text:
    STEVEN EDELMAN v. DAVID PAGE ET AL.
    (AC 30547)
    DiPentima, Harper and Lavine, Js.

      Argued December 7, 2009
    officially released August 17, 2010

      Steven Edelman, pro se, the appellant (plaintiff).

      Matthew B. Beizer, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendant Lonnie Braxton et al.).

       The listing of judges reflects their seniority status on this court, as of the date of oral argument.

   Opinion

LAVINE, J.

The pro se plaintiff, Steven Edelman, appeals from the judgment of the trial court dismissing his action against certain defendants (state defendants) for lack of personal jurisdiction. Although the plaintiff raised a number of claims in his appeal, the pivotal issue is whether the court improperly granted the state defendants’ motion to dismiss for lack of personal jurisdiction due to insufficient service of process. We affirm the judgment of the trial court.

The following facts underlie the present litigation. “While driving by the [plaintiffs] house, Donald Schultz, a building official for the town of Windham, noticed that part of the [plaintiffs] roof was being replaced. After confirming that the [plaintiff] did not have a building permit, Schultz issued a stop work order and prepared a warrant for the [plaintiffs] arrest. The [plaintiff] was arrested, tried and found guilty of performing reroofing work without a permit. He was sentenced to ninety days incarceration and fined $500.” State v. Edelman, 64 Conn. App. 480, 482, 780 A.2d 980 (2001), appeal dismissed, 262 Conn. 392, 815 A.2d 104 (2003). On appeal, this court reversed the plaintiffs conviction, concluding that the denial by the trial court, Foley, J., “of the [plaintiffs] timely request to poll the jurors individually requires automatic reversal of the judgment.” Id., 484. On October 24, 2003, the state entered a nolle prosequi.

The plaintiff brought the present action in September, 2006. In his complaint, the plaintiff alleged violations of the first, fourth, eighth and fourteenth amendments to the constitution of the United States, malicious prosecution, trespass, intentional and negligent infliction of emotional distress, libel, slander and abuse of process against forty defendants. He alleged facts related to his arrest for failure to secure a building permit to replace his roof. On April 1, 2008, the state defendants filed a motion to dismiss the action against each of them for lack of personal jurisdiction due to insufficient service of process, as none of them were served at their respective usual places of abode pursuant to General Statutes § 52-57 (a). In ruling on the state defendants’ motion to dismiss, the court found that the parties did not dispute that the state defendants were sued in their individual capacities and that service was made by leaving the writ of summons and complaint with a secretary in the office of the attorney general. At the hearing on the motion to dismiss, counsel for the plaintiff admitted that “[tjhere’s no sufficient process in this case.” The plaintiff did not dispute that the state defendants were not served at their usual places of abode or that service on the secretary in the attorney general’s office was improper. Rather, the plaintiff argued that the state defendants had waived their right to contest the insufficient service of process. The plaintiffs argument is predicated on the efforts of the remaining nonstate defendants or “Windham defendants” to remove this action to the United States District Court for the District of Connecticut.

During argument on the state defendants’ motion to dismiss, the plaintiff argued that the state defendants were estopped from raising the personal jurisdiction issue or that they had waived their right to contest the insufficient service of process by failing to raise the claim in the District Court; see footnote 4; and that the motion to dismiss was not timely. The court rejected the plaintiffs arguments, citing Practice Book § 10-30, which requires that a motion to dismiss be filed within thirty days of the filing of an appearance. The court found that an assistant attorney general had filed an appearance and the motion to dismiss on April 1, 2008. The court also found that the state defendants had not filed anything in the Superior Court prior to the defendant David Page’s effort to remove the case to the District Court. Because the state defendants’ motion to dismiss was timely filed and the plaintiff conceded that service of process was insufficient, the court granted the state defendants’ motion to dismiss.

The plaintiff, then representing himself, filed a motion to reargue the motion to dismiss, claiming that the state defendants had been sued in their official capacities. The plaintiff failed to raise this claim in his objection to the motion to dismiss or at the time the court had heard oral arguments on the motion to dismiss. The court also noted that the plaintiff was bound by his counsel’s concession that service on the state defendants was insufficient, citing Mamudovski v. BIC Corp., 78 Conn. App. 715, 727, 829 A.2d 47 (2003), appeal dismissed, 271 Conn. 297, 857 A.2d 328 (2004). The court, therefore, denied the plaintiffs motion to reargue. The plaintiff appealed.

During oral argument before this court, the plaintiff repeated the arguments he made in the trial court but also argued that the action had been brought against the state defendants in their individual and official capacities. Consequently, we asked the plaintiff why the trial court had found that “it is undisputed that all of the state defendants were sued in their individual capacity.” The plaintiff represented that the state defendants were served in their individual and official capacities, as demonstrated in the record. During his argument, the assistant attorney general represented that the cover page of the complaint he used to draft the motion to dismiss indicated that the state defendants were being sued in their individual capacities only.

Following oral argument, the state defendants filed a motion for permission to file a motion for rectification or articulation. In the motion for permission to file a motion for rectification or articulation, the assistant attorney general represented that the first page of the complaint served on the state defendants “specifically states that the thirty-three . . . [state defendants] were being sued in their individual capacity only. . . . That page of the Complaint is attested to by Constable Haraghey. . . . The first page of the Complaint filed by the plaintiff in the Windham Superior Court is different than the first page of the Complaint served on the defendants by Constable Haraghey at the Office of the Attorney General. ... In fact, the first page of the Complaint filed by the plaintiff in Superior Court does not include the attestation by Constable Haraghey. Also, the first page of the Complaint filed by the plaintiff in Superior Court indicates that the thirty-three . . . [state defendants] are sued in their individual and official capacities.” Moreover, the trial court “held that it was undisputed that all of the state defendants were served in their individual capacity.” The assistant attorney general also represented that during oral argument on appeal, he “first discovered the above-described discrepancy in the two complaints.” In their motion for rectification or articulation, the state defendants requested that “the Superior Court . . . include the operative complaint served on the defendants in the Court Record, and, if deemed necessary, opine on the significance of said complaint on its decision.” The plaintiff objected to the motion for permission to file a motion for rectification or articulation. We granted the state defendants’ motion for permission to file a motion for rectification or articulation.

The corut held a hearing on April 6, 2010, which was continued until May 12, 2010, and issued its memorandum of decision on June 2, 2010. The court set out the following factual findings. “In their motion for articulation, the state defendants included the served complaint. The first page includes an attestation from Harold Haraghey, Jr., town of Hampton constable, who state[d]: ‘I attest that this document is a true copy of the original.’ At the April 6, 2010 hearing, the plaintiff acknowledged the attestation, but did not admit that the document was the served complaint. He simply referred to the filed complaint and the first revised complaint of July 3, 2008, and argued that it was the operative complaint.” In a footnote, the court stated: “At the April 6, 2010 hearing, the plaintiff attempted to prove that the state defendants knew about the dual capacity claims long before the matter arose at the Appellate Court. Indeed, he introduced copies of the two complaints filed in the United States District Court showing the state defendants being sued in both capacities as well as referencing the first revised complaint dated July 3, 2008, filed in this court as well as other documents. While he is correct that the dual capacity issue has been apparent for some time, this argument misses the point.”

The court further found that on May 12, 2010, “Haraghey testified that the served complaint was not the one returned to court. Rather, he averred that he served the version of the complaint that indicates that the state defendants were being sued only in their individual capacity. . . . [T]he state defendants attached a copy of that complaint to their motion for articulation complete with Haraghey’s attestation . . . .” According to Haraghey, “the plaintiff accompanied him when he served the box of documents, previously provided to him by the plaintiffs father, at the attorney general’s office at 55 Elm Street in Hartford. . . . [Haraghey] did not personally return the documents to court, but believed that the plaintiff returned them.” The court further found that “somehow, the filed complaint indicates that the state defendants are being sued in both capacities and, in the return of service, Haraghey attests that he ‘left true and attested copies of the within original Writ, Summons, and Complaint’ with the attorney general’s office. Thus, it would appear that the filed complaint is not a true copy of that which was served.”

At the April 6, 2010 hearing, the court noted that the state defendants properly sought to dismiss the action for lack of personal jurisdiction on the basis of the complaint that was served on them. In its memorandum of decision, the court framed the issue as “whether the served complaint or the filed complaint controls [the trial court’s] action.” The plaintiff argued that the variance between the two versions of the complaint was circumstantial and should be overlooked pursuant to General Statutes § 52-123. The court disagreed; so do we.

In resolving the issue, the court properly observed that the plaintiff is not a member of the bar and that courts are to be solicitous of pro se parties. “[Although we are solicitous of the rights of pro se litigants . . . [s]uch a litigant is bound by the same rules . . . and procedure as those qualified to practice law.” (Internal quotation marks omitted.) Watkins v. Thomas, 118 Conn. App. 452, 456, 984 A.2d 106 (2009). Thus, the court concluded, courts and the parties are bound by the laws and rules that govern our judicial system.

In its memorandum of decision, the court cited § 52-57 (a), which provides that “[e]xcept as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state” and stated that “due process requires that what is returned to court be exactly the same as what is served on a defendant: a ‘true and attested copy’ of the complaint and any other attached papers. See Denison v. Crafts, 74 Conn. 38, 39, 49 A. 851 (1901) (sustaining demurrer where plaintiff altered writ between issuance and service and rejecting argument that plaintiff was ‘ignorant of our forms of procedure, and compelled to conduct his own case under circumstances that might well invite all permissible indulgence of the court’); DeGroff v. Sheketoff, 16 Conn. Sup. 142, 143 (1949) (sustaining plea in abatement where change was made to writ after service). ‘It is important . . . that there be no material variation between the original signed by the issuing authority and the copy read to or left with the defendant .... [T]here have been cases where the writ was intentionally altered (rather than corrected) after issuance, and such alterations make the service invalid.’ E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 18, p. 37. Such is the case here—service is invalid because of the alteration.”

On the basis of Haraghey’s testimony, the court found that notwithstanding the allegations contained in the complaint and the filing of the revised complaint, the plaintiffs failure to return a “true” copy of the writ of summons and complaint controls the outcome of the motion to dismiss. The operative complaint is the served complaint. We agree with the court that the operative complaint is the complaint that was served on the state defendants.

We also agree that the court properly dismissed the action against the state defendants due to insufficient service. Construction of a complaint is a question of law; see O’Halloran v. Charlotte Hungerford Hospital, 63 Conn. App. 460, 463, 776 A.2d 514 (2001); which we review de novo. Jacaruso v. Lebski, 118 Conn. App. 216, 221, 983 A.2d 45 (2009). Moreover, parties are bound by their pleadings. O’Halloran v. Charlotte Hungerford Hospital, supra, 463. The complaint served on the state defendants alleges that they were being sued in their individual capacities, which required that they be served at their usual places of abode. The plaintiff has acknowledged that service was made on a secretary at the office of the attorney general, not at the state defendants’ usual places of abode. We also agree that the state defendants were not collaterally estopped from filing their motion to dismiss, nor did they waive the right to do so. The court found that the motion to dismiss was filed on the same day that the assistant attorney general filed his appearance in accordance with Practice Book § 10-30.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state defendants are Lonnie Braxton and Keith Currier, assistant state’s attorneys; Rene Barbeau, inspector for the office of the state’s attorney; state’s attorney Mark Solak; Superior Court judge, Hon. Francis Foley; Donald Aitken, William Bundy and James Powers, state police officers; Henry Lee and Arthur Spada, department of public safety commissioners; George Luther, department of public safety deputy commissioner; Christopher Laux, state building inspector; Janet Ainsworth, Dawn Carnese and Christopher Arciero, attorneys for the department of public safety; and Leo Belval, Louis Free, Michael Macri, Marjorie Shansky, Philip Burton, John Butkus, James Doherty, Robert Hanbury, Donald Harwood, Daniel Herzig, Thomas Hunter, Roger Langlois, Debbie Sampson, Laurence Ford, John Vendetta, Lawrence Tryon, Glenn Neilson and Robert Musheno, members of the department of public safely codes and standards committee.
      The following individuals also were named as defendants but are not parties to this appeal: David Page, Windham County deputy sheriff; Donald Schultz, Windham building officer; Windham attorneys Richard Cody and Jason Westcott; and Walter Pawelkiewicz, John Lescoe and Michael Paulhus, first selectmen of Windham.

       In his brief, the plaintiff stated the following claims:
      “1. Did granting a Motion to Dismiss filed after the time period allowed by [Practice Book] § 10-8 involve the commission of plain error and implicate State v. Golding, [213 Conn. 233, 239-40, 567 A.2d 823 (1989)]?
      “2. With the State Defendants sued in both their individual and official capacities but not challenging the sufficiency of official capacity service made upon them, did the Trial Court err by holding that the Plaintiff needed to prove official capacity service sufficiency to preserve an official capacity suit?
      “3. By regarding as relevant only a post-remand State court Motion to Dismiss that alleged service insufficiency for the first time, did the Trial Court err by treating as a nullity prior federal proceedings implicating a forfeiture of both federal and State insufficient service defenses?
      “4. By allowing the State Defendants to benefit from their own removal error and concealment of an insufficient service defense, did the Trial Court render a decision contrary to equitable estoppel doctrine and overlook surprise and injustice prohibited by [Practice Book] § 1-8?
      “5. With an insufficient service defense already forfeited in federal court, did the subsequent Trial Court dismissal for service insufficiency constitute an outcome differential incompatible with the Erie Doctrine?” (Emphasis in original.)

       Counsel representing the plaintiff subsequently -withdrew, and the plaintiff has proceeded as a self-represented party.

       Prior to the commencement of this action, the plaintiff had brought two actions against all of the defendants in the United States District Court for the District of Connecticut. See Edelman v. Page, United States District Court, Docket No. 3:06-CV-1366 (DJS) (D. Conn.); Edelman v. Braxton, United States District Court, Docket No. 3:01-CV-01087 (DJS) (D. Conn.).
      On September 1,2006, the defendant David Page, Windham County deputy sheriff, sought to remove the trial court action to the United States District Court where the two federal actions were pending. The plaintiff opposed the removal, arguing that Page had failed to join all of the defendants in the removal petition. Prior to Page’s filing of the removal petition, the state defendants took no action in this matter and did not file appearances. The assistant attorney general representing the state defendants, however, filed an appearance in the District Court and a motion to dismiss the action on the basis of the prior pending action doctrine. The District Court “rejected the defendants’ position that they ail consented to removal and remanded the case” to the Superior Court. See Edelman v. Page, supra, United States District Court, Docket No. 3:06-CV-01366 (DJS).

       Practice Book § 10-30 provides in relevant part: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. ...”

       The plaintiff argued that the appearance was not filed within thirty days of the remand, which occurred on February 15, 2008. That is when the District Court ordered the remand, but the case was not received by the Superior Court until February 29, 2008. The trial court found that the assistant attorney general’s appearance and the motion to dismiss were filed within thirty days of the remand because the thirtieth day fell on a Sunday and the motion to dismiss was filed the next day.

       Subsequently, the plaintiff also filed a motion for permission to file a motion for rectification in which he represented that “[a]t [the] December 7, 2009 oral argument, the State Defendants-Appellees claimed to have just realized that they face official capacity suit. A First Revised Complaint, however, comports with the Complaint in the Record by again listing the State Defendants-Appellees as sued in both their individual and official capacities. The First Revised Complaint should therefore serve as the operative complaint in this case.” (Emphasis in original.) We granted the motion for permission to file motion for rectification and ordered the motion for rectification referred to the trial court “for any action the trial court deems necessary.”

       General Statutes § 52-123 provides: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.”


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    TOWN OF TRUMBULL v. LINDA A. PALMER, EXECUTRIX (ESTATE OF MICHAEL A. KNOPICK), ET AL.
    (AC 30059)
    Beach, Robinson and Peters, Js.

      Argued February 5
    officially released August 17, 2010

      Helene B. Knopick, pro se, the appellant (defendant).

      Linda A. Palmer, pro se, the appellant (proposed intervenor).

      Robert G. Golger, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The pro se defendant Helene B. Knopick and the would-be intervenor, Linda A. Palmer, appeal from the judgment of the trial court setting a new sale date and denying their motion to open and vacate the judgment rendered in favor of the plaintiff, the town of Trumbull, and the court’s denial of Palmer’s motions to intervene. The issues on appeal are whether the court abused its discretion by denying (1) Palmer’s motions to intervene in her individual and fiduciary capacities, and (2) the motion to open and vacate the judgment. We dismiss Palmer’s appeal and affirm the judgment of the trial court.

The underlying facts of this case were set out in detail in Trumbull v. Palmer, 104 Conn. App. 498, 934 A.2d 323 (2007), cert. denied, 286 Conn. 905, 944 A.2d 981 (2008). We will address only those facts and the procedural history necessary to address the claims in this appeal. Michael A. Knopick (decedent) executed his last will on May 27, 1989, leaving to the defendant all of his interest in their home at 29 Haverhill Road in Trumbull (property). Id., 500. The decedent died on June 20,1989, and his will, naming Palmer as executrix, was admitted to probate on January 19, 1990. Id. A certificate of devise reflecting the defendant’s absolute interest in the property, however, was never filed in the land records. From October 1, 1990, and annually thereafter, through October 1, 2000, the plaintiff assessed and levied a tax on the property and billed the owners of record, the decedent and the defendant. Id. None of the taxes assessed on the property during that time were paid. The plaintiff, therefore, placed “certificates of lien in the land records for each delinquent tax.” Id. In August, 2002, the plaintiff commenced an action seeking to foreclose the eleven municipal tax liens against the property. Id., 500-501. “Following a hearing on September 13, 2005, the court [Richards, J.] rendered judgment of foreclosure by sale with a sale date of November 12, 2005.” Id., 501. The defendant appealed. This court affirmed the judgment of foreclosure by sale and remanded the case for the purpose of setting a new sale date. Id., 515.

On remand, on April 9, 2008, the plaintiff filed a motion for a new sale date and asked the court, Blawie, J., to recalculate the amount of the debt and to award it attorney’s fees for the defendant’s appeal. On May 16, 2008, the defendant and Palmer opposed the motion for a new sale date, claiming that the court lacked subject matter jurisdiction over the action and that the plaintiff had perpetrated a fraud on the court. On May 19, 2008, the defendant and Palmer filed a motion to open and vacate the judgment, again asserting that the plaintiff and its counsel had perpetrated a fraud on the court and that the court lacked subject matter jurisdiction. The defendant and Palmer based their claim of fraud on the fact that the action was brought against the decedent’s estate, not the fiduciary of the estate, and that the action had been withdrawn against the estate and Palmer individually prior to trial. The motion to open and vacate the judgment stated in part that “[n]o notice was ever given to [the defendant] or Palmer not even at trial that [the] [p]laintiff sought to recover against [the defendant] for the claims it plead[edj against the [e]state.” The court overruled the objection to the motion for a new sale date and, on June 4, 2008, denied the motion to open and vacate the judgment.

On May 19, 2008, Palmer filed a motion to intervene, individually and in her fiduciary capacity as executrix. In her affidavit, Palmer represented that the defendant had quitclaimed 50 percent of her interest in the property to Palmer. The court denied the motion to intervene on June 4, 2008. The court granted the plaintiffs motion for a new sale date on June 24, 2008. On June 24, 2008, Palmer filed a second motion to intervene for the purpose of filing an appeal. The court denied the second motion to intervene on June 25, 2008. The defendant and Palmer filed numerous motions for reconsideration and reargument.

Palmer and the defendant filed an appeal and amended it twice. They also filed postjudgment motions asking the court to issue a memorandum of decision stating the factual and legal bases for its rulings with respect to all of their motions. The court denied those motions. Thereafter, the defendant and Palmer filed a motion for review of the court’s denial of their motion for articulation. This court granted the motion for review and the relief requested therein. On March 4, 2009, the court filed an articulation of its decision.

I

Our first order of business is to determine whether Palmer is a proper party to this appeal. “A threshold inquiry of this court upon every appeal presented to it is the question of appellate jurisdiction. ... It is well established that the subject matter jurisdiction of the Appellate Court and of this court is governed by [General Statutes] § 52-263, which provides that an aggrieved party may appeal to the court having jurisdiction from the final judgment of the court.” (Citation omitted; emphasis in original; internal quotation marks omitted.) King v. Sultar, 253 Conn. 429, 434, 754 A.2d 782 (2000). “Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. . . . [0]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case. ... H it becomes apparent to the court that such jurisdiction is lacking, the appeal must be dismissed.” (Citation omitted; internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 624-25, 822 A.2d 196 (2003).

Section 52-263 “explicitly sets out three criteria that must be met in order to establish subject matter jurisdiction for appellate review: (1) the appellant must be a party; (2) the appellant must be aggrieved by the trial court’s decision; and (3) the appeal must be taken from a final judgment.” State v. Salmon, 250 Conn. 147, 153, 735 A.2d 333 (1999). “Ordinarily, the word party has a technical legal meaning, referring to those by or against whom a legal suit is brought . . . the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons. . . . This definition of party, which we also have labeled party status in court . . . includes only those who are parties to the underlying action.” (Citations omitted; internal quotation marks omitted.) Id., 154. To resolve this question, we must address Palmer’s claims that the court improperly denied her motion to intervene as executrix of the decedent’s estate and individually.

“The fundamental test for establishing classical aggrievement is well settled: [F]irst, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision .... Second, the party claiming aggrievement also must demonstrate that its asserted interest has been specially and injuriously affected in a way that is cognizable by law.” (Internal quotation marks omitted.) King v. Sultar, supra, 253 Conn. 434-35. Ordinarily, “review by way of appeal pursuant to § 52-263 is available only to parties to an underlying action . . . .” (Citation omitted; internal quotation marks omitted.) Id., 436. In King, our Supreme Court considered whether a person whose motion to intervene had been denied by the trial court satisfied the party status requirement of § 52-263. “[I]f a would-be intervenor has a colorable claim to intervention as a matter of right . . . both the final judgment and party status prongs of our test for appellate jurisdiction are satisfied.” (Citation omitted; internal quotation marks omitted.) Id. The question then is whether Palmer had a colorable claim to intervene. We conclude that she did not.

The defendant and Palmer claim that the court improperly denied Palmer’s motion to intervene as a matter of right, or in the alternative, permissively. The scope of review over a claim of intervention as a matter of right is plenary. Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 454-55, 904 A.2d 137 (2006).

“[F]or a proposed intervenor to establish that it is entitled to intervene as a matter of right, the proposed intervenor must satisfy a well established four element conjunctive test: [T]he motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the movant’s interest must be impaired by disposition of the litigation without the movant’s involvement and the movant’s interest must not be represented adequately by any party to the litigation. ... A proposed intervenor must allege sufficient facts, through its motion to intervene and the pleadings, to make the requisite showing of its right to intervene. ... No additional testimony or evidence is required. . . . Failure to meet any one of the four elements, however, will preclude intervention as of right.” (Citations omitted; internal quotation marks omitted.) BNY Western Trust v. Roman, 295 Conn. 194, 205-206, 990 A.2d 853 (2010).

A

Palmer and the defendant claim that Palmer, as executrix of the decedent’s estate, was entitled to intervene as a matter of right and, therefore, the court improperly denied Palmer’s motion to intervene in that capacity. That claim fails because Palmer cannot demonstrate that, as executrix, she had a direct and substantial interest in the subject of the underlying litigation, which was to foreclose the title interest in the property.

In Trumbull, the defendant claimed that the plaintiff had presented insufficient evidence to prove that she alone held title to the property. Trumbull v. Palmer, supra, 104 Conn. App. 504. This court concluded that the trial court “reasonably could have found that the defendant acquired the decedent’s title to the property. The certificates of lien showed that the decedent and the defendant shared title to the property until the decedent’s death on June 20, 1989. Through his will, the decedent devised his entire interest in the property to the defendant. Title to the decedent’s share of the property subsequently vested in the defendant on January 18, 1990, when the decedent’s will was admitted to probate. See Cardillo v. Cardillo, 27 Conn. App. 208, 212, 605 A.2d 576 (1992) [(‘[i]t is fundamental jurisprudence that title to real estate vests immediately at death in a deceased’s heirs, or in devisees upon the admission of the will to probate’)].” Trumbull v. Palmer, supra, 506. At the time the judgment of foreclosure by sale was rendered, the estate had no interest in the property, and Palmer, as fiduciary of the estate, had no interest in the property. For that reason, Palmer has failed to assert a colorable claim entitling her to intervene as a matter of right. The trial court properly denied her motion to intervene as executrix of the decedent’s estate.

B

Palmer and the defendant claim that Palmer’s one-half interest in the property entitles her to intervene as a matter of right. We disagree because Palmer has failed to allege facts that demonstrate that her interest in the property will be impaired by the disposition of the litigation without her involvement. See BNY Western Trust v. Roman, supra, 295 Conn. 205.

The record reveals that in her motion to intervene filed on May 19, 2008, Palmer represented that the defendant had quitclaimed 50 percent of her interest in the property to Palmer on April 15, 2008. In her affidavit in support of her motion to intervene, Palmer attested to her personal interest in the property, that “the foreclosure judgment was fraudulently obtained” and that her “appearance in this matter is necessary for the court to learn the truth of these matters.” The record demonstrates that Palmer’s purpose for seeking to intervene was to join the defendant’s motion to set aside the foreclosure judgment; Palmer did not seek to intervene to exercise her right of redemption. See Washington Trust Co. v. Smith, 241 Conn. 734, 745, 699 A.2d 73 (1997) (party may timely intervene to exercise right of redemption), overruled in part on other grounds by Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 455, 904 A.2d 137 (2006); see Kerrigan v. Commissioner of Public Health, supra, 454-55 (except for timeliness of motion to intervene, trial court’s decision on motion to intervene subject to plenary review).

When the plaintiff commenced this action, it attached to the complaint a certified copy of a lis pendens filed in the Trumbull land records. “An encumbrance is a burden on the title and, as such, impedes its transfer.” Ghent v. Meadowhaven Condominium, Inc., 77 Conn. App. 276, 284, 823 A.2d 355 (2003). “A notice of lis pendens warns all persons that certain property is the subject matter of litigation and that any interests acquired during the pendency of the action are subject to its outcome. . . . Accordingly, any party whose interest in the property arose during the interim period is subject to the final judgment.” (Internal quotation marks omitted.) LaPenta v. Bank One, N.A., 101 Conn. App. 730, 737, 924 A.2d 868, cert. denied, 284 Conn. 905, 931 A.2d 264 (2007).

In her affidavit, Palmer asserted that the judgment of foreclosure was obtained by fraud, and she sought to assist the defendant in opening the judgment on that basis. In ruling on the motion to open the judgment, the court concluded that the plaintiff had not obtained the judgment of foreclosure by fraud. In part II of this opinion, we affirm the court’s reasoning and ruling on the motion to open the judgment. Palmer, therefore, has failed to allege facts demonstrating that her interest will be impaired by the disposition of the litigation without her involvement. The court, therefore, properly denied Palmer’s motion to intervene as a matter of right.

Palmer has not satisfied the three Salmon factors; see State v. Salmon, supra, 250 Conn. 153; and is not a proper party to this appeal. The appeal as to the motion to intervene is dismissed.

II

The defendant claims, as a matter of law, that the court improperly denied the motion to open and vacate the judgment. We disagree.

The defendant claims that our review of this claim should be plenary because her claim in the trial court was based on fraud. We disagree. “Our review of a court’s denial of a motion to open [based on fraud] is well settled. We do not undertake a plenary review of the merits of a decision of the trial court ... to deny a motion to open a judgment. ... In an appeal from a denial of a motion to open a judgment, our review is limited to the issue of whether the trial court has acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Spilke v. Spilke, 116 Conn. App. 590, 594—95, 976 A.2d 69, cert. denied, 294 Conn. 918, 984 A.2d 68 (2009).

In response to this court’s order for compliance, the trial court stated, in relevant part: “The court used as its touchstone the careful and well-reasoned opinion of the Appellate Court, a decision which was allowed to stand by the Supreme Court, Trumbull v. Palmer, [supra, 104 Conn. App. 498]. That opinion concludes as follows: ‘The judgment is affirmed and the case is remanded for [the purpose] of setting a new sale date’. . . . Id., [515].”

The court continued: “The case was returned to the trial level, and this court attempted to comply with the order of the Appellate Court to set a new sale date. The defendant (and proposed intervenor) moved to open. The principles that govern motions to open a judgment are well established. Such motions are addressed to the discretion of the trial court. Reiner, Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 107, 897 A.2d 58 (2006). The defendant alleges fraud. While a judgment may be collaterally attacked where a party can establish facts tending to show fraud; see City Savings Bank of Bridgeport v. Miko, 1 Conn. App. 30, 34 n.2, 467 A.2d 929 (1983); the court was not persuaded that such facts exist in this instance. Accordingly, it denied the motion.”

In its memorandum of decision, the court stated that “[essentially, the proposed intervenor alleges fraud in the fact that she was not a party to the foreclosure action, and other purported irregularities. [The] [plaintiff is correct in asserting that the defendant is attempting to relitigate issues that were previously decided against her, or alternatively, putting forth issues that might have been raised earlier, under the new label of ‘fraud.’ The doctrine of res judicata bars the relitigation of certain issues. It expends not only to those issues which were previously raised, but also those which might have been raised earlier. Bridgeport Hydraulic Co. v. Pearson, 139 Conn. 186, 196, 91 A.2d 778 (1952).” We agree with the cogent articulation of the trial court.

The defendant and Palmer cannot overcome res judicata by claiming fraud. “A common-law motion to open must be predicated on fraud, duress or mutual mistake.” In re Samantha S., 120 Conn. App. 755, 757 n.3, 994 A.2d 259 (2010). “Under the common law ... it is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury. ... All of these ingredients must be found to exist. . . . Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which ... we have described as clear and satisfactory or clear, precise and unequivocal. . . . Finally, [t]he party claiming fraud . . . has the burden of proof. . . . Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Capp Industries, Inc. v. Schoenberg, 104 Conn. App. 101, 116, 932 A.2d 453, cert. denied, 284 Conn. 941, 937 A.2d 696 (2007). On the basis of our review of the record, we conclude that the court’s finding that the defendant had not proved fraud is not clearly erroneous.

We also agree with the court that the issues raised by the defendant in her motion to open and vacate the judgment were issues that could have been raised on appeal in Trumbull v. Palmer, supra, 104 Conn. App. 498, and are thus barred by the doctrine of res judicata. “The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. ... If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made. . . . Res judicata bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action . . . which might have been made.” (Citation omitted; internal quotation marks omitted.) Massey v. Branford, 119 Conn. App. 453, 464-65, 988 A.2d 370, cert. denied, 295 Conn. 921, 991 A.2d 565 (2010).

The defendant also claims that the court improperly (1) granted the plaintiffs motion for a new sale date, awarded attorney’s fees and postjudgment interest, and denied her motion to open and vacate the judgment because the court failed to permit her to present evidence and cross-examine the plaintiffs witnesses and (2) ruled on some motions sua sponte, without a hearing. The record belies the defendant’s claims.

On June 17, 2008, the parties came before the court. At that time the court asked the courtroom clerk what matters were before it. The clerk responded: “This matter was continued from May 19, [2008] at which time there was a motion for foreclosure by sale down. Other motions were filed, motion to open, motion to intervene, which you ruled on denying, and you set this over.” The plaintiffs counsel then made the following representation, to which the court responded:

“[The Plaintiffs Counsel]: [T]he last time we were before Your Honor, I had on the docket that day my motion for new sale date in which I asked that, after a denial of the petition for [certification], that the court set a new sale date in accordance with the order of the Appellate Court.

“At the time we appeared before Your Honor on short calendar, the court was then presented with an objection to the motion for new sale date, a motion to intervene on behalf of [Palmer] individually, and [Palmer], executrix of the estate of Michael Knopick, and a motion to reopen judgment ....

“What I think Your Honor indicated at that time was since [the defendant] first brought these objections and motion to reopen into the court that day, Your Honor indicated, Tm not going to take all this up now. What we’ll do is we’ll give you a chance to reply . . . and I’ll set this down for a hearing.’ And you picked the date of June [17, 2008].

* * *

“The Court: In fact, I do recall the procedural history as far as I’ve been involved with it. [Palmer] requested a ruling in advance of today’s date on the court’s decision whether she would be allowed to intervene, and that’s why I’ve ruled on that in advance of today’s date.”

Thereafter, the court heard argument by the parties. Palmer argued extensively. The defendant did not ask to present evidence.

The defendant also claims that the court improperly denied her motions to reconsider and for reargument. In her brief, the defendant cites no factual or legal basis to support her claim. Moreover, in view of our conclusion that the court properly denied the motion to open and vacate the judgment, we cannot conclude that the court abused its discretion by denying the motions for reconsideration and reargument.

The appeal of the would-be intervenor is dismissed. The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       The complaint named several additional defendants, none of whom is a party to this appeal. We therefore refer in this opinion to Knopick as the defendant.

       The summons identified the named defendant as the estate of Michael A. Knopick, c/o: Linda A. Palmer, Administratrix. The plaintiff withdrew all claims against the estate and Palmer prior to trial. Trumbull v. Palmer, supra, 104 Conn. App. 514.

       In Trumbull, the defendant claimed that Judge Richards “(1) made improper factual findings that (a) went beyond the scope of the pleadings, (b) were not supported by the evidence and (c) conflicted with provisions of the General Statutes that provide for the taxation of real property, (2) improperly calculated the amount of the debt at the time of rendering judgment, (3) improperly denied her request to open the judgment and (4) improperly denied her request to continue the trial.” Trumbull v. Palmer, supra, 104 Conn. App. 500.

       The motion to open and vacate the judgment stated, in part, that the court lacked personal jurisdiction over the defendant in her alleged capacity as an heir, devisee or beneficiary-

       In TrumbuU, the defendant claimed, among other things, that “by finding her to be the sole owner of the property, the court materially departed from the plaintiffs judicial admission that she shared ownership with the decedent’s estate.” Trumbull v. Palmer, supra, 104 Conn. App. 502. “In its complaint seeking a foreclosure of its tax liens, the plaintiff alleged that ‘[o]n or about [the dates of assessment], [t]he Estate of Michael A. Knopick and [the defendant] were the record owners of [29 Haverhill Road in Trumbull].’ ” Id., 503.
      In resolving the defendant’s claim, this court reasoned that “[d]espite the plaintiffs allegation, an estate cannot hold title to property and cannot participate in a foreclosure action against the property. See Isaac v. Mount Sinai Hospital, 3 Conn. App. 598, 600, 490 A.2d 1024 (estate not legal entity, natural or artificial person but merely name to indicate sum total of assets and liabilities of decedent), cert. denied, 196 Conn. 807, 494 A.2d 904 (1985). By naming the estate as co-owner, however, the plaintiff essentially alleged that the estate’s beneficiaries co-owned the property with the defendant, but the identity of those beneficiaries was unknown to the plaintiff at the time of pleading. Thus, the complaint provided sufficient notice that the issues before the court included the identity of the estate’s beneficiaries, the extent of their interests in the property and the amount of the delinquent taxes attributable to them. Any evidence that the decedent devised Ms entire interest in the property to the defendant fell within the scope of the plaintiffs complaint. Further, the defendant suffered no prejudice from the court’s finding because a sale, upon approval by the court, forecloses any interest in the property that she may later assert, regardless of the extent of that interest or the means by wMch she obtained it. Accordingly, we conclude that the court did not act contrary to or materially depart from the allegations in the plaintiffs complaint by finding the defendant to be the sole owner of the property by virtue of devise.” (Emphasis in original.) Trumbull v. Palmer, supra, 104 Conn. App. 503-504.

       The appeal was filed on -June 24, 2008, and subsequently amended on July 9 and 10, 2008.

       This court treated the motion for review as a motion to compel compliance with Practice Book § 64-1 and granted the motion. The trial court was ordered to issue a memorandum of decision explaining the factual and legal basis for its decisions denying the motion to open and vacate the judgment dated May 17, 2008, denying the motion to intervene dated May 17, 2008, and denying the motions to reargue those decisions.

       The trial court did not address Palmer’s motion to intervene in her individual capacity in its articulation, and the defendant and Palmer failed to seek further articulation or file a motion for review with this court. See Practice Book §§ 66-5 and 66-7. Because our review is plenary and the issue is a question of law, we will review the claim. See Petitte v. DSL.net, Inc., 102 Conn. App. 363, 374, 925 A.2d 457 (2007) (construction of pleadings a question of law).

       The defendant and Palmer failed to brief the issue of permissive intervention. We, therefore, deem it abandoned. See Barzetti v. Marucci, 66 Conn. App. 802, 808, 786 A.2d 432 (2001).

       Palmer attached a certified copy of the quitclaim deed to the motion to intervene.

       The defendant also claims that the court improperly awarded additional attorney's fees and postjudgment interest. Those claims have not been adequately briefed and we decline to review them. See Chase Home Finance, LLC v. Fequiere, 119 Conn. App. 570, 580, 989 A.2d 606 (2010).


author: BEACH, J. BISHOP, J.,

text:
    DONALD F. REID v. DIANA SEBASTIAN LANDSBERGER ET AL.
    (AC 30472)
    Bishop, Gruendel and Beach, Js.

      Argued December 7, 2009
    officially released August 17, 2010

      G. Randall Avery, for the appellant (named defendant).

      Joseph C. Ventricelli, with whom, on the brief, was John A. Milici, for the appellees (defendant Julio Traslavina et al.).
   Opinion

BEACH, J.

In this interpleader action, the defendant Diana Sebastian Landsberger appeals from the trial court’s judgment rendered in accordance with the report of an attorney trial referee (referee). The court rendered judgment awarding the other defendants, Julio Traslavina and Maria Traslavina, $63,500 as liquidated damages for Landsberger’s default under the terms of a contract for the sale of real property. On appeal, Landsberger claims that the court improperly (1) found that there was a meeting of the minds between the parties and, thus, a contract was formed, (2) concluded that Landsberger breached the residential real estate sales agreement (agreement) when she repudiated the agreement on the basis of the presence of wetlands on the property, (3) concluded that the sellers, the Traslavinas, did not breach the agreement when they represented to Landsberger that they had obtained the proper building permit and certificate of occupancy regarding the rear deck and (4) referred the case back to the same referee after having rejected that referee’s first report. We reverse, in part, the judgment of the trial court and remand the case for further proceedings.

The following facts and procedural history are relevant to our resolution of these issues. In June, 2006, Landsberger, as the buyer, and the Traslavinas, as the sellers, entered into an agreement by which Landsberger was to purchase the Traslavinas’ home located at 41 Arlington Road in Stamford. The plaintiff, Donald F. Reid, as counsel for the Traslavinas, prepared a contract to reflect the terms of the proposed sale and sent it to Harold F. Bernstein, counsel for Landsberger. This draft of the contract included a residential property condition disclosure report (report) pursuant to General Statutes § 20-327b. On the report, the Traslavinas indicated that the property did not contain any wetlands. The report states that all answers are certified by the Traslavinas “[t]o the extent of the Seller’s knowledge . . . .’’It also states that the Traslavinas’ representations do “not constitute a warranty to the buyer” and that the report “is not a substitute for inspections, tests, and other methods of determining the physical condition of the property.”

The agreement specifically referred to the report and stated that it was attached as a rider. On the same page, the contract also included paragraph 26 entitled “Representations.” This paragraph states: “Unless otherwise specified in writing to the contrary, none of the representations made in this Agreement including all Attachments shall survive delivery of the deed and all representations by SELLER are made to the best of SELLER’S knowledge and belief. Further, said representations shall be as true and accurate at the time of closing as they were as of the date hereof. Except in the event of an intentional misrepresentation, if Purchaser discovers any material representation contained in this Agreement including all Attachments to be untrue or inaccurate, the remedy of the parties shall be those available to them in the event of a valid defect in or objection to title.” The contract also provided that if the seller could not produce a good and marketable title to the property, “then the SELLER shall be allowed a reasonable postponement of closing not to exceed thirty (30) days . . . within which to perfect title. If at the end of said time the SELLER is still unable to deliver or cause to be delivered a deed or deeds conveying a good and marketable title to said Premises . . . then the BUYER (i) may elect to accept such title as the SELLER can convey, without modification of the purchase price, or (ii) may reject such title. Upon such rejection, all sums paid on account hereof, together with any expenses actually incurred by the BUYER for attorneys’ fees, nonrefundable fees of lending institutions, survey costs and inspection fees (the total cost of which shall not . . . exceed the cost of fee title insurance based on the amount of the purchase price) shall be paid to the BUYER without interest thereon. Upon receipt of such payment, this Agreement shall terminate and the parties hereto shall be released and discharged from all further claims and obligations hereunder.”

Upon receiving the agreement, Bernstein contacted Reid to discuss certain changes he wanted made to it, including the inclusion of an additional rider. Reid agreed to the terms Bernstein proposed and agreed to the rider. The rider included a provision entitled “Certificate of Occupancy,” which states: “The Seller represents that during the period of his ownership a building permit and final Certificate of Occupancy were obtained whenever required for work done on the premises (including, but not limited to the Trex deck located at the rear of [the] premises) and that the Seller will provide Buyer with a copy of the Certificate of Occupancy at closing.” On June 14, 2006, Bernstein forwarded to Reid the new agreement signed by Landsberger. She also included her deposit of $63,500 with her signed agreement. On June 19, 2006, the Traslavinas signed the agreement. On June 21, 2006, Landsberger and the Traslavinas agreed to extend the date for resolution of the inspection contingency for radon, described in paragraph K of the rider.

Bernstein contacted Reid on June 20, 2006, after receiving the fully signed agreement, to discuss the terms of the deed restrictions referenced in the formal property description on schedule A. Reid informed Bernstein that he did not have a copy of the deed containing the restrictions. Bernstein obtained a copy of the restrictions and faxed it to Reid on June 21, 2006. The restrictions referred to the maintenance of a brook. This brook was no longer located on the property, but the reference caused Bernstein to be concerned that wetlands might be present on the property. On June 21, 2006, after discussing these concerns with Reid, Bernstein faxed him a letter stating that Landsberger intended to investigate the issue of wetlands and that Reid had agreed to inquire whether the Traslavinas were aware of any wetlands on the property. Bernstein advised Reid that if the investigation indicated that there was a flood or wetland condition, his client did not intend to proceed with the sale and would seek a return of her deposit.

Reid responded to Bernstein’s letter by fax on the same day. He stated that the Traslavinas were not aware of any stream or wetlands on the property and that they did not have flood insurance. He provided the name of their insurer and agreed to provide the policy information at a later date. Bernstein then conducted a “municipal search” of the property and reviewed the records held by the city of Stamford environmental protection board. His investigation revealed that a 1997 wetlands report and a 1997 engineer’s map showed the existence of wetlands in a comer of the property. As a result, Bernstein wrote to Reid on June 30, 2006, seeking to terminate the contract because of the presence of wetlands on the premises. On the same day, Bernstein sent Reid another letter stating that his investigation also revealed that no building permit or certificate of occupancy had been obtained for work performed by the Traslavinas on the deck. Landsberger did not offer to extend time to cure the defect, and the Traslavinas did not request time. On July 5, 2006, the date set for closing passed. Reid commenced this inter-pleader action on August 16, 2006. The Traslavinas obtained a building permit and certificate of occupancy for the deck just prior to the start of the second trial in 2008.

On May 4 and 9, 2007, the referee conducted the first trial in this matter. With the consent of the parties, he did not provide a ruling within the 120 day period within which a referee is to issue a finding pursuant to Practice Book § 19-4. Therefore, the court sustained Landsberger’s objection to the acceptance of the referee’s report. The court then issued a supplemental order referring the matter back to the same referee.

The referee held a second trial on March 23 and April 2, 2008. At trial, Landsberger and Julio Traslavina testified that the presence of wetlands on the property would be an important condition to them. Bernstein testified that “it is extremely difficult, nearly impossible, to change wetlands designations because wetlands don’t come and go.” Reid testified that the wetlands condition is “a curable situation—perhaps. . . . [W]ithin the cure period, he could have gotten a soil scientist to certify [that wetlands no longer existed on the property].” The referee issued his report on August 20, 2008, recommending that judgment enter in favor of the Traslavinas. Landsberger objected to the acceptance of the referee’s report. The court issued a memorandum of decision filed October 16, 2008, accepting the referee’s report in its entirety. In its judgment file, issued the same date, the court ordered that the Traslavinas retain the $63,500 deposit and recover statutory costs from Landsberger. This appeal followed.

I

Landsberger first claims that the court improperly determined that a contract existed. She asserts that there was no meeting of the minds because “both the sellers and the [purchaser] were factually mistaken as to two important issues at the time of entering the contract—the presence of a large area of wetlands regulation on the premises, and the lack of both a permit and a certificate of occupancy for the large rear deck on the property.” We disagree.

As a preliminary matter, we begin by setting forth our standard of review. “The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence. ... To the extent that the [trier of facts] has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. ... 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. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Rissolo v. Betts Island Oyster Farms, LLC, 117 Conn. App. 344, 355-56, 979 A.2d 534 (2009).

The court found that a contract did exist. “In order for an enforceable contract to exist, the court must find that the parties’ minds had truly met. ... If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make.” (Internal quotation marks omitted.) Rosenblit v. Laschever, 115 Conn. App. 282, 288, 972 A.2d 736 (2009). The court concluded that the parties did have a meeting of the minds. Because the agreement existed in written form and was signed by all parties, Landsberger’s argument that a meeting of the minds did not occur is not supported by the evidence, at least where there is no mutual mistake as to the fundamental promises. See Tsionis v. Martens, 116 Conn. App. 568, 577-78, 976 A.2d 53 (2009). The fact that the parties to the contract may have been mistaken as to some of the problems involving wetlands and the deck does not prevent the contract from having been formed; indeed, the contract specifically recognized that issues as to wetlands, for example, could arise, and provisions of the contract addressed that contingency. See 669 Atlantic Street Associates v. Atlantic-Rockland Stamford Associates, 43 Conn. App. 113, 124, 682 A.2d 572, cert. denied, 239 Conn. 949, 950, 686 A.2d 126 (1996). The fundamental terms, identity of parties, premises conveyed and price, were agreed to.

II

Landsberger next claims that the court erroneously determined that she breached the real estate agreement and that the Traslavinas had not breached the agreement. The fundamental terms of a real estate contract are an exchange of promises: typically, the buyer promises to pay a sum of money on the closing date and the seller agrees to convey title to the subject property at the same time. See 14 R. Powell & P. Rohan, Powell on Real Property (2009) § 81.01, p. 81-6. The contract governs the rights and duties of the parties during the period of time between the formation of the contract and its execution, when the deed is conveyed and the money paid. Id., § 81.01, pp. 81-6 through 81-8. The terms of the contract typically do not survive the conveyance of the deed.

The contract provides the purchaser with an opportunity to ensure that the title, and the property it represents, are what the purchaser had bargained for. For example, the contract may provide a time in which the purchaser may inspect the property for defects; if the inspection reveals defects, and the defects are correctible within a reasonable period of time, mechanisms for correction are available at or before the time of the closing. Similarly, time typically is allowed for investigation into defects in title. If title is unmarketable, then the purchaser is discharged from his or her obligations under the contract. If a defect in title can be cured, time is allowed accordingly. The period of time between reaching the agreement and finalizing the transaction by the full payment of the purchase price and the conveyance of the deed is aptly used so that the fundamental agreement of the parties can be finalized. Once the exchange is made at the closing, adjustments for defects and for claims that the parties did not get what they bargained for are far more difficult to pursue. With the exception of a small range of actions such as fraudulent misrepresentation, only the warranties appearing in the deed may provide a remedy. See generally id., §§ 81-02 and 81-03.

Here, as in the typical contract, the parties contemplated a period of time in which problems could be identified and addressed. In order to facilitate communication and to avoid future litigation, our General Assembly has provided for a list of representations made by the seller to be appended to real estate contracts. General Statutes § 20-327b et seq.; see Giametti v. Inspections, Inc., 76 Conn. App. 352, 360, 824 A.2d 1 (2003). A statement pursuant to § 20-327b is made only to the best of the seller’s knowledge and is specifically not a warranty. The statement does, however, cover various conditions and invites the purchaser to investigate further. Nothing prevents the parties from adding provisions to the statement.

If the purchaser discovers a defect, in condition or in title, such that the § 20-327b statement is inaccurate, there are several possible options. If the defect is incurable, then the purchaser, who is unable to receive what he or she has bargained for, has the power to terminate the contract and to seek restitution so that the parties are returned to the positions they were in before they entered into the contract. See, e.g., Metcalfe v. Talarski, 213 Conn. 145, 153, 567 A.2d 1148 (1989); 14 R. Powell & P. Rohan, supra, § 81.03 [6] [f], p. 81-151. If the defect is curable, then the seller is given a reasonable time to cure. The contract itself may provide specific guidelines and consequences, including the purchaser’s right to rescind. 14 R. Powell & P. Rohan, supra, § 81.04 [3] [c], p. 81-198. It is sound policy to encourage adjustments prior to the closing, when the parties’ intent may be actualized and disputes minimized. After the closing, the interest in finality gains importance.

The agreement in question, read together with the § 20-327b report and undisputed facts, provides the following factual scenario. The Traslavinas represented, though only to the best of their knowledge, that the property was not in a flood plain and contained no wetlands. During the prescribed period for investigation, Landsberger determined that the representation was not accurate. Almost immediately upon discovery, she notified the Traslavinas, through attorneys, that she wanted to rescind the contract and to have her deposit returned. The Traslavinas refused. Landsberger did not wait for the contractual time in which to cure the defect to expire before repudiation, and the Traslavinas did not request the opportunity to cure. Landsberger’s attorney testified that the existence of wetlands on the property could not have been cured within the thirty day cure period. The Traslavinas’ attorney testified that the wetlands designation perhaps could have been cured within the thirty day cure period.

On the facts found by the referee, the court affirmed the referee’s conclusion that the Traslavinas’ misrepresentation was not material and that Landsberger’s repudiation effectively breached the agreement. We disagree with the finding that the misrepresentation was not material. We cannot determine whether Landsberger’s repudiation effectively breached the agreement because the referee did not make a finding as to whether the wetlands designation could have been cured within the cure period.

“When a party asserts a claim that challenges the trial court’s construction of a contract, we must first ascertain whether the relevant language in the agreement is ambiguous. ... A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. . . . [W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . Because a question of law is presented, review of the trial court’s ruling is plenary, and this court must determine whether the trial court’s conclusions are legally and logically correct, and whether they find support in the facts appearing in the record. . . .

“The intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Citations omitted; internal quotation marks omitted.) WE 470 Murdock, LLC v. Cosmos Real Estate, LLC, 109 Conn. App. 605, 608-609, 952 A.2d 106, cert. denied, 289 Conn. 938, 958 A.2d 1248 (2008). We also construe contractual language in such a way so that, if possible, no term is superfluous or ineffective. See Honulik v. Greenwich, 293 Conn. 698, 711, 980 A.2d 880 (2009).

The rights and duties of the parties were governed by the contract. The contract provided that “if Purchaser discovers any material representation contained in [the] Agreement including all Attachments to be untrue or inaccurate, the remedy of the parties shall be those available to them in the event of a valid defect in or objection to title.” If there were a valid defect in title, the contract provided that the seller “shall be allowed a reasonable postponement of closing not to exceed thirty (30) days . . . within which to perfect title. If at the end of said time [the defect is not cured], the BUYER . . . may reject such title.”

We conclude that the language of the agreement is clear and unambiguous, and accordingly, it presents a question of law subject to plenary review. The court improperly employed the language of § 241 of the Restatement (Second) of Contracts, which is applicable to situations in which a party seeks to rescind a contract because of another’s material breach. See 2 Restatement (Second), Contracts § 241, p. 237 (1981). Particular considerations as to whether a breach is material may be different from considerations as to whether a representation in a contract is material. In construing language in a contract, we seek to ascertain and to give effect to the intent of the parties, and we apply ordinary meanings to the words used. The ordinary meaning of “material” is “[o]f such a nature that knowledge of the item would affect a person’s decision-making process”; Black’s Law Dictionary (7th Ed. 1999); the ordinary meaning does not necessarily implicate the various factors set forth by the authors of the Restatement in providing guidelines for courts to use in determining whether a breach can justify rescission.

Because the parties specifically provided for remedies in the contract for the sale of real estate and the language of the contract is clear, the court’s conclusions regarding the application of the Restatement provisions are clearly erroneous. As in Bernstein v. Nemeyer, 213 Conn. 665, 669, 570 A.2d 164 (1990), the term—in that case, the covering of negative cash flow by the defendants—is, by the language of the agreement and the context of the business arrangement, deemed to be important.

Both sides seek to rely on 669 Atlantic Street Associates v. Atlantic-Rockland Stamford Associates, supra, 43 Conn. App. 113. That case provides little help in this instance to either side. The seller in 669 Atlantic Street Associates had made a representation that to the best of its knowledge, as of the closing, there were no conditions on the property in violation of law or governmental regulation and that any hazardous waste on the property would be managed according to applicable laws and regulations. Id., 116. In the course of the transaction, a dispute arose about the seller’s performance of its obligations concerning the environmental condition of the property and the presence and extent of environmental contamination. Id., 117. The trial court engaged in an analysis under § 241 of the Restatement. This court noted that because the parties had clearly contemplated that the premises might indeed contain hazardous waste and had made provisions for that contingency in the contract, the inaccuracy of the representation could not, in those circumstances, provide the basis for a breach. Because of the language of the contract and the context, the breach, if any, could not be material. Applied to the facts of this case, then, 669 Atlantic Street Associates is of little help to either side.

Our statutes and case law provide some guidance as to the restrictions placed on property contained within regulated wetlands areas. A wetlands designation prevents a landowner from doing any regulated activity within a wetland or the upland review area around the wetland without a permit. General Statutes § 22a-42a (c) (1). A regulated activity is defined as “any operation within or use of a wetland or watercourse involving removal or deposition of material, or any obstruction, construction, alteration or pollution, of such wetlands or watercourses . . . .” General Statutes § 22a-38 (13). A landowner who wants to conduct any regulated activity within a wetland must file an application with the inland wetlands agency of the town or towns in which the wetland is located. General Statutes § 22a-42a (c) (1). The inland wetlands agency will then grant or deny the landowner’s application after considering the factors set forth in General Statutes § 22a-41. General Statutes § 22a-42a (d). These restrictions place a burden on landowners who want to make improvements to a parcel of land containing wetlands. See Queach Corp. v. Inland Wetlands Commission, 258 Conn. 178, 185 n.11, 779 A.2d 134 (2001) (inland wetlands regulations prevent any activity within or use of wetland, watercourse or upland review area involving removal or deposition of material or any obstruction, construction, alteration or pollution of such wetland, watercourse or upland review area, including any clearing, grubbing, filling, grading, paving, excavating, constructing, depositing or removing of material and discharging of storm water); Mario v. Fairfield, 217 Conn. 164, 165, 585 A.2d 87 (1991) (landowner owning property partially within designated wetlands area must apply for permission to erect any structure on nonwetlands portion); Aaron v. Conservation Commission, 183 Conn. 532, 535, 441 A.2d 30 (1981) (landowner had to apply for permit from inland wetlands agency to install septic system within 150 feet of watercourse). It is quite logical for a purchaser to bargain for unencumbered land and to use the period of time prior to closing to investigate representations regarding wetlands and to have the option of enforcing or walking away from the transaction should the representation be inaccurate.

Having determined the meaning of “material” and the impact of a wetlands designation on the use of land, we now turn to the question of whether the representation regarding the presence of wetlands on the property was a material representation. We are mindful that “[o]rdinarily it is not the function of [a reviewing] court to make factual findings, but rather to decide whether the decision of the trial court was clearly erroneous in light of the evidence ... in the whole record. . . . Conclusions of fact may be drawn on appeal only where the subordinate facts found [by the trial court] make such a conclusion inevitable as a matter of law ... or where the undisputed facts or uncontroverted evidence and testimony in the record make the factual conclusion so obvious as to be inherent in the trial court’s decision.” (Citations omitted; internal quotation marks omitted.) State v. Reagan, 209 Conn. 1,8-9,546 A.2d 839 (1988). “[A] reviewing court can draw its own factual conclusions, notwithstanding any contrary factual findings made by the trial court, when the record renders such conclusions inevitable as a matter of law.” Gianetti v. Norwalk Hospital, 266 Conn. 544, 561, 833 A.2d 891 (2003). The referee found that land records indicated the existence of wetlands over the northwest comer of the property. He also found that these soils and the twenty-five foot buffer around them were subject to the environmental protection board’s wetlands jurisdiction. The effect was that a permit was required before any constmction or development activity within the area may be conducted, as found by the court. The record in the present case requires a finding by this court that the presence of wetlands on the property was material; the finding is inevitable and obvious.

The language of the contract and sound policy encourage the working out of such problems prior to closing. Landsberger sought to rescind the agreement, and to obtain the remedy of restitution, without specifically extending an opportunity to cure. In some factual situations, such precipitous action may constitute a breach, such that the seller’s retention of the deposit is justified. In this situation, however, it is unclear whether or not the Traslavinas could have cured the wetlands designation within the cure period. If it is impossible to cure a defect in title within the contractually prescribed time, the purchaser is entitled to terminate the contract as soon as the defect is discovered; futile actions are not required. 14 R. Powell & P. Rohan, supra, § 81.03 [6] [f], p. 81-151.

Accordingly, we reverse the judgment of the court on this claim and remand the case for a determination as to whether the wetlands designation could have been cured within the contract’s stated cure period.

Ill

Landsberger claims that the court improperly concluded that the Traslavinas did not breach the agreement when they misrepresented that they had obtained the necessary permit and certificate of occupancy for the rear deck. Specifically, Landsberger claims that the misrepresentation that they had obtained the proper permit and certificate of occupancy was either (1) an intentional or negligent misrepresentation that caused the Traslavinas to have breached the agreement upon their signing it or (2) an innocent misrepresentation discovered prior to the consummation of the real estate agreement that would have permitted Landsberger to repudiate the contract if the Traslavinas could not remedy the lack of a building permit and certificate of occupancy within the cure period. We disagree.

The referee found that at some time between 2003 and 2004, the Traslavinas made certain improvements to the deck, including relocating the stairs and enlarging the deck, despite having failed to obtain a building permit or certificate of occupancy from the city of Stamford for the improvements. He found that Julio Traslavina was credible in stating that, at all times relevant to the transaction, he was not aware of any building permit or certificate of occupancy requirements relating to work performed on the deck. The referee further found that the Traslavinas did not make any statements or provide any information in the agreement regarding the compliance of the deck with building codes or regulations either “negligently or purposely to induce” Landsberger to rely on such statements and to enter into the contract. In denying Landsberger’s misrepresentation claims, the court accepted the findings of the referee that because the Traslavinas had made no statement regarding the deck or regarding their compliance or noncompliance with state or municipal building codes for the purpose of inducing Landsberger’s reliance, and because such issues were not material to the formation of the agreement, she could not prevail on her claims of misrepresentation. It is undisputed that in addition to adding stairs to the rear deck, the Traslavinas also substantially enlarged the square footage of the deck, that a building permit was required for the work and that neither a building permit nor a certificate of occupancy was obtained prior to the signing of the contract.

Landsberger argues that the court improperly determined that by signing the contract with her attached rider, the Traslavinas were affirmatively representing that they had obtained the necessary permit and certificate of occupancy for the deck. We are not persuaded.

The parties’ agreement specifically limits Landsberger’s remedies in the event that a misrepresentation is made in the contract. As stated previously, paragraph 26 provides in relevant part that “[e]xcept in the event of an intentional misrepresentation, if Purchaser discovers any material representation contained in this Agreement including all Attachments to be untrue or inaccurate, the remedy of the parties shall be those available to them in the event of a valid defect in or objection to title.” If an unintentional misrepresentation is made, the Traslavinas are permitted to postpone the closing date for thirty days to remedy it. In this case, Landsberger did not permit them to try to remedy the lack of a permit or certificate of occupancy for the deck.

The referee specifically made the factual determination that the Traslavinas could have obtained a permit or certificate of occupancy within thirty days had Landsberger given them the opportunity to cure. This finding was not clearly erroneous. “The law governing [our] limited appellate review is clear. 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. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption ... in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Campagnone v. Clark, 116 Conn. App. 622, 628, 978 A.2d 1115 (2009). Reid testified that the Traslavinas would have been able to obtain a permit and certificate of occupancy for the rear deck had they been given the opportunity to do so. Bernstein testified that he did not think that the Traslavinas would have been able to obtain the permit or certificate of occupancy because “if it was constructed without a permit, then [the building department does not] issue permits subsequently.” The referee was not required to credit Bernstein’s testimony over Reid’s testimony, especially in light of the fact that the Traslavinas subsequently did obtain a building permit and certificate of occupancy. Accordingly, we conclude that the court did not err when it found in favor of the Traslavinas on the claims of negligent misrepresentation and when it determined that their innocent misrepresentation did not entitle Landsberger to terminate the contract. Because the paragraph regarding representations specifically carves out an exclusion for intentional misrepresentations, we must address Landsberger’s claim that the court erred when it determined that the Traslavinas did not intentionally misrepresent that they had the proper permit and certificate of occupancy for the rear deck.

“A cause of action for intentional misrepresentation is essentially a claim of fraud.” Martinez v. Zovich, 87 Conn. App. 766, 778, 867 A.2d 149, cert. denied, 274 Conn. 908, 876 A.2d 1202 (2005). “Fraud consists [of] deception practiced in order to induce another to part with property or surrender some legal right, and which accomplishes the end designed. . . . The elements of a fraud action are: (1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment. . . . Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as clear and satisfactory or clear, precise and unequivocal. . . . The determination of what acts constitute fraud is a question of fact . . . .” (Internal quotation marks omitted.) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn. App. 486, 518, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006).

The referee specifically found that the Traslavinas did not make any representation regarding the deck purposefully to induce Landsberger into signing the agreement. He also found Julio Traslavinato be credible when he stated that he was unaware that a building permit or certificate of occupancy was required for the work on the deck. These factual findings are not clearly erroneous. “It is within the province of the [attorney trial referee], when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.” (Internal quotation marks omitted.) Burton v. Mottolese, 267 Conn. 1, 40, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed. 2d 983 (2004). Because Landsberger failed to prove that the Traslavinas represented that they had obtained the necessary permit and certificate of occupancy for the deck with the intention of inducing her to sign the agreement, her claim of intentional misrepresentation must fail.

IV

Landsberger next claims that the court erred by referring the trial of this case to the same referee who had previously made factual findings. She argues that she did not receive a new trial because the referee made findings of credibility in the previous trial, the referee was likely to have a “frosty attitude” for having to retry the case when both sides had agreed to a continuance and the referee made the same clearly erroneous findings of fact in both of his reports. We disagree.

Landsberger’s argument concerns the meaning of the phrase “new trial” as used in Practice Book § 19-17. This section, however, clearly permits the trial court to refer the matter back to the same attorney trial referee. “The rules of statutory construction apply with equal force to Practice Book rules. . . . Where the meaning of a statute [or rule] is plain and unambiguous, the enactment speaks for itself and there is no occasion to construe it. Its unequivocal meaning is not subject to modification by way of construction.” (Citation omitted; internal quotation marks omitted.) Pitchell v. Hartford, 247 Conn. 422, 432, 722 A.2d 797 (1999). “A cardinal rule of statutoiy construction is that where the words of a statute [or rule] are plain and unambiguous the intent of the [drafters] in enacting the statute [or rule] is to be derived from the words used. . . . Where the court is provided with a clearly written rule, it need look no further for interpretive guidance.” (Internal quotation marks omitted.) Ficara v. O’Connor, 45 Conn. App. 626, 629, 697 A.2d 696 (1997).

“In a general sense, the term trial means the investigation and decision of a matter in issue between parties before a competent tribunal, including all the steps taken in the case from its submission to the court or jury to the rendition of judgment.” (Internal quotation marks omitted.) Tureck, v. George, 44 Conn. App. 154, 157, 687 A.2d 1309, cert. denied, 240 Conn. 914, 691 A.2d 1080 (1997). In this case, the new trial was required to be a proceeding for a reexamination of the facts and circumstances put in issue by the parties’ pleadings followed by the referee’s conclusions and recommendations. The referee clearly informed the parties on the first day of trial that he would not consider any earlier testimony because the case was being reheard. Landsberger fails to cite to any part of the referee’s decision that was not supported by testimony given at the second trial. In addition, Landsberger admitted during the hearing held on her objection to the acceptance of the referee’s report that the second decision was different from the first decision “[i]n a few” material ways. We do not conclude that the court erred when it referred the case back to the same referee for a retrial.

The judgment is reversed only as to the finding that Landsberger breached the agreement and the case is remanded for further proceedings to determine whether the wetlands designation on the property could have been cured within the agreement’s stated cure period. The judgment is affirmed in all other respects.

In this opinion GRUENDEL, J., concurred.

BISHOP, J.,

concurring in part and dissenting in part. Although I agree with the majority that the issue in this appeal regarding the presence of wetlands was incorrectly analyzed by the trial court, I disagree with the notion that we, as a reviewing court, may permissibly engage in fact-finding. As pointed out by the majority, attached to the agreement was a residential property condition disclosure report on which the sellers, the defendants Julio Traslavina and Maria Traslavina, indicated that the property did not contain any wetlands. The agreement provided: “[I]f Purchaser discovers any material representation contained in this Agreement including all Attachments to be untrue or inaccurate, the remedy of the parties shall be those available to them in the event of a valid defect in or objection to title.” The majority finds this language clear and unambiguous and, from that perspective, makes its own factual assessment that the presence or absence of wetlands is generally so important that it simply must be material. Unlike the majority, I do not find the meaning of this language to be clear and unambiguous. Additionally, I cannot so readily reach the conclusion that the Traslavinas’ representation regarding wetlands was material to the formation of the contract because, respectfully, fact-finding is not our function.

“The question of the parties’ intent is [o]rdinarily . . . a question of fact [subject to appellate review under the clearly erroneous standard]. ... If, however, the language of the contract is clear and unambiguous, the court’s determination of what the parties intended in using such language is a conclusion of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard. . . . Thus, in the absence of a claim of ambiguity, the interpretation of [a] contract presents a question of law. . . . Well established principles guide our analysis in determining whether the language of a contract is ambiguous. [A] contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. [A]ny ambiguity in a contract must emanate from the language used by the parties. . . . In contrast, [a] contract is unambiguous when its language is clear and conveys a definite and precise intent.” (Internal quotation marks omitted.) D’Amato Investments, LLC v. Sutton, 117 Conn. App. 418, 423-24, 978 A.2d 1135 (2009).

First, as noted, I do not find the language of the previously referenced agreement provision to be clear and unambiguous. From reading it, I cannot tell whether the parties intended that any inaccuracy or falsehood, no matter how insignificant, in any of the attachments, would trigger the provision requiring the Traslavinas to remedy or cure, or whether such a representation in an attachment must be material to invoke this mechanism. And, because unraveling that linguistic ambiguity implicates the parties’ intent in using this imprecise language, I believe that this matter should be remanded to the trial court with direction to make a factual determination as to whether the Traslavinas’ representation regarding the absence of wetlands on the property was material to the formation of the parties’ agreement. If, based on further testimony adduced on remand, the court determines either that the representation regarding the absence of wetlands was material to the formation of the parties’ agreement or that the intent of the parties in utilizing the particular contract language was that any inaccuracy in any of the attachments would entitle the buyer, the defendant Diana Sebastian Landsberger, to demand cure by the Traslavinas, the court should next determine, from further evidence, whether Landsberger unreasonably prevented the Traslavinas from curing the problem within the time period specified in the agreement. Thus, although I concur that the matter should be remanded, I believe both the questions of materiality and of the reasonableness of Landsberger’s refusal to give the Traslavinas an opportunity to cure, if that provision is implicated, must be determined through a fact-finding process. Accordingly, I respectfully concur in part and dissent in part.

       This action was commenced by the plaintiff, Donald P. Reid, as the holder of a $63,500 escrow deposit made by the defendant Diana Sebastian Landsberger in connection with the underlying real estate transaction here in dispute. The plaintiff sought and was granted an interlocutory judgment requiring the defendants to interplead concerning their claims to the funds so that the court could order the plaintiff to give the funds to the proper party and be released of any further obligations or liabilities.

       Paragraph 16 of the contract provides in relevant part: “If BUYER is in default hereunder, or, on or before the date of closing as set forth herein, indicates that BUYER is unable or unwilling to perform and SELLER stands ready to perform SELLER’S obligations, SELLER’S sole and exclusive remedy shall be the right to terminate this Agreement by written notice to BUYER or BUYER’S attorney and retain the down payment as reasonable liquidated damages for BUYER’S inability or unwillingness to perform. . . .”

       We note that the policy factors enumerated in § 241 of the Restatement (Second) of Contracts aptly apply to executed contracts. The real estate contract, temporary in nature and specifically contemplating adjustments, presents different considerations. 2 Restatement (Second), supra, § 241.

        Bernstein recognized the applicability of § 241 of the Restatement; Bernstein v. Nemeyer, supra, 213 Conn. 672; but in light of the undisputed facts in that case held that the finding of the trial court that the breach was not material was clearly erroneous. Id., 670.

       “An upland review area is a nonwetland or nonwatercourse area in which an inland wetland commission may regulate activities that are likely to affect or to impact wetlands or watercourses. Those are also known as buffer zones or setback areas.” Prestige Builders, LLC v. Inland Wetlands Commission, 79 Conn. App. 710, 712 n.3, 831 A.2d 290 (2003), cert. denied, 269 Conn. 909, 852 A.2d 739, 740 (2004).

       Furthermore, this purchaser quite clearly thought the matter of whether wetlands existed on the property was important enough to investigate and objected to its existence in a timely manner. Both sides testified that the existence of wetlands was “important.” We need not decide whether all representations in the disclosure are material; we only decide that in the context of the contractual arrangement here, the representation regarding wetlands was material.

       Landsberger also argues that the evidence “unequivocally” establishes that the Traslavinas made factual claims regarding the deck that were false and were asserted in such a pattern and fashion that the only reasonable conclusion is that they were made with the purpose of inducing her to enter into a contract with them.
      First, she points to the listing agreement for the property, which refers to the rear deck as “new,” and to paragraph E of the attached rider which referred to the deck at the rear of the premises. Landsberger does not claim that the Traslavinas’ description of the deck in their listing agreement was an intentional misrepresentation that induced her to enter into the agreement, nor did the referee decide this claim. Accordingly, we will not decide whether this representation was an intentional or negligent misrepresentation. See Polizos v. Nationwide Mutual Ins. Co., 54 Conn. App. 724, 732, 737 A.2d 946 (1999) (“[c]laims that were not distinctly raised at trial are not reviewable on appeal” [internal quotation marks omitted]).
      Second, Landsberger describes several instances after the signing of the agreement in which she claims that the Traslavinas misrepresented the actual work performed on the deck. The referee did not make any findings as to any representations made after the agreement was formed, and Landsberger has failed to request an articulation. As our Supreme Court has stated, “we will not address issues not decided by the trial court.” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998); see also Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims neither addressed nor decided by trial court not properly before reviewing court). Indeed, “[w]hen a trial court has not ruled on an issue before it, the appellant must file a motion for an articulation or rectification asking the court to rule on that matter.” Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005); see generally Practice Book § 66-5.

       Landsberger appears to suggest that, because of the circumstances, the referee may have been biased. Landsberger provides no citations to or analysis of case law to support a claim of judicial bias. See Watkins v. Thomas, 118 Conn. App. 452, 456, 984 A.2d 106 (2009). In addition, Landsberger did not preserve her claim for judicial bias in accordance with Practice Book § 1-23.

       Practice Book § 19-17 (a) states in relevant part that “[i]f the court finds that the committee or attorney trial referee has materially erred in its rulings or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another . . . attorney trial referee, as the case may be, for a new trial or revoke the reference and leave the case to be disposed of in court.” (Emphasis added.)