author: PELLEGRINO, J.

text:
    JACEK I. SMIGELSKI v. STANLEY KOSIOREK, EXECUTOR (ESTATE OF STANISLAW KOSIOREK), ET AL.
    (AC 34250)
    DiPentima, C. J., and Alvord and Pellegrino, Js.

      Argued May 16
    officially released October 23, 2012

      Jacek I. Smigelski, pro se, the appellant (plaintiff).

      William J. Sweeney, Jr., for the appellees (defendants).
   Opinion

PELLEGRINO, J.

The self-represented plaintiff, Jacek I. Smigelski, appeals from the judgment of the trial court, Swienton, J., granting the October 21, 2011 motion for summary judgment of the defendant, Stanley Kosiorek, both individually and in his capacity as executor of the estate of Stanislaw Kosiorek (estate), on the plaintiffs revised complaint. On appeal, the plaintiff claims that the trial court improperly (1) granted the defendant’s motion for summary judgment on the basis of res judicata, (2) granted the defendant’s motion to dismiss certain counts due to the plaintiffs lack of standing and (3) denied his motion to disqualify counsel for the defendant. We affirm the judgment of the trial court.

Many of the relevant facts and the procedural history were set forth by this court in Disciplinary Counsel v. Smigelski, 124 Conn. App. 81, 4 A.3d 336 (2010), cert denied, 300 Conn. 906, 12 A.3d 1004, cert. denied, U.S. , 132 S. Ct. 101, 181 L. Ed. 2d 28 (2011). The' defendant, in both his individual and fiduciary capacities, retained the plaintiff to provide separate but related legal services. The plaintiff represented the defendant, in his fiduciary capacity, to clear title to the estate’s only asset, a house at 28 Terra Road in Plainville. Id., 84. The defendant and his family discovered that, within one year of his death at age eighty-three, Stanislaw Kosiorek had married Bronislawa Kosi-orek and transferred to her an undivided interest in the house. The discovery prompted the decedent’s heirs to commence an action against Bronislawa Kosiorek to set aside the transfer. When efforts to settle the dispute failed, the defendant retained the plaintiff who negotiated with Bronislawa Kosiorek to quitclaim the property to the estate in return for a payment of $35,000. Thereafter, the plaintiff represented the defendant in the administration of the estate, which included the sale of the house to amember of the Kosiorek family. Id., 85-86.

During the administration of the estate, the Plainville Probate Court issued two decrees that are relevant here. The fast decree, issued on December 12,2006, approved the sale of the house. The net proceeds of the sale totaled $155,300.82, which the defendant authorized to be given to the plaintiff as trustee. Id., 86. Pursuant to the plaintiffs interpretation of the terms of the fee agreement, the plaintiff paid himself $65,833.33, in addition to a retainer of $5000, for a total of $70,833.33 out of the estate funds that he was holding. Id., 86-87 and n.6. In its second decree, issued on May 21, 2007, the Probate Court ordered the plaintiff to return $54,833.33 to the estate. The Probate Court found that the plaintiffs fees were excessive and that an appropriate and reasonable fee for his services was $15,000 plus $1000 reimbursement for expert witness fees. The plaintiff refused to comply with the second decree. Id., 87-88.

This factual background spawned two separate actions that are relevant to the resolution of the plaintiffs claims on appeal. The defendant, in his fiduciary capacity, commenced and prevailed in an action against the plaintiff. See Kosiorek, v. Smigelski, 138 Conn. App. 695, 54 A.3d 564 (2012), also released today (“prior action”). Before the resolution of the prior action, the plaintiff commenced this action against the defendant in his fiduciary and individual capacities. In his amended complaint, dated January 6, 2011, the plaintiff asserted against the defendant, in his individual and/or fiduciary capacities, inter alia, claims of breach of contract, breach of the implied covenant of good faith and fair dealing, and indemnification. The plaintiff also sought in two counts a declaratory judgment to set aside and to declare null and void the two decrees of the Probate Court rendered on December 12,2006, and May 21,2007.

The defendant filed a motion to dismiss the plaintiffs amended complaint. The court, Young, J., in its memorandum of decision dated April 1, 2011, granted the defendant’s motion to dismiss with respect to the plaintiffs claims seeking a declaratory judgment in counts three and four. Judge Young stated: “[The plaintiff] makes no allegation in the third or fourth count that he has any interest, legal or equitable, in the decrees of the Probate Court. . . . [The plaintiff] doesn’t seek any personal remedy. Rather, he seeks the setting aside of decrees of a probate court, claiming that the conduct of [the defendant] caused damage to the heirs and the estate. . . . Because [the plaintiff] has failed to allege that he, himself, has an interest in declaratory judgment sought, he has failed to meet the requirements of Practice Book § 17-55. . . . [The plaintiff] has not claimed he has statutory authority to bring such actions, nor does he claim he is classically aggrieved. He has alleged no specific personal and legal interest in these decrees. Rather, he claims that the heirs and estate were damaged by the conduct of [the defendant]. Additionally, [the plaintiff] fails to allege the decree [s] of the Probate Court specially and injuriously affected him. . . . [The plaintiff] has alleged no factual basis which would provide him standing as to the causes of action contained in the third and fourth counts. These are dismissed.” (Citations omitted.)

Judge Young then considered the defendant’s motion to dismiss with respect to the breach of contract, breach of the implied covenant of good faith and fair dealing, and indemnification claims. The defendant argued that these claims should be barred under the doctrine of res judicata because the plaintiff had previously raised these claims in the prior action, which were decided by a motion for a directed verdict in that action. See Kosiorek v. Smigelski, supra, 138 Conn. App. 695. Judge Young denied the defendant’s motion to dismiss in this respect, stating: “[R]es judicata is not included among the permissible grounds on which to base a motion to dismiss. ... It may not be raised by a motion to dismiss. ... Of course, there is no reason why, in an appropriate case, once the defense of res judicata has been raised, the issue may not be resolved by way of summary judgment. . . . The validity of [these counts] cannot be addressed at this time.” (Citations omitted; internal quotation marks omitted.)

Thereafter, on September 19, 2011, the plaintiff filed a motion to disqualify the defendant’s counsel from representing the defendant in both his individual and fiduciary capacities in the present action. On October 4, 2011, the court, Pittman, J., denied the plaintiffs motion, stating: “The plaintiff has no standing to raise this issue.”

On September 19, 2011, the plaintiff also filed a revised complaint that again alleged claims of breach of contract, breach of the implied covenant of good faith and fair dealing, and indemnification. The defendant filed a motion for summary judgment asserting, once again, that the plaintiffs claims were barred by the doctrine of res judicata because the plaintiff had raised these causes of action against the defendant, in his fiduciary capacity, as counterclaims in the prior action. See Kosiorek, v. Smigelski, supra, 138 Conn. App. 695. The plaintiff conceded that the doctrine of res judicata barred the claims against the defendant in his fiduciary capacity but maintained that res judicata could not bar his claims in the present matter because here the claims were also brought against the defendant, in his individual capacity. In granting the defendant’s motion for summary judgment, Judge Swienton stated: “The claims being raised in this action are essentially the same claims that were raised and adjudicated in the prior action. Furthermore, privity exists between the parties as to the claims and issues being raised so that the doctrine of res judicata bars this action.” From that judgment, the plaintiff now appeals.

I

The plaintiffs first claim on appeal is that Judge Swienton improperly granted the defendant’s motion for summary judgment on the plaintiffs revised complaint on the basis of res judicata as to the breach of contract, breach of the implied covenant of good faith and fair dealing, and indemnity claims. The plaintiff claims that the court improperly applied the doctrine of res judicata to bar these claims in this action, which, unlike the prior action, are alleged against the defendant in his individual capacity. The plaintiff argues that because the defendant, in his individual capacity, is a separate party and not in privity with the defendant in his fiduciary capacity, the doctrine of res judicata— which can only apply to bar same claims when the former action is between the same parties, or those in privity with them — cannot be applied in the present action to bar his claims against the defendant, in his individual capacity. We disagree

“Under the doctrine of res judicata, a final judgment, when rendered on the merits, is an absolute bar to a subsequent action, between the parties or those in privity with them, upon the same claim.” Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 812, 695 A.2d 1010 (1997). In this instance, there is no dispute that the court, in the prior action, rendered a final judgment on the same claims that the plaintiff reasserts in this matter. The question, however, for our purposes, is whether there is privity between the defendant, in his fiduciary and individual capacities, such that these same claims should be barred by this court under the doctrine of res judicata.

“In determining whether privity exists, we employ an analysis that focuses on the functional relationships of the parties. Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principle that [res judicata] should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion.” (Emphasis added.) Id., 814. “[T]he crowning consideration ... [in regard to] the basic requirement of privity . . . [is] that the interest of the party to be precluded must have been sufficiently represented in the prior action so that the application of [res judicata] is not inequitable.” (Internal quotation marks omitted.) Id., 818.

In granting the defendant’s motion for summary judgment, Judge Swienton stated: “The claims being raised in this action are essentially the same claims that were raised and adjudicated in the prior action. Furthermore, privity exists between the parties as to the claims and issues being raised so that the doctrine of res judicata bars this action.” The court’s determination that there was privity between the defendant in his fiduciary and individual capacities, sufficient to justify preclusion under the doctrine of res judicata, is a conclusion of law subject to plenary review. See Gateway Co. v. DiNoia, 232 Conn. 223, 230, 664 A.2d 342 (1995).

The court’s findings and determination in granting the motion for a directed verdict in favor of the defendant in his fiduciary capacity, in the prior action, are directly applicable to the plaintiffs claims against the defendant in his individual capacity, in this action, because the claims in both matters are identical and the fee agreement to be interpreted is the same. Because judicial interpretation of the fee agreement would be the same irrespective of those who are party to it, the defendant has, in his fiduciary and individual capacities, the same legal rights under the fee agreement that are sufficient to support a finding of privity between the defendant as an individual and as a fiduciary and justify preclusion of these claims under the doctrine of res judicata. See Mazziotti v. Allstate Ins. Co., supra, 240 Conn. 814.

Moreover, because the defendant, in his fiduciary capacity, possesses the same legal rights under the fee agreement in the fairly contested prior action, as he does in his individual capacity in this action, his legal rights were sufficiently represented in the first action, such that our application of res judicata does not yield an inequitable result in this instance. See id., 818. The claims that the plaintiff alleges in this action could only have been properly adjudicated in the prior action. This outcome is consistent with the fundamental purpose of the doctrine of res judicata, to “protect the finality of judicial determinations, conserve the time of the court and prevent wasteful relitigation.” (Internal quotation marks omitted.) Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988). We therefore conclude that Judge Swienton properly granted the defendant’s motion for summary judgment on the plaintiffs revised complaint.

II

The plaintiffs second claim on appeal is that Judge Young improperly granted the defendant’s motion to dismiss with respect to counts three and four of his amended complaint, which sought a declaratory judgment to set aside the decrees of the Probate Court issued on December 12, 2006, and May 21, 2007. As aforementioned, the Probate Court decrees authorized the sale of the property and ordered the plaintiff to return the sum of $54,833.33 to the estate. The plaintiff claims that he was classically aggrieved by the decrees of the Probate Court and that, as a result, he has standing to bring these claims. We disagree.

“The standard of review for a court’s decision on a motion to dismiss is well settled. A motion to dismiss tests, inter aha, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss [is] de novo. . . . When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must 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. . . . The motion to dismiss . . . admits ah facts which are well pleaded, invokes the existing record and must be decided upon that alone.” (Citation omitted; internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).

In granting the defendant’s motion to dismiss, the court noted the following: the plaintiff made “no allegation . . . that he has any interest, legal or equitable, in the decrees of the Probate Court. . . . [He] doesn’t seek any personal remedy. . . . [He] has failed to allege that he, himself, has an interest in the declaratory judgment sought .... [He] has not claimed ... he is classically aggrieved. ... He has alleged no specific personal and legal interest in these decrees. . . . [He] fails to allege the decree of the Probate Court specially and injuriously affected him. . . . [He] has alleged no factual basis which would provide him standing as to the causes of action contained in the third and fourth counts.” (Citations omitted.)

Consistent with the court’s analysis, the plaintiff did not plead a factual basis which provides him standing with respect to counts three and four of his amended complaint. “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action .... 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 the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the 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.” (Emphasis added; internal quotation marks omitted.) Gold v. Rowland, 296 Conn. 186, 207, 994 A.2d 106 (2010).

As the court correctly stated, the plaintiff did not allege a “specific personal and legal interest” in the decrees of the Probate Court dated December 12, 2006, and May 21, 2007, or that he was “specially and injuriously affected” by the decrees. Accordingly, we conclude that the court did not err by dismissing counts three and four of the plaintiffs amended complaint.

Ill

The plaintiffs third claim on appeal is that Judge Pittman erred in denying his motion to disqualify the defendant’s counsel. The plaintiff argues that the defendant’s attorney cannot ethically represent both the defendant in his individual and fiduciary capacities on the basis that there is a conflict of interest between the defendant as a fiduciary and the defendant as an individual. The plaintiff advances the theory that the interest of the defendant, as a fiduciary to the estate, is in direct conflict with the defendant as an individual, who, to the detriment of the heirs of the estate, is bound by law to honor the fee agreement that he entered into with the plaintiff. The plaintiff argues that rule 8.3 (a) of the Rules of Professional Conduct, requires him to inform the appropriate professional authority of this conflict and affords him statutory standing to raise this claim. We disagree.

The standard of review for determining whether the court properly denied a motion to disqualify counsel is an abuse of discretion standard. “The Superior Court has inherent and statutory authority to regulate the conduct of attorneys who are officers of the court. . . . In its execution of this duty, the Superior Court has broad discretionary power to determine whether an attorney should be disqualified for an alleged breach of confidentiality or conflict of interest. ... In determining whether the Superior Court has abused its discretion in denying a motion to disqualify, this court must accord every reasonable presumption in favor of its decision. Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted.) State v. Jones, 180 Conn. 443, 448, 429 A.2d 936 (1980), overruled in part on other grounds by State v. Powell, 186 Conn. 547, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982).

In her order dated October 4, 2011, Judge Pittman dismissed the plaintiffs motion to disqualify the defendant’s counsel because “[t]he plaintiff has no standing to raise this issue.” “Our case law is . . . clear that a person cannot gain standing by asserting the due process rights possessed by another individual. It is axiomatic that due process rights are personal, and cannot be asserted vicariously.” (Internal quotation marks omitted.) Taff v. Bettcher, 35 Conn. App. 421, 425, 646 A.2d 875 (1994). The defendant’s representation by counsel is, thus, an entitlement that belongs to him and him alone — not the plaintiff. See Strobel v. Strobel, 64 Conn. App. 614, 620, 781 A.2d 356 (concluding that defendant in dissolution of marriage proceeding did not have standing to disqualify counsel of minor child), cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).

“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.” (Internal quotation marks omitted.) Gold v. Rowland, supra, 296 Conn. 207. The plaintiff has not alleged that he was classically aggrieved by counsel’s representation of the defendant in both his individual and fiduciary capacities nor has he cited a statute which affords him standing to raise this claim. The plaintiff merely cites a rule of professional conduct, which does not apply in this context. Rule 8.3 (a) indicates, in relevant part, that “[a] lawyer who knows that another lawyer has committed a violation of the Rules of Professional conduct . . . shall inform the appropriate professional authority” which, in most instances, is our statewide grievance committee. See Rules of Professional Conduct 8.3, commentary. It therefore requires the attorneys of this state to report known misconduct of their colleagues to the appropriate professional authority; it does not afford claimants standing to report that misconduct or to assert the due process rights possessed by another individual, in Superior Court.

Accordingly, we conclude that the court did not abuse its discretion in denying the plaintiffs motion to disqualify the defendant’s counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff, a member of the Connecticut bar, was suspended from the practice of law at the time of oral argument. See Disciplinary Counsel v. Smigelski, 124 Conn. App. 81, 4 A.3d 336 (2010), cert denied, 300 Conn. 906, 12 A.3d 1004, cert. denied, U.S. , 132 S. Ct. 101, 181 L. Ed. 2d 28 (2011).

       For convenience, we refer to Stanley Kosiorek in both capacities as the defendant.

       Prior to the plaintiffs involvement, Bronislawa Kosiorek demanded $45,000 to quitclaim her interest in the house to the estate.

       In that case, the defendant, in his fiduciary capacity, sought damages against the plaintiff on theories of, inter alia, breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and civil conversion, General Statutes § 52-564. The plaintiff, in turn, brought counterclaims with respect to the fee agreement against the defendant, in his fiduciary capacity, sounding in, inter alia, breach of contract, breach of the implied covenant of good faith and fair dealing and indemnification. The court, Swienton, J., directed a verdict on these counterclaims. Thereafter, a jury found in favor of the defendant, in his fiduciary capacity, awarding compensatory damages against the plaintiff in the amount of $54,833.33 and on a count of civil conversion, triple damages. Judge Swienton, in accordance with the jury verdict, awarded $226,762.20 in compensatory damages, plus attorney’s fees and costs of $71,696.09 to the defendant, in his fiduciary capacity. See Kosiorek v. Smigelski, supra, 138 Conn. App. 695.

       Rule 8.3 (a) of the Rules of Professional Conduct provides in relevant part: “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. . . .”


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    TRENWICK AMERICA REINSURANCE CORPORATION v. W. R. BERKLEY CORPORATION ET AL.
    (AC 33388)
    Espinosa, Sheldon and Bishop, Js.

      Argued April 17
    officially released October 23, 2012

      Jonathan M. Freiman, with whom was Julie Lough-ran, for the appellants-cross appellees (defendants).

      Augustus R. Southworth III, with whom was Todd R. Michaelis, for the appellee-cross appellant (plaintiff).
   Opinion

BISHOP, J.

In this declaratory judgment action, the defendant W. R. Berkley Corporation appeals from the judgment of the trial court, rendered in favor of the plaintiff, Trenwick America Reinsurance Corporation. On appeal, the defendant claims that the court improperly (1) concluded that there was no mutual mistake and (2) found that the commutation agreement was not ambiguous. The plaintiff cross appeals, claiming that the court improperly (1) concluded that there was no unjust enrichment and (2) denied its motion for attorney’s fees. We affirm the judgment of the trial court.

The plaintiff is a reinsurance company with its principal place of business in Fairfield. The defendant is an insurance holding company with its principal place of business in Greenwich. At various times prior to September 3, 2004, the plaintiff entered into reinsurance agreements with the defendant and its subsidiary insurance companies. The reinsurance agreement at issue in the present case obligated the plaintiff to reinsure certain liabilities of the defendant’s insurance companies. More specifically, in exchange for premiums paid by the defendant, the plaintiff agreed to pay a stated percentage of the defendant’s insurance companies’ losses, claims, and other expenses.

The plaintiff and Signet Star Reinsurance Company (Signet Star), a reinsurance company that is a subsidiary of the defendant, entered into an agreement on June 10, 1999, referred to as Special Casualty and Accident Reinsurance Facility (SCARF II). The trial court noted that SCARF II obligated the plaintiff “to accept a ten percent part of sixty percent of Signet Star’s overall losses raider the program in exchange for a corresponding quota share (ten percent) of the premiums that Signet Star collected.” (Internal quotation marks omitted.) As part of SCARF II, the plaintiff also “agreed to accept a 20 [percent] participation of the employer’s liability [for the workers’ compensation claims] part of the program.”

On or about September 3, 2004, the plaintiff and the defendant entered into a commutation and release agreement (commutation agreement). By its terms, the commutation agreement referred to the plaintiff as the “Reinsurer” and the defendant, its subsidiaries and affiliates collectively were referred to as the “Company.” The commutation agreement’s stated purpose was to “fully and finally terminate, release, determine and fully and finally settle, commute and extinguish all [the parties’] respective past, present, and future obligations and liabilities, known and unknown, fixed and contingent, under, arising out of, and/or pursuant to the [reinsurance [a]greements . . . .”

The commutation agreement defined “reinsurance agreement” in the following paragraph: “Whereas, the [p]arties have entered various reinsurance agreements pursuant to which the Reinsurer reinsured certain liabilities of the Company and/or the Company reinsured certain liabilities of the Reinsurer (such agreements and all other agreements entered into in connection or relating to such agreements are referred to herein collectively as the [reinsurance [agreements) . . . .” The commutation agreement required the plaintiff to make a payment of $15,248,338 to the defendant “in full satisfaction of the Reinsurer’s past, present and future net liability under the [r]einsurance [agreements . . .

The commutation agreement further stated that “[t]his [agreement sets forth the entire [ajgreement between the [pjarties with respect to the subject matter hereof and supersedes all prior agreements or understandings between them pertaining to the subject matter hereof.” In addition, the commutation agreement stated: “This [ajgreement may not be amended, altered, supplemented or modified, except by written agreement signed by the [pjarties.” Also, the commutation agreement provided that each party “represents to the other as follows: (a) it has had full opportunity to consult with its respective attorneys in connection with the negotiation and drafting of this [ajgreement; (b) it has carefully read and understands the scope and effect of each provision contained in this [ajgreement; (c) it has conducted all necessary due diligence, investigation and analysis of the transactions contemplated by this [ajgreement; and (d) it is not relying upon any representations made by any other party, its attorneys or other representatives. ”

Following the execution of the commutation agreement, from September 3,2004 until approximately June, 2008, the plaintiff continued to make payments pursuant to SCARF n. Likewise, during that time, the defendant continued to make premium payments to the plaintiff, totaling approximately $56,000. Between 2006 and 2008, however, the plaintiff began falling behind on its SCARF II payments and the SCARF II administrator began pressing the plaintiff for the past due payments. At the time, the plaintiff assured the SCARF II administrator that it would be making back payments and advised the administrator that it intended to initiate discussions with the defendant regarding commutation of its obligations under SCARF II.

In January, 2008, Stephen Eisenmann became an executive vice president and officer of the plaintiff. In that capacity, he had the opportunity to review the commutation agreement. On the basis of his review of the commutation agreement, Eisenmann concluded that it commuted SCARF II and therefore the plaintiff had no obligation to make payments to the defendant pursuant to SCARF II after the commutation agreement went into effect on September 3,2004. Eisenmann determined that, based on the commutation agreement’s language, the agreement was global, thereby commuting all reinsurance agreements between the plaintiff and the defendant, including SCARF II, as of the effective date of the commutation agreement. As a result, the plaintiff stopped making further payments under SCARF II and sought a return of the sum of $451,006.72, an amount it believed it had unnecessarily paid to the defendant pursuant to SCARF II. The defendant disagreed with Eisenmann’s conclusion that the commutation agreement commuted SCARF II and that the money paid following the execution of the commutation agreement should be returned.

Thereafter, the plaintiff instituted an action seeking a declaration that the commutation agreement commuted SCARF II. In count one, the plaintiff sought a declaratory judgment that the commutation agreement discharged its obligations under SCARF II. The second count, which sounded in unjust enrichment, alleged that the plaintiff was entitled to a return of the money it paid under SCARF II following the execution of the commutation agreement. Following a bench trial, the court held as to count one that the commutation agreement did, in fact, commute SCARF II. As to count two, the court held that the restitution sought by the plaintiff was barred pursuant to the voluntary payment doctrine.

Having prevailed at trial on its declaratory judgment action, on May 2, 2011, the plaintiff filed a motion for attorney’s fees pursuant to Practice Book § 11-21 and article 11, § (h) of the commutation agreement. The court denied that motion, stating that “[t]here has been no judicial determination that the defendant was in breach of the commutation agreement, which alleged breach is the basis for the [plaintiffs] claim for attorney’s fees.” This appeal and cross appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly determined that there was no mutual mistake regarding the inclusion of SCARF II in the commutation agreement. More specifically, the defendant claims that the court should have determined that a mutual mistake existed and, therefore, the court should have reformed the contract to reflect the true intent of the parties: that SCARF II was to be excluded from the commutation agreement. We disagree.

Connecticut law on the subject of reformation of a contract was summarized succinctly by our Supreme Court in Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 126-27, 239 A.2d 519 (1968): “A cause of action for reformation of a contract rests on the equitable theory that the instrument sought to be reformed does not conform to the real contract agreed upon and does not express the intention of the parties and that it was executed as the result of mutual mistake, or mistake of one party coupled with actual or constructive fraud, or inequitable conduct on the part of the other. ... A court in the exercise of its power to reform a contract must act with the utmost caution and can only grant the relief requested if the prayer for reformation is supported by convincing evidence. ... [In finding mutual mistake] it must be established that both parties agreed to something different from what is expressed in writing, and the proof on this point should be clear so as to leave no room for doubt. ... If the right to reformation is grounded solely on mistake, it is required that the mistake be mutual, and to prevail in such a case, it must appear that the writing, as reformed, will express what was understood and agreed to by both parties.” (Citations omitted.)

“Whether there has been such mistake is a question of fact. . . . Questions of fact are subject to the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings.” (Citations omitted; internal quotation marks omitted.) McBurney v. Cirillo, 276 Conn. 782, 815-16, 889 A.2d 759 (2006), overruled in part on other grounds by Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 284-89, 914 A.2d 996 (2007).

In seeking to reverse the judgment of the court, the defendant concedes the difficulty inherent in demonstrating reversible error as to a trial judge’s finding of fact. Despite the highly deferential standard that governs such claims, however, the defendant nevertheless argues that the cumulative effect of the evidence compels the logical conclusion that the parties intended to exclude SCARF II from the commutation agreement. Our review of the record does not support this conclusion. Rather, the record reveals evidence in support of the court’s findings of fact, which in turn support the conclusions of the court. Therefore, we are not left with the definite and firm conviction that the court improperly found that there was no mutual mistake.

More specifically, the contract was drafted and signed by an officer of the defendant who was experienced in such matters. In fact, in the commutation agreement itself the defendant affirmatively represented that it had read and understood the commutation agreement and that it was not relying on any representations outside of the contract. The draft of the commutation agreement was also reviewed multiple times by various employees of the defendant, including two attorneys who represented the defendant in the drafting of the commutation agreement. The review process yielded a number of suggestions and ultimately all those who participated deemed the agreement to be acceptable. In addition, the commutation agreement states in multiple places that it fully and finally terminates all of the parties’ reinsurance relationships. Indeed, William P. Scott, the defendant’s vice president of financial risk management, testified that the proposal did not exclude SCARF II. In an e-mail sent by Scott to other employees following the acceptance of the commutation agreement, the defendant represented that it had agreed to a global settlement amount for the defendant’s ceded business. Finally, there is nothing in the record which required the court to interpret the language of the contract contrary to the common sense meaning of the words used, as the terms of the commutation agreement clearly support the court’s finding. Accordingly, it cannot be said that the court’s finding regarding the intent or understanding of the parties was clearly erroneous.

II

The defendant additionally claims that the term “reinsurance agreements,” as used in the commutation agreement, is ambiguous and that the court, therefore, should have considered extrinsic evidence which would have led to the conclusion that the term does not include the plaintiffs obligations under SCARF II. We are not persuaded.

Because a determination as to whether a contract is ambiguous is a question of law, our review is plenary. Electric Cable Compounds, Inc. v. Seymour, 95 Conn. App. 523, 529, 897 A.2d 146 (2006). “A contract is unambiguous when its language is clear and conveys a definite and precise intent. . . . [T]he mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. ... In contrast, a contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. . . . [A]ny ambiguity in a contract must emanate from the language used by the parties. . . . The contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so. ... If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.” (Internal quotation marks omitted.) Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 735, 873 A.2d 898 (2005). Thus, the question before us is whether the language at issue is susceptible to more than one reasonable interpretation, rather than merely a conceivable one. See, e.g., Isham v. Isham, 292 Conn. 170, 181, 972 A.2d 228 (2009) (“proper inquiry focuses on whether the agreement on its face is reasonably susceptible of more than one interpretation”); Poole v. Waterbury, 266 Conn. 68, 88, 831 A.2d 211 (2003) (contract ambiguous if language of contract is susceptible to more than one reasonable interpretation).

As with any issue of contract interpretation, we look first to the language of the contract. The commutation agreement defines reinsurance agreements as “agreements pursuant to which the Reinsurer reinsured certain liabilities of the Company and/or the Company reinsured certain liabilities of the Reinsurer (such agreements and all other agreements entered into in connection or relating to such agreements are referred to herein collectively as the ‘Reinsurance Agreements’)-”

The defendant claims that there is evidence to support the contention that SCARF II is a pool or facility comprised of numerous contracts, including reinsurance agreements, among several participating rein-surers in addition to the plaintiff and the defendant as well as the participation of third party underwriters, managers and administrators. Therefore, the defendant claims, because the commutation agreement referred to reinsurance agreements, and not to pools or facilities such as SCARF II, the language of the contract does not make it clear that the commutation agreement pertained to SCARF II. This lack of clarity, according to the defendant, creates an ambiguity as to purpose and scope of the commutation agreement.

In our view, the defendant’s interpretation is not a reasonable one. As the court stated, reinsurance is defined as “[insurance of all or part of one insurer’s risk [the defendant] by a second insurer, [the plaintiff] who accepts this risk in exchange for a percentage [10 percent of 60 percent] of the original premium.” (Internal quotation marks omitted.) It is clear from the provisions of SCARF II that it falls squarely within the ambit of this definition of reinsurance. Accordingly, we conclude that the commutation agreement is not ambiguous. We turn next to the issues raised by the plaintiffs cross appeal.

m

On cross appeal, the plaintiff claims that the court improperly concluded that the plaintiff was not entitled to restitution. We disagree.

“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.” (Citations omitted; internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-83, 649 A.2d 518 (1994). It is the plaintiff’s burden to prove the elements of a claim of unjust enrichment, including that the defendant was benefited. See New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 451-52, 970 A.2d 592 (2009).

“[T]he determinations of whether . . . particular [facts constitute the elements of unjust enrichment] 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.) Ayotte Bros. Construction Co. v. Finney, 42 Conn. App. 578, 581, 680 A.2d 330 (1996). Finally, unjust enrichment results when “it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff.” (Internal quotation marks omitted.) National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985); see also Pokorny v. Getta’s Garage, 219 Conn. 439, 462, 594 A.2d 446 (1991).

We begin our analysis with a discussion of Northrop v. Graves, 19 Conn. 548 (1849), which anchors the law of restitution in Connecticut. In Northrop, the executors of an estate mistakenly believed that they were bound to pay $500 to the daughter of the decedent when in fact the decedent’s will required that they pay the daughter’s children. The jury awarded restitution to the executors. In affirming, our Supreme Court made clear that “[w]e do not decide that money paid by a mere mistake in point of law, can be recovered back,” but instead articulated a theory of restitution grounded in equity and conscience. Id., 554. “[W]e mean distinctly to assert, that, when money is paid by one, under a mistake of his rights and his duty, and which he was under no legal or moral obligation to pay, and which the recipient has no right in good conscience to retain, it may be recovered . . . .” Id. The court explained that a restitution claim is essentially an equitable action, and noted cases in which courts had declined to award restitution because, although funds were paid as a result of mistake, the payees received them in good conscience. Id., 555-57. Distinguishing the facts in the case before it, our Supreme Court stressed that the executors “verily supposed they were bound to pay, and the defendant, at the same time, knew they were not . . . .’’Id., 555. The court therefore determined that “the money in good conscience as much belongs to the plaintiffs now, as it did when they had it in [their] possession . . . .” Id. The court further stated that “ [i]t is therefore a rule, that money paid with full knowledge of facts, but through ignorance of the law, is not recoverable, if there be nothing unconscientious in the retainer of it ... .” (Internal quotation marks omitted.) Id., 558.

In Rockwell v. New Departure Mfg. Co., 102 Conn. 255, 128 A. 302 (1925), our Supreme Court further articulated the circumstances in which restitution may or may not be appropriate based on a mistake of law. There, the plaintiff entered into a contract with his employer under which he received, among other things, commissions on royalties from the sale of goods using his inventions; the contract entitled the plaintiff to commissions relating to double row bearings. From 1911 to 1917, the employer paid these commissions, however, the employer also paid commissions relating to sales of single row bearings which were not invented by the plaintiff. The company’s mistake resulted from its failure to read the contract closely to determine the plaintiffs rights with respect to his commission on the sale of bearings. The trial court presiding over the parties’ contract dispute ordered that the plaintiff pay back the royalties on the single row bearings. Our Supreme Court reversed, noting that “the parties stood on an equal footing, each having access to his own copy of the written contract, upon the true interpretation of which the existence of a debatable legal obligation depended.” Id., 307. The court further stated that the defendant’s mistake did not “make the payments in question any the less voluntary in character, or impose upon the plaintiff, who made his claim in good faith and still pursues it in good faith, any equitable obligation to refund the payments.” Id.

The trial court in the present case stated that Rockwell carved out an exception where voluntary payments made in error did not have to be repaid. Although we agree with the court that the reasoning of Rockwell warrants the conclusion that restitution premised on unjust enrichment is not appropriate in this situation, we do not believe that the court, in Rockwell, created an exception to prior law regarding restitution. Rather, we believe that the court in Rockwell simply emphasized that circumstantial equities play a significant role in determining whether restitution is proper when it is sought pursuant to a claim of unjust enrichment. The court noted: “[W]e do not question or weaken the authority oí Northrop v. Graves, [supra, 19 Conn. 548], and our many other decisions holding that money paid under a mistake of fact or of law, which the recipient has no right in good conscience to retain, may be recovered back. We do hold that when the parties to a written contract stand on an equal footing as to means of knowledge of their contract obligations, money paid by one to the other, in part performance of the contract, in response to a claim made in good faith and based upon a permissible but erroneous construction of the contract, cannot be recovered back as money paid under a mistake of law.” Rockwell v. New Departure Mfg. Co., supra, 102 Conn. 307-308. It is clear from this language that the court in Rockwell drew a distinction between the conduct and behavior of the payee in the case before it and the contrasting facts in Northrop. Rockwell dealt with a payee who had the same good faith, but erroneous understanding of the contract as the payor who paid him whereas Northrop dealt with a payee who knew he was not due the money he had received and whose performance did not entitle him to payment even though the payors believed they had an obligation to make payment.

As discussed previously, the court here found that prior to the plaintiff’s realization that its obligations under SCARF II were relieved by the commutation agreement, it accepted premium payments from the defendant. In like manner, the plaintiff paid policy claims to the administrator of SCARF II, which were then remitted to the defendant’s subsidiary, Signet Star. Thus, both parties were carrying out their obligations pursuant to the agreement as they understood them and the benefits bargained for by one party were in direct proportion to the benefit conferred on the other, as contemplated in SCARF II. For four years, the plaintiff and the defendant erroneously, but in good faith, believed that the obligations of SCARF II remained in effect notwithstanding the commutation agreement, and, during that time period, both parties performed their respective obligations and conferred anticipated benefits on each other, as they believed them to be. Accordingly, there was no evidentiary foundation for the court to have determined that one party had been unjustly enriched at the expense of the other. On that basis, we agree with the trial court’s conclusion that restitution was not appropriate.

IV

Finally, we consider the plaintiffs cross appeal regarding attorney’s fees. The plaintiff argues that the court improperly refused to consider whether the defendant breached the commutation agreement and, if so, whether that breach satisfied article 11, § (h) of the commutation agreement, which provided for the payment of attorney’s fees. We are not persuaded.

In general, the “rule of law known as the American rule is that attorney’s fees and ordinary expenses and burdens of litigation axe not allowed to the successful party absent a contractual or statutory exception. . . . This rule is generally followed throughout the country. . . . Connecticut adheres to the American rule. . . . There are few exceptions. For example, a specific contractual term may provide for the recovery of attorney’s fees and costs . . . .” (Internal quotation marks omitted.) ACMAT Corp. v. Greater New York Mutual Ins. Co., 282 Conn. 576, 582, 923 A.2d 697 (2007).

The relevant contract provision in the present case contemplated an order for the payment of counsel fees upon a finding that the contract has been breached, a finding not made in this instance. The commutation agreement, article 11, § (h), permits a party to recoup attorney’s fees only if it prevails at trial on a breach of contract claim. The plaintiff, however, neither asserted nor prevailed on a breach of contract claim and therefore it had no right to attorney’s fees. It is well established that “the right of a plaintiff to recover is limited by the allegations of the complaint . . . and any judgment should conform to the pleadings, the issues and the prayers for relief.” (Internal quotation marks omitted.) David Caron Chrysler Motors, LLC v. Goodhall’s, Inc., 304 Conn. 738, 744, 43 A.3d 164 (2012). Put simply, “[a] plaintiff may not allege one cause of action and recover upon another.” (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 63, 717 A.2d 77 (1998). Accordingly, the court correctly denied the plaintiffs motion for attorney’s fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant W. R. Berkley Corporation is a holding company. Berkley Insurance Company, also named as a defendant in this appeal, is a subsidiary of W. R. Berkley Corporation. For convenience, we refer to them collectively as the defendant and individually by name when necessary.

       Reinsurance is a business undertaking pursuant to a reinsurance contract, in which an insurer transfers or “cedes” to another insurer, known as the “reinsurer,” a portion of the ceding insurer’s risks flowing from insurance policies written by the insurer for policyholders. In a reinsurance agreement, the reinsurer agrees to indemnify the ceding insurer in return for payment of a portion of the ceding insurer’s premiums. When a valid claim is made, the insurance company pays the claim and the reinsurance company reimburses the insurance company to the extent required by the reinsurance agreement.

       Signet Star changed its name to Berkley Insurance Company on or about December 31, 2000.

       As noted by the trial court regarding commutation agreements generally: “Commutation is an agreement between the parties bringing to an end the liabilities of the reinsurer under the contract, usually a treaty, although possibly a long-term facultative contract. In its simplest form, a lump sum payment by the reinsurer is substituted for the unknown future liabilities on ceded risks and it is done for reasons on both sides having to do with the relative advantages of current and long-term money or the convenience of closing certain yearly accounts. G. Staring, Law of Reinsurance (1993) § 14:6.” (Internal quotation marks omitted.)

       The plaintiff contends that it paid the third party administrator of SCARF II a net total of $451,006.72 after entering into the commutation agreement.

       Article 11, § (h) of the commutation agreement provides: “In the event of any breach of the terms or conditions of this [agreement, the party prevailing at trial shall be entitled to recover from the breaching party, all costs and expenses, including, without limitation, reasonable attorneys fees and disbursements.”

       Collateral to this argument, the defendant claims that the court improperly refused to consider extrinsic evidence in its determination of the presence of a mutual mistake. Although it is true, as the defendant contends, that our courts have held that extrinsic evidence may be admissible to show mistake; see Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 503 n.14, 746 A.2d 1277 (2000); there is no requirement that the court consider such evidence. Furthermore, the court in this case did in fact acknowledge numerous items of extrinsic evidence in support of its factual finding. At no point in its opinion did the court explicitly state that it refused to consider a particular piece of extrinsic evidence, as the defendant claims.

       We acknowledge that there may be evidence to support the defendant’s contention that the intention of the parties was to exclude SCARF II from the commutation agreement. When reviewing the findings of the trial court under a clearly erroneous standard, however, we need not determine that its decision was the only possible outcome, but only that there is sufficient evidence to support its conclusion. Weighing conflicting evidence is within the exclusive province of the trial court; it is not an appellate function.

       Bruce Weiser, one of the attorneys representing the defendant in the drafting of the commutation agreement, testified that he revised and/or removed any language that he felt was “objectionable,” “unclear” or “ambiguous.”

       See footnote 6 of this opinion.


author: ALVORD, J.

text:
    SUSANE O. GRASSO v. CONNECTICUT HOSPICE, INC., ET AL.
    (AC 33489)
    Beach, Alvord and Bear, Js.

      Argued April 23
    officially released October 23, 2012

      Burton M. Weinstein, with whom, on the brief, was Patricia A. Cofrancesco, for the appellant (plaintiff).

      Ian E. Bjorkman, with whom was William A. Ryan, for the appellees (defendants).
   Opinion

ALVORD, J.

The plaintiff, Susane O. Grasso, appeals from the summary judgment rendered by the trial court in favor of the defendants, Connecticut Hospice, Inc. (Hospice), and Rosemary J. Hurzeler, Rorrny J. Knight, David R. Goldfarb, Sandra J. Klimas, Susan Flarmigan, Nancy Baranowski and Michael Sweeney (individual defendants). On appeal, the plaintiff claims that the court improperly concluded that there was no genuine issue of material fact as to her claims (1) in contract, that Hospice breached the employee handbook and the settlement agreement, and (2) in tort, that the individual defendants were liable for both negligent infliction of emotional distress and intentional infliction of emotional distress. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the plaintiffs appeal. The plaintiff was an employee of Hospice from 1998 until April, 2010. In 2009, she filed two complaints against Hospice with the federal Occupational Safety and Health Administration (administration) relating to defective chairs in the workplace. The administration ordered Hospice to repair any defective chairs. The plaintiff claims that, in retaliation for filing the complaints, her work environment became hostile, she was subjected to relentless pressure to quit her job and her work duties changed. The plaintiff filed a complaint with the administration’s whistle-blower protection program, claiming retaliation and discrimination. In October, 2009, the administration determined that there existed reasonable cause that a violation of the whistle-blower statute had occurred.

On January 27,2010, Hospice and the plaintiff entered into a settlement agreement (agreement) with regard to the whistle-blower claim. The agreement stated that the plaintiff would work part-time in Hospice’s Branford and Shelton offices, that she would bring what she needed to complete her daily tasks with her to these locations and that she released Hospice from future claims resulting from events preceding the execution of the agreement. Approximately one week after the plaintiff signed the agreement, she sent notice to Hospice that it had breached the agreement. Hospice was unresponsive, so the plaintiff notified the administration of the alleged breach. The administration informed the plaintiff that it was unable to enforce the agreement and advised her to seek a venue for enforcement of the agreement if she thought that Hospice had breached it.

On July 16, 2010, the plaintiff filed a six count complaint in Superior Court alleging (1) violation of the state whistle-blower statute, General Statutes § 31-51m, (2) violation of the first amendment to the United States constitution and article first, §§ 3, 4 and 14, of the Connecticut constitution, (3) breach of the settlement agreement, (4) breach of Hospice’s employee handbook, (5) negligent infliction of emotional distress and (6) intentional infliction of emotional distress. The defendants filed counterclaims alleging that the release of claims provision of the agreement (release provision) released the defendants from liability with respect to the claims alleged in all six counts of the plaintiffs complaint. The defendants filed a motion for summary judgment on the six counts of the plaintiffs complaint and on their counterclaims seeking declaratory relief.

The parties argued the summary judgment motion on March 28, 2011. In a memorandum of decision filed April 28, 2011, the court, Burke, J., determined that there was no genuine issue of material fact as to any of the six claims and rendered summary judgment in favor of the defendants on the six counts of the complaint. With respect to the counterclaims, the court concluded that the release provision barred the plaintiffs claims in the first, second and fourth counts of the complaint, and therefore rendered summary judgment in favor of the defendants with regard to those counts. This appeal followed.

On appeal, the plaintiff claims that the court improperly rendered summary judgment in favor of the defendants because a genuine issue of material fact existed with respect to the language of the agreement and the circumstances surrounding the termination of her employment and her treatment in the workplace. She argues that Hospice and the individual defendants violated the clause of the settlement agreement that stated that the agreement would “not provide [the plaintiff] any greater or lesser rights or privileges than other employee[s] of Hospice.” She also argues that the release provision does not bar her breach of contract claim with regard to the employee handbook. Finally, the plaintiff argues that the individual defendants’ specific acts in the month following the signing of the settlement agreement caused her severe emotional distress, amounting to a constructive termination of employment.

We first set forth the applicable legal principles. “The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings.” (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn. App. 221, 227, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). “Thus, because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary . . . .” (Citation omitted; internal quotation marks omitted.) Heussner v. Day, Berry & Howard, LLP, 94 Conn. App. 569, 572-73, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d 38 (2006).

I

The first set of claims asserted by the plaintiff on appeal concerns acts by Hospice that she alleges constituted a breach of the employee handbook and the agreement. “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the [writing]. . . .

“Where the language of the [writing] is clear and unambiguous, the [writing] is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a [written instrument] must emanate from the language used in the [writing] rather than from one party’s subjective perception of the terms. ... If a contract is unambiguous within its four comers, the determination of what the parties intended by their contractual commitments is a question of law.” (Citations omitted; internal quotation marks omitted.) Murtha v. Hartford, 303 Conn. 1, 7-8, 35 A.3d 177 (2011). We agree with the sound conclusion of the trial court that the agreement is unambiguous. Our review of the agreement is therefore plenary. Cruz v. Visual Perceptions, LLC, 136 Conn. App. 330, 334, 46 A.3d 209, cert. granted on other grounds, 306 Conn. 903, 52 A.3d 730 (2012).

A

The plaintiff first claims that there is a genuine issue of material fact regarding whether the release provision barred a claim against Hospice for a breach of the employee handbook, as alleged in count four of the complaint. We determine that this claim is moot.

The following procedural history is relevant to our discussion of this claim as to the provisions of the employee handbook. After the plaintiff filed her six count complaint, the defendants filed answers, special defenses and counterclaims, including requests for attorney’s fees. The defendants’ counterclaims alleged that all six counts of the plaintiffs complaint were barred because the release provision insulated Hospice from any future liability for acts performed prior to the execution of the agreement. The trial court agreed in part and rendered summary judgment in favor of the defendants, inter alia, on the plaintiffs claim of a breach of the employee handbook. Significantly, the court also rendered summary judgment in favor of the defendants on their counterclaims with regard to the alleged breach of the employee handbook.

“It is a well-settled general rale that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When . . . events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Brown v. Brown, 69 Conn. App. 209, 211-12, 794 A.2d 550 (2002).

Though the plaintiff did appeal from the trial court’s rendering of summary judgment that the release provision barred the alleged breach of the employee handbook, the plaintiff did not appeal from the trial court’s rendering of summary judgment on the defendants’ counterclaims that the release provision in the agreement bars liability. The plaintiff has two different rulings against her with regard to the issue of the breach of the employee handbook because the trial court rendered summary judgment in favor of the defendants on both the claim and the counterclaim, but the plaintiff appealed from only one such ruling. Because the trial court’s rendering of summary judgment on the counterclaim is not before us, this court would not be able to grant the plaintiff any practical relief regarding the defendants’ alleged breach of the handbook. We therefore do not review this claim.

B

The plaintiff next claims that there is a genuine issue of material fact regarding whether Hospice breached the agreement, as alleged in count three of the complaint. We disagree.

“A settlement agreement is a contract among the parties.” (Internal quotation marks omitted.) Amica Mutual Ins. Co. v. Welch Enterprises, Inc., 114 Conn. App. 290, 294, 970 A.2d 730 (2009). The relevant section of the agreement provides: “This Agreement shall not and does not constitute an employment contract for a definite term and [the plaintiffs] employment with Hospice shall remain subject to all of Hospice’s policies, practices, procedures and rules. Moreover, the settlement agreement will not alter, in any way, [the plaintiffs] status as an at-will employee of Hospice. The settlement agreement will not provide [the plaintiff] any greater or lesser rights or privileges than other employee[s] of Hospice.”

The plaintiff focuses on the provision that the agreement does not provide the plaintiff with any greater or lesser rights or privileges. She argues that this language indicates an agreement that she would have treatment equivalent to all other employees of Hospice, and that Hospice breached the agreement by failing to provide her with a key to the office when every other worker in the Shelton office had a key. The plaintiff further argues that Hospice’s treatment of her was unequal because she was the only employee in the Shelton office who did not have either a computer on her desk or a portable computer, making her the only director or staff member who had to record all work by hand. Under the agreement, however, the plaintiff was assigned only two six hour days per week in the Shelton office, and much of her time on those days was spent traveling, and, thus, out of the office.

The defendants argue that Hospice did not intend to bind itself to providing identical workplace accommodations to every employee, regardless of the time the employee spent in the office or the duties the employee performed. In support of this argument, they urge this court to consider the “greater or lesser rights or privileges” clause within the agreement and not in isolation. We agree with the defendants that, when examining the clause in context, the parties’ intent was that the agreement would neither confer any at-will employment rights that did not exist prior to the agreement, nor would it remove any at-will employment rights that did exist prior to the agreement. The trial court therefore properly determined that the agreement did not dictate that every Hospice employee was entitled to the exact same treatment with regard to duties, office accommodations or access to the workplace.

II

The second set of claims asserted by the plaintiff on appeal concerns acts by the individual defendants, subsequent to the signing of the agreement, which allegedly caused her emotional distress. As a preliminary matter, we determine that the plaintiffs claims that the court improperly rendered summary judgment on her causes of action for negligent infliction of emotional distress and for intentional infliction of emotional distress were inadequately briefed. “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.) Cooke v. Cooke, 99 Conn. App. 347, 353, 913 A.2d 480 (2007). “We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” (Internal quotation marks omitted.) Krondes v. O’Boy, 37 Conn. App. 430, 436, 656 A.2d 692 (1995).

The section of the plaintiffs brief devoted to the negligent infliction of emotional distress claim is five sentences long, contains no case citations and does not address the fundamental basis of the trial court’s rationale. The section of the plaintiffs brief devoted to intentional infliction of emotional distress is four sentences long, and, while it does contain a case citation, there is no analysis of why the case presented is applicable. Furthermore, the plaintiffs brief contains no application of facts to the elements of intentional infliction of emotional distress. Nevertheless, had the claims been briefed adequately, we still would conclude that the trial court properly rendered summary judgment as to those counts of the complaint.

The following additional facts are relevant to the plaintiffs claims of negligent infliction of emotional distress and intentional infliction of emotional distress. In 2008, the plaintiff was involved in a motor vehicle accident that was not work related and left her hospitalized for one month with fractured ribs, a broken pelvis and a punctured lung. She suffered from post-traumatic stress disorder (stress disorder) that rendered her incapable of driving long distances. The plaintiff was discharged from stress disorder treatment in March, 2009, after her condition improved, but she reported that her symptoms returned in July, 2009. In October, 2009, after filing the three reports with the administration, the plaintiff was reassigned from telemarketing duties in the Shelton office to training duties in various locations throughout the state. The driving occasioned by the reassignment caused her stress. The change in the plaintiffs job description was memorialized in the January 27, 2010 agreement, which stated that the plaintiff would divide the four, six hour days per week she worked between the Branford and Shelton offices.

On February 10, 2010, the plaintiff was scheduled to be in Greenwich at 2:30 p.m. to give a presentation as part of her work duties with Hospice. She was late due to a prior work obligation, and despite calling her supervisor three times within the next hour to inform her that she was stuck in traffic and that it was pointless to continue driving because she was going to miss the presentation, the supervisor told her to continue to Greenwich. She arrived in Greenwich at 3:15 p.m. and sat in her car shaking and crying from the long commute. When the plaintiff entered the facility, the person in charge of the Greenwich Hospice informed her that the presentation had ended and observed that the plaintiff looked upset. A nurse from Hospice examined the plaintiff in the lobby.

The plaintiff worked for six days after the February 10, 2010 incident. On February 24, 2010, the plaintiff presented Hospice with a letter written by her physician, recommending that the plaintiff refrain from long and stressful drives at work because driving exacerbated her stress disorder. A similar letter, dated March 15, 2010, and written by a different physician, was presented to Hospice along with a request that Hospice allow the plaintiff to receive workers’ compensation benefits. On March 2, 2010, Hospice sent the plaintiff a letter explaining that it could not accommodate the plaintiffs driving induced stress by returning her to her previous position, as she had requested, because her previous position no longer existed. Hospice suggested that the plaintiff could qualify for certain benefits under the Family and Medical Leave Act (act), General Statutes § 31-51kk et seq., because she was unable to perform an essential function of her job. Hospice reiterated these suggestions to the plaintiff in letters dated March 10 and 23, and April 2, 2010. In a letter sent by the plaintiff to Hospice dated April 9, 2010, she threatened to file with the state insurance commissioner a complaint against Hospice if it did not comply with her previous demand that she receive subsidized medical benefits rather than the benefits program provided by the act.

A

The plaintiff first claims that there is a genuine issue of material fact regarding whether the individual defendants could be found hable for neghgent infliction of emotional distress. We disagree.

To prevail on a claim of neghgent infliction of emotional distress, the plaintiff must prove: “(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.” Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). “[Negligent infliction of emotional distress in the employment context arises only when it is based upon unreasonable conduct of the defendant in the termination process . . . .” (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 750, 792 A.2d 752 (2002). An individual “may not be found hable for neghgent infliction of emotional distress arising out of conduct occurring within a continuing employment context, as distinguished from conduct occurring in the termination of employment.” Id., 762-63.

The plaintiff argues that the individual defendants engaged in neghgent conduct sufficient to meet the four elements of negligent infliction of emotional distress. She further contends that her employment was constructively terminated due to an inhospitable workplace. As support for this claim, the plaintiff relies on the decision of the employment security review appeals referee, who allowed her to collect unemployment benefits. The plaintiff claims that constructive termination is sufficient to meet the termination requirement set forth in Perodeau. We are not persuaded.

The trial court held that constructive termination did not satisfy the termination requirement for a negligent infliction of emotional distress claim in an employment context, relying on a Superior Court case, Michaud v. Farmington Community Ins. Agency, Superior Court, judicial district of Hartford, Docket No. CV-01-0806951 (September 25, 2002) (33 Conn. L. Rptr. 206). While we are not bound by the Superior Court’s decision in Michaud, we choose to follow its sound rationale in our analysis of this case. “[T]he language of Perodeau itself is restrictive. The holding is phrased narrowly: the tort is maintainable only for ‘conduct occurring in the termination of employment.’ Language such as conduct in the ‘discharge process’ is not used; such language perhaps would contemplate a more expansive time frame. Conduct justifying the termination, or, on the other hand, compelling the resignation, is not itself the actual termination. Termination means ending, not the conduct which causes the ending.” Id.

As the court in Michaud noted, the language used in Perodeau is supported by policy rationales that buttress the finding that termination must be a condition precedent to a negligent infliction of emotional distress claim in the employment context. Specifically, our Supreme Court in Perodeau determined that “individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace.” Perodeau v. Hartford, supra, 259 Conn. 757. The court also was aware that ensuring every employee’s contentment, so as to ameliorate the threat of lawsuit, potentially could stifle productivity. Id., 758. The court concluded that because of the “inherently competitive and stressful nature of the workplace and the difficulties surrounding proof of emotional distress, extending the tort of negligent infliction of emotional distress to ongoing employment relationships would open the door to spurious claims.” Id.

Both the Supreme Court’s language and its policy rationales in Perodeau regarding the termination requirement indicate that termination is distinct from events that occur over the course of the employment relationship. The plaintiff alleges that her employment was constructively terminated due to a series of events occurring during her employment. The events that occurred, regardless of their impact on her decision to resign from her position at Hospice, do not satisfy the termination requirement set forth in Perodeau. The trial court therefore properly held that the plaintiff could not prevail on her claim for negligent infliction of emotional distress.

B

The plaintiff next claims that there is a genuine issue of material fact regarding whether the individual defendants could be hable for intentional infliction of emotional distress. We disagree.

“In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe. . . . Whether a defendant’s conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine.” (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).

“Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society .... Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Citations omitted; internal quotation marks omitted.) Id., 210-11.

The plaintiff alleges that she suffered emotional distress as a result of harassment and humiliation, denial of supplies she required to perform her job and forced excessive commuting. The plaintiff claims that she was forced to drive hundreds of miles unnecessarily, including a commute made to Greenwich on February 10, 2010, that caused her emotional distress. The plaintiff further alleges that the individual defendants conspired to engage in a pattern of harassment and infliction of emotional distress that put her under relentless and severe pressure to quit her job. She claims that the individual defendants did this in order to ingratiate themselves with the upper levels of the chain of command at Hospice.

We determine that the court correctly held that there was no genuine issue of material fact that the individual defendants’ actions were not extreme and outrageous. A vindictive conspiracy to terminate a plaintiffs employment, even if true, would not necessarily be sufficient to state a claim for intentional infliction of emotional distress. Gillians v. Vivanco-Small, 128 Conn. App. 207, 213, 15 A.3d 1200 (allegations that defendant coworkers, motivated by personal vendetta, conspired to create hostile work environment that included falsely accusing plaintiff of racial and sexual bias and giving plaintiff negative performance evaluations were insufficient to state claim of intentional infliction of emotional distress), cert. denied, 301 Conn. 933, 23 A.3d 726 (2011). This court has determined that defendants who harassed, intimidated, defamed and then disciplined a plaintiff without proper investigation did not engage in conduct that was extreme and outrageous. Tracy v. New Milford Public Schools, 101 Conn. App. 560, 569, 922 A.2d 280 (affirming trial court’s granting of defendants’ motion to strike because allegations, when read in light most favorable to plaintiff, did not rise to level of extreme and outrageous conduct), cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). Furthermore, the agreement indicated that the plaintiff would be driving as part of her job, and that she would have to bring her own materials to work with her in Branford and Shelton. In light of these two provisions of the agreement, the trial court concluded properly that it was not extreme and outrageous behavior to deprive the plaintiff of office equipment or to require her to drive. Accordingly, the plaintiffs claim of intentional infliction of emotion distress fails to meet the threshold for extreme and outrageous conduct with regard to any of the defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

       The individual defendants are officers and employees of Hospice.

       The plaintiff does not appeal from the judgment rendered on counts one and two of the complaint.

       The benefits referenced by the plaintiffs letter are available only after the employment relationship is severed.

       The plaintiff attempted to recover unemployment benefits, and the administrator of the unemployment compensation act ruled that the plaintiffs separation from her employment was nondisqualifying. Hospice appealed, and the appeals referee found, after a de novo review, that the plaintiff had resigned from her position at Hospice. He further found that the plaintiff was entitled to benefits because she was forced to resign after it was determined that she suffered from a medical condition that prevented her from performing an essential function of her job.

       The plaintiff also describes another distressing commute she made from Shelton to Waterbury in whiteout conditions, only to find no record of an appointment made by her supervisor when she arrived. This commute occurred, however, prior to the agreement, and is therefore subject to the release provision.