text:
    LAUREN HEYSE ET AL. v. WILLIAM CASE ET AL.
    (AC 29289)
    Bishop, Robinson and Peters, Js.

      Argued February 10
    officially released June 2, 2009

      Jonathan M. Starble, for the appellant (named plaintiff).

      Kerry R. Callahan, for the appellee (defendant Connecticut Attorneys Title Insurance Company).
   Opinion

PETERS, J.

An insurance company’s duty to provide its insured with indemnity, or to undertake a defense on the insured’s behalf, depends on whether the terms of the insurance policy provide coverage for the dispute in which the insured is engaged. Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 463, 876 A.2d 1139 (2005). In this case, the principal issue is whether a title insurance policy provided coverage for a dispute about subdivision rights between the insured and another member of a planned community organized under General Statutes § 47-220. Concluding that two exclusions in the insured’s policy establish that she has no coverage for this dispute, the trial court granted the insurer’s motion for summary judgment. The insured has appealed. We affirm the judgment of the trial court.

In a multicount complaint filed on August 21, 2006, the plaintiff Lauren Heyse and others challenged the right of the defendants William Case and Tria Case to subdivide a lot within a common interest community in New Hartford known as West Hill Estates. In count four of the complaint, the plaintiff sought a declaratory judgment that a title insurance policy issued by the defendant Connecticut Attorneys Title Insurance Company obligated the defendant to defend and to indemnity her in her pursuit of her alleged right to enforce a limitation on subdivisions allegedly established in the documents creating the common interest community. In count five, the plaintiff sought monetary compensation for the defendant’s alleged failure to honor the implied duty of good faith and fair dealing in her title insurance policy. The defendant filed a motion for summary judgment, challenging the merits of both of the plaintiffs claims. The court granted the motion, and the plaintiff has appealed from the summary judgment rendered in favor of the defendant.

I

JURISDICTION

During the pendency of this appeal, the court permitted the plaintiff to amend her complaint by adding a sixth count against the defendant. The merits of that count have not yet been addressed by the court. Regardless of its merits, however, the filing of this belated amendment requires us to decide whether we continue to have jurisdiction to hear the plaintiffs appeal from the existing judgment on counts four and five. We conclude that we have jurisdiction to hear the appeal.

Although “[a] judgment that disposes of only a part of a complaint is not a final judgment . . . [o]ur rules of practice . . . set forth certain circumstances under which a party may appeal from a judgment disposing of less than all of the counts of a complaint. Thus, a party may appeal if the partial judgment disposes of all causes of action against a particular party or parties . . . .” (Citation omitted; internal quotation marks omitted.) Rino Gnesi Co. v. Sbriglio, 98 Conn. App. 1, 7-8, 908 A.2d 1, cert. denied, 280 Conn. 945, 912 A.2d 480 (2006); Practice Book § 61-3. Pursuant to this rule of practice, this court had jurisdiction to hear the plaintiffs appeal at the time that it was filed because the only counts in her complaint that were addressed to the defendant had been decided by the judgment rendered on the defendant’s motion for summary judgment.

Our assessment of the jurisdictional consequence of the plaintiffs amendment of her complaint is governed by the decision of our Supreme Court in RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 899 A.2d 586 (2006). In RAL Management, Inc., the court held: “In considering the effect of the opening of a judgment on a pending appeal . . . the appropriate question is whether the change to the judgment has affected the issue on appeal. If, in opening the judgment, the court reverses itself and resolves the matter at issue on appeal in the appellant’s favor, it is clear that the appeal is moot as there is no further practical relief that may be afforded. . . . Conversely, if the judgment is opened to address issues entirely unrelated to the appeal, the opening of the judgment has had no effect on the availability of relief. A more difficult question may be presented if the trial court addresses the matter at issue on appeal, but does not entirely afford the appellant the relief sought. In such cases, the extent to which the court alters the judgment may require either a new appeal or an amended appeal. See Practice Book §§ 61-9 and 63-1 (c) (3). As [t]he determination of whether a claim has become moot is fact sensitive . . . the facts of each case similarly must dictate the appropriate procedure to follow.” (Citations omitted; internal quotation marks omitted.) RAL Management, Inc. v. Valley View Associates, supra, 691-92.

In light of RAL Management, Inc., we are persuaded that the plaintiffs addition of a sixth count to her complaint setting forth a new cause of action against the defendant, whatever its merits, does not deprive this court of jurisdiction to hear her appeal from the court’s judgment on counts four and five. Significantly, RAL Management, Inc., did not hold that the filing of a motion to open a judgment per se had immediate jurisdictional consequences for a pending appeal. We are persuaded that the filing of an additional count likewise should not be deemed to require dismissal of a pending appeal. In either case, resolution of a new claim at some time in the future might make some part of the existing trial court judgment moot, and might make some part of an appellate judgment moot. We will not, however, presume mootness because, as our Supreme Court has noted, mootness is fact sensitive. Id., 692. There is no such thing as anticipatory mootness.

Although the plaintiff cites Mazurek v. Great American Ins. Co., 284 Conn. 16, 930 A.2d 682 (2007), for a contrary holding, we are not persuaded of the applicability of that case. In Mazurek, at the time the appeal was filed, the court had not resolved all the claims against a party to the appeal. Id., 34. The parties had engaged in procedural manipulation to create “an artificial final judgment,” which our Supreme Court refused to countenance. Id., 33. In this case, there was nothing artificial about the judgment at the time that it was rendered. We are persuaded, therefore, that we have jurisdiction to address the merits of the plaintiffs appeal.

II

COVERAGE

The plaintiffs principal claim on appeal is that the court improperly granted the defendant’s motion for summary judgment with respect to the coverage afforded to her by the terms of the title insurance contract that she purchased when she bought her property in West Hill Estates. The standard of review governing this claim is well established. Practice Book § 17-49 directs a court to render summary judgment “if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., supra, 284 Conn. 26-27.

The relevant facts underlying the court’s decision to render summary judgment on count four of the plaintiffs complaint are undisputed. West Hill Estates was created in 1991 as a common interest community by the filing and recording of a declaration. One of the eight initial units in West Hill Estates was lot 9, which the plaintiff purchased in 1993. Pursuant to General Statutes § 47-36I the plaintiffs purchase of lot 9 entitled her to enforce § 13.4 of the declaration, which stated that “[e]xcept to the extent expressly permitted . . . by other provisions of . . . this Declaration, no amendment may . . . increase the number of Lots [or] change the boundaries of any Lot ... in the absence of unanimous consent of the Lot Owners.”

In 2005, the Cases, the owners of lot 1C, initiated proceedings for subdivision approval of their property without having obtained the plaintiffs consent. The Cases claim that they do not need the plaintiffs consent because they have acquired special development rights under “other provisions” of the declaration. The plaintiff disputes the Cases’ claim for two reasons. She disagrees with the Cases’ contention that the declaration contained a reservation for the special development rights that the Cases are purporting to exercise. In the alternative, she argues that, even if such rights once existed, they were never validly conveyed to the Cases.

The defendant maintains that the title insurance policy that it issued to the plaintiff in 1993 does not require it to defend the plaintiff or to indemnify her in her dispute with the Cases about their rights to subdivide lot 1C. In its motion for summary judgment, it relied on two provisions in the insurance policy that the court found to be applicable and dispositive.

The first provision cited by the defendant is an exclusion in the part of the plaintiffs title insurance policy that defines the coverage provided by the policy. The clause begins by stating that the defendant “insures, as of Date of Policy . . . against loss or damage” sustained or incurred by the plaintiff by reason of (1) title being vested other than in the plaintiff, (2) any defect in title, (3) any unmarketability of title or (4) lack of access to and from the land. Exclusion 3 (d) then provides that matters “attaching or created subsequent to Date of Policy” (emphasis added) are excluded from coverage. Because the Cases did not attempt to subdivide lot 1C until approximately twelve years after the defendant’s issuance of the plaintiffs insurance policy, the court agreed with the defendant that exclusion 3 (d) applied and barred the plaintiffs claim.

The plaintiff argues, however, that the defendant’s reliance on exclusion 3 (d) is unpersuasive. As a general matter, the plaintiff maintains that the insurance policy is ambiguous because it does not define the circumstances under which a loss would be considered to be “aris[ing] by reason of’ the excluded matters. More narrowly, the plaintiff maintains that, because the Cases base their claimed right to subdivide on provisions in the 1991 declaration establishing West Hill Estates, their claim is a defect in the plaintiffs title that was in existence in 1993 when she purchased her insurance policy from the defendant and was not unambiguously excluded by the policy exclusion for a defect “attaching or created subsequent” to the date of the issuance of the policy.

Our analysis of the plaintiffs arguments starts from the well established principle of contract construction that we must “construe the terms of an insurance policy in favor of insurance coverage because it is the insurance company that has drafted the terms of the policy.” Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 375, 593 A.2d 498 (1991). Nonetheless, “[although policy exclusions are strictly construed in favor of the insured . . . the mere fact that the parties advance different inteipretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . . The interpretation of an insurance policy is based on the intent of the parties, that is, the coverage that the insured expected to receive coupled with the coverage that the insurer expected to provide, as expressed by the language of the entire policy. . . . The words of the policy are given then-natural and ordinary meaning, and any ambiguity is resolved in favor of the insured.” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 796, 967 A.2d 1 (2009).

Because, in the absence of evidence of actual intent or other issues of fact, the plaintiffs claims of ambiguity raise only issues of law, they are reviewable on appeal even though the trial court did not rule on all of them expressly and the plaintiff failed to move for an articulation from that court. See Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 395-96, 757 A.2d 1074 (2000). Nonetheless, “[t]he fact that the parties advocate different meanings of the [insurance policy] does not necessitate a conclusion that the language is ambiguous. . . . Moreover, [t]he provisions of the policy issued by the defendant cannot be construed in a vacuum. . . . They should be construed from the perspective of a reasonable layperson in the position of the purchaser of the policy.” (Citation omitted; internal quotation marks omitted.) Id., 399-400.

The plaintiffs broader argument of ambiguity focuses on the introductory language in exclusion 3 in her insurance policy that states that the defendant is not required to “pay loss or damage, costs, attomey[’s] fees or expenses which arise by reason of . . . (3) Defects, liens, encumbrances, adverse claims or other matters ...(d) attaching or created subsequent to Date of Policy . . . .” The plaintiff complains that the policy improperly fails to define “defects,” “adverse claims” or “other matters,” and does not articulate how a loss would be considered “arisfing] by reason of’ one of these enumerated exclusions.

The plaintiffs complaint that the policy contains these undefined terms is unpersuasive on its own terms. Except for stating her concerns, the plaintiff has not offered a reasoned argument or supporting authority to establish her claim that this nontechnical language is vague or misleading. Therefore, we decline to review this claim as inadequately briefed. See State v. Clark, 255 Conn. 268, 281 n.30, 764 A.2d 1251 (2001); Gray v. Weinstein, 110 Conn. App. 763, 777, 955 A.2d 1246 (2008).

The plaintiffs second and narrower contention stands on a different footing. The plaintiff argues that the title insurance policy’s exclusion for liens “attaching or created subsequent to Date of Policy” does not unambiguously exclude coverage for her dispute with the Cases because that dispute brought to light a cloud on her title that existed in 1993 when she bought her insurance. According to the plaintiff, her title was in fact impaired by the preexisting provision in the 1991 declaration that undermined her right to decline to consent to future subdivisions within West Hill Estates. The plaintiff analogizes her claim to one that would be raised by the belated discovery of an undisclosed third party mortgage. She argues, and the defendant does not dispute, that if such a mortgage had been recorded in 1991, the mortgagee’s failure to exercise its right of foreclosure until 2005 would not have triggered the policy exclusion for adverse interests “attaching or created subsequent” to the date of the issuance of the policy.

The court rejected the plaintiffs contention on the ground that the reservation of a right for a future subdivision did not fall within the coverage that the insurance policy provided, on October 4, 1993, for “any (1) defect in the [the plaintiffs] title or (2) any unmarketability of title or (3) any lack of access to and from the land or (4) that the title to the property was vested other than as stated in schedule A attached to the [policy].” More particularly, the court was not persuaded by the plaintiffs claim that the right to withhold consent to a future subdivision was an appurtenant right that came within the insurance policy’s coverage for defects in her title. Other than citing to the court’s opinion, the plaintiffs brief has not addressed this issue further.

Although this is a close call, we are inclined to disagree with the court’s holding on this issue. In light of the well established principle that an ambiguity in an insurance policy must be construed against the insurer; Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., supra, 274 Conn. 463; we are not persuaded that a reasonable construction of this exclusionary clause categorically deprived the plaintiff of coverage of a right that at least arguably could be considered “attaching or created subsequent” to the date of her policy.

We need not resolve this issue definitively, however, because the plaintiffs insurance policy contained a second exclusionary clause that, as the court held, is unambiguously fatal to her claim for coverage. In schedule B, the plaintiffs insurance policy provides: “This policy does not insure against loss or damage (and the [defendant] will not pay costs, attomey[’s] fees or expenses) which arise by reason of . . . [t]he terms, conditions, agreements, covenants, restrictions, reservations and easements contained in a Declaration of West Hill Estates by Stratton Brook Properties et al. dated March 28, 1991 and recorded June 5, 1991 in Volume 138 at page 866 and amended as follows: 1st Amendment dated April 30, 1992 and recorded May 5, 1992 in Volume 144 at Page 72 of the New Hartford Land Records.” The court held that this provision established, as a matter of law, that the defendant had “no duty under the policy to defend or indemnify [the plaintiff] in connection with the alleged infringement of [the plaintiffs] rights under the declaration.”

Aside from proffering an unsubstantiated claim of ambiguity, the plaintiff argues that the court’s ruling was improper because the defendant’s reliance on schedule B is inconsistent with the defendant’s position that the plaintiffs claim for coverage was precluded by exclusion 3 (d). According to the plaintiff, the defendant cannot be permitted to argue simultaneously that the 1991 declaration has no bearing on insurance coverage for existing claims but definitively bars insurance coverage for all claims. The difficulty with the plaintiffs position is that it assumes that which she needs to prove. The plaintiff cites no authority for the proposition that exclusions in an insurance policy must be internally consistent. More importantly, the record does not disclose that the court addressed an argument of inconsistency or that it was asked to do so.

We conclude, therefore, that the court properly found that the plaintiff failed to prove her claim, under count four of her complaint, that the defendant had a contractual duty to defend her or to indemnify her in her litigation with the Cases. In the absence of any disputed issues of fact, the unambiguous exclusion contained in schedule B unquestionably defeats the plaintiffs claim that her policy with the defendant entitles her to coverage for this dispute.

Ill

GOOD FAITH AND FAIR DEALING

Count five of the plaintiffs complaint charged the defendant with having failed to honor its duty of good faith and fair dealing to the plaintiff in two respects. The plaintiff alleged that the defendant had (1) unfairly conducted its insurance business so as to give the Cases preferential treatment and (2) disclosed confidential insurance information about the plaintiff to other insureds. The court agreed with the defendant that neither of these claims had any validity. We agree as well.

The court found the plaintiffs first claim unpersuasive because she failed to establish that the defendant’s business relationship with the Cases impaired her right to enforce any benefits to which she was entitled under her policy. If, hypothetically, the defendant “gratuitously” extended coverage to the Cases, “this act did not injure [the plaintiffs] right ... to receive a benefit because [the plaintiff] had no right to a benefit. This remains true even if the Cases’ claim for coverage is weak or was based on a policy issued without a title search.”

On appeal, the plaintiff claims that the court improperly required her to show a linkage between her allegations of lack of good faith and the terms of her insurance contract. She cites our Supreme Court’s decision in Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007), for the proposition that “[w]hether a party has acted in bad faith is a question of fact, subject to review only for clear error.” The plaintiff appears to argue that, regardless of the terms of the contract, she is always entitled to have a trier of fact resolve the merits of her claim of lack of good faith.

The plaintiffs argument cannot be sustained in light of our Supreme Court’s predicate statement, in the immediately preceding paragraph in the opinion that she cites, that “[t]he 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). Id. In light of this well established principle, the court properly construed the allegations in the plaintiffs count five as referencing by implication the contract claims stated in count four.

The plaintiff faults the court for restricting its contract analysis to the express terms of her insurance contract. She has not, however, proffered an analysis of any relevant terms that might reasonably be implied therefrom. Instead, the plaintiff argues that the defendant acted in bad faith by failing to exercise its discretion not to enforce the exclusionary clauses in her own contract because it was simultaneously exercising its discretion to afford greater coverage to the Cases. This argument assumes that the two insurance contracts, although issued at different times with respect to different properties, were identical in fact or were required to be identical in law. Because the plaintiff has cited no authority to establish the validity of these assumptions, we agree with the court’s resolution of this issue.

In addition to her claim that the defendant acted in bad faith by its preferential treatment of the Cases, the plaintiff alleged that the defendant, in bad faith, had “shared confidential underwriting and claim information of one of its policyholders with another one of its policyholders who holds an adverse interest.” In response to this allegation, the defendant submitted the affidavit of its claims counsel that, apart from information disclosed to all counsel of record, the defendant had not provided to any of its policyholders any information about the plaintiffs insurance policy or about the plaintiffs claim for coverage. The court found that “[n]one of the documentation submitted by [the plaintiff] contradicts this affidavit.” In light of this state of the record, the court found that there was “no genuine issue of material fact regarding this claim.”

The plaintiff maintains that the court had evidence from which it might have inferred that the defendant routinely failed to protect policyholder confidentiality and divulged information about her insurance policy to another policyholder. At best, however, that evidence concerned disclosure of information about the Cases policy and does not demonstrate unauthorized disclosures about the plaintiffs policy. The court was not required to go beyond what the record contained.

The plaintiffs more serious claim is that the court did not afford her the opportunity to conduct the discovery that would have enabled her to challenge the representations in the defendant’s affidavit. The record before us contains the transcript of a hearing before the court in which the plaintiff unsuccessfully sought a continuance to enable her to undertake further discovery. In this appeal, the plaintiff has not referenced this hearing and has made no attempt to show that the court’s denial of her motion was an abuse of its discretion. See State v. Ross V., 110 Conn. App. 1, 7, 953 A.2d 945 (court’s discretion whether to grant continuance will not be disturbed on appeal absent abuse of discretion), cert. denied, 289 Conn. 939, 958 A.2d 1247 (2008). The plaintiffs bare allegation that she was prejudiced by the court’s denial of her request for further discovery does not establish that the court acted improperly.

In sum, we agree with the court that the defendant was entitled to summary judgment because the terms of the plaintiffs insurance policy did not provide coverage for her dispute about subdivision rights reserved in the declaration that established her planned community. Furthermore, the implied covenant of good faith and fair dealing did not require the defendant to waive exclusions in the plaintiffs insurance policy, even if it were found to have exercised a contrary option with respect to another policyholder with a comparable insurance policy.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47-200 et seq. “is a comprehensive legislative scheme regulating all forms of common interest ownership that is largely modeled on the Uniform Common Interest Ownership Act.” Nicotra Wieler Investment Management, Inc. v. Grower, 207 Conn. 441, 447, 541 A.2d 1226 (1988).

       Because this appeal concerns only the plaintiff Lauren Heyse and the defendant Connecticut Attorneys Title Insurance Company, we refer to them in this opinion as the plaintiff and the defendant, respectively.

       General Statutes § 47-361, entitled, “Type of estate deemed to be included in conveyance,” provides: “In any conveyance of real property all rights, privileges and appurtenances belonging or appertaining to the granted or released estate are included in the conveyance, unless expressly stated otherwise in the conveyance and it is unnecessary to enumerate or mention them either generally or specifically.”

       Indeed, in the absence of such a limitation, it is difficult to see how a motion for summary judgment in a contract action could ever succeed.


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    THEODORE H. MARTLAND ET AL. v. ZONING COMMISSION OF THE TOWN OF WOODBURY ET AL.
    (AC 29425)
    DiPentima, Gruendel and Robinson, Js.

      Argued January 6
    officially released June 2, 2009

      Duncan J. Forsyth, with whom were Richard P. Roberts and, on the brief, Jennifer Sills Yoxall, Anne D. Peterson and Maureen Danehy Cox, for the appellants (defendants).

      Franklin G. Pilicy, for the appellees (plaintiffs).
   Opinion

DiPENTIMA, J.

The defendants, the zoning commission of the town of Woodbury (commission), its chairman and the town clerk, appeal from the judgments of the trial court sustaining the administrative appeals of the plaintiffs, Theodore H. Martland and Martland Management, Inc. On appeal, the defendants claim that the court improperly (1) determined that the record did not contain substantial evidence with respect to a specific condition imposed in connection with the approval of a special permit for pond excavation and (2) failed to determine that the condition was integral to the approval of the special permit. We disagree with the defendants’ first claim but agree with their second claim. Accordingly, we reverse the judgments of the trial court.

The following facts are relevant to our resolution of the defendants’ appeal. The plaintiffs submitted an application, dated May 6, 2004, for a special permit to excavate earth materials from a portion of Riker Pond. This pond is located on Quassuk Road in Woodbury. The stated purpose of this excavation was to “diversify its habitat.” The proposed activity would have removed approximately 17,000 cubic yards of soil from the floor of the pond, increasing the pond’s depth to approximately twelve feet. The plaintiffs also proposed creating an unpaved road to haul excavated materials to a neighboring property. The road was to be fashioned from approximately 10,000 cubic yards of sand and gravel from an existing berm that ran along the western side of the pond. The berm, sloped and approximately 1345 feet in length, varied in height from 3.5 to eighteen feet above the water level of the pond and in width from forty to 120 feet.

Following several hearings and a modification of the proposed activities, the commission approved the plaintiffs’ application and granted the special permit on September 28, 2004. The commission imposed certain conditions on the special permit. Condition (g) provided: “Upon completion of the excavation of the pond, the applicant shall restore all disturbed areas above the water level to a condition comparable to the conditions that existed prior to the excavation of the pond.” The commission required the plaintiffs to submit a site restoration plan prepared by a landscape architect that demonstrated compliance with this condition.

By way of a complaint dated October 11, 2004, the plaintiffs filed an appeal with the Superior Court. They alleged that the restoration condition was vague, not consistent with the application and would make the excavation of the pond economically and practically unfeasible. The plaintiffs further claimed that the commission’s actions were illegal and arbitrary and constituted an abuse of discretion.

On October 11, 2005, the plaintiffs filed a second application with the commission seeking to amend the approved special permit. Specifically, they sought the removal of the restoration condition. After several public hearings, the commission unanimously voted to deny the second application on January 24, 2006. The plaintiffs then appealed from this denial in a second appeal to the Superior Court, claiming that the commission had acted illegally and arbitrarily and had abused its discretion. On April 24, 2006, the court granted the plaintiffs’ motion to consolidate the two appeals.

In its memorandum of decision, the court began its analysis by reviewing the Woodbury zoning regulations. Section 5.2.8 provides that the plaintiffs’ excavation of earth materials required a special permit in accordance with § 10 of the regulations. Section 10.4 requires the commission, before granting a special permit, to consider certain criteria and to make a finding that the proposal would not be inconsistent with the welfare of the public. Subsection (e) of that regulation requires the commission to take into consideration the impact of a proposed use of property in residential areas.

The commission had determined that “the proposed activity has the potential to impact residential properties and as such it should be conditioned to the extent that it minimizes such impacts . . . .” The court noted that § 10.4.e.4 of the Woodbury zoning regulations provided the basis of this finding. That section states: “Consideration shall be given to the preservation and enhancement of existing topographic and/or vegetative buffers between adjoining properties.” Woodbury Zoning Regs., § 10.4.e.4. The commission considered the berm to be a buffer between adjoining properties. The commission argued to the court that the berm constituted a “significant topographic feature that [served] as a vegetative and noise barrier.” Specifically, it claimed that the berm separated the pond and residential properties from certain commercial activities, namely, a nursery and a mining operation.

The court concluded that the record did not contain substantial evidence to support the reasons proffered by the commission for the restoration condition. Specifically, the court determined that certain public comments regarding an increase in noise following the completion of the plaintiffs’ project consisted of “the speculative general concerns of two laypersons.” As to the issue of the berm as a vegetative buffer, the court stated that there was no evidence that the berm functioned in that capacity. It concluded: “A thorough review of the record fails to show any substantial evidence or reliable factual basis from which the [commission] could conclude that the failure to restore the berm to its original natural contours would result in any increase in noise or that the restoration condition was necessary to provide a vegetative buffer. Accordingly . . . there is no substantial evidence in the record to show that the restoration condition was necessary to protect the public health, safety, convenience or property values as provided in . . . General Statutes § 8-2 (a), and the [commission] acted arbitrarily and abused its discretion by the imposition of the restoration condition on the special permit.” (Internal quotation marks omitted.)

The court also rejected the defendants’ argument that the restoration condition was integral to the approval of the special permit. It therefore sustained the plaintiffs’ appeals and ordered the commission to delete the restoration condition and all provisions of the site restoration plan. This appeal followed.

Before addressing the specific claims of the defendants, we set forth the legal principles and standard of review that guide the resolution of the defendants’ appeal. Our Supreme Court previously has “observed that [a] special exception allows a property owner to use his property in a manner expressly permitted by the local zoning regulations. . . . Nevertheless, special exceptions, although expressly permitted by local regulations, must satisfy [certain conditions and] standards set forth in the zoning regulations themselves as well as the conditions necessary to protect the public health, safety, convenience and property values [as required by § 8-2], . . . Moreover, we have noted that the nature of special exceptions is such that their precise location and mode of operation must be regulated because of the topography, traffic problems, neighboring uses, etc., of the site. . . . We also have recognized that, if not properly planned for, [such uses] might undermine the residential character of the neighborhood. . . . Thus, we have explained that the goal of an application for a special exception is to seek permission to vary the use of a particular piece of property from that for which it is zoned, without offending the uses permitted as of right in the particular zoning district.” (Internal quotation marks omitted.) Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 426-27, 941 A.2d 868 (2008).

“When considering an application for a special exception, a zoning authority acts in an administrative capacity, and its function is to determine whether the proposed use is expressly permitted under the regulations, and whether the standards set forth in the regulations and statutes are satisfied. . . . When a zoning authority has stated the reasons for its actions, a reviewing court may determine only if the reasons given are supported by the record and are pertinent to the decision. . . . The zoning board’s action must be sustained if even one of the stated reasons is sufficient to support it. ... In light of the existence of a statutory right of appeal from the decisions of local zoning authorities, however, a court cannot take the view in every case that the discretion exercised by the local zoning authority must not be disturbed, for if it did the right of appeal would be empty .... In reviewing the action of the trial court, we have to decide whether it could in logic and in law reach the conclusion that the [zoning authority] should be overruled. . . .

“[B]efore the zoning commission can determine whether the specially permitted use is compatible with the uses permitted as of right in the particular zoning district, it is required to judge whether any concerns, such as parking or traffic congestion, would adversely impact the surrounding neighborhood. . . . Connecticut courts have never held that a zoning commission lacks the ability to exercise discretion to determine whether the general standards in the regulations have been met in the special permit process. . . .

“Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The . . . trial court ha[s] to decide whether the board correctly interpreted the section [of the regulations] and applied it with reasonable discretion to the facts. ... In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal. . . . [0]n factual questions ... a reviewing court cannot substitute its judgment for that of the agency.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn. App. 533, 537-39, 738 A.2d 1157 (1999); see also A Aiudi & Sons, LLC v. Planning & Zoning Commission, 267 Conn. 192, 203-204, 837 A.2d 748 (2004); see generally R. Fuller, 9A Connecticut Practice Series: Land Use Law and Practice (3d Ed. 2007) § 33.4, pp. 241-53.

I

The defendants first claim that the court improperly determined that the record did not contain substantial evidence with respect to the restoration condition. Specifically, they argue that the record contained sufficient evidence that the berm acted as a noise and vegetation buffer, and, therefore, the imposition of the restoration condition was proper. We disagree.

The evidence supporting the decision of a zoning board must be substantial. Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, 73 Conn. App. 442, 458, 807 A.2d 1089, cert. denied, 262 Conn. 928, 814 A.2d 379 (2002), overruled in part on other grounds by Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 433, 941 A.2d 868 (2008). “This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. . . . The substantial evidence rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration.” (Internal quotation marks omitted.) Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, supra, 458; see also Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, supra, 427; 9A R. Fuller, supra, § 33:12, pp. 286-88. The corollary to this rule is that absent substantial evidence in the record, a court may not affirm the decision of the board. See Bialowas v. Commissioner of Motor Vehicles, 44 Conn. App. 702, 709, 692 A.2d 834 (1997).

A

With respect to the claim that the berm acted as a noise buffer, an examination of the record reveals the following. Eric Roundy, a resident of Quassuk Road, attended the July 13, 2004 public hearing and voiced his opposition to the plaintiffs’ proposed activity. Roundy specifically noted his concern with the proposal to remove the berm. He stated that its removal would “cause not only a tremendous amount of temporary noise . . . but also, because of the removal of the berm, which—and the vegetation on the top of the berm—provides a substantial buffering area of noise both from the activities at [the nursery] and also the mining operation next door .... And, not only would we have to endure the temporary noise—however long it takes—the pumps, heavy equipment, so on and so forth, but I think it would, on a permanent basis, increase the noise in the neighborhood in general— particularly in the summer months with the lack of foliage on the trees on the berm as it exists now.”

At the July 27, 2004 public hearing, another member of the public, Fred Leavenworth, presented his opposition to the plaintiffs’ first application for a special permit. With respect to the issue of noise, Leavenworth stated: “This pond plays a part of the scenic role in the setting of that area of Quassuk Road. And the berm behind it is a part of the scenic character. We have discussed previously at this meeting about the removal of the berm opening out to noises that come from the nursery operation and their large equipment that discourages, and trees and so forth, for landscaping activity, and also the activity of the Tietz sand and gravel operation, which is very close by, with the berm acting at a—as a buffer. Just on the other side of the pond, we have one of the most densely populated sections of Woodbury . . . .”

Our review of the record also reveals that at the December 13, 2005 public hearing, Roundy spoke against the plaintiffs’ second application and made the following comments relating to the issue of noise. “And, my concern is—is that if this berm is leveled down to almost the water line and then left flat, and not restored to its original contours and elevations, that much of the noise dampening characteristics of the berm would be lost. There is a considerable amount of noise that comes into the neighborhood from Young’s Nursery. And, the berm is a tremendous factor, particularly in the—in the summertime months, with the vegetation on the berm, which is considerable—as a considerable dampening factor as far as the noise coming from the— the areas beyond it. A concern is—is that with that gone, and the way noise travels over water, that it will considerably increase the noise during most of the year and the heavy machinery that’s operated by Young’s Nursery. That will be a hardship on the neighborhood.” Roundy submitted a letter to the commission at this hearing echoing his earlier testimony concerning the issue of noise.

The court concluded that the commission was presented only “with the speculative general concerns of two laypersons” and that “[a]bsent some reliable evidence in the record tending to show that if the berm was not restored to its natural condition, the noise would increase to a level which would cause harm to the public health, safety, convenience or property values . . . the [commission] could not logically conclude that any such harm or risk would occur.” We agree with the court.

On the basis of our review of the entire record, we conclude that the evidence pertaining to the berm as a noise buffer is not substantial because it is not supported by anything other than speculation and conjecture on the part of those objecting to the plaintiffs’ proposed activities. See, e.g., Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, supra, 73 Conn. App. 463. Neither Roundy nor Leavenworth indicated any type of expertise that would buttress their lay opinion on the berm’s ability to buffer the surrounding areas from noise. Their statements relating to the change in noise if the berm was not restored amount to speculation and a general, unsubstantiated concern. See, e.g., Lord Family of Windsor, LLC v. Inland Wetlands & Watercourses Commission, 103 Conn. App. 354, 365, 928 A.2d 1237 (2007) (“The evidence in the record fails to constitute anything more than speculation .... A mere worry is not substantial evidence.”). There was no scientific data comparing the noise levels of the area with the berm in its present and proposed conditions. Cf. Rhudy v. Fairfield University, Superior Court, judicial district of Fairfield, Docket No. CV-99-0368012-S (August 18, 2000) (applicants for temporary injunction presented testimony of lighting experts and sound, noise or acoustics experts). Even if we assume arguendo that the noise level would increase as a result of the changes to the berm, the record is devoid of any evidence indicating how much of a noise increase would be permissible before the public health, safety, convenience or property values would be impacted. “A special permit may be denied only for failure to meet specific standards in the regulations, and not for vague or general reasons.” (Internal quotation marks omitted.) Bethlehem Christian Fellowship, Inc. v. Planning & Zoning Commission, supra, 465.

We have explained that “[substantial . . . evidence is that which carries conviction. It is such evidence as a reasonable mind might accept as adequate to support a conclusion. It means something more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established.” (Internal quotation marks omitted.) Raczkowski v. Zoning Commission, 53 Conn. App. 636, 641, 733 A.2d 862, cert. denied, 250 Conn. 921, 738 A.2d 658 (1999). In the present case, the record reveals that the evidence with respect to the berm as a noise buffer was inadequate to reach the necessary threshold to support the imposition of the condition by the defendant. Accordingly, the court properly determined that the requirement of the restoration condition was improper.

B

With respect to the claim that the berm acted as a vegetative buffer, an examination of the record reveals the following. The court stated that the record did not “contain any evidence that the berm presently functions [as a vegetative buffer].” The court further observed that the only evidence in the record contradicted the defendants’ argument, as the plaintiffs’ geologist, Charles Dimmick, testified that the berm was comprised of a “very sandy, gravely mix that does not really support vegetation all that well. We are going to be putting back two feet of the muck that is coming out of the pond, which is high in organic content. With that two feet deep, we will be able to support vegetation along the berm. So, we will be able to better vegetate the berm.”

The defendants direct our attention to a letter in the record that describes the berm as “vegetated” and a comment from a member of the public stating that “[restoration of the berm and its vegetation . . . .” We agree with the court that the record lacks substantial evidence with respect to the berm as a vegetative buffer.

As we stated in part I A, substantial evidence is evidence that a reasonable mind accepts as adequate to support a conclusion, is more than a mere scintilla and must do more than create a suspicion of the existence of the fact to be established. See Raczkowski v. Zoning Commission, supra, 53 Conn. App. 641. Although there is evidence in the record that some vegetation existed on the berm, there is nothing to support the claim that it acted as a vegetative buffer. We conclude, therefore, that the court properly determined that there was no substantial evidence to support this aspect of the restoration condition.

II

The defendants next claim that the court improperly failed to determine that the restoration condition was integral to the approval of the application for a special permit. Specifically, the defendants argue that the record reveals that the application would not have been approved absent the restoration condition and that, therefore, the approval of the permit must be reversed in its entirety. We agree that the record is not clear whether the special permit would have been granted absent the restoration condition and, accordingly, reverse the judgments of the trial court.

The court, with respect to the issue of the severability of the restoration condition, made the following observations. “At the public hearings, the duration of the drainage and hauling activity on the site appeared to be of interest if not concern to the public and the commission. . . . Nonetheless, the [commission] found the plaintiffs’ plan to be acceptable and approved the project activities. The special permit sought by the plaintiffs was for a limited purpose and activity, which was to be conducted over a limited period of time.” (Citation omitted.) The court also noted that compliance with the restoration condition would require a considerable amount of the same type of activities about which the commission had expressed concerns, stating: “It strikes the court as counterintuitive to require that the excavation and earthmoving activity, which appeared from the record to be the most objectionable, be extended to allay nothing more than a speculative concern.”

We begin our analysis of this claim by setting forth the appropriate standard of review. The severability of illegal conditions to a zoning permit is a question of law; therefore our review is plenary. See Parish of St. Andrew's Church v. Zoning Board of Appeals, 155 Conn. 350, 353-55, 232 A.2d 916 (1967).

“Although the imposition of an unlawful condition does not necessarily render a zoning authority’s entire decision illegal and inefficacious . . . where the void condition was an essential or integral component of the zoning authority’s decision it cannot be upheld.” (Citation omitted.) DeBeradinis v. Zoning Commission, 228 Conn. 187, 202-203, 635 A.2d 1220 (1994); Floch v. Planning & Zoning Commission, 38 Conn. App. 171, 173, 659 A.2d 746 (1995); see also Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 66, 574 A.2d 212 (1990) (condition imposed by zoning authority severable from otherwise valid variance if removal would in no way destroy value or effectiveness of variance). Simply put, “[i]f an integral condition is invalid, then an otherwise valid variance is also invalid.” Reid v. Zoning Board of Appeals, 235 Conn. 850, 858, 670 A.2d 1271 (1996).

We conclude that the restoration condition was integral to the approval of the plaintiffs’ special permit application. The commission’s written findings expressly provided that “all of the conditions” imposed must be satisfied. (Emphasis in original.) Additionally, the commission unanimously rejected the plaintiffs’ second application that sought specifically to remove the restoration condition. In reaching this conclusion, the commission referenced the original application and cited the town engineer’s “recommendation that the majority of the berm west of the pond could remain and its existing elevation and identified conditions to minimize impacts on residential properties, which conditions included restoration of disturbed areas about the water level . . . .” (Internal quotation marks omitted.) The clear import of that decision is that the commission considered the restoration condition to be of some significance to its approval of the special permit.

After careful review of the entire record, we cannot conclude that the commission would have approved the special permit application if it had been aware that the restoration condition could not be enforced. See DeBeradinis v. Zoning Commission, supra, 228 Conn. 203. Accordingly, the court improperly determined that the restoration condition was not integral to and could be severed from the approval of the special permit application.

The judgments are reversed in part and the cases are remanded to the trial court with direction to render judgments reversing the zoning commission’s decision and remanding the cases for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Martin Overton, chairman of the zoning commission, and Rita Connelly, the town clerk of Woodbury, were also named as defendants and have joined in the appeal.

       Martland, along with Lisbet Morris and Stephen Morris, owns the property that is the subject of these proceedings. Martland Management, Inc., submitted the application for a special permit and also is a plaintiff.

       Section 5.2.8 of the Woodbury zoning regulations provides in relevant part: “Any excavating, grading, removal, and deposition of earth materials not permitted under or subject to the provisions of Section 15 of these Regulations or not exempt in accordance with Section 5.1.2 of these Regulations must receive a Special Exception and site plan approval in accordance with Section 10 of the . . . Regulations.”

       “The terms special permit and special exception are interchangeable.” (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn. App. 17, 20, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006); see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 175.

       “In granting a special exception, the board may, in a proper case, impose a condition, but only where it is warranted by the regulations.” Parish of St. Andrew’s Church v. Zoning Board of Appeals, 155 Conn. 350, 354, 232 A.2d 916 (1967).

       We note that contrary to the issue of the noise buffer, the applicable zoning regulation expressly requires consideration of the preservation of vegetative buffers between adjoining properties. See Woodbury Zoning Regs., § 10.4.e.4. This does not change our analysis.

       Additionally, at the July 27, 2004 public hearing, one of the plaintiffs’ experts, engineer Kenneth Hrica, stated that the material in the berm is a sand gravel mix.

       We note that during the public hearings, Roundy commented on the existence of vegetation on the top of the berm. His comments consisted solely of his lay opinion that it was considerable.

       The defendants also argue in their brief that the trial court, after conducting asite walk, described the subject property as heavily treed. In it memorandum of decision, the court stated: “With permission and in the presence of counsel to the parties, the court conducted a site walk on the property and the surrounding neighborhood. The property is located in a tranquil rural setting and is heavily treed. From the walk along the top of the berm, no homes were visible except [Theodore Martland’s] daughter’s home situated to the south of the pond. There was evidence of significant beaver activity. At the time of the visit, there was no noticeable noise except an occasional automobile on Quassuk Road.” The court described the property as heavily treed and made no specific mention as to the vegetation on the berm itself.


author: PETERS, J.

text:
    TOTAL RECYCLING SERVICES OF CONNECTICUT, INC., ET AL. v. CONNECTICUT OIL RECYCLING SERVICES, LLC
    (AC 29721)
    Gruendel, Robinson and Peters, Js.

      Argued November 17, 2008
    officially released June 2, 2009

      William J. Sweeney, Jr., for the appellant (defendant).

      Jonathan J. Klein, for the appellees (plaintiffs).
   Opinion

PETERS, J.

The law of contracts has long recognized that “[u]njust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract.” (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006). In this case, a purchaser of goods and intangibles challenges the validity of a jury verdict holding it hable for damages for unjust enrichment despite a concurrent jury finding of breach of contract by the vendors. The purchaser also challenges the trial court’s denial of its motion for attorney’s fees. We affirm the court’s acceptance of the jury verdict, but reverse its ruling with respect to attorney’s fees.

In a four count complaint filed on October 19, 2006, the plaintiffs, Total Recycling Services of Connecticut, Inc. (Total Recycling), and Whitewing Environmental Corporation (Whitewing), brought an action to enforce their alleged rights under three contracts relating to the sale of an oil recycling business to the defendant, Connecticut Oil Recycling Services, LLC. The plaintiffs sought damages either for breach of contract by the defendant or for unjust enrichment of the defendant, claiming nonpayment of amounts due. The defendant denied any liability to the plaintiffs and filed a five part counterclaim for damages resulting from the plaintiffs’ alleged failure to honor their contractual and statutory obligations to the defendant. The defendant also sought attorney’s fees in accordance with the provisions of two of the contracts between the parties.

In special interrogatories submitted to the jury, the court asked the jury to make specific findings about the plaintiffs’ right to recover damages either for breach of contract or for unjust enrichment. The court also asked the jury to make findings on the defendant’s right to recover damages as alleged in the various counts of its counterclaim. None of the parties objected to the submission of these interrogatories to the jury.

In the responses to the interrogatories that are relevant to this appeal, the jury found:

(1) Although neither Total Recycling nor the defendant fully performed its obligations under the two contracts between the parties, Total Recycling’s partial performance resulted in the unjust enrichment of the defendant and entitled Total Recycling to recover damages of $63,130.70 and interest of $6313.07;

(2) Although Whitewing did not fully perform its obligations under its contract with the defendant, White-wing’s partial performance resulted in the unjust enrichment of the defendant and entitled Whitewing to recover damages of $63,130.70 and interest of $6313.07; and

(3) Although the plaintiffs’ breach of the express terms of one of their agreements with the defendant did not entitle the defendant to recover damages, their breach of the implied covenant of good faith and fair dealing in the contracts between Total Recycling and the defendant entitled the defendant to recover damages of $39,015 and interest of $3901.50.

The trial court accepted the verdict of the juiy and denied the defendant’s motion to set aside the award of damages to the plaintiffs. The court also denied the defendant’s motion for an award of attorney’s fees. The defendant’s appeal challenges both of these rulings.

I

THE JURY VERDICT

The trial court’s memorandum of decision denying the defendant’s motion to set aside the verdict describes the relevant facts that the jury reasonably might have found in support of its answers to the interrogatories. These facts are largely undisputed.

The plaintiffs entered into three agreements for the sale of a waste oil recycling business to the defendant. In two asset purchase agreements, Total Recycling conveyed equipment to the defendant for an immediate payment of $100,000 and transferred its customer list to the defendant in return for four years of future payments tied to the defendant’s waste oil business. At the same time, in a separate agreement with the defendant, for similar future payments, Whitewing promised to refrain from soliciting the defendant’s customers and from competing with the defendant.

Both of the plaintiffs substantially performed their obligations under their contracts with the defendant. Total Recycling’s sale of equipment to the defendant was, however, defective in part because three of the eleven vehicles transferred to the defendant were subject to liens held by the department of environmental protection. During the time that these vehicles were unusable, the defendant incurred the cost of $39,015 for the rental of other equipment. Furthermore, although Total Recycling allegedly attempted to sell its customer list to a third party, the defendant introduced no evidence to show that the attempted sale caused it a loss of business or profits.

The defendant never made any of the payments related to the volume of its sales that were required by its agreements with the plaintiffs. There was evidence that the payments due from the defendant amounted to approximately $195,000.

In light of this factual record, the trial court denied the defendant’s motion to set aside the jury verdict. It concluded that the evidence of the plaintiffs’ substantial performance of their contractual obligations supported the jury’s findings that the defendant had been unjustly enriched by the benefits conferred upon it by the assets, customer list and noncompete agreement it had received.

In an appeal from a trial court’s refusal of a motion to set aside a jury verdict, we “consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion.” (Internal quotation marks omitted.) Sutcliffe v. Fleet-Boston Financial Corp., 108 Conn. App. 799, 811, 950 A.2d 544 (2008).

In this appeal, the defendant does not challenge the accuracy of the trial court’s recital of the facts that the jury reasonably might have found in support of its answers to the interrogatories. It maintains instead that the court improperly failed, as a matter of law, to grant its motion to set aside the jury verdict. In its view, because both plaintiffs had the right to pursue legal remedies for breach of contract, and because the jury found that both plaintiffs had breached the contract, they were barred from recovering under any claim for unjust enrichment. We disagree.

We note at the outset that it is late in the day for the defendant to argue that there is a fundamental legal inconsistency between the jury’s finding that the plaintiff had breached the contract and its award of damages for unjust enrichment. At trial, the defendant did not object to the court’s instructions to the jury expressly authorizing a verdict for the plaintiffs either on their claims of breach of contract or on their claims of unjust enrichment. Similarly, at trial, the defendant did not object to the submission of jury interrogatories that expressly authorized the jury to consider both sets of claims by both plaintiffs.

Even if the defendant’s argument were properly before us, however, it is unpersuasive on its merits. The defendant argues that the present case is governed by Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 735 A.2d 813 (1999), in which our Supreme Court held that the terms of an express contract may preclude recognition of a claim of an implied contract. Id., 517. Meaney acknowledged the general principle that a “right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another.” (Internal quotation marks omitted.) Id., 511. The court nonetheless concluded that a former employee did not have a cognizable claim of unjust enrichment to recover incentive pay for his past services because of uncontested evidence that he had been unsuccessful in persuading his employer to include such compensation in his employment contract. Id., 522. As Professor E. Allan Farnsworth has observed, “a party that has made a contract with another cannot simply disregard the contract and claim restitution from the other party for performance rendered under the contract.” 1 E. Farnsworth, Contracts (3d Ed. 2004) § 2.20, pp. 191-92. The facts of this case, however, bear no resemblance to those at issue in Meaney.

The defendant’s reliance on Vertex, Inc. v. Waterbury, supra, 278 Conn. 557, is equally misplaced. One of the issues in Vertex, Inc., was whether the trial court had abused its discretion in dismissing two counts of the plaintiffs complaint in the absence of a motion to strike or a motion for summary judgment. Id., 566-70. In that context, the court, in a footnote, cited Meaney for the proposition that “proof of an operative contract would have been incompatible with recovery on an unjust enrichment theory.” Id., 570 n.12. We do not read this footnote to expand the holding of Meaney beyond its facts.

We conclude, therefore, that the trial court properly denied the defendant’s motion to set aside the verdict of the jury in favor of the plaintiffs. Like the trial court, we are persuaded that the jury’s verdict was neither inconsistent with the evidence at trial nor contrary to law.

II

ATTORNEY’S FEES

In the defendant’s motion for attorney’s fees, it relied on the terms of the agreement to transfer Total Recycling’s customer list and Whitewing’s agreement not to compete. Each of these agreements entitled the defendant to recover “costs or damages, including reasonable attorney fees resulting from any breach of any representation, warranty or covenant contained in this Agreement.” The trial court concluded that these provisions were inapplicable because the jury had awarded damages to the defendant only with respect to Total Recycling’s breach of the agreement to convey equipment, which did not contain such a clause. The defendant does not challenge the court’s characterization of the damages award that the jury made. It contends, however, that the court improperly failed to consider the significance of the jury’s uncontested findings that the plaintiffs had breached their obligations in the two contracts that did contain such a clause. We agree with the defendant.

“It is well established that we review the trial court’s decision to award attorney’s fees for abuse of discretion. . . . This standard applies to the amount of fees awarded . . . and also to the trial court’s determination of the factual predicate justifying the award. . . . 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.” (Citations omitted; internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 252-53, 828 A.2d 64 (2003).

The defendant maintains that the facts of record, as documented in the jury’s responses to the jury interrogatories, establish that it was not reasonable for the trial court to have rejected, out of hand, its claim to an attorney’s fee award. The plaintiffs have not challenged the jury’s findings that Total Recycling breached the agreement to transfer its customer list and that White-wing breached the agreement not to compete. The attorney’s fee clauses in these contracts did not require the defendant to prove more than breach. As our Supreme Court held in Storm Associates, Inc. v. Baumgold, 186 Conn. 237, 245, 440 A.2d 306 (1982), in the absence of an applicable statute, a litigant “derives its right to recover an attorney’s fee . . . from its contract and not from a claim for damages.” We hold, therefore, that the trial court improperly held that the jury’s verdict with respect to the equipment purchase agreement precluded the defendant’s recovery of reasonable attorney’s fees under the other two contracts between the parties.

It follows that we must remand this case for further proceedings in the trial court with respect to the defendant’s claim for attorney’s fees. The parties have not had the opportunity, to date, to address the proper construction of the clause, in both contracts, that permits the defendant, on a showing of the plaintiffs’ breach, to recover “costs or damages, including reasonable attorney fees . . . .’’It is, for example, not clear whether the phrase “including attorney fees” modifies both “costs” and “damages.” “[W]here the text of an agreement reasonably allows for varying interpretations—whether by the inadvertence or design of the draftsman—the need for judicial construction cannot, and may not, be avoided.” Wards Co. v. Stamford Ridgeway Associates, 761 F.2d 117, 120 (2d Cir. 1985). The parties similarly have not had the opportunity to present evidence on the reasonableness of the fees accrued by the defendant during the course of this litigation. A remand will provide an opportunity for the resolution of these issues and other related questions that the parties may want to present.

The judgment is reversed in part and the case is remanded to the trial court for a new hearing on the defendant’s motion for attorney’s fees.

In this opinion the other judges concurred.

       Total Recycling is a wholly owned subsidiaiy of Whitewing.

       Count one of the counterclaim alleged that certain assets sold by Total Recycling had been subject to liens, that certain customer lists improperly had been sold to a competitor of the defendant and that the plaintiffs had misappropriated certain checks. Count two alleged that the plaintiffs’ conduct as described in the first count constituted a breach of the implied covenant of good faith and fair dealing. Count three alleged that the plaintiffs’ conduct as described in the first count constituted an unfair trade practice in violation of General Statutes § 42-110a et seq. Count four alleged that the defendant was the assignee of a contract right for payment from Total Recycling. Count five alleged that the defendant was the assignee of another contract right for payment from Total Recycling. In response to counts four and five, Total Recycling denied its liability on those alleged contracts.

       In the jury’s response to interrogatories relating to the first count of the plaintiffs’ complaint alleging breach of contract, the jury found that Total Recycling did not “perform its obligation” under the “Asset Purchase Agreement (Equipment)” or under the “Asset Purchase Agreement (Good Will).” The jury also found that the defendant did not perform its obligation under these two contracts. Finally, the jury found that the plaintiffs recovery on count one was barred “in whole or in part by its breach of the Asset Purchase Agreement.”
      In the jury’s response to interrogatories relating to the second count of the plaintiffs complaint, alleging unjust enrichment, the jury found that the defendant “was unjustly enriched at the expense of [Total Recycling],” that Total Recycling’s recovery was not “barred, in whole or in part, by its breach of contract,” and that Total Recycling was entitled to damages of $63,130.70 and interest of $6313.07.

       In the jury’s response to interrogatories relating to the third count of the plaintiffs’ complaint alleging breach of contract, the jury found that Whitewing had not “performed its obligation under its Non-Compete Agreement with [the defendant],” that the defendant had not “breached its agreement with Whitewing,” that Whitewing’s recovery for breach of contract was “barred in whole or in part by its own breach of the Non-Compete Agreement,” and that Whitewing was not entitled to damages.
      In the jury’s response to interrogatories relating to the fourth count of the plaintiffs’ complaint alleging unjust enrichment, the jury found that the defendant “has been unjustly enriched at the expense of Whitewing,” that “Whitewing [was not] barred from recovery because of its own breach” and that Whitewing was entitled to damages of $63,130.70 and interest of $6313.07.

       In the jury’s response to interrogatories relating to the first count of the defendant’s counterclaim, the jury found that one or both of the plaintiffs “breached its agreement with [the defendant],” but nonetheless found that the defendant was not entitled to damages.
      In the jury’s response to interrogatories related to the second count of the defendant’s counterclaim, the jury found that both plaintiffs “breached the implied covenant of good faith and fair dealing implied within the Asset Purchase Agreement,” and that the defendant was entitled to damages of $39,015 and interest of $3901.50.

       The defendant has not challenged the court’s acceptance of the jury’s responses to interrogatories relating to the remaining counts of the defendant’s counterclaim against the defendant.

       The plaintiffs concede that the defendant paid this part of the purchase price.

       The defendant agreed to pay five cents per gallon of waste oil that it collected from customers for two years from July 1, 2004, to June 30, 2006, 12.5 percent of wholesale market oil pricing for oil collected from customers from July 1, 2006, through June 30, 2007, and 6.25 percent of the wholesale market oil pricing for oil collected from customers from July 1,2007, though June 30, 2008.

       Both in the “Asset Purchase Agreement (Equipment)” and in the “Asset Purchase Agreement (Good Will)” between Total Recycling and the defendant, Total Recycling warranted that it had “good and marketable title . . . subject to no . . . lien” to the equipment that it sold to the defendant.

       In its memorandum of decision, the court opined that “[t]he court believes that the findings that the plaintiffs did not perform under the contracts were based on a misapplication of the law of contracts. The alleged breaches of contract by the plaintiffs were not material, and, therefore, did not constitute a failure to perform, which would deprive the plaintiffs of their right to recover under the contracts.” The plaintiffs, however, never filed a motion to set the jury verdict aside. The court record indicates that the trial court did not address the doctrine of part performance in its charge to the jury.

       Indeed, even now the defendant has not challenged the validity of the jury instructions or the jury interrogatories.

       Paragraph 14.2 of the Asset Purchase Agreement (Good Will) states: “Seller agrees to indemnify and hold Buyer harmless from any costs or damages, including reasonable attorney fees, resulting from any breach of any representation, warranty or covenant contained in this Agreement.”
      Paragraph 1.2 of the Non-Compete Agreement states: “[Whitewing] agree [s] to indemnify and hold [the defendant] harmless for any costs or damages, including reasonable attorney fees, resulting from any breach of any representation, warranty or covenant contained in this Agreement”


author: LAVINE, J.

text:
    SCOTT T. STURGEON v. JEFFREY STURGEON ET AL.
    (AC 29619)
    Lavine, Beach and Stoughton, Js.
    Argued January 13
    officially released June 2, 2009

      William S. Palmieri, for the appellant (plaintiff).

      Edward W. Gasser, with whom, on the brief, was Lauren E. Barber, for the appellee (named defendant).
   Opinion

LAVINE, J.

In this negligence action, the plaintiff, Scott T. Sturgeon, appeals from the trial court’s judgment rendered after a jury verdict in favor of the defendant Jeffrey Sturgeon. On appeal, the plaintiff claims that the court improperly (1) denied his motion to set aside the jury’s verdict and for a new trial on the ground that the jury could not have reached its conclusion reasonably and legally, (2) denied his motion on the basis of improper remarks made to the jury by the defendant’s counsel during closing arguments and (3) admitted a hearsay statement, limited the plaintiffs right to cross-examine the witness regarding that statement and failed to provide curative instructions to the jury. We affirm the trial court’s judgment regarding the first claim on the basis of the general verdict rule. We affirm the judgment regarding the second claim because we conclude that the court did not abuse its discretion when it denied the plaintiffs motion to set aside the verdict and for a new trial. We decline to review the plaintiffs third claim because he failed to preserve it for appeal.

The following background and procedural history are relevant to our consideration of the plaintiffs appeal. The plaintiff and the defendant are brothers. On August 10, 2005, the plaintiff, a professional carpenter, was helping the defendant repair damage on the defendant’s house. While the plaintiff was on a ladder, at the height of between fourteen and sixteen feet, the ladder kicked out, and the plaintiff fell to the ground. He struck his leg on a fence surrounding a dog pen in which the ladder had been placed and sustained serious injuries that required surgery. At the time of the plaintiffs fall, the defendant was vacuuming the area in front of his garage and did not witness the incident.

The plaintiff commenced a negligence action against the defendant. On November 21, 2007, after a four day trial, the jury returned a verdict in favor of the defendant. On November 30, 2007, the plaintiff filed a motion to set aside the verdict and for a new trial or judgment notwithstanding the verdict. The court denied the plaintiffs motion on January 14, 2008. On February 1, 2008, the plaintiff appealed from the court’s judgment in favor of the defendant and its denial of the motion to set aside the verdict and for a new trial. Further facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly denied his motion to set aside the verdict and for a new trial on the ground that the jury legally and reasonably could not have reached its conclusion. The plaintiffs principal argument in support of this claim is that the ultimate issue in the case, namely, whether the plaintiff instructed the defendant to leave the ladder or the defendant negligently walked away while the plaintiff was on the ladder, could have been determined favorably only as to the plaintiff. The plaintiff argues that his impeachment of the defendant was successful and that the defendant’s version of the events that led to the plaintiffs fall was not credible. We affirm the judgment of the court on the basis of the general verdict rule.

The following additional facts are relevant for our consideration of the plaintiffs claim. In count one of his complaint dated January 31, 2006, the plaintiff alleged that his injury was caused by the defendant’s negligence. He further alleged that the defendant’s negligence consisted of “negligently walking away while holding the ladder and allowing it to slip . . . failing to properly maintain and hold the ladder . . . failing properly and adequately to supervise and oversee the positing of the ladder . . . [and] that the [defendant . . . knew or should have known that if he walked away that the [p]laintiff would fall.” The defendant, in his amended answer, denied liability and asserted as a special defense the plaintiffs contributory negligence. The defendant alleged that the plaintiffs injury was due to the plaintiffs own negligence in that he “[i]mproperly set up the ladder . . . [ljeaned the ladder against the fence without the top of the ladder resting against the house . . . [flailed to move the ladder closer to the area he was working on so that he could reach the area in a safe manner; and . . . [s]trained and leaned his body to the side of the ladder outside of the range of reasonable care in order to reach the area he was working on.” At trial, the plaintiff and the defendant offered conflicting testimony regarding the events that led to the plaintiffs fall on August 10, 2005. Specifically, the plaintiff testified that he thought that the defendant was “footing” the ladder when it kicked out, causing him to fall. The defendant, on the other hand, testified that he left the ladder because the plaintiff had instructed him to go and vacuum the area where they were going to work next. In its charge, the court instructed the jury on both the defendant’s denial of the allegation and his special defense of contributory negligence. In his appellate brief, the plaintiff argues that the ultimate issue is whether he instructed the defendant to leave the ladder.

“The general verdict rule operates when a jury deliberates and returns a general verdict without special interrogatories. Under the general verdict doctrine, an appellate court will presume that the jury found every issue in favor of the prevailing party . . . and decline further appellate review. It operates, inter alia, where there is a denial of the allegations of a complaint and the raising of a special defense by the defendant, and the claimed error affects one but not the other. . . . Where there was an error free path available to the jury to reach its verdict, and no special interrogatories were submitted showing which road the jury went down, any judgment rendered on such a verdict must be affirmed. ” (Citations omitted; emphasis added.) Jackson v. H.N.S. Management Co., 109 Conn. App. 371, 372-73, 951 A.2d 701 (2008).

In the present case, the defendant denied the plaintiffs allegation of negligence and pleaded the special defense of contributory negligence. The parties did not submit interrogatories to the jury. We are therefore unable to determine whether the jury found in favor of the defendant because the plaintiff failed to prove his allegation of negligence or because the defendant prevailed on his special defense of contributory negligence. The plaintiff does not claim any error regarding the defendant’s special defense of contributory negligence, which was that the plaintiff improperly set up the ladder, leaned it against the fence without the top of the ladder resting against the house, failed to position it so that he could reach the area he was working on in a safe manner, and strained and leaned his body outside of the range of reasonable care. The plaintiffs only claim of error is that the jury could not have credited reasonably and legally the defendant’s testimony that the plaintiff instructed him to leave and that he therefore did not negligently walk away without informing the plaintiff. The special defense of contributory negligence therefore could have provided an error free path to the jury’s verdict, which precludes our review of the plaintiffs claim. See id., 374; O’Brikis v. Supermarkets General Corp., 34 Conn. App. 148, 153, 640 A.2d 165 (1994) (general verdict rule precludes review when it is impossible to tell whether jury verdict was based on finding of absence of negligence or finding of contributory negligence).

II

The plaintiffs next claim is that the court abused its discretion in denying his motion to set aside the verdict and for a new trial on the ground that the defendant’s counsel made improper remarks during closing argument to the jury. We disagree because we conclude that counsel’s remarks during the argument were not improper.

The following additional facts are relevant for our consideration of the plaintiffs claim. On November 20, 2007, outside of the jury’s presence, the court denied the defendant’s motion for a directed verdict on the basis of the plaintiffs failure to provide expert testimony on the issues of the standard of care applicable to those engaged in the repair of a garage peak and the proximate cause of the plaintiffs injury. The court concluded that expert testimony was not required on those issues because they were not “outside ordinary abilities of a layperson to understand or visualize.” The court stated that expert testimony could be helpful for either side but that it was not required for the plaintiff to make out a prima facie case on the issue of causation.

During closing arguments, the defendant’s counsel stated: “So, one of the questions that you are going to have to decide is the proximate cause question ... if [the defendant], in fact, was footing the ladder, not putting all his weight against him. . . . The question is, had he been doing that, would the plaintiff still have fallen, being two hundred and some-odd pounds, fifteen feet up in the air, leaning over two to three feet? . . . Now, you heard testimony from Dr. [Vipal] Dua. . . . What you didn’t have is testimony from any type of an engineer or anyone of that nature . . . .” The plaintiff objected to the argument of the defendant’s counsel, and the court stated: “I will allow both sides to argue on the basis of the evidence that was there and evidence that wasn’t.”

The defendant’s counsel further told the jury: “But what you didn’t have is the engineer to come in and testily that if [the defendant] had been doing that, this would not [have] happened. [The plaintiff] basically wants you to go out on a limb . . . and find that’s why he fell, with none of that testimony. . . . [The experts] make those types of conclusions. It’s [the plaintiffs] burden to prove his case, you know. The plaintiff is here seeking significant compensation. [The plaintiff] did not provide that kind of testimony to you that if, in fact, [the defendant] had been doing that, this would not [have] happened.”

The plaintiff claims that the court improperly denied his motion to set aside the verdict and for a new trial because the remarks of the defendant’s counsel were prejudicial and inappropriate. The essence of the plaintiffs argument is that despite the court’s prior ruling on the defendant’s motion for a directed verdict, the defendant’s counsel misstated the law because his argument “effectively falsely informed the jury that [it] could not, as a matter of law, find in favor of the plaintiff’ in the absence of expert testimony on the issue of causation. We disagree.

“When a verdict should be set aside because of improper remarks of counsel, rather than because of the insufficiency of the evidence to support the verdict, the remedy is a new trial. . . . Our standard of review for such a claim is whether the court abused its discretion when it denied the motion.” (Citation omitted.) Palkimas v. Lavine, 71 Conn. App. 537, 542, 803 A.2d 329, cert. denied, 262 Conn. 919, 812 A.2d 863 (2002).

“[T]he trial court is invested with a large discretion with regard to the arguments of counsel .... [W]hile its action is subject to review and control, we can interfere only where the discretion was clearly exceeded or abused to the manifest injury of some party. ... In fact, the court must allow [cjounsel ... a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel . . . .” (Citations omitted; internal quotation marks omitted.) Skrzypiec v. Noonan, 228 Conn. 1, 15-16, 633 A.2d 716 (1993).

“The phraseology to describe whether there has been an abuse of discretion in not setting aside a verdict and granting a new trial is somewhat different as between civil and criminal cases. ... In civil cases . . . the harmed party must show ‘manifest injury’; [id.] 16; or that the remarks were ‘unreasonable’; id., 15; or ‘flagrantly prejudicial.’ Yeske v. Avon Old Farms School, Inc., [1 Conn. App. 195, 470 A.2d 705 (1984)]. ... In every case, both criminal and civil, involving improper argument, there are two questions. The first is whether the remarks were improper, and the second is whether, if the remarks were improper, a new trial is necessary.” Palkimas v. Lavine, supra, 71 Conn. App. 545-46.

We initially disagree with the plaintiffs argument that the defendant’s counsel falsely informed the jury that it may not, as a matter of law, find in the plaintiffs favor on the issue of proximate cause without expert testimony. Counsel argued that the plaintiff “didn’t have . . . the engineer . . . come in and testify that if [the defendant] had been doing that, this would not [have] happened” and that the plaintiff “basically wants [the jury] to go out on a limb . . . and find that’s why he fell, with none of that testimony.” We interpret this to be a comment on the lack of evidence on a contested issue of proximate causation or a perceived weakness of the plaintiffs case. Prior to bringing up the absence of expert testimony, the defendant’s counsel argued that the plaintiff did not sufficiently demonstrate that the act of footing the ladder would have prevented the plaintiff, who weighed more than 200 pounds, was fifteen feet in the air and leaning over two to three feet, from falling off the ladder. The defendant’s counsel also made express reference to the plaintiffs burden of proof.

Having concluded that the remarks of the defendant’s counsel regarding expert testimony constituted a comment on the state of the evidence, we further conclude that such remarks were not improper. “In argument before the jury, counsel may comment upon facts properly in evidence and upon reasonable inferences drawn therefrom.” (Internal quotation marks omitted.) Skrzypiec v. Noonan, supra, 228 Conn. 16; see also State v. Ross, 18 Conn. App. 423, 432, 558 A.2d 1015 (1989) (party entitled to comment on weakness of opposing party’s case by bringing to jury’s attention failure to call witnesses to support its own factual theories with witnesses). “[A] party cannot merely comment on the failure of the opposing party to present a witness without first providing a factual or evidentiary foundation from which to infer a weakness in the opposing party’s case.” State v. Graham, 67 Conn. App. 45, 50, 787 A.2d 11 (2001), cert. denied, 259 Conn. 911, 789 A.2d 996 (2002).

We conclude that the defendant’s counsel provided a foundation for his comment on the plaintiffs failure to provide expert testimony. Counsel emphasized the evidence of the plaintiffs weight, the height at which he was working and the fact that he was leaning two or three feet over to the side. In light of that evidence, counsel argued that the plaintiff’s claim that the defendant’s failure to foot the ladder was a proximate cause of the plaintiffs injuries would have been stronger had he provided expert testimony on that issue. We conclude that the court did not abuse its broad discretion in refusing to set aside the verdict and to order a new trial.

Ill

The plaintiffs final claim is that the court (1) improperly admitted a hearsay statement through the defendant’s wife, Jennifer Sturgeon, (2) prevented the plaintiff from cross-examining her about it and (3) failed to provide curative instructions to the jury. The plaintiff argues that the court improperly admitted into evidence Jennifer Sturgeon’s testimony that an insurance agent informed her that she and the defendant did not have insurance coverage for the plaintiffs medical bills because, on the basis of the information she provided to the agent, the incident was “not [their] fault.” We decline to review this claim because it was not properly preserved at trial.

The following additional facts are relevant. During the trial, Jennifer Sturgeon testified on direct examination that a few days after the plaintiffs surgery, her insurance agent informed her that she and the defendant did not have sufficient coverage for the plaintiffs medical bills because the ladder incident “was not [their] fault.” The plaintiff did not object to that testimony. The plaintiff also failed to raise any claim of error regarding Jennifer Sturgeon’s testimony in his motion to set aside the verdict and for a new trial.

“Practice Book § 60-5 provides in relevant part that [t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . . Indeed, it is the appellant’s responsibility to present such a claim clearly to the trial court so that the trial court may consider it and, if it is meritorious, take appropriate action. That is the basis for the requirement that ordinarily [the appellant] must raise in the trial court the issues that he intends to raise on appeal. . . . For us [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge. . . . We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected, and thereafter, if the outcome of the trial proves unsatisfactory, with the assignment of such errors as grounds of appeal.” (Citation omitted; internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 265, 828 A.2d 64 (2003). “The court may [however] in the interests of justice notice plain error not brought to the attention of the trial court.” (Internal quotation marks omitted.) Wilderman v. Powers, 110 Conn. App. 819, 828, 956 A.2d 613 (2008).

Our review of the record leads us to conclude that the plaintiff has not preserved his claim that the court improperly admitted Jennifer Sturgeon’s statement, denied him his right to cross-examine her and failed to provide appropriate curative instructions. The plaintiff initially failed to object to the testimony when it was introduced into evidence. When his counsel attempted to cross-examine Jennifer Sturgeon on the issues of fault or insurance, the court stated that the admissibility of her testimony was limited to showing the defendant’s motive to deny liability. Counsel did not raise the issue of his right to cross-examine her and instead replied: “Understood, Your Honor. Medical insurance issue. Thank you. Understood.” See footnote 6. Additionally, the plaintiff failed to raise any claims regarding Jennifer Sturgeon’s testimony when the court afforded him an opportunity to take exceptions to its jury instructions or when he filed his motion to set aside the verdict and for a new trial.

We therefore conclude that the plaintiff has not preserved his claim of error regarding Jennifer Sturgeon’s testimony. He also did not raise it on appeal pursuant to the plain error doctrine. See Practice Book § 60-5; Gosselin v. Gosselin, 110 Conn. App. 142, 157, 955 A.2d 60 (2008) (“[w]hen the parties have neither briefed nor argued plain error ... we will not afford such review” [internal quotation marks omitted]). We therefore decline to review the plaintiffs claim of error regarding Jennifer Sturgeon’s testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       As the plaintiff acknowledged during oral argument before this court, the defendant Jennifer Sturgeon, 1he wife of Jeffrey Sturgeon, is not a party to this appeal although she is mentioned in his appellate brief. The trial court granted her motion for a directed verdict on November 21, 2007. The plaintiff never filed an appeal from that part of the judgment, and Jeffrey Sturgeon is therefore the sole defendant on appeal. We therefore refer to Jeffrey Sturgeon as the defendant in this opinion.

       The plaintiff also argues that the jury’s verdict was a product of antipathy for him, that the jury was motivated by the approaching Thanksgiving holiday and that it could not have reviewed all the exhibits in the time during which it deliberated. The plaintiff, however, fails to provide any analysis of these arguments, to cite to any legal authority or, most importantly, to refer to anything in the record to support them.
      We decline to address the merits of these claims because they are inadequately briefed. “We are not obligated to consider issues that are not adequately briefed. . . . Whe[n] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived. ... In addition, mere conclusory assertions regarding a claim, with no mention of relevant authority and minimal or no citations from the record, will not suffice." (Citations omitted; emphasis added; internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008).

       The plaintiff explained during his testimony that “footing” a ladder means placing one’s foot against the bottom of the ladder so that the bottom would not kick or slide out while another person is on the ladder.

       The present case, therefore, does not involve a situation in which counsel commented on the opposing side’s failure to produce a specific witness at trial without previously establishing that such witness is available to testify in accordance with General Statutes § 52-216c. See, e.g., Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn. App. 359, 369-70, 805 A.2d 130 (2002).

       The evidence of this conversation was initially introduced by the plaintiff through testimony by his fiancee, Peggy Levesque. On November 14, 2007, during the plaintiffs offer of proof, the court ruled that Levesque’s testimony on that issue is admissible pursuant to Connecticut Code of Evidence §§ 4-5, 4-10 and 6-5 to prove that the defendant’s belief that he did not have sufficient insurance coverage gave him a motive to deny liability for the plaintiffs fall.

       Subsequently, the plaintiffs counsel attempted to question Jennifer Sturgeon on the issue of fault and the existence of the insurance coverage. The court stated that the evidence of insurance “didn’t come in for the truth of it. It came in because there was an issue about that being her impression. . . . That’s the only purpose for which ... I admitted it, and as I understand it the only purpose for which the defendant followed up. And that’s as far as you’re going down that road.” The plaintiffs counsel replied: “Understood, Your Honor. Medical insurance issue. Thank you. Understood.”
      During its charge to the jury, the court instructed that the presence, absence or amount of insurance available to the defendant were not a relevant consideration and that the evidence of such insurance was admitted only with respect to the plaintiffs claim that the defendant had a motive to deny liability. After charging the jury, the court asked both counsel whether they had any exceptions. The plaintiffs counsel did not mention Jennifer Sturgeon’s testimony.