author: LAVERY, J.

text:
    ROBERT E. DIETTER v. CATHERINE DIETTER
    (AC 15995)
    O’Connell, C. X, and Lavery and Sullivan, Js.

      Argued February 22
    officially released August 17, 1999

      Jeffrey R. Bobbin, with whom was John W. Barnett, for the appellants (plaintiff and third party defendants).

      Mark R. Soboslai, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, Robert E. Dietter, initiated this marital dissolution action, and the defendant, Catherine Dietter, filed an amended cross complaint alleging that the plaintiff, with the assistance of the cross complaint defendants, fraudulently transferred assets from the marital estate. The plaintiff and cross complaint defendants appeal from the judgment of the trial court rendered in favor of the defendant on two counts of the cross complaint. On appeal, the plaintiff claims that the trial court improperly (1) concluded that, in filing a voluntary petition in bankruptcy on behalf of a corporation, he fraudulently transferred the corporation’s assets and a $472,889 receivable from the marital estate, (2) determined that he and the cross complaint defendants fraudulently transferred assets from the marital estate when they terminated a testamentary trust in which the plaintiff held a remainder interest, (3) admitted into evidence a confidential attorney-client communication and (4) ordered the cross complaint defendants to transfer certain property to the defendant as an award of lump sum alimony. We affirm the trial court’s judgment in part and reverse it in part.

The record discloses the following facts and procedural history that are relevant to the issues on appeal. The plaintiff and the defendant married in 1962. In 1969, the plaintiff and the defendant formed Dietter’s Garden Center, Inc. (Garden Center), a corporation that conducted operations at 3936 Whitney Avenue in Hamden. In 1976, the plaintiff acquired title to the property at 3936 Whitney Avenue. The defendant, the plaintiff and the plaintiffs mother were shareholders of Garden Center.

In 1988, the plaintiff and three individuals entered into a partnership, Hamden Garden Associates (Garden Associates), which purchased property located at 3876 Whitney Avenue in Hamden. The four members of this partnership formed Dietter’s Flower Farm, Inc. (Flower Farm), a corporation that conducted operations at 3876 Whitney Avenue. The plaintiff testified that he owned one fourth of the stock in Flower Farm and, in 1991, he purchased all of Flower Farm’s outstanding shares.

In April, 1988, the board of directors of Garden Center passed a corporate resolution, which was signed by both the plaintiff and the defendant, authorizing the plaintiff to make all decisions on behalf of Garden Center. In January, 1991, the plaintiff initiated this marital dissolution action. On February 15, 1991, the plaintiff drafted a notice to the shareholders of Garden Center concerning a special meeting to authorize the merger of Garden Center and Flower Farm. On February 23, 1991, the merger was approved, and the surviving corporation was known as Flower Farm.

In March, 1992, the plaintiff, acting in his capacity as the president of Flower Farm, filed a voluntary petition in bankruptcy on behalf of Flower Farm. The petition disclosed that Flower Farm had total assets of $69,598 and total liabilities of $789,169. Among its many creditors, Flower Farm disclosed that it owed $74,120 to Great Country Bank. The trustee in bankruptcy transferred Flower Farm’s assets to Great Country Bank in satisfaction of its secured lien. There is no evidence in the record that any other creditors received a disbursement from the bankruptcy proceeding. In April, 1992, Great Country Bank sold these assets for $30,000 to Dietter’s, Inc., a corporation formed by the plaintiffs mother; however, there is no finding in the record as to the value of these assets. Approximately eighteen months later, the plaintiffs mother sold these assets to LDRK, Inc., for $60,000.

In May, 1995, the defendant filed an amended cross complaint against the plaintiff, his mother and two brothers. The second count of the cross complaint alleged that, in filing the petition in bankruptcy on behalf of Flower Farm, the plaintiff fraudulently transferred assets from the marital estate to his mother. The second count also alleged that the plaintiff fraudulently transferred substantially all of the equity in the real property at 3936 Whitney Avenue to his mother. The third count of the cross complaint alleged that the plaintiff, with the assistance of his mother and two brothers, fraudulently transferred assets from the marital estate when they terminated a testamentary trust in which the plaintiff held a remainder interest and transferred the trust assets to an inter vivos trust.

In May, 1996, the trial court concluded that the marriage of the parties had irretrievably broken down and it dissolved the marriage. The trial court determined that the plaintiff and the cross complaint defendants defrauded the defendant of her interest in the marital estate. It stated that “[t]he defendant here has claimed that all of the transfers that the plaintiff has made or has had made were fraudulent transfers made with the intent to defraud her of marital assets. . . . [N]early every statutory indication of actual intent to defraud has been proven.” On the second count of the defendant’s amended cross complaint, the trial court found that, in filing the petition in bankruptcy on behalf of Flower Farm, the plaintiff fraudulently transferred Flower Farm’s assets and a $472,889 receivable from the marital estate. On the third count of the amended cross complaint, the trial court determined that the termination of the testamentary trust and the transfer of the trust assets to an inter vivos trust constituted a fraudulent transfer of assets from the marital estate.

As an award of lump sum alimony, the trial court ordered the plaintiffs mother and brother to transfer to the defendant, free of any encumbrances, all of their right, title and interest in 3936 Whitney Avenue, including the business, personalty, rental apartments, buildings and real property. The trial court also ordered the plaintiffs mother to transfer to the defendant any interest she has in the stock and assets of Dietter’s, Inc., so much as pertains to 3936 Whitney Avenue, and any claims against any successor entity pursuant to the contract of sale of said business to LDRK, Inc.

I

The plaintiff first claims that the trial court improperly determined that he fraudulently transferred assets from the marital estate (1) when he filed a voluntary petition in bankruptcy on behalf of Flower Farm and the trustee in bankruptcy transferred Flower Farm’s assets to a secured creditor, which resold these assets to the plaintiffs mother, and (2) when, as a result of the bankruptcy, Flower Farm discharged a $472,889 loan it owed to the plaintiff and the defendant as shareholders of the corporation. We agree with both of the plaintiffs claims.

Prior to examining each of these claims, it is first necessary to set forth the relevant legal principles that guide our review. The law in effect at the time the alleged fraudulent transfers took place is controlling. Farrell v. Farrell, 36 Conn. App. 305, 312 n.8, 650 A.2d 608 (1994); Tyler v. Schnabel, 34 Conn. App. 216, 220-21, 641 A.2d 388 (1994). In the present case, because these transfers took place after October 1, 1991, this case is controlled by the Uniform Fraudulent Transfer Act (Fraudulent Transfer Act), General Statutes § 52-552a et seq. See Public Acts 1991, No. 91-297.

After applying General Statutes § 52-552e to the facts in the record before us, the trial court concluded that, acting with the actual intent to defraud the defendant, the plaintiff fraudulently transferred both of the assets in question from the marital estate. In cases arising under General Statutes § 52-552, the statutory predecessor to the Fraudulent Transfer Act, which was repealed by Public Acts 1991, No. 91-297, § 13, we held that “[t]he determination of the question of fraudulent intent is clearly an issue of fact which must often be inferred from surrounding circumstances. . . . Such a fact is, then, not ordinarily proven by direct evidence, but rather, by inference from other facts proven—the indicia or badges of fraud.” (Internal quotation marks omitted.) Shawmut Bank v. Brooks Development Corp., 46 Conn. App. 399, 406, 699 A.2d 283 (1997); see Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990); Cook v. Bieluch, 32 Conn. App. 537, 551-52, 629 A.2d 1175, cert. denied, 228 Conn. 910, 635 A.2d 1229 (1993). We see no reason to depart from that standard under the Fraudulent Transfer Act.

A

Before reaching either of the plaintiffs claims, we must first determine whether the trial court improperly allocated the burden of proof on these issues to the defendant. Although the trial court rendered judgment on a portion of the second count of the amended cross complaint in favor of the defendant, she claims that the trial court improperly allocated to her the burden of proving that both of these transactions constituted fraudulent transfers of assets from the marital estate. She claims that because the plaintiff was an officer of Flower Farm, he owed her a fiduciary duty as a shareholder of Flower Farm. As such, she contends that the trial court should have allocated the burden of proof to the plaintiff to establish fair and equitable dealing by clear and convincing evidence.

The plaintiff responds that because the second count of the defendant’s amended cross complaint alleges neither the existence of a fiduciary duty nor the breach of a fiduciary duty, there was no basis for the trial court to allocate the burden of proof to him, and, therefore, the trial court properly allocated the burden of proof to the defendant. We agree with the plaintiff.

A party who seeks to set aside a transfer as fraudulent bears the burden of proving fraudulent intent by clear and convincing evidence. See Tyers v. Coma, supra, 214 Conn. 11; Tessitore v. Tessitore, 31 Conn. App. 40, 43, 623 A.2d 496 (1993). “Our law on the obligations of a fiduciary is well settled. . . . Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary. . . . Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof either by clear and convincing evidence, clear and satisfactory evidence or clear, convincing and unequivocal evidence.” (Citation omitted; internal quotation marks omitted.) Murphy v. Wakelee, 247 Conn. 396, 400, 721 A.2d 1181 (1998).

“[T]he interpretation of pleadings is always a question of law for the court .... We have pointed out that [t]he burden [is] upon the pleaders to make such averments that the material facts should appear with reasonable certainty; and for that purpose [the pleaders] were allowed to use their own language. Whenever that language fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties.” (Emphasis in original; internal quotation marks omitted.) United Components, Inc. v. Wdowiak, 239 Conn. 259, 264, 684 A.2d 693 (1996).

The second count of the defendant’s amended cross complaint alleged neither that the plaintiff owed her a fiduciary duty nor that the plaintiff breached a fiduciary duty. Practice Book § 10-4 provides, however, that “[i]t is unnecessary to allege any promise or duty which the law implies from the facts pleaded.” In the present case, a fiduciary duty cannot be implied from the facts pleaded because the second count of the amended cross complaint identified the plaintiff neither as a fiduciary nor as an officer or director of Flower Farm, and did not set forth any facts from which a fiduciary duty might be implied. See United Components, Inc. v. Wdowiak, supra, 239 Conn. 264. Because the second count of the amended cross complaint is most accurately described as claiming that the plaintiff, acting in his capacity as a spouse and not as a fiduciary, fraudulently transferred assets from the marital estate, we conclude that the trial court properly allocated the burden of proof on the second count of the amended cross complaint to the defendant.

B

The plaintiff claims that the trial court improperly determined that he fraudulently transferred assets from the marital estate when, acting in his capacity as president of Flower Farm, he filed a voluntary petition in bankruptcy and the trustee in bankruptcy subsequently transferred Flower Farm’s assets to a secured creditor, which resold these assets to the plaintiff’s mother. We agree with the plaintiff.

In March, 1992, the plaintiff, acting in his capacity as the president of Flower Farm, filed a voluntary petition in bankruptcy on behalf of Flower Farm. The petition in bankruptcy disclosed that Flower Farm had total assets of $69,598 and total liabilities of $789,169, of which $137,243 was secured debt. Among its creditors, Flower Farm disclosed that it owed $74,120 to Great Country Bank. The bankruptcy court appointed Attorney Anthony A. Novak to serve as the trustee in bankruptcy. In a signed affidavit, Novak stated: “Acting in the capacity as trustee in bankruptcy, I had occasion to receive and inspect a UCC-1 security instrument (or lien) a copy of which is attached hereto as Exhibit A. As prima facie evidence of a valid security interest, Exhibit A by operation of the Uniform Commercial Code entitled the secured party (Great Country Bank) to take immediate lawful possession and sell the collateral of Dietter’s Flower Farm, Inc.” The defendant does not dispute that Great Country Bank held a valid perfected security interest in Flower Farm’s assets. Moreover, she neither claims, nor does the record disclose, that she or her husband were secured creditors of Flower Farm.

The trial court found that in April, 1992, Great Country Bank sold Flower Farm’s assets to the plaintiffs mother for $30,000, however “[t]here was no finding [in the record] as to the value of the interest so sold.” Approximately eighteen months later, the plaintiffs mother sold these assets to LDRK, Inc., for $60,000. William DeMayo, an accountant for the plaintiffs mother, testified that between the purchase of those assets by the plaintiffs mother and their sale approximately eighteen months later, she lent the business $40,000, and that she had not received payment for these loans. After applying the criteria set forth in § 52-552e, the trial court concluded that the plaintiff transferred these assets from the marital estate with the intent to defraud the defendant.

We have already established that the trial court’s determination that the plaintiff transferred these assets from the marital estate with the intent to defraud the defendant is a question of fact. The plaintiff claims that the trial court’s finding is clearly erroneous as a matter of law because this transaction did not constitute a transfer of assets within the meaning of the Fraudulent Transfer Act. “This court may reject a factual finding if it is clearly erroneous, in that as a matter of law it is unsupported by the record, incorrect, or otherwise mistaken.” (Internal quotation marks omitted.) Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984); see Web Press Services Corp. v. New London Motors, Inc., 205 Conn. 479, 483, 533 A.2d 1211 (1987).

Because the appellate courts of this state have not had occasion to interpret and apply the Fraudulent Transfer Act, we look for guidance to case law from other states that have adopted the Fraudulent Transfer Act. In 1985, Oregon adopted the Fraudulent Transfer Act. See Or. Rev. Stat. § 95.200 et seq.; 7A U.L.A., Business and Financial Laws (West 1999), p. 266. In Kellstrom Bros. Painting v. Carriage Works, Inc., 117 Or. App. 276, 278, 844 P.2d 221 (1992), cert. denied, 316 Or. 162, 856 P.2d 317 (1993), the Oregon Court of Appeals held that the property of a debtor that had been subject to a valid perfected security interest held by a bank was not an “asset” within the meaning of the Fraudulent Transfer Act and, thus, the bank’s sale of the debtor’s property that had been repossessed by the bank was not a “transfer” by the debtor within the meaning of the Fraudulent Transfer Act and the creditor could not void the sale for being fraudulent under the Fraudulent Transfer Act.

In Kellstrom Bros. Painting, the plaintiff furnished $4288 in supplies to the defendant, Carriage Works, Inc., for which it did not receive payment. Id., 278. A bank held a valid perfected security interest in the assets of Carriage Works, Inc., to secure loans in excess of $290,000. Id., 279. When the loans became delinquent, the bank repossessed the collateral, which was worth less than the amount of the loans, and sold the collateral at a public sale. Id. Donald Rowlett, one of the former shareholders of Carriage Works, Inc., purchased a portion of the collateral at this sale and formed a new entity that received this property. Id. The plaintiff then brought suit under the Fraudulent Transfer Act. In rejecting the plaintiffs claim, the Court of Appeals held: “We agree with [the] defendants that the definitions show that [the Fraudulent Transfer Act] does not apply here. Before a creditor is entitled to relief under the [Fraudulent Transfer Act], there must have been a ‘transfer’ by the debtor, and there was no transfer by Carriage Works within the meaning of the act. [Or. Rev. Stat.] § 95.200 (12) provides that a ‘transfer’ means ‘disposing of ... an asset . . . .’ An ‘asset’ does not include a debtor’s property ‘to the extent that it is encumbered by a valid lien . . . .’ [Or. Rev. Stat.] § 95.200 (2) (a). A lien includes a ‘security interest created by agreement.’ [Or. Rev. Stat.] § 95.200 (8). It is undisputed that [the] [b]ank held a valid security interest that encumbered all of the assets of Carriage Works. Neither was there a transfer from the debtor to Rowlett. [The] [b]ank transferred the collateral to Rowlett and another after the sale .... [Or. Rev. Stat.] § 95.240 does not provide a means by which [the] plaintiff could void the transfer from Carriage Works.” (Emphasis in original.) Kellstrom Bros. Painting v. Carriage Works, Inc., supra, 117 Or. App. 279; see Baker & Sons Equipment Co. v. GSO Equipment Leasing Co., 87 Ohio App. 3d 644, 651-52, 622 N.E.2d 1113 (1993) (equipment and inventory not considered “assets” within meaning of Fraudulent Transfer Act because fully encumbered by perfected security interest at time of transfer).

General Statutes § 52-552b (12) provides that “ ‘[transfer’ means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease and creation of a lien or other encumbrance.” “ ‘Asset’ means property of a debtor, but the term does not include: (A) Property to the extent it is encumbered by a valid lien . . . .” (Emphasis added.) General Statutes § 52-552b (2). “ ‘Lien’ means a charge against or an interest in property to secure payment of a debt or performance of an obligation, and includes a security interest created by agreement”; General Statutes § 52-552b (8); and a “ ‘[v]alid lien’ means a lien that is effective against the holder of a judicial hen subsequently obtained by legal or equitable process or proceedings.” General Statutes § 52-552b (13).

In the present case, the record discloses that Great Country Bank held a valid perfected security interest in the assets of Flower Farm and that the trustee in bankruptcy transferred these assets to the bank in satisfaction of its secured lien. The defendant neither claims, nor does the record disclose, that the trustee transferred to Great Country Bank any assets that were not encumbered by a valid hen. The bank in turn sold these assets to the plaintiffs mother for $30,000, and the trial court made no finding as to the actual value of these assets. There is no dispute that Great Country Bank’s security interest in these assets was effective against a subsequent judicial hen obtained by the defendant. In light of the definitions in § 52-552b and the reasoning employed in Kellstrom Bros. Painting, we conclude, as a matter of law, that the assets the trustee in bankruptcy transferred to Great Country Bank, which were encumbered by a valid hen, were not “assets” within the meaning of the Fraudulent Transfer Act, and, therefore, this transfer is not subject to the Fraudulent Transfer Act. The trial court therefore improperly included these assets in the marital estate.

C

The plaintiff next claims that the trial court improperly determined that the defendant estabhshed by clear and convincing evidence that he fraudulently transferred assets from the marital estate when he filed a voluntary petition in bankruptcy on behalf of Flower Farm, thereby discharging a loan of $472,889 Flower Farm owed to the plaintiff and the defendant as shareholders of the corporation. We agree with the plaintiff.

Flower Farm’s petition in bankruptcy listed both the plaintiff and the defendant as creditors, the plaintiff in the amount of $440,655 and the defendant in the amount of $32,234. The trial court found that this $472,889 debt represented loans that the plaintiff and the defendant made to Flower Farm in their capacities as shareholders. The defendant neither claims, nor does the record disclose, that any portion of this $472,889 debt was secured. After applying the criteria set forth in § 52-552e to this record, the trial court found that the defendant established by clear and convincing evidence that the plaintiff intended fraudulently to transfer the $472,889 receivable from the marital estate.

If a fraudulent transfer claim is joined with a marriage dissolution action, as in the present case, the issue is whether the transfer removed property from the marital estate that would otherwise have been subject to claims of equitable distribution. See Tessitore v. Tessitore, supra, 31 Conn. App. 42; Gaudio v. Gaudio, 23 Conn. App. 287, 308, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990). The plaintiff claims that the trial court’s finding is clearly erroneous because the record does not support its determination that this receivable constituted property that would otherwise have been subject to a claim of equitable distribution.

“The trial court’s findings are binding upon 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 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.) McNeil v. Riccio, 45 Conn. App. 466, 472, 696 A.2d 1050 (1997). After a careful review of the entire record applying the appropriate standard of review, we conclude that the record does not support the trial court’s finding that an unsecured loan of $472,889, owed to the plaintiff and the defendant by a corporation with total assets of $69,598 and total liabilities of $789,169, of which $137,243 represented secured debt, constituted property that would otherwise have been subject to a claim of equitable distribution.

The trustee in bankruptcy, a neutral party, transferred Flower Farm’s assets to Great Country Bank, a secured lien holder. There is no evidence that the trustee transferred to Great Country Bank any assets that were not encumbered by a valid lien. Nor is there any evidence that any of the remaining creditors received a disbursement from the bankruptcy proceeding. Great Country Bank then sold these assets for $30,000 to the p1a.iut.ifPs mother in an arms-length transaction, and the trial court made no finding as to the actual value of these assets. There is no evidence in the record that the plaintiff, his mother or any of his relatives ever came into possession of the $472,889 receivable. Approximately eighteen months after the plaintiffs mother purchased the assets, and after she lent the business $40,000, she sold the assets for $60,000 to LDRK, Inc. There is no evidence in the record that the plaintiff or any of his relatives own or control any interest in LDRK, Inc., nor is there any evidence that the $472,889 receivable was transferred to LDRK, Inc. The $472,889 was an unsecured debt that was discharged in bankruptcy and as such it no longer existed. Since it did not exist, it could not be transferred to anyone. Because the record does not support the trial court’s finding, it improperly considered the receivable as part of the marital estate.

Our conclusion in part I B and C that the trial court improperly considered as part of the marital estate the assets that the trustee in bankruptcy transferred to Great Country Bank and the $472,889 receivable, requires that we also vacate the financial orders. “The issues involving financial orders are entirely interwoven. ‘The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependant on the other.’ ” Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989). It is impossible for us to ascertain the extent to which these nonassets affected the financial orders. See Rubin v. Rubin, 204 Conn. 224, 239, 527 A.2d 1184 (1987).

II

The plaintiff next claims that the trial court improperly determined that he and the cross complaint defendants fraudulently transferred assets from the marital estate when they terminated a testamentary trust in which the plaintiff held a remainder interest and transferred the trust assets to an inter vivos trust. Specifically, the plaintiff claims that the trial court (1) failed to apply the proper standard of proof, (2) improperly considered his remainder interest in the terminated trust as part of the marital estate because it constituted a mere expectancy and (3) failed to make a finding as to the actual value of his remainder interest in the terminated trust. Although we do not agree with the plaintiffs first and second claims, we agree with his third claim.

In articles IV and VI of his last will and testament, Frederick O. Dietter, the plaintiffs uncle and stepfather, established a testamentary trust. Frederick Dietter is deceased. Articles VI (A) and (B) of this testamentary trust state that the plaintiffs mother possesses a life estate in the income generated by the trust corpus; however, the trustee is authorized to invade the corpus whenever “necessary to provide adequately for her support, maintenance and medical care, and to maintain her according to the standard of living to which she was accustomed.” Upon the death of the plaintiffs mother, article VI (C) (2) provides that “the trust shall terminate and the trust assets as then constituted, including any undistributed income, shall be paid over and distributed as follows . . . One-third (1/3) thereof to my nephew, Robert E. Dietter, per stirpes and in fee.”

On July 21, 1993, the beneficiaries terminated the Frederick O. Dietter Trust and transferred the trust assets to an inter vivos trust, the Elizabeth A. Dietter Family Trust. The plaintiffs mother was the grantor of this trust and Ronald Dietter and Theodore Dietter served as trustees. The trial court determined that, under the terms of this new trust, the plaintiffs “interest was conditioned on his not being married to Catherine Dietter.” The trial court found that the plaintiff and the cross complaint defendants, acting with the actual intent to defraud the defendant, terminated the Frederick O. Dietter Trust and transferred the trust assets to the Elizabeth A. Dietter Family Trust. It concluded that this transfer constituted a fraudulent transfer of the plaintiffs interest in the terminated trust from the marital estate.

A

Relying on Tessitore v. Tessitore, supra, 31 Conn. App. 42-43, the plaintiff claims that the trial court applied the wrong standard of proof in evaluating this claim. We do not agree. The defendant neither claims, nor did the trial court conclude, that the burden of proof on this issue rests with the plaintiff because he owed the defendant a fiduciary duty in connection with the trust assets. The trial couit therefore properly concluded that the defendant, who claims that this transaction constituted a fraudulent transfer, carries the burden of proof. See Tyers v. Coma, supra, 214 Conn. 11; Tessitore v. Tessitore, supra, 42. A fraudulent transfer must be proven by clear and convincing evidence and whether the trial court has applied a lesser standard of proof is reviewable on appeal. See Tessitore v. Tessitore, supra, 43.

In Tessitore, the trial court determined that the defendant had fraudulently transferred assets from the marital estate to his parents. Id., 42. We reversed the decision of the trial court and ordered a new trial because it was unclear' from the memorandum of decision whether the trial court had applied the clear and convincing standard of proof. Id., 43. In contrast, in the present case, the memorandum of decision sets forth that the trial court applied the appropriate standard of proof. The trial court stated that “on the basis of all of the evidence as outlined above, the court finds by clear and convincing evidence that the plaintiff and his mother and his brother Ronald have together defrauded the defendant of her interest in the marital estate.” (Emphasis added.) Additionally, based on a review of the entire record, we conclude that the trial court properly determined that the defendant established by clear and convincing evidence that the termination of the Frederick O. Dietter Trust and the transfer of the trust assets to the Elizabeth A. Dietter Family Trust constituted a fraudulent transfer of assets from the marital estate.

B

The plaintiff next claims that, even assuming that the termination of the Frederick O. Dietter Trust and the transfer of the trust assets to the Elizabeth A. Dietter Family Trust constituted a fraudulent transfer, the trial court improperly considered his remainder interest in the terminated trust as part of the marital estate for the purpose of determining alimony. Specifically, he claims that his interest in this trust should not have been included in the martial estate because it constituted a mere expectancy. We do not agree.

At trial, relying on Rubin v. Rubin, supra, 204 Conn. 224, counsel for the plaintiff claimed that the plaintiff’s interest in the trust was not admissible for purposes of determining the financial orders because it constituted a mere expectancy. The trial court overruled counsel’s objection. In its memorandum of decision, the trial court concluded that because the plaintiffs interest in the Frederick O. Dietter Trust vested at the time of the testator’s death, it could be considered as part of the marital estate for the purpose of determining financial orders.

“[E]vidence of aprospective inheritance is inadmissible in a dissolution of marriage proceeding.” Id., 239. In Rubin, our Supreme Court held that a plaintiffs interest in a revocable inter vivos trust established by his mother and his interest as a residuary legatee under his mother’s will were not admissible for consideration in making a property distribution or in awarding alimony because, while the plaintiffs mother was still living, these interests constituted mere expectancies in that they may never be realized because the mother retained the power to revoke or reduce her son’s contingent interest at any time. Id., 235-39; see also Bartlett v. Bartlett, supra, 220 Conn. 381. “[P]rospects for increase in the husband’s property through gift or inheritance generally may not enter into the computation of alimony. Such sources of wealth are outside the husband’s control and subject to the will of the donor or relative. . . . [W]e approve the view of those courts that have held evidence of a possible future inheritance to be inadmissible for the purpose of a property assignment or alimony award.” (Citation omitted; internal quotation marks omitted.) Rubin v. Rubin, supra, 204 Conn. 237.

In contrast, in the present case, after an examination of the record we conclude that the trial court properly concluded that the plaintiffs remainder interest in the testamentary trust vested at the time of the testator’s death. See McFarland v. Chase Manhattan Bank, N.A., 32 Conn. Sup. 20, 46-51, 337 A.2d 1 (1973), aff'd, 168 Conn. 411, 362 A.2d 834 (1975). The trial court therefore properly considered the plaintiffs interest as part of the marital estate.

C

The plaintiff next claims that the trial court improperly considered his interest in the Frederick O. Dietter Trust as part of the marital estate for the purpose of determining alimony because there was no finding as to the actual value of his remainder interest in this trust. We agree.

In its memorandum of decision, the trial court found that the plaintiff and cross complaint defendants fraudulently transferred the assets of the Frederick O. Dietter Trust to the Elizabeth A. Dietter Family Trust and that the corpus of the latter trust was currently valued at over $400,000. The trial court did not, however, make a finding as to the actual value of the plaintiffs vested remainder interest in the terminated trust, which interest is subject to the trustee’s invasion of the corpus for the benefit of the holder of the life estate.

In Eslami v. Eslami, 218 Conn. 801, 806, 591 A.2d 411 (1991), the trial court did not consider the plaintiffs wife’s vested interest in her father’s estate, the assets of which she had not yet received, because the value of her interest could not be determined with certainty. Evidence at trial established that her brother had initiated a will contest that was still pending, and that the value of her interest depended upon the resolution of that litigation. Id. In affirming the judgment of the trial court, our Supreme Court stated that “[although the interest involved here had vested in the wife at the time of trial, the court could reasonably have concluded that uncertainty as to the amount she would eventually receive from her father’s estate militated against consideration of that interest for the purpose of the financial awards.” Id., 807. The court noted, however, that the plaintiffs interest in her father’s estate was not wholly irrelevant to a fair financial arrangement between the parties and that modification of the alimony award might be appropriate when the value of this interest was ascertainable. Id., 807-808.

In the present case, the trial court made no finding as to the actual value of the plaintiffs remainder interest in the terminated trust. On remand, if the trial court is able to ascertain the value of the plaintiffs interest, it may consider this interest in fashioning the financial orders. If, on the other hand, the trial court cannot make a proper valuation of the plaintiffs interest and in its discretion it awards alimony, it may fashion the decree to allow for modification of the award when the value of the interest becomes ascertainable. See id., 807-808; see also Bartlett v. Bartlett, supra, 220 Conn. 384.

Ill

In his final claim, the plaintiff contends that the trial court improperly admitted into evidence a confidential attorney-client communication. We agree with the plaintiff.

Sometime prior to February 14, 1991, the plaintiff met with Attorneys Wayne A. Martino, Carl Gulliver and Andrew DiPietro to discuss the possibility of restructuring Flower Farm. Anthony Iagrosse, an accountant who worked for Flower Farm, was also present at this meeting. In a letter dated February 14, 1991, Martino discussed the legal ramifications of certain proposals that were discussed at this meeting.

At trial, the defendant sought to introduce this letter into evidence as circumstantial evidence of the plaintiffs intent to transfer assets fraudulently from the marital estate, and to impeach the plaintiffs testimony that he had never intended to use the company’s reorganization as a method of fraudulently transferring assets. The plaintiff claimed that the letter was inadmissible because it constituted a confidential attorney-client communication. The trial court admitted the letter into evidence, concluding that the defendant’s interest in disclosure outweighed the plaintiffs claim of privilege.

Communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice. State v. Gordon, 197 Conn. 413, 423, 504 A.2d 1020 (1985); Doyle v. Reeves, 112 Conn. 521, 523, 152 A. 882 (1931). “A communication from an attorney to a client, in contrast to a communication from a client to an attorney, is normally not within the privilege, unless the attorney’s statement directly or indirectly reveals confidential information disclosed to the attorney by the client, or is ‘inextricably linked’ with the giving of legal advice. [Ullmann v. State, 230 Conn. 698, 714, 647 A.2d 324 (1994)].” (Emphasis in original.) C. Tait & J. LaPlante, Connecticut Evidence (Sup. 1999) § 12.5.2, p. 269. Because this letter indirectly reveals confidential information disclosed by the plaintiff at the meeting and it is inextricably linked to the giving of legal advice, it falls within the privilege.

Even were we to assume, as the defendant claims, that this letter contains circumstantial evidence of the plaintiffs fraudulent intent to transfer assets from the marital estate, “[t]o lose its privilege the communication must refer to the commission of a crime and not merely subject the client to a civil action for fraud. Supplee v. Hall, [75 Conn. 17, 22-23, 52 A. 407 (1902)].” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 12.5.8, p. 449. The trial court, therefore, improperly admitted the letter into evidence.

The defendant claims that there are two alternative grounds for affirming the decision of the trial court. The defendant claims that the trial court properly admitted the letter into evidence because (1) Iagrosse, who was not an attorney, was present at the meeting and (2) the plaintiff waived the privilege by disclosing the letter during discovery. We disagree with the defendant’s first claim and decline to review the second claim due to an inadequate record.

The defendant first claims that the letter is not subject to the attorney-client privilege because a third party, Iagrosse, was present at the meeting. “[Statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality. . . . The presence of certain third parties, however, who are agents or employees of an attorney or client, and who are necessary to the consultation, will not destroy the confidential nature of the communications.” (Citations omitted.) State v. Gordon, supra, 197 Conn. 424.

The record discloses that the plaintiff hired Iagrosse to provide accounting services to Flower Farm. Iagrosse was present at the meeting wherein the plaintiff and the three attorneys discussed the viability of restructuring Flower Farm. As Flower Farm’s accountant, Iagrosse’s presence at this meeting was necessary to assist the attorneys in understanding the financial information the plaintiff conveyed to the attorneys. Because Iagrosse’s presence at this meeting was necessary for the plaintiff to obtain legal advice, his presence did not destroy the confidential nature of the communication.

The defendant next claims that the plaintiff waived the attorney-client privilege when plaintiffs counsel disclosed the letter in discovery. We decline to review this claim due to an inadequate record. At trial, counsel offered conflicting accounts as to the circumstances under which defense counsel obtained the letter, and the trial court did not make a finding as to the manner in which defense counsel acquired the letter. In the absence of a finding concerning the manner in which this letter came into counsel’s possession, we decline to review this claim.

The judgment is reversed only as to the financial orders and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

      The cross complaint defendants are the plaintiffs mother, Elizabeth Dietter, and the plaintiffs brothers, Ronald Dietter and Theodore Dietter.

       The defendant claims that the plaintiffs mother and two brothers do not have standing to appeal because the trial court rendered a judgment of default against each of them for failure to appear at trial. We need not reach this issue because we conclude that the plaintiff has standing to raise the first, second and third claims. In our review of the plaintiffs first claim, because we conclude that it is necessary to vacate the trial court’s financial orders, it is unnecessary for us to reach the plaintiffs fourth claim, which questions the propriety of the trial court’s financial orders. Because we need not review the plaintiffs fourth claim, it is unnecessary for us to address the defendant’s claim that, the plaintiff lacks standing to challenge the propriety of the trial court’s financial orders.

      In its memorandum of decision, the trial court did not address the allegations set forth in paragraph seven of the second count of the amended cross complaint, wherein the defendant claimed that the plaintiff had fraudulently transferred to his mother substantially all of the equity in the real property located at 3936 Whitney Avenue.

       General Statutes § 52-552e provides in relevant part: “(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, if the creditor’s claim arose before tire transfer was made or the obligation was incurred and if the debtor made the transfer or incurred the obligation: (1) With actual intent to hinder, delay or defraud any creditor of the debtor
      “(b) In determining actual intent under subdivision (1) of subsection (a) of this section, consideration may be given, among other factors, to whether: (1) The transfer or obligation was to an insider, (2) the debtor retained possession or control of the properly transferred after the transfer, (3) the transfer or obligation was disclosed or concealed, (4) before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit, (5) the transfer was of substantially all the debtor’s assets, (6) the debtor absconded, (7) the debtor removed or concealed assets, (8) the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred, (9) the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred, (10) the transfer occurred shortly before or shortly after a substantial debt was incurred, and (11) the debtor transferred the essential assets of the business to a lienor who transferred the assets to an insider of the debtor.”

       While we recognize that several states that have adopted the Fraudulent Transfer Act have made modifications to the official text, the relevant definitions in our state's enactment of the Fraudulent Transfer Act are virtually identical to those of the Oregon enactment. Compare General Statutes § 52-552b with Or. Rev. Stat. § 95-200; see 7A U.L.A., supra, pp. 279-81.

       The Elizabeth A. Dietter Family Trust provided in relevant part:
      “Third: Upon the Grantor’s death, the Trustees shall divide the balance of the trust fund into as many equal parts as there are sons of the Grantor, namely Theodore A. Dietter, Robert E. Dietter and Ronald A. Dietter who survive the Grantor, and shall pay over free of trust one such equal part to each son of the Grantor who survives her and one such equal part to the issue of each such deceased child of the Grantor, in equal shares per stirpes, but subject to the provisions of Articles Fourth and Fifth hereof.
      “Fourth: If the Grantor’s son Robert survives her and is at the time of the Grantor’s death lawfully married to Catherine E. Dietter, his share of the balance of the trust fund shall not be paid over and distributed to him but shall continue to be held by the Trustees as a separate trust fund to and for the uses following:
      “A. The Trustees shall pay over to or use and apply further benefit of Robert such portion or portions of the income or principal of the trust fund as the Trustees in their absolute discretion shall deem to be necessary or advisable, and the decision of the Trustees as to the necessity or advisability of such payments and their amount shall be final and conclusive upon all persons interested. Any income not so paid over or used and applied may be accumulated and either added to principal or held as unexpended income to be used as such in later periods.
      “B. When the Grantor’s son Robert is no longer lawfully married to Catherine E. Dietter or upon his death, whichever first occurs, the trust shall terminate and the balance of the trust fund shall be paid over and distributed, free of trust, to the Grantor’s son Robert, if he is then living, or of he is not then living, to his issue then living, in equal shares per stirpes but subject to the provisions of Article Fifth.”

       At trial, the defendant raised both of these claims, but the court failed to reach either claim because it concluded that the defendant’s interest in disclosure outweighed the plaintiffs claim of privilege. Although the defendant did not file a preliminary statement of issues alleging that these claims constituted alternative grounds for affirming the decision of the trial court; see Practice Book § 63-4 (a) (1) (A); we will review both of these claims because the plaintiff was not prejudiced thereby as he was afforded an opportunity to respond in his reply brief. Chase v. State, 45 Conn. App. 499, 501 n.3, 696 A.2d 1299 (1997); In re Jennifer G., 29 Conn. App. 689, 692, 617 A.2d 921 (1992).

       Counsel for the defendant claimed that he had acquired the letter from opposing counsel in the discovery process. Counsel for the plaintiff, however, was involved in the following colloquy:
      “[Plaintiff’s Counsel]: I don’t know where it came from to be very frank with you, Your Honor. I can’t imagine that through discovery we would have provided this. I don’t know where it came from. But there are other—
      “The Court: It is an interesting question.
      “[Plaintiffs Counsel]: It certainly is. And there are other documents that have been produced at trial that I certainly didn’t produce them in discovery. I don’t know where they came from.

        “The Court: Another lawyer preceded you?
      “[Plaintiffs Counsel]: Yes, there was. I don’t know what that lawyer may have done, but, yes, unfortunately there was another attorney involved in the case. So, I can’t say with any kind of certainty that we have previously waived the objection.”


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    WILLIAM A. OLSON v. ACCESSORY CONTROLS AND EQUIPMENT CORPORATION ET AL.
    (AC 18324)
    Foti, Spear and Hennessy, Js.

      Argued April 22
    officially released August 17, 1999

      Alan I. Scheer, with whom were Christopher M. Had-dad and, on the brief, MichaelN. LaVelle, for the appellant (plaintiff).

      Richard D. O’Connor, with whom were Glenn A. Duhl and, on the brief, Ed;wardF. O’Donnell and George J. Kelly, Jr., for the appellee (named defendant).

      Lawrence S. Cobum, pro hac vice, with whom were Stephen Sinatro and, on the brief, Michael D. O’Connell
      and Julia B. Morris, for the appellee (defendant Teleflex Lionel-Dupont S.A.).
   Opinion

FOTI, J.

The plaintiff, William A. Olson, appeals from the judgment of the trial court dismissing his complaint against the defendant Teleflex Lionel-Dupont S.A. (Teleflex), and the defendant Accessory Controls and Equipment Corporation (Accessory Controls). On appeal, the plaintiff claims that the trial court improperly (1) granted Teleflex’s motion to dismiss based on lack of personal jurisdiction, (2) granted Accessory Controls’ motion for a protective order with respect to certain information based on the attorney-client privilege, (3) granted Accessory Controls’ motion in limine and (4) granted Accessory Controls’ motion to dismiss. We affirm the judgment of the trial court.

The following facts, taken largely from the allegations contained in the plaintiffs complaint, are relevant to our resolution of this appeal. In December, 1981, the plaintiff was employed by Accessory Controls as an engineering technician in Accessory Controls’ Windsor plant. Accessory Controls manufactured, among other things, air conditioning equipment, jet air starters and ground power units for airplanes. By 1985, the plaintiff had been promoted to plant manager and was responsible for the manufacturing operations at Accessory Controls. The plaintiff held this position at all times relevant to the allegations in his complaint.

On or about January 30, 1990, the state department of environmental protection (department) issued an order to Accessory Controls requiring it to submit a report to the department concerning the storage, disposal and removal of hazardous waste at the Windsor plant. After receiving the order, Accessory Controls engaged Carol W. Briggs, an attorney, to provide it with legal advice on how to proceed with the order. In turn, Briggs hired Environmental Management and Compliance Corporation (Environmental Management), and its subcontractor Soils Engineering Services, Inc. (Soils Engineering), to conduct an investigation and to provide Accessory Controls and Briggs with information.

A preliminary environmental investigation was performed by Environmental Management and Soils Engineering. On or about June 7, 1990, Environmental Management and Soils Engineering issued a preliminary report regarding the Windsor plant. That report, which is referred to by the parties as the Diaz report, was submitted to Accessory Controls and shared with the plaintiff in his capacity as plant manager. According to Accessory Controls, however, the Diaz report contained information about areas in the Accessory Controls plant that were not the subject of the department’s inquiry. In response, Briggs identified the portions of the Diaz report that were not responsive to the department’s request, information that she then communicated to Accessory Controls and to Environmental Management.

Accessory Controls asserts that it became clear that Environmental Management would be unable to separate the responsive information in the Diaz report, which the department sought, from the nonresponsive information. On June 22,1990, Briggs then sent Environmental Management a letter reflecting Brigg’s position as to whether the Diaz report should be released to the department. That letter is referred to by the parties as the Briggs notice. Accessory Controls then retained another environmental consulting firm, Environmental Laboratories, Inc. (Environmental Laboratories), to conduct a second evaluation of the Windsor plant. Accessory Controls then submitted the report generated by Environmental Laboratories to the department in compliance with the original department order. The June 7, 1990 Diaz report was never submitted to the department.

Thereafter, and according to the plaintiffs complaint, the defendant Teleflex, a French corporation, acquired an ownership interest in Accessory Controls. In February, 1992, Teleflex’s representatives Francois Calvarin and Alex Reese visited the Windsor plant as part of a postacquisition review of Accessory Controls’ operations. While there, Calvarin and Reese questioned the plaintiff about Accessory Controls’ prior practices with regard to the storage and disposal of toxic and hazardous waste at the plant. Calvarin and Reese encouraged the plaintiff to cooperate with their investigation by promising the plaintiff that his communications with them would be confidential and would not be shared with Accessory Controls’ management. They further assured him that his communications with them would not be the subject of reprisal or other negative employment action.

Relying on Calvarin and Reese’s assurances, the plaintiff disclosed to them that there had, in fact, been improper storage and disposal of toxic and hazardous waste at the Windsor plant. The plaintiff further advised them of the existence of the June 7, 1990 Diaz report submitted to Accessory Controls by Environmental Management and Soils Engineering. The plaintiff asserts that despite their assurances, Calvarin and Reese communicated to senior management at Accessory Controls the information that the plaintiff had provided them.

According to the plaintiff, upon learning of his disclosures to Calvarin and Reese, Accessory Controls commenced a campaign of retaliation against the plaintiff with the apparent goal of forcing him to resign or, in the alternative, to provide Accessory Controls with a justification for dismissing him. On February 12, 1993, following the unsuccessful campaign to force him to resign, Accessory Controls dismissed the plaintiff under the pretext that his position had been ehminated. Following his termination, the plaintiff commenced this present suit against Accessory Controls and Teleflex.

In count one of his complaint, the plaintiff claimed that Accessory Controls had wrongfully terminated his employment in that his dismissal “contraven[ed] public policy with respect to the environmental laws and regulations of the state of Connecticut in that [his] dismissal was in retaliation for [the] plaintiffs report of the environmental hazards to the [Teleflex] representatives.” In count two, the plaintiff brought an action against Teleflex sounding in negligent misrepresentation. He claimed that the statements made by Calvarin and Reese that their communications with the plaintiff would be confidential and would not be shared with the president and chief executive officer of Accessory Controls, and that the plaintiffs revelations would not be the subject of reprisal or other negative employment action contained false information. The plaintiff sought reinstatement to his foimer position, back pay and damages.

In response to the plaintiffs complaint, Teleflex filed a motion to dismiss claiming a lack of personal jurisdiction. In support of its motion, Teleflex claimed that it was a French corporation with virtually no contact with Connecticut. It asserted that the only conduct that could arguably provide a basis for establishing personal jurisdiction would be “tortious conduct” within the state of Connecticut by Teleflex or its employees. Teleflex argued, however, that the plaintiff had failed to allege sufficient specific facts in his complaint that would establish such a basis. On April 12, 1995, the trial court agreed and granted Teleflex’s motion to dismiss.

In the course of the remaining litigation between the plaintiff and Accessory Controls, Accessory Controls filed a motion for a protective order, pursuant to Practice Book § 13-5, seeking to preclude the plaintiff and his attorneys from disclosing, inter alia, oral and written communications that occurred between the plaintiff and Accessory Controls’ attorneys made for the purpose of conveying legal advice. Accessory Controls also sought the return of all documents containing such communications. In a memorandum of decision dated April 19, 1996, the trial court granted Accessory Controls’ motion for a protective order finding that the documents sought were, in fact, protected by the attorney-client privilege and that the crime fraud exception was not applicable under the facts of the case.

Prior to jury selection, Accessory Controls filed a motion in limine, asking the trial court to adopt the earlier protective order and to exclude, from trial, any of the information previously determined to be protected by the attorney-client privilege. Thereafter, the trial court adopted the findings contained in the earlier protective order and prohibited any use or reference to either the Diaz report or the Briggs notice, or the information they contained. Accessory Controls then moved orally to dismiss the action, arguing that, because of the trial court’s evidentiary ruling to exclude from disclosure the information contained in the protective order, the plaintiff would be unable to present relevant material facts and that it would be impossible for the plaintiff to present a prime facie case. The plaintiff also joined in asking the trial court to rule on the motion. The trial court then granted Accessory Controls’ motion dismissing the plaintiff’s complaint, and this appeal followed.

I

The plaintiff first claims that the trial court improperly granted Teleflex’s motion to dismiss based on lack of personal jurisdiction. We do not agree.

On April 12, 1995, the trial court granted Teleflex’s motion to dismiss. The trial court found that Teleflex was a foreign corporation located in Paris. It found also that the plaintiff, through its complaint, had at least initially set forth the “necessary [allegations] of jurisdictional fact” that would allow the trial court to establish personal jurisdiction over Teleflex under General Statutes § 33-929. The trial court then found, however, that because Teleflex submitted “competing affidavits,” the plaintiff, who submitted no affidavits or supporting material, would not be able to rely on the conclusory allegations in his complaint to establish jurisdiction.

In support of its ruling, the trial court went on to point out that “each of the [Teleflex] representatives, Mr. Calvarin and Mr. Reese, have submitted affidavits containing explicit and affirmative assertions that any communications made to them by the plaintiff regarding hazardous waste and improper storage of material were not communicated in any way to the plaintiffs employer before his termination. Mr. [Alain] Clarou the president of [Teleflex] submitted an affidavit in which he states that neither he nor any other employee of [Teleflex] communicated the [plaintiffs] allegations to [the plaintiffs] employer until after litigation was threatened. Mr. [Richard] Stem the president of [Accessory Controls] submitted an affidavit saying he received no such information from [Teleflex] or any of its agents prior to [the plaintiffs] employment termination in February of 1993.

“The plaintiff has submitted no counteraffidavit to rebut these assertions and his courtroom testimony on the issue of the necessary jurisdictional facts was just as conclusory as the allegations of his complaint. The court believes it has no other choice but to dismiss the complaint against the defendant foreign corporation.” We agree with the conclusion of the trial court.

“Because a lack of personal jurisdiction may be waived by the defendant, the rules of practice require the defendant to challenge that jurisdiction by a motion to dismiss. . . . When a defendant files a motion to dismiss challenging the court’s jurisdiction, a two part inquiry is required. The trial court must first decide whether the applicable state long-arm statute authorizes the assertion of jurisdiction over the [defendant]. If the statutory requirements [are] met, its second obligation [is] then to decide whether the exercise of jurisdiction over the [defendant] would violate constitutional principles of due process.” (Citation omitted; internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., 236 Conn. 602, 605-606, 674 A.2d 426 (1996).

“Only if we find the statute to be applicable do we reach the question whether it would offend due process to assert jurisdiction.” Lombard, Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 250, 460 A.2d 481 (1983). Here, the trial court found that the plaintiff had failed to prove that the requirements of Connecticut’s long-arm statute, § 33-929, had been met. It, therefore, did not reach the issue of whether the exercise of personal jurisdiction over Teleflex would violate constitutional principles of due process. Because we agree with the trial court’s determination, we similarly limit our analysis.

Practice Book § 10-30 governs motions to dismiss. “A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 41 Conn. App. 790, 793, 677 A.2d 1378 (1996), rev’d on other grounds, 243 Conn. 1, 699 A.2d 995 (1997). “A ruling on a motion to dismiss is neither a ruling on the merits of the action . . . nor a test of whether the complaint states a cause of action. . . . Motions to dismiss are granted solely on jurisdictional grounds.” (Citations omitted.) Discover Leasing, Inc. v. Murphy, 33 Conn. App. 303, 306-307, 635 A.2d 843 (1993).

“If a challenge to the court’s personal jurisdiction is raised by a defendant, either by a foreign corporation or by a nonresident individual, the plaintiff must bear the burden of proving the court’s jurisdiction.” Knipple v. Viking Communications, Ltd., supra, 236 Conn. 607. In this case, the trial court not only reviewed the allegations contained in the plaintiffs complaint and the affidavits submitted by Teleflex in support of its motion to dismiss, but conducted an evidentiary hearing as well. It is against this backdrop that we review the trial court’s findings.

Pursuant to § 33-929 (f) (4), a foreign corporation is subject to suit in Connecticut if the cause of action in question arises “out of tortious conduct [committed] in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.” The plaintiff alleged that the tortious conduct committed by Teleflex in Connecticut involved negligent misrepresentation. The gravamen of the plaintiffs claim is that the statements made by Calvarin and Reese that the plaintiffs communications with them would be confidential and would not be shared with the president of Accessory Controls, and that the plaintiffs revelations would not be the subject of reprisal or other negative employment action contained false information. The plaintiff alleged that following his conversation with Calvarin and Reese, during which they promised the plaintiff that his communications would be confidential, “the information supplied by the plaintiff to [them] was communicated to senior management of [Accessory Controls] including [its] president and CEO, Richard Stem.” (Emphasis added.)

We agree with the trial court that the necessary jurisdictional fact, i.e., a communication by Calvarin and Reese of the information supplied by the plaintiff to Accessory Controls management following a promise of confidentiality, “is only hinted at.” Nevertheless, we recognize that “[w]hen a [trial] court decides ajurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light.” Reynolds v. Soffer, 183 Conn. 67, 68, 438 A.2d 1163 (1981). We, therefore, determine that the plaintiff has at least alleged that Teleflex, through its employees, did engage in tortious conduct within the state of Connecticut. This, however, does not end our inquiry.

Attached to Teleflex’ motion to dismiss were the affidavits of Calvarin, Reese and Stern in which all three individuals denied that any such communications took place. Calvarin and Reese both claimed that any allegations made to them by the plaintiff regarding the improper disposal of hazardous waste were not communicated to Accessory Controls prior to the plaintiffs termination. Clarou, the president of Teleflex, submitted an affidavit corroborating that claim. Similarly, Stern’s affidavit supports the claim that he received no such information from Teleflex or any of its agents prior to the plaintiffs termination.

In contrast, the plaintiff has not submitted any counteraffidavits refuting those claims. While he disputes the assertions contained in the affidavits submitted by the defendants, he relies solely on the allegations contained in his complaint and has submitted no further evidence to establish the necessary jurisdictional basis for his claim against Teleflex. “Where the facts necessary to determine jurisdiction are disputed, due process requires that a trial-like hearing be held, [at the request of either party] in which an opportunity is provided to present evidence and to cross-examine adverse witnesses. Standard Tallow Corp. v. Jowdy, [190 Conn. 48, 56, 459 A.2d 503 (1983)].” (Internal quotation marks omitted.) Knipple v. Viking Communications, Ltd., supra, 236 Conn. 608 n.10. While an evidentiary hearing was held in which the plaintiff testified that he was terminated shortly after his meeting with Calvarin and Reese, the trial court found that his “testimony on the issue of the necessary jurisdictional facts was just as conclusory as the allegations of his complaint.” Our examination of the plaintiffs in-court testimony supports that conclusion.

Again, “[i]f a challenge to the [trial] court’s personal jurisdiction is raised by a defendant, [as in this case] . . . the plaintiff must bear the burden of proving the court’s jurisdiction.” Id., 607. The plaintiff has not done so. We conclude, therefore, that the trial court did not improperly dismiss the plaintiffs complaint against Teleflex on the basis of the plaintiffs failure to present facts sufficient to establish the trial court’s jurisdiction.

II

The plaintiff next claims that the trial court improperly granted Accessory Controls’ motion for a protective order with respect to certain reports and correspondence based on the attorney-client privilege. We do not agree.

Initially, it is important to define the plaintiffs specific claims on appeal. While Accessory Controls’ July 14,1995 motion for a protective order sought to prevent the disclosure of various documents, as well as a request that the record in the pending action between the plaintiff and Accessory Controls be sealed, the plaintiffs claims on appeal are more limited. As explained previously, counsel for Accessory Controls hired Environmental Management, and its subcontractor Soils Engineering, to prepare a report to aid Accessory Controls and its attorney in their response to a department order that requested a detailed account concerning the hazardous waste storage and disposal procedures at the Windsor plant. This report generated by Environmental Management and Soils Engineering and submitted to Accessory Controls and Briggs, Accessory Controls’ attorney, is referred to by the parties as the Diaz report.

Following the issuance of the Diaz report, Briggs sent a letter to Environmental Management concerning its contents. The letter referenced Briggs’ earlier request that the Diaz report be “separated]” so as to ensure that Accessory Controls’ reply to the department order was responsive. This letter is referred to by the parties as the Briggs notice. On appeal, the plaintiff challenges only the trial court’s decision to protect from disclosure the Diaz report and the Briggs notice. We conclude that such information is protected.

Generally, “[t]he attorney-client privilege protects communications between client and attorney when made in confidence for the purpose of seeking or giving legal advice. State v. Cascone, 195 Conn. 183, 186, 487 A.2d 186 (1985).” Ullmann v. State, 230 Conn. 698, 711, 647 A.2d 324 (1994). Thus, while this well established rule is often expressed in terms of protecting communications from the client to the attorney, our Supreme Court has noted that “[a] communication/rom attorney to client solely regarding a matter of fact would not ordinarily be privileged, unless it were shown to be inextricably linked with the giving of legal advice.” (Emphasis added.) Id., 713. “The privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him [or her] to give sound and informed advice.” (Emphasis added; internal quotation marks omitted.) Shew v. Freedom of Information Commission, 245 Conn. 149, 157, 714 A.2d 664 (1998).

Furthermore, the attorney-client privilege protects communications in circumstances where the client is a municipal or corporate entity, rather than an individual. Id., 158. The privilege, therefore, potentially applies in this case despite the fact that Briggs was hired by, and a representative of, Accessory Controls, itself a corporate entity, and despite the fact that the communication was not made by the client itself to the attorney.

So, while communications from an attorney to a corporate entity can potentially fall under the attorney-client privilege, this does not end our inquiry. Here, the information sought by the plaintiff was not communicated directly from Briggs, the attorney, to the client, Accessory Controls. Instead, the communication took place between Briggs and Environmental Management, an “expert” hired by Briggs and Accessory Controls to assist Briggs in providing Accessory Controls with legal advice. In short, the information sought by the plaintiff is comprised of communications between an attorney and the attorney’s agent which was necessary to assist that attorney in the representation of its client.

While we are unaware of any case dealing directly with the issue before this court, i.e., the application of the attorney-client privilege to communications between an attorney and its agent necessary for proper representation of the attorney’s client, we are persuaded that the attorney-client privilege is broad enough to cover the circumstances arising in this case. For example, in State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979), a consulting psychologist was called on to examine a criminal defendant prior to trial. At trial, over the defendant’s objection, the psychologist was permitted to testify as a state’s witness concerning the defendant’s mental state. The defendant had argued that the admission of the psychologist’s testimony violated the attorney-client privilege and, thus, the defendant’s sixth amendment right to the assistance of counsel.

Our Supreme Court agreed, holding that the admission of this testimony was improper and, citing the attorney-client privilege, ruled: “Where a psychiatric expert, whether psychiatrist or psychologist, is retained by a criminal defendant or by his counsel for the sole purpose of aiding the accused and his counsel in the preparation of his defense, the attorney-client privilege bars the state from calling the expert as a witness. The fact that the psychiatric expert was appointed by the court rather than employed by the defense is irrelevant; the law affords no lesser protection for a defendant who is indigent than for one with means to retain his own psychiatrist to prepare a defense.” Id., 628.

Later, in State v. Egan, 37 Conn. App. 213, 655 A.2d 802, cert. denied, 234 Conn. 905, 659 A.2d 1206 (1995), this court extended the rule announced in Tosté to include communications between a defendant in a criminal matter and other professionals hired by the accused’s attorney for the purpose of aiding the accused and his counsel in the preparation of a defense. Citing Tosté, we found that communications between a defendant and a social worker, as well as the contents of the social worker’s report, fell “under the common law attorney-client privilege because the defendant met with the social worker at his counsel’s behest.” Id., 216.

These cases appear to be in line with the generally established rule of law. In fact, Wigmore explains that “ [i]t has never been questioned that the [attorney-client] privilege protects communications to the attorney’s clerks and his other agents ... for rendering his services. The assistance of these agents being often indispensable to his work and the communications of the client often being necessarily committed to them by the attorney or by the client himself, the [attorney-client] privilege must include all the persons who act as the attorney’s agents.” 8 J. Wigmore, Evidence (4th Ed. 1961) § 2301, p. 583. Our own Supreme Court precedent recognizes that a communication made to or in the presence of third parties is not privileged unless those other individuals present are agents or employees of the attorney or the client and their presence is “necessary to the consultation . . . .” State v. Gordon, 197 Conn. 413, 424, 504 A.2d 1020 (1985); see also State v. Hana, 150 Conn. 457, 465, 191 A.2d 124 (1963); State v. Cascone, 195 Conn. 183, 186 n.3, 487 A.2d 186 (1985).

The reasoning behind this long established rule takes on added force in the context of modern litigation. This idea was aptly expressed in State v. Pratt, 284 Md. 516, 520, 398 A.2d 421 (1979), where the Maryland Court of Appeals “observe [d] that, given the complexities of modern existence, few if any lawyers could, as a practical matter, represent the interest of their clients without a variety of nonlegal assistance. Recognizing this limitation, it is now almost universally accepted in this country that the scope of the attorney-client privilege, at least in criminal causes, embraces those agents whose services are required by the attorney in order that he may properly prepare his client’s case.” Id. We can think of no reason why this sound reasoning should not apply in the civil context as well.

Despite our broader application of the rule in this case, however,we recognize that it is not without limits. As we noted in State v. Egan, supra, 37 Conn. App. 217, the privilege “is not absolute, and a party seeking to invoke the privilege must act so as to maintain a justified expectation that his communications would not be publicly disclosed . . . .” (Internal quotation marks omitted.) We conclude that under the facts of this case, the communications between Briggs and Environmental Management were of such a nature that the attorney-client privilege should apply.

As the trial court noted in its memorandum of decision, “the Diaz report was completed and delivered to [Accessory Controls] on or about June 7, 1990. An attorney for [Accessory Controls, Briggs,] in effect had retained Environmental Management in a letter she wrote to that company on February 27,1990. This letter is known to both sides in this litigation but was submitted under seal. The letter is replete with admonitions that all communications with respect to the [Environmental Management] employment between the presidentof [Environmental Management] and his office and with the law firm representing [Accessory Controls] and between [Environmental Management] and any attorney agent or employee acting for Accessory Controls are to be confidential and made solely so that counsel for Accessory Controls can give Accessory Controls legal advice. Environmental Management is not to disclose anything gleaned from such communications or as a result of its inspection of Accessory Controls’ documents or premises without permission of counsel for Accessory Controls. Environmental Management is not to permit inspection of such records or documents without permission from Accessory Controls’ counsel in advance. The letter went so far as to require its recipient, apparently the president or some other high official of Environmental Management to sign it and return the letter to Accessory Controls’ counsel.”

We conclude, therefore, that because the communications between Briggs and Environmental Management fell within the bounds of the attorney-client privilege, and because they were “made in confidence for the purpose of seeking legal advice”; (internal quotation marks omitted) State v. Gordon, supra, 197 Conn. 423; the trial court’s granting of Accessory Controls’ motion for a protective order, which sought to prevent the disclosure of these communications, was not improper.

III

The plaintiff next claims that the trial court improperly granted Accessory Controls’ motion in limine. We do not agree.

Prior to trial, Accessory Controls filed a motion in limine seeking to exclude “certain attorney-client protected communications” as were specified in its motion. The motion requested that “[t]he draft report of the environmental consultant [Diaz report] and all related correspondence between Accessory Controls’ counsel and Accessory Controls’ environmental consultant [Brigg’s notice] not be introduced, referred to, or used for any purpose inconsistent with . . . Judge Corradino’s” decision on Accessory Controls’ motion for a protective order. Again, while the motion in limine was granted as to other communications, the plaintiff appeals only the preclusion of the Diaz report and the Briggs notice.

Nevertheless, an examination of the plaintiffs brief discloses that he does not advance a separate legal argument as to why the granting of the motion in limine was improper. He merely appeals the granting of the motion in limine “in that it does no more than apply the trial court’s earlier decisions on [Accessory Controls’] motion for a protective order to the introduction of evidence at trial.” In fact, he acknowledges that “the decision of the trial court [on the motion in limine] is for all intents and purposes an adoption of the [trial] court’s decision on the motion for protective order . . . .” As a result, he relies on the same argument he made as to why the granting of the motion for a protective order was improper.

Generally, “[t]rial courts have wide discretion with regard to evidentiary issues and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993). Every reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion. State v. Kulmac, 230 Conn. 43, 61, 644 A.2d 887 (1994).” State v. Gracia, 51 Conn. App. 4, 15-16, 719 A.2d 1196 (1998).

Here, we have already concluded that Judge Corradino’s ruling on Accessory Controls’ motion for a protective order, which sought to prevent the disclosure of communications covered by the attorney-client privilege, was not improper. We conclude, therefore, that Judge Aurigemma’s later adoption of that order in ruling on Accessory Controls’ motion in limine, which sought to exclude the same communications, was not an abuse of discretion.

IV

The plaintiff finally claims that the trial court improperly granted Accessory Controls’ motion for judgment cast as a motion to dismiss. We do not agree.

Following the granting of the motion in limine, Accessory Controls filed a motion for summary judgment. The plaintiff, in turn, filed a memorandum of law in opposition. On April 3, 1998, the following colloquy took place:

“The Court: All right. Is there a motion that the defendant wants to make?

“[Counsel for Accessory Controls]: Yes, Your Honor. The court will recall that we have filed a motion for summary judgment and there has been opposition and memoranda and exhibits in that regard. As a result of an agreement between the parties, that motion for summary judgment is being withdrawn and the plaintiffs material in opposition is being withdrawn. The defendant is now proposing to make an oral motion to dismiss based upon the fact that the court, through rulings of Judge Corradino and through this court in a motion in limine, has precluded the plaintiff from being able to present material facts that would be relevant and admissible in any trial and on that basis the defendant’s motion to dismiss should be granted.

“[Plaintiffs Counsel]: Your Honor, as [counsel for Accessory Controls] indicates, there is an agreement that the motion for summary judgment be withdrawn and then [he] present the motion he has made in this format. The plaintiff feels that our position with respect to Judge Corradino’s ruling, be that as a general phrase, our position on that is veiy well documented in the case file at this point.....And so we feel at that point, Your Honor, that our position has been laid out and I guess both Mr. O’Connor and I join in asking the court to rule on this motion.”

At which point the trial court noted that because it had granted Accessory Controls’ motion in limine, it would be “impossible for the plaintiff to proceed.” The trial court then ruled that it was “granting] the judgment of dismissal of the plaintiffs suit based on [its] ruling adopting Judge Corradino’s April 19, 1996 decision with the understanding that it’s the intent of the parties to appeal Judge Corradino’s ruling.”

A motion to dismiss “properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.” (Emphasis added; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544, 590 A.2d 914 (1991); see also Practice Book § 10-31. As the plaintiff explains in his brief, however, the trial court “proposed a form of judgment of dismissal for the stated purpose of allowing the parties to proceed to the Appellate Court to address the trial court’s decisions regarding both the motion in limine and the motion for a protective order.” The plaintiff asserts that the dismissal was “fatally flawed due to the error of the decisions on which it relied.”

The plaintiff does not claim, however, that the trial court employed the wrong procedural vehicle in dismissing the plaintiffs complaint. Instead, the plaintiff argues that because the trial court improperly granted Accessory Controls’ motion in limine, which sought to preclude communications protected by the attorney-client privilege, the “dismissal” of the plaintiffs complaint, which was based on that previous ruling, was improper. Nevertheless, because we have previously held that the trial court properly granted Accessory Controls’ motion in limine, we must reject the plaintiffs final claim. The plaintiff has simply recast his original argument in different terms.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 13-5 provides: “Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the judicial authority; (6) that a deposition after being sealed be opened only by order of the judicial authority; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the judicial authority.”

       We recognize that Standard Tallow Corp. v. Jowdy, supra, 190 Conn. 56, contemplated that when jurisdictional facts are in dispute, “a trial-like hearing ... in which an opportunity is provided to present evidence and to cross-examine adverse witnesses” should be held. In Knipple v. Viking Communications, Ltd., supra, 236 Conn. 602, 608 n.10, however, our Supreme Court explained that such an evidentiary hearing need only be held “at the request of either party ....’’ In this case, only a limited evidentiary hearing was held in which the plaintiff was the sole witness. The defendant was permitted to present evidence, by way of affidavits, and was not required to produce witnesses, ostensibly depriving the plaintiff the opportunity of cross-examination.
      An examination of the transcript, however, reveals that the limited scope of the evidentiary hearing was agreed to by the parties. Both parties agreed that the trial court’s decision would be based solely on the testimony of the plaintiff and the affidavits of Teleflex and Accessory Controls employees. In light, of our Supreme Court’s recognition that such a hearing need be held only “at the request of either party,” it follows that the parties can similarly agree to limit its scope. Id. We find, therefore, that the limited scope of the evidentiary hearing was not improper.

       Our examination of the plaintiff’s testimony discloses that he offered no direct evidence that Calvarin or Reese ever disclosed the contents of their conversation with the plaintiff to anyone at Accessory Controls. The plaintiff merely testified that following his disclosure of information to Calvarin and Reese, he began to be harassed by Accessory Controls’ management and was eventually fired.

       In addition to arguing that the documents in question are not protected by the attorney-client privilege, the plaintiff argues that the documents are not covered by the work product doctrine. The trial court, however, did not rule whether the documents were covered by the doctrine, noting that it did not analyze this case “on the basis of the work product claim by the defendant.” Because we agree with the trial court that the documents in question were, in fact, covered by the attorney-client privilege, we need not determine whether they are similarly protected under the work product doctrine.

       To determine whether the attorney-client privilege applies in a particular case where the “client” seeking protection is a corporate entity, our Supreme Court set forth a four part test. In sum, “communications to an attorney for a public agency [or corporate entity] are protected from disclosure by privilege if the following conditions are met: (1) the attorney must be acting in a professional capacity for the agency, (2) the communications must be made to the attorney by current employees or officials of the agency, (3) the communications must relate to the legal advice sought by the agency from the attorney, and (4) the communications must be made in confidence.” (Internal quotation marks omitted.) Shew v. Freedom of Information Commission, supra, 245 Conn. 159. Here, we find that although the trial court did not specifically apply this test in determining whether the information sought was protected by the attorney-client privilege, the facts of this case support the conclusion that the test is, in fact, satisfied.
      First, the trial court found that Briggs was hired directly by Accessory Controls to represent it in its dealing with the department. Second, the communication was made from Environmental Management to Briggs, and eventually to the plaintiff and other current employees of Accessory Controls. Third, the communications in question, both the Diaz report and the Briggs notice, related to the legal advice sought by Accessory Controls from Briggs. In fact, the sole purpose of the relationship between Accessory Controls and Briggs and, conversely, between Briggs and Environmental Management, was to provide Accessory Controls with legal advice on how to respond to the department order.
      Lastly, the communications were made in confidence. In fact, as discussed at length below, the trial court found that a letter from Briggs to Environmental Management was “replete with admonitions that all communications with respect to the Environmental Management employment between the president of Environmental Management and his office and with the law firm representing Accessory Controls and between Environmental Management and any attorney agent or employee acting for Accessory Controls are to be confidential and made solely so that counsel for Accessory Controls can give Accessory Controls legal advice.”

       The plaintiff also claims that the trial court improperly found that the communications in question were not protected by the attorney-client privilege because they fell under the crime-fraud exception. Connecticut, however, still follows the old variation of the rule which limited the exception to the privilege where the communication involved the commission of a crime, not merely civil fraud. Supplee v. Hall, 75 Conn. 17, 22-23, 52 A. 407 (1902). The plaintiff makes no allegation that the communications in this case involved evidence of the commission of a criminal act.
      Even if we were to reach the issue, however, we note that the trial court found that the communications contained no evidence of civil fraud and would not, therefore, fall under the crime-fraud exception. After our review of the trial court’s memorandum of decision, as well as the communications at issue, we would have to agree.

       While Judge Aurigemma simply wrote “granted” on Accessory Controls’ motion in limine next to the specific request to exclude the Diaz report and the Briggs notice, an examination of the transcript from the hearing on that motion reveals the trial court’s reasoning. In ruling on Accessory Controls’ motion in limine, the trial court stated: “In this case—well, my feeling in general is that when there is a—when it’s obvious that the previous judge spent an inordinate amount of time and thoroughly reasoned and analyzed and supported his decision, as Judge Corradino has done in this case, that I guess my feeling is I would have to violently disagree with his conclusions to overturn it. I don’t happen to violently disagree. ... I am not going to deviate from that ruling. . . . And so with respect to the defendant’s motion in limine, number one is granted . . . .’’The trial court’s mention of “number one” is a reference to the first request in Accessory Controls’ motion in limine which sought to preclude the introduction of the Diaz report and the Briggs notice.

       Practice Book § 10-31 (a) provides in relevant part: “The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. ...”

       Indeed, it is clear from our examination of the transcript in this case that it was the intent of the trial court, as well as the parties, to provide the plaintiff with a final judgment from which he could take an appeal to this court. Under Practice Book § 61-1, aparty must appeal from afinal judgment.