author: HARPER, J.

text:
    RICHARD SHENKMAN-TYLER v. CENTRAL MUTUAL INSURANCE COMPANY ET AL. RICHARD SHENKMAN-TYLER v. CENTRAL MUTUAL INSURANCE COMPANY
    (AC 31852)
    (AC 31853)
    Bishop, Harper and West, Js.

      Argued September 22, 2010
    officially released February 22, 2011

      Benjamin D. Gettinger, with whom, on the brief, was HughF. Keefe, for the appellant (plaintiff in both cases).

      David J. Crotta, Jr., for the appellee (named defendant in both cases).

      Richard C. Mahoney, with whom were Stephanie S. Baier and Nancy P. Tyler, pro se, for the appellee (defendant Nancy P. Tyler in the first case).
   Opinion

HARPER, J.

In this consolidated appeal, the plaintiff, Richard Shenkman-Tyler appeals from the judgments of the trial court granting the motions filed by the defendants Central Mutual Insurance Company (Central Mutual) and Nancy P. Tyler, to dismiss his declaratory judgment action (declaratory judgment action) and his related action (contract action), in which he brought claims for breach of contract, breach of the covenant of good faith and fair dealing, violation of the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; and negligent infliction of emotional distress. The plaintiff claims that the court improperly (1) granted the defendants’ motions to dismiss the declaratory judgment action on the grounds that he lacked standing to bring the claim and that the claim was moot, and (2) granted Central Mutual’s motion to dismiss his contract action on the ground that he lacked standing. We affirm the judgment of the trial court in the declaratory judgment action and reverse, in part, the judgment of the trial court in the contract action.

The following facts and procedural history are relevant to the plaintiffs appeal. This matter stems from the destruction by fire of a beach home (property) owned by Tyler, the plaintiffs former wife, and insured by Central Mutual. Tyler took title to the property in her name on August 24, 1995. At all relevant times, the property was insured by Central Mutual. Tyler initiated a marital dissolution action against the plaintiff on July 19,2006. On March 5,2007, while the marital dissolution action was pending, the property was destroyed by fire. The plaintiff was arrested on May 10, 2007, on charges of arson and reckless endangerment in relation to the fire that destroyed the property.

On May 18, 2007, the plaintiff brought a declaratory judgment action against Tyler and Central Mutual seeking a determination of: “Whether or not the plaintiff has a right to receive proceeds under the terms of the policy” and whether “payment should be made by [Central Mutual] under the terms of the policy . . . .” On July 2, 2008, the court, Simon, J., rendered judgment of dissolution in the divorce proceeding. In its memorandum of decision, the court awarded the property and all proceeds from the pending insurance claims to Tyler, ordering: “Wife shall retain sole title and ownership to [the property] free from any claims of the husband. Wife shall be entitled to any and all proceeds from the pending fire insurance loss claim as made to the structure, contents, loss of use and any other claims that may be made under the terms of the policy. The court also awards the wife all of the husband’s interests in said policy, if any exists. Should husband receive any proceeds from the pending litigation brought against the carrier as to any and all claims that may be made under the policy, including husband’s claim of bad faith, the same shall be deemed to be the property of the wife. This order is an assignment to the wife of any interest the husband may have in any litigation involving this property. Wife shall remain solely responsible for the taxes, insurance and currently existing mortgage encumbering the referenced property.” On appeal, this court affirmed the judgment of the trial court in the divorce proceeding. Tyler v. Shenkman-Tyler, 115 Conn. App. 521, 973 A.2d 163, cert. denied, 293 Conn. 920, 979 A.2d 493 (2009).

On October 10,2008, the plaintiff brought the contract action against Central Mutual. The plaintiff filed a four count complaint relating to Central Mutual’s handling of the insurance claim on the property, alleging (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) violation of CUTPA, and (4) negligent infliction of emotional distress.

Tyler filed a motion to dismiss the declaratory judgment action on July 22, 2009. Central Mutual filed a motion to dismiss the declaratory judgment action on September 14, 2009, and a motion to dismiss the contract action on September 21, 2009. On December 22, 2009, the court, Cosgrove, J., issued memoranda of decision in both actions, granting the defendants’ motions to dismiss. In its memorandum of decision dismissing the declaratory judgment action, the court held that, because Tyler was awarded sole ownership and title to the property and all proceeds relating to the insurance claim on the property, the plaintiff lacked standing and the claim was moot. In dismissing the contract action, the court similarly held that, because any interest that the plaintiff may have had under the insurance contract had been assigned to Tyler by way of the judgment in the dissolution proceeding, the plaintiff lacked standing to bring the claims. This consolidated appeal followed.

I

The plaintiffs first claim is that the court improperly granted the defendants’ motions to dismiss the declaratory judgment action. Specifically, the plaintiff claims that although, by the terms of the marital dissolution action, all proceeds from the insurance contract were transferred to Tyler, he nonetheless was entitled as a matter of law to bring the declaratory judgment action to determine his rights under the insurance contract. We do not agree.

“In reviewing the trial court’s decision to grant a motion to dismiss, we take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. ... [A] motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” (Citation omitted; internal quotation marks omitted.) Leseberg v. O’Grady, 115 Conn. App. 18, 21, 971 A.2d 86, cert. denied, 293 Conn. 913, 978 A.2d 1110 (2009).

“The [declaratory judgment] procedure has the distinct advantage of affording to the court in granting any relief consequential to its determination of rights the opportunity of tailoring that relief to the particular circumstances. . . . Adeclaratoryjudgmentactionisnot, however, a procedural panacea for use on all occasions, but, rather, is limited to solving justiciable controversies.” (Citation omitted; internal quotation marks omitted.) Milford Power Co., LLC v. Alstom Power, Inc., 263 Conn. 616, 625, 822 A.2d 196 (2003). “A court wifi not resolve a claimed controversy on the merits unless it is satisfied that the controversy is justiciable.” Mejia v. Commissioner of Correction, 112 Conn. App. 137, 146, 962 A.2d 148, cert. denied, 291 Conn. 910, 969 A.2d 171 (2009). “Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse ... (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant. ... As we have recognized, justiciability comprises several related doctrines, namely, standing, ripeness, mootness and the political question doctrine, that implicate a court’s subject matter jurisdiction and its competency to adjudicate a particular matter. . . . Finally, because an issue regarding justiciability raises a question of law, our appellate review is plenary.” (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 254-55, 990 A.2d 206 (2010).

In the present case, the court properly granted the defendants’ motions to dismiss the plaintiffs declaratory judgment action, as it presents a nonjusticiable issue. The plaintiffs complaint in the declaratory judgment action specifically seeks a determination of his rights to receive proceeds under the insurance contract. According to the terms of the court’s order in the marital dissolution action, however, any interest that the plaintiff may have had in the insurance policy and any rights to proceeds under the policy have been assigned to Tyler. Therefore, a determination of the controversy will not result in any practical relief to the plaintiff as he no longer has any interest in the policy and is not entitled to any proceeds from the policy. Because no practical relief can be granted to the plaintiff, his claim is nonjusticiable, and we affirm the judgment of the trial court dismissing the plaintiffs declaratory judgment action.

II

The plaintiffs next claim is that the court improperly granted Central Mutual’s motion to dismiss his contract claim on the ground that he lacked standing. We affirm the court’s granting of the motion to dismiss the contract claim as to the first three counts — breach of contract, breach of the covenant of good faith and fair dealing, and violation of CUTPA — and reverse as to the fourth count, negligent infliction of emotional distress.

“The issue of standing implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss. Practice Book § 10-31 (a). [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute. ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. . . . Because a determination regarding the trial court’s subject matter jurisdiction raises a question of law, our review is plenary. . . .

“Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue. . . . Standing requires no more than a colorable claim of injury; a [party] ordinarily establishes . . . standing by allegations of injury [that he or she has suffered or is likely to suffer]. Similarly, standing exists to attempt to vindicate arguably protected interests. . . .

“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the subject matter of the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]. . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Citations omitted; internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213-15, 982 A.2d 1053 (2009).

“Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented. ” Maloney v. Pac, 183 Conn. 313, 320, 439 A.2d 349 (1981).

The first three counts in the plaintiffs contract action, alleging breach of contract, breach of the covenant of good faith and fair dealing, and violation of CUTPA, are all premised on the plaintiffs alleged rights under the insurance policy. Thus, in order to demonstrate aggrievement as to these counts, the plaintiff must demonstrate that he has some “specific, personal and legal interest” in the insurance policy which is the subject matter of these claims. The plaintiff does not dispute that, pursuant to the judgment of dissolution, Tyler is entitled to all proceeds from the insurance policy. Rather, the plaintiff maintains that his right to assert the claims under the insurance policy is not dependent on his right to receive the proceeds if his claims are successful, and, therefore, he has standing to assert the underlying claims even if any proceeds from those claims must be remitted to Tyler. We do not agree.

Our Supreme Court has stated that “[a]n insurance policy is to be interpreted by the same general rules that govern the construction of any written contract . . . [and] [i]n determining who may sue in actions upon insurance policies, the same principles govern generally as in other contracts . . . .” (Citation omitted; internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., supra, 294 Conn. 215. It is a well established principle of contract law that assignment of one’s rights under a contract results in “[succession by an assignee to exclusive ownership of all or part of the assignor’s rights respecting the subject matter of the assignment, and a corresponding extinguishment of those rights in the assignor . . . .” Bouchard v. People’s Bank, 219 Conn. 465, 473, 594 A.2d 1 (1991). “It is well settled that one who [is] neither a party to a contract or a contemplated beneficiary thereof cannot sue to enforce the promise of the contract . . . .” (Internal quotation marks omitted.) Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 579, 833 A.2d 908 (2003).

The plaintiff contends that the order in the marital dissolution proceeding transferred to Tyler only the right to receive any proceeds under the insurance policy and, therefore, that he retains the right to bring his claims under the policy. The plain language of the court’s order, however, awards “the wife all of the husband’s interests in said policy, if any exists.” (Emphasis added.) Thus, the order in the marital dissolution proceeding not only awarded Tyler all rights to receive proceeds under the insurance policy, but also assigned all of the plaintiffs interests in the insurance policy to Tyler and thereby extinguished all of the plaintiffs rights under the insurance policy. Because the plaintiff no longer has any interest under the insurance policy, he no longer has any “specific, personal and legal interest” in the subject matter of the first three counts in the contract action and has, therefore, failed to demonstrate that he has standing to bring those claims. The court properly concluded that the plaintiff lacked standing to bring counts one through three of the contract action, and its judgment granting Central Mutual’s motion to dismiss is affirmed as to those counts.

Turning to the fourth count in the plaintiffs complaint, we conclude that the plaintiff has standing to bring his claim for negligent infliction of emotional distress and reverse the judgment of the trial court granting Central Mutual’s motion to dismiss that count. Unlike the other counts in the plaintiffs contract claim, the plaintiffs alleged aggrievement under the fourth count is not related to his interest in the insurance policy, but, rather, relates to Central Mutual’s conduct toward the plaintiff when investigating the claim for coverage for the damage to the property as a result of the fire. Specifically, the plaintiff alleged in that count of his complaint that Central Mutual’s conduct in failing “to evaluate the fire loss objectively” and “refus[ing] coverage under the policy on the basis [that he] is alleged to have intentionally caused the fire without having conducted any independent investigation of the origin and cause of the fire” has caused the plaintiff emotional distress.

“To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following: (1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiffs distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiffs distress. . . . Thus, [t]he plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” (Internal quotation marks omitted.) Stancuna v. Schaf-fer, 122 Conn. App. 484, 490, 998 A.2d 1221 (2010). Therefore, the claim of negligent infliction of emotional distress is based on Central Mutual’s conduct toward the plaintiff and whether such conduct caused him emotional distress that was severe enough that it might cause him illness or bodily harm. The plaintiffs standing to bring his claim of emotional distress is not in fact or law contingent on his interests under the insurance policy. Rather, the plaintiff has established aggrievement and, thus, standing by alleging that Central Mutual’s conduct toward him relating to the manner in which it conducted its investigation of the insurance claim on the property negligently caused him direct harm, i.e., emotional distress. See, e.g., Connecticut Associated Builders & Contractors v. Hartford, 251 Conn. 169, 178, 740 A.2d 813 (1999) (“[t]o establish standing to raise an issue for adjudication, a complainant must make a colorable claim of direct injury”). The fact that all of the plaintiffs interests under the insurance policy were awarded to Tyler did not affect the plaintiffs standing to bring count four of the contract action alleging negligent infliction of emotional distress. To establish standing, the plaintiff need not prove the existence of any such interest. We conclude that the plaintiff has standing to bring a claim of negligent infliction of emotional distress and that the court improperly granted Central Mutual’s motion to dismiss this count.

The judgment granting Central Mutual’s motion to dismiss count four of the contract action, sounding in negligent infliction of emotional distress, is reversed and that case is remanded for further proceedings according to law. The judgments are affirmed in all other respects.

In this opinion the other judges concurred.

       Central Mutual and Tyler, the plaintiffs former wife, are defendants in the declaratory judgment action. Central Mutual is the sole defendant in the contract action.

       Although in his brief the plaintiff attempts to distinguish between his right to receive proceeds for a claim brought under the insurance contract and his right merely to bring a claim under the insurance contract, the complaint in the declaratory judgment action seeks expressly a determination of “[w]hether or not the plaintiff has a right to receive proceeds under the terms of the [insurance] policy . . . .”

       Central Mutual asserts that the plaintiff abandoned his claim relating to the contract action due to inadequate briefing. Although the plaintiff does not separate his argument as it applies to each action but, rather, discusses them jointly insofar as the issues overlap, we do not agree with Central Mutual’s assertion that the plaintiff has abandoned his claims regarding the contract issue. “[Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Intemal quotation marks omitted.) Mullen & Mahon, Inc. v. Mobilmed Support Services, LLC, 62 Conn. App. 1, 10, 773 A.2d 952 (2001). In the present case, the plaintiffs brief contains five pages of analysis and citation to relevant case law relating to his claim that the court improperly found that he lacked standing to bring both the contract claim and the declaratory judgment action. In light of the fact that the issue of standing presents a question of law, this level of briefing is adequate for review of his claim. See, e.g., Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 255 n.38, 694 A.2d 1319 (1997) (noting plaintiffs argument adequate when, although brief, it set forth facts and legal authority). ■ •'

       We note, however, that our conclusion regarding the plaintiffs standing to bring his claim of negligent infliction of emotional distress in no way reflects on the merits of the plaintiffs claim or the legal sufficiency of his allegations. “[A] motion to dismiss is not designed to test the legal sufficiency of a complaint in terms of whether it states a cause of action. That should be done, instead, by a motion to strike . . . .” (Citation omitted.) Pratt v. Old Saybrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993); see also Egri v. Foisie, 83 Conn. App. 243, 247, 848 A.2d 1266 (“[tjhere is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike” [emphasis in original]), cert. denied, 271 Conn. 931, 859 A.2d 930 (2004). When determining if the trial court properly granted a motion to dismiss on the ground of a lack of standing, we do not look to the merits of the plaintiffs claim but, rather, to whether the plaintiff is a proper party to request adjudication of the claim. See, e.g., Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 491-92, 400 A.2d 726 (1978) (“The fundamental aspect of standing ... [is that] it focuses on the party seeking to get his complaint before [the] court and not on the issues he wishes to have adjudicated. . . . When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant’s action has invaded.” [Citations omitted; internal quotation marks omitted.]).


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    KEVIN GREENE v. CITY OF WATERBURY ET AL.
    (AC 31469)
    Gruendel, Robinson and Pellegrino, Js.

      Argued November 15, 2010
    officially released February 22, 2011

      Francis J. Grady, with whom was Richard O. LaBrecque, for the appellant (plaintiff).

      Paula N. Anthony, assistant corporation counsel, for the appellees (defendants).
   Opinion

ROBINSON, J.

The plaintiff, Kevin Greene, a former firefighter for the defendant city of Waterbury (city), appeals from the judgment of the trial court denying his appeal from the decision of the defendant retirement board of the city (board), which denied his request to resubmit an application for disability retirement and pension benefits (disability pension application). On appeal, the plaintiff claims that the court improperly denied his appeal from the decision of the board because the board acted arbitrarily, illegally and in abuse of its discretion in denying his request to resubmit his disability pension application. We disagree and, accordingly, affirm the judgment of the trial court.

The record reveals the following relevant factual and procedural history. At all times relevant to this appeal, the plaintiff was subject to the terms and conditions of the collective bargaining agreement between the city and Local 1339 of the International Association of Fire Fighters, AFL-CIO (bargaining agreement). The bargaining agreement provided, in relevant part, that the provisions of the city’s pension ordinance (ordinance) would control the award of retirement and pension benefits.

The plaintiff was hired by the city as a firefighter in September, 1999. On June 1, 2006, the plaintiff submitted a disability pension application to the board, claiming that he had suffered a work-related shoulder injury on January 2, 2004, and work-related back injuries on May 28 and December 17, 2005. Pursuant to the ordinance, the city’s human resources department scheduled the plaintiff for two independent medical examinations on June 20 and July 11, 2006, for the purpose of determining the extent of his injuries. The plaintiff attended the examinations as requested.

On August 7, 2006, the plaintiff voluntarily resigned from his position as a firefighter with the city and withdrew his disability pension application. On the same day, the plaintiff also submitted a “participant contribution withdrawal form” to the city’s human resources department and asked to withdraw his contributions from the city’s pension and retirement fund. On September 12, 2006, counsel for the plaintiff submitted a letter to the board, requesting that it reinstate the plaintiffs disability pension application and that the plaintiffs request to withdraw his contributions from the city’s pension and retirement fund be withdrawn. On October 12, 2006, the board unanimously denied his request to resubmit his disability pension application and notified the plaintiff of its denial by letter dated October 13,2006.

The plaintiff appealed to the trial court from the decision of the board, claiming that the board had acted illegally, arbitrarily and in abuse of its discretion in denying his request to resubmit his disability pension application. After reviewing the requirements of the ordinance, the court concluded that the plaintiff did not meet his burden of proof to show that the board acted illegally, arbitrarily, or in abuse of its discretion because he did not meet the requirements set forth in the ordinance for awarding a disability pension when he submitted his request on September 12, 2006. Subsequently, the plaintiff appealed to this court.

We begin by setting forth the applicable standard of review. “The board was created by . . . the Waterbury city code, and . . . the Waterbuiy city code grants the board powers and duties similar to that of an administrative agency. Accordingly, we review the actions of the board under the . . . standardjs] that [govern] review of an administrative agency’s actions.” O’Connor v. Waterbury, 286 Conn. 732, 740-41, 945 A.2d 936 (2008).

“Judicial review of an [administrative] agency decision is limited. . . . [W]e must decide, in view of all of the evidence, whether the [administrative] agency, in issuing its order, acted unreasonably, arbitrarily or illegally, or abused its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts.” (Internal quotation marks omitted.) Alexander v. Retirement Board, 57 Conn. App. 751, 757-58, 750 A.2d 1139, cert. denied, 254 Conn. 902, 755 A.2d 217 (2000). “It is fundamental that a plaintiff has the burden of proving that the [municipal board], on the facts before [it], acted contrary to law and in abuse of [its] discretion .... The law is also well established that if the decision of the [municipal board] is reasonably supported by the evidence it must be sustained.” (Internal quotation marks omitted.) O’Connor v. Waterbury, supra, 286 Conn. 741-42.

“Where the administrative agency has made a factual determination, the scope of review ordinarily is expressed in such terms as substantial evidence or sufficient evidence. . . . Where, however, the administrative agency has made a legal determination, the scope of review ordinarily is plenary.” (Internal quotation marks omitted.) Alexander v. Retirement Board, supra, 57 Conn. App. 757-58.

The plaintiff claims that the court improperly denied his appeal from the decision of the board because the board acted arbitrarily, illegally and in abuse of its discretion in denying his request to resubmit his disability pension application. Specifically, the plaintiff claims that the board acted arbitrarily in denying his request because he had satisfied all of the ordinance’s requirements, as incorporated into the bargaining agreement, for awarding a disability pension. We disagree.

Resolution of the plaintiffs claim involves inteipretation of the bargaining agreement and the ordinance as incorporated into the bargaining agreement. “It is axiomatic that a collective bargaining agreement is a contract.” D’Agostino v. Housing Authority, 95 Conn. App. 834, 838, 898 A.2d 228, cert. denied, 280 Conn. 905, 907 A.2d 88 (2006); see also O’Connor v. Waterbury, supra, 286 Conn. 744-49 (interpreting collective bargaining agreement under contract law principles). Like any other contract, a collective bargaining agreement may incorporate by reference other documents, statutes or ordinances to be included within the terms of its provisions. See 20 S. Williston, Contracts (4th Ed. Lord 2001) § 55:24, pp. 99-100. “When a contract expressly incoxporates a statutory enactment by reference, that enactment becomes part of a contract for the indicated purposes just as though the words of that enactment were set out in full in the contract.” (Emphasis added.) 11 S. Williston, Contracts (4th Ed. Lord 1999) § 30:19, p. 202; see also Barton v. Bristol, 291 Conn. 84, 99, 967 A.2d 482 (2009) (noting that municipal ordinance incorporated by reference into collective bargaining agreement was contractual provision). Accordingly, our interpretation of the bargaining agreement, as well as the ordinance incorporated therein, is guided by principles of contract law. See Prymas v. New Britain, 122 Conn. App. 511, 517, 3 A.3d 86, cert. denied, 298 Conn. 915, 4 A.3d 833 (2010).

“The law governing the construction of contracts is well settled. When a party asserts a claim that challenges the . . . construction of a contract, we must first ascertain whether the relevant language in the agreement is ambiguous. ... A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. . . . Accordingly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . When the language of a contract is ambiguous, the determination of the parties’ intent is a question of fact .... If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . .” (Citation omitted; internal quotation marks omitted.) O’Connor v. Waterbury, supra, 286 Conn. 743-44.

Pursuant to the bargaining agreement, the terms and conditions of the ordinance govern the award of pensions. Section 35.13 of the ordinance governs the award of disability pensions and, in relevant part, provides: “In the event a [fjirefighter . . . [participant incurs a [w]ork-[r]elated [disability, he or she shall be entitled to receive a [p]ension equal to the greater of (i) the Participant’s [a]cerned [b]enefit at the time of such [w]ork-[r]elated disability, or (ii) 50 [percent] of the Participant’s [fjinal [a]verage [b]ase [p]ay.” The ordinance defines firefighter participants as “firefighters ... of the [c]ity coming within the provisions of the [Retirement [s]ystem.” A participant is defined as “any person in the service of the [c]ity who is eligible to participate in the [Retirement [s]ystem . . . and who is actually participating thereunder.”

We conclude that the language of the ordinance clearly and unambiguously provides that only a participant is eligible for the awarding of a disability pension. Furthermore, we conclude that to be a participant within the meaning of the ordinance, an individual must satisfy three requirements: (1) be in the service of the city; (2) be eligible to participate in the retirement system; and (3) be actually participating in the retirement system. If an individual does not satisfy any of the three requirements, he or she may not receive a disability pension pursuant to the ordinance.

Based on a review of the record, we conclude that the board did not act arbitrarily in denying the plaintiff s request to resubmit his disability pension application. It is undisputed that on August 7, 2006, the plaintiff voluntarily resigned from his position with the city and voluntarily submitted a “participant contribution withdrawal form,” asking to withdraw his contributions from the city’s pension and retirement fund. As a result of his voluntary actions to withdraw from the retirement system, the ordinance required the retirement system to repay to the plaintiff “an amount equal to [his] [contributions to the [Retirement system . . . .” Therefore, at the time the plaintiff submitted his request for reconsideration on September 12, 2006, he was neither in the service of the city nor “actually participating” in the retirement system. Consequently, the plaintiff was not a participant and, thus, was not eligible to be considered for a disability pension under the provision of the ordinance.

The plaintiff also argues that the board acted arbitrarily because the ordinance contains no provisions addressing the withdrawal of a disability pension application or prohibiting the board from reinstating a previously withdrawn disability pension application. Although this may be true, the plaintiffs argument ignores what the ordinance does require. To receive a disability pension, a firefighter must not only incur a work-related disability, he or she must also be a participant. Therefore, if a firefighter who submits an application for disability benefits is not a participant, he or she does not meet the requirements of the ordinance and is not eligible to receive a disability pension. Irrespective of whether the plaintiff submitted a new application or asked the board simply to reinstate his previous application, the plaintiff was not eligible to be considered for the award of a disability pension when he made his request on September 12, 2006, because he was no longer a participant.

The plaintiff finally argues that the board acted arbitrarily because “the [c]ity regularly retires fire . . . participants on a service pension, and then at a later date, after the employee has been separated from service, considers their applications for disability pensions.” We are not persuaded. The plaintiffs argument fails to take into consideration how the facts of the present case differ markedly from the actions he alleges that the city engages in regularly. The current situation does not involve an individual who retired or was retired from service. The plaintiff resigned from his position as a city firefighter and voluntarily withdrew from the retirement system. Even if we were to assume that the plaintiffs actions amounted to retirement, he would still not be eligible for an award of a disability pension under the ordinance because he voluntarily asked to withdraw his contributions from the city’s pension and retirement fund.

In summary, we conclude that the trial court was correct in determining that the plaintiff failed to establish that the board acted illegally, arbitrarily or in abuse of its discretion in denying his request to resubmit his disability pension application.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his brief, the plaintiff alleges three separate claims of error. After careful review, we conclude that all three claims primarily focus on the central issue of whether the board acted arbitrarily, illegally or in abuse of its discretion. To the extent that the plaintiff may have made any arguments directed at any other claims, we conclude that such claims are briefed inadequately and decline to consider them. See Merchant v. State Ethics Commission, 53 Conn. App. 808, 818, 733 A.2d 287 (“We 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.” [Internal quotation marks omitted.]).

       Section 1 of article XXXIII of the bargaining agreement provides in relevant part: “Employees shall be entitled to retirement and survivor benefits pursuant to the terms and conditions of the ordinance entitled Final Amended Ordinance Regarding the Pension and Retirement System, Part II: Pensions and Retirement Provisions, and passed by the Board of [Aider-men] on November 10, 2003.”

       The reports from the independent medical examinations revealed that the plaintiff was unable to perform full firefighter duties as a result of his injuries. The record is not clear as to whether the results of the independent medical examinations were available prior to August 7, 2006.

       The plaintiff does not provide any examples of specific situations in which the board has engaged in such actions.


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. JIMMY S.

    (AC 31600)
    DiPentima, C. J., and Gruendel and Harper, Js.
    Argued December 13, 2010
    officially released February 22, 2011

      Jimmy S., pro se, the appellant (defendant).

      James A. Kitten, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Sandra L. Tullius, former senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

PER CURIAM.

The pro se defendant, Jimmy S., appeals from the judgment of the trial court dismissing in part and denying in part his “motion and request for [a] reversal of plea agreement” and denying his “motion requesting court to consider additional argument and facts” in support thereof. The principal issue is whether the court properly concluded that it lacked subject matter jurisdiction to consider claims concerning the validity of his plea. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. In the wake of multiple physical injuries to the defendant’s infant son over the course of several months, the state, on February 2, 2009, filed a substitute information accusing the defendant of two counts of assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). Pursuant to a plea agreement, the defendant, on February 4, 2009, pleaded guilty to two counts of risk of injury to a child under the Alford doctrine. At that time, the court canvassed the defendant concerning his plea and, following the canvass, accepted the plea as “knowingly and intelligently entered with the assistance of competent counsel with full understanding of the nature and elements of the crimes charged and the possible penalties.”

A sentencing hearing followed on April 30, 2009. The state recommended a sentence of twenty years incarceration, execution suspended after ten years, with five years probation. Both the defendant and his counsel spoke as to why a lesser sentence was warranted. At the conclusion of the hearing, the court imposed a sentence of twenty years incarceration, execution suspended after eight and one-half years, with five years probation, which was less than that urged by the state.

On May 21, 2009, the defendant, acting pro se, filed what he termed a “motion and request for [a] reversal of plea agreement and advisement of judicial notice,” in which he sought to vacate his plea. The court dismissed for lack of subject matter jurisdiction the claims set forth therein that attacked the validity of the defendant’s plea. The court denied on its merits the defendant’s claim that the imposition of probation violated the plea agreement, interpreting this claim as a motion to correct an illegal sentence. The defendant subsequently filed a “motion requesting court to consider additional argument and facts in support of June 11, 2009 hearing requesting reversal of plea and judicial notice,” which the court denied. This appeal followed.

We first consider the issue of whether the court possessed subject matter jurisdiction to consider the defendant’s motion to vacate his plea. Our review thereof is plenary. State v. DeVivo, 106 Conn. App. 641, 644, 942 A.2d 1066 (2008). It is well established that “the jurisdiction of the sentencing court terminates once a defendant’s sentence has begun, and, therefore, that court may no longer take any action affecting a defendant’s sentence unless it expressly has been authorized to act.” Cobham v. Commissioner of Correction, 258 Conn. 30, 37, 779 A.2d 80 (2001). Likewise, Practice Book § 39-26 provides in relevant part that “[a] defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.”

Because the defendant first moved to vacate his plea weeks after his sentence began, the court properly concluded that it lacked jurisdiction to consider any claims regarding the validity of the plea. As our Supreme Court recently reiterated, “once a defendant’s sentence is executed, the trial court lacks jurisdiction to entertain any claims regarding the validity of that plea in the absence of a statute or rule of practice to the contrary.” State v. Das, 291 Conn. 356, 368, 968 A.2d 367 (2009). Thus, the court lacked jurisdiction to consider the defendant’s claims concerning the sufficiency of the factual basis for his plea and the alleged ineffective assistance of his counsel. See also State v. Leecan, 198 Conn. 517,541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).

The defendant’s remaining claims merit little discussion. He claims that the state at the plea hearing improperly informed the court of prior injuries suffered by the victim for which the defendant was not charged, the defendant’s criminal record and the results of his polygraph examination. The defendant did not object to those statements during the plea hearing or otherwise preserve such claims for appellate review. He further has not affirmatively requested review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. We thus do not consider those claims.

We also reject the defendant’s claim that the imposition of consecutive sentences was unlawful. General Statutes § 53a-37 authorizes a sentencing court to impose consecutive sentences on a criminal defendant. In addition, “courts have . . . discretion to impose ‘concurrent’ terms, or issue a stay or ‘consecutive’ terms, as an incident to their judicial function.” State v. Leak, 297 Conn. 524, 537-38, 998 A.2d 1182 (2010). On appeal, the defendant has provided no analysis or authority to the contrary. Accordingly, his claim fails.

The judgment is affirmed.

       See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Under that doctrine, “a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. ... A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Emphasis in original; internal quotation marks omitted.) State v. Faraday, 268 Conn. 174,204-205, 842 A.2d 567 (2004).

       Although the defendant represents that the court heard argument on his motion on June 11, 2009, the record before us is bereft of any evidence or transcript of that proceeding.


author: BISHOP, J.

text:
    ROBERT SCHIRMER ET AL. v. ANTONE SOUZA, SR., ET AL.
    (AC 31788)
    DiPentima, C. J., and Bishop and Dupont, Js.

      Argued November 29, 2010
    officially released February 22, 2011

      Stephanie B. Nickse, with whom, on the brief, were Jack D. Garamella and Thomas W. Beecher, for the appellants (defendants).

      Frank J. Scinto, for the appellees (plaintiffs).
   Opinion

BISHOP, J.

The defendants, Antone Souza, Sr., and Dorothy Souza, appeal from the judgment of the trial court in favor of the plaintiffs, Robert Schirmer and Sandra Schirmer, on their claim of unjust enrichment arising out of renovations to a house on property owned by the defendants. On appeal, the defendants claim that the court improperly (1) applied the doctrine of unjust enrichment to parties who had no contractual relationship, (2) found that the plaintiffs’ funds were spent to renovate the defendants’ real property, (3) found that the defendants realized a profit from the sale of the property, (4) found that, by profiting from the sale, they accepted the benefit of the renovations, and (5) found that the plaintiffs proved the amount of the benefit. We affirm the judgment of the trial court.

Following a trial to the court, the court issued a memorandum of decision that set forth the following relevant factual history. The defendants’ son, Antone Souza, Jr., was married at the time to the plaintiffs’ daughter, Lori Souza (couple). The couple purchased the subject property in 1994 for $200,000. The purchase was financed with an interest only purchase money note for $150,000, with a balloon payment due in 1999, and a $50,000 second mortgage loan from the defendants. When the couple was unable to make the balloon payment, the defendants bought the property from the couple for $160,000 on March 10, 1999. Although title transferred to the defendants, they agreed to permit the couple to remain in the house in exchange for making mortgage payments on the defendants’ loan, which the couple did only sporadically.

Early in 2001, the couple decided to add a second floor to the 1300 square foot ranch house on the property and asked the plaintiffs for help in financing the project. The plaintiffs were unaware at the time that record title had been transferred from their daughter's name to the defendants. Antone Souza, Jr., proposed a budget of $75,000 for the renovation, expecting to do most of the labor himself. Plans were drawn and proper permits and approvals were obtained. On the day that he began renovations in April, 2001, he unilaterally decided to tear down the entire house instead and to build a new house on the site. Ultimately, during 2001 and 2002, the shell of a 3600 square foot, two-story colonial was built, fully framed and with windows and doors installed, but the interior of the house and the attached two-story garage were not finished. From April, 2001, to December 9, 2002, the plaintiffs loaned the couple $86,169.50, of which $73,052.74 was used for the renovations to the house.

The house was listed for sale early in 2003, at which time the plaintiffs first became aware that the defendants held title to the property. In March, 2003, the plaintiffs sent the defendants a proposed agreement seeking $130,000 in compensation for the funds that were used to renovate the defendants’ property. The defendants refused to sign the agreement but told the plaintiffs to trust that they would take care of them when the property was sold. On November 25, 2003, the defendants sold the property, including the unfinished house, for $400,000. Contrary to the defendants’ promises, the plaintiffs were paid nothing by the defendants.

The procedural history of the case is as follows. Once the plaintiffs realized that no proceeds from the sale of the property were forthcoming to them, they applied for a prejudgment remedy and filed a complaint on May 29, 2008, alleging that the defendants were unjustly enriched in the amount of $104,450 to the detriment of the plaintiffs. The case was tried before the court on September 3 and 4, 2009. On September 28, 2009, in a memorandum of decision, the court rendered judgment in favor of the plaintiffs in the amount of $76,169.50. The defendants filed a motion to reargue on October 14, 2009, and the court heard reargument on November 16, 2009. On December 1, 2009, in a memorandum of decision, the court opened the original judgment and reduced the amount of the award, rendering a final judgment of $73,052.74 in favor of the plaintiffs. This appeal followed. Additional facts will be set forth as necessary.

We begin by setting forth the legal principles that govern a claim of unjust enrichment. “A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment. . . .

“This doctrine is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated. . . . The question is: Did [the party liable], to the detriment of someone else, obtain something of value to which [the party liable] was not entitled?

“Our review of the trial court’s conclusion that the defendant was unjustly enriched is deferential. The court’s determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings . . . that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 451-52, 970 A.2d 592 (2009).

I

The defendants first claim that the court improperly concluded that the plaintiffs were entitled to a judgment against the defendants premised on unjust enrichment where there was no contractual relationship between the parties. In other words, they claim, as a matter of law, that a contractual relationship is a prerequisite to recovery based on unjust enrichment. We do not agree.

“We note at the outset that our analysis of whether the court applied the correct legal standard is a question of law subject to plenary review.” (Internal quotation marks omitted.) Breen v. Judge, 124 Conn. App. 147, 158, 4 A.3d 326 (2010). In support of their claim, the defendants cite Gagne v. Vaccaro, 255 Conn. 390, 766 A.2d 416 (2001), in which oru: Supreme Court reiterated the common-law principle that when a contract is present, “lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment.” Id., 401. Contrary to the defendants’ assertion, however, Gagne does not address the availability of recovery under the theory of unjust enrichment when no contract is present, nor does it posit that a contractual relationship is a prerequisite to recovery for unjust enrichment. Indeed, it affirms earlier decisional law that “quantum meruit and unjust enrichment are common-law principles of restitution; both ar e contractual means of recovery without [a] valid contract . . . .” Id. Gagne, therefore, merely precludes recovery for unjust enrichment in circumstances in which a contractual remedy is already available. Its holding is of no avail to the defendants.

We note, additionally, that the doctrine of unjust enrichment is grounded in the theory of restitution, not in contract theory. As this court stated in Burns v. Koellmer, 11 Conn. App. 375, 527 A.2d 1210 (1987), “[b]oth unjust enrichment and quantum meruit are doctrines allowing recovery on the theory of restitution, that is, the restoration to a party of something of which he was deprived because of the unjust enrichment of another at his expense. See G. Palmer, 1 Restitution (1978) § 1.1. . . . Broadly speaking, the availability of restitution is dependent upon unjust enrichment, that is, upon a perceived injustice because one party has benefited at the expense of another. In a narrower sense, unjust enrichment has been the form of action commonly pursued in this jurisdiction when the benefit that the enriched party receives is either money or property.” (Citations omitted; internal quotation marks omitted.) Burns v. Koellmer, supra, 383-84. The other form of action for restitution is quantum meruit, “which has been utilized when the benefit received was the work, labor, or services of the party seeking restitution.” Id. Our Supreme Court has also noted that a “claim for unjust enrichment is sometimes denominated [an] implied in law claim or quasi-contract claim . . . .” (Citation omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 574, 898 A.2d 178 (2006). Citing Bums, it has summarized that unjust enrichment, quantum meruit and quasi-contract are all “based upon common law principles of restitution, [and] are all noncontractual actions by which a party may recover despite the absence of a valid contract . . . .” (Citations omitted.) Sidney v. DeVries, 215 Conn. 350,351-52 n.1, 575 A.2d 228 (1990).

Indeed, the Restatement of Restitution (1937) recognizes various situations in which unjust enrichment may be present in the absence of a contractual relationship, including, inter alia, mistaken belief as to the existence of a noncontractual duty to pay (§ 19), mistake as to payee (§ 22), improvements on land or chattels based on mistake of fact (§ 42), gratuitous transactions based on mistake of law (§ 49), and performance of another’s common-law duty to supply necessaries to a third person (§ 113). Likewise, our decisional law recognizes applications of the doctrine of unjust enrichment in the absence of a contract. See, e.g., Yale Diagnostic Radiology v. Estate of Fountain, 267 Conn. 351, 360, 838 A.2d 179 (2004) (because of “the law’s disfavor of unjust enrichment,” plaintiff supplying emergency medical necessaries to minor entitled to compensation primarily from parents and secondarily from minor’s estate); Misisco v. La Malta, 150 Conn. 680, 681-84, 192 A.2d 891 (1963) (landowner unjustly enriched when he induced potential buyer to make substantial alterations and improvements to property); Gilpatric v. Hartford, 98 Conn. 471, 480-81, 120 A. 317 (1923) (money paid by mistake to wrong payee recoverable). Although the defendants cite three cases in which our trial courts did, in fact, reject claims of unjust enrichment on the ground that there was no contractual relationship between the parties, we are guided by ample appellate decisional precedent and legal authority that a contractual relationship is not a prerequisite to recovery based on unjust enrichment. Accordingly, the claim fails.

II

We turn next to the defendants’ claim that the court improperly found that the plaintiffs’ funds were spent on renovations to the defendants’ real property. We are not persuaded.

As stated previously, the factual findings of the trial court must stand unless they are clearly erroneous or involve an abuse of discretion. New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 452. In their brief, the defendants argue that the court incorrectly ignored inconsistencies between checks written from the plaintiffs’ checking account to their daughter, Lori Souza, itemized renovation expenses, checks written from Lori Souza’s checking account and her checking account statements in the period from April 13 to June 20,2001. They also contend that the court incorrectly weighed testimony concerning the expenditures and neglected to consider that the plaintiffs’ funds were commingled in Lori Souza’s checking account with the couple’s earnings.

We note that although the plaintiffs alleged that the total amount loaned to the couple for the renovations was $105,750.08 and introduced into evidence copies of checks from their account written in 2001 and 2002 totaling $86,169.50, the court found that the lesser amount of $73,052.74 of the plaintiffs’ funds was spent on the renovations. In making this finding, the court considered all receipts, written checks and itemized expenses in evidence and rejected any that were unrelated to the renovations. It also expressly took into account the scope of the renovations, the fact that Antone Souza, Jr., routinely failed to keep receipts and the varying testimony as to the costs of labor and materials in installing a fireplace and chimney. Then, following reargument on this issue, the court recognized certain duplications among the itemized expenses and reduced its calculation accordingly. On the basis of our review of the record and in light of the court’s detailed reasoning, we conclude that its finding as to the sum of the plaintiffs’ funds spent on renovations was not clearly erroneous.

Ill

We turn next to the defendants’ claim that the court improperly found that the defendants realized a profit from the sale of the property. They assert that they acquired the property to serve as security for their loans to the couple and, consequently, had priority as secured creditors to reimburse themselves before covering the plaintiffs’ unsecured losses. They further claim that, because the amounts owed to them by the couple exceeded the proceeds of the sale, no profit was realized from which to compensate the defendants. We are not persuaded.

As noted, the factual findings of the trial court must stand unless they are clearly erroneous or involve an abuse of discretion. See New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 452. The court accounted for the defendants’ underlying debts in the property when calculating their profit on the sale. Subtracting their two mortgages, closing costs and liens on the property from the sale price of $400,000, it found that the defendants realized a profit of $177,000. It found, however, that the other funds that they had loaned to the couple were unrelated to the property and, consequently, that the reimbursement of such funds was a personal benefit, not a legal entitlement. For example, observing that the defendants applied the sale proceeds to settle credit card debt, the court found that “[e]ven assuming arguendo that the debt was incurred by another party, it is clear that it was to Dorothy Souza’s benefit to pay off significant credit card debt that was in her name . . . .’’It concluded that the defendants had realized a significant profit from the sale of the renovated property, adding that “[i]t is irrelevant if the defendants subsequently gave the money to charity, put it in the bank or gave it to their children.”

Our review of the record supports the court’s factual conclusions in this regard. No secured loan agreement between the defendants and the couple was in evidence. Rather, the record reveals that the defendants funded the couple by personal checks and a credit card in the name of Dorothy Souza. There is no indication, apart from their bare assertion, that these loans were secured by the property. For the foregoing reasons, we conclude that the court’s finding that the defendants realized a profit from the sale was not clearly erroneous.

IV

We turn next to the defendants’ claim that the court improperly found that, by realizing a profit from the sale of the property, the defendants accepted the benefit of the renovations. They contend that they were not unjustly enriched because they did not want the renovations, refused to pay for them and neither knew of nor accepted the plaintiffs’ contributions.

A trial court’s determinations of whether the defendants were benefited and whether their failure to pay was unjust are factual findings that must stand unless they are clearly erroneous or involve an abuse of discretion. New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 452. As a general rule, for the benefit to be unjust, the defendant must have solicited it. “This doctrine [of unjust enrichment] is inapplicable where the payment has been made ‘officiously,’ i.e., where the circumstances do not justify the interference with another’s affairs resulting from conferring a benefit upon him.” Wesson, Inc. v. Hychko, 205 Conn. 51, 57, 529 A.2d 714 (1987). “[W]here a person has officiously conferred a benefit upon another, the other is enriched but is not considered to be unjustly enriched.” Restatement, Restitution, supra, § 2, comment (a).

Notwithstanding the general rule, “[i]f the plaintiff confers an unsolicited benefit upon the defendant who is not initially required to make restitution, it is possible that the plaintiff could still obtain restitution if the defendant meaningfully ‘accepts’ the benefit.” 1 D. Dobbs, Law of Remedies (2d Ed. 1993) § 4.9 (6), p. 704. For example, when an unsolicited noncash benefit is subsequently realized as cash, it becomes analogous to a mistaken cash payment and amenable to restitution because the defendant “is not being forced to buy a benefit he may not want but on the contrary is asked to return it.” Id., § 4.9 (3), p. 686 and § 4.9 (6), pp. 704-705; see also, e.g., Gilpatric v. Hartford, supra, 98 Conn. 480-81 (money paid by mistake to wrong payee recoverable).

In the present case, although the defendants did not choose to have their property renovated, they realized the benefit of these improvements when the property was sold. The court determined that the defendants accepted this benefit and that justice requires them to return it. On the basis of our review of the record and the court’s factual findings, we conclude that the court did not abuse its discretion in so determining.

V

We turn finally to the claim that the court improperly found that the plaintiffs proved the amount of the benefit of the renovations to the defendants.

“[T]he measure of damages in an unjust enrichment case ordinarily is not the loss to the plaintiff but the benefit to the defendant.” Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 285, 649 A.2d 518 (1994). As noted, it is the plaintiffs’ burden to prove the elements of a claim of unjust enrichment, including that the defendants were benefited. See New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 451-52. Whether the defendants were benefited is a factual determination that we review under the clearly erroneous standard. Id.

The court found that the defendants realized a profit from the sale of the newly renovated property of $177,000 but awarded recovery of only $73,052.74, which equals the plaintiffs’ documented expenditures on the renovations. The defendants claim that neither amount is a proper measure of restitution. They dispute the latter amount on the ground that the benefit to the defendants, not the detriment to the plaintiffs, is the proper measure of restitution. See Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., supra, 231 Conn. 285. They dispute the former amount on the ground that, although the value of the property demonstrably increased between the 1999 purchase and the 2003 sale, the plaintiffs failed to prove how much of the increase was due to the renovations as opposed to the appreciation of the land. Consequently, they claim that the court lacked a rational basis for measuring the benefit of the renovations to the defendants.

The defendants suggest that to reliably measure the benefit, the plaintiffs were required to introduce evidence of a property valuation from early 2001, prior to the destruction of the original house and the construction of the new two-story shell. Given, however, that such exact evidence is often unavailable in these cases, our decisional law requires only a “reasonable approximation” of the benefit. Id. “Where damages are appropriate but difficult to prove the law eschews the necessity of mathematical exactitude. Such exactitude in the proof of damages is often impossible, and . . . all that can be required is that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate.” (Internal quotation marks omitted.) Id.

For example, in Hartford Whalers Hockey Club, in which the defendant tire manufacturers had induced the plaintiff hockey club to provide advertising services, the trial court relied on the negotiated price of the plaintiffs services to measure the benefit of those services to the defendants. Id., 284-86. On appeal, the defendants argued that this was an improper basis of measurement and that the plaintiff was required to prove a specific link between the advertising provided by the plaintiff and additional revenues or profits of the defendants generated by the advertising. Id. Our Supreme Court rejected this argument, reasoning that “[t]he theory of damages posed by the defendants’ argument would be extraordinarily difficult, if not impossible, to put into practice, because the defendants’ revenues would necessarily depend on many factors other than a particular local advertising program.” Id., 286. Accordingly, it affirmed the trial court's reliance on the price of the plaintiffs services in deriving a fair and reasonable estimate of the benefit of those services to the defendants. Id., 286-87; cf. Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 519-22, 735 A.2d 813 (1999) (no rational basis for deriving how much employer benefited from refusal to pay employee bonus when incentive pay had been discussed but no amount ever specified).

In the present case, there was ample evidence to support the trial court’s measure of the benefit. There is no question that the property increased in value. The record reveals that the defendants purchased the property in 1999 for $160,000 and sold it in 2003 for $400,000. Although some of this increase logically must be ascribed to an appreciation in the value of the land, it was not clearly erroneous for the court to find that a substantial portion of that increase could be ascribed to the renovations of the structures, especially in light of evidence that the plaintiffs’ funds were invested primarily not in labor but in materials that became part of the property. Additionally, although the plaintiffs alleged a detriment of $105,750.08, the court awarded restitution of only $73,052.74, which equals the expenditures that the plaintiffs could document with certainty. In other words, because the benefit to the defendants was demonstrable but inexact, the court considered the plaintiffs’ expenditures expressly for the purpose of limiting restitution to the amount proved by the plaintiffs, making a fair and reasonable estimate “with such certainty as the nature of the particular case may permit . . . .” (Internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., supra, 231 Conn. 285. Accordingly, the defendants’ claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court’s recognition of this “precondition” in Gagne was expressly-based on 12 S. Williston, Contracts (3d Ed. 1970) § 1479, p. 272, which states that “wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract, restitution of the value of what has been given must be allowed.” (Emphasis added.) See Gagne v. Vaccaro, supra, 255 Conn. 401; 26 S. Williston, Contracts (4th Ed. Lord 2003) § 68:4, p. 57. Logically, the articulation of the doctrine of unjust enrichment in a treatise on contracts must be focused on how the doctrine applies to benefits “rendered under a contract . . . .” 12 S. Williston, supra, § 1479, p. 272. This does not imply that the doctrine has no application in the absence of a contract. In fact, in Gagne itself, although both parlies had contracted with the same third party, they were not in a direct contractual relationship with each other. Nonetheless, the court held that the plaintiff could recover for unjust enrichment. See Gagne v. Vaccaro, supra, 391-94.

       This statement was cited, in turn, by the court in Gagne v. Vaccaro, supra, 255 Conn. 401.

       See Shoreline Care Ltd. Partnership v. Jansen & Rogan Consulting Engineers, P.C., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-94-0155982-S (November 15, 2002) (“[w]hen there is no allegation of a contractual relationship between the plaintiff and the defendant, the claim for unjust enrichment must fail”); see also Febles v. Chyung, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-01-0184417-S (August 29, 2002); Stamboulis v. Sullivan, Superior Court, judicial district of Hartford, Docket No. CV-01-0806114-S (July 30, 2001).

       Also in support of this claim, the defendants cite Chatfield v. Fish, 126 Conn. 712, 10 A.2d 754 (1940), which bears certain factual similarities to the present case. The plaintiff in Chatfield provided services and furnished materials at the request of the occupant of certain property. Id., 712-14. When the occupant failed to compensate the plaintiff fully, he sought compensation from the landowner, who had known that services were being rendered and material furnished to benefit the property. Id. In a per curiam opinion, our Supreme Court rejected the plaintiffs claim of unjust enrichment, stating that there was no equitable ground on which he could recover because he trusted the credit of the occupant “without thought of liability on the defendant’s part.” Id., 713. Despite the factual similarities, however, Chat-field is inapposite to our analysis of this claim because it did not turn on the presence or absence of a contract but, rather, on the factual determination of the equities under the circumstances.

       As a point of clarity, the measure of restitution is often referred to as a measure of “damages,” although the appropriate term in an analysis of unjust enrichment is “restitution.” See New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 460 (“[djamages are intended to provide a victim with monetary compensation for an injury to his person, property or reputation . . . whereas restitution aims to deprive a defendant of unjustly obtained benefits” [citation omitted; internal quotation marks omitted]).

       In its written decision on the defendants’ motion to reargue, the court declined to analyze the defendants’ argument regarding the appreciation of the land on the grounds that they had not raised it at trial and had provided no new evidence to compel reconsideration. On appeal, the defendants claim that this ruling improperly shifted the burden of proving the amount of the benefit from the plaintiffs to the defendants. Because we conclude that, even without this information, the plaintiffs provided the court with a sufficient evidentiary foundation to make a fair and reasonable measure of restitution, we need not reach this claim.

       The defendants have not disputed the court’s reliance on the purchase price as an indication of the property’s value in 1999, except for pointing out in their motion to reargue, by reference to the plaintiffs’ exhibit eight, that they also paid $11,844.11 in closing costs at that time.


text:
    ARTHUR COLE v. COMMISSIONER OF CORRECTION
    (AC 31517)
    Gruendel, Beach and McDonald, Js.
    Argued October 26, 2010
    officially released March 1, 2011

      Deren Manasevit, special public defender, for the appellant (petitioner).

      Timothy F. Costello, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael R. Denison, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Arthur Cole, appeals from the judgment of the habeas court denying his April 20,2009 petition for a writ of habeas corpus based upon ineffective assistance of trial counsel. The habeas court also denied the petitioner’s petition for certification to appeal. On appeal, the petitioner claims that his trial counsel rendered ineffective assistance with regard to a plea offer when counsel failed to advise the petitioner of the likely sentences after trial and failed to advise the petitioner of the maximum exposure on the charges of which he was ultimately convicted. The petitioner also claims that the habeas court abused its discretion in denying certification to appeal.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. The underlying conviction arises out of two bank robberies that occurred on April 29, 1996, in New Haven. The petitioner was charged with two counts each of robbery in the first degree with a firearm as an accessory, conspiracy to commit robbery in the first degree and larceny in the second degree as an accessory, and with one count of coercion. After a trial by jury before Fra-casse, J., in New Haven, the petitioner was acquitted on the charge of coercion and found guilty on all remaining counts. The petitioner was sentenced to a total effective term of imprisonment of forty years. The petitioner appealed from his conviction, and this court affirmed the judgment of the trial court. State v. Cole, 57 Conn. App. 559, 749 A.2d 662 (2000).

In this case, the petitioner filed a two count, final amended petition for a writ of habeas corpus, challenging the effectiveness of both his trial counsel and prior habeas counsel. In count one, the petitioner alleged that trial counsel and prior habeas counsel failed to investigate the crime scene evidence in a competent and adequate manner and failed to call witnesses to contradict testimony at his trial. The petitioner alleged in count two that trial counsel failed to advise the petitioner adequately of the risks of going to trial and the possible sentence he would receive if convicted.

Following a trial, the habeas court, Nazzaro, J., denied the petition. The habeas court rejected count one on the ground that there was no evidence before the court that either attorney failed to call any witness whose testimony would in some way have changed the outcome of the petitioner’s trial or benefited the petitioner in any way. The habeas court also rejected count two on the ground that the petitioner had neither established that trial counsel’s performance was deficient nor that any deficient performance prejudiced the petitioner. Later, the habeas court denied the petitioner’s petition for certification to appeal, and this appeal followed. On appeal, the petitioner challenges the habeas court’s ruling as to count two only.

The habeas court heard the testimony of trial counsel and the petitioner and made the following findings of fact pertaining to trial counsel’s performance with respect to a plea offer. At the habeas trial, the petitioner claimed that trial counsel rendered ineffective assistance in the petitioner’s criminal proceedings by failing to advise him adequately of the risks of going to trial and of the potential sentence he faced if convicted. The petitioner admitted that, prior to trial, trial counsel communicated a plea offer of eighteen years to serve. The petitioner also testified that he rejected the offer and went to trial because he believed, based on his conversation with trial counsel, that he would get no more than thirty years after trial. He further testified that if he had known that he would be sentenced to serve forty to fifty years, he would have taken the eighteen year offer. The petitioner’s trial counsel testified to the contrary that the petitioner rejected the eighteen year offer and that the petitioner clearly expressed that he would not accept any offers that included incarceration and said, “I’m not taking any time at all. I want my trial.” Trial counsel further testified that he communicated to the petitioner the eighteen year offer as part of a “global encompassing plea bargain” in order to dispose of the two bank robbery charges and of other pending charges. Trial counsel also testified that he informed the petitioner that, if he went to trial, he faced maximum sentence exposure of eighty years on all of the pending charges, both the bank robberies and his other crimes.

After listening to the petitioner’s and trial counsel’s testimony, the habeas court credited trial counsel’s testimony that the petitioner refused to accept any plea offer that included incarceration. The habeas court also rejected the petitioner’s testimony that he would have accepted a pretrial offer involving incarceration. Because the habeas court found that the petitioner would have rejected any offer involving incarceration, it further found that the petitioner had failed to establish any prejudice resulting from any alleged failure by trial counsel to advise the petitioner of his potential maximum exposure. Furthermore, in denying the habeas petition, the habeas court found that trial counsel communicated to the petitioner the plea offer of eighteen years and the potential maximum prison exposure on all of his pending files, and that the petitioner made it clear that he would have not accepted any offer involving any incarceration. The habeas court thus proceeded to reject on credibility grounds all of the petitioner’s factual claims of deficient performance and prejudice.

The habeas court found that the petitioner’s claims of deficient performance failed due to the habeas court’s credibility determinations. “The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given their testimony.” (Internal quotation marks omitted.) Joseph v. Commissioner of Correction, 117 Conn. App. 431, 433, 979 A.2d 568, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). “Questions of whether to believe or to disbelieve a competent witness are beyond our review.” (Internal quotation marks omitted.) Kiniry v. Kiniry, 299 Conn. 308,329,9 A.3d 708 (2010). In view of the habeas court’s findings as to the credibility of the petitioner and trial counsel, we dismiss this appeal.

The appeal is dismissed.

       The petitioner had filed an earlier petition for a writ of habeas corpus on September 14, 2001, alleging actual innocence and that his trial counsel had rendered ineffective assistance. Following a trial before Hon. William L. Hadden, Jr., judge trial referee, the habeas court dismissed that petition. In dismissing the petition, the court noted that the petitioner had failed to call any of the potential witnesses originally identified in the habeas petition and had failed to produce any other evidence, and, therefore, that the petitioner had not proved that no reasonable fact finder would find him guilty of the charges against him. That decision was appealed to this court and affirmed. Cole v. Commissioner of Correction, Superior Court, judicial district of New Haven, Docket No. CV-98-0411658-S (January 24, 2003), aff'd, 82 Conn. App. 901, 846 A.2d 961 (2004). As to the present petition, we need not address the claim of res judicata by the respondent, the commissioner of correction, as to effective assistance of counsel because the habeas court, within its discretion, properly decided to hear the petition on the merits. See James L. v. Commissioner of Correction, 245 Conn. 132, 142-44, 712 A.2d 947 (1998).


author: BEACH, J.

text:
    LIRI BELICA v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT
    (AC 32020)
    Beach, Alvord and Mihalakos, Js.

      Argued November 18, 2010
    officially released March 1, 2011

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Richard Blumenthal, former attorney general, and Philip M. Schulz, assistant attorney general, for the appellant (defendant).

      Liri Bélica, pro se, the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant administrator of the Unemployment Compensation Act appeals from the judgment of the Superior Court sustaining the appeal by the plaintiff, Liri Bélica, from the determination of the employment security board of review (board) denying the plaintiff unemployment compensation benefits. On appeal, the defendant claims that the court erred in holding that a motion to reopen the board’s decision should have been treated as a motion to correct the findings of the board pursuant to Practice Book § 22-4. We agree and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On April 7, 2008, the plaintiff sustained an injury during the course of his employment and began collecting workers’ compensation benefits during an ensuing leave of absence. While the plaintiff was on the leave of absence, his employer obligated him to follow a treatment plan, which required him to attend two physical therapy sessions per week in addition to several independent medical examinations (examinations). The workers’ compensation carrier of his employer mailed the plaintiff three separate certified notices to attend examinations on June 17, July 15 and August 27, 2008. The plaintiff, however, failed to attend any of the three scheduled examinations. He claimed that he did not receive any mail notifications and that he did not consider the examinations to be a part of the treatment plan. The plaintiff also alleged that he spoke to Robin Barrows, a representative of the workers’ compensation carrier of his employer, on multiple occasions and could not recall if she told him to attend any of his scheduled examinations.

On October 8,2008, the day after his leave of absence had expired, the plaintiffs employment was terminated as a result of his failure to attend the scheduled examinations. The plaintiff thereafter filed a claim for unemployment compensation benefits. On November 24, 2008, the defendant denied the plaintiffs claim. It concluded that his failure to attend the scheduled examinations constituted wilful misconduct. The plaintiff appealed from the decision of the defendant to the appeals referee. Hearings were held on December 17, 2008, and January 7, 2009. The appeals referee reversed the decision of the defendant, concluding that the plaintiff was entitled to receive benefits. Specifically, the referee found that the employer failed to establish that the plaintiff received the mail notifications of the scheduled examinations or that the examinations were part of the plaintiffs treatment plan.

The defendant appealed from that decision to the board on January 27,2009. On March 27,2009, the board issued a decision sustaining the defendant’s appeal. In its decision, the board adopted the referee’s findings of fact and made several additional factual findings. First, the board determined that the examinations were a part of the plaintiffs treatment plan and that the plaintiff should have known this because he previously collected workers’ compensation benefits and was familiar with the requirement that he submit to the examinations. Second, the board found that during a telephone conversation with Barrows, the plaintiff was informed that he was required to attend an appointment for an examination. Finally, the board found that in addition to the certified mail notifications sent to the plaintiff by the workers’ compensation carrier of the employer, a third party provider also mailed the plaintiff notifications of the three scheduled examinations. On the basis of these factual findings, the board determined that the plaintiffs failure to attend the examinations was deliberate and constituted wilful misconduct; thus, he was not entitled to receive benefits. On April 27, 2009, the plaintiff filed a motion to reopen the board’s decision, which the board denied on June 19, 2009. The plaintiff did not file a motion to correct the findings of the board.

The plaintiff appealed from the board’s decision to the Superior Court on August 5, 2009. The court conducted a hearing on December 29, 2009, at which it heard arguments from the plaintiff and the defendant. In its February 9, 2010 memorandum of decision, the court acknowledged the defendant’s argument that in the absence of the filing of a motion to correct pursuant to Practice Book § 22-4, the court was obligated to accept the board’s factual findings. The court disagreed, however, and concluded that the plaintiffs motion to reopen the judgment of the board was a valid substitute for a motion to correct. The court reasoned that “[following the mailing of the board’s decision, the [plaintiff] filed a timely motion to reopen the decision. ... To conclude [that] the [plaintiff] did not file a motion for correction of the findings as the [defendant] urges this court to so find given the inclusion in the certified record of the [plaintiffs] motion to reopen ... is to deny the existence of that document and to exhalt form over substance.” (Citation omitted; internal quotation marks omitted.) The court then determined that, on the basis of the record, the board abused its discretion in determining that the plaintiff received notice of the scheduled examinations. The court thus sustained the plaintiffs appeal and remanded the matter to the board with instruction to “remand the case to a referee for a hearing consistent with the record certified to [the] court by the board.” This appeal followed.

On appeal, the defendant claims that the court erred in concluding that the plaintiffs filing of a motion to reopen the decision of the board was a valid substitute for a motion to correct findings pursuant to Practice Book § 22-4. The defendant argues that Practice Book § 22-4 obligated the court to accept the findings of the board. We agree.

We begin by setting forth our standard of review. “[R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. ... Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . [A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts.” (Citation omitted; internal quotation marks omitted.) JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 417-18, 828 A.2d 609 (2003).

This court’s decision in Calnan v. Administrator, Unemployment Compensation Act, 43 Conn. App. 779, 686 A.2d 134 (1996), controls the issue before us. In Calnan, we stated that “appeals from the board to the Superior Court are specifically exempted from governance by General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act. All appeals from the board to the court are controlled by General Statutes § 31-249b. Section 31-249b specifically provides that any finding of the board shall be subject to correction only to the extent provided by section 519 [now § 22-9] of the Connecticut Practice Book. . . . Practice Book § 519 (a) [now § 22-9 (a)] specifies that the trial court does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether . . . there was any evidence to support in law the conclusions reached. [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses. . . . Practice Book § 515A [now § 22-4] provides the mechanism for the correction of the board’s findings. If the appellant desires that the findings be corrected, the appellant must, within two weeks of the filing of the record in the Superior Court, file with the board a motion for correction of the findings.” (Internal quotation marks omitted.) Shah v. Administrator, Unemployment Compensation Act, 114 Conn. App. 170, 175, 968 A.2d 971 (2009), quoting Calnan v. Administrator, Unemployment Compensation Act, supra, 783-84.

Our Supreme Court has adopted this rule, stating that a plaintiffs “failure to file a timely motion for correction of the board’s findings in accordance with [Practice Book] § 22-4 prevents further review of those facts found by the board.” JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 422. This court has relied on Calnan multiple times in concluding that a plaintiffs failure to file a timely motion to correct the board’s findings pursuant to Practice Book § 22-4 was dispositive of the appeal. See Shah v. Administrator, Unemployment Compensation Act, supra, 114 Conn. App. 175-77; Reeder v. Administrator, Unemployment Compensation Act, 88 Conn. App. 556, 869 A.2d 1288, cert. denied, 275 Conn. 918, 883 A.2d 1245 (2005); see also Chavez v. Administrator, Unemployment Compensation Act, 44 Conn. App. 105, 686 A.2d 1014 (1995) (motion to correct required under Calnan to challenge board’s findings on appeal).

In the present case, the plaintiffs appeal to the Superior Court challenged only the board’s factual determinations. In his appeal to the Superior Court, the plaintiff claimed that there was no evidence in the record to support the board’s finding that Barrow informed him over the telephone that he was required to attend an examination, that a letter introduced into evidence was unreliable and that the employer’s reason for discharging him was pretextual. Because those allegations involve findings of the board, the court lacked authority to consider the plaintiffs challenge to those findings in the absence of a timely motion to correct pursuant to Practice Book § 22-4. Accordingly, because the plaintiff failed to file a timely motion to correct, the court did not have the authority to consider the plaintiffs challenge of the board’s findings.

This court recently has stated that it has “always been solicitous of the rights of pro se litigants and, like the trial court, will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party. . . . Although we will not entirely disregard our rules of practice, we do give great latitude to pro se litigants in order that justice may both be done and be seen to be done. . . . For justice to be done, however, any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can we disregard completely our rules of practice.” (Emphasis in original; internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 107 Conn. App. 507, 512-13, 946 A.2d 252, cert. denied, 289 Conn. 902, 957 A.2d 870 (2008). Although the court attempted to afford the plaintiff some leeway as a pro se litigant, the fact remains that he failed to file a motion to correct pursuant to Practice Book § 22-4. Accordingly, the court did not appropriately consider the plaintiffs challenge of the board’s findings.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       The defendant also claims that the trial court erred in holding that the board lacked jurisdiction to hear the employer’s late appeal and that the defendant had a duty to provide to the court a transcript of the hearings in the absence of the filing of a motion to correct. Because we reverse the judgment of the court on other grounds, we do not address these claims.

       The purpose of the examinations was to evaluate the plaintiffs healing progress in an effort to return him to regular or light duty work as early as medically possible.

       The employer mailed the plaintiff a letter on April 17, 2008, reminding the plaintiff to attend all of his scheduled medical appointments to assure that his “benefits are not put in jeopardy.”

       In its decision, the board found that “[the plaintiff’s] leave time had expired and the employer had not received any medical documentation indicating that he was able to return to work and perform the essential functions of his position. If [the plaintiff] had complied with the requirement of the workers’ compensation carrier that he attend the scheduled examinations, the employer would have assessed whether it could accommodate [the plaintiff] with any restrictions, or it would have extended [his] leave.”

       Appeals in the context of the Unemployment Compensation Act, General Statutes § 31-222 et seq., are unique in that the board is not bound by the factual findings of an appeals referee. General Statutes § 31-249 provides in relevant part: “In any case in which the board modifies the referee’s findings of fact or conclusions of law, the board’s decision shall include its findings of fact and conclusions of law.” The board, therefore, is statutorily authorized to be the ultimate finder of fact.

       The employer did not participate in the appeal to the trial court.

       Practice Book § 22-4 provides in relevant part: “If the appellant desires to have the finding of the board corrected he or she must, within two weeks after the record has been filed in superior court . . . file with the board a motion for the correction of the finding and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for . . . .”

       As a preliminary matter, the defendant argues that the court’s ruling is a final judgment from which he is entitled to appeal. Our Supreme Court has stated: “Under our existing case law, we have distinguished . . . between two kinds of administrative remands. A trial court may conclude that an administrative ruling was in error and order further administrative proceedings on that very issue. In such circumstances, we have held the judicial order to be a final judgment, in order to avoid the possibility that further administrative proceedings would simply reinstate the administrative ruling, and thus would require a wasteful second administrative appeal to the Superior Court on that very issue. ... A trial court may alternatively conclude that an administrative ruling is in some fashion incomplete and therefore not ripe for final judicial abdication.” (Citations omitted.) Schieffelin & Co. v. Dept, of Liquor Control, 202 Conn. 405,410,521 A.2d 566 (1987).
      The present case falls within the classification of administrative remands in which an administrative ruling was held to be in error and further administrative proceedings are necessary on that very issue. Accordingly, we conclude that the decision of the court is a final judgment for the purpose of this appeal.

       The insistence on the filing of a motion to correct is not a mere matter of vocabulary. A motion to correct requires the filing of, among other things, “such portions of the evidence as [the appellant] deems relevant and material to the corrections asked for, certified by the stenographer who took it. . . .” Practice Book § 22-4. A motion to correct, therefore, with the appropriate attachments, triggers the process of presenting factual issues in an orderly manner.