Lauder v. Peck

526 A.2d 539, 11 Conn. App. 161, 1987 Conn. App. LEXIS 952
CourtConnecticut Appellate Court
DecidedJune 2, 1987
Docket4704
StatusPublished
Cited by43 cases

This text of 526 A.2d 539 (Lauder v. Peck) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lauder v. Peck, 526 A.2d 539, 11 Conn. App. 161, 1987 Conn. App. LEXIS 952 (Colo. Ct. App. 1987).

Opinion

Borden, J.

This case involves a suit by the plaintiff against the defendant, her former attorney. In a lengthy and detailed memorandum of decision, the trial court found, inter alia, that the defendant falsely made and forged a release of lis pendens which the plaintiff had filed pro se against real estate of her former husband located in Massachusetts. The plaintiff had an equitable interest in the real estate by virtue of a Connecticut marital dissolution judgment. The court found that the defendant’s conduct constituted a forgery in violation of General Statutes § 53&-137.1 The trial court further found that the defendant committed two larcenies of the plaintiffs money in violation of General Statutes § 53a-119, and that the defendant was therefore liable to the plaintiff for treble damages pursuant to General Statutes § 52-564.2 The forgery and larcenies were intimately connected, because the defendant, by signing the release of lis pendens, obtained money of the plaintiff from the proceeds of the sale of the Massachusetts real estate. The defendant appeals. We find no error.

The defendant’s first three claims of error attack certain critical factual findings of the trial court, namely, that the defendant committed the forgery and the larcenies. The defendant claims that these findings are [163]*163clearly erroneous. We note “that clear and convincing proof of the actions alleged is required in order to assess treble damages pursuant to [General Statutes] § 52-564.” Schaffer v. Lindy, 8 Conn. App. 96, 105, 511 A.2d 1022 (1986). The trial court’s memorandum of decision makes clear that it applied the proper burden of proof. We have fully examined the entire record of this case. Suffice it to say that we are satisfied that the court’s findings are supported by sufficient evidence in the record, and that our review of the entire record does not leave us with a firm conviction that a mistake has been committed. Buddenhagen v. Luque, 10 Conn. App. 41, 45, 521 A.2d 221 (1987). We therefore cannot disturb these findings as clearly erroneous. Id.

In connection with these factual claims, the defendant points out that between the end of the trial and the filing of the trial court’s memorandum of decision, the trial judge called both counsel to a chambers conference. Thereafter, on the morning when the judge filed his memorandum of decision, he called counsel into open court and placed on the record his recollection of that conference. The transcript of these in-court proceedings discloses that, while writing the memorandum of decision, the judge called counsel to his chambers for two purposes: to inquire as to what action, if any, the grievance committee had taken against the defendant; and to disclose to them that he had written his memorandum of decision “up to the point of damages.” In that chambers conference, the judge then disclosed a tentative damages figure at which he had arrived. After counsel left his chambers, the judge had second thoughts about that figure, and immediately telephoned counsel and informed them that he had not arrived at the damages figure which he had mentioned in chambers.

Four days later, after those telephone calls, trial counsel for the defendant hand-delivered a letter to the [164]*164judge recounting his recollection of the chambers conference, and requesting an additional evidentiary hearing on damages. It was this letter which prompted the in-court proceedings which took place two days later. At these proceedings, the judge stated his recollection of the purposes and content of the chambers conference, as described above. The defendant’s counsel did not dispute the judge’s recollection. The judge at that point also denied the defendant’s request, initially raised in his letter and repeated in court, for an additional hearing.

Although we do not condone the actions of the trial court regarding these proceedings in chambers, they are not sufficient grounds to disturb the court’s judgment. The defendant did not object to them in any way or request the judge to disqualify himself. Thus, the defendant must be held to have waived any claim of error arising from the proceedings. Postemski v. Landon, 9 Conn. App. 320, 323, 518 A.2d 674 (1986). Nor were the proceedings so egregious as to amount to plain error requiring reversal. Cf. Trapp v. Trapp, 6 Conn. App. 143, 145, 503 A.2d 1187 (1986).

The defendant next claims that the court erred in finding that the defendant violated General Statutes § 52-564; see footnote 2, supra; because the defendant did not steal the defendant’s property or knowingly receive and conceal stolen property. We disagree.

The defendant claims that the finding by the court that he committed a “larceny,” in violation of General Statutes § 53a-119,3 of the plaintiff’s property does not [165]*165support a conclusion that the defendant “stole” the plaintiff’s property, within the meaning of General Statutes § 52-564. See footnote 2, supra. This claim is without merit.

The word “steals” as used in General Statutes § 52-564 is synonymous with the definition of larceny under General Statutes § 53a-119. Indeed, larceny is broadly defined in General Statutes § 53a-319. See footnote 3, supra. It “includes, but is not limited to: . . . (8) Receiving stolen property. A person is guilty of larceny by receiving stolen property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen . . . . ” (Emphasis added.) General Statutes § 53a-119 (8); see also Ballentine’s Law Dictionary (3d Ed. 1969) p. 1215 (defines steal as “[t]o commit larceny”).

The defendant next claims that the trial court’s finding that the defendant committed a forgery in violation of General Statutes § 53a-137, and two larcenies in violation of General Statutes § 53a-119, were beyond the scope of the complaint. This claim is also without merit.

The first count of the complaint alleged that: “the Defendant falsely made and forged a release of said Notice of Lis Pendens, acknowledging therein that he was the issuing authority of said Notice of Lis Pen-dens,” that “[s]aid release of Lis Pendens was made falsely and forged by the Defendant in that he knew he was not the issuing authority of said Notice of Lis Pendens [and] that he was not authorized to release the same,” and that “[a]s a result of the Defendant’s falsely making and forging said release of Notice of Lis Pendens” the plaintiff was damaged. (Emphasis added.) The plaintiff’s prayer for relief requested: “[i]n regards to the First Count, double damages pursuant to Con[166]*166necticut General Statutes Section 52-565. ”4

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Bluebook (online)
526 A.2d 539, 11 Conn. App. 161, 1987 Conn. App. LEXIS 952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lauder-v-peck-connappct-1987.