author: ROGERS, J.

text:
    JOHN LANDRY v. JEROLD B. SPITZ ET AL.
    (AC 26913)
    Flynn, C. J., and Rogers and Stoughton, Js.

      Argued November 28, 2006
    officially released June 26, 2007

      Mary E. R. Bartholic, with whom, on the brief, was Thomas W. Witherington, for the appellants (defendants).

      T. J. Donohue, Jr., with whom, on the brief, was Robert J. Killian, Jr., for the appellee (plaintiff).
   Opinion

ROGERS, J.

This case involves the interpretation of an oral settlement agreement reached in prior litigation. The defendants Lauren E. Spitz, individually and in her capacity as executor of the estate of Jerold B. Spitz, and Physicians’ Telephone Directory, Inc. (corporation), appeal from the judgment of the trial court concluding that they were jointly and severally hable to the plaintiff, John Landry, for damages resulting from the breach of that agreement. They claim on appeal that the court improperly (1) found a breach of the implied covenant of good faith and fair dealing that was not alleged in the complaint, (2) found that breach in the absence of an underlying contractual obligation and evidence of bad faith, (3) created a new contract term, (4) awarded damages based on a certain time period, (5) held the individual defendants liable for the obligations of Physicians’ Telephone Directory, Inc., (6) applied the parol evidence rule and (7) permitted the plaintiff to submit evidence concerning his attorney’s fees in a postjudgment proceeding. We agree with the defendants’ fourth claim, which is that the court’s damages calculation was improper, and their fifth claim, which is that the individual defendants improperly were held liable for an obligation of the corporate defendant, but we disagree with the defendants’ remaining claims. Accordingly, we reverse the trial court’s judgment as to Lauren E. Spitz, both individually and in her capacity as executor of the estate of Jerold B. Spitz. As to Physicians’ Telephone Directory, Inc., we remand the case for a redetermination of damages but otherwise affirm the judgment of the trial court.

The following facts and procedural history are relevant to the appeal. The plaintiff formerly owned 25 percent of the stock of the corporation. Jerold B. Spitz and Lauren E. Spitz together owned a controlling interest in, and were officers of, the corporation, and three other individuals owned minority interests. In 1996, two of those individuals brought a shareholders’ derivative action against the Spitzes on the basis of their allegedly improper expenditures of corporate funds. A settlement was reached just prior to the commencement of trial, and the settlement agreement was described on the record and approved by the court, Aurigemma, J., on September 23, 1997. Although the plaintiff was not a party to the shareholders’ derivative action, his interests were contemplated by the settlement agreement, and he was present with his counsel in court when it was approved.

The basic terms of the settlement agreement, in regard to the plaintiff, were found by the court in the present action to be as follows. “Under the agreement, the plaintiff agreed to do . . . two things. First, he transferred all of his rights of stock ownership, including his voting rights, to [Jerold B.] Spitz, thereby giving up all right to any say in how [the corporation] was run. Second, he gave [Jerold B.] Spitz an option, for a period of five year’s, to purchase his 25 percent interest in [the corporation] at a fixed price of $1 million. The five years began as of the date of the settlement agreement, September 23, 1997.

“In exchange, [the plaintiff] was to receive annual payments based on a specified percentage of gross sales [of the corporation]. He was to receive 6 percent of gross sales for pharmaceutical advertising, 3 percent of ancillary sales, 1.5 percent of ‘MD sales,’ and 1.5 percent of ‘book sales.’ The annual payments were made in arrears. [The corporation] was required to issue a certification of total sales in each category within thirty days of the end of each calendar year, and payment was issued thereafter. Payments were made only on funds actually received by [the corporation], with supplemental certifications issued for payments received by [the corporation] after the initial certification was issued.”

The plaintiff received certifications and payments as contemplated by the agreement for the years 1997 through 2001. In August, 2002, Jerold B. Spitz exercised his option and purchased the plaintiffs stock for $1 million. For the year 2002, the plaintiff received a certification stating that year’s gross sales figures but did not receive a payment. He also did not receive a supplemental payment for a portion of the 2001 sales for which the corporation was yet to receive payment at the time of the 2001 certification. The defendants took the position that the payments were akin to dividends, and, because the plaintiff no longer was a shareholder when the payments were due to be made under the settlement agreement, he was not entitled to them, even though he had been a shareholder for a portion of the year in which the sales underlying the payments had been made.

On April 12, 2004, the plaintiff brought a one count action against the defendants alleging breach of contract. In his complaint, he set forth the terms of the settlement agreement concerning the calculation of his annual payments and the existence and exercise of the stock purchase option. The plaintiff alleged generally that the defendants’ failure to pay him anything for the 2002 sales, and an additional amount based on the 2001 sales for which payment was received subsequent to that year’s certification, constituted breaches of the settlement agreement. The complaint did not include a claim alleging violation of the implied covenant of good faith and fair dealing. The plaintiff attached to the complaint as exhibits the September 23, 1997 transcript memorializing the settlement agreement and the 2002 certification of the corporation’s gross sales.

A trial to the court was held in March, 2005. In an August 18, 2005 memorandum of decision, the court, Miller, J., concluded that the defendants, by withholding the payments that the plaintiff claimed were due, had breached the settlement agreement. It acknowledged that there was nothing in the agreement specifically addressing the question of whether the plaintiff was entitled to a payment in a year in which the option to purchase his stock was exercised and found further that that issue had not been discussed either during the prior litigation or subsequent to its settlement. The court reasoned, however, that the plaintiff had bargained away valuable rights in exchange for the annual payments he was to receive under the agreement. It thus found that the defendants’ refusal to make those payments constituted a breach of the implied covenant of good faith and fair dealing that is part of every contract. According to the court, “[i]f the defendants were to prevail on their claim that exercise of the purchase option extinguished their obligation to pay over $240,000 to the plaintiff, the result would be that [the] plaintiff received nothing in exchange for the benefits [Jerold B.] Spitz enjoyed for the first eight and one-half months of 2002. This court finds that [the] defendants’ attempt to achieve this result was a clear violation of their duty to deal with the plaintiff fairly and in good faith.”

The court awarded the plaintiff total damages of $175,559.13. That amount is comprised of $24,150 remaining unpaid from [the] 2001 gross sales and $151,409.13, which represents a prorated portion of the amount the plaintiff would have received pursuant to the settlement agreement had he been a shareholder for the entire year of2002. The court rendered judgment in the total amount against all of the defendants, jointly and severally. This appeal followed.

I

The defendants claim first that the court improperly decided the case on the basis of the implied covenant of good faith and fair dealing because the plaintiff did not allege a breach of that covenant in his complaint or litigate the issue of such a breach at trial. According to the defendants, the first time the plaintiff raised a claim that the covenant had been breached was in his posttrial brief, which resulted in prejudice to the defendants. We are not persuaded.

“The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.” (Internal quotation marks omitted.) Lyons v. Nichols, 63 Conn. App. 761, 764, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001). A complaint should “fairly put the defendant on notice of the claims against him.” (Internal quotation marks omitted.) Id. Thus, a plaintiff during trial cannot vary the factual aspect of his case in such a way that it alters the basic nature of the cause of action alleged in his complaint. See Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 63, 717 A.2d 77 (1998). “In other words, [a] plaintiff may not allege one cause of action and recover upon another.” (Internal quotation marks omitted.) Id.

The defendants’ claim requires us to interpret the allegations of the plaintiffs complaint to determine what it fairly alleges and to compare those allegations with the court’s judgment, as informed by the trial record. The interpretation of pleadings presents a question of law over which our review is plenary. Maloney v. PCRE, LLC, 68 Conn. App. 727, 746, 793 A.2d 1118 (2002).

The defendants argue that the plaintiff alleged only breach of contract in his complaint and that he raised the applicability of the implied covenant of good faith and fair dealing for the first time in his posttrial brief. According to the defendants, to establish a breach of the implied covenant of good faith and fair dealing, a party must prove, inter alia, bad faith, an element not contemplated by a standard breach of contract claim. They assert, therefore, that the court improperly found a breach on this theory because their bad faith was neither alleged nor litigated. The defendants claim that they would have defended this case differently had they known their good faith was at issue.

The relevant legal principles are well established. “ [I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship. ... In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party’s discretionary application or interpretation of a contract term. ... To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiffs right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith.” (Emphasis added; internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007).

Bad faith has been defined in our jurisprudence in various ways. “Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. . . . Bad faith means more than mere negligence; it involves a dishonest purpose.” (Internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 433, 849 A.2d 382 (2004). “[B]ad faith may be overt or may consist of inaction,” and it may include “evasion of the spirit of the bargain . . . .” (Internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn. App. 657, 667, 778 A.2d 237 (2001), quoting 2 Restatement (Second), Contracts § 205, comment (d) (1981); see also 23 S. Williston, Contracts (4th Ed. Lord 2002) § 63:22, p. 508 (“a party who evades the spirit of the contract . . . may be liable for breach of the implied covenant of good faith and fair dealing” [internal quotation marks omitted]).

We have reviewed the plaintiffs complaint closely and conclude that the defendants are correct that it alleges nothing more than a disagreement between the parties as to the defendants’ obligations under the settlement agreement and does not claim bad faith. See footnote 5. Nevertheless, in the context of a postjudgment appeal, if a review of the record demonstrates that an impleaded cause of action actually was litigated at trial without objection such that the opposing party cannot claim surprise or prejudice, the judgment will not be disturbed on the basis of a pleading irregularity. See Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990) (“[t]he absence of a requisite allegation in a complaint that would have justified the granting of a motion to strike ... is not a sufficient basis for vacating a judgment unless the defect has resulted in prejudice”), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992). In that circumstance, provided the plaintiff has produced sufficient evidence to prove the elements of his unpleaded claim, the defendant will be deemed to have waived any defects in notice. See id. (“judgment will not be arrested for faults in [pleadings] when facts sufficient to support the judgment have been substantially put in issue and found” [internal quotation marks omitted]). In short, “a pleading defect cannot be a basis for setting aside a judgment unless it has materially prejudiced the defendant.” Id., 459. There remains the question, then, of whether the issue of the defendants’ bad faith actually was litigated at trial such that it could be said that the defendants waived any objection to a pleading defect.

Our review of the trial record reveals that the plaintiffs presentation of his case was sufficient to place in issue the defendants’ bad faith and, therefore, the applicability of the implied covenant of good faith and fair dealing. As the previously recited authorities indicate, the notion of bad faith encompasses a wide range of dishonest behavior, including evasion of the spirit of the bargain. “[W]hen one party performs the contract in a manner that is unfaithful to the purpose of the contract and the justified expectations of the other party are thus denied, there is a breach of the covenant of good faith and fair dealing, and hence, a breach of contract, for which damages may be recovered; reasonable or justified expectations, in turn, are to be determined by considering the various factors and circumstances that surround the parties’ relationship and thereby shape or give contour to the expectations in the first instance.” 23 S. Williston, supra, § 63:22, p. 514.

The factors and circumstances surrounding the settlement agreement and, additionally, what the agreement was intended to accomplish, were a major focus of the trial in this matter. The essence of the plaintiffs claim, as is evident from his testimony, was that the defendants’ discretionary interpretation of how the distribution provision should operate in the year the option was exercised was contrary to the spirit of that agreement. The plaintiff testified repeatedly as to his position that for each year the parties’ agreement was in effect, he had given something of value to the defendants, namely, both the stock purchase option and the rights attendant to his stock ownership, and that he reasonably expected to receive something in return, namely, the annual distributions from the corporation’s gross sales. According to the plaintiff, in failing to give him anything in exchange for his performance during a portion of 2002, the defendants were interpreting their obligations under the agreement in a manner inapposite to its purpose, in other words, in bad faith.

The arguments made by the plaintiffs counsel also are indicative of the plaintiffs theory that the defendants’ view of their obligations ran counter to the spirit of the settlement agreement. For example, when opposing the defendants’ motion to dismiss, which was considered by the court at the conclusion of the plaintiffs case, the plaintiffs counsel argued that for eight months of 2002, the plaintiff gave up all of his shareholder rights and provided the defendants with a valuable option, and that if the plaintiff received no payment in return, a significant forfeiture would be the result.

Given the foregoing, the defendants cannot claim that they were unfairly surprised that their good faith was at issue. It is clear that the plaintiff was challenging their interpretation of the agreement as contrary to the spirit of the bargain, a species of bad faith. Consequently, the defendants’ first claim fails.

II

The defendants claim next that the court improperly found a breach of the implied covenant of good faith and fair dealing in the absence of an underlying contractual obligation and evidence of their bad faith. We disagree.

We reiterate the relevant principles. A duty of good faith and fair dealing is implied into every contractual relationship, and it requires that neither party do anything to injure the other’s right to receive the benefits of the contract. See Renaissance Management Co. v. Connecticut Housing Finance Authority, supra, 281 Conn. 240. “The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party’s discretionary application or interpretation of a contract term.” (Internal quotation marks omitted.) Id. To establish that the covenant has been breached, a plaintiff must show that the acts by which a defendant allegedly impeded the plaintiffs right to receive reasonably expected contract benefits were taken in bad faith. Id. Most courts decline to find a breach of the covenant apart from a breach of an express contract term. 23 S. Williston, supra, § 63:22, p. 516. Stated otherwise, “the claim [that the covenant has been breached] must be tied to an alleged breach of a specific contract term, often one that allows for discretion on the part of the party alleged to have violated the duty.” Id.

In the absence of definitive contract language or where the relevant language is ambiguous, the court’s interpretation of an agreement presents a question of fact subject to the clearly erroneous standard of review. See Histen v. Histen, 98 Conn. App. 729, 733, 911 A.2d 348 (2006). Furthermore, “whether particular conduct violates or is consistent with the duty of good faith and fair dealing necessarily depends upon the facts of the particular case, and is ordinarily a question of fact to be determined by the . . . finder of fact.” 23 S. Wil-liston, supra, § 63:22, p. 507; see also Renaissance Management Co. v. Connecticut Housing Finance Authority, supra, 281 Conn. 240 (“[w]hether a party has acted in bad faith is a question of fact”).

The defendants argue that the court improperly found a breach of the covenant apart from any breach of the settlement agreement. It is undisputed, however, that the settlement agreement provided for annual distributions to “minority shareholders,” one of whom was the plaintiff, to be paid to those shareholders after the close of the calendar year in which the sales underlying the distributions were made. That provision was not clear, however, in regard to how it was to apply in the event that Jerold B. Spitz exercised his stock purchase option and, therefore, the person whose shares were purchased was a “minority shareholder” for only part of the year in which those sales were made. Clearly, it was the defendants’ discretionary interpretation of this ambiguous term upon which the court imposed the requirements of the duty of good faith and fair dealing. The defendants’ claim that the court found a breach of the covenant in the absence of an explicit contract term is, therefore, without merit.

The defendants’ claim that the court found a breach of the covenant in the absence of bad faith is equally unavailing. As we explained in part I, bad faith may include one party’s performance or interpretation of the contract in a manner that evades its spirit and is unfaithful to its purpose, resulting in a denial of the justified expectations of the other party. See Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., supra, 63 Conn. App. 667; 2 Restatement (Second), supra, § 205, comment (d); 23 S. Williston, supra, § 63:22, p. 508. Substantial evidence was presented in this case concerning the course of dealings between the parties, the purpose of the settlement agreement and the resultant justified expectations of the plaintiff. See 23 S. Williston, supra, § 63:22, p. 514. On the basis of that evidence, the court found that the defendants’ discretionary interpretation of the distribution provision to deny the plaintiff any payment for 2002 was an attempt to cause a result contrary to those expectations and, thus, amounted to a dereliction of their duty to deal with the plaintiff in good faith. We conclude that the court’s finding was not clearly erroneous.

Ill

The defendants also claim that the court improperly created a new contract term. More specifically, they argue that the court, in awarding damages representing a pro rata portion of the distribution to which the plaintiff would have been entitled had he been a stockholder of the corporation for all of 2002, effectively created a new contract term. In essence, the defendants attack the court’s method of determining damages as having no explicit basis in the settlement agreement because that agreement did not overtly provide for partial year distributions. We are not convinced.

We first note the standard of review applicable to challenges to damages awards. “[T]he trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn. App. 673, 699, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). “When, however, a damages award is challenged on the basis of a question of law, our review [of that question] is plenary.” (Internal quotation marks omitted.) Robert v. Scarlata, 96 Conn. App. 19, 22, 899 A.2d 666 (2006).

The court explained that it was fashioning a remedy to award the plaintiff “that which he would have received had the defendants dealt with him fairly and in good faith.” “It is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed [by the breaching party].” (Internal quotation marks omitted.) Russell v. Russell, 91 Conn. App. 619, 643, 882 A.2d 98, cert. denied, 276 Conn. 924, 925, 888 A.2d 92 (2005). To that end, the court applied the percentages agreed to in the settlement agreement to the undisputed gross sales figures in the certification provided by the defendants for 2002, just as the agreement contemplated. It then reduced the figure thus arrived at to compensate for the fact that the consideration the plaintiff had given in exchange for the distribution, i.e., the purchase option and the rights associated with his stock, had been provided for only a portion of 2002 due to the defendants’ midyear exercise of the option.

We conclude that the damages award was the product of a legitimate exercise of the court’s broad discretion. The award was factually supported because it was based on the 2002 certification of gross sales that was in evidence. Furthermore, it was legally correct insofar as it resulted from application of the explicit terms of the settlement agreement to the certification figures and, otherwise, was designed to give the plaintiff what he would have received had the defendants acted in good faith and not attempted to accept the benefit of several months of the plaintiffs performance of his contract obligations while providing nothing in return. We reject the defendants’ characterization of the court’s remedy as the effective creation of a new contract term. Rather, the award represents the application of an explicit contract term, that providing for annual distributions, and the implied duty of good faith and fair dealing to the circumstance of only a partial year of performance by the plaintiff. The defendants’ third claim fails.

IV

The defendants argue next that the court’s damages award was improper because it was based on the wrong time period. The plaintiff does not contest this argument, and we agree that the time period used by the court to calculate damages lacks support in the evidence.

Again, the court’s damages award presents a factual matter that we review only for clear error. Duplissie v. Devino, supra, 96 Conn. App. 699. It is well established, however, that “[djamages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.” (Internal quotation marks omitted.) Id. In a breach of contract action, although the injured party should receive a damages award that places him in the same position that he would have occupied had the contract been performed properly, he nevertheless “is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain. . . . Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach.” (Internal quotation marks omitted.) Russell v. Russell, supra, 91 Conn. App. 643-44.

The court awarded damages for the portion of the year that the plaintiff retained his stock ownership because that was the time period during which he was performing his obligations pursuant to the settlement agreement by surrendering his stock rights and providing an option. The agreement provided that the defendants could exercise the option to purchase the plaintiffs stock at any time within five years from the settlement date and that the plaintiff was required to relinquish his stock, in exchange for an established purchase price, within fifteen days of that exercise. It is undisputed that once the option was exercised, the plaintiff timely tendered the stock as required by the agreement.

The court found that the plaintiff had retained his stock for the first eight and one-half months of 2002 and calculated damages accordingly. It is this finding that the defendants now challenge. In his complaint, the plaintiff had alleged that the defendants exercised the option “in August, 2002.” In their answer, however, the defendants admitted only that “in or about August 2002, [they] purchased the [plaintiffs stock . . . .” (Emphasis added.) The dates of option exercise and stock purchase never were established with precision. The only evidence presented at trial regarding either of those dates was the testimony of Lauren E. Spitz, which was somewhat vague. She testified that the defendants notified the plaintiff “some time toward the end of July” that they were exercising the option and that the plaintiff was to surrender his stock within the requisite fifteen days. On the pleadings and evidence, therefore, the latest the court could have found the stock to have been surrendered was mid-August, 2002, which would have resulted in a seven and one-half month period of ownership for the plaintiff for that year. The court’s award based on eight and one-half months therefore was clearly erroneous such that the award must be recalculated. See Duplissie v. Devino, supra, 96 Conn. App. 699 (“[t]he court must have evidence by which it can calculate the damages, which is not merely subjective or speculative, but which allows for some objective ascertainment of the amount” [internal quotation marks omitted]).

V

The defendants’ next claim is that the court, by concluding that they were jointly and severally liable for the damages resulting from the breach of the settlement agreement, improperly held the individual defendants, Lauren E. Spitz and the estate of Jerold B. Spitz, responsible for the obligations of the corporation. Again, the plaintiff has not contested this argument in his appellate brief. We agree with the defendants that the court improperly held the individual defendants liable for the breach of a contractual obligation of the corporation.

In its memorandum of decision, the court, after determining the amount of damages due to the plaintiff, concluded that the defendants were jointly and severally liable for that amount. The court reasoned only that “[t]he individual defendants were parties to the settlement agreement and to the subsequent ‘Shareholder Voting Trust and Agreement,’ ” and, therefore, were liable along with the corporation for the plaintiffs damages. The court did not include any further analysis or authority in support of its conclusion. “When legal conclusions of the trial court are challenged on appeal, we must decide whether [those] . . . conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166, 181, 914 A.2d 533 (2007).

It is not disputed that all of the defendants were parties to the settlement agreement that created obligations vis-a-vis the plaintiff. Under general principles of contract law, “where two or more promisors enter into an agreement with a third party for one performance, there is a presumption that the promisors are contracting jointly in the absence of words of severance in the contract . . . .” (Citation omitted; internal quotation marks omitted.) Updike, Kelly & Spellacy, P.C. v. Beckett, 269 Conn. 613, 661-62, 850 A.2d 145 (2004). It appears that the court, without explicitly acknowledging it, may have applied the foregoing presumption to the settlement agreement and found it unrebutted. In other words, the court apparently held the defendants jointly responsible for the payments due to the plaintiff under the settlement agreement because that agreement lacks words of severance. Our Supreme Court has observed, however, that “[t]he question of whether two [or more] promisors [have] promise[d] the same or [rather] separate performances is distinct from the question [of] whether two promisors of the same performance are bound by joint or by several duties or by both, but the two questions are sometimes confused. The question [of] what performances are promised is entirely a question of interpretation of the promises . . . .” (Internal quotation marks omitted.) Id., 663. Furthermore, the presumption of a joint contractual duty arises only after it has been established that the multiple promisors have promised the same performance. See id., 664.

Our review of the transcript memorializing the settlement agreement reveals nothing to indicate that the individual defendants intended to promise the same performance as the corporation under that agreement. To the contrary, in regard to the distribution provision, it is clearly stated that “[t]he agreement is that PTD [i.e., Physicians Telephone Directory, Inc.] will pay [the distributions] to the minority shareholders . . . .” (Emphasis added.) The transcript reflects further the agreement that “the PTD corporation, which will in effect be controlled virtually exclusively by [the Spitzes], will have to provide a certificate . . . within thirty days of the end of each calendar year certifying what the total sales are . . . and a check will be due for the appropriate percentage based on that certificate.” (Emphasis added.) It states moreover that the payments under the agreement are “not intended to be in addition to the profits [previously flowing to the shareholders from the corporation, but are] intended to be in lieu of [those] profits.”

It is clear from the recited provisions that the intent of the parties to the agreement was that the corporation, and not the individual defendants, would be responsible for the payment of the annual distributions to the minority shareholders. It was explicitly stated that the corporation would make those payments and also would provide the underlying documentation and, further, that the payments were designed to replace profits that the corporation, absent the agreement, would have been obligated to pass along to its shareholders. Although the individual defendants agreed to the settlement on the record, there is no indication that they were promising personally to perform the obligations of the corporation, as opposed to using their powers as officers and controlling shareholders to cause the corporation to perform. “The fact that [the defendant corporate officers] acted on behalf of the company [in so agreeing] is no more than a reflection of the reality that all corporations act through individuals. It is axiomatic that while such an entity has a distinct legal life, it can act only through individuals.” KLM Industries, Inc. v. Tylutki, 75 Conn. App. 27, 35, 815 A.2d 688, cert. denied, 263 Conn. 916, 821 A.2d 770 (2003).

“A corporation is a separate legal entity, separate and apart from its stockholders.” State v. Radzvilowicz, 47 Conn. App. 1, 18, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997). Absent rightful disregard of the corporate form, those “stockholders are not personally liable for the acts and obligations of the corporation.” Saphir v. Neustadt, 177 Conn. 191, 209, 413 A.2d 843 (1979); see also General Statutes § 33-673 (b). We conclude that the court misapplied legal principles in holding the individual defendants jointly and severally hable for the contractual obligations of the corporation and, consequently, that the judgment against the individual defendants is improper and must be reversed.

VI

The defendants claim further that the court improperly applied the parol evidence rule because the settlement agreement was not ambiguous. We disagree.

The following additional procedural history is relevant. Prior to the start of trial, the defendants filed a motion in limine “to preclude the [p]laintiff from offering any parol evidence to vary, contradict or otherwise explain the written terms of the . . . settlement agreement . . . .” According to the defendants, the transcript of the settlement agreement was an unambiguous expression of the parties’ intent as to the matters in issue. The court denied the motion, reasoning that “the question of whether a minority shareholder is entitled to an annual distribution, based on a percentage of certain gross sales of the corporation, if that shareholder sold his or her minority interest during the year . . . simply is not addressed in the agreement . . . .” Accordingly, the court concluded, the agreement was sufficiently ambiguous so as to warrant the admissibility of extrinsic evidence.

“Ordinarily, the trial court may exercise its discretion with regard to evidentiary rulings, and [those] rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Because the parol evidence rule is not an exclusionary rule of evidence, however, but a rule of substantive contract law . . . the [defendants’] claim involves a question of law to which we afford plenary review.” (Citation omitted; internal quotation marks omitted.) Stamford Wrecking Co. v. United Stone America, Inc., 99 Conn. App. 1, 8-9, 912 A.2d 1044, cert. denied, 281 Conn. 917, 917 A.2d 999 (2007). Moreover, “[w]hether a contractual provision is ambiguous [also] presents a question of law” subject to plenary review. LMK Enterprises, Inc. v. Sun Oil Co., 86 Conn. App. 302, 306, 860 A.2d 1229 (2004).

“The parol evidence rule ordinarily prohibits a court from considering extrinsic evidence in interpreting an agreement when that evidence tends to alter the explicit terms of the agreement. . . . However, [t]he parol evidence rule does not of itself . . . forbid the presentation of parol evidence, that is, evidence outside the four comers of the contract concerning matters governed by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract.” (Citation omitted; internal quotation marks omitted.) Battalino v. Van Patten, 100 Conn. App. 155, 167-68, 917 A.2d 595 (2007). “The operative question becomes whether parol evidence is offered to contradict the writing or to aid in its interpretation.” (Internal quotation marks omitted.) Scinto v. Sosin, 51 Conn. App. 222, 242, 721 A.2d 552 (1998), cert. denied, 247 Conn. 963, 724 A.2d 1125 (1999). “[E]xtrinsic evidence is always admissible to explain an ambiguity appearing in the instrument.” (Internal quotation marks omitted.) Hare v. McClellan, 234 Conn. 581, 597, 662 A.2d 1242 (1995).

We conclude that the court properly considered extrinsic evidence to determine the meaning of an ambiguous provision of the settlement agreement and that it did not utilize that evidence to vary or contradict the explicit terms of the agreement. As the court explained, the provision at issue provided for annual distributions to minority shareholders in certain percentages of gross sales but did not supply guidance as to how it should apply in the event an individual was a minority shareholder for only a part of the year in which those sales were made. The agreement did not establish a method for calculating distributions in a partial year situation, nor did it indicate that a shareholder’s stock ownership on a specific day of the year was a prerequisite to that shareholder receiving a distribution based on that year’s sales. In short, the distribution provision was unclear as to its proper application in the circumstances presented. The court thus properly considered extrinsic evidence not to alter or contradict the agreement but merely to explain how the distribution provision ought to operate for the year 2002. See, e.g., Heaven v. Timber Hill, LLC, 96 Conn. App. 294, 306-307, 900 A.2d 560 (2006) (court properly considered testimony that did not vary or contradict written agreement but, rather, explained meaning of undefined term).

VII

The defendants’ last claim is that the court improperly permitted the plaintiff to submit evidence as to his attorney’s fees in a posttrial proceeding. This claim is meritless.

We review a trial court’s rulings as to attorney’s fees and the allowance of additional evidence for an abuse of discretion. See Mangiante v. Niemiec, 98 Conn. App. 567, 569-70, 910 A.2d 235 (2006); Wasson v. Wasson, 91 Conn. App. 149, 155, 881 A.2d 356, cert. denied, 276 Conn. 932, 890 A.2d 574 (2005). “Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Mangiante v. Niemiec, supra, 570.

After concluding that the defendants were liable for breach of contract and determining the amount of damages, the court addressed the issue of attorney’s fees. The court stated the following: “The court-approved settlement agreement clearly stated that ‘reasonable attorney’s fees’ would be payable ‘in the event suit is necessary to enforce the provision [regarding annual distribution payments].’ The defendants have correctly pointed out that there is insufficient evidence before the court, at this time, to make a finding as to what a reasonable attorney’s fee would be for the prevailing party. It is hardly unusual, in a case in which a party is entitled to attorney’s fees, to make such determinations in a postjudgment proceeding. Indeed, until the trial has been completed and briefs have been submitted, a fair, complete determination of an appropriate fee award is frequently not possible. Counsel will be given the opportunity to submit documentation and further briefs, if they choose to do so, on the issue of attorney’s fees in this matter.”

The defendants claim that the plaintiff was obligated to submit evidence of his attorney’s fees before resting his case and that the court, by affording him the opportunity to litigate fees in a supplemental proceeding, abused its discretion. They argue that the court effectively gave the plaintiff a “second opportunity” to cure an evidentiary shortcoming, which resulted in prejudice to the defendants. We are not persuaded.

Practice Book § 11-21 provides that a party shall file a motion for attorney’s fees with the court “within thirty days following the date on which the final judgment of the trial court was rendered. . . .” This provision by its terms necessarily contemplates posttrial proceedings for the determination of attorney’s fees. We can conceive of no possible prejudice to the defendants that would result from a separate hearing for this purpose. The challenged ruling is entirely in accord with Practice Book § 11-21 and, therefore, was well within the court’s discretion.

The judgment is reversed as against the defendant Lauren E. Spitz, both individually and as the executor of the estate of Jerold B. Spitz, and the judgment is reversed as against the defendant Physicians’ Telephone Directory, Inc., only as to the award of damages; the case is remanded with direction to render judgment for the defendant Lauren E. Spitz and for a redetermination of damages against the defendant Physicians’ Telephone Directory, Inc., in accordance with law.

In this opinion the other judges concurred.

       Jerold B. Spitz died on September 16, 2004, subsequent to the institution of this action. On March 10, 2005, the court granted the motion of Lauren E. Spitz, executor of the estate of Jerold B. Spitz, to substitute herself in place of the decedent as a party defendant.

       See General Statutes § 52-572j.

       Pursuant to General Statutes § 52-57%j (a), a shareholders’ derivative action “shall not be dismissed or compromised without the approval of the court

       Specifically, he “received payments in 1998 (for 1997), 1999 (for 1998), 2000 (for 1999), 2001 (for 2000) and 2002 (for 2001).”

       The plaintiffs breach of contract claim, in its entirety, is as follows: “1. The defendants entered into a Settlement Agreement with the plaintiff on September 23,1997. (A copy of said Settlement Agreement is attached hereto as Exhibit A.)
      “2. Pursuant to said Settlement Agreement, the defendants agreed to pay the plaintiff in each calendar year six percent (6%) of the gross pharmaceutical sales for advertisements; three percent (3%) of ancillary sales; one and a half percent (1 V2%) of MD sales; and one and a half percent (1 V2%) of book sales.
      “3. Pursuant to said Settlement Agreement the defendants had an option (in their sole and exclusive determination) to purchase the plaintiffs stock, which the defendants exercised in August, 2002.
      “4. In accordance with his rights under the Settlement Agreement, the defendants provided [the] plaintiff with a certification in regard to the various categories of sales which took place in calendar year 2002 in order to document his percentages for that portion of [the] 2002 proceeds that have been received by the defendants for said sales, which should be paid to the plaintiff. (A copy of said statement is appended hereto as Exhibit B.)
      “5. The defendants have failed to pay any sums to the plaintiff in regard to the sales for calendar year 2002. Said action represents a breach of the Settlement Agreement reached between the parties.
      “6. In addition, the defendants have failed to pay the plaintiff $24,150.00 in commissions earned from the 2001 edition which were to be due from accounts Aricept, Levaquin, and Lovenox, which were earned but not collected prior to The Little Blue Book 2001 Edition Certification dated January 30, 2002, a copy of which is attached hereto and made a part hereof as Exhibit A. The Settlement Agreement required [the] defendants] to pay commissions upon receipt of advertising payments and [they have] failed to do so. Said failure represents a breach of the Settlement Agreement reached between the parties.
      “7. In accordance with the terms of the Settlement Agreement, the plaintiff is entitled to payment of reasonable attorney’s fees for enforcing the terms of the Settlement Agreement.” (Internal quotation marks omitted.)

       Indeed, the plaintiff has conceded in his appellate brief that his complaint lacks allegations of bad faith. We reject his argument that such allegations are essential only when a party claims a tortious breach of the covenant of good faith and fair dealing. See, e.g., Grand Sheet Metal Products Co. v. Protection Mutual Ins. Co., 34 Conn. Sup. 46, 375 A.2d 428 (1977); see also Hilton Hotels Corp. v. Butch Lewis Productions, Inc., 107 Nev. 226, 233, 808 P.2d 919 (1991) (noting difference between tort and contract actions for breach of covenant). As we have explained, bad faith also is a necessary element of a claim for breach of the covenant sounding in contract. See Renaissance Management Co. v. Connecticut Housing Finance Authority, supra, 281 Conn. 240; De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., supra, 269 Conn. 433.

       The plaintiff testified repeatedly and consistently in this regard. For example, on cross-examination, he described his understanding of the annual distributions as follows: “The payment I received was for two things: [it] was for me to give up my rights to do anything in the company, [and] it gave the Spitzes the right to run the company in any way they saw fit; also, I was given that money for . . . giving them an option to buy me out at any time over five years.”
      As to 2002, the year in which the option was exercised, he explained: “I was the holder of the stock for eight months of the year. For those eight months I gave them the right to do whatever they wanted to do with the company and also gave them the right to exercise an option to buy me out. So, I was a holder of the stock for that time period. And I also understand that we gave them the right and they paid us in arrears. So, we had to wait for the payment.”
      The plaintiff later reiterated: “I believe the contract is very clear that I gave up the rights for the Spitzes to run the company without having any say at all. I also gave them . . . options to buy me out over a five year period. For those rights, I felt that as long as they did that for eight months of that year, they owed me that money.”

       The defendants’ argument that there is no provision requiring the corporation to make payments to former shareholders is nothing more than another way of saying that the term providing for distributions to minority shareholders is ambiguous as to its applicability to a year in which the option was exercised. The obvious response to the defendants’ argument is that there also is no provision requiring stock ownership on a specific date as a prerequisite to a minority shareholder’s right to receive a distribution for a particular year. Furthermore, the agreement does not define “minority shareholders” with reference to any particular point in time. In sum, the settlement agreement is ambiguous in this regard.

       See footnote 7. Lauren E. Spitz also testified as to what the settlement agreement was intended to accomplish, as did the Spitzes’ attorney at the time of the settlement. The parties were in substantial accord that the agreement was crafted to allow Jerold B. Spitz to run the corporation as he wanted in exchange for a reasonable payout to the minority shareholders. The transcript of the settlement agreement also is indicative of this purpose.
      Lauren E. Spitz testified further as to her belief that the agreement did not require any payment to the plaintiff for 2002, and Jerold B. Spitz, via affidavit, attested that only those minority shareholders who were holders of record at the end of a given year were to receive payments. The court, however, implicitly rejected Lauren E. Spitz’ interpretation of the distribution provision and explicitly found that Jerold B. Spitz’ affidavit was “entirely self-serving and not credible . . . .” In effect, the court found the Spitzes’ interpretations of the settlement agreement to be disingenuous. This court will not revisit credibility determinations. State v. Ortiz, 95 Conn. App. 69, 81, 895 A.2d 834, cert. denied, 280 Conn. 903, 907 A.2d 94 (2006).

       When testifying about a different matter, the plaintiff, similarly, indicated that he “was a shareholder until August of [2002].” (Emphasis added.)

       In or around February, 1998, Jerold B. Spitz, the plaintiff and the remaining minority shareholders executed a “Shareholder Voting Trust and Agreement” (voting trust) to implement the term of the settlement agreement providing for the transfer of the minority shareholders’ stock rights to Jerold B. Spitz. We note that Lauren E. Spitz was not a party to the voting trust.

       The defendants did not seek an articulation in this regard. See Practice Book § 66-5.

       It is unclear what rationale the court employed to conclude that the individual defendants’ participation in the voting trust; see footnote 12; affected their obligations under the settlement agreement. We conclude that the voting trust, which was an entirely separate agreement executed several months subsequent to the settlement agreement, has no bearing on the question of the individual defendants’ liabilities under the settlement agreement. In any event, as we have noted, only one of the individual defendants was a party to the voting trust. See footnote 11.

       We note that the plaintiff did not allege or prove the requisite elements of a corporate veil piercing claim. See, e.g., Morris v. Cee Dee, LLC, 90 Conn. App. 403, 413-15, 877 A.2d 899, cert. granted on other grounds, 275 Conn. 929, 883 A.2d 1245 (2005) (appeal withdrawn March 13,2006). Accordingly, the personal assets of the Spitzes are not available to satisfy a judgment against the corporation.

       We note that the plaintiffs complaint included a claim for reasonable attorney’s fees. See footnote 5.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    CIANBRO CORPORATION v. NATIONAL EASTERN CORPORATION
    (AC 27851)
    Schaller, McLachlan and Freedman, Js.

      Argued March 19
    officially released June 26, 2007

      Raymond A. Garcia, with whom were Nicole Liguori Micklich, and, on the brief, James E. Regan, for the appellant (defendant).

      Timothy S. Fisher, with whom, on the brief, were Brian P. Rice and Charles D. Ray, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

The defendant, National Eastern Corporation, appeals from the judgment of the trial court denying its motion to vacate an arbitration award and confirming the award in favor of the plaintiff, Cian-bro Corporation. On appeal, the defendant claims that the court should have vacated the award because the arbitrators exceeded their authority by (1) awarding $112,304 to Cianbro Fabrication and Coating Corporation (Cianbro Fabrication), a nonparty to the arbitration, (2) awarding amounts for labor and equipment claims when such damages expressly were precluded by the parties’ agreement, (3) awarding attorney’s fees when such fees were not within the scope of the agreement, (4) awarding attorney’s fees without providing an opportunity to contest the reasonableness of the fees awarded and (5) failing to award contractually mandated attorney’s fees on its counterclaim. We affirm the judgment of the trial court.

The plaintiff entered into a contract with the defendant to provide services and materials in connection with a construction project for the replacement of the Tomlinson Bridge in New Haven harbor. The plaintiff was the completion contractor, having replaced White Oak Corporation as the original general contractor. The defendant was the steel fabricator. It had a prior arrangement with White Oak Corporation to supply the requisite materials, and, subsequently, the plaintiff issued its purchase order to retain the defendant to complete the work on the project.

The parties had several outstanding disputes at the conclusion of the project. The plaintiff filed a claim for arbitration, and the defendant filed a counterclaim. The agreement to arbitrate is contained in a purchase order issued by the plaintiff on May 18, 2000, and signed by the defendant on September 11, 2000. The arbitration was held before a panel of three arbitrators. The parties presented witnesses, submitted documentary evidence and provided briefs outlining their claims to the panel. The panel issued an interim award in June, 2005, in which it ordered the defendant to pay the plaintiff $146,508. In December, 2005, the panel issued a supplemental award for attorney’s fees, the plaintiffs employee time and expenses in the amount of $300,883.76.

The plaintiff filed an application with the Superior Court to confirm the arbitration award on December 20, 2005. The defendant filed its motion to vacate the arbitration award on January 17, 2006. A hearing was held on May 22, 2006. On June 28,2006, the court issued its memorandum of decision in which it granted the plaintiffs application to confirm the arbitration award and denied the defendant’s motion to vacate the award. This appeal followed.

Our standard of review is well settled. “Judicial review of arbitral decisions is narrowly confined. . . . When the parties agree to arbitration and establish the authority of the arbitrator through the terms of their submission, the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. . . .

“The significance ... of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obligated to do, but to determine the scope of judicial review of what they have done. Put another way, the submission tells the arbitrators what they are obligated to decide. The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the arbitrators’ decision.

“Even in the case of an unrestricted submission, we have . . . recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute ... (2) the award violates clear public policy . . . [and] (3) the award contravenes one or more of the statutory proscriptions of [General Statutes] § 52-418.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80-81, 881 A.2d 139 (2005). General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

In the present case, the parties agree that the submission is unrestricted. The defendant’s claim on appeal is that the arbitration panel exceeded and imperfectly executed its powers because its award did not conform to the parties’ submission and that the court improperly refused to vacate that award as required by § 52-418 (a) (4).

I

The defendant first claims that the panel exceeded the authority granted to it by the submission of the parties by awarding $112,304 to Cianbro Fabrication, a corporate entity separate from the plaintiff and a nonparty to the arbitration. The defendant argues that the arbitration clause, which constitutes the submission, is a contract between the plaintiff and the defendant and that any award to a third party must be deemed to be outside the scope of that submission.

It is true that “[arbitration is a creature of contract and the parties themselves, by the terms of their submission, define the powers of the arbitrators.” (Internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 109, 779 A.2d 737 (2001). “When the parties have agreed to a procedure and have delineated the authority of the arbitrator, they must be bound by those limits.” (Internal quotation marks omitted.) State v. AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn. 80, 85, 777 A.2d 169 (2001). When the claim is that the award does not conform to the submission, the reviewing court conducts “in effect, de novo judicial review.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 84. “Although we have not explained precisely what in effect, de novo judicial review entails as applied to a claim that the award does not conform with the submission, that standard best can be understood when viewed in the context of what the court is permitted to consider when making this determination and the exact nature of the inquiry presented. . . . Our inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred. With respect to the latter, we have explained that, as long as the arbitrator’s remedies were consistent with the agreement they were within the scope of the submission.” (Internal quotation marks omitted.) Id., 85-86. “[A] claim that the award does not conform to the submission is predicated on the arbitrators’ absolute lack of authority to decide an issue or to grant certain relief.” Id., 88.

Here, as part of the arbitration award, the panel ordered the following relief: “Additionally, we award to [the plaintiff] the amount of $112,304 on its payment due to the [Cianbro Fabrication] claim. [The plaintiff] is hereby ordered to pay directly to [Cianbro Fabrication] the amount of $112,304 in satisfaction of [the defendant’s] obligations under its contract with [Cian-bro Fabrication] or its predecessor.” The defendant argues that the arbitrators upheld a claim against it by Cianbro Fabrication, a third party, and made an award to a nonparty to the arbitration.

The arbitration clause authorized the submission of “any disputes between [the plaintiff] and [the defendant] arising under [the] [p]urchase [o]rder . . . .” The purchase order, which also included several attachments, contained various provisions that required the panel’s interpretation. One of those provisions addressed the right of the plaintiff to withhold amounts from the defendant if the defendant failed to pay any of its subcontractors. The plaintiff then had the right to pay the subcontractor directly from the funds withheld.

Cianbro Fabrication was a subcontractor. The defendant had a separate contract with Cianbro Fabrication. At the arbitration, one of the disputed claims submitted involved the amount due Cianbro Fabrication from the defendant and the plaintiffs right to withhold that amount from the defendant. The parties presented evidence on that claim. The defendant argued that the provision at issue did not authorize the withholding of funds because no formal claim had ever been submitted by Cianbro Fabrication against the plaintiff. At the hearing before the court, and on appeal, the defendant referenced transcript testimony from the arbitration proceeding to support its contention that no evidence had been presented to demonstrate that such a claim had been made.

In essence, the defendant is asking this court to review the panel’s interpretation of the contractual provisions and to make a determination as to the sufficiency of the evidence presented at the arbitration to support the award. This we cannot do.

“Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. ... In other words, [u]nder an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 80. Accordingly, those issues are beyond the scope of our review. Id., 104.

With respect to the remedy ordered by the panel, a remedy is considered to be within the scope of the submission as long as it is consistent with the parties’ agreement. See State v. New England Health Care Employees Union, District 1199, AFL-CIO, 265 Conn. 771, 790, 830 A.2d 729 (2003). “[T]he arbitrator is authorized from [an] unrestricted submission to fashion any remedy that is rationally related to a plausible interpretation of the agreement .... Put another way, when the submission is unrestricted, the remedy determined by an arbitrator will be upheld as long as the remedy draws its essence from the . . . agreement.” (Citation omitted; internal quotation marks omitted.) Board of Education v. Civil Service Employees Affiliates, Local 760, 88 Conn. App. 559, 570, 870 A.2d 473 (2005).

Here, the challenged remedy drew its essence from the agreement and was consonant with its terms. The plaintiff and the defendant presented evidence on the Cianbro Fabrication claim and the right of the plaintiff to withhold that amount from the defendant. All disputed claims under the purchase order could be submitted to arbitration. Although the defendant strongly disagrees with the panel’s interpretation of the provisions of that agreement, “it is the arbitrator’s judgment that was bargained for . . . and we do not substitute our own judgment merely because our interpretation of the agreement or contract at issue might differ from that of the arbitrator.” (Internal quotation marks omitted.) State v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 265 Conn. 780.

The party challenging the arbitration award has the burden to produce evidence sufficient to show that the award fails to conform to the submission. Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 89. The defendant has failed to meet this burden.

IT

The defendant next claims that the arbitration award did not conform to the submission because the panel permitted the plaintiff to recover amounts for labor, equipment and attorney’s fees. The defendant argues that damages for labor and equipment are expressly precluded by the terms of the agreement and that the awarding of attorney’s fees was outside the scope of the agreement.

Again, those claims were addressed by both parties at the time of the arbitration. Various provisions of the purchase order and its attachments were interpreted by the panel as to their applicability to the disputed claims. The defendant disagrees with the panel’s interpretation of those provisions. “Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous.” (Internal quotation marks omitted.) State v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 265 Conn. 780-81. The defendant’s argument that the panel exceeded its authority by erroneously interpreting the parties’ agreement is, therefore, without merit.

Ill

The defendant additionally claims that the arbitration panel exceeded its authority by awarding attorney’s fees to the plaintiff without providing an opportunity to challenge the reasonableness of the fees awarded. It argues that the parties limited their submission to a determination of whether the plaintiff was entitled to attorney’s fees. After making that determination, the panel was to reconvene the hearing to take evidence on the reasonableness of the plaintiffs claimed fees. In support of its position that the submission was procedurally limited, the defendant refers to the following footnote in the plaintiffs posthearing brief submitted to the panel: “As with all of [the plaintiffs] claims for attorney’s fees and costs, the parties have agreed that the panel will make an initial determination of liability. If [the defendant] is hable and contests the reasonableness of [the plaintiffs] fees, the parties have agreed that the panel will reconvene the hearings to take evidence on those fees.”

Although the claim on appeal is that the award did not conform to the submission because the defendant was not provided an opportunity to contest the reasonableness of the plaintiffs attorney’s fees, the defendant does nothing more than cite the footnote in the plaintiffs posthearing brief in support of that claim. In its appellate brief, the plaintiff states that it had provided to the panel copies of all the invoices for which it was claiming attorney’s fees and that the defendant had the opportunity to challenge that evidence at the hearing. The court concluded that although some discussion about attorney’s fees occurred at a hearing before the panel after the interim award was made, the court did not have sufficient information before it to determine whether the defendant was denied a full and fair hearing on that issue. The court further noted that no evidence had been presented by the defendant that actually challenged the amount of the attorney’s fees awarded to the plaintiff so that the defendant failed to demonstrate any prejudice to its rights.

We are unable to review the defendant’s claim due to an inadequate record. See Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998); Practice Book § 61-10. “It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. . . . [A]n appellate tribunal cannot render a decision without first fully understanding the disposition being appealed. . . . Our role is not to guess at possibilities, but to review claims based on a complete factual record .... Without the necessary factual and legal conclusions . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Citations omitted; internal quotation marks omitted.) Gladstone, Schwarts, Baroff & Blum v. Hovhannissian, 53 Conn. App. 122, 127, 728 A.2d 1140 (1999).

The parties disagree as to what transpired at the arbitration hearing held after the interim award was made. This court has been provided with only the statements of the parties in their briefs and the defendant’s reference to the footnote in the plaintiffs posthearing brief to review. No transcript of that hearing has been submitted as part of the record on appeal. We therefore cannot determine, without speculation, whether the defendant was afforded an opportunity to contest the reasonableness of the attorney’s fees awarded to the plaintiff and decline to address this claim.

IV

The defendant’s final claim is that the arbitration award did not conform to the submission because the panel failed to award contractually mandated attorney’s fees on its counterclaim. The defendant argues that the payment of the contract balance, demanded in its counterclaim, was an issue between the parties to be decided by the panel. It further claims that every invoice sent to the plaintiff contained the clause: “[A] late charge at the rate of 1.5 percent per month, 18 percent per annum, will be charged on all accomts after thirty days and if this matter is placed with an attorney, reasonable attorney’s fees will be charged.” Because the amount awarded to the plaintiff by the panel was offset by the contract balance, the defendant argues that it prevailed on its counterclaim and that the panel was therefore obligated to award it reasonable attorney’s fees.

We first note that copies of the invoices containing the provisions pertaining to late fees and attorney’s fees are not part of the record. Further, the defendant’s counterclaim, in the prayer for relief, demanded the contract balance, charges for extra work performed by the defendant at the plaintiffs request and “[i]nterest and other costs as seen justified and reasonable to the arbitrators.” No specific request for attorney’s fees was made. The defendant’s posthearing brief submitted to the panel does state that the defendant is entitled to attorney’s fees and quotes the late fee and attorney’s fees provision from its invoices. No reference is made to an exhibit.

The plaintiff argues that the invoices were not a part of the parties’ agreement, i.e., the purchase order and attachments, that the invoices had been issued subsequent to the agreed on contractual arrangement and that any language contained in those invoices had not been negotiated and incorporated into their agreement. The court noted that the amount of the contract balance was agreed to by the stipulation of the parties, that the panel specifically stated that the defendant’s claims were denied and that the defendant was challenging the panel’s factual and legal conclusions with respect to that issue.

The issue of attorney’s fees as claimed by the defendant had been presented to the panel and was determined adversely to the defendant. Whether the invoices formed apart of the parties’ contractual agreement was to be determined by the panel and is not subject to de novo review by this court. The defendant’s claim must fail.

We conclude that the panel’s decision conforms to the broad, unrestricted submission. The defendant essentially argues for a different interpretation of the provisions in the parties’ agreement. A difference of opinion as to the construction of the contract does not establish that the panel exceeded its authority. Accordingly, the court properly denied the defendant’s motion to vacate the award.

The judgment is affirmed.

In this opinion the other judges concurred.

       The arbitration clause in the purchase order provides in relevant part: “With respect to any disputes between [the plaintiff] and [the defendant] arising under this [p]urchase [o]rder, [the defendant] agrees that [the plaintiff] [at] its sole option and in its sole discretion, may elect to submit such disputes to arbitration, in which such event all claims between the parties hereunder shall be subject to arbitration. . . . This agreement to arbitrate shall be specifically enforceable under the prevailing law. The award rendered shall be final [and] judgment may be entered upon the award by any court having jurisdiction thereof.”

       “A submission is unrestricted when . . . the parties’ arbitration agreement contains no language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.” (Internal quotation marl® omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 273 Conn. 86, 89 n.3, 868 A.2d 47 (2005).

       In construing § 52-418 (a) (4), our Supreme Court has applied two standards in determining whether an award must be vacated. First, it has compared the award with the submission to determine whether the arbitrators exceeded their authority. Second, it has reviewed the award to determine whether it manifests an egregious or patently irrational application of the law. Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 81. In the present case, the defendant claims that the award does not conform to the submission; it expressly has stated that it does not seek review under the manifest disregard of the law standard.


author: WEST, J.

text:
    HENRIK AARESTRUP v. JULIE M. HARWOOD-AARESTRUP
    (AC 27117)
    Bishop, McLachlan and West, Js.
    Argued January 9
    officially released June 26, 2007

      Kenneth M. Potash, for the appellant (defendant).

      Cynthia Hartwell, for the appellee (plaintiff).

      Santa Mendoza, for the appellees (intervenor Antik & Lamper et al.).
   Opinion

WEST, J.

The defendant, Julie M. Harwood-Aarestrup, appeals from the judgment of the trial court dissolving her marriage to the plaintiff, Henrik Aarestrup. On appeal, the defendant claims that the court, in making its financial orders, improperly (1) determined that the plaintiff did not own certain property in his possession and (2) disallowed certain testimony that would have been relevant. We affirm the judgment of the trial court.

The plaintiff and the defendant married on October 7, 1996, and lived in California, where the plaintiff owned a Scandinavian antiques business. The parties moved to Connecticut in September, 1999, and rented property in Sharon. That property contained space for the plaintiffs business and an apartment in which the parties resided. On May 10, 2004, the plaintiff filed a complaint seeking dissolution of the marriage. Thereafter, seven antiques dealers from Denmark and Sweden successfully moved to intervene in the dissolution action. Those seven inter-venors had entered into consignment agreements with the plaintiff and claimed to own all of his business inventory. When the court held the dissolution trial, however, the intervenors decided not to attend. Instead, they moved to withdraw from the dissolution action and filed a separate replevin action against the plaintiff. The court then denied the intervenors’ motion to withdraw and defaulted them for failure to appear. In rendering its judgment of dissolution, the court determined that the plaintiff did not own his inventory, and, therefore, it was not subject to equitable distribution pursuant to General Statutes § 46b-81. The court ordered the inventory released to the intervenors upon payment of a $5000 fine, which previously had been imposed because one of the intervenors had moved the inventory without the court’s permission. The defendant then filed this appeal.

I

The defendant first claims that the court improperly determined that the plaintiff did not own his inventory. We disagree.

“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.) Jillian C. v. William C., 95 Conn. App. 841, 843, 899 A.2d 71 (2006).

There is ample evidence in the record to support the court’s finding that the plaintiff did not own his inventory. The intervenors each submitted a sworn affidavit stating that the plaintiff was in possession of certain antiques pursuant to a consignment agreement. The intervenors also produced invoices for those antiques indicating that the intervenors had shipped the antiques to the plaintiff on a consignment basis. Although the defendant rebutted that evidence with her own testimony that the plaintiff owned his inventory, the defendant had only limited knowledge of the plaintiffs business dealings. We conclude that the court’s finding regarding the ownership of the plaintiffs inventory was not clearly erroneous.

II

The defendant next claims that the court improperly disallowed certain testimony that would have been relevant in making the financial orders. We disagree.

The defendant directs us to the testimony of the plaintiffs companion, Pauline Koinis, an antiques dealer, regarding two public auctions that she attended with the plaintiff. Those auctions included certain antiques from the plaintiffs inventory. The defendant’s theory was that Koinis purchased those antiques on behalf of the plaintiffs friends, who then planned to sell the antiques back to him. The defendant asked Koinis to testify as to the names of the clients for whom she had purchased antiques at the two auctions. When the plaintiff objected to that question, the defendant argued that the names of Koinis’ clients were relevant, but the defendant did not make a formal offer of proof as to whether those clients actually were the plaintiffs friends. The court then sustained the plaintiffs objection, ruling that the names of Koinis’ clients were not relevant. The court permitted the defendant to ask Koinis whether she had purchased any antiques at the two auctions on the plaintiffs behalf or at his direction. The defendant now argues that eliciting the names of Koinis’ clients would have helped to establish the theory that Koinis was colluding with the plaintiffs friends to hide assets from the defendant.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) Jewett v. Jewett, 265 Conn. 669, 679-80, 830 A.2d 193 (2003). “Evidence is too speculative if the record makes it clear that there was no basis for finding that the testimony would bear on relevant facts.” (Internal quotation marks omitted.) Harrison v. Hamzi, 77 Conn. App. 510, 516, 823 A.2d 446, cert. denied, 266 Conn. 905, 832 A.2d 69 (2003).

We conclude that the court properly determined that the names of Koinis’ clients were not relevant. The defendant failed to develop her offer of proof in order to move her theory of collusion outside the realm of speculation. Even if Koinis’ clients were the plaintiffs friends, that information alone would not have tended to prove the defendant’s theory of collusion. There is a significant difference between showing that Koinis purchased antiques for the plaintiffs friends at public auctions and showing that there was a secret agreement to hide assets from the defendant. The defendant failed to produce any evidence in support of the existence of such an agreement. We therefore reject the defendant’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-81 (a) provides in relevant part: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. ...”

       The intervenors have filed a brief in this appeal in which they agree with the plaintiff that the court properly determined that he did not own his inventory. The intervenors also claim, however, that the court improperly (1) denied their motion to withdraw from the dissolution action and (2) defaulted them for failure to appear. Those claims are not properly before us because the intervenors failed to file a cross appeal in accordance with Practice Book § 61-8. “If an appellee wishes to change the judgment in any way, the party must file a cross appeal.” (Internal quotation marks omitted.) Mitchell v. Silverstein, 67 Conn. App. 58, 60 n.5, 787 A.2d 20 (2001), cert. denied, 259 Conn. 931, 793 A.2d 1085 (2002). We therefore decline to address the intervenors’ claims.


text:
    VINCENT MCGUIRE v. LUCIA B. MCGUIRE
    (AC 27624)
    McLachlan, Harper and Stoughton, Js.

      Argued March 14
    officially released June 26, 2007

      Gary Traystman, for the appellant (plaintiff).

      Lucia B. McGuire, pro se, the appellant (defendant).
   Opinion

McLACHLAN, J.

The plaintiff, Vincent McGuire, appeals from the trial court’s ruling on his postjudgment motion for contempt. The plaintiff claims that the court (1) was biased and prejudiced against him and acted as an advocate for the pro se defendant, Lucia B. McGuire, (2) improperly permitted a real estate agent to give opinion testimony without having been qualified as an expert witness and (3) ordered a remedy that was contrary to the law and facts of the case. We affirm the judgment of the trial court.

The parties were married on November 5, 1994. On November 19, 2004, the marriage was dissolved on the ground of irretrievable breakdown. In the dissolution decree, an agreement between the parties was incorporated that provided, inter alia, that the marital home was to be sold as soon as possible and the net proceeds to be divided equally between the parties after the deduction of usual and customary closing costs. The decree further provided that the court would retain jurisdiction with regard to the sale of the marital home.

On December 30, 2004, the plaintiff filed a postjudgment motion for contempt. That motion was resolved by an agreement, signed by the parties and approved by the court on January 31, 2005, which provided that an additional $2456 would be paid to the plaintiff from the defendant’s share of the proceeds from the sale of the marital home. On January 25, 2006, the plaintiff filed another motion for contempt, claiming that the defendant had refused an offer to purchase the marital home in violation of the order in the dissolution decree. A hearing was held on April 10, 2006, at which time the plaintiff was represented by counsel and the defendant proceeded pro se.

In opening remarks, the plaintiffs counsel claimed that the basis for the motion for contempt was the defendant’s successful efforts in sabotaging the contract to purchase the marital home signed in May, 2005, and her subsequent refusal to place the property on the market or to execute a listing agreement in a timely manner. The parties and a real estate agent testified at the hearing, and the plaintiff submitted several exhibits as evidence. At the conclusion of the hearing, the court found that the defendant had not sabotaged the May, 2005 contract. The court also found, however, that she had delayed the process of selling the property, although not substantially, and concluded that the plaintiff was entitled to a credit of $4000. This appeal followed.

The plaintiff claims that the court essentially found the defendant’s conduct to be contemptuous, although it did not expressly state that she was in contempt of the court’s order, relative to the sale of the marital property, and that it abused its discretion in ordering a remedy or sanction against her that was illogical in light of the testimony presented at the hearing. “A finding of contempt is a question of fact, and our standard of review is to determine whether the court abused its discretion in failing to find that the actions or inactions of the [party] were in contempt of a court order. To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Internal quotation marks omitted.) Adams v. Adams, 93 Conn. App. 423, 431, 890 A.2d 575 (2006).

I

The plaintiff first claims that the court became an advocate for the pro se defendant and entered an order that clearly demonstrated its bias in favor of the defendant and against him. In support of that argument, the plaintiff claims that the court questioned witnesses in order to elicit testimony prejudicial to him and interrupted the objections made by his counsel.

The plaintiff did not raise a claim of judicial bias at any time during the course of the hearing. He could have requested that the judge recuse himself. “Claims alleging judicial bias should be raised at trial by a motion for disqualification or the claim will be deemed to be waived. ... A party’s failure to raise a claim of disqualification at trial has been characterized as the functional equivalent of consenting to the judge’s presence at trial.” (Citation omitted; internal quotation marks omitted.) Wendt v. Wendt, 59 Conn. App. 656, 692, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000).

Instead, the plaintiff waited until after the court made its ruling. “Our Supreme Court has criticized the practice whereby an attorney, cognizant of circumstances giving rise to an objection before or during trial, waits until after an unfavorable judgment to raise the issue. We have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” (Internal quotation marks omitted.) Id., 693. On that basis alone, the plaintiffs claim of judicial bias must fail.

We will address the plaintiffs claim in substance, however, given the grave nature of his accusation. “Because an accusation of judicial bias or prejudice strikes at the very core of judicial integrity and tends to undermine public confidence in the established judiciary . . . we . . . have reviewed unpreserved claims of judicial bias under the plain error doctrine. . . . Plain error exists only in 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.” (Citation omitted; internal quotation marks omitted.) Doody v. Doody, 99 Conn. App. 512, 523, 914 A.2d 1058 (2007).

Canon 3 (c) (1) of the Code of Judicial Conduct provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party . . . .” The plaintiff is not required to demonstrate actual bias in order to prevail on a claim of a violation of that canon. The plaintiff will meet his burden if he can prove that the conduct in question gave rise to a reasonable appearance of impropriety. Burton v. Mottolese, 267 Conn. 1, 30, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S. Ct. 2422, 158 L. Ed. 2d 983 (2004).

“We use an objective rather than a subjective standard in deciding whether there has been a violation of canon 3 (c) (1). Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge’s impartiality in a given proceeding clearly falls within the scope of the general standard .... The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his . . . impartiality, on the basis of all of the circumstances.” (Internal quotation marks omitted.) Id.

It is the plaintiffs claim that the court acted as an advocate for the pro se defendant. This is evidenced, he argues, by the court’s questioning of various witnesses to elicit testimony favorable to the defendant and by the court’s interruptions of the plaintiff s counsel when he attempted to make objections during the course of the hearing. “[I]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party.” (Internal quotation marks omitted.) Carr v. Fleet Bank, 73 Conn. App. 593, 595-96, 812 A.2d 14 (2002). Nevertheless, “[w]hile ajudge trying a case in which one party is acting pro se must be careful, as always, to preserve the fairness of the trial, the adversary system is not suspended, and the judge cannot become the adviser or tactician for the pro se party.” (Internal quotation marks omitted.) Murray v. Taylor, 65 Conn. App. 300, 311-12, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).

Here, our thorough review of the transcript of the hearing does not reveal any bias against the plaintiff or for the defendant. The plaintiff, the defendant and the real estate agent who represented the parties in the sale of the marital home were the only witnesses who testified at the hearing. The plaintiffs counsel called all three individuals as his witnesses. The defendant also testified on her behalf. As the witnesses were being questioned, the court asked several questions. In the interest of ascertaining the relevant factual background in order to ensure that the matter was fully and fairly heard, the court made inquiries to clarify the responses of the various witnesses. The fact that the defendant lacked a legal education and experience, which contributed to her inability to elicit all of the information helpful to the resolution of the parties’ claims, did not preclude the court from obtaining that information in order to make a fair and impartial ruling.

“Whether or not the trial judge shall question a witness is within his sound discretion. The extent of the examination is likewise within his sound discretion. Its exercise will not be reviewed unless he has acted unreasonably, or, as it is more often expressed, abused his discretion. The judge must not exhibit bias or prejudice nor take sides.” (Internal quotation marks omitted.) LaBow v. LaBow, 13 Conn. App. 330, 335, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). The plaintiff provides no reference to a particular question or remark by the court that demonstrates any such bias or prejudice.

Although the court may have interrupted a few of the plaintiffs objections, it was apparent that the court wanted as much information as possible concerning the parties’ claims. “[I]t is often repeated in our case law that a trial court has wide discretion to determine whether to admit evidence.” Travelers Property & Casualty Co. v. Christie, 99 Conn. App. 747, 758, 916 A.2d 114 (2007). When the plaintiff objected during a witness’ response, the court indicated that it wanted to hear the full response. Similarly, the court permitted a witness to complete her answer when the plaintiff argued that it was outside the scope of his direct examination. There was no evidence of any favoritism, however, and the court curtailed the defendant’s responses and arguments several times during the course of the hearing. The plaintiff was not limited in his questioning of any of the witnesses.

The plaintiff has not cited any evidence that demonstrates that the court was biased against him. We conclude that the court’s conduct was appropriate under the circumstances and that the court did not act as the defendant’s advocate. We find no merit to the plaintiff s claim of judicial impropriety.

II

The plaintiff next claims that the court improperly permitted the defendant’s real estate agent to give opinion testimony as an expert witness without having qualified her as an expert and without any testimony as to her expertise.

The real estate agent, Carol Townsend, was called as a witness to testily by the plaintiff, not the defendant. Townsend was questioned about the first contract, alleged to have been sabotaged by the defendant, and the pending contract for the sale of the marital property. The plaintiff claims that some unspecified evidence adduced at trial was improper, but he never objected to Townsend’s testimony on the ground that she was giving an expert opinion without having been disclosed as an expert or qualified as an expert. That claim is being raised for the first time on appeal.

“We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Swerdloff v. Rubenstein, 81 Conn. App. 552, 554, 841 A.2d 222 (2004). The plaintiff had ample opportunity to raise his claim in the trial court but failed to do so, and for this court now to consider such claim would amount to trial by ambuscade and would be unfair both to the trial court and to the opposing party. See id., 555. We therefore decline to review that claim.

Ill

The plaintiffs final claim is that the court ordered a remedy that was contrary to the law and facts of the case. The plaintiff argues that the court essentially found the defendant’s conduct to be contemptuous, yet failed to order an appropriate sanction. An appropriate sanction, the plaintiff claims, would have been reimbursement of the mortgage payments made by the plaintiff on the marital home while the defendant was in contempt.

The court did not find that the defendant was in contempt of the order in the dissolution judgment pertaining to the sale of the marital home. The plaintiffs claim, as indicated in his counsel's opening statement, was that the defendant was in contempt because she sabotaged the May, 2005 contract by insisting on an extension of the closing date. The court order of April 10, 2006, specifically states that “[tjhere is no finding of sabotage.” “To constitute contempt, a party’s conduct must be wilful. . . . Noncompliance alone will not support a judgment of contempt.” (Internal quotation marks omitted.) Adams v. Adams, supra, 93 Conn. App. 431. The ruling of the court simply cannot be construed as a finding of wilful noncompliance with a court order.

The plaintiff argues that the court would not, and legally could not, have ordered any remedy if the defendant’s behavior was not found to be contemptuous. We disagree.

“[T]he trial court’s continuing jurisdiction to effectuate its prior judgments, either by summarily ordering compliance with a clear judgment or by interpreting an ambiguous judgment and entering orders to effectuate the judgment as interpreted, is grounded in its inherent powers, and is not limited to cases wherein the non-compliant party is in contempt, family cases, cases involving injunctions, or cases wherein the parties have agreed to continuing jurisdiction." AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 246, 796 A.2d 1164 (2002). “In a contempt proceeding, even in the absence of a finding of contempt, a trial court has broad discretion to make whole a party who has suffered as a result of another party’s failure to comply with the court order.” (Emphasis in original; internal quotation marks omitted.) Clement v. Clement, 34 Conn. App. 641, 647, 643 A.2d 874 (1994).

Here, as previously noted, the court order in the dissolution decree was that the marital home was to be sold as soon as possible and that the net proceeds were to be divided equally between the parties. Further, the court was to retain jurisdiction with respect to that sale. The court did not find the defendant’s conduct to be contemptuous, but it did conclude that her actions had caused some delay in the sale. Accordingly, to effectuate its order, over which it had continuing jurisdiction pursuant to the dissolution decree, the court determined that the plaintiff was entitled to an additional credit.

The plaintiff appears to challenge the amount of that credit as being arbitrary or to challenge the order as being unclear as to whether the defendant’s conduct was contemptuous. In that event, the plaintiff should have requested an articulation from the trial court as to that claim. See Practice Book § 66-5. “It is well settled that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . The . . . failure to seek an articulation of the trial court’s decision to clarify the . . . issues and to preserve them properly for appeal leaves this court without the ability to engage in a meaningful review.” (Internal quotation marks omitted.) Heaven v. Timber Hill, LLC, 96 Conn. App. 294, 313, 900 A.2d 560 (2006).

The judgment is affirmed.

In this opinion the other judges concurred.

       The court took note of the parties’ previous agreement under which the plaintiff was entitled to a credit of $2456. It “rounded up” that figure to $4000 because of the delay caused by the defendant and indicated that the balance of the proceeds from the sale was then to be divided equally between the parties. At the time of the hearing, a new contract had been signed for the sale of the marital home.

       Although the plaintiff did not explicitly request plain error review, he does cite Cameron v. Cameron, 187 Conn. 163, 444 A.2d 915 (1982), in support of his claim. That court addressed a claim of judicial bias under the plain error doctrine.

       As part of the agreement incorporated in the dissolution decree, the plaintiff was ordered to pay one half of the mortgage payments on the marital home until that property was sold.

       The entire order of April 10, 2006, provides: “There is no finding of sabotage. Plaintiff is entitled to a $4000 credit. Parties are to split the balance equally.”