Connecticut Novelty Co. v. Graichen

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Connecticut Novelty Co. v. Graichen

THE CONNECTICUT NOVELTY COMPANY
v. CHRISTINE GRAICHEN
(AC 47670)
Moll, Seeley and Wilson, Js.

Syllabus

The defendant appealed from the judgment of the trial court granting the
plaintiff’s application for a prejudgment remedy. The defendant claimed
that the court improperly granted the application and ordered that the
plaintiff could attach, garnish or encumber any of her real or personal
property to a certain value because it failed to consider and apply the
statutory homestead exemption (§ 52-352b (21)). Held:

This court declined to reach the merits of the defendant’s claim regarding
the homestead exemption, as the claim was raised for the first time in the
defendant’s posthearing brief and was not properly preserved for appellate
review, and, because no evidence was offered regarding the fair market
value of the defendant’s home and the court did not make any such finding,
the record was inadequate for review.
Argued April 23—officially released July 22, 2025

Procedural History

Action to recover damages for, inter alia, statutory
theft, and for other relief, brought to the Superior Court
in the judicial district of Middlesex, where the court,
Shah, J., granted the plaintiff’s application for a prejudg-
ment remedy, and the defendant appealed to this court.
Affirmed.
Alexander T. Taubes, for the appellant (defendant).
Jonathan M. Shapiro, for the appellee (plaintiff).
Opinion

SEELEY, J. The defendant, Christine Graichen,
appeals from the judgment of the trial court granting
the application for a prejudgment remedy filed by the
plaintiff, The Connecticut Novelty Company, doing busi-
as Malloves Jewelers, a family
ness operated jewelry store.
The court granted the application after finding probable
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Connecticut Novelty Co. v. Graichen

cause to sustain the validity of the plaintiff’s claims
against the defendant for breach of fiduciary duty, statu-
tory theft, conversion, unjust enrichment, and viola-
tions of the Connecticut Unfair Trade Practices Act
(CUTPA), General Statutes § 42-110a et seq., which
stemmed from the defendant’s alleged theft and misap-
propriation of the plaintiff’s funds for her own personal
use. On appeal, the defendant claims that the court
improperly granted the plaintiff’s application for a pre-
judgment remedy and ordered that the plaintiff could
attach, garnish or encumber any real or personal prop-
erty of the defendant to the amount of $554,260.35
because it failed to consider and to apply the homestead
exemption set forth in General Statutes § 52-352b (21),
which exempts from the claims of creditors the value
of the debtor’s homestead up to the amount of $250,000.
Because we conclude that the defendant did not prop-
erly preserve her claim for appellate review and, further,
that the record is inadequate for our review of this
claim, we decline to review it and affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On August 22,
2023, the plaintiff filed an application for a prejudgment
remedy,1 alleging that it had sustained damages at least
1
‘‘A prejudgment remedy application is brought as a prelude to the filing
of a civil action, and is meant to determine whether security should be
provided for any judgment ultimately recovered by the plaintiff if he or she
is successful on the merits of the civil action.’’ (Internal quotation marks
omitted.) Adler v. Rosenthal, 163 Conn. App. 663, 676, 134 A.3d 717 (2016);
see also Caciopoli v. Howell, 124 Conn. App. 273, 277, 5 A.3d 509 (2010)
(‘‘[a] prejudgment attachment is a provisional remedy afforded to a claimant
to secure satisfaction of a judgment in the future’’ (internal quotation marks
omitted)). ‘‘A prejudgment remedy means any remedy or combination of
remedies that enables a person by way of attachment, foreign attachment,
garnishment or replevin to deprive the defendant in a civil action of, or
affect the use, possession or enjoyment by such defendant of, his property
prior to final judgment . . . . General Statutes § 52-278a (d). A prejudgment
remedy is available upon a finding by the court that there is probable cause
that a judgment in the amount of the prejudgment remedy sought, or in an
amount greater than the amount of the prejudgment remedy sought, taking
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in the amount of $422,012.55 as a result of the defen-
dant’s theft of the plaintiff’s funds and that there was
probable cause to believe that a judgment in the amount
of the prejudgment remedy sought, taking into account
any known defenses, counterclaims, or setoffs, will be
rendered in its favor. Along with the application for
a prejudgment remedy, the plaintiff filed a proposed
complaint, which set forth claims for breach of fiduciary
duty, statutory theft in violation of General Statutes
§ 52-564,2 conversion, unjust enrichment, and violations
of CUTPA.3 Specifically, the proposed complaint alleged
that the plaintiff is a family operated jewelry store
located in Middletown and owned by Marc Levin, and
that the defendant began working for the plaintiff in
2002 and continued to do so for more than twenty years
in multiple roles, most recently as an office manager.
It further alleged that, in April, 2023, the plaintiff termi-
nated the defendant’s employment after the plaintiff
discovered the defendant ‘‘attempt[ing] to delete valu-
able company information from [the plaintiff’s] main
computer . . . in an effort to hide her theft and misap-
propriation of [the plaintiff’s] funds for her own per-
sonal use,’’ and that the defendant used ‘‘at least
$140,670.85’’ of the plaintiff’s funds to pay for a relative’s
wedding and to make ‘‘routine purchases for her own
personal gain . . . .’’
The court, Shah, J., held a hearing4 on the plaintiff’s
application for a prejudgment remedy on May 9, 2024,
into account any defenses, counterclaims or set-offs, will be rendered in
the matter in favor of the plaintiff . . . . General Statutes § 52-278d (a)
(1).’’ (Internal quotation marks omitted.) Prescott v. Gilshteyn, 227 Conn.
App. 553, 563, 322 A.3d 1060, cert. denied, 350 Conn. 926, 326 A.3d 248 (2024).
2
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.’’
3
The proposed complaint also sought a declaratory judgment concerning
the rights of the parties with respect to certain social media accounts.
4
We note that the defendant has not provided this court with a copy of
the transcript of the hearing, and, as a result, we do not know whether the
hearing consisted of oral argument and reliance on affidavits, or whether
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and ordered the parties to submit posthearing briefs by
May 16, 2024. Both parties complied with the court’s
order and submitted their respective briefs on May 16,
2024. In her posthearing brief, the defendant claimed,
for the first time, that the plaintiff’s application for a
prejudgment remedy, in which the plaintiff sought an
attachment of certain property in Middlefield where
the defendant resides, should be denied because the
defendant’s home in Middlefield is exempt from attach-
ment under the homestead exemption.5 In a written
decision dated May 21, 2024, the court granted the plain-
tiff’s application for a prejudgment remedy in the
amount of $554,260.35, ordering that the plaintiff ‘‘may
attach, garnish and/or encumber to the value of
$554,260.35 . . . the property and/or assets of the
defendant . . . in any real or personal property . . . .’’
In its order, the court did not specifically refer to the
homestead exemption, although it did state that it con-
sidered ‘‘any known defenses, counterclaims, and/or
setoffs . . . .’’ This appeal followed.
On appeal, the defendant claims that the court
improperly granted the plaintiff’s application for a pre-
judgment remedy in the amount of $554,260.35 allowing
for the attachment of the defendant’s home because it
failed to consider and to apply the homestead exemp-
tion.6 See General Statutes § 52-352b (21). The plaintiff
there was testimony and exhibits presented. In its written decision, the
court merely stated that it had made its findings ‘‘[a]fter due hearing at
which the plaintiff and the defendant appeared and were fully heard on the
claims and any defenses . . . .’’
5
In support of this claim, the defendant attached to her posthearing brief
a municipal tax assessment of her home in Middlefield.
6
‘‘The homestead exemption is codified in chapter 906 of the General
Statutes, titled ‘Postjudgment Procedures,’ and ‘relates to the enforcement
of money judgments. Under this chapter, a judgment creditor may enforce
a money judgment by execution or foreclosure ‘against any property of the
judgment debtor unless the property is exempt from application to the
satisfaction of the judgment under section . . . 52-352b . . . or any other
provision of the general statutes or federal law.’ . . . [General Statutes
§] 52-352b sets forth property exempt from postjudgment procedures and
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Connecticut Novelty Co. v. Graichen

counters that the homestead exemption does not apply
to a prejudgment remedy. We leave for another day
the resolution of that issue because, for the following
reasons, we decline to address the merits of the defen-
dant’s claim.
First, the record demonstrates that the defendant
raised her claim regarding the application of the home-
stead exemption for the first time in her posthearing
brief. At oral argument before this court, the defendant’s
counsel acknowledged that the claim was not raised
before the trial court during the hearing on the prejudg-
ment remedy application, and the court did not specifi-
cally address it in its memorandum of decision.
In Connex Credit Union v. Thibodeau, 208 Conn.
App. 861, 872–74, 266 A.3d 930 (2021), appeal dismissed,
346 Conn. 708, 295 A.3d 416 (2023), this court addressed
similar circumstances in which a party raised a claim
for the first time in a posttrial brief and concluded:
‘‘The court shall not be bound to consider a claim unless
it was distinctly raised at the trial or arose subsequent
to the trial. . . . Practice Book § 60-5. [T]he reason for
the rule is obvious: to permit a party to raise a claim
on appeal that has not been raised at trial—after it is
too late for the trial court or the opposing party to
address the claim—would encourage trial by ambus-
cade, which is unfair to both the trial court and the
opposing party. . . . [T]o permit the appellant first to
raise posttrial an issue that [did not arise] during the
course of the trial would circumvent the policy underly-
ing the requirement of timely preservation of issues.
. . . Carroll v. Yankwitt, 203 Conn. App. 449, 479 n.23,
provides in relevant part: ‘The following property of any natural person
shall be exempt . . . (21) The homestead of the exemptioner to the value
of two hundred fifty thousand dollars, provided value shall be determined
as the fair market value of the real property less the amount of any statutory
or consensual lien which encumbers it . . . .’ ’’ (Citations omitted; footnote
omitted.) Ferreira v. Ward, 224 Conn. App. 571, 584–85, 312 A.3d 1075 (2024).
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250 A.3d 696 (2021). This court previously has declined
to review a claim raised for the first time in a posttrial
brief because doing so would contravene the purpose
of the preservation requirement, noting that it was not
surprising that the trial court did not address the [claim
raised for the first time in a posttrial brief] in any manner
in its memorandum of decision. AS Peleus, LLC v. Suc-
cess, Inc., 162 Conn. App. 750, 759–60, 133 A.3d 503
(2016). Thus, because the issue was only raised in the
defendant’s posttrial brief and because the record is
inadequate for review, we do not reach the merits of this
claim.’’ (Emphasis omitted; internal quotation marks
omitted.) Connex Credit Union v. Thibodeau, supra,
873–74. Likewise, in the present case, because the
defendant raised her claim regarding the homestead
exemption for the first time in her posthearing brief, she
did not properly preserve the claim for appellate review.
Additionally, and for similar reasons, the record is
inadequate for this court to review the claim. ‘‘It is the
responsibility of the appellant to provide an adequate
record for review. The appellant shall determine whether
the entire record is complete, correct and otherwise
perfected for presentation on appeal. Practice Book
§ 61-10 (a). This court does not presume error on the
part of the trial court; error must be demonstrated by
an appellant on the basis of an adequate record. . . .
The general purpose of [the relevant] rules of practice
. . . [requiring the appellant to provide a sufficient
record] is to ensure that there is a trial court record
that is adequate for an informed appellate review of
the various claims presented by the parties. . . . Our
role is not to guess at possibilities, but to review claims
based on a complete factual record . . . . Without the
necessary factual and legal conclusions . . . any deci-
sion made by us respecting [the claims raised on appeal]
would be entirely speculative. . . . If an appellant fails
to provide an adequate record, this court may decline
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to review the appellant’s claim.’’ (Internal quotation
marks omitted.) S. C. v. J. C., 227 Conn. App. 326,
334–35, 321 A.3d 427 (2024).
In Connex Credit Union v. Thibodeau, supra, 208
Conn. App. 873, this court concluded: ‘‘Because the trial
court did not consider this issue, the factual record is
wholly inadequate for our review. The court did not
make findings of fact relevant to this specific issue.
Therefore, in asking us to review this claim, the defen-
dant is essentially asking us to make factual findings—
a request with which we cannot comply. See Byrne v.
Spurling, 105 Conn. App. 99, 103, 937 A.2d 70 (2007).
[A]n examination of the plaintiff’s belated arguments
demonstrates the need for factual findings that the
record does not contain. Id. For these reasons, we can-
not address the merits of this claim.’’ (Internal quotation
marks omitted.) Connex Credit Union v. Thibodeau,
supra, 873.
In the present case, even if we assume that the home-
stead exemption applies to a prejudgment remedy, to
demonstrate entitlement to the homestead exemption, a
litigant must submit evidence regarding the fair market
value of the real property at issue, and the court must
make a finding in that regard. See General Statutes § 52-
352b (21) (exempting ‘‘[t]he homestead of the exem-
ptioner to the value of two hundred fifty thousand dol-
lars . . . provided value shall be determined as the
fair market value of the real property’’ (emphasis
added)); General Statutes § 52-352a (‘‘[a]s used in . . .
[section] 52-352b . . . (1) ‘Value’ means fair market
value of the exemptioner’s equity or unencumbered
interest in the property’’ (emphasis added)); see also
Ferreira v. Ward, 224 Conn. App. 571, 586, 312 A.3d
1075 (2024). Again, because the defendant’s claim was
not raised during the hearing on the application for the
prejudgment remedy, no evidence was offered regard-
ing the fair market value of the defendant’s home, nor
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did the court make any such finding.7 The defendant’s
counsel acknowledged this during oral argument before
this court. ‘‘[I]t is axiomatic that this court, as an appel-
late tribunal, cannot find facts . . . .’’ (Internal quota-
tion marks omitted.) Nowak v. Environmental Energy
Services, Inc., 218 Conn. App. 516, 526, 292 A.3d 4
(2023). Moreover, without a finding by the trial court
concerning the fair market value of the defendant’s
home, this court would have to resort to speculation
to resolve her claim. See, e.g., Lederle v. Spivey, 151
Conn. App. 813, 816–18, 96 A.3d 1259 (declining to
review appellant’s claim due to inadequate record when
resolving claim would have required this court to ‘‘spec-
ulate as to the existence and nature’’ of underlying
facts), cert. denied, 314 Conn. 932, 102 A.3d 84 (2014);
Caciopoli v. Howell, 124 Conn. App. 273, 277–79, 5 A.3d
509 (2010) (declining to review claim challenging amount
of prejudgment remedy due to inadequate record).
Accordingly, because the defendant’s claim regarding
the homestead exemption was raised for the first time
in the defendant’s posthearing brief and because the
7
The defendant concedes that there is no evidence in the record of the
fair market value of her home in Middlefield; however, she contends that
the municipal tax assessment that she attached to her posthearing brief;
see footnote 5 of this opinion; provides a sufficient basis from which this
court could determine the value of her home and, thus, review her claim.
The plaintiff counters that, because the tax assessment was never presented
to the court at the hearing on the prejudgment remedy application, it was
never authenticated or submitted into evidence; therefore, it ‘‘is not even
evidence before this court . . . .’’ The plaintiff further asserts that, even if
this court were to consider the tax assessment as evidence, ‘‘[a]ssessed
value does not constitute fair market value.’’ We agree with the plaintiff
that the tax assessment is not properly before this court. See In re Corey
C., 198 Conn. App. 41, 62 n.18, 232 A.3d 1237 (‘‘[W]e cannot consider evidence
not available to the trial court to find adjudicative facts for the first time
on appeal. . . . It is well established that this court does not find facts.’’
(Internal quotation marks omitted.)), cert. denied, 335 Conn. 930, 236 A.3d
217 (2020); see also Bethel Baseball Assn., Inc. v. Dyer, 231 Conn. App. 721,
742–43 n.11, 334 A.3d 1034 (2025) (declining to review claim predicated on
evidence not in record).
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record is inadequate for review, we decline to reach
the merits of the defendant’s claim. See Connex Credit
Union v. Thibodeau, supra, 208 Conn. App. 874.
The judgment is affirmed.
In this opinion the other judges concurred.