Holmes v. Holmes

• Decision Date: 03 August 1993
• Docket Number: No. 11424,11424
• Citation: 32 Conn.App. 317,629 A.2d 1137
• Parties: Peter M. HOLMES v. Anne S. HOLMES et al.
• Court: Connecticut Court of Appeals

Page 1137

629 A.2d 1137

32 Conn.App. 317

Peter M. HOLMES v. Anne S. HOLMES et al.

No. 11424.

Appellate Court of Connecticut.

Argued March 24, 1993.

Decided Aug. 3, 1993.

Morgan P. Ames, Stamford, for appellant (plaintiff).

Mark F. Katz, Stamford, for appellees (defendants).

Before EDWARD Y. O'CONNELL, LAVERY and HEIMAN, JJ.

HEIMAN, Judge.

The plaintiff appeals from the judgment rendered in favor of the defendants ¹ 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 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).

" ' "[U]nder 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 1381 (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 plaintiff's 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 plaintiff's 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 EDWARD Y. O'CONNELL, J., concurred.

LAVERY, Judge, dissenting.

We should in our jurisprudence, as much as possible, elevate substance over form. In this case, we have an opportunity, with two important substantive questions to be answered, to choose between two rules, one that allows us to remand the case for articulation and one that, under case law interpretation, would have us not review and affirm for lack of record. I would choose to remand for articulation so that we may decide the important substantive questions. Therefore, I respectfully dissent.

The following facts set forth in the...