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  NOROTON PROPERTIES, LLC v. SHERIF M.
              LAWENDY
              (AC 35827)
                Alvord, Mullins and West, Js.
  Argued September 24—officially released December 23, 2014

 (Appeal from Superior Court, judicial district of
Stamford-Norwalk, Hon. Kevin Tierney, judge trial
                   referee.)
Edward Kanowitz, for the appellant (plaintiff).
Brenden P. Leydon, for the appellee (defendant).
                           Opinion

   ALVORD, J. The plaintiff, Noroton Properties, LLC,
appeals from the judgment of the trial court, rendered
after a trial to the court, in favor of the defendant, Sherif
M. Lawendy, in this action to foreclose a commercial
mortgage. The court concluded that the plaintiff failed
to prove that the defendant was in default of the mort-
gage note and, accordingly, declined to award the plain-
tiff an appraisal fee, a title search fee, late fees, default
interest, or attorney’s fees. On appeal, the plaintiff
claims that the court improperly (1) found that the
parties mutually agreed to extend the maturity date of
the mortgage note, (2) determined that the mortgage
note provided a ten day grace period for the payment
of the final balloon payment, (3) concluded that the
defendant satisfied his obligations by being ‘‘ready, will-
ing and able’’ to make the final payment in April, 2011,
rather than by making a ‘‘bona fide offer and tender’’
of payment as required by General Statutes § 49-13,
(4) found that the plaintiff would not have accepted
payment from the defendant in April, 2011, and (5)
determined that the plaintiff was not entitled to attor-
ney’s fees because the remaining amount due under the
mortgage note was not collected in ‘‘court proceed-
ings.’’ We agree with the plaintiff’s first claim and,
accordingly, reverse the judgment of the trial court.1
  The court’s memoranda of decision2 and the record
reveal the following facts and procedural history. On
March 20, 2009, the defendant executed a mortgage in
favor of ‘‘The 1031 Exchange Experts, LLC, Qualified
Intermediary (or QI) for Noroton Properties, LLC,
Exchanger,’’ on commercial property he owned in Nor-
walk, to secure his payment of a mortgage note in the
amount of $75,000. The note and mortgage were
assigned to the plaintiff, and the assignment was duly
recorded in the Norwalk land records.
   The terms of the mortgage note provided that the
defendant was to make monthly installments of princi-
pal and interest in the amount of $537.32, commencing
on April 20, 2009, and continuing on the twentieth day
of each succeeding calendar month. The defendant was
required to make one final balloon payment of
$71,409.22, which would be the outstanding principal
amount due under the note, plus all accrued interest,
on the ‘‘Maturity Date’’ of March 20, 2011. The note also
contained the following provision: ‘‘This Note may not
be changed orally, but only by an agreement in writing,
signed by the Lender and the Maker.’’
  The defendant made all twenty-three monthly install-
ment payments on time. Notwithstanding the terms of
the note, however, the defendant sent the plaintiff an
additional monthly installment payment in the amount
of $537.32 by check dated March 15, 2011. The plaintiff,
by e-mail dated March 17, 2011, acknowledged the
defendant’s ‘‘usual monthly mortgage payment,’’ but
reminded the defendant that the note was due and pay-
able on March 20, 2011, and asked whether he wanted
the plaintiff to deposit the check or to return it to him
‘‘at payoff.’’ The defendant responded by e-mail that he
was ‘‘unprepared to close the note on 3/20/11’’ and asked
for a thirty day extension of time to make the final
balloon payment. On March 19, 2011, the plaintiff
e-mailed the defendant and stated that it would grant
the requested extension upon payment of a $5000 fee.
The defendant did not pay the fee or make the final
balloon payment on March 20, 2011. The plaintiff com-
menced the present foreclosure action on September
7, 2011.
   Following a three day trial on the issue of liability, the
court issued its memorandum of decision on January 9,
2013. The court concluded that the defendant was not
in default for his failure to make the $71,409.22 balloon
payment on March 20, 2011. In reaching that conclusion,
the court made the following determinations: ‘‘The
court finds that the parties mutually agreed to extend
the March 20, 2011 maturity date to April 20, 2011 by
the tender and acceptance of the March 15, 2011 $537.32
check. The court finds that the Mortgage Note had a
ten day grace period. That ten day grace period gave
the defendant the right to tender full payment of the
principal and six (6.0%) percent interest to April 30,
2011. The defendant was ready, willing and able to
tender that full payment of principal and interest on
April 29, 2011. The court further finds that the plaintiff
would not have accepted that payment of $70,871.80
principal plus six (6.0%) percent interest therein from
March 20, 2011 to April 29, 2011, due to the plaintiff’s
insistence on the ten (10.0%) percent late charge, twelve
(12.0%) [percent] default interest and attorney fees.’’
   For those reasons, the court concluded that the plain-
tiff had failed to prove that the defendant was in default
of the mortgage note. In the court’s January 9, 2013
decision, it found that the principal and interest due
under the note as of January 9, 2013 was $78,608.06,
with per diem interest of $11.81. By treasurer’s check
dated January 18, 2013, the defendant paid the plaintiff
the sum of $78,714.35.
   Subsequently, the court held an additional two day
evidentiary hearing to consider the remaining issues
raised by the parties. The hearing concluded on March
14, 2013. No posthearing briefs were filed. By memoran-
dum of decision issued June 17, 2013, the court con-
firmed its finding that the plaintiff had failed to prove
that the defendant was in default of the mortgage note.
For that reason, the court concluded that the plaintiff
was not entitled to late fees, default interest, an
appraisal fee, a title search fee, or attorney’s fees under
the provisions of either the note or mortgage. The court
rendered judgment in favor of the defendant. This
appeal followed.
  We now consider the dispositive issue on appeal,
which is whether the court improperly determined that
the parties had mutually agreed to extend the maturity
date by the tender and acceptance of the defendant’s
March 15, 2011 check for $537.32. The March 15, 2011
check, having been sent by the defendant to the plaintiff
and having been retained by the plaintiff, was the sole
basis provided by the court for its finding of a mutual
agreement to extend the maturity date of the mortgage
note. No case law or other legal authority was cited by
the court to support this determination.
   ‘‘A promissory note is nothing more than a written
contract for the payment of money, and, as such, con-
tract law applies. . . . The rules governing contract
formation are well settled. . . . [A]n offer imposes no
obligation upon either party, until it is accepted by the
offeree, according to the terms in which the offer was
made.’’ (Citation omitted; internal quotation marks
omitted.) TD Bank, N.A. v. M.J. Holdings, LLC, 143
Conn. App. 322, 331, 71 A.3d 541 (2013). ‘‘Likewise,
[f]or a valid modification to exist, there must be mutual
assent to the meaning and conditions of the modifica-
tion and the parties must assent to the same thing in
the same sense. . . . Modification of a contract may
be inferred from the attendant circumstances and con-
duct of the parties. . . . A modification of an
agreement must be supported by valid consideration
and requires a party to do, or promise to do, something
further than, or different from, that which he is already
bound to do.’’ (Internal quotation marks omitted.) Id.,
332.
   ‘‘Whether the parties to a contract intended to modify
the contract is a question of fact. . . . The resolution
of conflicting factual claims falls within the province
of the trial court. . . . The trial court’s findings are
binding upon this court unless they are clearly errone-
ous in light of the evidence and the pleadings in the
record as a whole. . . . We cannot retry the facts or
pass on the credibility of the witness. . . . A finding
of fact is clearly erroneous when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Citation omit-
ted; internal quotation marks omitted.) Torgerson v.
Kenny, 97 Conn. App. 609, 616, 905 A.2d 715 (2006),
cert. denied, 281 Conn. 913, 916 A.2d 54 (2007).
  The following additional facts are necessary for our
resolution of the plaintiff’s claim. When the plaintiff
received the defendant’s March 15, 2011 check in the
amount of $537.32, the plaintiff made the following
inquiries of the defendant by an e-mail sent on March 17,
2011: ‘‘We are in receipt of your usual monthly mortgage
payment. Thank you.
  ‘‘The note is due and payable in full, $71,409.22 on
March 20, 2011. What are your plans for payment? Will
you have [your attorney] prepare release documents
for me to execute?
  ‘‘Do you prefer that I deposit the check or return it
to you at payoff?’’
   In response to the plaintiff’s inquiries, the defendant
e-mailed the following message on March 19, 2011: ‘‘I
just got back into town and saw your e-mail. I have
been working with a bank to convert the remainder of
the note into a term loan. I thought I had a while longer
to get this done, as my first payment was made April,
2009. The documents do, however, say March 20, 2011.
I apologize for being unprepared to close the note on
3/20/2011. This was an oversight on my part. If you
would be so kind to give me a 30 day extension in
order to arrange my finances, I will be able to close
the note no later than May 1, 2011. My banker is back
from vacation this Tuesday, and I have a phone call in
to him to expedite the process. In the meantime, please
deposit the most recent check. If you are amenable to
this, I will send another check for the month of April
and close the note no later than May 1, 2011. My attor-
ney will be happy to draft any paperwork you may need
regarding this matter.’’ (Emphasis added.)
   Within one hour, the plaintiff responded: ‘‘We cannot
accept your request to extend the loan. We are obligated
to repay our lender . . . with these monies. I cannot
allow your poor planning to damage my credit. . . .
Please arrange for payment on Monday.’’ Approxi-
mately twenty minutes later, the defendant replied: ‘‘I
cannot close on Mon[day].’’ The plaintiff’s responding
e-mail, sent fifteen minutes later, stated: ‘‘We will start
foreclosure proceedings Monday.’’ The plaintiff’s final
e-mail to the defendant that day, sent at approximately
3:30 p.m., extended the following offer: ‘‘If you wish
the forty day extension that you have requested we
will require an immediate fee of $5,000 to offset [the]
additional costs and processes to try to rearrange the
financing on our end.’’ The defendant did not make the
final balloon payment on March 20, 2011, nor did he
pay the plaintiff $5000 for an extension of time to make
the final payment.
  At trial, the defendant testified that the plaintiff never
returned his March 15, 2011 check in the amount of
$537.32, nor did the plaintiff deposit that check into an
account. The defendant also testified that he wrote that
check because ‘‘it was an amount I thought that I still
owed.’’ He later clarified that testimony: ‘‘I thought I
was making an additional installment payment. I had
no idea that the—I didn’t realize that the term of the
loan was that month, my first payment was in April,
2009. I thought I had until April, 2011. It was an error
on my part.’’
   When questioned about the maturity date set forth
in the mortgage note, the defendant testified that he
reviewed the note and realized that the final payment
was due on March 20, 2011, after he received the plain-
tiff’s e-mail. He agreed that the balance due on March
20, 2011, was $71,409.22 and that he did not make that
payment because he did not have available funds at
the time. The defendant further acknowledged that the
plaintiff offered to extend the time for payment only if
the defendant paid a $5000 fee. The defendant testified:
‘‘I believe [the extension] was granted based on the
caveat that if I were to pay [the plaintiff’s owner] $5000,
he would grant me the forty-five day extension.’’ When
asked if he agreed to pay the $5000 fee, the defendant
testified: ‘‘No, I didn’t agree to pay that because [the
plaintiff’s owner] couldn’t substantiate what that $5000
was for.’’ When asked whether he thought he had an
additional thirty days to pay the remaining amount due
under the note, the defendant responded: ‘‘I didn’t think
I had an additional amount of time because there
were no more additional responses by [the plaintiff’s
owner], or demands after that period of time. He never
responded back saying, I don’t grant the thirty days,
or, here’s the payoff statement.’’ (Emphasis added.)
    On appeal, the plaintiff claims that the court improp-
erly found that the parties mutually agreed to extend
the maturity date of the mortgage note. The plaintiff
argues that the basis for the court’s determination was
‘‘inadequate to support the finding of any such
agreement when faced with the terms of the note3 and
the statute of frauds.’’ The plaintiff further argues that
‘‘[t]he finding of an agreement is clearly erroneous, and
it is not supported by the evidence.’’ The defendant
counters that the court’s factual determination that the
maturity date of the mortgage note had been modified
by the parties was supported by the plaintiff’s accep-
tance of the March 15, 2011 payment. Citing Borst v.
Ruff, 137 Conn. 359, 362, 77 A.2d 343 (1950), he argues
that the plaintiff’s retention of that check extended the
maturity date because ‘‘[a] long, unexplained retention
of a check tends to show its acceptance for the purpose
for which it was given.’’ The defendant also claims that
we should not consider the plaintiff’s argument regard-
ing the statute of frauds because there is nothing in
the record that indicates the plaintiff raised that issue
before the trial court.
   We agree with the defendant that the record before
this court is inadequate to consider the plaintiff’s statute
of frauds claim. The partial trial transcripts provided
by the plaintiff for this appeal include only the testimony
of the witnesses. Counsel’s arguments before the trial
court are not part of the record. Further, the court’s
memoranda of decision do not mention the statute of
frauds. Additionally, no posthearing briefs were filed
by the parties. In the absence of a more complete
record, we are unable to determine whether the issue
was properly preserved and decline to review this
claim.4
   With respect to the terms of the mortgage note, the
plaintiff is correct that the express terms of the contract
preclude an oral modification of the maturity date.
Nonetheless, as argued by the defendant, it is well set-
tled that the conduct of the parties may establish a
modification under certain circumstances. ‘‘Because
the conduct of the parties was sufficient to establish a
modification of the contract extending its performance
date, the fact that there was no explicit agreement to
extend the time for performance is of no import. . . .
[W]e reject the [plaintiff’s] claim that there could be no
modification because the contract specifically provided
for modifications to be in writing. . . . [D]espite the
presence of such a clause in a contract, a modification
by subsequent parol agreement will be given effect.
. . . We see no reason why this principle should not
also apply to a modification implied in fact from the
conduct of the parties.’’ (Citation omitted.) McKenna
v. Woods, 21 Conn. App. 528, 533, 574 A.2d 836 (1990).
  Nevertheless, on the basis of our review of the record,
we conclude that the evidence does not support the
court’s finding that the parties mutually agreed to the
extension of the maturity date of the mortgage note.
Although the court correctly found that the defendant
tendered the March 15, 2011 check in the amount of
$537.32 and that the plaintiff neither returned it to the
defendant nor deposited it into an account, that fact
alone does not automatically extend the maturity date.
There is no case law to support such a conclusion under
the circumstances of this case.
  The defendant admittedly sent the March 15, 2011
installment payment in error. He thought the final bal-
loon payment was due the following month. Accord-
ingly, the check was not sent with a request to extend
the maturity date. The question of an extension of that
date arose only after the plaintiff reminded the defen-
dant that the final balloon payment was due on March
20, 2011, and the defendant indicated that he did not
have available funds to make the payment on the stated
maturity date. Consequently, the court could not have
reasonably found from the evidence that the installment
payment represented a request for an extension, which
the plaintiff assented to by failing to return the check.5
   Further, the e-mail correspondence clearly shows
that the plaintiff did not agree to an extension when it
acknowledged receipt of the March 15, 2011 check.
After thanking the defendant for the check, the plaintiff
reminded him that the final balloon payment was due
on March 20, 2011, and inquired whether the defendant
wanted the check deposited or returned to the defen-
dant ‘‘at payoff.’’ These e-mails do not demonstrate
‘‘mutual assent to the meaning and conditions of the
modification’’ or that the parties assented ‘‘to the same
thing in the same sense.’’ (Internal quotation marks
omitted.) TD Bank, N.A. v. M.J. Holdings, LLC, supra,
143 Conn. App. 332. Furthermore, the defendant testi-
fied at trial that he did not believe that the plaintiff
had granted his request for additional time because the
plaintiff demanded $5000 for a forty day extension and
the defendant would not pay it. Accordingly, we con-
clude that the evidence adduced at trial did not support
the factual finding of the court that the parties mutually
agreed to extend the maturity date of the mortgage
note. ‘‘A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Torgerson v.
Kenny, supra, 97 Conn. App. 616.
  The judgment is reversed and the case is remanded
for a new trial.
      In this opinion the other judges concurred.
  1
     Because the resolution of that issue is dispositive of the appeal, we do
not reach the plaintiff’s remaining claims.
   2
     The court bifurcated the proceedings into two phases, the first phase
addressing the issue of liability and the second phase resolving the plaintiff’s
claim for attorney’s fees and any remaining claims. The court issued a
separate memorandum of decision after each of the two phases.
   3
     As previously discussed, the mortgage note expressly provides: ‘‘This
Note may not be changed orally, but only by an agreement in writing, signed
by the Lender and the Maker.’’ The defendant does not claim that the parties
executed a written modification agreement.
   4
     ‘‘[A]s a general matter, the [appellant] is not entitled to appellate review
of claims that were not raised in the trial court or on which there is an
inadequate record.’’ Flater v. Grace, 291 Conn. 410, 420, 969 A.2d 157 (2009).
   5
     For this reason, the case cited by the defendant, Borst v. Ruff, supra,
137 Conn. 362, is inapposite. In the present case, the check was not given
for the purpose of receiving an extension of the maturity date. The check
was sent in the mistaken belief that the next monthly installment was due.
Accordingly, its retention by the plaintiff did not represent a mutual
agreement with the defendant to modify the maturity date, particularly in
light of the continuing correspondence between the parties.
