author: DUPONT, J.

text:
    RICHARD BUEHLER v. LILACH BUEHLER
    (AC 30125)
    DiPentima, Alvord and Dupont, Js.

      Argued June 1
    officially released September 29, 2009

      Richard Buehler, pro se, the appellant (plaintiff).

      Charles W. Fleischmann, for the appellee (defendant).

      Annmarie P. Briones, with whom, on the brief, was Marci Finkelstein, for the guardian ad litem.
   Opinion

DUPONT, J.

In this dissolution of marriage action, the plaintiff, Richard Buehler, appeals from the orders of the trial court relating to alimony and custody and support of the parties’ three minor children. On appeal, the plaintiff makes numerous claims as to the propriety of the court’s orders that were issued on two different dates. The defendant, Lilach Buehler, argues that the plaintiffs appeal is untimely as to many of those claims. The anomalous circumstances of this case, with its motion laden file, compel us to first set out its facts and procedural history before discussing those claims in detail or determining the extent to which the plaintiffs appeal is timely.

The parties were married on September 7, 1997, and have three minor children, ages ten, seven and four. On November 14,2006, the plaintiff initiated dissolution of marriage proceedings by service of summons and complaint on the defendant. On June 4, 2008, the court, Gordon, J., rendered judgment dissolving the parties’ marriage on the ground that it had broken down irretrievably and that reconciliation was not a possibility. After a lengthy discussion of its factual findings, the court issued the following orders: “[T]he defendant wife . . . shall have sole legal and physical custody of the minor children. She shall have sole decision-making power regarding all matters affecting the health, education and welfare of the children, which is to be read broadly .... All parenting time between [the plaintiff] and the children shall be supervised. . . . The court reserves jurisdiction regarding the cost of the supervised visitation. The guardian ad litem is charged with arranging the choices for supervised access—both paid and unpaid, and the different possibilities for the supervision. The options will then be discussed, and those alternatives will be given to the parents so they can interview or follow up. . . . Then, each parent can report back to the guardian ad litem regarding their findings as to what they think is acceptable or not acceptable. [The plaintiff] shall have visitation with the girls on the following basis: alternating Saturdays and Sundays . . . that is, one week is Saturday, the next week is Sunday, from 9 a.m. to 7 p.m., supervised, and every Wednesday from 4:30 p.m. to 7 p.m., supervised. . . . The children, not the parents, will be making the telephone calls. Telephone calls are to be limited to no more than fifteen minutes. The parents are not to call the children. No more than one telephone call can be made per day. . . .

“[The defendant] is awarded $400 per week as child support. . . . [The defendant] is awarded alimony in the amount of $25,000 per year .... [The plaintiff] shall pay approximately $196, or one half, of the COBRA cost for [the defendant’s] health insurance. . . . Until the [marital home] is sold, each of the parties shall be responsible for one half of the mortgage payment, which is to be paid promptly on the first of each month. . . . The court retains jurisdiction regarding the sale of the house. . . . The plaintiff shall maintain the medical plan available to him through his employment for the benefit of the children. . . . Each parent shall be responsible for one half of all unreimbursed, noninsured health related expenses for the children. . . . Each of the parties is responsible for the debts listed on their financial affidavits .... A copy of the 2006 tax return shall be given to [the defendant] by [the plaintiff] within two weeks, along with a check for half of the refund if there is a refund. Each party is awarded the motor vehicle that [he or she is] currently driving, and each of them shall execute any documents necessary to effectuate any transfer of title to comply with this order.

“The marital home . . . currently on the market, shall continue on the market. The coordination of the sale, the broker, etc., shall be [the defendant’s] responsibility. Each of the parties is ordered to cooperate regarding the sale of the property and the asking price for the property and to cooperate with the broker. If there is any dispute, [the defendant] can select the broker and to set the price after consultation with [the plaintiff]. Until the property is sold, [the defendant] shall have sole possession and exclusive use of the property. Upon the closing, there will be deductions for all of the normal and customary closing costs .... Then, it shall be divided as follows from the joint proceeds: to [the defendant], the first $95,000 to repay the loan which saved the house. Then, to [the defendant], $12,000 to pay off the balance on her car. Then, to [the defendant] an amount equal to the credit card debt which she incurred from the time of the separation to February 27, 2007. Then, the fees for the guardian ad litem and the attorney for the guardian ad litem. These amounts are to be paid off of the top of the proceeds. Then the balance is to be divided between the parties equally. But from [the plaintiffs] side, shall first be subtracted $65,000 to be paid to [the defendant], which represents her share in the funds which he appropriated out of their accounts before filing this action. [The plaintiff] shall not contact any of the providers of medical or health care for the children, nor the school, nor the providers of any activities or lessons. Unless they initiate contact, there is to be no unsolicited contact by [the plaintiff] with them unless he is attending an event open to the public or to other parents. . . . The [c]ourt reserves jurisdiction regarding the secondary education of the children. The parties are referred to the family relations office for any disputed issues regarding personal property. . . . The court retains jurisdiction regarding the bills for legal fees submitted by [the attorney for the guardian ad litem] and the guardian ad litem. . . . The defendant is ordered to obtain life insurance in the amount of $100,000, naming the minor children as irrevocable beneficiaries for so long as they are minors . . . .” (Emphasis added.)

On June 13, 2008, the defendant filed a motion for contempt, in which she requested that the plaintiff be found in contempt for failure to make timely mortgage, child support and alimony payments in violation of the June 4, 2008 orders. In addition, on June 19, 2008, the defendant filed a motion seeking clarification of the following issues: whether the court ordered the parties to annually exchange information on child support and alimony; whether the children were to be with the defendant on the Jewish holiday of Shavuot; whether the plaintiff was to obtain counseling; whether the parties were to share equally in the defendant’s costs for day care; whether the parties were to claim deductions in equal amounts for mortgage interest and property taxes for the year 2008; and whether the plaintiffs access to the children on school premises should be supervised.

On June 24, 2008, the court held a hearing on the defendant’s motions for contempt and clarification, and on the issue of supervised visitation, which the court, in its June 4, 2008 memorandum of decision, indicated it would revisit. At the conclusion of the hearing, the court issued the following orders: (1) the plaintiff was found in wilful contempt of the court; (2) the plaintiff was subject to an immediate wage withholding of $3592.50 bimonthly; (3) an arrearage of $2185 was found and was to be paid out of the plaintiff’s share of the sale of the marital home; (4) the sale of the marital home was ordered, and the title was passed to the defendant to preserve the estate and to effectuate the sale; (5) $1000 in attorney’s fees to the defendant was to be paid out of the plaintiffs share of the marital home; (6) an annual exchange of information should occur regarding income so that child support and alimony orders may be monitored; (7) Shavuot was included as a Jewish holiday for the defendant; (8) no day care costs were to be awarded at the time; (9) the parties could claim deductions for mortgage interest and property tax deductions until the marital home was sold in the same proportion as payments were made by each party; (10) no supervision was required when the plaintiff attended school events that were open to the public or when all parents are invited; and (11) the court took judicial notice that three persons were acceptable as supervisors and had been contacted by the guardian ad litem regarding visitation at costs ranging from $40 to $75 per hour plus transportation.

On July 3, 2008, the plaintiff, acting pro se, filed this appeal. On July 16, 2008, the defendant filed in this court a motion to dismiss the appeal on timeliness grounds. The plaintiff filed a preliminary statement of the issues on August 25, 2008, and a memorandum of law in opposition to the motion to dismiss on August 26, 2008. The defendant, in her motion to dismiss, argued that the plaintiffs appeal was untimely because it was filed more than twenty days after the date of final judgment, which she alleged occurred on June 4, 2008.® The plaintiff, in his memorandum of law in opposition, countered that his July 3, 2008 appeal was timely because (1) the judgment of dissolution was not complete until June 24,2008, and (2) he was challenging only those issues over which the court explicitly reserved jurisdiction in its June 4, 2008 decision and which were addressed in its June 24, 2008 orders, namely, the sale of the house and the selection and cost of supervisors for visitation.

On December 10, 2008, this court issued its decision on the defendant’s motion to dismiss. This court concluded that the plaintiffs appeal was untimely as to the June 4, 2008 decision because the appeal was filed twenty-nine days after that date but was timely as to the June 24, 2008 orders because the appeal was filed within twenty days of that date. This court, therefore, granted the defendant’s motion to dismiss as to any claims arising out of the June 4, 2008 decision and denied the motion as to any claims arising out of the June 24, 2008 orders. This court further ordered, sua sponte, that issues one, two, three, five, six and seven of the plaintiffs preliminary statement of issues be stricken as they all related to the June 4, 2008 decision. These issues included, respectively, the legal custody of the children, the physical custody of the children, the parenting plan for the children, the distribution of liabilities, and child support and alimony. Issues four and eight were to remain in the preliminary statement of issues, insofar as those issues related to the distribution of assets and the fees of the guardian ad litem and the guardian ad litem’s attorney, which were not fully decided until the June 24, 2008 orders.

Two days prior to this court’s decision on the defendant’s motion to dismiss the appeal, the plaintiff filed his brief with this court. In his brief, the plaintiff claimed that the trial court improperly: (1) granted sole legal and physical custody of the children and sole decision-making power to the defendant; (2) ordered that his visits with the three minor children be supervised; (3) ordered him to pay $58,000 per year for the supervised visitation; (4) prohibited the parents from calling the children and limited the number and duration of the calls; (5) awarded the defendant alimony and child support in the amount of $5000 per month; (6) awarded the defendant one half of the mortgage payment prior to the sale of the home; (7) ordered him to pay one half of the defendant’s insurance for the next thirty-six months; (8) awarded the defendant lump sums of $95,000 and $12,000, and an amount equal to her credit card debt; (9) awarded the defendant the first $65,000 from the sale of the marital home; (10) made him solely responsible for jointly incurred credit card debt; (11) awarded the defendant sole ownership of a jointly owned vehicle without compensation to him; (12) awarded the defendant one half of the 2006 tax refund; (13) awarded fees, in excess of $85,000, to the guardian ad litem and her attorney despite an agreement that the services were to be provided pro bono; and (14) granted the defendant overriding authority to select a broker and to set the price of the marital home.

Claims one, two, four, five, six, seven, eight, nine, ten, eleven, twelve and fourteen, as previously listed, relate to the court’s June 4, 2008 orders. The plaintiff challenges this court’s decision to grant the defendant’s motion to dismiss as to those claims. Although we recognize that we have the authority at any time prior to the decision to reconsider motion rulings made while an appeal is pending; see AvalonBay Communities, Inc. v. Zoning Commission, 284 Conn. 124, 134 n.10, 931 A.2d 879 (2007); we see no compelling reason to do so in this case, particularly when this court previously denied the plaintiffs motion for reconsideration of its decision. Accordingly, we will not review these claims.

In regard to the plaintiffs third claim, namely, that the court improperly ordered the plaintiff to pay $58,000 per year for the supervised visitation, the court, in its June 4,2008 orders, specifically reserved its jurisdiction regarding the cost of supervised visitation. The court stated: “The guardian ad litem is charged with arranging the choices for supervised access—both paid and unpaid, and the different possibilities for the supervision. The options will then be discussed, and those alternatives will be given to the parents so they can interview or follow up. The plaintiff and [the] defendant are not to talk to each other about the choices of supervision. Then, each parent can report back to the guardian ad litem regarding their findings as to what they think is acceptable or not acceptable.” During the dissolution trial, the court also stated: “I’ll give you some report back dates so that we can come back and we can find out if there is a financial thing.”

At the June 24, 2008 hearing, the court revisited the issue of supervised visitation. The guardian ad litem stated: “Following the court’s order, I sent out a letter on June 6 to counsel advising of three possible supervised visitation services. . . . John Magnano, Supervised Visitation Services in Stamford ... is available, and he charges $75 per hour. Dennis Puebla, who is also available, charges the same amount .... And a fairly new supervised visitation services called Kids First at the Exchange Club with Saundra Charles. . . . The supervisors [there] . . . are acceptable to me .... And they are $40 per hour. I sent this out to counsel. I spoke with [the defendant]. She contacted ... all three of the choices and may report to the court with respect to her position. I have not heard anything from [the plaintiff] or his attorney . . . .”

Counsel for the plaintiff stated: “I had a conversation with [my client] concerning that. And he shared with me the fact that he would be entitled to roughly on average fifteen hours a week for visitation. And at the rate of $75 per hour, that would come out to $58,500, and there’s no way he can afford to pay that.” The court then asked counsel if his client interviewed any of the services, and counsel replied: “No, not that I know of.” The court stated: “All right. Well, then there’s no point in having a conversation about it because the argument was already made about the cost. And my feeling is, if he can afford two hours, two hours is better than nothing. ... So, maybe he should interview the $40 person and see if he likes them. If it’s okay with [the defendant], then it’s the least expensive, and he can figure out whatever he can do for his budget.” Counsel for the plaintiff then asked the court if it would modify its ruling. The court replied: “I’m unwilling to modify the ruling. I don’t have a motion to modify the ruling. . . . I’m not going to proceed without [the plaintiff] or his testimony .... [I]t’s true that I said I would deal with [this] at some point, but you’re going to have to now do it by a motion since he’s not participating. I’m not going to order anything at this point. ... He hasn’t interviewed any of the people. So, we’re still at square one except we know that there are three people who are acceptable, available, two are at $75 an hour and one is at $40 an hour, and the ball is in his court.” Counsel for the defendant then stated: “For the record, Your Honor, my client did check them out, and her preference would be for Mr. Puebla because he has the most experience.” The court responded: “All I’m saying is, we’re not going to get anywhere . . . because unless [the plaintiff] . . . interviews somebody and has a different opinion, and then that’s something that could probably be, you know, worked out. I mean, the cost [is also an] issue . . . .”

In consideration of this discussion, the court included the following in its June 24, 2008 order: “The [c]ourt takes judicial notice that three persons were acceptable and contacted by the [guardian ad litem] regarding supervised visitation at costs ranging from $40 to $75 per hour plus transportation.” The plaintiff interprets this order as instructing him to pay $58,000 per year for supervised visitation. Yet, the language of the order, combined with the statements made by the court at the June 24, 2008 hearing, makes it very clear that the court refused to resolve the issue of supervised visitation or order the plaintiff to pay any amount toward it, until the plaintiff interviewed the $40 per hour service provider. The court merely took judicial notice of the fact that the guardian ad litem had complied with its previous request to explore options for supervised visitation services and then present those options to the court and to the parties at a later date. The record reveals no subsequent order made by the court in regard to the specifics of supervised visitation. Because the court has yet to render a decision on the selection and cost of supervised visitation services, there is no final judgment. Consequently, this court lacks jurisdiction to entertain this claim. “The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. General Statutes §§ 51-197a and 52-263; Practice Book § [61-1] .... The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear.” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 793-94, 967 A.2d 1 (2009).

The plaintiffs thirteenth claim is that the court improperly awarded fees, in excess of $85,000, to the guardian ad litem and her attorney. The court, on June 4, 2008, ordered that those fees be paid from the sale of the marital home. The issue, however, was not finalized until the court’s June 24, 2008 orders.

At the June 4, 2008 hearing, the guardian ad litem produced an affidavit for legal fees, in which she requested $55,475 for services rendered. Counsel for the plaintiff stated: “I haven’t inquired personally, but what I have been told is that the guardian ad litem agreed to serve without compensation, and now she’s asking some $55,000.” The court replied: “I can’t imagine that the guardian ad litem, who is an employee of Connecticut Legal Services, and who is giving up her time, which would otherwise be spent in the care and concern of indigent persons, would do that. But if that’s what you say, find me the order and the stuff, and then we’ll take it up and you can—I don’t think the house is going to sell between now and the time we come back on the stuff. Or if it does, we’ll reserve those funds and hold them in escrow until that issue is determined.” Counsel for the plaintiff then stated: “Second question, Your Honor, is I understand that there is a request for legal fees submitted by [the attorney for the guardian ad litem], ... I don’t know how much that amount is, and I haven’t seen it.” The court responded: “It was filed. I saw it. . . . Why don’t you take a look at it? I’ll reserve those. If the house sells before we get back to it on our upcoming date, it’ll get held in escrow. If you want to talk about their fees—I thought you had seen them and you didn’t have any problem with them. So, if you haven’t, we can take that up when we come back.”

At the June 24, 2008 hearing, the guardian ad litem stated: “With respect to fees, affidavits filed by [the attorney for the guardian ad litem] and myself, the court afforded [the plaintiffs counsel] an opportunity to review the affidavits, since he had only gotten them today. And I am bringing it up now so there’s no further issue.” The court then asked the plaintiffs counsel if he had any objection to the fees. Counsel replied: “Not in the slightest, Your Honor. ... I want the record to show that I reviewed the affidavits thoroughly. I’m satisfied that whatever was set forth in there as having been rendered was rendered, and the rates that were assigned thereto are appropriate . . . .”

The statutory authority for the award of counsel fees is found in General Statutes § 46b-62, which provides in relevant part: “If, in any proceeding under this chapter and said sections, the court appoints an attorney for a minor child, the court may order the father, mother or an intervening party, individually or in any combination, to pay the reasonable fees of the attorney . . . .” This includes fees for the guardian ad litem. See Lamacchia v. Chilinsky, 79 Conn. App. 372, 374, 830 A.2d 329 (2003). “The court may order either party to pay the fees . . . pursuant to ... § 46b-62, and how such expenses will be paid is within the court’s discretion. ... An abuse of discretion in granting . . . fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did.” (Internal quotation marks omitted.) Utz v. Utz, 112 Conn. App. 631, 641, 963 A.2d 1049, cert. denied, 291 Conn. 908, 969 A.2d 173 (2009). “In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding on this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence in the record to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Lamacchia v. Chil-insky, supra, 375.

The plaintiff argues that the court abused its discretion in awarding fees to the guardian ad litem and counsel for the guardian ad litem because the guardian ad litem had agreed to perform her services without compensation and there was no written retainer agreement with counsel for the guardian ad litem. The plaintiff specifically argues: “There was a stipulation between the parties, entered into on January 2, 2007, appointing a guardian ad litem for the three minor children. . . . [The guardian ad litem], was at the time, an employee of Connecticut Legal Services, a ‘non-profit, civil law firm.’ During that meeting [the guardian ad litem] represented to all parties and counsel that her services were to be rendered without compensation. . . . [T]here was absolutely no written contract, signed by either party specifying the guardian ad litem’s fees, hours, payment method, etc. . . . The trial court could not have unilaterally imposed a financial obligation on the parties for which neither agreed. . . . Since there was absolutely no evidence that a written contract for payment existed, it was an abuse of the court’s discretion to obligate the parties to pay such a bill. Furthermore, there was never a written retainer entered into by the plaintiff with counsel for the guardian ad litem, Marci Finkelstein, Esq. As such, the plaintiff was never advised that he would be indebted for [her] services .... It was obvious that the plaintiff has not entered into any contractual relationship with the guardian’s attorney; therefore, the trial court erred in obligating the plaintiff to this outrageous sum.”

There is no evidence in the record that the guardian ad litem represented that she would provide her services for free. This is not remarkable considering the plaintiffs representation that she orally agreed to work pro bono. It is notable that the plaintiff was given the opportunity to present evidence in support of such a representation at the June 24, 2008 hearing but failed to do so. Instead, at that hearing, counsel for the plaintiff represented that he had no objection to the fees. Furthermore, the language of § 46b-62 makes it clear that the court has the power to “order the father, mother or an intervening party, individually or in any combination, to pay the reasonable fees”; General Statutes § 46b-62; regardless of whether there is a written contract or retainer agreement. The court need only consider “the financial resources of both parties and the criteria set forth in ... § 46b-82. . . . Section 46b-82 instructs the court to consider . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . .” (Citation omitted; internal quotation marks omitted.) Lamacchia v. Chilinsky, supra, 79 Conn. App. 376. We conclude, therefore, that the court did not abuse its discretion in ordering the fees for the guardian ad litem and counsel for the guardian ad litem to be paid from the sale of the marital home.

The appeal is dismissed with respect to the payment of the cost of supervised visitation. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Those orders relating to future action by the court are italicized.

       The court made it clear that it did not order supervised visitation because of its concern about physical abuse of the children. The court found supervised visitation to be necessary because the evidence at trial indicated that the plaintiffs intense anger and obsession with engaging in conflict with the defendant prevented him from empathizing with and understanding the needs of his children.

       The court noted that there would be some exceptions to this schedule, including Father’s Day and religious holidays.

       See the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. §§ 1161 through 1168.

       The memorandum of decision is a signed transcript of the court’s oral decision of June 4, 2008.

       On the same date, the plaintiff filed a motion for a stay, which the court denied on September 23, 2008.

       Practice Book § 66-8 provides in relevant part: “Any claim that an appeal . . . should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal .... Any such motion must be filed in accordance with Section 66-2 and 66-3 within ten days after the filing of the appeal . . . .” The defendant had been granted an extension of time to file her motion to dismiss. See Practice Book § 66-1.

       The plaintiffs memorandum of law in opposition to the motion to dismiss was untimely. Practice Book § 66-2 requires that a party filing an opposing motion do so within ten days of the filing of the motion. This court, however, considered the late response in an effort to have all arguments before it.

       Practice Book § 63-1 provides in relevant part: “(a) . . . Unless a different time period is provided by statute, an appeal must be filed within twenty days of the date notice of the judgment or decision is given. . . .
      “(b) ... If notice of the judgment or decision is given in open court, the appeal period shall begin on that day. . . .”

       The plaintiffs appeal form, however, indicates that he is appealing from the June 4, 2008 judgment, and several issues in his preliminary statement of the issues related strictly to that decision.

       The plaintiff himself was not present at the hearing.

       Because the plaintiff does not challenge the reasonableness of the fees, or the manner in which they were allocated, i.e., from the sale of the marital home, we will not delve into those aspects of the court’s order. See Lamacchia v. Chilinsky, supra, 79 Conn. App. 374 n.2.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    JOHN A. MCCOOK v. WHITEBIRCH CONSTRUCTION, LLC, ET AL. WHITEBIRCH CONSTRUCTION, LLC v. JOHN A. MCCOOK ET AL. LENIHAN LUMBER COMPANY v. JOHN A. MCCOOK ET AL.
    (AC 30144)
    Gruendel, Beach and Peters, Js.

      Argued June 3
    officially released September 29, 2009

      Frank P. Cannatelli, for the appellant (plaintiff in the first case, named defendant in the second and third cases).

      Laura B. Seder, with whom was Richard J. Pascal, for the appellees (plaintiffs in the second and third cases).
   Opinion

BEACH, J.

John A. McCook appeals from the judgments of the trial court granting the motions to enforce a settlement agreement brought by Whitebirch Construction, LLC (Whitebirch), and Lenihan Lumber Company (Lenihan). On appeal, McCook claims that the court improperly (1) declined to admit certain checks into evidence at the hearing on the motions to enforce the settlement agreement, (2) found the terms of the settlement agreement to be clear and unambiguous, (3) granted Lenihan relief beyond the scope of the settlement by awarding it attorney’s fees and interest, (4) refused to articulate its reasons for declining to admit the checks into evidence and (5) unconstitutionally denied him a fair trial by (a) refusing to allow him to finish testifying and (b) at the time the case was reported to be settled, failing to canvass the parties to determine whether they understood the terms of the settlement agreement. We affirm the judgments of the trial court.

The record reveals the following facts and procedural history. McCook, the property owner, and Whitebirch, the general contractor, entered into a contract for construction of a home at 490 Pequot Avenue in New London. A dispute arose between McCook and Whitebirch during construction, and three related civil actions followed. The first action was brought by McCook against Whitebirch. It alleged, inter alia, breach of contract and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. (first action). Whitebirch then brought a separate action against McCook to foreclose its mechanic’s lien (second action). Lenihan, a supplier of materials, also brought suit against McCook to foreclose its mechanic’s lien (third action). Whitebirch filed a motion to consolidate its lien foreclosure action with Lenihan’s lien foreclosure action. The motion was granted on March 16,2007. In September, a pretrial conference was scheduled in the first action. The court, Hon. Seymour L. Hendel, judge trial referee, decided that all of the parties in the three cases should meet together to attempt to arrive at a global settlement. A second pretrial conference was scheduled for October 26, 2007. At the conclusion of that conference, counsel for McCook, Whitebirch and Lenihan reported to the court, Martin, J., that a global settlement agreement had been reached in all three cases. Gregory Hams, McCook’s attorney, followed up with a letter memorializing the agreement.

The letter prepared by Harris states the contents of the settlement agreement. McCook agreed that he would pay Lenihan $20,000. The parties agreed to execute and to deliver releases in favor of the other parties. Whitebirch and Lenihan agreed to withdraw their cases against McCook and to deliver executed releases of their certificates of mechanic’s liens and lis pendens. McCook agreed to withdraw his case against Whitebirch. Pursuant to the orders of the court, the terms of the settlement were to be executed within thirty days.

The settlement agreement, however, was not implemented. On November 21, 2007, Lenihan brought a motion to enforce the settlement agreement in the third action. Two days later, Whitebirch also brought motions to enforce the settlement agreement in both the first and second actions. The court held a hearing on these motions. Finding that there was an enforceable settlement agreement, the court, Peck, J., granted the motions to enforce the settlement agreement on January 16, 2008. On January 30, 2008, Lenihan filed a motion seeking not only an order of enforcement of the agreement, but also interest and attorney’s fees arising from its motion to enforce the agreement. Lenihan’s motion was granted on June 9, 2008. Judgments were rendered in favor of Whitebirch and Lenihan, and this appeal followed.

I

We begin by addressing McCook’s claim that the court improperly refused to admit certain cancelled checks, alleged to be evidence of fraud, at the hearing on the motions to enforce the settlement agreement. We disagree.

The following additional facts are relevant to our resolution of McCook’s claim. On the first day of the hearing, McCook testified about events that took place the day after the settlement agreement was reached, when he reviewed certain cancelled checks that he had written to pay Whitebirch. Over Whitebirch’s objection, McCook was permitted to provide testimony regarding checks that he had paid to Whitebirch. Judge Peck instructed McCook that the checks would be relevant only if they tended to show whether McCook was misled at the time of the settlement conference. McCook testified that he did believe that he was misled at the settlement conference, but he stated that he did not understand at the time he entered into the settlement agreement that it included his CUTPA claim against Whitebirch in the first action. He also testified that due to the volume of discovery, he had not had an opportunity before the conference to examine and to analyze the checks that had been provided in response to a discovery request by his former attorney. Counsel for Whitebirch again objected to any discussion regarding any checks. Whitebirch stated that McCook had been provided with copies of these checks well in advance of the settlement conference. McCook argued that these checks had been provided by a bank in response to an authorization executed by Whitebirch and were, in fact, different from the checks provided by Whitebirch previously. McCook did, however, state that he had received the checks from the bank about one week before the settlement conference. McCook testified that although he had the checks before the conference, he needed time to analyze them. He argued that his analysis of the checks, performed after the settlement agreement, indicated that Whitebirch had used proceeds of checks he provided to pay for construction on another project called “Rattlesnake.” The court sustained objections to their admission on the ground that they were not relevant to “whether . . . the parties agreed on the terms and conditions in the settlement and whether . . . those were sufficiently clear at the time of the settlement.”

We begin our analysis by setting forth our standard of review. “It is well settled that we will set aside an evidentiary ruling only when there has been a clear abuse of discretion.” (Internal quotation marks omitted.) Kalams v. Giacchetto, 268 Conn. 244, 249, 842 A.2d 1100 (2004). “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) Jacobs v. General Electric Co., 275 Conn. 395, 406, 880 A.2d 151 (2005).

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not [unfairly] prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Sandoval, 263 Conn. 524, 542-43, 821 A.2d 247 (2003).

We conclude that the court did not abuse its discretion in refusing to admit the checks into evidence on the basis of relevance. Although the checks might have been relevant in the underlying action, they were not relevant to any disputed issue in the hearing on the motions to enforce the agreement. There may of course be situations in which one party fraudulently induces another to settle, and evidence of such would of course be relevant, but there was no credible evidence presented in this case that the settlement was entered into fraudulently, and the checks were not relevant for that purpose. A settlement agreement is a contract; see Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993); and the court did not err in deciding that the checks were not relevant to the validity or terms of that contract.

II

McCook next claims that the court improperly granted the motions to enforce the settlement agreement. McCook argues that the court improperly found that the settlement agreement was clear and unambiguous because he did not understand the settlement agreement to have included his CUTPA claim against Whitebirch and that he was required to withdraw the CUTPA claim pursuant to the agreement. We conclude that the court did not err in determining that the terms of the agreement were clear and unambiguous.

The following additional facts are relevant to our resolution of McCook’s claim. Two witnesses testified at the hearing on the motions to enforce the settlement agreement. On the first day of the hearing, McCook testified about his understanding of the settlement agreement. When asked on direct examination “whether it was [his] understanding that [he] was going to pay $20,000 and that would include [his] case against Whitebirch,” McCook answered: “Yes, all cases at the time.” On the second day of the hearing, McCook’s former attorney, Harris, testified about the settlement negotiations that had occurred at the pretrial conference on October 26, 2007. Harris testified that McCook appeared to understand the terms of the settlement at that pretrial conference. He also testified that during their conversation, McCook questioned whether Judge Hendel took the evidence of fraud into consideration when negotiating the settlement. Upon learning that Judge Hendel was aware of the fraud claim, McCook indicated to Harris that he was willing to settle under the proposed terms. McCook’s former attorney testified that he then indicated to Judge Martin that an agreement had been reached.

On the basis of the evidence and the testimony presented, the court determined that “there was no question that . . . McCook understood that the cases were being settled that day [and] that the terms of the settlement were certainly clear and unambiguous as they were articulated by . . . McCook’s own counsel.” The court further stated that “there were numerous inconsistencies about what [McCook] says took place . . . in the days following that hearing.” Accordingly, the court granted the motions to enforce the settlement agreement.

“A settlement agreement is a contract among the parties. ... It is well settled that [w]here the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. . . . Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . The court’s determination as to whether a contract is ambiguous is a question of law; our standard of review, therefore, is [plenary].” (Citation omitted; internal quotation marks omitted.) Amica Mutual Ins. Co. v. Welch Enterprises, Inc., 114 Conn. App. 290, 294, 970 A.2d 730 (2009).

McCook argues that the court improperly concluded that he intended to settle all three cases at the time of settlement. McCook cites several instances in the transcript where he testified that he was not aware that he was settling the CUTPA claim in the global settlement agreement. He also argues that the settlement agreement was particularly confusing because it encompassed three different cases. We are not persuaded.

Contrary to McCook’s argument, the record supports the court’s finding that the parties reached a mutual understanding with respect to the settlement agreement. During the hearing on the motions to enforce the settlement agreement, McCook admitted that, at the time of the settlement, he believed that all three cases were being settled in the agreement. The court specifically found McCook’s testimony about his CUTPA claim not credible. His former attorney, Harris, also testified that he explained the terms of the settlement agreement to McCook, and it was his belief that McCook understood the terms of the settlement agreement. “The credibility of the witnesses and the weight to be accorded to their testimony is for the trier of fact.” (Internal quotation marks omitted.) Wasniew-ski v. Quick & Reilly, Inc., 292 Conn. 98, 103, 971 A.2d 8 (2009). The court’s finding that, at the time of settlement, McCook understood that the settlement agreement encompassed all of his claims against Whitebirch in addition to the lien foreclosure actions was legally and logically correct. Accordingly, we conclude that the court’s finding that the terms of the settlement agreement were clear and unambiguous was not improper.

Ill

McCook also claims that the court improperly granted relief beyond the scope of the settlement agreement. He argues, for the first time on appeal, that even if the settlement agreement is enforceable, the court nonetheless could not properly award attorney’s fees and interest. We decline to review this claim because it has not been preserved.

In its motion to enforce the settlement agreement, Lenihan requested that the court order McCook to pay interest and Lenihan’s attorney’s fees incurred in finalizing the settlement, as well as in preparing and pursuing the motion. The court’s initial ruling on the motion to enforce the settlement agreement did not address these prayers for relief. Lenihan filed a motion for judgment requesting that the court award attorney’s fees in the amount of $3269.75 and interest in the amount of $372.64. On June 9, 2008, the court granted Lenihan’s motion for judgment and awarded attorney’s fees in the amount of $2500 and interest in the amount of $695.96.

Because McCook’s claim that the court improperly awarded attorney’s fees and interest was not raised in the trial court by objection or otherwise, it is not preserved for our review on appeal. See State v. Concomo, 115 Conn. App. 384, 394, 972 A.2d 757, cert. granted on other grounds, 293 Conn. 909, 978 A.2d 1111 (2009). In addition, on appeal, McCook mentioned attorney’s fees in passing, but provided no analysis or rationale for our considering the unpreserved claim. “Connecticut law is clear that a party seeking review of unpreserved claims under either the plain error doctrine; Practice Book § 60-5; or State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), must affirmatively request such review.” State v. Wheatland, 93 Conn. App. 232, 243-44, 888 A.2d 1098, cert. denied, 277 Conn. 919, 895 A.2d 793 (2006). McCook has not requested such review, and his claim, therefore, fails.

IV

McCook further claims that the court improperly denied his motion to articulate its reasons for denying his motion to reconsider. We conclude that this claim is not reviewable on appeal.

The following additional facts and procedural history are relevant to our discussion of this issue. On January 30, 2008, McCook filed a motion to reconsider. In his motion to reconsider, McCook stated that he should have been permitted to enter the cancelled checks into evidence as evidence of fraud. McCook also stated that had he been able to enter the checks into evidence, they would have proven fraud perpetrated by Whitebirch on McCook, thereby, according to McCook, rendering the settlement agreement voidable. McCook’s motion to reconsider was denied without a hearing. Upon receiving the denial of his motion to reconsider, McCook filed a motion for articulation on February 13, 2008. In his motion for articulation, McCook requested that the court “clearly and succinctly articulate the reasons for [its] denial of [McCook’s] motion to reargue.” The court denied McCook’s motion on March 3, 2008. McCook did not file a motion for review of the court’s denial of his motion for articulation.

Practice Book § 66-5 states in relevant part: “The sole remedy of any party desiring the court having appellate jurisdiction to review the trial court’s decision on the motion filed pursuant to this section or any other correction or addition ordered by the trial court during the pendency of the appeal shall be by motion for review under Section 66-7. ...” Practice Book § 66-7 provides in relevant part: “Any party aggrieved by the action of the trial judge as regards . . . articulation under Section 66-5 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. . . .” Because McCook failed to pursue this remedy available to him, we decline to review his claim. See Ramondetta v. Amenta, 97 Conn. App. 151, 168, 903 A.2d 232 (2006); Wellington Systems, Inc. v. Redding Group, Inc., 49 Conn. App. 152, 180, 714 A.2d 21, cert. denied, 247 Conn. 905, 720 A.2d 516 (1998).

V

McCook’s final claim is that he was denied his right to be heard in violation of the fourteenth amendment to the United States constitution and article first, § 8, of our state constitution. In particular, McCook appears to argue that he should have been permitted to testify on the second day of the hearing on the motions to enforce the settlement agreement and that Judge Martin should have canvassed the parties at the pretrial conference to ensure that they understood the terms of the settlement agreement at the time it was made. McCook seems to urge us to impose a bright line rule requiring canvasses of parties regarding settlement agreements at the time they are entered into. We decline to do so: a settlement agreement is simply a contract, and traditional principles apply. McCook cites no authority in support of his proposition, and we have found none.

The judgments are affirmed.

In this opinion the other judges concurred.

       McCook’s appeal arises out of three separate actions involving construction services at his New London residence. McCook is the plaintiff in an action against Whitebirch Construction, LLC, alleging breach of contract and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. McCook is the defendant in a separate action by Whitebirch Construction, LLC, to foreclose its mechanic’s lien on his property and in a third, separate action brought by Lenihan Lumber Company to foreclose its mechanic’s lien on his property. The actions have been consolidated. We refer to the parties as McCook, Whitebirch and Lenihan.

       McCook’s complaint in the first action against Whitebirch also included John Tortorigi as a defendant. McCook later withdrew the action as against Tortorigi. In the second action, Whitebirch included as a defendant Regional Stairs, LLC. In the third action, Lenihan included as defendants Whitebirch, Sean McFadden and Regional Stairs, LLC. McFadden and Regional Stairs, LLC, are not parties to this appeal.

       We note at the outset that McCook’s brief and reply brief both fail to comply with the requirements of Practice Book § 67-4. In the discussions of the majority of his claims, the briefs do not contain a standard of review that McCook believes should be applied. Further, the briefs contain discussions of facts and case citations that are not always consistent with the statement of issues or headings. On the basis of the briefs and the record, however, “we will nonetheless review all claims which are fairly presented, or at least, reasonably discernible, upon the record before us.” (Internal quotation marks omitted.) Perlmutter v. Johnson, 6 Conn. App. 292, 505 A.2d 13, cert. denied, 200 Conn. 801, 509 A.2d 517 (1986), cert. denied, 479 U.S. 1035, 107 S. Ct. 886, 93 L. Ed. 2d 839 (1987).

       McCook’s counsel at the pretrial conference was Gregory Harris, who does not represent him on appeal. Harris entered his appearance for McCook prior to the pretrial conference and was replaced by McCook’s current counsel prior to the hearing on the motions to enforce the settlement agreement.

       The “fraud” claimed apparently is that Whitebirch deceptively used McCook’s money to pay bills arising from another project. We express no opinion as to whether and in what circumstances such behavior might be fraudulent.

         McCook raised an entirely new argument at oral argument before this court. He argued that he intended to introduce the checks as evidence that he did not intend to settle the count of his complaint alleging a violation of CUTPA. This claim was different from his position in his appellate brief that the checks should have been admitted as evidence of fraud in order to void the settlement agreement. We decline to review this claim that was not briefed and was raised for the first time at oral arguments. See Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008) (issues mentioned but not briefed beyond assertion deemed waived); Mokonnen v. Pro Park, Inc., 113 Conn. App. 765, 769 n.3, 968 A.2d 916 (2009) (same); State v. Louise-Julie, 60 Conn. App. 837, 841 n.4, 762 A.2d 913 (2000) (claims not briefed not entitled to review), cert. denied, 255 Conn. 929, 930, 767 A.2d 102, 103 (2001).

       Harris, acting as McCook’s agent, circulated in his letter the clear and simple terms of the settlement. There is no apparent reason why McCook would not be bound by his agent’s statements in any event.
      The terms of the agreement as expressed in the letter, and as explained in the testimony before the court, were clear and unambiguous. The court also decided that McCook understood the terms at the time of the settlement—a different though related issue.

       It is unlikely that the issue satisfies the manifest injustice standard as stated in such cases as State v. Coward, 292 Conn. 296, 306, 972 A.2d 691 (2009), or is of a constitutional nature.

       Neither reason nor persuasive authority are presented in McCook’s brief with respect to his claim, and we decline to review it. Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).

       In his brief, McCook briefly mentions the state constitution as one basis for his unfair hearing claim. He does not, however, provide any independent analysis of the state constitutional claim, as required under State v. Geisler, 222 Conn. 672, 684-85, 610 A.2d 1225 (1992), and we, therefore, deem it abandoned. As stated by our Supreme Court: “We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim.” (Internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 55 n.36, 970 A.2d 656 (2009).


author: DiPENTIMA, J.

text:
    ELIZABETH GOULET ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF CHESHIRE
    (AC 29524)
    DiPentima, Robinson and West, Js.

      Argued April 22
    officially released September 29, 2009

      Michael Broderick III, for the appellants (plaintiffs).

      Brian A. Lema, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The plaintiffs, Elizabeth Goulet and Mark Goulet, appeal from the judgment of the trial court affirming the decision of the defendant, the zoning board of appeals of the town of Cheshire, affirming the decision of Lisa Murphy, the town zoning enforcement officer, to deny the plaintiffs’ application for a zoning permit to build a single-family residence. On appeal, the plaintiffs argue that the court improperly determined that (1) two parcels merged by operation of § 24.8 of the Cheshire zoning regulations and (2) the board did not arbitrarily interpret § 24.8. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts are relevant to our discussion. On April 8, 1970, the town of Cheshire (town) adopted zoning regulations. In 1972, Elizabeth Goulet acquired title to property known as lot 19 in Cheshire. At all relevant times, a single-family home has been located on lot 19. Five years later, she obtained title to a contiguous parcel of unimproved land known as lot 18. Lots 18 and 19 are located in an R-20 zoning district. Neither lot 18 nor lot 19 meets the minimum dimensional requirements of the zoning regulations for an R-20 zone. Elizabeth Goulet owned both lots from 1977 until the conveyance of lot 19 to a third party on July 12, 2002.

On or about July 14, 2005, the plaintiffs filed an application for a building permit to construct a single-family residence on lot 18. By letter dated August 24, 2005, Murphy denied the application for lack of zoning certification. The plaintiffs filed an appeal to the board, which held a hearing. On December 5, 2005, following a 3-2 vote in favor of the plaintiffs, the appeal was denied because it failed to meet the statutory requirement of four concurring votes necessary to sustain the appeal.*

On December 27, 2005, the plaintiffs filed an appeal to the Superior Court from the board’s decision. The court issued a memorandum of decision denying the appeal on December 19, 2006. Specifically, the court concluded that the lots 18 and 19 were in common ownership during the time of certain amendments to the town’s zoning regulations and, therefore, merged by operation of § 24.8 of the Cheshire zoning regulations. It then determined that the denial of a building permit for lot 18 was not arbitrary, unreasonable or contrary to law. Consequently, it affirmed the decision of the board. This appeal followed.

I

The plaintiffs first claim the court improperly determined that the two parcels, lots 18 and 19, merged by operation of § 24.8 of the town’s zoning regulations. Specifically, they argue that “the plain language of [§] 24.8 requires an interpretation that the lot merger provision is applicable to ownership at the time of the passage of [§] 24.8 or to ownership at the time of an amendment affecting the nonconformity of the lots as to area or width.” The plaintiffs further contend that the court’s interpretation is contrary to common sense and the plain meaning of the regulation and results in an absurd result. We are not persuaded.

As a preliminary matter, we set forth the relevant legal principles and standard of review that guide our resolution of this appeal. Our Supreme Court has stated that “[u]nder our well established standard of review, [w]e have recognized that [a]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . We have determined, therefore, that . . . deference ... to an agency’s interpretation of a statutory term is unwarranted when the construction of a statute . . . has not previously been subjected to judicial scrutiny [or to] ... a governmental agency’s time-tested interpretation . . . .” (Internal quotation marks omitted.) Heim v. Zoning Board of Appeals, 289 Conn. 709, 714-15, 960 A.2d 1018 (2008); Borrelli v. Zoning Board of Appeals, 106 Conn. App. 266, 270, 941 A.2d 966 (2008); Munroe v. Zoning Board of Appeals, 75 Conn. App. 796, 803, 818 A.2d 72 (2003) (“[i]t is our job, as an appellate court, to construe the relevant zoning regulation because . . . the outcome . . . eventually will depend on a legal interpretation of the regulation by an appellate court”).

Section 24.8 of the town’s zoning regulations has not been subjected previously to judicial scrutiny. Moreover, the boar d did not indicate that it had applied a time tested interpretation of this regulation. Accordingly, we do not defer to the board’s construction but exercise plenary review in accordance with our well established rules of statutory construction. See Pasquariello v. Stop & Shop Cos., 281 Conn. 656, 663, 916 A.2d 803 (2007).

“[Z]oning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning . . . [General Statutes] § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . Furthermore, General Statutes § 1-1 (a) provides: In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . .” (Citations omitted; internal quotation marks omitted.) Moon v. Zoning Board of Appeals, 291 Conn. 16, 20-21, 966 A.2d 722 (2009); Driska v. Pierce, 110 Conn. App. 727, 731-32, 955 A.2d 1235 (2008).

We begin with the text of the regulation at issue. Section 24.8 of the town’s zoning regulations provides in relevant part: “If two or more lots or combinations of lots and portions of lots with continuous frontage in single ownership are of record at the time of passage or amendment of these regulations, and if all or part of the lots do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided lot for the purposes of these Regulations . . . .” (Emphasis added.) The interpretation of the emphasized language is at issue in the present case.

It is undisputed that the plaintiffs did not own the two contiguous lots at the time of passage of the town’s zoning regulations. The board and the court determined that the phrase “these regulations” means that amendments to regulations in addition to § 24-8 trigger the merger provision. The plaintiffs argue that such an interpretation yields an unreasonable and irrational result. We disagree with the plaintiffs.

Before addressing the specific claim before us, it is helpful to set forth background information on the issue of merger. “Contiguous land owned by the same person does not necessarily constitute a single lot.” Bell v. Zoning Board of Appeals, 27 Conn. App. 41, 46, 604 A.2d 379 (1992); see also Carbone v. Vigliotti, 222 Conn. 216, 227, 610 A.2d 565 (1992). Merger may occur if the owner of contiguous lots intends to form one tract; Iannucci v. Zoning Board of Appeals, 25 Conn. App. 85, 89, 592 A.2d 970 (1991); or by operation of law. Marino v. Zoning Board of Appeals, 22 Conn. App. 606, 607 n.1, 578 A.2d 165, cert. denied, 216 Conn. 817, 580 A.2d 58 (1990); see also R. Fuller, 9B Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 53:6, p. 246. “The one occasion this court has found where merger may occur by operation of law is that found in some zoning regulations that may require, either expressly or implicitly, that under certain conditions a nonconforming lot merges with contiguous land owned by the same owner. See Neumann v. Zoning Board of Appeals, 14 Conn. App. 55, 60, 539 A.2d 614, cert. denied, 208 Conn. 806, 545 A.2d 1103 (1988); Torsiello v. Zoning Board of Appeals, [3 Conn. App. 47, 48 n.2, 484 A.2d 483 (1984)]; but see Schultz v. Zoning Board of Appeals, [144 Conn. 332, 338, 130 A.2d 789 (1957)].” Bell v. Zoning Board of Appeals, supra, 46-47. Whether a zoning regulation requires two commonly owned and adjacent lots to be merged is ascertained by examining the regulation itself. Id., 47.

The record reveals two instances in which the town amended the regulations during a time period when Elizabeth Goulet owned lots 18 and 19. First, in July, 1979, the town amended the zoning map, which caused lots 18 and 19 to be rezoned from an industrial zone (1-2) to a residential zone (R-20). The town’s zoning regulations expressly state that the zoning maps “and any amendments thereto are hereby made a part of these [Regulations.” Cheshire Zoning Regs., § 22.1. David Velber, a member of the board who voted against the plaintiffs’ application, stated that the rezoning from 1-2 to R-20 triggered the merger provision. The second instance occurred in 1997, when the town amended § 24 of the regulations.

We conclude that either of these instances is sufficient to trigger the merger provision contained in § 24.8. First, we note that the language of the regulation states “amendment of these regulations . . . .” Id., § 24.8. The drafters, by the use of the plural, “these regulations,” suggest that there was no intent to limit the amendment requirement solely to § 24.8. See, e.g., Shawhan v. Langley, 249 Conn. 339, 344, 732 A.2d 170 (1999). Additionally, by not limiting the merger provision to amendments only of § 24.8, the reduction of nonconforming lots is advanced. We are mindful that this type of reduction is a recognized goal of zoning and a valid purpose of merger regulations. Molic v. Zoning Board of Appeals, 18 Conn. App. 159, 164, 556 A.2d 1049 (1989); Neumann v. Zoning Board of Appeals, supra, 14 Conn. App. 62 (general goal of zoning is to reduce nonconformity “with all the speed justice will tolerate” [internal quotation marks omitted]). The court’s conclusion regarding the inteipretation of § 24.8 was legally and logically correct and supported by the facts in the record. Moreover, we reject the plaintiffs’ claim that such an interpretation is contrary to common sense and the plain meaning of the regulation and results in an absurd result.

II

The plaintiffs next claim that the court improperly determined that the board did not arbitrarily apply § 24.8. Specifically, they argue that the denial for a zoning permit for lot 18 was inconsistent with the prior decision to grant a zoning permit for a similarly situated property known as lot 17. We are not persuaded.

The following additional facts are necessary for our discussion. In the mid-1990s, the town approved a building permit for lot 17, which is contiguous with lot 18. Lot 17 is similar in size to lot 18. In its December 19, 2006 memorandum of decision, the court described lot 17 as “individually owned at all times relevant to this appeal.” On January 5,2007, the plaintiffs filed a motion to open the judgment on the ground that the court incorrectly described the factual situation regarding ownership of lot 17. On October 30, 2007, the court granted this motion. On the same date, the court issued a second memorandum of decision.

The court explained that lot 17 was in common ownership with lot 16 and, therefore, had been subject to the merger provision of § 24.8. The plaintiffs had argued that the granting of the building permit for lot 17 was an example of the prior and, in their view, proper application of § 24.8, and, therefore, the board’s denial of their application constituted an illegal, arbitrary decision and an abuse of discretion. The court referred to the testimony of a member of the board who described the decision to grant the building permit for lot 17 as “ ‘a mistake.’ ” The court concluded that the board properly had interpreted and applied § 24.8, despite the earlier decision with respect to lots 16 and 17. It further observed that there had been no showing of discrimination against the plaintiffs and noted that the doctrine of municipal estoppel did not apply.

We begin by setting forth the applicable standard of review. “Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The . . . trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. ... In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal.” (Internal quotation marks omitted.) Martland v. Zoning Commission, 114 Conn. App. 655, 662, 971 A.2d 53 (2009).

On appeal, the plaintiffs argue that because they were entitled to a consistent interpretation of § 24.8, the denial of the building permit was unreasonable. The flaw in this argument is that the plaintiffs have failed to show that the town consistently applied § 24.8 contrary to its actions in the present case. They direct our attention to a solitary instance, the case of lots 16 and 17, in which the town issued a building permit and did not consider the properties merged. We note that the zoning enforcement officer stated that she was unaware of that situation and that even if it presented exactly the same facts, the decision to grant the permit for lot 17 was a mistake. We decline to require that a zoning board of appeals be bound by an earlier mistaken approval with respect to a different property in the absence of other circumstances. State ex rel. La Voie v. Building Commission, 135 Com. 415, 420, 65 A.2d 165 (1949); see also Treat v. Town Plan & Zoning Commission, 145 Conn. 406, 408-409, 143 A.2d 448 (1958); Fisette v. DiPietro, 28 Com. App. 379, 386, 611 A.2d 417 (1992) (“[a] zoning body does not forever surrender the right to enforce its regulations because it finds that enforcement is not required at an earlier time”). Given the facts and circumstances of the present case, we conclude that the board’s decision was reasonable and was not an inconsistent interpretation that would require reversal.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Pursuant to General Statutes § 8-12 . . . the zoning enforcement officer ... is vested with the power to enforce the city’s zoning code. See Enfield v. Enfield Shade Tobacco, LLC, 265 Conn. 376, 378, 828 A.2d 596 (2003).” Driska v. Pierce, 110 Conn. App. 727, 728 n.2, .955 A.2d 1235 (2008).

       Accordingly, these are nonconforming lots, which we have defined as a lot that “is undersized, irregularly shaped, has inadequate width or depth or inadequate frontage . . . .” (Internal quotation marks omitted.) Munroe v. Zoning Board of Appeals, 75 Conn. App. 79G, 806, 818 A.2d 72 (2003), quoting E. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (2d Ed. 1999) § 52.1, p. 548.

       Pursuant to the Cheshire zoning regulations, the minimum lot area in the R-20 zone is 20,000 square feet with a minimum lot width of 100 feet and minimum lot frontage of 50 feet. Lot 18 measures only 6250 square feet. Lot 19 measures approximately 9000 square feet.

       General Statutes § 8-7 provides in relevant part: “The concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations or to decide in favor of the applicant any matter upon which it is required to pass under any bylaw, ordinance, rule or regulation or to vary the application of the zoning bylaw, ordinance, rule or regulation. . . .”

       The court declined to address the issue of “common-law merger,” and we refuse the hoard’s invitation to reach the issue for the first time on appeal.

       In their reply brief, the plaintiffs argued that the court’s inteipretation of § 24.8 results in the merger provision being effectuated by any amendment to any of the town’s zoning regulations. They further advance that a bizarre result would ensue because residential property would merge, for example, when an adult entertainment regulation had been amended. We simply note that, under the facts and circumstance of this case, we need not decide the merits of this argument.

       The property was less nonconforming following the zone change from 1-2 to R-20. The 1-2 zone requires a minimum square lot of 120,000 feet.

       In their reply brief, the plaintiffs argued that § 70 of the town’s zoning regulations distinguishes between amendments to the regulations and amendments to the zoning map. This argument was premised on the current version of § 70. Following oral argument before this court, we granted permission for the plaintiffs’ counsel to supplement the appendix with a copy of § 70 as it existed in 1979. That regulation states: “These Regulations and the Official Zoning Map may be amended by the Planning and Zoning Commission on its own initiative or when initiated by a petition. Any amendment may be adopted only after due notice and public hearing as prescribed by the Connecticut General Statutes. All petitions for amendment shall be submitted in writing at a regular meeting for the Planning and Zoning Commission on forms prescribed by the Commission and shall be accompanied by [(1) a map and (2) a check for $25].” (Emphasis in original.) Cheshire Zoning Regs., § 70.
      It is clear that in 1979, the year the plaintiffs’ property was rezoned from 1-2 to R-20, § 70 did not distinguish between amendments to the regulations and amendments to the zoning map. We take this opportunity, however, to commend counsel for adhering to the duty of candor to this court. See Rules of Professional Conduct 3.3.

       The plaintiffs argued before the trial court that one of the members of the board, Joseph Bartoli, used the term “hardship” in voting against the appeal and that this may have indicated that he was using an inapplicable standard. Although this fact was mentioned briefly in the plaintiffs’ appellate brief, this separate claim was not raised on appeal.

       In its brief, the board characterized the plaintiffs argument with respect to this claim as one of municipal estoppel. In their reply brief, the plaintiffs disputed this characterization and contended that this doctrine “has no relevance to the facts of the . . . case.” The trial court did not address the applicability of municipal estoppel, and we likewise follow this course of action.

       The plaintiffs also argue that all of the lots in the subdivision where lot 18 is contained are nonconforming by the nature of the size difference in the lots and the minimum lot size imposed by the zoning regulations. They contend, therefore, that our decision in Laurel Beach Assn. v. Zoning Board of Appeals, 66 Conn. App. 640, 657, 785 A.2d 1169 (2001), results in the board’s interpretation of § 24.8 being unreasonable. We do not consider this argument because it is raised for the first time on appeal. Aside from a subdivision map showing the relative size of the lots in acres, there is no indication that either the board or the trial court heard any evidence pertaining to any lots except those already discussed. See Briska v. Pierce, supra, 110 Conn. App. 734 n.11.


author: PELLEGRINO, J.

text:
    ALEXANDER J. RISSOLO, JR. v. BETTS ISLAND OYSTER FARMS, LLC, ET AL. FREDERICK A. LOVEJOY v. ALEXANDER J. RISSOLO, JR.
    (AC 29785)
    (AC 30346)
    DiPentima, Alvord and Pellegrino, Js.

      Argued May 21
    officially released September 29, 2009

      Frederick A. Lovejoy, pro se, the appellant (substitute defendant in the first case, plaintiff in the second case).

      John A. Milici, with whom, on the brief, was Donald F. Reid, for the appellee (plaintiff in the first case, defendant in the second case).
   Opinion

PELLEGRINO, J.

This is an appeal from two matters, Rissolo v. Betts Island Oyster Farms, LLC, and Lovejoy v. Rissolo, formally consolidated by motion on the second day of trial on November 28, 2007. Both cases are essentially partition actions, with the Lovejoy case seeking additional relief in a count for damages for a breach of contract. The trial court ordered a partition by sale and awarded damages to Frederick A. Lovejoy, the substitute defendant in the first case and the plaintiff in the second case, from which he now appeals. We find that the trial court was not in error as claimed by Lovejoy and affirm the trial court’s judgments.

The undisputed facts are that Lovejoy and Alexander J. Rissolo, Jr., the plaintiff in the first case and the defendant in the second case, are owners as tenants in common of a small triangular island located in Norwalk Harbor, in Norwalk. The island is just over one acre in size, and there exists on it two sheds and a cottage without electricity, water or a septic system. The disputed facts concerned the value of the work performed by or at the behest of Lovejoy for the maintenance and improvement of the property and for the tax benefit that the property realized through his efforts.

The court found that the physical attributes of the parcel of land in dispute made the division of it impractical and inequitable and, therefore, ordered a partition by sale. The court found that although the parties had agreed to a fifty-fifty split on the cost of improvements, a fair allocation of the sale proceeds would be 55 percent to Lovejoy and 45 percent to Rissolo to account for the improvements provided by Lovejoy. Additionally, the court determined that Lovejoy was entitled to damages in the amount of $15,350.27 for taxes averted through his efforts. The court found that no agreement existed between the parties that Rissolo would not sell his one-half interest for ten years. Lovejoy has appealed from all of the court’s orders.

I

On appeal, Lovejoy claims that the court improperly ruled with regard to all of its partition orders. Specifically, Lovejoy claims that the court improperly (1) ordered a partition by sale, (2) ordered a partition by sale of the entire island instead of only Rissolo’s one-half interest, (3) ordered the partition by sale to be conducted via a real estate broker, (4) determined the percentages to be distributed to each party upon receiving the proceeds from the sale without knowing the sales price of the island and (5) awarded Lovejoy an additional 5 percent of the sale proceeds as his damages without considering the present day values of the renovation costs for work he performed on the island. We are not persuaded.

We start with our standard of review. “The right to partition has long been regarded as an absolute right, and the difficulty involved in partitioning property and the inconvenience to other tenants are not grounds for denying the remedy. No person can be compelled to remain the owner with another of real estate, not even if he become[s] such by his own act; every owner is entitled to the fullest enjoyment of his property, and that can come only through an ownership free from dictation by others as to the manner in which it may be exercised. Therefore the law afford[s] to every owner with another relief by way of partition .... Fernan-des v. Rodriguez, 255 Conn. 47, 55-56, 761 A.2d 1283 (2000); see also 7 R. Powell, Real Property (2005) § 50.07 [3] [a] (right to partition is an inherent element of the tenancy in common, designed to prevent a forced continuation of shared ownership of property). To effectuate the foregoing principle, [General Statutes §] 52-495 gives discretionary authority to courts of equitable jurisdiction to order, upon the complaint of any interested person, the physical partition of any real estate held by tenants in common .... An action for partition at common law was equitable in nature, requiring courts to examine all relevant circumstances. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Internal quotation marks omitted.) Eisenberg v. Tuchman, 94 Conn. App. 364, 375-76, 892 A.2d 1016, cert. denied, 278 Conn. 909, 899 A.2d 36 (2006). Accordingly, our review of a court’s partition orders is to determine whether the court abused its discretion.

“In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the . . . discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did. . . . The court’s judgment will be interfered with only where the partition has been made on wrong principles, or where a clear mistake has been made, or where there is great and evident unfairness or inequality in the division. In other words, substantial injustice or inequality must clearly appear, and it must be more than can be fairly accounted for by mere difference of judgment or opinion. 68 C.J.S. 123, Partition § 137 (b) (1998).” (Citation omitted; internal quotation marks omitted.) Eisenberg v. Tuchman, supra, 94 Conn. App. 376. With this standard in mind, we now turn to each of Lovejoy’s claims with regard to the court’s partition orders.

A

We first address Lovejoy’s claims that (1) the court improperly ordered a partition by sale, (2) the partition by sale should have been limited only to Rissolo’s one-half interest in the island and (3) the court improperly ordered a public sale via a real estate broker. In Fernan-des v. Rodriguez, supra, 255 Conn. 47, our Supreme Court addressed the trial court’s authority in a partition matter. The court held that “in a partition action, one joint tenant or tenant in common cannot dispossess another except by partition in kind or partition by sale.” (Emphasis in original.) Id., 54-55. Further, the court stated that “[a] court is limited to rendering a judgment of either partition in kind or by sale of the real property . . . thus terminating the ownership relationship between the parties . . . and a court is precluded from substituting its own ideas of what might be a wise provision in place of a clear expression of legislative will.” (Citations omitted; internal quotation marks omitted.) Id., 57-58. Accordingly, in light of Fernandes, the court did not have the authority to order anything short of a full partition by sale or a partition in kind and, therefore, did not abuse its discretion when it did not order a partition by sale of only a one-half interest in the island.

In the present matter, the court found that the island is a triangular shape and just a little over one acre in size. On the island are two sheds and a cottage, but there is no electricity, running water, septic system, cable or telephone system. The island also has an erosion problem, and the only access to the island is by boat. Further, the court found that the relationship between the parties has deteriorated. “[I]n a partition action, the trial court must first consider the practicability of physically partitioning the property in question. If the trial court determines that, based upon the situation and location of the property, the size and area of the property, the physical structure and appurtenances on the property, and other factors, a physical partition of the property would not be feasible, it may then order a partition by sale.” Id., 59. On the basis of the court’s findings regarding the size of the island, the amenities of the island and the relationship of the parties, we conclude that the court did not abuse its discretion when it ordered a partition by sale.

In addition, Lovejoy claims that the court abused its discretion when it ordered the sale to be handled by a private real estate broker. Our review of the record reveals that the court ordered initially that a private sale be held, allowing either party to buy the other party’s interest. The court ordered that after the appraisal had been submitted, “either side [would] have the right, but not the obligation, to buy out the other side and close within sixty days of the acceptance of the appraisal by the court.” Lovejoy’s argument, therefore, that the court improperly ordered a public sale by a real estate broker is misplaced. He, first, was given the option to purchase the property at a private sale between the parties. It was within the discretion of the court, thereafter, to order a public sale should the parties not come to an agreement with regard to a private sale of the island. “The policy expressed in [the presumption that partition in kind is in the best interests of the owners] seems to support a court’s having discretion to order a private sale after determining that partition [in kind] is not feasible. That is because a private sale, rather than a public sale, is closer in character to a partition in kind because it gives the current owners a better chance of retaining their property, which may have value to them beyond mere economics.

“Although a judicially ordered sale generally results in a public auction, there is authority from other jurisdictions that if either authorized, or not restricted, by statute, the court may, in the exercise of its discretion, order either a private or public sale as the best interests of the parties require, [a private sale being permitted where the court] is fully informed of the value of the property and [has] good reasons. . . . 50A C.J.S., Judicial Sales § 17 (1997). [General Statutes §] 52-500, though not specifically authorizing private sales, similarly does not specifically restrict them.” (Emphasis in original; internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 853, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001); see also General Statutes § 52-495 (“[t]he court may appoint a committee to partition any such property” [emphasis added]). Further, Lovejoy’s contention that he never agreed to a public sale through a real estate broker lacks merit. “Section 52-500 vests with the court the discretion to order a sale at the request of any of the interested parties; it does not require a request by all of those parties.” Giulietti v. Giulietti, supra, 855. In his brief, Lovejoy acknowledges that the idea of a public sale was mentioned by Rissolo during a settlement conference. Accordingly, the court, within its broad discretion, after ordering the partition by sale, had the authority to determine whether the sale would be via private sale, public sale or public auction. We conclude, therefore, that the court did not abuse its discretion when it first offered the island for private sale and then public sale via a real estate broker.

B

Lovejoy next claims that the court improperly awarded the sale proceeds to be split 55 percent to himself and 45 percent to Rissolo, without knowing the sale price of the island. Within this claim, Lovejoy argues that the additional 5 percent awarded to him by the court did not take into account the present day value of the improvements he made and work he performed on the island. He further claims that the court improperly used the actual cost of the renovations and work performed on the island instead of correctly awarding the present day value of the improvements. We disagree.

“A partition by sale, although a creature of statute, is an equitable action. See, e.g., Fernandes v. Rodriguez, supra, 255 Conn. 59. The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Internal quotation marks omitted.) Fernandes v. Rodriguez, 90 Conn. App. 601, 609, 879 A.2d 897, cert. denied, 275 Conn. 927, 883 A.2d 1243 (2005), cert. denied, 547 U.S. 1027, 126 S. Ct. 1585, 164 L. Ed. 2d 312 (2006). In the present matter, the court determined that the parties had agreed to a fifty-fifty split on the cost of improvements made to the island. The court found that Rissolo did not perform any maintenance or upkeep on the island, however, leaving all the work to Lovejoy. Accordingly, the court, in its discretion, believed it unfair to divide the equity of the property equally between the parties. The court, therefore, determined Lovejoy’s equitable interest to be 55 percent and Rissolo’s equitable interest to be 45 percent. As the court explained in its articulation, the award differential is 10 percent.

Moreover, a partition action requires that the court balance the equities between the parties. See Eisenberg v. Tuchman, supra, 94 Conn. App. 376. This court will interfere with the trial court’s judgment only if the court has partitioned the property on the basis of wrong principles, a clear mistake has been made or where there is evidence of unfairness or inequity in the division. See id. We cannot conclude that after the court reviewed all the evidence, it was a mistake or unfair to determine Lovejoy’s equitable interest to be 10 percent more than Rissolo’s.

Additionally, we disagree with Lovejoy’s argument that a sales price had to be established before the court could determine the equitable interests of the parties. Because a partition action is an equitable action, the court has the authority to determine an unequal award on the basis of the evidence presented, including the value of the property and the equitable interests of the parties. See Fernandes v. Rodriguez, supra, 90 Conn. App. 612 (no abuse of discretion for court to determine equitable interest in property 5 percent for one party and 95 percent for other); see also Levay v. Levay, 137 Conn. 92, 96, 75 A.2d 400 (1950) (“Although each party was the owner of an undivided one-half interest in the property, it does not follow that he or she will necessarily be entitled to equal shares of the moneys obtained from the sale. Equities must be considered . . . .”). The court in this matter had evidence as to the value of the property from an appraisal submitted by Rissolo, as well as testimony from Rissolo as to what he thought the island was worth. We conclude, therefore, that the court did not abuse its discretion in establishing the equitable interests of the parties on the basis of Lovej-oy’s contributions to the improvements and maintenance of the property.

We are also not persuaded by Lovejoy’s claim that the court improperly used the actual cost of the renovations instead of the present day values of the renovations. The court noted in its decision that “[t]here were issues of credibility as to both parties” as well as “the absence of some records of bills, [and] the nature of submitted invoices and the like . . . .” The court noted that although there was evidence from a state certified arborist that the fair market value of the orchard on the island was $42,300, the actual cost of the trees, fencing, apiary supplies, bees, clearing of the land and the survey was $15,194.19. With regard to the work performed in the kitchen, the court commented that although there was evidence from a construction contractor that the value of the kitchen was $45,000, “the expenses submitted which could be associated with the kitchen renovation [were] incomplete or not specifically identified.” “[T]he trier of fact ... is the sole arbiter of credibility, and thus is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) State v. Ryder, 114 Conn. App. 528, 538-39 n.4, 969 A.2d 818, cert. granted on other grounds, 292 Conn. 919, 974 A.2d 723 (2009). Again, we cannot conclude that the award of a 10 percent differential to Lovejoy did not compensate him for the value of the trees and the renovations to the kitchen because the court could rely on whatever evidence it found credible. We conclude, therefore, that the court did not abuse its discretion when it fashioned its partition award to provide Lovejoy with 55 percent of the proceeds.

II

Lovejoy next claims that the court improperly determined the breach of contract matter asserted in his counterclaim. Specifically, Lovejoy argues that the court (1) failed to find that Rissolo had agreed not to sell his one-half interest in the island for a period of ten years, (2) failed to award damages to Lovejoy for penalties and losses incurred as a result of Rissolo’s breach of the ten year agreement and (3) improperly determined the amount of the averted taxes and that he was not entitled to interest on that award. We disagree.

We begin by setting forth the 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 trial court 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.” (Citations omitted; internal quotation marks omitted.) Aquarion Water Co. of Connecticut v. Beck Law Products & Forms, LLC, 98 Conn. App. 234, 238, 907 A.2d 1274 (2006). With this standard in mind, we now turn to Lovejoy’s contract claims.

A

Lovejoy claims that Rissolo agreed not to sell his one-half interest in the island for a period of ten years. Lovejoy relies on a letter he wrote, dated October 20, 1999, to support this claim. The October 20, 1999 letter states in relevant part: “[I]f I am successful in having Betts Island designated as farm land or in a tax appeal, you agree that any and all property tax liability that you would have owed/paid to the City of Norwalk; i.e., averted tax liability, will be paid by you for the period you are an owner of Betts Island, or for at least a period of a minimum of ten (10) years from the date of approval of the above, if you are no longer an owner, towards a rip-rap project. . . .You further agree that if you sell your interest prior to the ten (10) year period you also agree to be responsible for any penalties/losses that I may incur. ... You understand that if you sell your interest in Betts Island to an ‘outsider,’ i.e., a non-family member, after a farm land classification is granted that you will be subject to a severe tax penalty. . . . After ten years have transpired there is no longer any penalty imposed as a result of the sale of farm land classified property.” There is no mention in the letter that Rissolo will not sell his one-half interest for ten years. Instead, the letter specifically states: “You further agree that if you sell your interest prior to the ten (10) year period you also agree to be responsible for any penalties/losses that I may incur.” The purpose of the letter was to discuss a farmland designation for the island and the possible penalties that could occur if the farmland designation was lost.

The only other documentation submitted to the court that Lovejoy relies on to support his claim that there was an agreement between the parties not to sell for ten years was an offer made by Rissolo to Lovejoy to purchase Rissolo’s one-half interest in the island. Our review of these exhibits specifically, as well as the rest of the record, leads us to conclude that the court properly determined that there was no agreement. The evidence does not support a finding that there was an agreement between the parties that Rissolo would not sell his one-half interest for ten years.

B

Next, Lovejoy argues that the court failed to award him damages for penalties and losses incurred as a result of Rissolo’s breach of the ten year agreement not to sell Rissolo’s one-half interest in the island. As stated, the court did not find that such an agreement existed and, therefore, did not award damages on the basis of this theory of recovery. The court did find, however, that there was an agreement between the parties to share the cost of improvements and did award Lovejoy a greater percentage of the equitable interest in the property in recognition of the improvements that he provided.

C

Lovejoy also claims that the court improperly determined the amount of the taxes that were averted and that it failed to award statutory interest. We disagree.

In its response to a motion for articulation, the court found that there was a contract between the parties with regard to the averted tax liability. The court found that there was an agreement between the parties regarding payment for the averted tax liability for a period of ten years, starting in 2001. The court found that the tax designation was lost in 2007, prior to the end of the ten year agreement, and, accordingly, Rissolo was ordered to pay $15,350.27 to Lovejoy, which the court determined to be the amount of the taxes that were averted. The court did not award interest on this amount.

Lovejoy relies on General Statutes § 37-3a (a) and states in his brief that “[t]he award of prejudgment interest is mandatory [and that] [t]he statutory language of § 37a-3a (a) clearly requires that interest be awarded in actions seeking monetary damages . . . .” Our review of § 37-3a (a) does not support his argument that the award of prejudgment interest is mandatory. General Statutes § 37-3a (a) provides in relevant part: “[I]nterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . .” (Emphasis added.) As this court has previously concluded, an award of prejudgment interest is discretionary, not mandatory. See Flynn v. Kaumeyer, 67 Conn. App. 100, 105, 787 A.2d 37 (2001) (“[a]n award of § 37-3a interest is discretionary”); see also Smithfield Associates, LLC v. Tolland Bank, 86 Conn. App. 14, 26, 860 A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d 839 (2005).

In addition, Lovejoy claims that his calculation of the averted tax amount should have been adopted by the court despite the fact that he provided no documentation for his estimate. The court, however, relied instead on an estimate, as provided by Rissolo, of $15,350.27 and awarded that amount to Lovejoy. “The credibility of the witnesses and the weight to be accorded to their testimony is for the trier of fact. . . . This court does not try issues of fact or pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Was-niewski v. Quick & Reilly, Inc., 292 Conn. 98, 103, 971 A.2d 8 (2009). We cannot conclude that the court’s finding that the averted tax was $15,350.27 was clearly erroneous or that refusing to award prejudgment interest was an abuse of discretion.

III

Lovejoy also claims that the court improperly determined that the doctrine of unclean hands did not apply to the present matter. Although Lovejoy raised this as a special defense in his answer and Rissolo addressed this special defense in his posttriai brief, we do not address this claim, as we conclude that the record is inadequate for our review.

In its memorandum of decision, the court did not address Lovejoy’s special defense of unclean hands. Lovejoy filed two motions for articulation, neither of which requested an articulation as to his special defense of unclean hands. “It is well established that [i]t is the appellant’s burden to provide an adequate record for review.” (Internal quotation marks omitted.) Cockayne v. Pilon, 114 Conn. App. 867, 871, 971 A.2d 732 (2009). “Because the court’s memorandum of decision is devoid of any findings or analysis on the issue, and because the petitioner did not seek an articulation, the record is inadequate, and we cannot review his claim.” Dawson v. Commissioner of Correction, 106 Conn. App. 614, 626, 942 A.2d 519, cert. denied, 287 Conn. 909, 950 A.2d 1285 (2008); see also Practice Book §§ 61-10 and 66-5. Accordingly, we decline to review this claim.

IV

Lovejoy’s final claim is that the court improperly denied his request to amend his complaint during trial. We decline to review this claim, however, because it is briefed inadequately. “We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Massey v. Branford, 115 Conn. App. 153, 165, 971 A.2d 838 (2009). In the present case, Lovejoy has failed to provide any analysis or legal authority with regard to his claim to support his position. He simply makes a bald assertion that courts liberally allow parties to amend their complaints. We therefore decline to review this claim.

The judgments are affirmed.

In this opinion the other judges concurred.

       Although subsequent encumbrancers of the property at issue were named as defendants in Rissolo v. Betts Island Oyster Farms, LLC, they are not parties to these appeals.