author: ROBINSON, J.

text:
    ED LALLY AND ASSOCIATES, INC. v. DSBNC, LLC, ET AL.
    (AC 34497)
    Robinson, Alvord and Keller, Js.

      Argued April 11
    officially released September 17, 2013

      John H. Parks, with whom was George C. Schober, for the appellants (named defendant et al.).

      Patrick W. Boatman, with whom were Benjamin R. Plourd and, on the brief, Jenna N. Sternberg, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendants DSBNC, LLC, D.H. Williams, Inc., Moosehom Road, LLC (Moosehom, LLC), and John H. Parks appeal from the judgment of the trial court rendered in favor of the plaintiff, Ed Lally & Associates, Inc., following a court trial, for the foreclosure of two mechanic’s hens, breach of contract and quantum meruit. On appeal, the defendants claim that the trial court (1) did not have subject matter jurisdiction to find in favor of the plaintiff on the foreclosure of its mechanic’s hens because the mechanic’s hens were invalid, (2) improperly found that the plaintiff had proven damages on the breach of contract count, (3) improperly found in favor of the plaintiff on the quantum meruit count because the court previously had found in favor of the plaintiff on the breach of contract count, (4) erred in its rulings on the defendants’ amendments to their answer, special defenses and counterclaim, and (5) improperly ruled that evidence of the plaintiffs ethical violations was not relevant. We affirm the judgment of the trial court.

The following facts, either undisputed or found by the trial court, and procedural history are necessary for our resolution of this appeal. In 2003, D.H. Williams, Inc., a corporation in which Douglas Williams was an officer, owned property in Granby located at 30 Moose-hom Road and 33 Moosehom Road. Williams approached Edward Lally, the sole proprietor of the plaintiff, to provide engineering and surveying services on the property. After reviewing the existing maps, soil reports and data that had been generated by a previous engineering firm and speaking to the town planner of Granby, Lally agreed to accept the project, but indicated that Williams could not be in town during the design or approval process and that Williams’ name could not be associated with the project because the town of Granby Inland Wetlands and Watercourses Commission was unhappy with Williams.

After this initial meeting, Williams brought Victor Shi-bley, a developer from Massachusetts, to a second meeting with Lally where they discussed the project. At the request of Williams, Lally drafted a proposal dated August 5, 2003, addressed to Victor Shibley Homes for a subdivision of approximately six lots on the property. The proposal listed seventeen tasks grouped into four phases that the plaintiff would need to complete as well as the cost of each task. Most of the tasks were billed under a flat fee; two items—informal review and meetings—were designated as hourly billing. The proposal also included a section for “other services,” which included additional work, reproductions, and postage, delivery and FedEx charges. The additional work section noted that “[cjhanges to the plans or additional work requested by the Client or required by the Town, State, Utility Companies, or others shall be billed hourly to the Client.” Under the section entitled, “Terms of Agreement,” the proposal noted that “[ajfl fees are estimated based on normal anticipated Surveying services expected for a project of this type. If extraordinary services are required due to site conditions, Client changes or governmental agencies, [the plaintiff] reserves the right to bill for such services on an hourly basis at their standard rate.”

Shibley signed the proposal, but title to the property remained in the name of D.H. Williams, Inc. Laily’s primary contact for the property continued to be Williams. In April, 2004, Williams formed A&J Development, LLC, and thereafter instructed Laily to bill A&J Development, LLC, for work on the project. No one other than Williams was authorized to act on behalf of D.H. Williams, Inc., during that time.

In 2005, Williams requested an update on the status of the project. By letter dated March 28, 2005, and addressed to A&J Development, LLC, Laily sent Williams a project update (2005 update). The letter, the basis of which was the proposal that had been accepted by Shibley, denoted which tasks had been completed and provided for an increased price for tasks that had not yet been completed. Attached to a fax transmittal sheet dated May 31, 2005, Laily received a revised copy of the 2005 update from Parks. A&J Development, LLC, had been crossed out as the addressee and replaced with the following: “John H. Parks, Moosehom Road LLC, 352A Billings Road, Somers, CT 06071.” Also, on the last page of the 2005 update, was the handwritten notation “Accepted” and the signatures for Parks and for Moosehom Road, LLC, by Parks as managing member. The fax transmittal sheet also included a message that stated: “I have prepared and signed the organizational papers for a new LLC known as Moosehom Road LLC. These papers are being sent to the Secretary of State’s office. Once they have been accepted, D.H. Williams, Inc. is signing a deed to Moosehom Road LLC. I am the managing member of Moosehom Road LLC. I and Moosehom Road LLC would like to accept the proposal you sent to Douglas Williams and D.H. Williams, Inc. on 3/28/05. Enclosed is a signed copy of your proposal. I am mailing you a check for $2,500.00.1 would like you to begin your work. If you need more money let me know.” Subsequently, by a deed dated July 5, 2005, and recorded on July 18,2005, D.H. Williams, Inc., transferred title of 33 Moosehom Road to Moose-hom, LLC.

Approximately one month after Lally received the signed 2005 update from Parks, Lally, Williams and Parks met to discuss the project. Lally informed Parks and Williams of the difficulties with the project, including the need for an agreement with two abutting property owners, the Champagnes and the Chamberlains, as well as the lack of adequate frontage. Lally also discussed whether the property would support ten lots rather than the six lots originally proposed. After the meeting, Lally believed that Williams continued to direct the work of the project and would act as the representative for Parks.

Lally evaluated the feasibility of a ten lot subdivision and determined that the subdivision could only support eight lots if waivers were obtained. He communicated that information to Williams and delivered progress plans at least eight times to Williams’ office. Progress plans dated March 7, 2006, were given to Williams. The progress plans showed that the proposed private road providing access to the subdivision would cross over parts of property known as lot 11 or 25 Moosehom Road. After March, 2006, work on the project ceased for nearly one and one-half years because the issues of getting a road right-of-way, grading rights and the relocation of the drive on lot 11 had not been resolved.

In March, 2006, Parks filed the articles of organization for DSBNC. He dissolved Moosehom, LLC, in April, 2007, but did not transfer title to 33 Moosehom Road from Moosehom, LLC, to DSBNC, LLC, until August, 2009. Meanwhile, in December, 2008, D.H. Williams, Inc., conveyed 30 Moosehom Road to DSBNC, LLC.

In August, 2007, Lally met with Williams and Parks regarding the problems with the project. They discussed the fact that the property needed zoning waivers because they were asking for more lots than were normally granted and the fact that the relationship with the Champagnes was not very good. At that meeting, Lally was asked to communicate with Roy Champagne to come to a resolution so that he would not object to the waivers. Lally contacted Roy Champagne on two separate occasions, but no resolution was ever reached.

At some point, the parties decided to pursue approval by the Department of Energy and Environmental Protection (department) before seeking approval from the town because they could get approval for the major design components before resolving the subdivision problems. In December, 2008, Lally met with Parks to discuss the progress with the project and the progress with the submission to the department. Parks e-mailed Lally to confirm that the meeting had taken place and that the date of submission of the application to the department was to be January 31, 2009. The submission, which included eleven maps and a storm water system analysis report dated April 14, 2009, was to be submitted along with an application form that is found on the department’s website. The last date that work was performed on the project was on April 22, 2009, when one of the plaintiffs employees, Thomas J. Bar-resi, spent two hours completing the department’s application form.

The plaintiff subsequently submitted to Parks an invoice dated March 31, 2009, for work that had been performed since the December, 2008 meeting between Lally and Parks regarding the submission to the department. The amount sought for the work was $47,538. Parks responded by letter disputing the bill. After receiving Parks’ letter, Lally reviewed the time slips that had been submitted and performed a final reconciliation of the account. The final calculation of the amount due to the plaintiff was $44,570.50.

On July 14, 2009, the plaintiff filed a mechanic’s lien in the amount of $44,570.50 on 30 Moosehom Road for labor and services rendered that commenced on October 5, 2003, and ended on April 22, 2009. The plaintiff asserted that it had entered into an agreement with D.H. Williams, Inc., to perform services on 30 Moose-hom Road and that the agreement subsequently was amended such that the plaintiff performed services for Shibley Construction, Ltd., A & J Development, LLC, Moosehom, LLC, and Parks. The hen stated that 30 Moosehom Road was transferred to DSBNC, LLC. The same day, the plaintiff also filed a mechanic’s hen in the amount of $44,570.50 on 33 Moosehom Road for labor and services rendered that commenced on September 12, 2005, and ended on April 22, 2009. The plaintiff asserted that it had entered into an agreement with Moosehom, LLC, to perform services on 33 Moosehom Road. Despite filing a separate mechanic’s lien for each property, the plaintiff only sought $44,570.50 in total for the work that had been performed.

On March 22, 2010, the plaintiff filed a six count complaint against the defendants. Counts one and two sought the foreclosure of the mechanic’s liens on 30 Moosehom Road and 33 Moosehom Road, respectively. Count three alleged breach of contract as to D.H. Williams, Inc. Count four alleged breach of contract against Moosehom, LLC, and Parks. Counts five and six sounded in quantum meruit and unjust enrichment, respectively, as to all of the defendants.

A court trial took place on January 12, 19, 24 and 25, 2012. At the conclusion of closing arguments, the court in an oral decision rendered judgment in favor of the plaintiff on all counts of the defendants’ counterclaim. The court also rendered judgment in favor of the plaintiff on counts one and two of the complaint, which sought foreclosure of the mechanic’s liens, count four, which alleged breach of contract against Moosehom, LLC, and Parks, and count five, which alleged quantum meruit against all of the defendants. It rendered no judgment on count three, as it had been withdrawn during closing arguments, or on count six, which alleged unjust enrichment, as it was pleaded as an alternative to the contract claim. It found the value of services rendered to be $44,570.50, rendered judgment of strict foreclosure with respect to the mechanic’s liens and awarded prejudgment interest at the rate of 10 percent. Thereafter, the court set law days to commence on April 23, 2012. This appeal followed. Additional facts will be set forth as necessary.

I

The defendants claim that the court lacked subject matter jurisdiction to hear this matter because the two mechanic’s liens filed by the plaintiff were invalid in that they failed to comply with the statutory requirements of General Statutes §§ 49-33 and 49-34. They argue that the mechanic’s hens were invalid because the plaintiff improperly (1) liened each property for services that had been provided on the other property, (2) tacked successive owners and contracts together in an attempt to enlarge the commencement date of its mechanic’s hens, (3) made sworn statements on the certificate of mechanic’s hens that were false, (4) filed mechanic’s hens against after-acquired property, and (5) filed the mechanic’s hens more than ninety days after the plaintiff ceased its work. The defendants maintain that the failure to comply with the mechanic’s hen statutory requirements renders the hens invalid and deprived the court of jurisdiction over the action to foreclose on the hens. Because the alleged violations do not implicate the subject matter jurisdiction of the court and the defendants did not properly raise these arguments to the trial court, we decline to review the merits of the defendants’ claim.

“[T]he question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time.” (Emphasis omitted; internal quotation marks omitted.) Louis Gherlone Excavating, Inc. v. McLean Construction Co., 88 Conn. App. 775, 779-80, 871 A.2d 1057, cert. granted on other grounds, 274 Conn. 909, 876 A.2d 1201 (2005) (appeal withdrawn February 3, 2006). “Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. ... A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. ... It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. . . .

“Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute. . . . [W]e have maintained the distinction between these concepts. See, e.g., Artman v. Artman, 111 Conn. 124, 130, 149 A. 246 (1930) ([i]f it applied any wrong rule of law to the situation, it was not acting without jurisdiction but in the erroneous exercise of its jurisdiction) . . . .” (Citations omitted; internal quotation marks omitted.) Amodio v. Amodio, 247 Conn. 724, 727-29, 724 A.2d 1084 (1999).

Although the defendants purport to challenge the jurisdiction of the court to render judgment in favor of the plaintiff on the mechanic’s liens, in reality they are challenging whether the court properly exercised its authority given their assertion that the mechanic’s hens were invalid. The appropriate avenue to challenge the validity of a mechanic’s hen, however, is by way of a special defense. “Historically, defenses to a foreclosure action have been limited to payment, discharge, release or satisfaction ... or, if there had never been a valid lien. . . . The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. ... A valid special defense at law to a foreclosure proceeding must be legally sufficient and address the making, validity or enforcement of the mortgage, the note or both. ... No facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Louis Gherlone Excavating, Inc. v. McLean Construction Co., supra, 88 Conn. App. 781.

In the present case, there were no special defenses properly before the court when the trial commenced. See part IV of this opinion. Thus, the trial court did not consider whether the mechanic’s liens were valid. The defendants are not allowed to challenge the validity of the mechanic’s liens for the first time on appeal. “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . . [T]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge. . . . Further . . . [t]he fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed .... The plaintiff, therefore, may not raise this argument for the first time on appeal.” (Citations omitted; internal quotation marks omitted.) Noonan v. Noonan, 122 Conn. App. 184, 190-91, 998 A.2d 231, cert. denied, 298 Conn. 928, 5 A.3d 490 (2010). Because the court had subject matter jurisdiction to adjudicate the foreclosure of the plaintiffs mechanic’s liens and the defendants did not properly challenge the validity of the plaintiffs mechanic’s hens before the court, we decline to review the merits of the defendants’ claim.

II

The defendants next claim that the court improperly found that the plaintiff had proven the damages elements on its breach of contract count. They argue that the only evidence presented by the plaintiff to support its damages calculations was exhibit 53, a document that did not provide a sufficient basis for estimating the amount of damages with reasonable certainty, and Lally’s testimony related to that exhibit. We disagree.

The following additional facts are relevant to our resolution of the defendants’ claim. At trial, the plaintiff presented testimony from Lally regarding damages. Lally testified that the account for the project was current when Parks and Lally met in December, 2008, to discuss the submission of the application to the department. He further testified that the invoice dated March 31, 2009, represented work that had been completed in the months of December, January, February and March, even though the invoice stated that the dates of service were from March 1 to 31, 2009, because he had not yet figured out how to modify the service dates generated by the computer program. Lally testified that the invoice total was $47,538 and that the invoice represented services for work performed pursuant to the 2005 update and for extra work done to prepare for the submission to the department. Lally also testified that the 2005 update did not include a budget for the department application.

Lally testified that he sent the March, 2009 invoice to Parks and that he received a response by Parks disputing the bill. In the letter from Parks, which was admitted as a full exhibit at trial, Parks questioned how Lally could have worked in one month the amount of hours that would have supported the bill, questioned whether payments had been credited, contested charges for what appeared to be duplicative work, and challenged charges over the original quote. Lally further testified that he replied by letter detailing why the charges were greater than those listed in the 2005 update. In that letter, also a full exhibit at trial, Lally noted that the scope of the project had increased from six lots to eight lots, which required additional work and the performance of services that had been designated as complete; that the preparation and submission of the application to the department was not included in the 2005 update; that additional mapping work was required because the mapping that existed in March, 2005, was later found to be inadequate or inaccurate; that the failure to obtain grading rights to abutters’ properties resulted in extra time to calculate and design the road, prepare grading plans and design and draft erosion controls; that on several occasions Williams had requested changes to the plans that required additional work; that site conditions as well as client changes made the design extremely complex; and that the fees in the 2005 update were no longer valid pursuant to a clause in the update. The letter also addressed Parks’ other concerns, stating that the bill represented the work of three employees working more than four months, that the services were not duplicative, but represented work that had to be completed again for the various reasons that he had stated previously, and that, if Parks reviewed all of the previous invoices, he would see that different payment credits had been applied to different project numbers and, thus, all payments had been credited. After receiving Parks’ letter, Lally testified that he reviewed the time slips that had been submitted for the project and performed a final reconciliation of the account. The July 8, 2009 invoice calculated the amount due to the plaintiff as $44,570.50. Lally testified that the July, 2009 invoice formed the basis for the amount sought in the mechanic’s liens.

Lally also testified that he had prepared a document, admitted into evidence as exhibit 53, to demonstrate that not all of the work billed on the March, 2009 invoice was related to the department application. He explained that the document represented the charges billed in the March, 2009 invoice that corresponded to the tasks outlined in the 2005 update. Exhibit 53 listed seven items, the total amount of the contract price for each item, pursuant to the amounts found in the 2005 update, and the amount that had been previously billed for each item, pursuant to a statement of accounts that was also admitted as a full exhibit. Lally explained that the difference between the total contract amount and the total amount previously billed represented the amount due under the flat fee portion of the 2005 update that was billed on the March, 2009 invoice. He further explained that the difference between the mechanic’s lien amount and the March, 2009 flat fee billing represented extra work that was charged at an hourly rate.

“ [T]he trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty. . . . Thus, [t]he court must have evidence by which it can calculate the damages, which is not merely subjective or speculative, but which allows for some objective ascertainment of the amount.” (Citation omitted; internal quotation marks omitted.) Duplissie v. Devino, 96 Conn. App. 673, 699, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).

Although the defendants claim that exhibit 53 and Lally’s testimony related to that exhibit was the only evidence of the plaintiffs damages and that exhibit 53 did not provide a sufficient basis to support a calculation of damages, the record reveals that there was additional testimony by Lally, as well as exhibits on which the court could have relied in making its determination of damages. In addition to exhibit 53, which addressed only a portion of the March, 2009 invoice, the plaintiff submitted as exhibits Lally’s letter to Parks, explaining the charges on the March, 2009 invoice, the July, 2009 invoice and supporting time slips, and the statement of accounts, which showed all of the previous payments that Parks had made prior to the March, 2009 invoice. Moreover, Lally testified about the work that was performed after his meeting with Parks in December, 2008, about the way he calculated what was owed to the plaintiff and about the fact that the department application was not included in the 2005 update. Because there was sufficient evidence before the court to allow it to estimate the amount owed to the plaintiff with reasonable certainty, the court’s finding with respect to damages was not clearly erroneous.

Ill

The defendants next claim that the court improperly found in favor of the plaintiff on the quantum meruit count because it previously had found in favor of the plaintiff on the breach of contract count. Although we agree that the court improperly found in favor of the plaintiff on the quantum meruit count with respect to D.H. Williams, Inc., Moosehom, LLC, and Parks, we conclude that it was harmless error. We disagree with the defendants with respect to the court’s finding as to DSBNC, LLC.

As previously noted, in the plaintiffs complaint, count four alleged breach of contract against Moose-hom, LLC, and Parks, and count five sounded in quantum meruit as to all of the defendants. In its oral memorandum of decision rendering judgment in favor of the plaintiff at the conclusion of trial, the court stated: “With respect to the factual underpinnings of this decision, the court finds that Mr. Lally was hired by Mr. Williams and his two nominees commencing in 2003. The court finds that (I’m using the personal names to include corporations when appropriate) when Mr. Parks stepped into the shoes of the ongoing agreement with Mr. Williams that Mr. Lally accepted that arrangement and proceeded to do work in accordance with the original contract between Williams and his nominees and additionally for Moosehom Road, LLC, Mr. John Parks and eventually DSBNC, LLC.

“The court finds that the plaintiff gave ample warning of the difficulties with the road on the project, which the court finds to have included the property abutting the bulk of the proposed cul-de-sac. The court finds that the work done on 30 [Moosehom Road] and 33 Moosehom Road was at all times part and parcel of the same contract. The court finds that Mr. Lally has comported himself professionally and has done the work that he claims.

“The court finds its value to be the claimed amount of $44,570.50. The court also finds that its value would be [the same] if necessary for a quantum meruit recovery but enters no judgment on count six, since it is pleaded as an alternative to the contract claim.”

Thereafter, the court issued an order rendering judgment of strict foreclosure in favor of the plaintiff on counts one and two, rendering judgment in favor of the plaintiff on counts four and five, noting that count three had been withdrawn during oral argument, and rendering no judgment on count six.

We begin with our standard of review and relevant legal principles. “As it is a question of law when a trial court determines whether an equitable doctrine of recovery is applicable in any particular case, we utilize a plenary standard of review.” David M. Somers & Associates, P.C. v. Busch, 283 Conn. 396, 408, 927 A.2d 832 (2007).

“Quantum meruit is a doctrine allowing for recovery based upon common law principles of restitution, [and is a] noncontractual [action] by which a party may recover despite the absence of a valid contract (Internal quotation marks omitted.) 300 State, LLC v. Hanafin, 140 Conn. App. 327, 330, 59 A.3d 287 (2013). “[It is] available to a party when the trier of fact determines that an implied contract for services existed between the parties, and that, therefore, the plaintiff is entitled to the reasonable value of services rendered.” (Internal quotation marks omitted.) Pamoff v. Mooney, 132 Conn. App. 512, 519, 35 A.3d 283 (2011). “The lack of a remedy under a contract is a precondition to recovery based on unjust enrichment or quantum meruit.” (Internal quotation marks omitted.) 300 State, LLC v. Hanafin, supra, 330. Thus, “[a] party may not recover the reasonable value of services rendered, pursuant to the doctrine of quantum meruit, , when the actions for which it seeks relief were governed by an express contract.” David M. Somers & Associates, P.C. v. Busch, supra, 283 Conn. 408.

Although “a party cannot be held hable simultaneously for breach of an express contract and an implied in law contract governing the same subject matter . . . [a] judgment in favor of a party on both an express and an implied in law contract . . . does not constitute reversible error in every instance.” (Citations omitted; internal quotation marks omitted.) 300 State, LLC v. Hanafin, supra, 140 Conn. App. 331. If there is sufficient evidence to support a judgment under either theory and the plaintiff does not receive a double recovery, the court will conclude that the error was harmless. Id., 331-32.

In the present case, the court found in favor of the plaintiff on the breach of contract count as to Moose-hom, LLC, and Parks. Thus, the defendants are correct in their assertion that the court improperly found in favor of the plaintiff on the quantum meruit count with respect to Moosehom, LLC, and Parks. The court, however, did not provide the plaintiff with a double recovery, rendering judgment in the amount of $44,570.50. Moreover, on the basis of our review of the record, there was sufficient evidence to support a judgment under either theory. With respect to Moosehom, LLC, and Parks, we conclude that the court’s ruling on the breach of contract and quantum meruit claims was not reversible error because it is harmless.

With respect to D.H. Williams, Inc., the court found that there was a contract between the plaintiff and D.H. Williams, Inc. Because the court found that the actions for which the plaintiff sought relief were governed by an express contract, the defendants are correct in asserting that the court should not have found in favor of the plaintiff with respect to D.H. Williams, Inc., on the quantum meruit count. For the same reasons as we previously stated, however, we conclude that the court’s ruling on the quantum meruit count as to D.H. Williams, Inc., was not reversible error.

With respect to DSBNC, LLC, the court found that Parks stepped into the shoes of Williams, thus giving rise to an implied contract between the plaintiff and DSBNC, LLC, because Parks was the sole member of DSBNC, LLC. On the basis of the court’s implicit finding that an implied contract existed between the plaintiff and DSBNC, LLC, the court did not err in finding in favor of the plaintiff on the quantum meruit count with respect to DSBNC, LLC. Accordingly, the defendants’ claim fails.

IV

The defendants next claim that the court erred in its rulings on the defendants’ amendments to their answer, special defenses and counterclaim. They maintain that the court improperly granted the plaintiffs motion to strike their third amended answer, special defenses and counterclaim because their special defenses and counterclaim were legally sufficient and because the court overlooked their request for leave to amend that had been filed. The defendants also claim that the court improperly denied their request for leave to amend their fourth amended answer, special defenses and counterclaim. Because the defendants waived their right to appeal from the court’s granting of the plaintiffs motion to strike their third amended answer, special defenses and counterclaim by filing a fourth amended answer, special defenses and counterclaim, we do not address their challenge to the court’s granting of the plaintiffs motion to strike. Additionally, we are not persuaded that the court abused its discretion in sustaining the plaintiffs objection to the defendants’ fourth amended answer, special defenses and counterclaim.

The following additional procedural history is necessary for our resolution of this claim. After the plaintiff filed its complaint, DSBNC, LLC, subsequently filed motions to discharge the mechanic’s liens. At a hearing on the motions, the parties agreed to have the matter placed on the expedited trial list, and the trial was scheduled to begin on January 12, 2011. On December 9, 2010, one month before trial was scheduled to commence, Moosehom, LLC, and DSBNC, LLC, filed a motion for a continuance requesting additional time to resolve certain issues that had been revealed during discovery. The same day, the court granted the defendants’ motion and scheduled trial to commence on July 12, 2011.

Parks filed an answer, special defenses and counterclaim on behalf of DSBNC, LLC, D.H. Williams, Inc., and Moosehom, LLC (LLC defendants). The answer contained eight special defenses and an eight count counterclaim. He subsequently filed an identical answer, special defenses and counterclaim on his own behalf. The plaintiff filed a motion to strike addressed both to the LLC defendants’ and Parks’ answers, moving to strike all eight of their special defenses and counts two through eight of the counterclaim as being legally insufficient because the special defenses provided only legal conclusions and because the counterclaim failed to state causes of action.

The LLC defendants thereafter filed an amended answer, special defenses and counterclaim in which they revised and expanded their special defenses. The same day that the LLC defendants filed their amended answer, special defenses and counterclaim, Moosehom, LLC, filed an objection to the plaintiffs motion to strike. It argued that the amended special defenses superseded the original special defenses and rendered the motion to strike moot. It further argued that the allegations in the counterclaim were against the plaintiff, not only for its own actions, but also for the actions of its agents. The plaintiff responded, arguing that the amended answer, special defenses and counterclaim were improperly filed and did not supersede the original answer, special defenses and counterclaim. Thus, it renewed its motion to strike the original answer, special defenses and counterclaim of the LLC defendants and Parks.

After oral argument, the court granted in part the plaintiff’s motion to strike. In its order dated April 4, 2011, the court stated: “Motion to strike all special defenses is granted. Motion is granted to strike counterclaims 2, 4, 6, and 8; motion to strike counterclaims 3, 5, and 7 is denied. Defendant’s amended answer with amended special defenses and counterclaims is not properly filed. It must be requested to be filed and the request granted by a court for it to be [considered by the court.” Thus, the remaining counts of the counterclaim were breach of agreement, abuse of process, fraud and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

Following the court’s order, Moosehom, LLC, and DSBNC, LLC, filed a request for leave to amend their answer, special defenses and counterclaim as well as a second amended answer, special defenses and counterclaim. After the plaintiff moved to strike all of the special defenses and counts one, two, three, four and eight of the counterclaim, Moosehom, LLC, and DSBNC, LLC, withdrew their second amended answer, special defenses and counterclaim.

On May 25,2011, seven weeks before the rescheduled trial was due to begin on July 12, 2011, DSBNC, LLC, Moosehom, LLC, and Parks filed a third amended answer, special defenses and counterclaim. They asserted seven special defenses as to count one, two special defenses as to count two and two special defenses as to all counts. DSBNC, LLC, Moosehom, LLC, and Parks also altered their counterclaim from the second amended answer, special defenses and counterclaim. They removed counts alleging a violation of the Connecticut Antitrust Act, General Statutes § 35-24 et seq., and civil conspiracy. They added a count for civil conversion. Thus, the counterclaim alleged (1) breach of agreement, (2) breach of the implied covenant of good faith and fair dealing, (3) fraud by nondisclosure, (4) abuse of process, (5) fraud by misrepresentation, (6) a violation of CUTPA, and (7) civil conversion.

Thereafter, the plaintiff filed a motion to strike all of the special defenses and counts one, two, three and seven of the counterclaim, asserting that they were legally insufficient. Nearly one month after filing its third amended answer, special defenses and counterclaim, on June 21, 2011, DSBNC, LLC, Moosehom, LLC, and Parks filed a request for leave to amend their answer, special defenses and counterclaim and attached the previously filed third amended answer, special defenses and counterclaim.

At oral argument on June 27, 2011, the plaintiffs counsel noted that the request for leave to amend was filed after the plaintiff had filed its motion to strike. He questioned whether the subsequent pleading would be problematic and whether the parties could proceed with oral argument given that the trial was scheduled to commence in two weeks. The court, Aurigemma, J., indicated that it would hear argument, especially because trial was impending. The plaintiffs counsel then argued that allowing the special defenses and counterclaim would substantially change the case and require additional discovery two weeks before trial. He conceded that some of the special defenses and counts of the counterclaim had been previously pleaded and stricken, but maintained that they were not legally sufficient. The defendants’ counsel argued that the special defenses and counterclaim were legally sufficient and that only one count, civil conversion, had not been pleaded previously. On July 8, 2011, four days before the trial was scheduled to begin, the court, Graham, J., rescheduled the trial date to November 9,2011, because Judge Aurigemma had not yet ruled on the motion to strike.

Judge Aurigemma granted the motion to strike on September 1, 2011. In the memorandum of decision, she noted that the court previously had granted the plaintiffs motion to strike the defendants’ original answer, special defenses and counterclaim and that the order required the defendants to file a request to amend in order for any amended answer, special defenses and counterclaim to be considered properly filed. She also noted that Practice Book § 10-60 provides the procedure for amending pleadings. She concluded that on “May 5, 2011, defendants John H. Parks, Moosehom Road, LLC, and DSBNC, LLC, filed the Third Amended Answer, Special Defenses and Counterclaims without following the procedure set forth in Practice Book § 10-60 and in direct contravention of the aforementioned Order of this court. Therefore, the Third Amended Answer, Special Defenses and Counterclaims are ordered stricken, and the defendants must file a motion to amend (to be ruled upon by the court) or a request to amend (to be ruled upon by the court if the plaintiff timely objects) in the event they wish to replead.”

On September 8, 2011, the defendants filed a request for leave to amend their answer, special defenses and counterclaim and attached a fourth amended answer, special defenses and counterclaim. The special defenses and counterclaim set forth in the fourth amended answer, special defenses and counterclaim were identical to the ones set forth in the third amended answer, special defenses and counterclaim.

The plaintiff filed an objection two weeks later. It asserted that the parties had elected an expedited trial date in lieu of a discharge hearing and that the matter twice had been continued due to the defendants’ delay. The plaintiff further asserted that the second continuance was due to the defendants’ delayed filing of their third amended answer, special defenses and counterclaim. It averred that at the trial management conference that had been held on July 6, 2011, one week prior to the commencement of trial, the trial was rescheduled for November 9, 2011, because the defendants’ third amended answer, special defenses and counterclaim had not yet been ruled upon by the court. The plaintiff maintained that the defendants had filed their fourth amended answer, special defenses and counterclaim seven weeks before the commencement of the November 9, 2011 trial date and that to allow the amendment at that time would result in inevitable delay and postponement of the trial. Because, the plaintiff argued, it had “spent a great amount of time and resources towards addressing the repeated attempts by the defendants to amend the pleadings and/or delay the commencement of trial in this case,” it asked the court to sustain its objection.

The defendants filed a response to the plaintiffs objection to their request for leave to amend their answer, special defenses and counterclaim. They averred that their counsel at that time had entered an appearance on April 27, 2011, and that a request for leave to amend and a third party complaint were pending when he entered his appearance. They asserted that the third amended answer, special defenses and counterclaim was filed on May 25, 2011, to “in effect [clean] up prior pleadings filed by prior counsel” and that the request for leave to amend the third amended answer, special defenses and counterclaim was filed to address the procedural error raised by the plaintiff in its motion to strike. They maintained that the September 1, 2011 order granting the plaintiffs motion to strike did not take into account the fact that the defendants had filed a request for leave to amend on June 2, 2011, and that the trial date should be delayed.

The defendants additionally argued that the fourth amended answer, special defenses and counterclaim was identical to the third amended answer, special defenses and counterclaim and that the plaintiff had been on notice of the issues raised in those pleadings since they were filed. They argued that all of the relevant witnesses, including Williams, who was the primary witness for all of the allegations for the special defenses and counterclaim, had been deposed, such that there was no undue advantage with respect to discovery. The defendants maintained that they should not be held to a disadvantage because the plaintiffs motion to strike the defendants’ third amended answer, special defenses and counterclaim was not decided in a timely manner. They asked the court to overrule the plaintiffs objection and to not penalize them because of the “heavy burden the trial court bears with respect to recent cutbacks.” The court sustained the plaintiffs objection on October 14, 2011.

A

The defendants claim that Judge Aurigemma improperly granted the plaintiffs motion to strike their third amended answer, special defenses and counterclaim because she ignored the fact that they had filed a request for leave to amend their answer and because the special defenses and counterclaim were legally sufficient. We conclude that the defendants waived their right to challenge this ruling.

Practice Book § 10-44 provides in relevant part: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading . . . .” This court has stated that “[a]fter a court has granted a motion to strike, [a party] may either amend his pleading or, on the rendering of judgment, file an appeal. . . . The choices are mutually exclusive [as] [t]he filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original pleading.” (Internal quotation marks omitted.) Caltabiano v. L & L Real Estate Holdings II, LLC, 128 Conn. App. 84, 90, 15 A.3d 1163 (2011). Stated another way: “When an amended pleading is filed, it operates as a waiver of the original pleading. The original pleading drops out of the case and although it remains in the file, it cannot serve as the basis for any future judgment, and previous rulings on the original pleading cannot be made the subject of appeal.” Wilson v. Hryniewicz, 38 Conn. App. 716, 719, 663 A.2d 1073, cert. denied, 235 Conn. 918, 666 A.2d 610 (1996).

In the present case, the defendants filed their third amended answer, special defenses and counterclaim. The plaintiff filed a motion to strike their special defenses and counterclaim, and Judge Aurigemma granted the motion. One week later, the defendants filed a fourth amended answer, special defenses and counterclaim to comply with Judge Aurigemma’s order. By exercising their rights pursuant to Practice Book § 10-44 and filing an amended answer, special defenses and counterclaim within fifteen days of the granting of a motion to strike, the defendants waived their right to claim that the court erred in granting the motion to strike. See Caltabiano v. L & L Real Estate Holdings II, LLC, supra, 128 Conn. App. 90-91.

B

The defendants also argue that the court’s ruling sustaining the plaintiffs objection to the defendants’ fourth amended answer, special defenses and counterclaim was improper. We disagree.

The following standard of review and legal principles guide our review of this claim. “A trial court’s ruling on a motion of a party to amend its [pleading] will be disturbed only on the showing of a clear abuse of discretion. . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court. [An appellate] court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. ... It is the [plaintiff’s] burden in this case to demonstrate that the trial court clearly abused its discretion. . . .

“Under the statutes and rules of practice, the court may in its discretion, in a proper case, allow the filing of amendments to pleadings before, during and after trial. . . . Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . . The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial. . . . The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case.” (Citations omitted; internal quotation marks omitted.) Mastrolillo v. Danbury, 61 Conn. App. 693, 696, 767 A.2d 1232 (2001).

In the present case, the defendants’ answer, special defenses and counterclaim twice had been stricken due to their failure to follow the procedure properly for amending a pleading. The matter had been placed on the expedited trial list and originally scheduled for trial on January 12, 2011. The case had been continued once because the defendants sought extra time for discovery and a second time because the defendants had filed their third amended answer, special defenses and counterclaim seven weeks before the trial date that previously had been rescheduled at their request. When the defendants filed their fourth amended answer, special defenses and counterclaim on September 8, 2011, trial was scheduled to commence on November 9,2011, only two months later. Moreover, the defendants sought a delay of the trial date should the amendment be allowed. Given these facts before the court, it was not an abuse of discretion for the court to sustain the plaintiffs objection to the defendants’ fourth amended answer, special defenses and counterclaim.

V

The defendants claim that in three instances the court improperly ruled that evidence of the plaintiffs ethical violations was irrelevant. Because in their brief the defendants failed to address the issue of harmfulness in connection with this claim, we decline to review this inadequately briefed claim.

In their brief, the defendants argue that the court improperly granted the plaintiffs motion to quash the subpoenas duces tecum directed to Lally and two of the plaintiffs employees and sustained, on the ground of relevancy, the plaintiffs two objections when the defendants attempted to introduce evidence of the plaintiffs purported ethical violations. Although the defendants detailed what the evidence was and why they thought it was relevant, their only statement as to harmfulness was that “[t]he exclusion of this evidence was harmful to the Defendant.”

“The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) Deegan v. Simmons, 100 Conn. App. 524, 528, 918 A.2d 998, cert. denied, 282 Conn. 923, 925 A.2d 1103 (2007). “Furthermore, [b]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result. ... In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless.” (Internal quotation marks omitted.) Desrosiers v. Henne, 283 Conn. 361, 366, 926 A.2d 1024 (2007).

Although the defendants did argue that the court erred in excluding the evidence, they wholly failed to brief how the alleged error was harmful. “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. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation marks omitted.) Bicio v. Brewer, 92 Conn. App. 158, 172, 884 A.2d 12 (2005). Because the defendants have failed to adequately brief this claim, we decline to afford it review. See id.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       O’Grady & Parks, LLC, and Lienfactors, LLC, were also defendants that filed appearances in the case. The appeal form asserts that all of the defendants are appealing from the judgment of the trial court; however, with the exception of their appearances, neither O’Grady & Paries, LLC, nor Lienfactors, LLC, filed responsive pleadings in the action in the trial court. Moreover, Lienfactors, LLC, is represented by a different law firm than the rest of the defendants, who are represented by Parks. In his brief to this court, the defendants’ counsel signed the brief as “Defendant-Appellant,” but in the statement of facts and nature of proceedings, names DSBNC, LLC, D.H. Williams, Inc., Moosehom, LLC, and Parks as the defendants against whom the plaintiff filed suit. Thus, for the purposes of this appeal, we refer to DSBNC, LLC, D.H. Williams, Inc., Moosehom, LLC, and Parks as the defendants.

       Hereinafter, we refer to 30 Moosehom Road and 33 Moosehom Road as the property, collectively, and individually by name where appropriate.

       The project required approval from the department prior to construction due to a consent decree that had been rendered against Williams when he first acquired the property. See Rocque v. D.H. Williams, Inc., Superior Court, judicial district of Hartford, Docket No. CV-01-0807744 (February 11, 2003) (Hon. Thomas H. Corrigan, judge trial referee).

       The e-mail noted the date as January 31, 2008, but the court pointed out and the plaintiffs counsel confirmed that the year should have read 2009.

       The counterclaim alleged breach of agreement, abuse of process, fraud and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

       The defendants also appear to argue that the court improperly found in favor of the plaintiff on its breach of contract claim because the court found that Moosehom, LLC, and Parks “stepped into the shoes of the ongoing agreement” with Williams and that the plaintiff continued to do work in accordance with the original agreement. They maintain that the complaint alleges that the breach of contract occurred in relation to the March, 2005 contract signed by Moosehom, LLC, and Parks. They have not, however, provided us with a standard of review upon which to evaluate this claim and have cited to only one case that does not elucidate the issue that they attempt to raise. “We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” (Internal quotation mar'ks omitted.) State v. T.R.D., 286 Conn. 191, 213-14 n.18, 942 A.2d 1000 (2008). Consequently, we decline to review this improperly briefed argument.

       The defendants asserted as special defenses: (1) unclean hands, (2) improper tacking of successive contracts, (3) improper blanket mechanic’s liens, (4) the failure to allocate the amount due between the two properties, (5) invalid liens due to improper service, and the failure to attach the mechanic’s lien and return of service to the complaint, (6) failure to have consent or agreement, (7) improper lien on after-acquired property, and (8) fraudulent misrepresentations of fact in the mechanic’s liens. The eight count counterclaim sounded in (1) misrepresentation and breach of agreement, (2) slander of title, (3) abuse of process, (4) vexatious suit, (5) fraud, (6) interference with business expectations, (7) violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., and (8) civil conspiracy.

       As to count one, the LLC defendants asserted as special defenses (1) that the court lacked subject matter jurisdiction because the mechanic’s lien on 30 MooseHom Road was invalid due to the plaintiff’s failure to comply with § 49-33, known as the mechanic’s lien statute, in that (a) the lien was filed against an entity that was not an owner of the property, (b) the owner of the property at the time the lien was filed did not have an agreement with the plaintiff to provide services for the property, (c) the lien violated the rule against tacking successive owners to enlarge the time for filing a lien and the rule against liens on after-acquired property, (d) the lien failed to allocate the amount due for work performed on 30 Moosehom Road only, (e) the lien was improperly served on an agent who had been deceased since 2002 and (f) the lien was filed more than ninety days after the cessation of work, and (2) that count one was legally insufficient because the complaint did not have attached to it the agreement between the parties, a copy of the mechanic’s lien and the return of service. As to count two, the LLC defendants asserted as special defenses that the court lacked subject matter jurisdiction because the mechanic’s lien on 33 Moosehom Road was invalid due to the plaintiffs failure to comply with the mechanic’s hen statute in that the hen failed to allocate the amount due for work performed on 33 Moosehom Road only and that count two was legally insufficient because the complaint did not have attached to it the agreement between the parties, a copy of the mechanic’s hen and the return of service. Finally, the LLC defendants asserted as to all counts that the plaintiff had unclean hands.

       The only change was to the counterclaim. The second amended counterclaim sounded in (1) breach of agreement, (2) breach of the implied covenant of good faith and fair dealing, (3) fraud based on the actions of the plaintiff, (4) civil conspiracy, (5) abuse of process, (6) fraud based on the actions of the plaintiff’s agents, (7) a violation of CUTPA, and (8) a violation of the Connecticut Antitrust Act, General Statutes § 35-24 et seq.

       As to count one, DSBNC, LLC, Moosehom, LLC, and Parks asserted (1) that the court lacked subject matter jurisdiction because the mechanic’s lien on 30 Moosehom Road was invalid due to the plaintiffs failure to comply with § 49-33, known as the mechanic’s lien statute, in that (a) the lien was filed against an entity that was not an owner of the property, (b) the owner of the property at the time the lien was filed did not have an agreement with the plaintiff to provide services for the property and, (c) the lien violated the rule against liens on after-acquired property; and (2) that the lien was invalid because it (a) violated the rule against tacking successive owners to enlarge the time for filing a lien, (b) failed to allocate the amount due for work performed on 30 Moosehom Road only, (c) was filed more than ninety days after the cessation of work, and (d) was improperly served on D.H. Williams, Inc., because its agent had been deceased since 2002. As to count two, DSBNC, LLC, Moosehom, LLC, and Parks asserted that the court lacked subject matter jurisdiction because the mechanic’s lien on 33 Moosehom Road was invalid due to the fact that the lien violated the rule against liens on after-acquired property and that the lien amount was excessive because it included the total amount due on both 30 Moosehom Road and 33 Moosehom Road. As to the special defenses as to all counts, they asserted that the plaintiff had unclean hands due to ethics violations and that the plaintiff was barred from recovering on any agreements between itself and the defendants because the plaintiff had not acquired the certificate of registration, as is required by statute.

       The court file indicates that Judge Aurigemma entered an order granting the plaintiffs motion to strike the defendants’ third amended answer, special defenses and counterclaim on June 27,2011. That order, however, references her September 1,2011 memorandum of decision. Although the plaintiff notes the order in its counterstatement of the facts, none of the parties rely on the June 27, 2011 order in their argument on this issue.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. DUROSOLA CRUMP
    (AC 33467)
    DiPentima, C. J., and Alvord and Peters, Js.

      Argued March 8
    officially released September 17, 2013

      Pamela S. Nagy, assigned counsel, for the appellant (defendant).

      Joseph T. Corradino, senior assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and KiranRosenkilde and Peter Malfa, certified legal interns, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Durosola Crump, appeals from the judgment of conviction, rendered after a jury trial, of one connt of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), two counts of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (2), three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1), and three counts of risk of injury to a child in violation of § 53-21 (a) (2). The defendant claims that (1) the prosecutorial improprieties that occurred throughout the trial and summation deprived him of a fair trial, and (2) the sentence for attempted first degree assault, as well as the conditions that the defendant undergo psychiatric counseling and contribute to the sexual assault victims fund, were illegal. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In January, 2009, the victim was eleven years old and lived in Bridgeport with her mother, her older sister, and her twin brother. The victim’s grandmother resided in a different house in Bridgeport with her adult son, her live-in boyfriend, and two adopted children. The defendant, an adult, is the victim’s first cousin once removed and the nephew of the victim’s grandmother.

The incidents leading to the defendant’s conviction occurred at the victim’s grandmother’s house on three separate occasions. The first incident involved the defendant fondling the victim’s breasts when she was alone in the living room. The second incident involved the defendant attempting to have sexual intercourse with the victim when she was alone in the garage. The third incident involved the defendant forcing the victim to perform oral sex on Mm when she was alone in the living room.

The victim did not disclose any of the incidents involving the defendant until February 2,2009, when she told her brother, who subsequently told their mother. Immediately thereafter, the victim’s mother called the police and took the family to the house of the victim’s grandmother, where officers from the Bridgeport Police Department then spoke with the victim in person. On February 10, 2009, the victim was interviewed at the Center for Women and Families by a forensic interviewer. Her recounting of the incidents during the interview differed from the testimony she gave subsequently at trial. The next day, on February 11, 2009, the victim was examined by a pediatric nurse practitioner at the Child Sexual Abuse Evaluation Clinic at Yale-New Haven Hospital. TMs examination neither confirmed nor refuted the victim’s allegations.

The state charged the defendant by amended information with one count of sexual assault in the fourth degree in violation of § 53a-73a (a) (1) (A), two counts of attempt to commit sexual assault in first degree in violation of §§ 53a-49 (a) (2) and 53a-70 (a) (2), tMee counts of risk of injury to a child in violation of § 53-21 (a) (1), and three counts of risk of rnjury to a child in violation of § 53-21 (a) (2). The jury returned a gmlty verdict on all counts. The court rendered judgment of conviction in accordance with the jury’s verdict and sentenced the defendant to a total effective term of twenty-five years of incarceration. TMs appeal followed.

I

The defendant first claims that prosecutorial impropriety during the course of the proceedings deprived him of his due process right to a fair trial. Specifically, he argues that the prosecutor committed deliberate impropriety by (1) commenting on the defendant’s failure to testify at trial; (2) vouching for the victim’s credibility; (3) engaging in a course of action designed to generate sympathy for the victim; and (4) commenting on facts outside of the record. We conclude that the prosecutor did improperly comment on facts outside of the record; however, those comments did not deprive the defendant of a fair trial.

Before addressing the merits of the defendant’s claims, we set forth the law governing prosecutorial impropriety. “[I]n analyzing claims of prosecutorial [impropriety], [this court] engage[s] in atwo step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. . . . [W]hen a defendant raises on appeal a claim that improper remarks by the prosecutor deprived the defendant of his constitutional right to a fair trial, the burden is on the defendant to show . . . that the remarks were improper . . . .” (Citation omitted; internal quotation marks omitted.) State v. Taft, 306 Conn. 749, 761-62, 51 A.3d 988 (2012). “[T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial [impropriety].” (Internal quotation marks omitted.) State v. Campbell, 141 Conn. App. 55, 60, 60 A.3d 967, cert. denied, 308 Conn. 933, 64 A.3d 331 (2013).

When determining whether the prosecutor’s conduct constituted impropriety, we are mindful of the unique responsibilities of the prosecutor in our judicial system and the great influence a prosecutor may have on the jury. See State v. Fauci, 282 Conn. 23, 32-33, 917 A.2d 978 (2007). At the same time, we “must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. Jordan, 132 Conn. App. 817, 828-29, 33 A.3d 307, cert. denied, 304 Conn. 909, 39 A.3d 1119 (2012).

When reviewing an allegation that the prosecutor improperly commented on the defendant’s failure to testify, “we ask: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify? . . . [W]e must look to the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact upon the jury.” (Internal quotation marks omitted.) State v. Rizzo, 266 Conn. 171, 269, 833 A.2d 363 (2003).

With respect to the remaining claims of impropriety, our review is as follows. “We consistently have held that it is improper for a prosecuting attorney to express his or her own opinion, directly or indirectly, as to the credibility of witnesses.” (Internal quotation marks omitted.) State v. Long, 293 Conn. 31, 38, 975 A.2d 660 (2009). At the same time, “[t]he prosecutor ... is not barred from commenting on the evidence presented at trial or urging the jury to draw reasonable inferences from the evidence that support the state’s theory of the case .... We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade [it] to draw inferences in the state’s favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand.” (Internal quotation marks omitted.) Id.

Next, “[i]t is well established that, [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . [S]uch appeals should be avoided because they have the effect of diverting the jury’s attention from their duty to decide the case on the evidence.” (Internal quotation marks omitted.) State v. Bermudez, 274 Conn. 581, 595-96, 876 A.2d 1162 (2005). “When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” (Internal quotation marks omitted.) State v. Santiago, 143 Conn. App. 26, 40, 66 A.3d 520 (2013).

Finally, it is well established that “a prosecutor, in fulfilling his duties, must confine himself to the evidence in the record. . . . Statements as to facts that have not been proven amount to unsworn testimony, which is not the subject of proper closing argument.” (Internal quotation marks omitted.) State v. Jones, 135 Conn. App. 788, 801, 44 A.3d 848, cert. denied, 305 Conn. 925, 47 A.3d 885 (2012). “A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence.” Id. When deciding cases, however, “jurors . . . are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion. . . . Therefore, it is entirely proper for counsel to appeal to a jury’s common sense in closing remarks.” (Internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 365, 897 A.2d 569 (2006).

Turning to step one of our two step analysis, we address each of the defendant’s claims of impropriety in turn. The first set of statements made by the prosecutor that the defendant claims constitute impropriety occurred during her initial closing argument. The prosecutor addressed the difficulty the victim faced when disclosing the defendant’s assaults by noting that “the person, the little that we know about the defendant from—from some of the testimony, some of the cross-examination, you know, maybe this wasn’t the easiest person to get in trouble” given his previous positive interactions with the victim’s extended family. The defendant argues that this statement constituted prose-cutorial impropriety because the prosecutor improperly commented on the defendant’s decision not to testify. We do not agree.

The prosecutor’s statement was not an impermissible comment on the defendant’s failure to testify, but rather constituted a proper statement in support and explanation of the state’s case. When read in the context of the closing argument, the prosecutor’s statement merely served to relate the evidence back to the question of why the victim would accuse a family member of sexual assault. It was not a statement of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify, nor did it manifest an intent to so comment. Accordingly, we conclude that the remark was not improper.

Next, the defendant claims that impropriety occurred when the prosecutor stated that the victim underwent a gynecological examination that she was not required to undergo, that the case against the defendant would have gone forward regardless of whether she underwent an examination, that the victim was “aware that she was telling [the jury] something different than she told anyone ever before,” that the victim came to court and “did the best she could,” and that the juiy “[did not] have to take [the victim’s] explanation, but if she wanted to come in here and sell you a story that wasn’t true, is that what she would’ve done?” The defendant argues that through these comments, the prosecutor improperly vouched for the victim’s credibility as she indirectly implied that the victim testified truthfully. The defendant argues that the prosecutor’s statements, when taken with the victim’s testimony, improperly conveyed the impression that what she told the prosecutor in their meetings outside of court was consistent with what she testified to at trial. We do not agree.

With regard to the prosecutor’s statements that the victim was “aware that she was telling [the jury] something different than she told anyone ever before” and that the victim still came to court and “did the best she could,” the record provides sufficient evidence from which the jurors could have drawn the inference that the victim did not want to appear in court and testify. During direct examination, the victim was asked by the prosecutor whether she wanted “to come in here and talk about this today,” and she responded in the negative. She also stated that she “[doesn’t] like talking about it” in reference to the incidents involving the defendant. In addition, there was sufficient evidence from which the jury could have drawn the inference that the victim was aware of her inconsistencies during testimony. She admitted that she did not tell the interviewer at the Center for Women and Families about some events she revealed at trial, but stated that this was because she “didn’t know her” and she “wasn’t ready to tell people” about the incidents. A prosecutor is not barred from urging the jury to draw reasonable inferences from the evidence that support the state’s theory of the case, which here rested on the strength of the victim’s credibility. See State v. Long, supra, 293 Conn. 38. Accordingly, the prosecutor’s comments did. not constitute indirect assertions that the victim testified truthfully, but rather were permissible statements asking the jury to evaluate her testimony in light of the evidence.

Likewise, neither the prosecutor’s statements concerning the gynecological examination nor the prosecutor’s rhetorical question—“but if she wanted to come in here and sell you a story that wasn’t true, is that what she would have done?”—constitute an improper vouching for the credibility of the victim. This court previously has deemed proper similar comments in which a prosecutor asked jurors to use their common sense to infer that an individual’s complaint was more credible because it required her to undergo an uncomfortable medical examination and embarrassing conversations with both her family members and complete strangers. See id., 47-48. Here, the prosecutor recognized the jurors’ function of gauging the credibility of witnesses and reminded them that they “don’t have to take [the victim’s] explanation” when considering her testimony. The prosecutor was simply asking the jury to draw on its common sense regarding the likelihood of the victim making up the allegations; she did not improperly vouch for the credibility of the victim.

The third set of statements made by the prosecutor that the defendant claims constitute impropriety occurred during the prosecutor’s initial closing argument, when the prosecutor repeatedly commented on the “huge burden for [the victim] to carry around” and asked the jury: “How hard was that for [the victim] to tell? How hard was any of this for her to tell you?” while pointing to the fact that the victim “just wanted to get out of here.” The defendant claims that these statements constituted prosecutorial impropriety because the prosecutor was attempting to appeal to the jurors’ emotions and distract them so that they would decide the case on the basis of their emotions rather than the evidence presented. We do not agree.

The record reveals that the term “burden” was being used in connection with the victim’s disclosure at trial of the incident in which the defendant forced her to perform fellatio on him and was not a reference to her allegations and appearance at court. The prosecutor was seeking to reference the crime’s impact on the victim as it related to her failure to make a prompt disclosure of the incidents, and, in particular, the nature and extent of the defendant’s actions in the third incident. Further, as we previously established, there was ample evidence presented from which the jury could draw a reasonable inference that it was difficult for the victim to talk about the incidents and that she wanted to leave the courtroom. Accordingly, these statements fall within the prosecutor’s latitude in closing argument to appeal to the jury’s common sense, and therefore they are not improper.

The fourth set of statements made by the prosecutor that the defendant claims constitute impropriety occurred when the prosecutor, in discussing the importance of the fact that the victim underwent a gynecological examination, stated that she had not been required to undergo the examination and that the case would have gone forward regardless of whether she had agreed to the examination. The prosecutor further commented on the gynecological examination by stating: “Why, I submit to you, would this girl have gone so far as to make herself so vulnerable during that physical exam? I’m not preying on your sympathy, ladies and gentlemen, these are the facts, and for those of you, as I tried to point out, who have not been through a gynecological exam, perhaps you can discuss amongst yourself the vulnerable position that you are in with a perfect stranger. Examining her body. Arguably, a part of her body that no one other than the defendant had touched before. A perfect stranger. A nice lady. Stranger right there. Right there into her body. And then—and then—and then she has her turn over and make herself so vulnerable with her behind exposed for examination.” The defendant claims that through these statements, the prosecutor improperly commented on facts outside of the record.

The state concedes, and we agree, that the prosecutor did allude to facts outside of the record in the latter part of her comment regarding the gynecological examination of the victim. Specifically, we note that there was no evidence that (1) the victim was aware that she did not have to agree to that examination; (2) the victim was not going to get in trouble for refusing to take part in the examination; (3) no one was forcing the victim to undergo the examination; and (4) the case would have gone forward without the examination. The prosecutor’s comments on this subject were improper, and we therefore must turn to the second step of our analysis to determine whether the impropriety “so infected the trial with unfairness as to make the conviction a denial of due process.” (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 589, 849 A.2d 626 (2004).

To determine whether the improper conduct by the prosecutor violated the defendant’s right to a fair trial, we must consider the factors enumerated in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). These factors include: (1) the extent to which the impropriety was invited by the defense; (2) the frequency of the impropriety; (3) the severity of the impropriety; (4) the centrality of the impropriety to the critical issues in the case; (5) the strength of the state’s case; and (6) the strength of the curative measures adopted by the court. Id. These factors are viewed within the context of the entire trial. See State v. Stevenson, supra, 269 Conn. 574. Our review of the Williams factors leads us to conclude that the defendant’s conviction was not a denial of due process.

At the outset, we note that the state does not argue that the defendant invited the single instance of prose-cutorial impropriety, and that the defendant did not object to the impropriety when it occurred or move for the prosecutor’s remarks to be stricken from the record. Next, we must examine the second and third Williams factors, which are the frequency and severity of the prosecutor’s impropriety in making the statement. As this court previously has noted, “[o]ne instance of impropriety over the course of an entire trial is not frequent.” State v. Felix, 111 Conn. App. 801, 816, 961 A.2d 458 (2008). Further, when determining the severity of an improper statement, our Supreme Court has noted that it considers it “highly significant [when] defense counsel fail[s] to object to any of the improper remarks, request curative instructions, or move for a mistrial.” State v. Thompson, 266 Conn. 440, 479, 832 A.2d 626 (2003). “[Ojnly instances of grossly egregious [impropriety] will be severe enough to mandate reversal.” Id., 480. Here, there was only one instance of impropriety and it was not objected to at trial; we do not conclude that it was frequent or severe.

We now turn to the fourth and fifth Williams factors, which are the centrality of the impropriety to the critical issues and strength of the state’s case. The central issue in the case was the credibility of the victim. As our Supreme Court has noted, “a child sexual abuse case lacking conclusive physical evidence, when the prosecution’s case rests on the credibility of the victim . . . is not particularly strong . . . .” (Internal quotation marks omitted.) State v. Warholic, supra, 278 Conn. 397. At the same time, “[t]he state’s evidence does not need to be overwhelming to support a conclusion that prosecutorial impropriety did not deprive the defendant of a fair trial.” State v. Felix, supra, 111 Conn. App. 816. We agree with the defendant, however, that the impropriety was central to the present case, and that the state’s case was not particularly strong.

Finally, we examine the last Williams factor, which is the strength of the curative measures adopted by the court. The defendant did not object or request a special instruction to address the impropriety; thus, the trial court provided no specific curative measures. “We emphasize the responsibility of [the defendant], at the very least, to object to perceived prosecutorial improprieties as they occur at trial . . . [and a defendant’s] failure to object to the prosecutor’s argument . . . when [it is] made suggests that [the defendant] did not believe that [it was] unfair in light of the record of the case at the time. . . . Moreover . . . [while the defendant] may elect not to object to arguments . . . that he or she deems marginally objectionable for tactical reasons . . . [t]he failure by the defendant to request specific curative instructions frequently indicates on appellate review that the challenged instruction did not deprive the defendant of a fair trial.” (Citation omitted; internal quotation marks omitted.) State v. Stevenson, supra, 269 Conn. 597-98. Furthermore, we conclude that the court’s jury charge as well as the court’s general instructions adequately addressed the improper remarks. See State v. Mucha, 137 Conn. App. 173, 201-202, 47 A.3d 931, cert. denied, 307 Conn. 912, 63 A.3d 998 (2012).

In summary, although the prosecutor’s improper comment was both uninvited and central to the critical issue in the case, it was not severe, as evidenced by defense counsel’s failure to object or seek a curative instruction, and it was limited to one brief statement during the prosecutor’s rebuttal closing argument. While the state’s case relied on the credibility of a sole witness, the jury properly was instructed that the statements and argument of counsel are not evidence and that it should not resort to sympathy in deciding the case. Accordingly, we conclude that the prosecutor’s improper remark did not deprive the defendant of a fair trial and therefore did not violate his right to due process.

II

We next address the defendant’s claim that the court violated his due process rights by failing to abide by the terms of our General Statutes during sentencing. We decline to consider this claim.

The defendant argues that the court improperly: (1) imposed a ten year nonsuspendible sentence for each of the two attempted first degree sexual assault counts pursuant to § 53a-70 (b) (2); (2) required the defendant to undergo counseling pursuant to General Statutes § 53a-40c; and (3) required the defendant to contribute to the sexual assault victims fund pursuant to General Statutes § 54-143c for his conviction of three counts of risk of injury to a child in violation of § 63-21 (a) (1). The defendant asserts that the ten year nonsuspendible sentence and the additional requirements constitute an illegal sentence because the court applied the incorrect statute. The defendant concedes that he did not object to the sentences when they were rendered by the trial court, nor did he file a motion to correct the sentences pursuant to Practice Book § 43-22. He argues, however, that his unpreserved claims may be reviewed under the plain error doctrine.

“[The plain error] doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. . . . [T]he plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly.” (Internal quotation marks omitted.) State v. Sanchez, 308 Conn. 64, 76-77, 60 A.3d 271 (2013).

This court previously has recognized that “[i]t is not appropriate to review an unpreserved claim of an illegal sentence for the first time on appeal.” State v. Brown, 133 Conn. App. 140, 146 n.6, 34 A.3d 1007, cert. granted on other grounds, 304 Conn. 901, 37 A.3d 745 (2012); see also State v. Starks, 121 Conn. App. 581, 592, 997 A.2d 546 (2010) (declining to review unpreserved claim of illegal sentence under State v. Golding, 213 Conn. 233, 567 A.2d 823 [1989] or plain error doctrine). Underlying this reasoning is our recognition that, pursuant to Practice Book § 43-22, the trial court may correct an illegal sentence at any time. See Cobham v. Commissioner of Correction, 258 Conn. 30, 38 n.13, 779 A.2d 80 (2001) (clarifying that “judicial authority” in this context refers exclusively to trial court). Consequently, the defendant has the right to file a motion to correct an illegal sentence with the trial court at any time. See State v. Starks, supra, 592. Therefore, as “the defendant may seek and obtain any appropriate redress before the trial court, we are not persuaded that extraordinary review of the claim under . . . the plain error doctrine is warranted or that our declining to review the claim would result in any hardship or injustice to the defendant.” Id.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual assault and 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.

       The victim was unsure of the sequence of the second and third incidents; therefore, the order in which they are presented in this opinion is not necessarily indicative of the chronological order. The victim indicated at trial that the three incidents occurred over a relatively short period of time.

       At the outset, we note that the defendant did not preserve by way of objections or motions for a mistrial his claims of prosecutorial impropriety that he now raises on appeal. Nevertheless, “[a] claim of prosecutorial impropriety . . . even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987).” (Internal quotation marks omitted.) State v. Wilson, 308 Conn. 412, 434, 64 A.3d 91 (2013).

       The defendant also claims that these statements constituted prosecu-torial impropriety because they improperly appealed to the emotions of the jury. The prosecutor’s description of the victim as “vulnerable” was grounded in the evidence and relevant to her credibility. “This court previously has held that it was not improper for the prosecutor to refer to the victim as vulnerable when the argument amounted to a reasonable inference from the testimony at trial.” State v. Cromety, 102 Conn. App. 425, 434-35, 925 A.2d 1133, cert, denied, 284 Conn. 912, 931 A.2d 932 (2007). The prosecutor set forth the evidence and asked the jury to weigh that evidence and to use common sense to determine the likelihood of the defendant’s version of events. As we previously have established, “[i]t is not improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom . . . .” (Internal quotation marks omitted.) State v. Martinez, 95 Conn. App. 162, 184, 896 A.2d 109, cert, denied, 279 Conn. 902, 901 A.2d 1224 (2006). Accordingly, these comments were not improper.

       The defendant claims that the prosecutor also commented on facts outside of the record by stating that: (1) the victim was aware of her inconsistencies prior to trial and knew that she would have to come to court; (2) nobody else had ever touched the victim in her private area before; and (3) the victim wanted to get out of the courtroom during the trial. After a thorough review of the record, we conclude that these three statements did not incorporate facts outside of the record.

       These instructions provided in relevant part: “In reaching your verdict you should consider all the testimony and the exhibits and stipulations that are received into evidence. Certain things are not evidence, and you may not consider them in deciding what their facts are. They include, one, the arguments and statements by the lawyers. The lawyers are not witnesses, what they have said to you in their closing arguments is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated, the[n] your memory is in control.”

       These instructions provided in relevant part: “Your verdict must not be influenced by sympathy. It is not within your province to determine, nor may you be affected by the consequences of your verdict upon the accused or his family or upon any other persons affected by your decision. You must, with your duty unswayed by sentiment and emotion, determine your verdict by a careful consideration of the facts disclosed by the evidence and the applications of relevant law to those facts.”

       “[A]n illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory. . . . Connecticut courts have considered four categories of claims pursuant to [Practice Book] § 43-22. The first category has addressed whether the sentence was within the permissible range for the crimes charged. . . . The second category has considered violations of the prohibition against double jeopardy. . . . The third category has involved claims pertaining to the computation of the length of the sentence and the question of consecutive or concurrent prison time. . . . The fourth category has involved questions as to which sentencing statute was applicable." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Lawrence, 281 Conn. 147, 156-57, 913 A.2d 428 (2007). “Accordingly, if a defendant’s claim falls within one of these four categories the trial court has jurisdiction to modify a sentence after it has commenced.” (Internal quotation marks omitted.) State v. Casiano, 122 Conn. App. 61, 67, 998 A.2d 792, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010).

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       We note that the trial court remains in the best position to fashion appropriate remedies for an illegal sentence, including reconstructing the sentence to conform to its original intent or resentencing a defendant if it is determined that the original sentence was illegal. State v. Starks, supra, 121 Conn. App. 592; see also Cobham v. Commissioner of Correction, supra, 258 Conn. 39.