Holmes v. Holmes

629 A.2d 1137, 32 Conn. App. 317, 1993 Conn. App. LEXIS 349

• Court: Connecticut Appellate Court
• Decided: August 3, 1993
• Docket: 11424
• Status: Published

Opinions

Heiman, J.

The plaintiff appeals from the judgment rendered in favor of the defendants¹ after a trial to the court. The plaintiff claims that the trial court improperly (1) found that he had failed to satisfy his burden of proving the existence of a joint venture between his father and himself, (2) permitted his former attorney to testify as a witness for the defendants in violation of the attorney-client privilege, and (3) denied his motion to open and set aside its ruling regarding the propriety of the attorney testifying. We affirm the judgment of the trial court.

Each of the issues raised by the plaintiff is grounded on a factual determination made by the trial court. The trial court found, on the basis of the evidence presented, the plaintiff had failed to establish by a fair preponderance of the evidence that he was entitled to a one-half interest in certain property that he claimed was the subject of a joint venture he had entered into with his father. The named defendant, the plaintiff’s mother, denied the existence of the joint venture and asserted that she was the sole owner. “[I]n an ordinary civil action the party upon whom rests the burden of proof as to a fact or issue has sustained that burden if the evidence, considered fairly, induces in the trier’s mind a reasonable belief that it is more probable than otherwise that the fact or issue is true.” Hennessey v. Hennessey, 145 Conn. 211, 214, 140 A.2d 473 (1958); Cruz v. Drezek, 175 Conn. 230, 235-36, 397 A.2d 1335 (1978). The trial court was not convinced to that degree of certainty by the evidence presented by the plaintiff.

The trial court, by permitting the attorney to testify in the face of an objection that the witness had at some time acted as an attorney for the plaintiff, was required to make a factual determination as to whether the witness had ever acted as attorney for the plaintiff. It found that, whatever relationship may have existed between the witness and the plaintiff, the relationship was not that of attorney and client.

The court also denied the plaintiff’s motion to open and to set aside its prior ruling. In that motion, the trial court was asked to review a factual determination previously made. In support of his motion, the plaintiff filed affidavits setting forth factual claims contrary to the factual finding made by the trial court.

Through his claims on appeal, the plaintiff challenges the trial court’s factual determinations. “We review factual findings of the trial court under a clearly erroneous standard. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We examine 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.” (Internal quotation marks omitted.) Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 129, 132, 619 A.2d 863 (1993). The duty of providing us with a record adequate to review claims, including those of a factual nature, rests squarely on the appellant. Practice Book § 4061;² State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). We afford review only to claims based on the complete factual record developed by the trial court. We do not guess or speculate as to the existence of a factual predicate. State v. Hoeplinger, supra.

The plaintiff did not fulfill his duty to provide us with an adequate record to review. The trial court rendered an oral decision upon completion of the arguments by counsel on the last day of the trial. It did not file a written memorandum of decision, did not cause its oral decision to be transcribed and sign it, nor did it set out in its decision its basis other than to state that the issues were factual in nature and that it found that the plaintiff failed to establish the existence of a joint venture.³ There was thus a total failure to comply with Practice Book § 4059.

The plaintiff filed a motion for articulation pursuant to Practice Book § 4051, asking the trial court to set forth the basis and reasoning for its determination that he had failed to sustain his burden of proof in attempting to establish the claimed joint venture and the basis on which it had denied his motion to open and set aside the ruling. The trial court responded to the first inquiry by stating that it did not find the plaintiff’s testimony credible as to the existence of a joint venture and it then denied the request to articulate further the basis on which it denied the motion to open and set aside.⁴ The trial court thus responded to the request for articulation by stating simply that it did not believe the plaintiff’s testimony. This conclusion is meaningless as to the factual issues that needed to be resolved to enable us to make a determination as to the sufficiency of the evidence supporting the plaintiff’s claim.⁵ See Ford v. Hotel & Restaurant Employees & Bartenders Union, 152 Conn. 533, 534-35, 209 A.2d 187 (1965). A comparison of the trial court’s original decision and its articulation reveals that the articulation was simply a restatement of the original decision.

Faced with an articulation that did not clarify facts but merely restated the trial court’s conclusion, the plaintiff did nothing to perfect the record. He could have filed a motion for further articulation pursuant to Practice Book § 4051, or he could have sought review by this court of the adequacy of the trial court’s response pursuant to Practice Book § 4054. See Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 51, 492 A.2d 223 (1985). He elected to do neither.⁶ The plaintiff also had a clear avenue open to him to provide an adequate record by filing a motion to compel compliance with Practice Book § 4059. The trial court did not file a written memorandum of decision, nor did it order a transcript of the decision, sign it and file it in the trial court within ten days of the appeal. Practice Book § 4059.⁷ Upon proper application, this court has the power, pursuant to Practice Book § 4183,⁸ to compel the trial court to comply with the mandate of this provision. State v. Rios, 30 Conn. App. 712, 718-19, 622 A.2d 618 (1993), (O’Connell, J., concurring).

“ ‘ “[Ujnder normal circumstances we will not remand a case to correct a deficiency the appellant should have remedied.” ’ J. M. Lynne Co. v. Geraghty, 204 Conn. 361, 376-77, 528 A.2d 786 (1987) (Citation omitted.) Augeri v. Planning & Zoning Commission, 24 Conn. App. 172, 178, 586 A.2d 635, cert. denied, 218 Conn. 904, 588 A.2d 1383 (1991). The plaintiff failed to follow the relatively simple rules established to guarantee the presentation to this court of a record appropriate for review. “As an appellate tribunal, either we adhere to the letter of the rules or create judicial anarchy, whereby, on an ad hoc basis, we decide cases, the outcome of which will turn on the mindset of the panel hearing the appeal.” State v. Deptula, 31 Conn. App. 140, 152, 623 A.2d 525 (1993) (Heiman, J., dissenting). Accordingly, we decline to afford review of the plaintiffs claim that the trial court improperly concluded that no joint venture existed.

The same result is mandated with respect to the claim that the trial court improperly denied the plaintiffs motion to open and reconsider its prior ruling regarding the testimony of the attorney. The trial court denied the motion for articulation of the factual basis of the denial of the motion. The plaintiff again failed to employ either Practice Book §§ 4051 or 4054. We decline to afford review to issues the factual predicates of which are lacking because of the failure of the plaintiff to follow our rules. J. M. Lynne Co. v. Geraghty, supra.

We are also faced with the same deficiency in the record concerning the claim of the trial court’s impropriety in permitting testimony by an attorney that the plaintiff claims violated the attorney-client privilege. We have already noted that the trial court found that whatever relationship may have existed between the attorney and the plaintiff, it was not that of attorney and client. We are not provided with a factual basis for that conclusion. The plaintiff sought no articulation from the trial court in order to provide us with a record adequate to afford a proper review of this fact bound issue. We decline to afford review of a claim where the record is inadequate and the plaintiff failed to take the proper steps to create an adequate record. Id.; Manchester v. Zoning Board of Appeals, 18 Conn. App. 69, 70 n.1, 556 A.2d 1026, cert. denied, 212 Conn. 804, 561 A.2d 946 (1989).

Because the plaintiff has failed in his duty under our rules of practice to provide us with an adequate record for review, his claims must fail. Oakes v. New England Dairies, Inc., 219 Conn. 1, 16, 591 A.2d 1261 (1991); Centerbank v. Gross, 31 Conn. App. 38, 40, 622 A.2d 1066 (1993); see also Practice Book § 4061.

The judgment is affirmed.

In this opinion O’Connell, J., concurred.

1 The defendants named in the complaint were Anne S. Holmes, individually and doing business as Holmes Estates and Holmes Estates, Inc. Subsequently, by motion to cite additional parties, Anne S. Holmes, as executrix of the estate of Ralph W. Holmes, was added as a party defendant. The appeal was defended by Anne S. Holmes, individually and in all her representative capacities. Thus, in this opinion we refer to the defendants collectively.

2 Practice Book § 4061 provides in pertinent part: “It is the responsibility of the appellant to provide an adequate record for review.”

3 Practice Book § 4059 provides in pertinent part: “Except in small claims actions and as provided in Sec. 4060, when rendering judgments in trials to the court and in criminal cases, in ruling upon motions to dismiss under Sec. 814 and motions to suppress under Sec. 820, the court shall, either orally or in writing, state its decision on the issues in the case and, if there are factual issues, the factual basis of its decision. The court shall include in its decision its conclusion as to each claim of law raised by the parties. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court within ten days of the filing of the appeal. . . .”

4 The articulation filed by the trial court provides in pertinent part: “1. The basis and reasons for the court’s determining on December 31,1991, that ‘the plaintiff has failed to establish by a fair preponderance of the evidence that there was in fact a joint venture going on between the plaintiff and his late father.’ . . . [Tjhe Court found the plaintiff’s testimony was not credible and did not believe his testimony concerning the alleged joint venture. . . .”

5 In its oral decision at the conclusion of all the evidence, the trial court stated in part: “I’ve had an opportunity to hear all the witnesses. I’ve paid attention to them. I’ve had an opportunity to evaluate them and to assess their credibility, their interest in the outcome of the case.”

6 Under our rules of practice, we cannot condone what the dissent refers to as “strong, yet imperfect, efforts of counsel.” Our rules provide a vehicle for a party to create an adequate record for appeal. In the absence of the plaintiff’s compliance with our rules, our role is not to throw a life preserver based upon merciful hope. We are a court of appeals, not of refuge.

7 The historical significance of Practice Book § 4059 has been set out in detail in the concurring opinion in State v. Rios, 30 Conn. App. 712, 622 A.2d 618 (1993) (O’Connell, J., concurring). It eliminated a time consuming and unsatisfactory system of draft findings and counter findings submitted by the parties to the trial court which was then obligated to make findings of fact. Id., 716-17. Further, it effectively guaranteed that with few exceptions, not here pertinent, the trial court is obligated to prepare an oral or written memorandum of decision; Practice Book § 4059; thereby creating a system for providing this court with the factual and legal basis for the trial court’s decision. Id., 718. Thus, if the trial court complies with the rule of practice or if counsel files appropriate motions to rectify the record, this court is supplied with the necessary tools to make an intelligent evaluation of the appellant’s claims. When the rules are not followed, we are left to surmise and speculate. “Without a written memorandum of decision or an oral recitation on the record of the court’s findings, we cannot determine if the court’s conclusions were reasonable.” Id., 719-20.

8 Practice Book § 4183 provides in pertinent part: “The court may, on its own motion, modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal. It may also, for example, on its own motion or upon motion of any party, (1) order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal . . . .”