author: DiPENTIMA, J.

text:
    HEYWARD SELLERS v. SELLERS GARAGE, INC., ET AL.
    (AC 28837)
    DiPentima, Robinson and Stoughton, Js.

      Argued March 26
    officially released September 9, 2008

      Heyward Sellers, pro se, the appellant (plaintiff).

      Courtney C. Stabnick, with whom, on the brief, was Richard T. Stabnick, for the appellees (defendants).
   Opinion

DiPENTIMA, J.

The plaintiff, Heyward Sellers, appeals pro se from the decision of the workers’ compensation review board (board), which affirmed the decision of the workers’ compensation commissioner for the fifth district (commissioner) dismissing his claim for compensation from the defendant Sellers Garage, Inc. The plaintiff raises two claims on appeal. He claims (1) that the board improperly affirmed the commissioner’s finding and dismissal of his claim on the basis of the doctrines of collateral estoppel and res judicata and (2) that both the commissioner and the board improperly failed to address his claim that the defendant had not reimbursed him for expenses that the commissioner previously had found compensable. We affirm the decision of the board.

The factual and procedural history of this case spans more than one decade and has been the subject of three prior appeals to this court. The plaintiff suffered three compensable injuries, which were accepted by voluntary agreement, to his right wrist, left wrist and cervical spine on September 25 and November 14,1995, and on March 21,1997, respectively. All three injuries occurred while the plaintiff was employed by the defendant, which, at the time, had workers’ compensation insurance provided by Royal Insurance Company (Royal).

On April 20, 1998, while the plaintiff was employed by Work Force One, Inc. (Work Force), which had workers’ compensation insurance provided by Hanover Insurance Company (Hanover), he sustained increased pain in his right wrist. The plaintiff timely filed notice of his claim for compensation for the April 20, 1998 injury, seeking, inter alia, compensation for depression, which he claimed was caused by his various physical injuries. On May 9, 2001, Donald H. Doyle, Jr., commissioner for the fifth district, found that the plaintiff had failed to sustain his burden of proof to show that the various physical injuries had produced depression. The commissioner, however, ordered the defendant to reimburse the plaintiff for all future, reasonable medications necessary to treat the March 21, 1997 spinal injury, as prescribed by Steven Levin, the plaintiffs treating physician. The board affirmed the commissioner’s findings and award, and this court affirmed the decision of the board. Sellers v. Sellers Garage, Inc., 80 Conn. App. 15, 16-17, 832 A.2d 679, cert. denied, 267 Conn. 904, 838 A.2d 210 (2003).

The plaintiff next filed a claim for permanent partial disability of his brain, alleging that he had been suffering from disabling headaches as a result of the March 21, 1997 injury. On December 11, 2003, Amado J. Vargas, commissioner for the fifth district, denied the claim. The board affirmed the commissioner’s findings and award, and this court affirmed the decision of the board. Sellers v. Sellers Garage, Inc., 92 Conn. App. 650, 887 A.2d 382 (2005).

Following the commissioner’s December 11, 2003 finding and dismissal, the plaintiff filed a claim for benefits due to depression for which he claimed Work Force and Hanover were liable. Commissioner Vargas issued a finding and dismissal on April 29, 2004, in which he concluded that the plaintiffs claim that the depression was compensable was barred under the principles of res judicata and collateral estoppel. On appeal, the board affirmed the commissioner’s decision, and this court affirmed the board’s decision on the basis of collateral estoppel. Sellers v. Work Force One, Inc., 92 Conn. App. 683, 687, 886 A.2d 850 (2005).

The plaintiff subsequently filed the claim underlying this appeal, alleging, inter alia, that his depression had worsened and that the defendant had failed to reimburse him for expenses related to his compensable injuries. After hearings on January 27 and October 19, 2005, Howard H. Belkin, commissioner for the fifth district, dismissed the plaintiffs claim, concluding that the issue of the compensability of the plaintiffs depression had been considered and rejected by Commissioner Doyle in his May 9, 2001 decision, and, therefore, the plaintiff was barred by the doctrines of res judicata and collateral estoppel from relitigating his claim. On May 11, 2007, the board affirmed the commissioner’s finding and dismissal, stating that “the alleged worsening of a noncompensable condition [could not] be elevated to the status of compensable.” Neither the commissioner nor the board, in their respective memoranda of decision, addressed the plaintiffs claim for reimbursement of expenses. This appeal followed.

I

The plaintiff first claims that the commissioner improperly concluded that he was precluded by the doctrines of res judicata and collateral estoppel from raising the claim that his compensable physical injuries had caused an aggravation of his depression. We disagree.

We begin by setting forth the applicable standard of review. “Whether the court properly applied the doctrine of collateral estoppel is a question of law for which our review is plenary. . . . Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. ... To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case.” (Citation omitted; internal quotation marks omitted.) Vanliner Ins. Co. v. Fay, 98 Conn. App. 125, 132, 907 A.2d 1220 (2006). “An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.” (Internal quotation marks omitted.) Sellers v. Work Force One, Inc., supra, 92 Conn. App. 686.

“As a general proposition, the governing principle is that administrative adjudications have a preclusive effect when the parties have had an adequate opportunity to litigate. ... [A] valid and final adjudicative determination by an administrative tribunal has the same effects under the rules of res judicata [and collateral estoppel], subject to the same exceptions and qualifications, as a judgment of a court.” (Internal quotation marks omitted.) Id., 686-87.

As this court stated in Sellers v. Work Force One, Inc., supra, 92 Conn. App. 688-89, the issue of whether the plaintiff suffered from depression as a result of work-related injuries was actually litigated and necessarily determined by Commissioner Doyle in his May 9, 2001 finding and award. In that decision, Commissioner Doyle addressed all of the plaintiffs work-related injuries, i.e., the three injuries sustained during employment with the defendant and the April 20, 1998 injury sustained during employment with Work Force, and concluded that none of those injuries had caused the initial onset of the depression. As the board correctly noted, an increase in the plaintiffs depression logically could not be the product of his four compensable injuries when the initial onset of the depression occurred after all four injuries, and none of those injuries caused the initial onset. See Krevis v. Bridgeport, 63 Conn. App. 328, 334, 777 A.2d 196 (2001) (“[t]he rational mind must be able to trace resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery” [internal quotation marks omitted]); cf. Gartrell v. Dept. of Correction, 259 Conn. 29, 30-31, 787 A.2d 541 (2002) (plaintiff entitled to compensation for aggravation of preexisting mental or emotional impairment arising from work-related occupational disease); Marandino v. Prometheus Pharmacy, 105 Conn. App. 669, 685-86, 939 A. 2d 591 (aggravation of complainant’s initial injury warrants modification of workers’ compensation award when initial injury deemed compensable), cert. granted on other grounds, 286 Conn. 916, 917, 945 A.2d 977 (2008); Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 119, 612 A.2d 82 (plaintiffs total psychiatric disability causally related to intervening noncompensable event and .unrelated to compensable event), cert. denied, 223 Conn. 920, 615 A.2d 507 (1992). We conclude, therefore, that collateral estoppel prohibits the plaintiff from relitigating that issue.

II

The plaintiff next claims that both the commissioner and the board improperly failed to address his claim that the defendant had not reimbursed him for expenses that the commissioner previously had found compensable, namely, the reasonable medications necessary to treat the March 21, 1997 spinal iryury, as prescribed by Levin. We disagree.

At the January 27, 2005 hearing, the plaintiff raised his claim for reimbursement but closed his case after presenting evidence that supported only his depression claim. At the October 19, 2005 hearing, the plaintiff attempted to present additional evidence in support of his reimbursement claim, but the commissioner expressly refused to consider the additional evidence or the plaintiffs claim for reimbursement. The commissioner’s decision not to consider the plaintiffs claim was the functional equivalent of a denial of that claim. See Ahneman v. Ahneman, 243 Conn. 471, 480, 706 A.2d 960 (1998); Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 767 n.9, 890 A.2d 645 (2006). Accordingly, we conclude that the commissioner denied the plaintiffs claim in the May 4, 2006 finding and dismissal. Further, because the board affirmed the commissioner’s decision, which included the denial of the plaintiffs reimbursement claim, the board necessarily rejected the plaintiffs reimbursement claim as well.

To the extent that the plaintiff argues that the commissioner improperly denied the reimbursement claim, he has not briefed this issue adequately. “Although we are solicitous of the fact that the [plaintiff] is a pro se litigant, the statutes and rules of practice cannot be ignored completely. . . . We are not required to review issues that have been improperly presented to this court through an inadequate brief.” (Citation omitted; internal quotation marks omitted.) Cooke v. Cooke, 99 Conn. App. 347, 352-53, 913 A.2d 480 (2007).

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Travelers Insurance Company, the workers’ compensation insurer for Sellers Garage, Inc., also is named as a defendant in this case. For convenience, we refer in this opinion to Sellers Garage, Inc., as the defendant.

       In addition, following the commissioner’s May 4, 2006 finding and dismissal, the plaintiff timely filed, pursuant to § 31-301-4 of the Regulations of Connecticut State Agencies, a motion to correct, seeking, inter alia, a ruling on his claim for reimbursement. The commissioner denied the plaintiffs motion to correct on May 23, 2006. The plaintiff raises neither this ruling nor the commissioner’s refusal to consider additional evidence as an issue in this appeal.

       We note that the commissioner found that none of the evidence offered by the plaintiff was sufficient to support his claims. Our review of the record likewise reveals a paucity of evidence that could support the plaintiff’s reimbursement claim. Without sufficient evidence to support the plaintiffs claim, the commissioner could not have ruled in the plaintiffs favor. See DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 99 Conn. App. 336, 342, 913 A.2d 483 (decision of commissioner must not include facts found without evidence), cert. granted on other grounds, 281 Conn. 929, 918 A.2d 277 (2007).


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    JULES S. LEBLANC v. TRI-TOWN SHELTER SERVICES, INC.
    (AC 29120)
    Gruendel, Harper and Lavine, Js.

      Submitted on briefs June 3
    officially released September 9, 2008

      Susan Boyan filed a brief for the appellant (defendant).

      Bruce J. Comollo filed a brief for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendant, Tri-Town Shelter Services, Inc., appeals from the judgment of the trial court awarding the plaintiff, Jules S. LeBlanc, unpaid rent for occupancy of the plaintiffs premises, and dividing the cost of repairing the premises equally between the plaintiff and defendant. The defendant claims that the court (1) improperly determined that the defendant owed the plaintiff either rent or the reasonable cost of use and occupancy of the building and (2) abused its discretion in dividing the cost of repair to the building between the plaintiff and defendant. We affirm in part and reverse in part the judgment of the trial court.

The facts set forth in the court’s memorandum of decision largely are undisputed. The defendant was a long-term tenant of the plaintiff, having leased a 10,000 square foot space at 1-A Prospect Street, Rockville, from the plaintiff beginning in December, 1986, for use as a homeless shelter. The first lease ran from the period of December 1, 1986, to November 30, 1989, at a rate of $833.34 per month for the first year and $1250 per month thereafter. Between 1989 and 2001, the parties entered into five additional leases providing for continued tenancy by the defendant at a monthly rental rate ranging from $1414.58 in 1989 to $2200 in 2001. The most recent lease expired on September 30, 2001.

On September 16, 2001, the plaintiff sent the defendant a proposed new lease providing for monthly rent of $2500, a $300 per month increase, which the defendant refused to sign. Also in September, 2001, the plaintiff and defendant had a meeting at which they discussed the rental increase. The plaintiff testified at trial that the defendant “agreed [to] bring the rent up to date, but it never did.” The defendant denies ever agreeing to the rental increase and continued paying $2200 per month. The plaintiff sent letters to the defendant on November 20, 2001, and February 19, 2002, requesting payment of past due rental amounts of $300 per month.

In January, 2004, more than two years after the lease term expired, the defendant finally vacated the premises, the whole time having paid rent of $2200 per month. The defendant never made any rent payment for January, 2004, and told the plaintiff to use the $2200 security deposit for that purpose. The court found that at the time the defendant vacated the building, there was damage requiring $26,398 in repair costs.

The plaintiff filed a two count complaint claiming damages of (1) $8400 as the total of $300 per month for the twenty-eight months spanning from October 1, 2001, through January 31, 2004, and (2) $26,398 for damage caused to the building. The defendant denied liability on both counts and counterclaimed, alleging that it had paid for repairs to the building that were the responsibility of the plaintiff. The court found in favor of the plaintiff on the first count of the complaint. It awarded the plaintiff $8400 in back rent under the holdover provisions of the lease or, alternatively, for the fair rental value for use and occupancy pursuant to General Statutes § 47a-3c. As to the second count, the court was unable to ascertain the extent to which the damage to the premises was attributable to each party. It therefore divided the cost of repair equally between the parties. Finally, as to the counterclaim, the court found that the defendant had replaced a water heater, which was the plaintiffs responsibility, and awarded the defendant $1057 for its cost.

This appeal followed in which the defendant claims that the court improperly awarded the plaintiff (1) back rent or fair rental value for the use and occupancy of the building and (2) one half of the repair costs. Both of the defendant’s claims challenge the damages awarded by the court, “which we generally review under the abuse of discretion standard.” Sproviero v. J.M. Scott Associates, Inc., 108 Conn. App. 454, 462, 948 A.2d 379, cert. denied, 289 Conn. 906, 957 A.2d 873 (2008). “The trial court has broad discretion in determining whether damages are appropriate. ... Its decision will not be disturbed on appeal absent a clear abuse of discretion.” (Citation omitted.) Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 541, 546 A.2d 216 (1988).

I

The court articulated two bases for determining that the defendant owed $8400 to the plaintiff. First, it determined that such an amount was due under the holdover provision of the 2001 lease. It also found that even if that provision was inapplicable, the same amount would be due as the fair rental value for the use and occúpancy of the premises pursuant to § 47a-3c.

Section 47a-3c provides: “In the absence of agreement, the tenant shall pay the fair rental value for the use and occupancy of the dwelling unit.” We note at the outset that although the court awarded damages under either the 2001 lease agreement or the statute, it did not make a finding that any agreement between the parties controlled during the period between September 30, 2001, and January, 2004. Neither party requested that the court articulate such a finding, and so we operate under the premise that there was an “absence of agreement.” See Rivera v. Double A Transportation, Inc., 248 Conn. 21, 33-34, 727 A.2d 204 (1999) (discussing parties’ responsibilities to ensure adequacy of record); Practice Book § 66-5. We therefore do not address the question of whether the lease applied and instead determine whether the court abused its discretion in awarding damages for the fair rental value under § 47a-3c.

Although the determination of the measure of damages is within the discretion of the trial court, we must first address the threshold question of whether the court properly calculated the fair rental value of the property. A court’s determination of fair rental value is one of fact that we will reverse only if it is clearly erroneous. Fernandes v. Rodriguez, 90 Conn. App. 601, 620, 879 A.2d 897 (2005). “Under Connecticut law, use and occupancy, by definition, is an amount equal to fair rental value .... It is the amount to which the landlord is entitled after the rental agreement has been terminated . . . .” (Citation omitted.) Rivera v. Santiago, 4 Conn. App. 608, 611, 495 A.2d 1122 (1985). In the present case, the court explicitly found that this 13 percent increase in rent to $2500 per month was reasonable and represented the fair rental value for use and occupancy under § 47a-3c. We agree with the court that “[t]here was no evidence offered, and it is not conceivable that one could argue that $2500 per month for 10,000 square feet of space is not reasonable . . . .” Consequently, the finding as to fair rental was not clearly erroneous, and the court, therefore, did not abuse its discretion in awarding the difference between the amount actually paid and the fair rental value.

In addition, the defendant argues that by accepting the monthly payments of $2200, the plaintiff consented to the payment of that amount. The court determined, however, that “[t]he plaintiff instead clearly expressed verbally and through his written communications” that he expected an additional $300 per month. It further noted that “[w]hile it might have made better business sense to seek to evict the defendant from the property back in 2001, the [plaintiff] testified that he did not do so because this was a shelter for the homeless and there was nowhere else in town for the people to go. The [plaintiff] should not be penalized by this decision.” We agree with the court in this regard. The court also found that the plaintiff repeatedly had requested payment of the additional $300 per month both orally and in writing. As such, we conclude that there was no waiver of the plaintiffs right to collect the full $2500 per month.

II

We now turn to the defendant’s claim concerning the division of the costs of repair to the building. Once the defendant vacated the building, the plaintiff discovered that there was damage to the premises from a leaky sink and additional harm under the washer-dryer, and behind the furniture. The lease agreement contained a clause providing that “[t]he [plaintiff] shall maintain the demised premises, including the building and any and all equipment, fixtures and appurtenances furnished by the [plaintiff] except in case of damage arising from the act of negligence of the [defendant].” The court found that the damage to the premises was “beyond normal wear and tear.” It also was unable to determine, however, if, and to what extent, the plaintiff was notified of needed repairs throughout the course of the tenancy. The court indicated that if the damage was not reported to the plaintiff in a timely manner, the damage would have been due to the defendant’s negligence. On the other hand, if the damage was reported to the plaintiff, it would be, at least in part, attributable to the plaintiffs failure to address the issues. In any event, the court “believe [d] the testimony of the defendant that [it] did make several verbal requests over the years for the [plaintiff] to make repairs to the property, and that the plaintiff refused to contribute in any way to the repairs.” The court found that restoration of the building required $26,398 but stated that it was “unable to ascertain which conditions the tenant made the landlord aware of and asked him to repair and which ones [it] did not.” The court thereafter decided to simply divide the cost of repair equally between the parties.

We conclude that this damages award was an abuse of the court’s discretion. The plaintiff must prove the damages attributable to the defendant by a preponderance of the evidence. Bronson & Townsend Co. v. Battistoni, 167 Conn. 321, 326, 355 A.2d 299 (1974). “The burden is on the plaintiff to present evidence which affords a reasonable basis for measuring her loss.” (Internal quotation marks omitted.) Spera v. Audiotape Corp., 1 Conn. App. 629, 633, 474 A.2d 481 (1984). The court was “unable to ascertain” the amount of damage attributable to the defendant. Although the plaintiff may have met his burden of proving that some liability existed on the part of the defendant, it is clear from the court’s inability to ascertain the amount of damages attributable to each party that he did not meet his burden for establishing the amount of damages. The court, therefore, abused its discretion in awarding any monetary damages.

The judgment is reversed only as to the award of $26,398 for repairs and the case is remanded with direction to vacate that damages award. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendant filed a certification that no transcript of the trial proceedings was deemed necessary pursuant to Practice Book § 63-4 (a) (3). We glean the facts of the case from the court’s memorandum of decision and the pleadings and exhibits filed.

       We have held that recovery under § 47a-3c is a distinct cause of action and that the section must be specifically invoked in the complaint or explicitly raised and litigated at trial. New Haven v. Mason, 17 Conn. App. 92, 96, 550 A.2d 18 (1988). Although the complaint makes no mention of recovery for use and occupancy under § 47a-3c, we note that the issue was explicitly raised in the plaintiffs trial brief. See id. (noting that complaint, trial briefs and memorandum of decision may be considered to determine if issue of use and occupancy adequately raised at trial).

       Much of the parties’ disagreement focuses on the construction and application of the 2001 lease agreement. The record indicates, however, that the parties relied on and represented to the court language that did not appear in the 2001 lease agreement. The applicable contract language addressed by the court, namely, the holdover provision, is not contained in the 2001 lease but, rather, in an earlier lease agreement between the parties. Neither party addressed this discrepancy on appeal.

       The defendant relies heavily on Welk v. Bidwell, 136 Conn. 603, 73 A.2d 295 (1950), as precedent in support of its arguments on appeal. In that case, the trial court did not make a specific finding as to the reasonable fair rental value. Id., 609. Because the court did make such a determination in the present case, Welk is inapplicable to our review.

       Because we hold that the court abused its discretion in determining that the defendant owed damages for harm to the building, we need not address the appropriate method of calculating those damages. We note, however, that the proper measure for damage to leasehold property is “the diminished value of the property whenever the costs of restorations is dramatically larger than is the difference in value. The purpose of this rule is to avoid unreasonable economic waste.” Spera v. Audiotape Corp., supra, 1 Conn. App. 633. This measure of damages was not presented to the trial court or in this appeal by either party.


author: McLACHLAN, J.

text:
    LINDA A. SIGNORE v. FREDERICK A. SIGNORE
    (AC 28040)
    McLachlan, Beach and Mihalakos, Js.
    Argued May 30
    officially released September 9, 2008

      Lawrence S. Ogren, for the appellant (defendant).

      Michael T. Bologna, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

The defendant, Frederick A. Signore, appeals from the decision of the trial court denying his postjudgment motion to modify the terms of a dissolution judgment with respect to alimony payments he was obliged to make to the plaintiff, Linda A. Signore. The defendant claims that the court improperly (1) determined that the total amount he withdrew from his limited liability company, which included proceeds from loans requiring repayment, was income for purposes of modification of the court’s alimony order and (2) applied the law of the case doctrine in reaching its conclusion that the defendant’s gross income for 2005 exceeded $70,000. We affirm the judgment of the trial court.

The court dissolved the parties’ twenty-nine year marriage on July 30, 2002. The judgment of dissolution incorporated by reference the parties’ separation agreement, which contained a clause setting forth the defendant’s alimony obligations and the circumstances that would permit the parties to seek a modification of the agreement. Paragraph five of the agreement provides in relevant part that the defendant is obligated to pay the plaintiff $550 per week “if the [defendant’s] gross income before reimbursement for driving expenses [is] between $70,000 and $90,000 per year.” (Emphasis added.) The paragraph further provides that the amount of the alimony payments would increase if the defendant’s yearly income is greater than $90,000 and that the parties should seek a modification of the alimony payments if his yearly income is less than $70,000 or more than $105,000. The parties agreed that the alimony payments in a given year would be based on the defendant’s income from the prior year. The term “gross income” was not defined in the separation agreement.

Shortly after the marriage was dissolved, the corporation that employed the defendant underwent a restructuring, and his position was eliminated effective January 17,2003. The defendant filed amotion to modify his alimony obligation at that time, and the court, Hiller, J., reduced his weekly payments to $400. On October 31, 2003, the plaintiff filed a motion to increase the alimony payments because the defendant had purchased a business. The defendant filed a cross motion to decrease the amount of his payments on May 18, 2004. By written decision filed June 22, 2004, the court, B. Fischer, J., granted the plaintiffs motion and denied the defendant’s motion. The court found that the defendant had become the owner of a gift basket business, organized as a limited liability company,® and had numerous benefits paid on his behalf through the business. In determining that the defendant’s gross yearly income exceeded $70,000, the court included his draw from the business, automobile insurance premiums and expenses, health insurance premiums and a bonus he paid to himself from the business in December, 2003. The court increased the defendant’s weekly alimony payments from $400 to $550.

By motion filed May 3, 2006, the defendant sought to modify the alimony order issued by Judge Fischer, claiming that his income had decreased substantially “due to a downturn in his business . . . .” The court, Wolven, J., held a hearing on the defendant’s motion on August 10, 2006, at which the defendant and his expert, a certified public accountant, testified. By memorandum of decision issued August 24, 2006, the court found that in 2005, the defendant “withdrew” $141,000 from his business, that he repaid a loan from his parents, that his business obtained loans to remedy cash flow problems and that those loans were secured by the defendant’s personal assets. The court also noted that the separation agreement did not contain a definition of gross income and indicated that it was adopting Judge Fischer’s “calculation of gross income as the law of the case.” On the basis of those findings, the court concluded that the defendant’s gross income for 2005 exceeded $70,000, and it denied the defendant’s motion to modify the alimony order. This appeal followed.

“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Angle v. Angle, 100 Conn. App. 763, 771-72, 920 A.2d 1018 (2007).

In the present case, the terms of the parties’ separation agreement, incorporated into the judgment of dissolution, determine the circumstances under which the court can order a modification of the alimony order. See Krichko v. Krichko, 108 Conn. App. 644, 651, 948 A.2d 1092, cert. granted on other grounds, 289 Conn. 913, 957 A.2d 877 (2008) (appeal withdrawn May 19, 2009). The provisions of a separation agreement become an order of the court when incorporated into the dissolution judgment. Albrecht v. Albrecht, 19 Conn. App. 146, 151, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989). “[The] inteipretation of a separation agreement that is incorporated into a dissolution decree is guided by the general principles governing the construction of contracts. ... 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. ” (Citation omitted; internal quotation marks omitted.) Eckert v. Eckert, 285 Conn. 687, 692, 941 A.2d 301 (2008).

The parties agree that the determinative issue is whether the defendant’s gross income for 2005 was less than $70,000. Under the terms of the parties’ separation agreement, the defendant was not entitled to seek a modification of the alimony order if his gross income exceeded that amount. The defendant claims that the court improperly denied his motion to modify the alimony order because it included debt incurred on behalf of the business as gross income. Specifically, the defendant argues that the $141,000 withdrawn from the business in 2005 included repayment of amounts borrowed from his parents and money borrowed from lending institutions, that he was required to repay those loans and that his gross income would have been less than $70,000 if the court properly had excluded those amounts in its calculation.

It is true, generally, that loans requiring repayment are liabilities, not assets, and cannot be included as income for purposes of determining support obligations. See Zahringer v. Zahringer, 262 Conn. 360, 815 A.2d 75 (2003); Schmidt v. Schmidt, 180 Conn. 184, 429 A.2d 470 (1980); Bishop v. Freitas, 90 Conn. App. 517, 877 A.2d 922, cert. denied, 275 Conn. 931, 883 A.2d 1241 (2005). Nevertheless, even if we credit the defendant’s argument that the amount withdrawn from the business included loan proceeds from his parents and lending institutions, and should not have been included as gross income for 2005, he cannot prevail on this claim.

The limited liability company’s balance sheet and statement of cash flow for calendar year 2005, prepared by the defendant’s expert and submitted as an exhibit at trial, indicated that the defendant’s total draw was $141,883. Of that amount, $32,000 was used to repay a loan from his parents. The loans from the three lending institutions totaled $45,171. Subtracting the $32,000 repayment to his parents and the $45,171 borrowed from the lending institutions from the defendant’s draw of $141,883 leaves an amount of $64,712. The court, however, also found in its memorandum of decision that “[t]he defendant receives other benefits through the business, as well.” The court did not specify the type or amount of those benefits, and the defendant did not request an articulation.

The court did, however, adopt Judge Fischer’s calculation of gross income as the law of the case. In his memorandum of decision, Judge Fischer included health insurance premiums, automobile insurance premiums and automobile expenses in his calculation of gross income. At the hearing on the defendant’s motion to modify the alimony order held on August 10, 2006, the defendant acknowledged that the sum of his medical insurance premiums, automobile insurance premiums, gasoline purchases and automobile repair expenses for 2005 was $6857. Adding $6857, as the “other benefits” referenced in the court’s decision, to $64,712, the amount remaining from the defendant’s draw after the amounts of the repayment to his parents and the loans from financial institutions are subtracted, results in a gross income of $71,569. The court denied the defendant’s motion because it found that “the defendant’s gross income for 2005 exceeded $70,000 . . . .” We conclude that, given the evidence before the court, its determination was not clearly erroneous.

The defendant further argues, however, that the court improperly adopted Judge Fischer’s previous ruling as the law of the case. Specifically, the defendant claims that the court could not properly include his draw as income because borrowed funds are not earned funds.

The law of the case doctrine provides that “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” (Internal quotation marks omitted.) Wasko v. Manella, 87 Conn. App. 390, 395, 865 A.2d 1223 (2005). “A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. . . . [0]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.” (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 130-31, 788 A.2d 83 (2002).

Here, as we previously concluded, even if the loan amounts are deducted from the defendant’s draw, the court’s determination that his gross income exceeded $70,000 is supported when the value of the “other benefits” is included. With respect to the other findings made by Judge Fischer in his 2004 ruling, the defendant has given no persuasive reason for us to conclude that it was an abuse of the court’s discretion to adopt Judge Fischer’s calculation as the law of the case. Accordingly, the defendant’s claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff is now known as Linda A. Jaworoski.

       The defendant also claimed that the court improperly considered his lifestyle and personal expenses in its calculation of his gross income. It is unnecessary to address this claim in light of our conclusions with respect to the other issues discussed in this opinion.

       The defendant is the sole member of the limited liability company.

       The defendant appealed from the court’s decision on July 9, 2003. The parties filed a stipulation on October 22, 2004, in which they agreed, inter alia, that the defendant would pay the plaintiff “regular weekly alimony in the amount of $550.00 pursuant to the Court’s Order dated June 16, 2004 ([R.] Fischer, J.).” The defendant withdrew his appeal on November 4, 2004.

       At oral argument before this court, both parties agreed that the “clearly erroneous” standard of review is applicable to this issue.

       In Zahringer v. Zahringer, supra, 262 Conn. 360, the plaintiff argued that no state has ever held that loans with an obligation of repayment constitute income for purposes of support. The defendant argued that there is no blanket rule and that courts are required to examine the nature of the loan. Our Supreme Court noted: “The issue of whether any loan, regardless of whether it is the result of an arm’s-length transaction and irrespective of its terms, properly may be considered by the trial court in fashioning financial orders is not yet ripe for our consideration in this case because the trial court made no finding in this regard. Following our remand, should the trial court determine that the fund was not a gift, the trial court may make the necessary findings in connection with that issue. We further note that on remand the trial court will have before it the issue of whether . . . the settlement agreement approved by the court requires it to consider the funds, regardless of how they are characterized.” (Emphasis in original.) Id., 369-70 n.2.

       Furthermore, it appears that the defendant’s draw did not include borrowed funds when Judge Fischer made his determination as to the defendant’s gross income in 2004. The defendant testified at the August 10, 2006 hearing that the financial statements of the business at that time did not include borrowed funds. Because Judge Fischer did not have that issue before him, there is no ruling and, therefore, no law of the case with respect to that claim.


author: FLYNN, C. J.

text:
    GERALDINE MOYE v. COMMISSIONER OF CORRECTION
    (AC 27825)
    Flynn, C. X, and DiPentima and Dupont, Js.
    Argued May 27
    officially released September 9, 2008

      Temmy Ann Pieszak, chief of habeas corpus services, for the appellant (petitioner).

      Ronald G. WeUer, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, C. J.

The petitioner, Geraldine Moye, appeals following the denial of her petition for certification to appeal from the judgment of the habeas court dismissing her amended petition for a writ of habeas corpus. On appeal, the petitioner claims that the court abused its discretion in denying certification to appeal. The dispositive issue in this appeal is the petitioner’s claim that the court improperly dismissed the amended petition without holding an evidentiary hearing. We reverse the judgment of the habeas court and remand the case for an evidentiary hearing on the petitioner’s amended petition for a writ of habeas corpus.

The following procedural history is relevant to our resolution of the petitioner’s appeal. In 1994, the petitioner was convicted, following a conditional plea of nolo contendere, of arson in the second degree in violation of General Statutes § 53a~112. Thereafter, the petitioner was sentenced to seven years imprisonment, execution suspended after two years, and three years of probation.

On April 23,1998, the petitioner filed a pro se petition for a writ of habeas corpus. Subsequently, on September 14, 2000, the petitioner’s habeas counsel filed an amended petition for a writ of habeas corpus. In the amended petition, the petitioner alleged that trial counsel had rendered ineffective assistance in failing to investigate adequately the petitioner’s mental state and to ensure that the petitioner’s plea was knowing, intelligent and voluntary. The petitioner further alleged that she had been denied due process because the court had failed to ensure that her plea was knowing, intelligent and voluntary. On September 27, 2000, the respondent, the commissioner of correction, filed a return, denying the allegations of the petition.

Between October 24, 2000, and October 25, 2004, the petitioner filed five motions to stay the proceedings, two motions for a continuance and one motion to extend the stay on the proceedings to permit the petitioner an opportunity to obtain mental health treatment and to provide time for the treatment to ameliorate the petitioner’s medical condition. The habeas court granted these motions. Thereafter, a proceeding was held on April 27, 2005, in which the court expressed concerns with the petitioner’s decision to go forward with her petition for a writ of habeas corpus, in which she sought to have the conviction and sentence vacated and the case remanded for further proceedings, because the petitioner, who had received a favorable plea bargain, already had served her sentence. Notwithstanding the court’s concerns, the petitioner stated that she understood the risks involved and again expressed her desire to proceed with the habeas matter. At the conclusion of the April 27, 2005 proceeding, the court decided to continue the case until June 1, 2005, to provide the petitioner with an opportunity to discuss her situation with a friend or a relative.

On June 1, 2005, a proceeding was held before the court. Although counsel for the petitioner was present, the petitioner failed to appear at the proceeding. Counsel for the petitioner indicated that he had not been able to contact the petitioner. As a result of the petitioner’s absence from the proceeding, the respondent orally moved to dismiss the amended petition for a writ of habeas corpus, arguing that because the petitioner had received notice at the last proceeding concerning the continuance until June 1, 2005, it was reasonable to conclude that the petitioner had decided not to go forward with the habeas matter. Counsel for the petitioner requested that the court reserve its ruling on the motion so that he could attempt to contact the petitioner. The court decided to reserve its ruling on the respondent’s oral motion to dismiss until June 7, 2005.

Because the court had not received an objection to the motion to dismiss from the petitioner by June 7, 2005, it rendered a judgment dismissing the amended petition on June 8, 2005, for failure to prosecute. However, unbeknownst to the court, counsel for the petitioner had filed an objection to the motion to dismiss prior to June 7, 2005. Because of a mishap in the clerk’s office, the court was not made aware of the petitioner’s timely objection to the motion to dismiss until June 9, 2005. On June 9, 2005, the court then entered an order staying the judgment of dismissal and indicated that a status conference would be held on June 30, 2005.

The petitioner, the petitioner’s counsel and the respondent’s counsel were present at the June 30, 2005 status conference, which was conducted on the record. At that proceeding, the court again informed the petitioner about the risks involved in proceeding with the habeas matter and asked the petitioner whether she understood the court’s concerns. The petitioner responded affirmatively and also stated that although some of her friends did not think it was in her best interest to proceed to trial, she still wanted to continue litigating the habeas matter.

Another status conference was held on April 13,2006, and the petitioner was present at that proceeding. At the commencement of the status conference, the court again asked the petitioner whether she understood the possible consequences of pursuing the habeas matter and proceeded to explain, in detail, the possible consequences. The court then asked: “[D]o you choose to litigate or do you choose to go home and get on with your life?” In response, the petitioner stated that she chose litigation. After the petitioner expressed her desire to litigate the habeas matter, the court replied: “You can choose the litigation, but I’m not going to proceed with the process we have at this point. I’m going to dismiss the habeas corpus petition for these reasons: I don’t think there’s any merit to the habeas corpus petition itself to start with. I think the decision to proceed in this case is based on some notion of yours that I cannot find any basis for any place in the file .... The resolution that makes sense from my standpoint, from [counsel’s] standpoint, from logic’s standpoint and from your standpoint is to go back to where you were when this case came up the first time and lead your life unfettered by all of this commotion that you’ve created for yourself. So, the habeas corpus matter is dismissed effective today . . . .” Following the court’s dismissal of the amended petition, the petitioner filed a petition for certification to appeal, which the court denied.

On appeal, the petitioner challenges the denial of certification to appeal as well as the judgment dismissing her amended petition for a writ of habeas corpus. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). We conclude that the court abused its discretion in denying certification to appeal, and, therefore, we address the merits of the petitioner’s claim. See Harris v. Commissioner of Correction, 108 Conn. App. 201, 205-206, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008).

The petitioner claims that the court, on April 13,2006, improperly dismissed her amended petition without affording her an evidentiary hearing. The respondent argues that the petitioner was not entitled to an evidentiary hearing because the dismissal was premised on a determination that the petitioner had failed to prosecute the matter, and, therefore, the court properly dismissed the amended petition. To support the contention that the amended petition was dismissed on the basis of failure to prosecute, the respondent refers to (1) the petitioner’s failure to appear at the June 1, 2005 proceeding, (2) the order that appears in the court file and concerns the April 13, 2006 dismissal, which indicates that the court was reinstating its dismissal of June 8, 2005, which had been rendered for failure to prosecute, and (3) the court’s closing remark at the conclusion of the April 13, 2006 proceeding in which it stated that: “this had to be done sooner or later .... The case is eight years old. It’s time we had some finality.” The petitioner disputes that the court, on April 13, 2006, dismissed the amended petition for failure to prosecute and, in contrast, asserts that the dismissal was on the merits. In addition, the petitioner contends that the court also dismissed the amended petition because of its belief that it was in the petitioner’s best interest not to pursue the habeas matter. At oral argument before this court, the respondent acknowledged that if we do not accept the argument that the court dismissed the amended petition for failure to prosecute and instead agree with the petitioner, then the petitioner would be entitled to an evidentiary hearing.

On the basis of our review of the record, we agree with the petitioner that the court did not dismiss the amended petition for failure to prosecute. The petitioner was present at the April 13, 2006 status conference, and, during this proceeding, the court specifically questioned the petitioner about whether she wanted “to litigate or ... to go home and get on with [her] life. ” In response, the petitioner unequivocally informed the court of her desire to continue litigating. Thereafter, the court dismissed the amended petition and provided the reasons for its decision. Specifically, the court stated that it did not “think there’s any merit to the habeas corpus petition itself to start with” and then proceeded to express its belief that it was not in the petitioner’s best interest to pursue the habeas matter. The court, however, never stated that the dismissal was premised on a failure to prosecute.

Furthermore, we are not persuaded by the respondent’s argument that the court’s order, in which the court stated that “[t]he judgment of dismissal is hereby reinstated,” operates to “reinstate” the grounds for the June 8, 2005 dismissal. Although the court’s order was terse, the court already provided its reasons for dismissing the amended petition at the April 13, 2006 proceeding. We similarly are not persuaded that the court’s closing remarks regarding finality, which occurred after the court already had dismissed the amended petition and provided its reasoning for the dismissal, demonstrate that the basis for the dismissal was a failure to prosecute. Indeed, the court’s stated reasons for the dismissal of the amended petition belie the respondent’s contention that the court dismissed the amended petition for failure to prosecute. It is plain that the court dismissed the amended petition because it believed that the amended petition lacked merit and that it was in the petitioner’s best interest to dismiss the matter, as it stated during the April 13, 2006 proceeding.

Because we conclude that the real basis for the dismissal was not the petitioner’s failure to prosecute, we share the view of both the petitioner and the respondent that the court improperly dismissed the amended petition without an evidentiary hearing. “In Mercer v. Commissioner of Correction, 230 Conn. 88, 93, 644 A. 2d 340 (1994), our Supreme Court stated: ‘Both statute and case law evince a strong presumption that a petitioner for a writ of habeas corpus is entitled to present evidence in support of his claims. General Statutes § 52-470 (a) provides that [t]he court or judge healing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require. In Negron v. Warden, 180 Conn. 153, 158 n.2, 429 A.2d 841 (1980), [our Supreme Court] noted that whenever a court is legally required to hear a habeas petition, § 52-470 (a) delineate [s] the proper scope of [the] hearing .... The statute explicitly directs the habeas court to dispose of the case only after hearing the testimony and arguments therein.’ ” Mitchell v. Commissioner of Correction, 93 Conn. App. 719, 725, 891 A.2d 25, cert. denied, 278 Conn. 902, 896 A.2d 104 (2006). In the present case, the court dismissed the amended petition at the April 13, 2006 status conference. It is undisputed that the petitioner did not have a hearing, nor did she have an opportunity to present evidence in support of her amended petition. Accordingly, we conclude that the petitioner is entitled to an evidentiary hearing on her amended petition for a writ of habeas corpus.

The judgment is reversed and the case is remanded for an evidentiary hearing on the petitioner’s amended petition for a writ of habeas corpus.

In this opinion the other judges concurred.

       The petitioner initially was charged with, inter alia, arson in the first degree in violation of General Statutes § 53a-lll.

       The following colloquy occurred:
      “The Court: Do you understand what the results could be for you if you pursue this?
      “[The Petitioner]: Yes, Your Honor.
      “The Court: Are you attracted by the idea of risking twenty years in prison if you go to trial and prevail on the habeas? You think you would like that prospect?

        “[The Petitioner]: No, Your Honor.
      “The Court: That could be the result because I’ve examined this file, I’ve examined this case carefully in view of the unique circumstances. I have no doubt that the state could prove your guilt beyond a reasonable doubt. They were awfully kind to you, and your trial counsel was extremely efficient and diligent in getting them not only to reduce the charge but to give you a very modest sentence and then to modify the sentence.
      “If you prevail on the habeas corpus, I don’t think you will, but if you prevail on the habeas corpus and get a new trial, you don’t get your record wiped clean, you go back to where you were in 1998, charged with arson in the first degree, and the maximum exposure you would have would be up to twenty years in prison, and in view of the fact that you confessed to the offense, there’s everything to indicate that you knew what you were doing at the time and that you’re guilty of the offense, and you’ll probably be convicted again. And that’s what you would be facing.
      “The other risk you run is when you do get reached for trial if the question comes up as to your mental capacity and your competence to stand trial, you could be found not competent to stand trial in which case you would then be sent to a mental institution.
      “So, you have three alternatives facing you: forget this case and of course you could—the other possibility is that the habeas would be unsuccessful, which is my feeling the most likely prospect, in which case you’ll be right back where you are right now with nothing changed except that you would have gone through the habeas trial. The issue of your competence might come up in that trial and the possibility of hospitalization lurks behind the scenes also, but you are—what you’re really doing is deciding from a position of freedom to try and roll the dice to see if you either get a prison sentence or a hospital sentence in a mental institution. I can’t believe that you are reasonably—that you’re making a sensible choice with those alternatives.
      “Now, those are the alternatives that you face. That’s the next act in the scene. I don’t know what your thinking is. I would be interested in hearing how you respond to this. I mean, what do you think is going to happen or what do you want to happen?
      “[The Petitioner]: Your Honor, as you have pointed out . . . there are lots of players in this situation. Now, if you’re asking me to predict the future, I can’t predict the future . . . .”

       After providing its reasons for dismissing the amended petition but immediately before recessing, the court stated: “Thank you very much for your patience for bearing with us, but this had to be done sooner or later, and I think it’s better now than [at] some later date. The case is eight years old. It’s time that we had some finality.”

       The court did not issue a memorandum of decision. The judgment states in relevant part that: “the petitioner filed an amended petition and the respondent appeared and filed a return to the amended petition, the parties were heard by the court on the petition for [a] writ of habeas corpus. The court, having heard the parties, dismisses the petitioner’s amended petition for [a] writ of habeas corpus. Whereupon, it is adjudged that the amended petition for [a] writ of habeas corpus be, and it is, dismissed.”
      The order of April 13, 2006, which appears in the court file, states: “The court’s order entered on June 9, 2005, staying the judgment of dismissal entered on June 8, 2005, is hereby vacated. The judgment of dismissal is hereby reinstated.”


author: BEACH, J. BISHOP, J.,

text:
    ROGER H. GOSSELIN v. MAUREEN E. GOSSELIN
    (AC 27453)
    Flynn, C. J., and Bishop and Beach, Js.

      Argued January 22
    officially released September 9, 2008

      Steven H. St. Clair, for the appellant (defendant).

      Susan Asselin-Connolly, with whom, on the brief, was John T. Asselin-Connolly and Richard E. Joaquin, for the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant, Maureen E. Gosselin, appeals from the judgment of the trial court granting the motion filed by the plaintiff, Roger H. Gosselin, for modification of an award of alimony payable to her under the parties’ marital dissolution judgment. On appeal, the defendant claims that the court (1) improperly granted the modification on a ground not raised in the motion filed by the plaintiff and (2) in the course of finding a substantial change of circumstances warranting a modification of alimony pursuant to General Statutes § 46b-86, improperly (a) found a substantial change in income, (b) considered that an increase in the value of the assets awarded in the dissolution decree could serve as a basis for modifying alimony and (c) considered that an unrealized increase in the value of real estate could serve as a basis for modifying alimony. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. The parties were married on June 17, 1972, and on June 20, 2000, the court entered a decree of dissolution. Pursuant to the terms of the judgment, the plaintiff was ordered to pay to the defendant as periodic alimony $75 per week for a period of eleven years, nonmodifiable as to term but modifiable as to amount. On January 10, 2005, the plaintiff filed a motion to decrease or to terminate his alimony obligation. After a hearing, the court found that the defendant’s income and the value of her assets had increased, constituting a substantial change in circumstances, and it modified the alimony order to $1 per year. The defendant filed a motion to reargue, which was denied. This appeal followed.

“An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow eveiy reasonable presumption in favor of the correctness of its action. . . . Thus, unless the trial court applied the wrong standard of law, its decision is accorded great deference because the trial court is in an advantageous position to assess the personal factors so significant in domestic relations cases. . . . With respect to the factual predicates for modification of an alimony award, our standard of review is clear. This court may reject a factual finding if it is clearly erroneous, in that as a matter of law it is unsupported by the record, incorrect, or otherwise mistaken. . . . This court, of course, may not retry a case. . . . The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Sabrowski v. Sabrowski, 105 Conn. App. 49, 52-53, 935 A.2d 1037 (2007). “Where . . . some of the facts found [by the trial court] are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole. . . . If, when taken as a whole, they undermine appellate confidence in the court’s fact finding process, a new hearing is required.” (Internal quotation marks omitted.) In re Selena O., 104 Conn. App. 635, 645, 934 A.2d 860 (2007).

“[Section] 46b-86 governs the modification or termination of an alimony or support order after the date of a dissolution judgment. When . . . the disputed issue is alimony, the applicable provision of the statute is § 46b-86 (a), which provides that a final order for alimony may be modified by the trial court upon a showing of a substantial change in the circumstances of either party. . . . Under that statutory provision, the party seeking the modification bears the burden of demonstrating that such a change has occurred. . . . Because a request for termination of alimony is, in effect, a request for a modification, this court has treated as identical motions to modify and motions to terminate brought under § 46b-86 (a) . . . .

“The traditional purpose of alimonyis to meet one’s continuing duty to support. . . . Section 46b-86 reflects the legislative judgment that continuing alimony payments should be based on current conditions. . . . Thus, [t]o avoid re-litigation of matters already settled, courts in modification proceedings allow the parties only to present evidence going back to the latest petition for modification. . . . Alimony decrees may only be modified upon proof that relevant circumstances have changed since the original decree was granted.” (Internal quotation marks omitted.) Simms v. Simms, 283 Conn. 494, 502-503, 927 A.2d 894 (2007).

I

The defendant first claims that the court improperly considered a change in the value of her assets when the motion to modify, as written, was based only on an allegation that there had been a change in the parties’ incomes. We disagree.

We recognize, as a general matter, that the right of a party to recover is limited to the allegations in his pleading. See Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., 59 Conn. App. 194, 200, 756 A.2d 309 (2000). This principle is rooted in the requirement that parties should have notice of the basis for another party’s claim. The plaintiffs motion to modify did allege only a change in income, not assets. The defendant, however, had ample notice of the plaintiffs claim that the respective values of the parties’ assets should be considered by the court in determining whether there had been a substantial change in the parties’ financial circumstances from the time of the entry of the marital dissolution decree. The record reveals that the value of the parties’ assets was a topic of depositions taken before the hearing on the motion to modify. Both parties introduced into evidence affidavits and schedules that purported to show percentage changes to income and assets; the evidence adduced at the hearing also related to both assets and income. When both sides, without objection as to this issue, introduced evidence as to assets, the defendant indisputably had notice that the plaintiffs quest for a modification was premised on a claim that there had been a substantial change to the parties’ financial circumstances, including both their assets and incomes. The defendant waived any irregularity by not objecting and by introducing evidence on the issue. See Tedesco v. Stamford, 215 Conn. 450, 461, 576 A.2d 1273 (1990) (“[t]he proper way to attack a variance between pleadings and proof is by objection at the trial to the admissibility of that evidence which varies from the pleadings, and failure to do so at the trial constitutes a waiver of any objection to such variance” [internal quotation marks omitted]), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992).

II

The defendant next claims that there were various improprieties in the court’s determination that there had been a substantial change in her financial circumstances warranting a modification of alimony. We reject the defendant’s claims.

The defendant first argues that there was no substantial change in income because each party’s proportional share of the total income remained approximately the same. That issue received cursory mention in the defendant’s brief, and we summarily reject the claim. The defendant also advanced the same argument as to asset values without analysis or authority regarding asset values, and we similarly do not consider the claim. See Rosier v. Rosier, 103 Conn. App. 338, 340 n.2, 928 A.2d 1228 (“We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” [Internal quotation marks omitted.]), cert. denied, 284 Conn. 932, 934 A.2d 247 (2007).

The defendant next claims that the court improperly found that an increase in the value of her assets following the dissolution could serve as a ground for modification of the alimony award. That argument contrasts with our Supreme Court’s holding in Gay v. Gay, 266 Conn. 641, 648, 835 A.2d 1 (2003), in which the court held that a trial court may consider a change in the value of an asset, such as real estate, when determining if there has been a substantial change of circumstances justifying the modification of an alimony award. Accordingly, the defendant’s claim must fail.

The dissent suggests that we should decide another issue, which, it maintains, was raised adequately both here and in the trial court. That claim is that the court used an incorrect figure in deciding whether a substantial change in circumstance had occurred. We do not believe we should reach the issue.

To begin, the use of an incorrect figure by the court in reaching its decision is an issue that was never brought to the attention of the trial court. At trial, and in the defendant’s posttrial motion to reargue and motion for articulation, the legal arguments raised were much the same as those presented to this court. The defendant never suggested that the trial court had used an erroneous number for the starting point of its analysis of asset change; rather, she argued that there was no substantial change of income or assets because the proportionate shares of those items remained the same and that a substantial change of value of assets could not logically support a change in the amount of alimony when the change consisted of appreciation of assets awarded in the dissolution judgment.

Following oral argument before this court, we issued the following order: “It appears that the trial court, in its comparison of assets for the purpose of determining whether a substantial change of circumstances had occurred, may have used as a starting figure the value of assets shown on the defendant’s financial affidavit at the time of the marital dissolution hearing, approximately $60,000, rather than the immediate postdissolution values taking into consideration the court’s judgment orders, as required by § 46b-86. Please submit supplemental briefs ... on the following questions: (1) Should this court address the issue of whether the trial court used incorrect asset values for comparison purposes in determining whether there was a substantial change in circumstances even though neither party has made this claim on appeal? (2) If we should reach this issue, did the court abuse its discretion such that the case should be remanded for a further hearing?”

The dissent appears functionally to frame the issue raised in the request for supplemental briefs as merely a clarification of the general issue of substantial change of circumstances, which was raised before the trial court and this court as an issue on appeal. In that respect, the dissent argues, the supplemental briefing in this case is no different from the numerous instances it cites in which this court has ordered supplemental briefs and then reached the issue articulated in the order. The problem inherent in the dissent’s analysis, however, is that it treats the issue as one already raised and does not account for the analysis required by the first question posed in the order for supplemental briefing.

The first question posed in the order for supplemental briefing asks the parties if we should reach the issue articulated, even though it was not raised by the parties. Implicit in our asking the parties if we should reach an issue that was never raised is the understanding that the issue articulated in the order is a new issue rather than a clarification of an issue already raised. Having given the parties an opportunity to persuade us that the issue deserves review, we answer the first question posed in the negative.

We conclude that because the parties have not raised the issues at trial, in posttrial motions or on appeal either in preargument briefs or at oral argument and, further, because the issues are not suitable for plain error review and do not raise jurisdictional issues, we ought not address them. The principle of limited appellate review recently was addressed by this court in Baldwin v. Curtis, 105 Conn. App. 844, 849-50 n.2, 939 A.2d 1249 (2008). “The [claim in question] was not briefed by either the plaintiff or the defendant. At oral argument, not one word was spoken on that issue. It is fundamental that the scope of appellate review in a given appeal is defined by the claims of error actually raised by the parties. Our Supreme Court consistently has admonished this court for stepping beyond that threshold. As it recently stated, ‘[w]e long have held that, in the absence of a question relating to subject matter jurisdiction, the Appellate Court may not reach out and decide a case before it on a basis that the parties never have raised or briefed.’ Sabrowski v. Sabrowski, 282 Conn. 556, 560, 923 A.2d 686, aff'd after remand, 105 Conn. App. 49, 935 A.2d 1037 (2007); see also Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 522, 815 A.2d 1188 (2003) (.Borden, J., concurring and dissenting) (‘we have even criticized, and reversed, the Appellate Court for reaching out and deciding a case before it on a basis that had never been raised or briefed’); Lynch v. Granby Holdings, Inc., 230 Conn. 95, 97-99, 644 A.2d 325 (1994) (Appellate Court improperly reached issue never raised by parties); State v. Rosario, 81 Conn. App. 621, 640, 841 A.2d 254 (Schaller, J., concurring) (‘Our Supreme Court does not approve of this court reaching and deciding issues that were not raised or briefed by the parties. . . . We should not, and indeed are without authority, to render advisory opinions.’), cert. denied, 268 Conn. 923, 848 A.2d 473 (2004). That precedent is grounded in the principle of judicial restraint.” Baldwin v. Curtis, supra, 849-50 n.2.

The circumstances in this case are analytically similar to those in Lynch v. Granby Holdings, Inc., supra, 230 Conn. 97-99. In Lynch, a housing matter, the tenant challenged on appeal the validity of an award of zero damages, despite a judgment in his favor that his lease had been breached. Id., 96-97. The theory raised by the tenant on appeal, in the course of pursuing his general claim regarding damages, was that the court’s jury instructions regarding mitigation of damages were erroneous. Id., 97. On direct ¿ppeal to this court, we reached the general issue of damages, which had been raised by the parties, but reversed the judgment on a theory of manifest jury confusion. Id., 97. That precise issue was raised before neither this court nor the trial court. Our Supreme Court held that this court improperly reversed the judgment on the basis of an issue that was not presented in either court. Id., 98-99. In reaching that conclusion, the court determined that the only appropriate appellate review of that issue was pursuant to the plain error doctrine. This case presents an analogous question: the broad change of circumstances was addressed, as it must be in any action seeking a change in alimony, but the claim regarding the correct numerical starting figure was not.

Lynch addressed that question by articulating three reasons why this court abused its discretion in reaching an issue not properly before it: (1) this court failed to discuss why plain error review was appropriate; (2) the parties did not have an opportunity to address the issue; and (3) the claim of error in that case did “not implicate interests of public welfare or of fundamental justice between the parties.” Id., 99. Here, pursuant to Lynch, we have allowed the parties to address the issue. Nevertheless, that tonic has not cured the patient.

Simply put, an order of supplemental briefing ordinarily may not raise a new issue unless that issue involves a question of jurisdiction, occasions of “plain error” or, though somewhat duplicative of plain error, fundamental constitutional issues. See, e.g., Remax Right Choice v. Aryeh, 100 Conn. App. 373, 918 A.2d 976 (2007) (supplemental briefing on question of whether court had subject matter jurisdiction); State v. Johnson, 75 Conn. App. 643, 817 A.2d 708 (2003) (plain error: court requested supplemental briefing when violation of probation based on condition that had not been imposed by court and specific claim not raised by any party). In a number of other cases, courts have requested supplemental briefing when the claim, though raised by a party, lacked clarity or required explication in light of a consideration not addressed by the parties previously. See, e.g., Lovan C. v. Dept. of Children & Families, 86 Conn. App. 290, 860 A.2d 1283 (2004); Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn. App. 622, 814 A.2d 396, cert. denied, 263 Conn. 901, 819 A.2d 836 (2003).

Because we do not believe the issue was raised at trial and the claim does not invoke jurisdictional or constitutional issues, the question remains whether plain error analysis affords relief. We conclude that the issue presented by this case cannot surmount the hurdle of plain error review. A conceivably inaccurate calculation by the court under the circumstances of this case is far from a truly extraordinary situation invoking that veiy demanding standard. Although an incorrect asset comparison may have been used, it is not necessarily true that a different result would have occurred had the court made a specific finding on the record as to the value of the defendant’s postdissolution assets. Although the very general topic of substantial change in circumstances was raised by the defendant, there is not one word in the briefs, record or at oral argument regarding an incorrect postdissolution figure, nor any in the trial court. In the absence of manifest injustice, we ought not decide the issue ourselves, whether outright or after proactively seeking input from the parties as to whether we should reach the issue.

The judgment is affirmed.

In this opinion FLYNN, C. J., concurred.

BISHOP, J.,

dissenting. Because there is a patent flaw central to the trial court’s decision, and the parties were given the opportunity to file supplemental briefs on the issue, I believe that we should address that issue in accordance with the path typically taken by this court in such circumstances, and, doing so, I would reverse the judgment of the trial court. The central facts are not in dispute. As noted by the majority and acknowledged by both parties in their supplemental briefs, it is clear that in making its determination that there had been a substantial change in the parties’ financial circumstances, the court compared the value of the current assets of the defendant, Maureen E. Gosselin, with the value of the assets she held prior to her marital dissolution instead of the values as of the date of the dissolution. Both parties and the majority appear to acknowledge, as they must, that the comparison utilized by the court was legally incorrect. Notwithstanding this patent error, the majority affirms the judgment on the ground that the application of the plain error doctrine; see Practice Book § 60-5; precludes us from reversing on this ground. I believe, respectfully, that the majority has misconstrued the plain error doctrine.

As noted by the majority, once this court noted the flaw in the trial court’s judgment, we invited counsel to brief the question of whether the court had abused its discretion in finding a substantial change of circumstances and also whether the court should address the issue, as neither party had initially made this specific argument on appeal. As to the prudential question of whether we should reach the issue, the plaintiff, Roger H. Gosselin, responded by arguing that we should not reach the claim because it was not asserted by the defendant in her initial brief or in oral argument. In claiming that we should not reach the issue, the plaintiff relies on our plain error jurisprudence and cites Small v. South Norwalk Savings Bank, 205 Conn. 751, 535 A.2d 1292 (1988), for the proposition that plain error reversals should be reserved for “truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Id., 759. Although tacitly acknowledging the court’s miscalculation of the defendant’s assets, the plaintiff also argues that the error should not cause reversal because a correct comparison of the plaintiffs assets between the date of the marital dissolution and the date of modification could also support a finding of a substantial change in her financial circumstances.

My difficulty with the plaintiffs argument and the majority’s adoption of it is twofold: (1) plain error analysis is inappropriate to the issue in question; and (2) it is not within our ken to determine that a correct calculation would have been sufficient for the court to find a substantial change of circumstances.

As has been often stated, the plain error doctrine is a rule of reversibility, not reviewability, and it will be invoked “in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 183, 920 A.2d 236 (2007); see also Practice Book § 60-5. “When the parties have neither briefed nor argued plain error ... we will not afford such review.” (Internal quotation marks omitted.) State v. Klinger, 103 Conn. App. 163, 169, 927 A.2d 373 (2007).

Here, the defendant has not requested plain error review, nor was she required to do so because the doctrine is inapplicable to the facts at hand. Unlike cases in which the plain error doctrine is invoked, neither party claims that the defendant failed to preserve this issue at trial. The plaintiffs motion for modification was based on a substantial change in circumstances. In moving for modification, the plaintiff was required to prove a substantial change in the defendant’s circumstances, and the defendant sought to disprove the plaintiffs claim. Indeed, a review of the record reveals that both parties presented various demonstrative evidence at the modification hearing in the form of graphs, and although the parties made differing arguments on the basis of these graphs, they both argued from the correct base point regarding the defendant’s assets. Notwithstanding the parties’ presentations, however, the court issued a memorandum of decision in which it patently based its analysis on incorrect criteria following which the defendant timely appealed. The issue of substantial change in circumstances, specifically regarding the change in the values of the defendant’s assets was, therefore, before the court and was, in fact, addressed by the court. Because this issue was decided at trial, and plain error review is afforded only when requested, I agree with the majority, albeit for different reasons, that we should not reverse the judgment of the trial court on the basis of the plain error doctrine.

That conclusion, however, does not end our responsibility. As a matter of fairness, we are bound to give notice to the parties of an issue or claim not raised by either on appeal but which we believe may be significant to the proper determination of the case. Here, we did just that, and gave the parties the opportunity to brief the issue. See State v. Dalzell, 282 Conn. 709, 715, 924 A.2d 809 (2007) (if reviewing court decides to address issue not previously raised or briefed, it may do so only after requesting supplemental briefs from parties or allowing argument regarding that issue). Having received the briefs of counsel and having been given no legally pertinent reason not to consider the correct application of the law, I am aware of no decisional law that suggests that we should turn a blind eye toward it. To do so represents an avoidance of our responsibilities to decide cases in accordance with the law and a departure from our normal path under similar circumstances.

Because I can find no principled reason to distinguish the procedural facts at hand from those many instances in which this court or our Supreme Court has asked for supplemental briefs and thereafter considered the issue in formulating its opinion, I would reach the issue of the court’s misapplication of the statutory criteria for a modification of alimony. In reaching this issue, I believe I would be compelled to reverse the court’s judgment because, in reaching its decision, the court clearly did not apply the criteria set forth in General Statutes § 46b-86.

Recognizing this deficiency in the court’s reasoning, the plaintiff nevertheless urges us to affirm the judgment on the ground that the actual change, on the basis of a correct comparison of income and asset values, warrants a finding of a substantial change in financial circumstances. The difficulty with this argument is that we are in no position to determine whether the evident error in calculation was harmless because such an analysis would require us to find facts. Thus, even if the record reveals that there has been an Increase in the value of the defendant’s assets since the time of the marital dissolution, whether that change is substantial is a fact bound question that is not the province of this court to answer. If we were to find from the record that the facts presented to the court established a substantial change of circumstances, we would be engaged in fact-finding, a function not the province of this court. See Weinstein v. Weinstein, 104 Conn. App. 482, 494, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008). Thus, because the court’s finding that the defendant’s assets had increased 1000 percent is clearly erroneous, the court abused its discretion in granting the plaintiffs motion for modification. For this reason I would reverse the judgment of the trial court and remand this matter for a further hearing in accordance with the proper application of the law.

Accordingly, I respectfully dissent.

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification, the court may order either party to maintain life insurance for the other party or a minor child of the parties or any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . . .”

       In its memorandum of decision, the court found that the “defendant’s income has increased and the value of her assets has increased almost 1000 percent.” It is of course possible that the court used a permissible number and that the “1000 percent” figure was mistaken. For the purpose of analysis, however, we assume that an incorrect number may have been used.

       The dissent suggests that there is no analytical difference between this case and Weinstein v. Weinstein, 104 Conn. App. 482, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008). In Weinstein, supplemental briefing was ordered on the issue of whether a substantial change of circumstances had occurred because the trial court had modified child support payments but had made no express finding as to substantial change. The panel of this court did not discuss the rationale for ordering supplemental briefing, but did reiterate the principle that no modification could be ordered without the trial court’s first finding that a substantial change had occurred. There of course are similarities between this case and Weinstein; there is also a significant difference. Weinstein lacked a conclusion of substantial change, which was a sine qua non of proceeding further, and the underlying facts did not appear to support a substantial change such that the appellant should be afforded relief. The trial court in this case reached the sine qua non but arguably used the wrong figures. The trial court does not have the authority to consider modifying child support payments unless it first has found a change of circumstance. There is a difference between not making a finding at all and making one on perhaps erroneous facts.

       Perhaps most frequently, supplemental briefing is ordered when a decision in another case or a change in law intervenes between the time of initial briefing and the appellate court’s decision.

       In making the determination that there was a substantial change of circumstances warranting a modification of alimony, the court stated in its memorandum of decision: “The defendant’s income has increased, and the value of her assets has increased almost 1000 percent. ” Earlier in its decision, in comparing the parties’ past and present financial circumstances, the court compared the financial affidavit filed by the defendant at the time of dissolution, which showed total assets of $60,000, to the current financial affidavit showing a total value of assets of approximately $500,000. The difficulty with the court’s stated analysis is that a significant portion of the assets held by the defendant at the time of the modification hearing was granted to her in the dissolution judgment. The court’s statement that the value of the defendant’s assets has increased “almost 1000 percent” can only logically and fairly be read as a comparison of the value of the defendant’s predissolution assets as stated on her financial affidavit filed at the time of the marital dissolution hearing and the value of her assets as of the date of the modification hearing. Thus, in determining that there had been a substantial change in the parties’ financial circumstances, the court made an incorrect comparison and failed to examine the parties’ financial circumstances since the date the original decree entered in accordance with General Statutes § 46b-86. See Borkowski v. Borkowski, 228 Conn. 729, 736, 638 A.2d 1060 (1994) (when party seeks postjudgment modification of dissolution decree, he or she must demonstrate that substantial change in circumstances has arisen subsequent to entry of dissolution decree or earlier modification).

       I note, as well, that the defendant did raise, in her initial brief and during oral argument, the claim that the court erroneously concluded that there had been a substantial change of financial circumstances warranting a modification of periodic alimony. The issue of substantial change of circumstances, therefore, has been before this court since the appeal was filed. We ordered supplemental briefs, however, because the specific claim we identified within that issue was not briefed or argued by either party. In doing so, I can find no principled distinction between the procedural posture of this case and those found in our recent opinion in Weinstein v. Weinstein, 104 Conn. App. 482, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008).

       The majority cites Lynch v. Granby Holdings, Inc., 230 Conn. 95, 644 A.2d 325 (1994), for the proposition that the plain error doctrine is reserved for truly extraordinary circumstances. Although I agree with that proposition, the Supreme Court in Lynch reversed this court’s judgment because this court’s opinion in that case articulated no reason why plain error review was appropriate, the parties were not given the opportunity to brief the issue and the claim of error did not implicate interests of public welfare or of fundamental justice between the parties. Id., 99. It is unclear, however, in reviewing this court’s opinion in Lynch that plain error review was accorded. In that opinion, this court simply, sua sponte, reached an issue not raised by the parties and did not give the parties the opportunity to brief the issue. See Lynch v. Granby Holdings, Inc., 32 Conn. App. 574, 578-79, 630 A.2d 609 (1993), rev’d, 230 Conn. 95, 644 A.2d 325 (1994).
      Our Supreme Court similarly reversed such action by this court in Sabrowski v. Sabrowski, 282 Conn. 556, 923 A.2d 686, aff'd after remand, 105 Conn. App. 49, 935 A.2d 1037 (2007), and State v. Dalzell, 282 Conn. 709, 715, 924 A.2d 809 (2007). The teaching of these cases is twofold: a reviewing court should act with restraint when confronted with an issue not raised at trial, reaching it only when justice and judicial integrity demand that the error be corrected, and, if the court fastens on an issue not briefed or argued on appeal, it must give the parties an opportunity to brief or argue the issue as a matter of fairness and notice. In the case at hand, because the issue was raised at trial, we need deal only with the latter portion of that formulation.

       See Weinstein v. Weinstein, 104 Conn. App. 482, 934 A.2d 306 (2007) (supplemental briefs on whether court abused discretion in modifying child support without finding either substantial change in circumstances of either party or that guideline indicated amount was at least 15 percent greater than guideline indicated amount at time of last order), cert. denied, 285 Conn. 911, 943 A.2d 472 (2008); State v. Russell, 101 Conn. App. 298, 922 A.2d 191 (supplemental briefs on whether claim before court should more properly be framed as one of insufficiency rattier than instructional error), cert. denied, 284 Conn. 910, 931 A.2d 934 (2007); Remax Right Choice v. Aryeh, 100 Conn. App. 373, 918 A.2d 976 (2007) (supplemental briefs on impact of party’s failure to timely file motion to vacate arbitration award); Gorelick v. Montanaro, 94 Conn. App. 14, 891 A.2d 41 (2006) (supplemental briefs regarding authority of successor judge when trial judge has died); Segale v. O’Connor, 91 Conn. App. 674, 881 A.2d 1048 (2005) (supplemental briefs on whether general verdict rule applied to claim on appeal); Lovan C. v. Dept. of Children & Families, 86 Conn. App. 290, 860 A.2d 1283 (2004) (supplemental briefs on parent’s right to use reasonable physical force in disciplining child); State v. Johnson, 75 Conn. App. 643, 817 A.2d 708 (2003) (supplemental briefs in regard to irregularity in probation form discovered by this court on review); Cumberland Farms, Inc. v. Zoning Board of Appeals, 74 Conn. App. 622, 814 A.2d 396 (supplemental briefs on authority of estate’s trustee regarding certain piece of property), cert. denied, 263 Conn. 901, 819 A.2d 836 (2003); Collard & Roe, P.C. v. Klein, 72 Conn. App. 683, 806 A.2d 580 (2002) (supplemental briefs on issues raised by court during oral argument but not set forth in opinion), on appeal after remand, 87 Conn. App. 337, 865 A.2d 500, cert. denied, 274 Conn. 904, 876 A.2d 13 (2005); Rosengarten v. Downes, 71 Conn. App. 372, 802 A.2d 170 (supplemental briefs on whether it was plain error for trial court to dismiss action without giving parties notice and hearing), cert. granted on other grounds, 261 Conn. 936, 806 A.2d 1066 (2002) (appeal dismissed as moot December 31, 2002); Gould v. Mellick & Sexton, 66 Conn. App. 542, 785 A.2d 265 (2001) (supplemental briefs on whether trial court had authority to render summary judgment under circumstances of case), rev’d on other grounds, 263 Conn. 140, 819 A.2d 216 (2003); Krevis v. Bridgeport, 64 Conn. App. 176, 779 A.2d 838 (2001) (supplemental briefs regarding propriety of oral motion for summary judgment), rev’d on other grounds, 262 Conn. 813, 817 A.2d 628, on remand, 80 Conn. App. 432, 835 A.2d 123 (2003), cert. denied, 267 Conn. 914, 841 A.2d 219 (2004); Munroe v. Zoning Board of Appeals, 63 Conn. App. 748, 778 A.2d 1007 (2001) (supplemental briefs regarding whether zoning board of appeals lacked jurisdiction to hear appeal from issuance of certificate of compliance by zoning enforcement officer), rev’d on other grounds, 261 Conn. 263, 802 A.2d 55 (2002), after remand, 75 Conn. App. 796, 818 A.2d 72 (2003).
      Although this list enumerates recent cases in which this court has ordered supplemental briefs on issues or claims not raised by counsel, our practice is not unique. Our Supreme Court has taken a similar approach. See Small v. Commissioner of Correction, 286 Conn. 707, 946 A.2d 1203 (2008) (supplemental briefs concerning standard of review in certain types of habeas cases); State v. Kalphat, 285 Conn. 367, 939 A.2d 1165 (2008) (supplemental briefs concerning standing of defendant to challenge legality of search); State v. Davis, 283 Conn. 280, 929 A.2d 278 (2007) (same); Brown v. Soh, 280 Conn. 494, 909 A.2d 43 (2006) (supplemental briefs on impact of prior decision on exculpatory contracts signed by public users of commercial recreation services); State v. DeCaro, 280 Conn. 456, 908 A.2d 1063 (2006) (supplemental briefs regarding whether, in light of trial court’s finding regarding compliance with subpoena, judgment should be affirmed); State v. Kirby, 280 Conn. 361, 908 A.2d 506 (2006) (supplemental briefs on whether certain statements properly admitted at trial); Dark-Eyes v. Commissioner of Revenue Services, 276 Conn. 559, 887 A.2d 848 (supplemental briefs on impact of United States Supreme Court decision involving city’s assessment of property taxes against Indian tribe), cert. denied, 549 U.S. 815, 127 S. Ct. 347, 166 L. Ed. 2d 26 (2006); Almada v. Wausau Business Ins. Co., 274 Conn. 449, 876 A.2d 535 (2005) (supplemental briefs on impact of prior decision on emotional distress claim); Location Realty, Inc. v. General Financial Services, Inc., 273 Conn. 766, 873 A.2d 163 (2005) (supplemental briefs on applicability of particular statute to issue on appeal); Bloom v. Gershon, 271 Conn. 96, 856 A.2d 335 (2004) (supplemental briefs on impact of prior decision on whether claims commissioner had authority to permit apportionment complaint against state); Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 856 A.2d 364 (2004) (supplemental briefs on whether enforceability of arbitration provision in contract is question to be decided in first instance by arbitrator); Pikulski v. Waterbury Hospital Health Center, 269 Conn. 1, 848 A.2d 373 (2004) (supplemental briefs on applicability of recently issued appellate opinion to issue at hand); Mandell v. Gavin, 262 Conn. 659, 816 A.2d 619 (2003) (supplemental briefs on meaning of statutory term “consideration”); Cox Cable Advisory Council v. Dept of Public Utility Control, 259 Conn. 56, 788 A.2d 29 (supplemental briefs on whether federal legislation preempted action of state advisory council), cert. denied, 537 U.S. 819, 123 S. Ct. 95, 154 L. Ed. 2d 25 (2002); Darien v. Estate of D’Addario, 258 Conn. 663, 784 A.2d 337 (2001) (supplemental briefs on meaning of statutory terms and relationship of certain statutes to one another); Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 780 A.2d 1 (2001) (supplemental briefs on whether statutory amendment should be retroactively applied); Ghant v. Commissioner of Correction, 255 Conn. 1, 761 A.2d 740 (2000) (supplemental briefs on standard to be applied in assessing certain ineffective assistance of counsel claim); Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, 253 Conn. 683, 755 A.2d 850 (2000) (supplemental briefs on whether statutory amendment should be retroactively applied).
      The foregoing lists only recent cases and is not meant to be exhaustive. In compiling this list of cases in which this court or the Supreme Court has ordered supplemental briefs on issues raised by the court, I have purposefully omitted those cases in which the issue raised by the court implicated the court’s subject matter jurisdiction because it is axiomatic that the court can always raise the question of its subject matter jurisdiction. I also have omitted those cases in which the Supreme Court has ordered supplemental briefs on a question of policy it has decided to review.