11 Conn. App. 161 | Conn. App. Ct. | 1987
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.
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
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
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,
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
The second count of the complaint repeated the essential allegations of the first count, and added the allegation that “[t]he making and forging of said Release of Notice of Lis Pendens was a false token, pretense or device, by the Defendant to obtain the property of the Plaintiff and was so falsely made and sworn with the intent to defraud the Plaintiff of the property to which she was entitled, all to her loss and damage.” (Emphasis added.) The plaintiffs prayer for relief requested “[i]n regards to the Second Count, treble damages pursuant to Connecticut General Statutes Section 52-564.” General Statutes § 52-564 authorizes treble damages for stealing property of another. See footnote 2, supra. Stealing is synonymous with larceny. General Statutes § 53a-119 (2) defines larceny to include “[ojbtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device, he obtains from another any property, with intent to defraud him or any other person.” It is clear that the plaintiff’s complaint referred to and invoked General Statutes § 53a-119 (2).
The defendant’s argument is that, even if the trial court was correct in using the Penal Code definitions as guidance in construing General Statutes §§ 52-564 and 52-565, it should not have declared the defendant’s conduct to be forgery and larceny in violation of the criminal statutes. The flaw in this argument is that both General Statutes § 52-564 and 52-565 clearly invoke by their terms the criminal statutes involved. We cannot reasonably read them otherwise. We have referred to General Statutes § 52-564 as a statute pursuant to which “facts which constitute a crime would need not be proven beyond a reasonable doubt if they are at issue in a civil action.” Schaffer v. Lindy, supra, 104. Indeed, we note that early in this century actions for treble damages under General Statutes § 52-564 were “not ordinarily brought until the defendant Piad] been tried, convicted and sentenced in the criminal court for the stealing.” Plumb v. Griffin, 74 Conn. 132, 135, 50 A. 1 (1901).
The defendant’s final claim is that the court erred in trebling the prejudgment interest which it awarded to the plaintiff. We disagree. Prejudgment interest on money wrongfully withheld from the owner is a proper,
There is no error.
In this opinion the other judges concurred.
The court found that the defendant “committed a forgery in violation of § 53a-137.” We read this as a reference to General Statutes § 53a-137 (4), which is part of the definitional section of the statutes regarding forgery and related offenses, General Statutes §§ 53a-137 through 53a-145. The actual forgery offenses are defined in General Statutes §§ 53a-138 through 53a-140, and 53a-142. The defendant makes no claim of error regarding this definitional nuance.
General Statutes § 52-564 provides: “Any person who steals any property of another, or knowingly receives and conceals stolen property, shall pay the owner treble his damages.”
General Statutes § 53a-119 provides in pertinent part: “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: . . . (2) Obtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device he obtains from another any property, with intent to defraud him or any other person.”
General Statutes § 52-565 provides: “Any person who falsely makes, alters, forges or counterfeits any document, or knowingly utters, as true, any document falsely made, forged or counterfeited, shall pay double damages to the party injured thereby.” Although the trial court found that the defendant had committed a forgery by falsely making the release of lis pen-dens, it did not use General Statutes § 52-565 as a basis for doubling damages. Its multiple damages award flowed from General Statutes § 52-564. See footnote 2, supra. Of course, its finding of larcenies under General Statutes § 52-564 were closely connected with its finding that the defendant falsely made the document.