author: Per Curiam.

text:
    State of Connecticut v. Ralph D. Byrd
    (14966)
    Peters, C. J., and Callahan, Berdon, Norcott and Katz, Js.
    Argued March 15
    decision released June 20, 1995

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom were Margaret Gaffney Radionovas, assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, and Robert Brunetti, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant, Ralph Byrd, was convicted, after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l). He appealed from the trial court’s judgment to the Appellate Court. The Appellate Court affirmed the judgment of the trial court. State v. Byrd, 34 Conn. App. 368, 385, 641 A.2d 818 (1994). We granted the defendant’s petition for certification to consider whether the Appellate Court properly had concluded that: (1) the statutes governing the use of deadly physical force in self-defense had not incorporated any formerly existing common law right to kill in defense of a robbery; (2) the defendant’s statement, given shortly after he had exhibited signs of physical illness and at a time when he had been emotionally upset, had not been involuntary within the meaning of the due process clause of the fourteenth amendment to the United States constitution as expounded in Colorado v. Con-nelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); and (3) the record had been inadequate, pursuant to State v. Medina, 228 Conn. 281, 636 A.2d 351 (1994), to permit review of the defendant’s claim that his statement had been given involuntarily in violation of article first, § 8, of the Connecticut constitution. State v. Byrd, 230 Conn. 909, 645 A.2d 1016 (1994). We also agreed to consider whether, if the record was adequate to permit review of this state constitutional claim, the Appellate Court should have concluded that the remaining prongs of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), had been satisfied and that the defendant’s statements should have been excluded under the state constitution. Id. We affirm the judgment of the Appellate Court in part and remand this case to the trial court for an articulation.

The opinion of the Appellate Court fully describes the underlying facts of this case. State v. Byrd, supra, 34 Conn. App. 369-70, 377-79. They may be summarized briefly as follows. The defendant, his brother (victim) and another individual were involved in the sale of narcotics. The defendant had obtained forty vials of crack cocaine for their personal use and for sale to others. On the evening of the victim’s death, while the defendant and the victim argued about how the drugs should be shared, the victim grabbed the drugs and put them in his pocket. The defendant attempted to stop the victim from leaving the premises and, in the ensuing struggle, fatally stabbed the victim in the back. The defendant then left the scene. Later, he turned himself in to the police.

At the police station, the defendant encountered members of his family and, upon hearing that his brother had died of the stab wounds, became very emotional. He repeatedly stated, “I killed my brother, my life is over.” Thereafter, the defendant, crying and retching, was escorted into an interrogation room. He was given a towel and permitted to calm down for approximately one-half hour. Thereafter, the defendant was advised of his Miranda rights, and he gave a detailed narrative of the events that had occurred. A detective typed the statement while the defendant spoke, and the defendant later read the typed version, confirmed that it was accurate, and signed it. Prior to trial, however, the defendant moved to suppress the statement, arguing that he had not knowingly and voluntarily waived his Miranda rights and that the statement had not been voluntarily given. Following a hearing, the trial court found that the defendant had not knowingly and voluntarily waived his Miranda rights but that the statement itself had been voluntary. The trial court therefore granted the defendant’s motion to suppress the statement. The state was allowed, however, to admit the defendant’s statement for impeachment purposes after he had testified on his own behalf.

I

The defendant first claims that the Appellate Court improperly determined that the common law privilege that a victim of a robbery need not retreat unless and until he has secured himself from all danger had been extinguished by General Statutes § 53a-19 (b) (l). The defendant argues that “in circumstances where [a robbery victim] believes that he is in imminent danger of great bodily harm, [he] is not obliged to retreat but has the right to defend himself even to the extent of taking his assailant’s life . . . .” The Appellate Court rejected this claim, reasoning that “our statutory scheme requires retreat in lieu of using deadly force, except in certain delineated circumstances. . . . The underlying policy of the duty to retreat is that the protection of human life has a higher place in the scheme of social values than the value that inheres in standing up to an aggression.” (Citations omitted; internal quotation marks omitted.) State v. Byrd, supra, 34 Conn. App. 374-75.

The defendant next claims that the Appellate Court improperly concluded that under Colorado v. Connelly, supra, 479 U.S. 167, “ ‘coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment’ [to the United States constitution] even though the admissions may have been made by the defendant when he was mentally ill.” State v. Byrd, supra, 34 Conn. App. 379. The Appellate Court concluded that “[t]he emotional state of the defendant and physical illness did not render the statement involuntary under Colorado v. Connelly, supra, 167.” Id., 380.

After considering the briefs and arguments of the parties and examining the record on appeal, we conclude that the judgment of the Appellate Court with respect to these issues is correct and must be affirmed. These issues were properly resolved in the Appellate Court’s thoughtful, comprehensive and unanimous opinion. Id., 374-80. It would serve no useful purpose for this court to repeat the discussion contained therein. See Reichert v. Sheridan, 233 Conn. 251, 253, 658 A.2d 96 (1995); Talton v. Warden, 231 Conn. 274, 275-76, 648 A.2d 876 (1994); State v. Jacobson, 229 Conn. 824, 828, 644 A.2d 331 (1994); Board of Education v. State Board of Education, 228 Conn. 433, 436, 636 A.2d 378 (1994).

II

The defendant’s next claim is that the Appellate Court improperly applied State v. Medina, supra, 228 Conn. 281, when it concluded that the record “lack[ed] sufficient factual findings to which we might apply any newly articulated state constitutional standard.” State v. Byrd, supra, 34 Conn. App. 382. The defendant argues that the trial court made the necessary predicate factual findings to determine the voluntariness of the defendant’s statement under the state constitution and consequently the record was sufficiently complete for the Appellate Court to review the issue. In this connection, the defendant urges us to reject the standard set forth in Colorado v. Connelly, supra, 479 U.S. 157, and to adopt the test for voluntariness stated in State v. Smith, 200 Conn. 465, 475-77, 512 A.2d 189 (1986). In Smith, we concluded that coercive police misconduct was not an essential predicate to a finding that a statement was involuntary. Id. We reasoned that “[sjtate action enters the picture . . . when a trial court permits the prosecution at a jury trial to utilize as evidence of guilt a confession which is extracted under circumstances that so overbear the individual’s will as to render the statement involuntary, that is not the product of a rational intellect and a free will.” (Internal quotation marks omitted.) Id., 477. Although Smith was decided pursuant to the federal constitution, the defendant asks us to adopt the test for voluntariness stated therein as a protection afforded criminal defendants under the state constitution.

We conclude that the trial court’s ruling with respect to the voluntariness is unclear as to whether it applied the test set forth in Colorado v. Connelly supra, 479 U.S. 157, or whether it made its factual finding under the broader test outlined in State v. Smith, supra, 200 Conn. 477. In order to evaluate fully the defendant’s state constitutional claim, it is essential that the trial court clarify its factual finding in this regard. “Where necessary to the proper disposition of the cause, this court may remand the case for a further articulation of the basis of the trial court’s decision.” State v. Almeda, 189 Conn. 303, 314, 455 A.2d 1326 (1983). Accordingly, we remand this case to the trial court for the purpose of articulating whether it found the defendant’s statement to be voluntary because of the absence of police misconduct, or on the basis of the totality of the circumstances. If the trial court found voluntariness on the basis of the totality of the circumstances, then it should articulate specifically what facts it relied upon in making that finding.

The judgment of the Appellate Court is affirmed in part and the case is remanded to that court with direction to remand to the trial court for articulation in accordance with this opinion.

       General Statutes § 53a-55 (a) (1) provides: “(a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person.”
      The jury found the defendant guilty of manslaughter in the first degree as a lesser included offense of the charge of murder in violation of General Statutes § 53a-54a (a). Section 53a-54a provides in relevant part: “murder. (a) 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.”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       General Statutes § 53a-19 provides in pertinent part: “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.”

       The trial court, after a full hearing on a motion to suppress the defendant’s statement, ruled on the voluntariness of the defendant’s statement from the bench as follows: “The Court is unable to reach the conclusion that there was [a knowing and voluntary waiver of the constitutional rights set forth in Miranda v. Arizona, supra, 384 U.S. 436], I will say that I am particularly troubled by the taking of the defendant’s confession at a time when he was, obviously, emotionally and physically unwell.
      “Certainly, he was in custody subject already to arrest on some other charge and it would seem that prudence would dictate that the statement would be deferred to a later hour.
      “I don’t condemn the police for their activities insofar as any affirmative conduct by the police. I do not find that the defendant’s voluntariness was affected and, I refer to the matter of any threats or promises or a long period of grueling interrogation. The record does not reflect that that occurred.
      “But, I cannot find on the evidence in the context of what occurred at the time in question, that the defendant effectively waived his Miranda rights. In short, I am unable to reach the conclusion that under all of the circumstances that pertained, that the State has sustained its burden and, therefore, the Motion to Suppress is granted.”

       The defendant’s fourth claim is that the Appellate Court should have determined the remaining prongs of State v. Golding, supra, 213 Conn. 239-40. Our remand in this case obviates the need for deciding this issue at this time.


source: Caselaw Access Project

license: Public Domain

text:
    Dagmar Sarno, Conservatrix (Estate of Tracy Sarno) v. John Whalen et al.
    (15050)
    Peters, C. J., and Callahan, Borden, Katz and Palmer, Js.
    Argued May 24
    decision released June 20, 1995

      Henry Lyons III, with whom was James H. Lee, for the appellant (plaintiff).

      Barbara Brazzel-Massaro, associate city attorney, with whom, on the brief, was John H. Barton, city attorney, for the appellees (named defendant et al.).

      Mary-Michelle U. Hirschoff filed a brief for the Connecticut Conference of Municipalities et al. as amici curiae.
   Per Curiam.

In this personal injury action, the plaintiff, Dagmar Sarno, conservatrix for Tracy Sarno, asks us to reconsider Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982), in which this court held that a police officer has no duty to exercise his or her discretionary authority to detain an inebriated driver in order to protect members of the motoring public. In her complaint, the plaintiff alleged that the defendant police officers, John Whalen and Alfonso Sneed, negligently had failed to detain a drunk driver, the defendant Armando Perez, thereby causing Tracy Sarno to sustain injuries in a subsequent collision between her vehicle and a vehicle driven by Perez. The trial court granted the motion for summary judgment filed by Whalen, Sneed and the defendant city of Bridgeport (defendants). The plaintiff 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). We affirm.

The plaintiff maintains that developments in our statutory and case law subsequent to Shore make it appropriate for us to reconsider the merits of that decision. See General Statutes §§ 14-227a (operation of motor vehicle while under the influence), 52-557n (liability of political subdivision and its employees, officers and agents); Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994) (examining duty of superintendent of public schools to maintain safe school grounds); Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 544 A.2d 1185 (1988) (examining duty of public housing authority to maintain safe housing). Even if we were to declare that the defendants had some duty to the plaintiff, however, any such duty would not be broad enough to result in liability in the circumstances of this case. We therefore defer any possible reconsideration of Shore to another day.

The opinion in Shore recites the following facts. “On January 14, 1980, at approximately 10:40 p.m., Lieutenant Edward Sylvia, a police officer of the town of Stonington, was engaged in the performance of his duties as a shift supervisor. As Sylvia proceeded east on Route One in Stonington, he observed a green Pontiac automobile on the same highway heading in a westerly direction at a fast rate of speed. Sylvia turned his cruiser around and proceeded to follow the Pontiac. He observed the vehicle cross the center line of the highway a few times and then pull into the parking lot of the defendant Veterans of Foreign Wars, Harley P. Chase Post 1265 (hereinafter V.F.W.).

“Sylvia followed the vehicle into the lot, got out of his cruiser, and approached the driver, later identified as Mark Cugini. When the officer asked Cugini where he was going in such a hurry, Cugini replied that he was there to pick up his girlfriend at the V.F.W. Sylvia informed him that if he wanted to keep his driver’s license, he had better slow down and should let his girlfriend drive. The officer departed for other duties. Cugini entered the V.F.W. The evidence concerning his condition of sobriety as he entered the V.F.W., considered in the light most favorable to the plaintiff, could reasonably lead to a conclusion that he was under the influence of intoxicating liquor or drugs. Cugini did not drink at the V.F.W. After a short conversation with one of its patrons, he left and drove away in the green Pontiac.

“Subsequently that evening at about 11:30 p.m., Cugini, driving along Route 78 in Westerly, Rhode Island, at a high rate of speed, struck a vehicle being operated by the plaintiff’s decedent, Sherry Shore. Mrs. Shore died from the injuries suffered as a result of the collision.” Shore v. Stonington, supra, 187 Conn. 150-51.

The trial court in this case had before it a substantially different factual record. The affidavits accompanying the motion for summary judgment reveal that, during the early morning hours of November 3, 1991, Whalen, a Bridgeport police officer, observed a van that was parked on Fairfield Avenue, about three feet from the curb. He spoke to Perez, the man who was sitting behind the wheel of the car, with the motor off. Whalen detected an odor of alcohol and learned that Perez, at some time during the previous evening, had had a “couple of beers.” Although Perez did not appear intoxicated, Whalen concluded that he was possibly impaired. When Perez’ wife appeared on the scene, she showed Whalen her driver’s license and told him that she knew how to drive the van. Whalen then directed her to drive the van away and observed her doing so, with Perez in the passenger seat. A short time thereafter, Tracy Sarno was injured as the result of an automobile accident in which her car allegedly was hit by a van driven by Perez.

Unlike Shore, the factual record in this case establishes that officer Whalen: (1) did not observe Perez driving his van; and (2) did not leave the scene, after having determined that Perez was possibly impaired, without first directing someone other than Perez to drive the van away and observing that person doing so. These distinguishing facts persuade us not to reexamine the merits of Shore at this time.

The judgment is affirmed.

       The plaintiff alleged that the city of Bridgeport, the employer of Whalen and Sneed, was vicariously liable for their negligence.

       The plaintiffs cause of action against Perez has not yet been resolved.


text:
    State of Connecticut v. Andrew Robins
    (15046)
    Peters, C. J., and Borden, Berdon, Norcott and Katz, Js.
    Argued May 25
    decision released June 20, 1995

      Neal Cone, assistant public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Barbara Nelson, former assistant state’s attorney, for the appellee (state).
   Per Curiam.

The sole issue in this certified criminal appeal is whether an applicant for welfare benefits who fails to disclose income and assets in his welfare application can be convicted of larceny in the first degree in violation of General Statutes § 53a-122 (a) (4) and General Statutes (Rev. to 1989) § 53a-119, without proof by the state that he received welfare assistance to which he was not entitled. After a jury trial, the defendant, Andrew Robins, was found guilty of larceny in the first degree and of making a false statement in violation of General Statutes (Rev. to 1989) § 53a-157 (a). The trial court denied his motion for acquittal and rendered a judgment of conviction. The Appellate Court concluded that there was no merit to the defendant’s claim of insufficient evidence to convict, but remanded the case for further proceedings to determine the harmfulness of an improper instruction. State v. Robins, 34 Conn. App. 694, 707, 643 A.2d 881 (1994). We granted the defendant’s petition for certification insofar as it raised an issue about the elements of the crime of larceny under the statute.

The opinion of the Appellate Court states the facts that the jury could reasonably have found. When the defendant applied for welfare assistance from the town of Fairfield, he was informed that he was required to declare all of his assets, and that failure to do so could result in penalties. In light of the defendant’s representations, he was granted welfare assistance. In several respects, the defendant’s application misrepresented his assets.

Although he initially indicated to his caseworker that he had a bank account at the Connecticut National Bank, he subsequently reported that the bank account had been closed sometime between three and six months earlier. Upon that representation, the caseworker checked off the “no” column that referred to bank accounts and wrote “Bank closed it 3-6 months ago.” A subsequent inquiry to the Connecticut National Bank disclosed that the defendant then had an active account with a current balance of $702.03, and that, at the time of his welfare application, the defendant’s account had had abalance of $3336. At a “redetermination” meeting with his caseworker, the defendant indicated that the money had come from an insurance settlement on a fire in his home. Unless the defendant could establish that the money had come from this source and had been spent to replace losses resulting from a fire, the undisclosed bank account balance would have made the defendant ineligible for assistance. The defendant was asked to provide verification, but he was unable to do so. In his welfare application, the defendant also failed to disclose other assets, including a money order and a car to which he held title.

Throughout the investigation of the defendant’s eligibility, he continued to receive assistance from the town. That assistance ceased only when the defendant subsequently qualified for social security and state supplemental assistance. State v. Robins, supra, 34 Conn. App. 696-98.

The Appellate Court concluded that this evidence was sufficient to sustain the defendant’s conviction of larceny for having defrauded the town of Fairfield of property exceeding $2000 in value. See General Statutes § 53a-122 (a) (4) and General Statutes (Rev. to 1989) § 53a-119. The court focused on the plain language of § 53a-119 (6) (1), which imposes criminal liability on any person who “files a claim for benefits or reimbursement from a local . . . agency which he knows is false . . . .’’It concluded that the legislature had intentionally omitted from the statute any requirement for the state to prove that, as a result of the defendant’s misrepresentation, he had obtained benefits to which he was not entitled. State v. Robins, supra, 34 Conn. App. 700.

After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court must be affirmed. The issue on which we granted certification was properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained. See Reichert v. Sheridan, 233 Conn. 251, 253, 658 A.2d 96 (1995); Talton v. Warden, 231 Conn. 274, 275-76, 648 A.2d 876 (1994); State v. Leonard, 210 Conn. 480, 481, 556 A.2d 611 (1989).

The judgment is affirmed.

       General Statutes (Rev. to 1989) § 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 includes, but is not limited to . . . (6) Defrauding of public community. A person is guilty of defrauding a public community who (1) authorizes, certifies, attests or files a claim for benefits or reimbursement from a local, state or federal agency which he knows is false . . . .”
      Section 53a-119 (6) (1) through (3) are now codified at § 53a-119 (6) (A) through (C).
      General Statutes § 53a-122 provides in relevant part: “larceny in the first degree: class b felony, (a) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars. . . .”

       General Statutes (Rev. to 1989) § 53a-157 provides in relevant part: “false statement: class a misdemeanor, (a) A person is guilty of false statement when he intentionally makes a false written statement under oath or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable, which he does not believe to be true and which statement is intended to mislead a public servant in the performance of his official function.”
      Section 53a-157 is now codified at § 53a-157b.

       We granted the defendant’s petition for certification to appeal, limited to the following issue: “Whether the Appellate Court correctly decided that the state did not have to show as an element of larceny by defrauding a public community that the defendant obtained benefits to which he was not otherwise entitled?” State v. Robins, 231 Conn. 917, 918, 648 A.2d 166 (1994).

       The application form required the defendant to certify, “under the penalty for false statement” and “subject to the penalties for larceny,” that his statements on the application were true and correct.

       We were not asked to certify any constitutional issue and therefore do not consider the defendant’s belated effort to raise questions relating to the scope of double jeopardy under our state constitution. We similarly do not consider nonconstitutional evidentiary or instructional issues that we declined to certify.


author: Callahan, J.

text:
    Barbara Weisman, Trustee v. Mary Kaspar et al.
    (15141)
    Peters, C. J., and Callahan, Borden, Katz and Palmer, Js.

      Argued March 16
    decision released June 20, 1995

      Joel M. Ellis, with whom was Donald E. Weisman, for the appellant (plaintiff).

      Jerome M. Griner, for the appellee (substitute defendant).
   Callahan, J.

This appeal requires that we determine whether the trial court properly concluded that the plaintiff, Barbara Weisman, Trustee (BWT), a mortgage lending partnership, acted fraudulently with respect to a certain mortgage transaction with the named defendant, Mary Kaspar. BWT brought an action against Kaspar seeking to foreclose a mortgage that it held on real estate owned by Kaspar in East Hartford. Kaspar subsequently paid the entire amount allegedly due on the mortgage note, and BWT withdrew its complaint. Thereafter, Kaspar filed a three count substitute counterclaim alleging that BWT had acquired its mortgage interest through a series of fraudulent dealings with Kaspar and that BWT was unjustly enriched by Kaspar’s payment. On January 22, 1992, and for several days thereafter, Kaspar’s counterclaim was tried to the court, Bums, J. The trial court filed a memorandum of decision awarding Kaspar damages in the amount of $298,707.15, plus interest, on her counterclaim. BWT 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). We conclude that the evidence adduced at trial does not support the trial court’s findings that BWT acted fraudulently with respect to Kaspar, or that BWT was unjustly enriched by Kaspar’s payment, and we therefore reverse the judgment of the trial court.

The trial court found the following facts. In 1987, Kaspar owned three parcels of real estate in East Hartford. Two of the parcels were two-family residential properties, and the third was used as a commercial rooming house. Kaspar was an elderly widow who had managed the properties on a day-to-day basis until her health began to fail after she suffered a stroke.

In April, 1987, Kaspar realized that she was no longer physically able to oversee the management of the properties, and therefore listed the three parcels for sale with a local real estate agency. On April 14,1987, Gerald S. Haymond, a real estate broker and investor, submitted a formal purchase offer to Kaspar. Hay-mond’s offer was in part a standard form one page real estate purchase and sale agreement and was in part a four page typewritten addendum, and proposed the following terms of purchase: a total price of $375,000, to be paid to Kaspar by means of a $500 cash deposit upon the parties’ execution of the purchase and sale agreement, owner financing of $285,000 extended to Haymond by Kaspar, with such financing to be secured by a purchase money second mortgage given by Hay-mond to Kaspar, and cash at the closing in the amount of $89,500. The addendum to the purchase offer further provided that Haymond was contemplating certain changes to the existing structure of the properties and that Kaspar would agree to subordinate her purchase money second mortgage to a first mortgage in a principal amount no greater than $200,000. On the advice of her real estate agents, Kaspar rejected this offer.

After further negotiations, on April 29,1987, Kaspar and Haymond executed a one page purchase and sale agreement wherein Kaspar agreed to sell her three properties to Haymond, or his corporate nominee, for a total purchase price of $400,000. The agreement provided that Kaspar would provide owner financing to the purchaser in the amount of $280,000, and that the remainder of the purchase price was due in cash at the closing. While the parties were negotiating the terms of an addendum that were to be similar in substance to those terms initially proposed by Haymond, Kaspar retained attorney Philip P. Apter to conduct further bargaining with Haymond on her behalf.

During the period of time between the signing of the purchase and sale agreement and the closing, Haymond approached Jack L. Rosenblit, a principal in BWT, from whom Haymond had obtained financing on prior occasions, and inquired whether BWT would be interested in providing funds for Haymond’s purchase of Kaspar’s properties. After touring the properties and discussing the terms of the proposed transaction with Haymond, Rosenblit, on behalf of BWT, verbally agreed to provide Haymond with financing in the amount of $200,000 and to take back a first mortgage on the properties bearing a 24 percent interest rate. The trial court found that when Rosenblit agreed to provide Haymond with this financing, Rosenblit was aware that: (1) the rental incomes generated by the properties would not support the interest payments required by the mortgage; (2) no improvements to the properties were contemplated by Haymond; and (3) because BWT’s loan was to be for $200,000 and Kaspar’s was to be for $280,000, Haymond would be left with approximately $80,000 in cash at the closing. The trial court also found that Rosenblit was aware that Haymond intended to use the excess cash to pay interest on both loans until he could resell the properties for a quick profit.

After speaking with Rosenblit, Haymond suggested to Kaspar that in order for the transaction to proceed, she would be required to subordinate her purchase money mortgage to a $200,000 first mortgage. The trial court also found that Haymond assured Kaspar that the excess cash generated by this financing arrangement would be utilized in making improvements to the properties. The trial court further found, however, that both Haymond and Rosenblit knew that Haymond did not intend to use the excess cash to improve the properties, but intended to use it to pay interest on the BWT loan, while trying to resell the properties as soon as possible.

The closing took place on May 8,1987. On that day, an addendum to the purchase and sale agreement was prepared by Apter that was similar in form and content to the addendum produced by Haymond and submitted to Kaspar with Haymond’s original purchase offer. The addendum, which was signed by both Hay-mond and Kaspar, contained a clause stating that Kaspar was aware that the buyer was contemplating structural improvements to the properties, and that she would agree to subordinate her $280,000 purchase money mortgage to a mortgage not to exceed $200,000.

Title to Kaspar’s properties was transferred to Christopher Claire, Ltd., a corporation that Haymond had formed for the purpose of taking title to the Kaspar property. Contemporaneously with the Kaspar-Christopher Claire, Ltd. closing, the mortgage given by Christopher Claire, Ltd., to BWT to secure BWT’s $200,000 loan was closing in another room in the same office. The trial court found that neither Kaspar nor Apter knew that the other closing was taking place. Haymond was represented by attorney Edward N. Lerner with respect to both transactions, and Lerner subsequently recorded both mortgage documents on the East Hartford land records. BWT’s mortgage was recorded prior to the Kaspar mortgage.

In September, 1987, Kaspar notified Apter that Christopher Claire, Ltd., had missed a payment on the mortgage. In anticipation of a possible foreclosure action, Apter reviewed the land records and discovered, for the first time, that the BWT mortgage was recorded prior to the Kaspar mortgage, and that it carried a 24 percent interest rate. When Apter revealed his discovery to Kaspar, she was “flabbergasted.”

In April, 1988, Christopher Claire, Ltd., again defaulted, and Apter commenced a foreclosure action on Kaspar’s mortgage against Haymond and Christopher Claire, Ltd., listing in the complaint BWT’s mortgage as an encumbrance prior in right to Kaspar’s mortgage. The foreclosure proceeded and resulted in a judgment of strict foreclosure for Kaspar in October, 1988. Because there was no redemption, title to the East Hartford properties subsequently revested in Kaspar.

BWT commenced the present foreclosure action against Kaspar in March, 1989, and Kaspar subsequently filed her substitute counterclaim. When Kaspar paid over the entire amount demanded as due, BWT gave Kaspar a release of its mortgage interest and withdrew its complaint. Kaspar thereafter sold the properties to a third party for $430,000, and proceeded to trial on her counterclaim.

On the basis of these findings of fact, the trial court concluded that “[i]t is clear that Kaspar has established all of the elements of fraud. . . . Kaspar was induced to sell her property on the false representation by both Haymond and Rosenblit that any additional financing was for improvement at the property, which both knew was untrue and she was forced to pay under duress almost $300,000 to obtain a release of the BWT mortgage. Kaspar has established all of the elements of duress. ... All of the elements of fraud have been proven by clear and satisfactory evidence.” The trial court also concluded that “[i]n the present action . . . the court has found that, to the detriment of Kaspar, BWT obtained money from Kaspar to which BWT was not entitled. Further, the court has found that BWT was not entitled to receive payment on the mortgage to [Christopher Claire, Ltd.,] because that mortgage was obtained through fraud. The court has found that Haymond induced Kaspar to agree to subordinate her priority purchase money mortgage by stating that he was to use the proceeds to improve the property when both Haymond and Rosenblit knew that the proceeds would be used for part of the purchase price and to make the high monthly interest payments on the BWT mortgage while Haymond attempted to convey the property as quickly as possible. This false statement of fact benefitted BWT in that BWT took a mortgage with an unusually high interest rate upon which Kaspar eventually made payment. The conduct of the parties and the circumstances surrounding the sale of the property, the granting of the mortgages, and the payment on the mortgages clearly establish that BWT has been unjustly enriched. Since BWT was unjustly enriched, the court may order that Weisman pay restitution to Kaspar.”

The trial court thereafter dismissed BWT’s various special defenses, and awarded damages on the first and third counts of Kaspar’s substitute counterclaim in the amount of $298,707.15, which the court concluded was the amount paid by Kaspar under protest and under duress in order to obtain a release of the BWT mortgage, plus interest at 10 percent from the date of payment to the date of judgment. The trial court also awarded punitive damages on the first count of the substitute counterclaim in the amount of $1. This appeal followed.

On appeal, BWT claims that the trial court improperly concluded that: (1) Kaspar had established the necessary elements of an action for fraud; (2) Kaspar’s payment of the amount demanded by BWT was made under duress; and (3) BWT had been unjustly enriched by Kaspar’s payment. We agree with each of BWT’s claims, and we therefore reverse the judgment of the trial court.

I

BWT first claims that the trial court was incorrect when it concluded that Kaspar had sufficiently established the required elements of a cause of action for fraud. We agree with BWT.

The essential elements of an action in common law fraud, as we have repeatedly held, are that: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury. Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377 (1991); Kilduff v. Adams, Inc., 219 Conn. 314, 329, 593 A.2d 478 (1991); Maturo v. Gerard, 196 Conn. 584, 587, 494 A.2d 1199 (1985). The party asserting such a cause of action must prove the existence of the first three of these elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as “clear and satisfactory” or “clear, precise and unequivocal.” Rego v. Connecticut Ins. Placement Facility, 219 Conn. 339, 343, 593 A.2d 491 (1991); Kilduff v. Adams, Inc., supra, 327.

A

BWT contends that the trial court improperly found that Kaspar had satisfied her heightened burden of proof with respect to her claim that Rosenblit had induced her to agree to subordinate her purchase money mortgage to BWT’s mortgage by falsely representing that the $80,000 of excess financing that Hay-mond was to receive at closing would be used to make structural improvements to the properties. Kaspar, on the other hand, argues that the evidence produced at trial clearly indicated that Rosenblit knew of and colluded in Haymond’s misrepresentations regarding the structural changes and the purpose of the excess moneys, and that all of the elements of a cause of action in fraud were proven by clear and satisfactory evidence. We conclude that the evidence produced at trial was insufficient for the trial court to have determined that BWT participated in or even knew of the fraudulent misrepresentations, if any, of Haymond.

We begin with a statement of the proper standard governing our appellate review. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. . . . A factual finding may be rejected by this court only if it is clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153-54, 527 A.2d 679 (1987). “A finding is clearly erroneous 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.) Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985).

Because the trial court’s legal conclusion that Kaspar had established all four elements of a cause of action for fraud necessarily depends upon the trial court’s findings of fact, we must initially review those factual findings to determine if they find support in the evidence. According to the trial court, when Rosenblit agreed to loan Haymond $200,000 in return for a first mortgage on the properties and a 24 percent interest rate, Rosen-blit knew that the rental income from the properties was insufficient to pay the interest required by the loan. The trial court further found that Rosenblit had known that the financing arrangement would leave Haymond with excess cash at the closing, and that the excess cash would be used to pay the required interest on the BWT loan, because Haymond did not have sufficient funds of his own to make the payments. The trial court also found that Haymond had assured Kaspar, in negotiating the subordination clause of the addendum, that any excess financing received by him would be used to improve the properties. Finally, the trial court found that Rosenblit not only had known of Raymond’s representations to Kaspar regarding improvements, but also had known that Haymond had not in fact intended to make any such improvements.

The trial court’s conclusion that Kaspar had satisfied her burden of proving the existence of the first two elements of fraud, which require that there be a false statement of fact and that the party making the untrue statement know that the statement is indeed untrue, is not warranted by the evidence produced at trial. The evidence simply does not support the trial court’s determination that Rosenblit was aware that Haymond did not contemplate making any structural changes or improvements to the properties.

We first note that Haymond testified that he had discussed with Rosenblit the language in the addendum regarding Haymond’s contemplation of changes to the existing structure of the properties, and had explained to Rosenblit that the reason that clause had been included in the contract was that Haymond had anticipated removing a kitchen from one of the properties and installing a bedroom, in order to bring the building into compliance with local ordinances. Haymond further testified that other than this brief conversation regarding the potential removal of the kitchen, he had not discussed any other structural changes with Rosen-blit. There was no testimony indicating that prior to the closing, Haymond had informed Rosenblit that he no longer contemplated removing the kitchen. Moreover, Lerner, who represented Haymond throughout the negotiations and closing, testified that it was Hay-mond’s intention to “fix the property up a little, change the way it was run,” before ultimately reselling the parcels for a profit. Haymond testified that although he did not remove the kitchen as originally planned, he nevertheless had spent approximately $2000 in making minor improvements to the properties, in addition to substantial amounts paid for management, insurance and advertising for new tenants.

Kaspar argues that Rosenblit knew that Haymond’s representation regarding the structural changes was false, because Rosenblit did not require that an escrow account be maintained for the purpose of preserving the funds necessary to make such changes, as he had done in his prior financing arrangements with Hay-mond. Although Haymond did testify that with regard to his previous dealings with Rosenblit, if Rosenblit had required that Haymond use a portion of the loan proceeds to improve the properties, an escrow agreement was created in order to maintain the funds to be used for that purpose, Rosenblit testified that he did not require an escrow account in this case because, after viewing Kaspar’s properties, he concluded that no renovations were necessary. Moreover, Haymond testified unequivocally that the only discussions regarding contemplated changes to the properties had been initiated by him, not Rosenblit. We conclude that, although the fact that Rosenblit did not require an escrow account in this case in order to reserve a portion of BWT’s loan for improvements suggests that Rosenblit did not require Haymond to make structural improvements to the properties, this evidence alone is not sufficient to prove by clear and satisfactory evidence that Rosen-blit knew that Haymond did not intend to make the structural changes as he had originally indicated to Rosenblit.

Finally, we note that although there was some testimony indicating that Haymond intended to use a portion of the excess financing to make mortgage interest payments, there was no testimony from any witness indicating that Haymond intended to use the entire $80,000 to make such interest payments or that Haymond did not intend to make any structural changes to the properties. In fact, the testimony from Haymond and Lerner was precisely to the contrary. Thus, we conclude that the evidence produced at trial does not justify the trial court’s conclusion that Kaspar had proven, by clear and satisfactory evidence, the first two required elements of a cause of action in fraud, namely, (1) that Rosenblit made or colluded in a false representation, and (2) that Rosenblit knew that Haymond’s representation to Kaspar regarding contemplated improvements to the properties was false.

The trial court’s conclusion that Kaspar had satisfied her burden of proving the third element of fraud, which requires that the party making the untrue statement of fact do so with the intent to induce the other party to act in a certain way, was likewise not supported by the evidence produced at trial. Regardless of whether Rosenblit knew that Haymond’s representations regarding structural changes were untrue, there was no evidence indicating that Rosenblit knew that Haymond had made any such representations with the intent to induce Kaspar to agree to subordinate her purchase money mortgage to BWT’s mortgage.

The trial court, moreover, did not identify any testimony, nor did it make a finding of fact, that Rosenblit was aware that Kaspar would only agree to subordinate her purchase money mortgage to BWT’s mortgage if she was first assured that any excess financing received by Haymond would be used for the improvement of the properties. In fact, Rosenblit testified that he had nothing whatever to do with Haymond’s negotiations with Kaspar, and that he had never spoken with Lerner, Apter or Kaspar regarding the transaction or anything else. When asked why he did not contact Kaspar or Apter regarding the transaction, Rosenblit testified that to do so would have been pointless, because he was only concerned with the value of the properties and the amount he was going to lend to Haymond; he left it to Haymond to negotiate his own deal with the seller.

The trial court also could not have concluded from the language of the addendum that Rosenblit knew that Haymond was making the representation regarding contemplated repairs to the properties in order to induce Kaspar to agree to subordinate her purchase money mortgage. Although the relevant clause in the addendum states that “[t]he seller is aware that the purchaser is contemplating certain changes within the existing structure and agree[s] to subordinate the second mortgage,” Apter, who had negotiated and drafted the final addendum, testified that his interpretation of the clause was that it did not limit what Haymond could do with any excess cash received at the closing. Moreover, the purchase and sale agreement contained no clause indicating that Kaspar would not agree to subordinate her mortgage if Haymond failed to use any excess financing that he received at closing for the improvement of the properties. Thus, we conclude that the evidence produced at trial was not sufficient for the trial court to have found that Kaspar had clearly and satisfactorily established the third element of fraud, namely, that Rosenblit knew that Haymond had made untrue statements to Kaspar regarding contemplated improvements in order to induce Kaspar to agree to subordinate her purchase money mortgage.

In sum, we conclude that Kaspar failed to present clear and satisfactory evidence sufficient to establish that Rosenblit knew of or participated in any alleged fraudulent representations by Haymond. The trial court’s determination that Kaspar had established all of the elements of fraud to support a recovery under this theory, therefore, was improper.

B

BWT also contends that the evidence produced at trial does not support a finding that Rosenblit had induced Kaspar to agree to subordinate her purchase money mortgage by fraudulently concealing the status, existence and terms of BWT’s mortgage. We agree.

Although the testimony adduced at trial clearly indicates that neither Jack Rosenblit nor Mark S. Rosen-blit, the attorney representing BWT with respect to the Haymond financing transaction, had disclosed to Kaspar or Apter the terms or existence of the BWT mortgage, the testimony also clearly indicates that neither Jack Rosenblit nor Mark Rosenblit had attempted in any manner to conceal the mortgage from Kaspar or Apter. In fact, the evidence explicitly demonstrates that Apter had ample opportunities both prior to and at the closing to inquire as to the terms of the BWT mortgage and that contrary to the trial court’s finding, he was aware at the Kaspar-Christopher Claire, Ltd. closing that the BWT mortgage was closing contemporaneously in another room in the same office.

Lerner testified that on several occasions prior to the closing, he had discussed with Apter the fact that a $200,000 first mortgage was going to be placed upon Kaspar’s properties prior in right to Kaspar’s purchase money mortgage, but that Apter did not question him regarding the terms of that mortgage. Lerner further testified that at the closing itself, although he could not recall Apter having examined the BWT mortgage documents, the existence of the BWT mortgage had been discussed: “I discussed it with [Apter], ... I don’t remember him reading it. I discussed it with him because it was essential to working out the final terms of the deal. The terms couldn’t have been worked out without discussing the details of that with him. [The mortgage deed] was available to him.” Lerner also testified that the BWT mortgage documents had been available at the closing, and that neither he nor anyone else had prevented Apter from reviewing them.

Indeed, we note that Lerner’s testimony is supported by the testimony of Apter who testified that while Kaspar’s purchase money mortgage was closing, Lerner informed him that the closing on the first mortgage was taking place in another room in the same office. Apter further testified that he then imparted this information to Kaspar. Apter testified that despite the fact that Lerner told him that the first mortgage was closing contemporaneously with the Kaspar purchase money mortgage, and despite the fact that Lerner did nothing to prohibit him from examining the first mortgage documents, he did not inquire as to the terms of that first mortgage.

Finally, we note that at the closing, Kaspar and Hay-mond executed a commercial loan affidavit, which subsequently became an exhibit at trial. Paragraph five of the affidavit stated the following: “The undersigned make(s) this Affidavit for the purpose of inducing the Lender, Barbara Weisman, Trustee, to extend this mortgage loan in the amount of $200,000.00 to the undersigned well knowing that the Lender will extend this mortgage loan increase only in complete reliance upon the truth and accuracy of the statements contained herein.” Apter testified that he had explained to Kaspar all of the documents that Kaspar signed at the closing, including the commercial loan affidavit. Apter further testified that when the commercial loan affidavit was executed at the closing, all parties were aware that BWT was obtaining a first mortgage on Kaspar’s properties. Consequently, there is overwhelming evidence that the existence of the BWT mortgage was not concealed.

We conclude that, on the basis of all of the evidence presented at trial, the trial court could not have reasonably determined that Rosenblit colluded with Hay-mond to fraudulently conceal from Kaspar the status, terms or existence of the BWT mortgage. The evidence clearly demonstrated that Apter and Kaspar were made aware of the existence of the BWT mortgage at the closing and that Apter had the opportunity to review the mortgage documents at that time, but failed to do so. The fact that Rosenblit did not make an effort personally to inform Kaspar of the terms of BWT’s loan to Haymond, without more, is insufficient to establish BWT’s liability for fraudulent concealment.

II

BWT also argues that the trial court improperly determined that it was unjustly enriched by Kaspar’s payment of $298,707.15 for a release of the BWT mortgage. We agree.

“A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . Connecticut National Bank v. Chapman, 153 Conn. 393, 399, 216 A.2d 814 [1966]. With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Providence Electric Co. v. Sutton Place, Inc., 161 Conn. 242, 246, 287 A.2d 379 (1971). . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Citations omitted; internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-83, 649 A.2d 518 (1994).

The trial court concluded, after reviewing the conduct of the parties, that BWT had obtained money from Kaspar to which it was not entitled. The court based its conclusion, however, on its previous determination that Rosenblit had conspired with Haymond to fraudulently induce Kaspar to agree to subordinate her purchase money mortgage. Because we have concluded that the trial court improperly determined that Rosen-blit or BWT had acted fraudulently with respect to Kaspar, we conclude that the trial court also improperly determined that BWT had been unjustly enriched by Kaspar’s payment for a release of BWT’s mortgage.

Ill

Kaspar claims, as an alternate ground for affirmance of the trial court’s judgment, that BWT was not entitled to the payment of $298,707.15 that it had received from her for a release of BWT’s mortgage because her purchase money mortgage had priority and there had never been a subordination of that mortgage. Moreover, Kaspar claims BWT was not a third party beneficiary of the purchase and sale agreement between Haymond and her, wherein it was indicated that there might be a subordination of Kaspar’s mortgage at some future time. We disagree.

The issue of whether Kaspar’s purchase money mortgage was subordinated by the language of the addendum to the Kaspar-Haymond purchase and sale agreement became irrelevant upon the conclusion of Kaspar’s foreclosure action against Haymond, wherein the trial court ordered a strict foreclosure. Ordinarily, a judgment of strict foreclosure in favor of a senior mortgagee vests absolute title in the foreclosing plaintiff, upon the failure of the junior mortgagees who are parties defendant to redeem the property. First Bank v. Simpson, 199 Conn. 368, 373, 507 A.2d 997 (1986). We note, however, that the evidence clearly indicates that in her foreclosure complaint, Kaspar listed the BWT mortgage as an encumbrance prior in right to her purchase money mortgage, and thus did not make BWT a party defendant to her foreclosure action. Because it was not made a party to Kaspar’s foreclosure and consequently not given the opportunity to redeem or to force a foreclosure by sale; see id., 374; the judgment of strict foreclosure rendered by the trial court in favor of Kaspar was void as against BWT, regardless of whether BWT was a senior or junior encumbrancer. See R. Kratovil & R. Werner, Modern Mortgage Law and Practice (2d Ed. 1981) § 18.04, p. 239; 2 C. Wiltsie, Mortgage Foreclosure (5th Ed. 1939) § 835, p. 1355. Thus, because BWT’s mortgage was not extinguished by Kaspar’s foreclosure but continued in existence when Kaspar regained title to her properties, BWT was entitled to Kaspar’s payment to obtain a release of its mortgage. We reject, therefore, Kaspar’s alternate ground for affirmance.

The judgment of the trial court is reversed and the case is remanded with direction to render judgment for BWT on the defendant’s counterclaim.

In this opinion the other justices concurred.

       Kaspar died in October, 1991, and thereafter her son, Francis J. Kaspar, Jr., the executor of her estate, was substituted as a party defendant. We refer herein to Mary Kaspar as Kaspar.

       BWT consisted only of Rosenblit and Barbara D. Weisman.

       Count two of Kaspar’s counterclaim alleged that the terms of the BWT mortgage were unconscionable, and sought reformation thereof. The trial court concluded that because Kaspar paid to BWT the amount demanded by BWT for a release of its mortgage, this count was moot. Because of our conclusion that, as a matter of law, Kaspar was under no duress in paying off the mortgage, she cannot seek to revive the issue of the unconscionability of the mortgage. See footnote 15.

       Count one of Kaspar’s counterclaim alleged fraud, while count three alleged unjust enrichment. The trial court did not specify on which of the two counts it was awarding the damages to Kaspar.

         BWT also claims that the trial court improperly awarded complete restitution of the amount paid by Kaspar to BWT to obtain a release of the BWT mortgage, when such a theory of recovery was not sought by Kaspar in her pleadings or at trial; that the trial court improperly denied BWT’s special defense that alleged that the $80,000 that Kaspar recovered from Apter’s professional malpractice insurance carrier must be applied to reduce her recovery from BWT; and that the trial court improperly calculated Kaspar’s damages. Because we conclude that Kaspar did not sufficiently establish the necessary elements of a cause of action for fraud and did not prove that her payment to BWT was made under duress or that BWT was unjustly enriched by such payment, we do not address these claims.

       BWT, as a partnership, would be liable to Kaspar for any fraud attributed to Rosenblit while acting in the ordinary course of business of the partnership. See General Statutes § 34-51.

       BWT also claims that because the record clearly indicates that Rosenblit had never spoken with Kaspar or Apter and had not participated in the drafting of the purchase and sale agreement, it cannot be found liable for Haymond’s alleged fraudulent representations regarding structural improvements, unless Haymond is first determined to have been a partner or agent of BWT. We note, however, that if the evidence sufficiently established that Haymond had committed the fraudulent acts alleged by Kaspar, and if the evidence further established that Rosenblit knew of the fraudulent scheme and wilfully aided in its execution, BWT would be chargeable with having committed actionable fraud, provided all of the elements of the cause of action are proven by clear and satisfactory evidence. See, e.g., Etgen v. Washington County Building & Loan Assn., Inc., 184 Md. 412, 418, 41 A.2d 290 (1945); see also Krajewski v. Blair, 297 A.2d 70, 72 (Del. 1972); Miller v. State Dental Council & Examining Board, 39 Pa. Commw. 613, 396 A.2d 83,88 (1979), rev’d on other grounds sub nom. Snell v. State Dental Council & Examining Board, 490 Pa. 277, 416 A.2d 468 (1980); 37 Am. Jur. 2d 403, Fraud and Deceit §§ 305-310 (1968).

       The BWT mortgage contained a term guaranteeing payment of interest for six months. Rosenblit testified that the purpose for requiring a 24 percent interest rate with six months of interest payments guaranteed was to ensure, in an intensely active real estate market, that if Haymond sold the property immediately after he purchased it, BWT would nevertheless make its desired profit on the transaction.

       Haymond testified that the building was being operated by Kaspar as an “illegal . . . rooming house.”

       Although Haymond never removed the kitchen as he had anticipated doing, he testified that the reason he did not do so was because the town of East Hartford subsequently indicated that even if the kitchen was removed, it would not issue a license to operate the property as contemplated, because there was inadequate parking available on the premises. Haymond’s testimony did not indicate when he made the decision not to remove the kitchen, however, and it likewise did not indicate that he conveyed his decision to Rosenblit.

       Moreover, the testimony regarding Haymond’s negotiations with Kaspar does not clearly indicate that Haymond had made any representations regarding improvements with the intent to induce Kaspar to agree to subordinate her mortgage. Haymond testified that in negotiating his purchase offer, he simply made it clear to everyone involved that, because the properties were operating at a negative cash flow, the only way that he would complete the proposed purchase was if he could take money out of the closing to help finance that negative cash flow. Similarly, Apter testified that he had extensively advised Kaspar that the total amount of loans secured by the properties might exceed the purchase price, but that the only way to do business with Haymond was to agree to this financing scheme. Francis Kaspar, who attended all meetings and the closing with his mother, testified that the only representation regarding Haymond making improvements to the properties had been made by Lerner, Haymond’s attorney. Further, Francis Kaspar testified that he was not even aware of what improvements were contemplated.

       Mark Rosenblit testified that when lending money to a buyer for the purchase of property, he never contacted the seller or the seller’s attorney, because they were not signing the notes and were not otherwise parties to the transaction.

       Subsequent to the transactions that are the subject of this appeal, Kaspar instituted an action for professional malpractice against Apter. Apter’s malpractice insurance carrier thereafter paid $80,000 to Kaspar in consideration of Kaspar’s release of Apter from all further liability.

       The substance of the affidavit was contained in paragraph four and provided as follows: “This transaction is a commercial transaction and is not a consumer transaction. The proceeds of this mortgage loan are not being used for personal, family, or household purposes but only for purchase of said property by Christopher Claire, Ltd., for investment. . . .”

       The trial court determined that because of the fraudulent conduct of BWT in inducing Kaspar to agree to subordinate her purchase money mortgage, Kaspar was then forced to pay the sum of $298,707.15 under duress to BWT for a release of BWT’s mortgage. Because we have concluded that BWT’s conduct was not fraudulent with respect to Kaspar, however, BWT’s foreclosure action and demand for payment on its mortgage was not an “unlawful act or threat” warranting Kaspar’s claim that her payment was involuntary. See 1 Restatement (Second), Contracts §§ 175 and 176 (1981); 2 D. Dobbs, Law of Remedies (2d Ed. 1993) c. 10, § 10.2 (1), p. 635 (to show duress, one must prove [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim).

       Kaspar also submitted the following alternate grounds for affirmance of the trial court’s judgment: (1) that BWT is liable for conspiring with Haymond to defraud Kaspar; and (2) that Rosenblit is liable as a joint tortfeasor with Haymond for the fraud of Haymond. Because each of these alternate grounds for affirmance necessarily depends upon a conclusion that fraudulent conduct may be attributed to Rosenblit, and because we have concluded that the trial court improperly found that Rosenblit had acted fraudulently with respect to the Kaspar transaction, we reject both of these alternate grounds for affirmance.


text:
    State of Connecticut v. Philip F. Wieler II
    (15091)
    Peters, C. J., and Borden, Berdon, Katz and F. X. Hennessy, Js.
    Argued May 25
    decision released June 20, 1995

      IraB. Grudberg, with whom was David A. Leff for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, Domenick Galluzzo, deputy chief state’s attorney, and Michael Sullivan, supervisory assistant state’s attorney, for the appellee (state).
   Per Curiam.

The only issue in this certified appeal is whether, for the purposes of the crime of larceny by embezzlement under General Statutes § 53a-119, the term “appropriation,” as defined in General Statutes § SSa-llS, requires proof of an intent permanently to deprive the victims of their property. The defendant, Philip F. Wieler II, was charged, in two informations, with twenty-three counts of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2) and two counts of larceny in the second degree in violation of General Statutes § 53a-123 (a) (2). After a jury trial, he was convicted of all but one of the counts of larceny in the first degree. The Appellate Court affirmed the judgment of conviction. State v. Wieler, 35 Conn. App. 566, 645 A.2d 1032 (1994). We granted certification to review the defendant’s claim that he lacked the criminal intent required for larceny by embezzlement. We affirm the judgment of the Appellate Court.

The opinion of the Appellate Court recites the relevant facts that the jury reasonably could have found. “[T]he defendant, Philip F. Wieler II, was the president and sole stockholder of NW Group, Inc., a New Haven based company that provided property management services for various condominium associations throughout Connecticut. . . . From 1986 to 1989, NW Group, Inc., managed the properties of approximately fifty condominium associations, approximately fifteen of which were owned in whole or in part by the defendant. . . .

“During the period between June, 1986, and the end of 1989, properties in which the defendant had an interest began to experience financial difficulties. These properties did not generate sufficient income to pay their bills in full. Despite this, the bills for the defendant’s properties were paid . . . [by withdrawing] funds from the accounts of properties not owned by the defendant that had large balances. Checks drawn on the accounts of these associations to pay the bills of the defendant’s properties were marked ‘PRE’ for ‘prereimbursement’ and were treated as loans. By 1989, the overdrafts were occurring as frequently as four times per week.

“The properties managed by NW Group, Inc., but not owned by the defendant, never authorized the defendant to withdraw moneys from their accounts other than to pay bills on their behalf. Nor had any of the properties ever authorized a loan to the defendant. In fact, the properties had no way of knowing about this prereimbursement procedure.” Id., 568-71.

At trial, the state presented evidence that the defendant had personal knowledge of, and received personal benefits from, the improper diversion of funds by the NW Group, Inc. The sufficiency of that evidence is not at issue. The trial court precluded the defendant from presenting evidence regarding his intent to repay the moneys taken from the various condominium associations that he did not own. The trial court also refused to charge the jury that embezzlement requires proof of an intent permanently to deprive another person of his or her property. The validity of these evidentiary and instructional decisions of the trial court was the basis for the defendant’s appeal to the Appellate Court and for his further appeal, upon our grant of certification, to this court.

On appeal, the Appellate Court undertook a close examination of the specific language of the statutes that define the crime of larceny by embezzlement. See General Statutes §§ 53a-119 (1) and 53a-118 (a) (4) (B). The Appellate Court noted that, until 1969, the embezzlement statutes in this state did not require the state to prove that the accused intended permanently to deprive his victims of their property. That requirement was first added by the enactment of § 53a-118 (a) (4) (A) in 1969. As the Appellate Court went on to observe, however, “[t]he intent permanently to deprive . . . is only one of two alternative theories in the embezzlement statute. The other alternative requires disposal of the property without the intent permanently to deprive the victims of their property. See General Statutes § 53a-118 (a) (4) (B). This alternative is the theory on which the state pursued conviction.” State v. Wieler, supra, 35 Conn. App. 578-79. In light of its painstaking analysis of the governing statutes, the Appellate Court concluded that the trial court had properly excluded evidence with respect to the defendant’s intent to repay the moneys taken from the condominium associations that the NW Group, Inc., did not own. Id., 579. A fortiori, the trial court had properly refused the corresponding charge requested by the defendant. Id., 580.

After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court must be affirmed. The issue on which we granted certification was properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained. See Reichert v. Sheridan, 233 Conn. 251, 253, 658 A.2d 96 (1995); Talton v. Warden, 231 Conn. 274, 275-76, 648 A.2d 876 (1994); State v. Leonard, 210 Conn. 480, 481, 556 A.2d 611 (1989).

The judgment is affirmed.

       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 includes, but is not limited to: (1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody.”
      General Statutes § 53a-118 provides in relevant part: “DEFINITIONS GENERALLY. (a) The following definitions are applicable to this part ... (4) To ‘appropriate’ property of another to oneself or a third person means (A) to exercise control over it, or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (B) to dispose of the property for the benefit of oneself or a third person. . . .”

       General Statutes § 53a-122 provides in relevant part: “larceny in the first degree: class B felony, (a) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds ten thousand dollars )}

       General Statutes § 53a-123 provides in relevant part: “larceny in the second degree: class c felony, (a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds five thousand dollars >>

       We granted the defendant’s petition for certification, limited to the following issue: “Does the crime of larceny by embezzlement require an intent to permanently deprive another of his property?” State v. Wieler, 231 Conn. 933, 649 A.2d 256 (1994).