment of $86,000 and a promise by Pine Orchard either (1) to convey to the plaintiff a finished three bedroom condominium, cooperative apartment unit or single-family residence in the planned subdivision, or (2) to transfer to the plaintiff a building lot in the planned subdivision together with sufficient building materials for the plaintiff to erect a three bedroom single-family residence on the lot, or (3) to return to the plaintiff his Branford residence together with one half of one acre of land. The agreement farther provided that, as security for Pine Orchard’s additional promise, Pine Orchard would mortgage the transferred property back to the plaintiff. Finally, the agreement provided that the mortgage would secure a debt of Pine Orchard to the plaintiff in the amount of $84,000. The $86,000 was paid to the plaintiff at the time of the closing and, as required by the agreement, was used to extinguish an existing first mortgage held by the Branford Savings Bank. No other consideration has been paid to the plaintiff.

On February 29, 1984, the plaintiff conveyed his interest in the Branford real estate to Pine Orchard Development Corporation and, on the same date, that defendant mortgaged the same real estate to the plaintiff in accordance with paragraph twenty-nine of the purchase and sale agreement. Daniel J. Wiener executed the mortgage instrument in his capacity as president of the corporation. The mortgage deed expressly stated that it was given to secure the obligation of Pine Orchard to “transfer certain properties” to the plaintiff pursuant to “a contract dated February 18, 1984.” Although the deed itself was silent as to the amount of the secured debt, paragraph twenty-nine of the purchase and sale agreement specifically indicated that the mortgage was to secure an obligation of the corporation in the amount of $84,000.

On July 8,1985, Pine Orchard Development Corporation conveyed all of its interest in the Branford property to Pine Orchard Development Associates, a partnership in which Daniel J. Wiener was a general partner. Thereafter, Pine Orchard Development Associates transferred the property to Daniel J. Wiener and Gloria Maddox Wiener, jointly as husband and wife with a right of survivorship. On April 13, 1990, Daniel J. Wiener transferred his interest in the Bran-ford property, by quitclaim deed for no consideration, to his wife, the named defendant, Gloria Maddox Wiener.

On January 31, 1992, the plaintiff filed suit against Pine Orchard Associates, Inc., Pine Orchard Development Corporation and Gloria Maddox Wiener for foreclosure of his mortgage, claiming that the defendants’ obligation to the plaintiff, as set forth in the February 18,1984 purchase and sale agreement and as secured by the mortgage deed given by Pine Orchard Development Corporation to the plaintiff on February 29,1984, was in default. The named defendant filed an answer and various special defenses, including the defense that the “Mortgage Deed does not refer to a ‘Mortgage Note’ and fails to define any other obligation or debt in sufficient detail,” and therefore does not secure an enforceable obligation.

After a hearing, the trial court concluded that “[a]s between the parties . . . there is an indebtedness due to the plaintiff on the mortgage in the amount of $84,000. While the defendants have cited deficiencies in the document in question, the court notes that . . . the document is susceptible to ‘a reasonable and precise interpretation.’ . . . The court finds there is an underlying obligation due to the plaintiff in the amount of $84,000.00 and that this amount is secured by a valid mortgage.” Thereafter, on motion by the plaintiff, the trial court ordered a foreclosure by sale and rendered judgment accordingly. The named defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

On appeal, the named defendant claims only that the trial court improperly concluded that the mortgage deed and the obligation purportedly secured by the mortgage deed were sufficiently definite to sustain the plaintiff’s foreclosure action. At the outset, the named defendant challenges the trial court's finding that she was a party, or in privity with a party, to the mortgage transaction. She claims, therefore, that the trial court improperly applied the law governing the enforceability of mortgages between parties to the mortgage, instead of applying the law governing the enforceability of mortgages between mortgagees and nonparties. Moreover, the named defendant claims that the mortgage deed is invalid because it does not secure a note, but rather, the performance of affirmative acts by Pine Orchard under the February 18,1984 purchase and sale agreement, and because the deed does not recite the specific amount of the debt allegedly owed. Finally, the named defendant contends that the obligation contained in paragraph twenty-eight of the purchase and sale agreement is insufficient because it is too indefinite as to time for performance, subject matter and method of performance. We conclude that the mortgage is sufficiently definite as to be enforceable against the named defendant even if she is properly viewed as a third party, and we therefore affirm the judgment of the trial court.

We begin by reviewing the well established common law governing the sufficiency of mortgage deeds as between a mortgagee and a nonparty to the mortgage. “In [Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 578-79, 522 A.2d 763 (1987)], we stated that the dis-positive question in examining the validity of a mortgage is whether it provides ‘reasonable notice’ to third parties of the obligation that is secured. . . . The purpose of such ‘reasonable notice’ is to prevent parties that are not privy to the transaction from being defrauded or misled. ... A corollary of this proposition is that errors and omissions in the recorded mortgage that would not mislead a title searcher as to the true nature of the secured obligation do not affect the validity of the mortgage against third parties. ... In other words, the recorded mortgage deed does not need to recite with particularity all of the details of the underlying transaction. . . .

“In Dart & Bogue Co. [v. Slosberg, supra, 202 Conn. 579], we defined ‘reasonable notice’ as notice of the nature and amount of the encumbrance which the mortgagor intends to place upon the land. . . . The ‘nature’ of a secured debt includes such fundamental characteristics as whether the debt is absolute or contingent, liquidated or unliquidated, or whether it is given to secure an existing liability or future advances. . . . The ‘amount’ of the debt is the dollar value of the obligation secured, to the extent that it can be ascertained at the time the mortgage is executed. If the debt cannot be definitively ascertained at that time, such data must be set out with respect to that debt as will put anyone interested in the inquiry upon a track leading to discovery. . . . Significantly, in Dart & Bogue Co. [v. Slosberg, supra, 580], we recognized that [t]he record is the starting point for inquiry, not . . . the starting and ending point. ... In sum, if a party is able by common prudence and by the exercise of ordinary diligence, [to] ascertain the extent of the encumbrance from information set out in the land records, then the mortgage is valid.” (Citations omitted; internal quotation marks omitted.) Connecticut National Bank v. Esposito, 210 Conn. 221, 227-28, 554 A.2d 735 (1989).

We initially note that we will not declare the mortgage deed invalid, as the named defendant urges us to do, simply because the deed itself lacks a statement of the specific amount of the debt secured. As in Esposito, the deed in the present case omits “documents that contain important details about the obligation but the existence of which documents [is] expressly referred to in the recorded mortgage deed. The mortgage deed does not affirmatively misidentify the characteristics of the obligation, thus leading a title searcher to believe that the obligation is something that it is not, nor does the omission of the documents leave a title searcher without any indication of the obligation’s nature or without a reasonable direction to discover the terms of the mortgage.” Id., 230. In fact, the mortgage deed expressly states that the obligation secured is set forth in the February 18,1984 purchase and sale agreement between the plaintiff and Pine Orchard Associates, Inc., and further states that the agreement is on file at the office of the attorney for Pine Orchard. Thus, because the mortgage deed sufficiently puts a title searcher on notice of the location of the underlying agreement that contains the substance of the secured debt, the efficacy of the mortgage deed may be determined by analyzing the sufficiency of the underlying agreement.

Moreover, the mortgage deed is not invalid simply because it purports to secure a “performance” instead of a stated monetary obligation. “The condition of a mortgage may be the payment of a debt, the indemnity of a surety, or the doing or not doing any other act. Cook v. Bartholomew, 60 Conn. 24, 25, 22 A. 444 (1891); see State v. Hurlburt, 82 Conn. 232, 236, 72 A. 1079 (1909); Jarvis v. Woodruff, 22 Conn. 546, 550-51 (1853); Gagan v. Leary, 14 Conn. Sup. 468, 470 (1946); see also 9 G. Thompson, Real Property (Grimes 1958) § 4659, p. 32.” (Internal quotation marks omitted.) Connecticut National Bank v. Esposito, supra, 210 Conn. 225-26. Thus, if we determine that the underlying agreement contains a sufficiently definite obligation, whether that obligation be for the payment of a specific dollar amount or for the performance of some act, we may also determine that the mortgage deed is adequate to sustain the plaintiffs foreclosure action.

We now turn to the parties’ February 18, 1984 purchase and sale agreement. Although the named defendant contends that the agreement is insufficient to support the mortgage deed at issue because the obligation contained in paragraph twenty-eight is too indefinite as to time for performance, subject matter and method of performance, the trial court, after viewing all of the evidence, concluded otherwise. On appeal, we are limited to determining whether this legal conclusion finds support in the record and is “legally and logically correct.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); see also RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384-85, 650 A.2d 153 (1994).

The trial court concluded that paragraph twenty-eight of the parties’ purchase and sale agreement creates an obligation due the plaintiff in the amount of $84,000. Our review of the various subsections to paragraph twenty-eight of the original agreement, which was made a trial exhibit by the plaintiff, reveals that Pine Orchard agreed to compensate the plaintiff for the Branford property, in addition to the $86,000 payment made to extinguish the existing encumbrance, by one of three alternate methods. First, under paragraph twenty-eight (a) Pine Orchard could have chosen to return to the plaintiff his Branford residence together with one half of one acre of land. Second, under paragraph twenty-eight (a) (i), Pine Orchard could have chosen to transfer to the plaintiff a building lot together with sufficient building materials for the plaintiff to erect a three-bedroom single-family residence on the lot. Third, under paragraph twenty-eight (a) (ii), Pine Orchard could have chosen to convey to the plaintiff a finished three bedroom condominium, cooperative apartment unit or single-family residence in the subdivision that the defendants planned to construct on the Branford property. We further note that paragraph twenty-nine of the agreement provides that, as security for Pine Orchard’s obligations to the plaintiff under paragraph twenty-eight, Pine Orchard granted the plaintiff a mortgage interest in the Branford property in the amount of $84,000.

Our review of the agreement between the plaintiff and Pine Orchard, which was part of the record before the trial court, persuades us to conclude that the trial court properly found that Pine Orchard Development Corporation had executed a mortgage securing a debt to the plaintiff in the amount of $84,000. Although the named defendant claims that the agreement is insufficient because it does not specify a time for performance, we note that both subsections (a) and (b) of paragraph twenty-eight of the agreement refer to a requirement that any conveyance to the plaintiff be made within two years from the date of closing. Likewise, although the named defendant contends that the method of performance and the subject matter constituting the substance of the agreement are not sufficiently specified, the parties specifically agreed that each of the three options that Pine Orchard could have chosen to satisfy its obligation to the plaintiff had a value of $84,000. Thus, we conclude that the trial court’s determination that there is an underlying obligation owed the plaintiff in the amount of $84,000, and that this amount is secured by a valid mortgage, is supported by the record and is “legally and logically correct.” Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 181 Conn. 221-22.

The judgment of the trial court is affirmed and the case is remanded to that court to set new law days and to order appropriate notice.

In this opinion the other justices concurred.

       The relevant facts were presented to the trial court entirely through stipulations and exhibits.

       The defendants have conceded that Pine Orchard Associates, Inc., and Pine Orchard Development Corporation may be considered the same entity for the purposes of the transactions underlying this appeal.

       The document itself, which was fashioned by the parties without the aid of counsel, is several pages in length and contains various crossouts, insertions and initialed modifications. As aptly noted by the trial court, the agreement “graphically demonstrates the potential for disaster in documents prepared by laypersons without the assistance of lawyers.”

       Paragraph twenty-nine of the purchase and sale agreement provided in relevant part that “[a]s security for Purchaser’s obligations to Seller under Paragraph ‘28’, above, Purchaser shall . . . grant to Seller a second mortgage ... on the Premises in the amount of $84,000.00 . . . .”

       We therefore need not decide whether the trial court improperly found that the named defendant was a party, or in privity with a party, to the mortgage.