author: ALVORD, J.

text:
    RONALD J. VANCE ET AL. v. KENNETH P. TASSMER ET AL.
    (AC 31754)
    Gruendel, Alvord and Pellegrino, Js.

      Argued January 13 —
    officially released April 19, 2011

      William F. Gallager, with whom, on the brief, was Hugh D. Hughes, for the appellants (defendants).

      Vincent T. McManus, Jr., for the appellees (plaintiffs).
   Opinion

ALVORD, J.

The defendants, Kenneth P. Tassmer and Richard W. Perillo, appeal from the judgment of the trial court transferring to the plaintiffs, Ronald J. Vance and Carol P. Vance, title to real property claimed to be owned by the defendants. The defendants claim that the court’s enforcement of the parties’ settlement agreement, after a hearing held pursuant to Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993), was improper because the court (1) held that the agreement was clear and unambiguous, (2) decided issues of fact in the summary enforcement of the agreement and (3) rewrote the terms of the agreement. We reverse in part the judgment of the trial court.

The following facts and procedural history are necessary for the resolution of the claims on appeal. They were set forth in a previous opinion of this court, in which we dismissed the defendants’ prior appeal because it had not been taken from a final judgment. Vance v. Tassmer, 115 Conn. App. 696, 975 A.2d 85 (2009). “The plaintiffs filed a one count complaint against the defendants with a return date of October 24, 2006, seeking a declaratory judgment that under the doctrine of adverse possession they were the owners of a triangularly shaped parcel of land located at the northwest comer of their lot at 131 Cook Hill Road in Wallingford, which borders the defendants’ property. The plaintiffs purchased their lot in 1994. According to the complaint, in 1984 Tassmer received by quitclaim deed certain real property located next to the plaintiffs’ lot, at 133 Cook Hill Road. In 1999, Tassmer conveyed an undivided half interest in this property to Perillo.

“On July 31, 2007, the eve of trial, the parties reached a settlement agreement in which they stipulated in relevant part as follows: ‘Judgment of adverse possession may enter in favor of the [plaintiffs], contingent upon [A.] [T]he new shared boundary line between the properties of the parties shall run the course as shown on the attached exhibits .... [E.] [The defendants] will apply for and pursue approval of a variance from the [zoning board of appeals of the town of Wallingford (board)] to permit this new shared boundary line at their own expense on or before [November 30, 2007]. In default of [board] approval by [November 30, 2007], the parties will appear for trial in this matter, at the convenience of the court in December, 2007. The application shall be filed no later than [August 18, 2007]. [F.] Counsel for the [plaintiffs] will submit a letter to the [board], in support of the variance application. [G.] Upon approval of the variance [the] parties will enter into a boundary agreement for the new boundary line in accordance herewith [and] record same on the land records.’ The agreement was signed by all of the parties on July 31, 2007, and was placed on the record before the court on that date. The defendants applied for a variance as required by the agreement on August 16, 2007.

“On August 31, 2007, the defendants filed a motion to open the settlement agreement, alleging that [they had signed the agreement under duress]. . . . The motion also alleged that their attorney would not answer several of their legal questions the day the agreement was reached and that he told them [that no one was allowed to speak to the judge]. As an additional reason in support of their motion, the defendants contended that the plaintiffs violated the terms of the agreement on three occasions.

“After requesting numerous continuances from the board between September and November, 2007, the defendants withdrew their application for a variance on November 26, 2007, without a hearing by the board ever being held on its merits. The plaintiffs had recorded the agreement on the land records on September 14, 2007.

“Upon the plaintiffs’ motion, the court held a hearing to enforce the agreement on April 8, 2008, pursuant to Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., [supra, 225 Conn. 804]. The court also heard argument on the defendants’ motion to open the agreement on that date. The court issued a memorandum of decision on May 8, 2008, in which it found that ‘the fears [the defendants] entertained after [their attorney’s] alleged threats and duress are incredulous. . . . The court finds the testimony of [their attorney] to be totally credible and amply supported by the testimony of Thomas Tassmer [a relative of Kenneth Tassmer] and Carol Vance. All of that and the timetable of events and actions of the defendants render their explanation and claims of duress unbelievable and completely fabricated. ’ The court further found that the defendants’ claim that the plaintiffs breached a material clause of the agreement as justification for the defendants’ breach ‘is the type of pleading that invites the imposition of sanctions.’ The court concluded that the agreement was clear and unambiguous and ‘order[ed] the defendants to proceed to perform in accordance with the terms of the July 31, 2007 settlement agreement.’ ” Vance v. Tassmer, supra, 115 Conn. App. 697-99. The defendants filed an appeal from that decision, but this court dismissed it for lack of a final judgment because “it remained to be decided by the board whether to grant the variance.” Id., 702.

After this court dismissed the defendants’ appeal, the plaintiffs filed a motion to reconvene the Audubon hearing. The trial court granted the motion on September 3, 2009, and scheduled a hearing for September 24, 2009. On September 17, 2009, one week prior to the scheduled hearing, Kenneth Tassmer filed the second application for a variance with the board requesting permission to reduce the frontage on the defendants’ property from the required 100 feet to 88.94 feet. In the section of the application asking for a brief description of the alleged hardship, he wrote: “There is no hardship, but my neighbors, the [plaintiffs], have been crossing the deeded [boundary] line to remove our plantings and to replant flowers, shrubs, bushes and to place railroad ties and their driveway encroaches our property and they don’t want to change the direction of their driveway.”

At the reconvened Audubon hearing, counsel for the defendants indicated that they had filed an application for a variance pursuant to the settlement agreement and that it would be considered at the board’s meeting scheduled for mid-October. Counsel for the plaintiffs argued that the filing of the application did not constitute good faith compliance with the settlement agreement because (1) Perillo was not named as one of the owners of the property and (2) Kenneth Tassmer expressly represented that there was no hardship caused by the application of the town’s zoning regulations. The court ordered the defendants to amend the second application to reflect the fact that they both owned the property and to indicate that the application was being filed pursuant to a court order. When the plaintiffs’ counsel asked the court to order the defendants to pursue this variance application before the board in good faith, the court responded: “I assume that that’s implicit in the court’s comment to [the defendants’ counsel] and in her accepting and agreeing that that’s what they will do .... If it turns out that there is a hearing and the parties go in and behave in such a manner that I think they are circumventing the court’s order and intention, I will deal with that subsequently.”

The board held a hearing on the defendants’ second application for a variance, as amended, on October 19, 2009. The defendants appeared without counsel and told the board members that they were representing themselves. The plaintiffs’ counsel also was in attendance and made a presentation in support of the granting of the variance. After the chairman closed the public hearing, he made a motion to approve the variance. The motion was seconded, but the application was denied because there were not enough votes in favor of the motion.

The plaintiffs subsequently claimed that the defendants did not pursue the variance before the board in good faith. The corut held a hearing on November 5, 2009, at which time the parties submitted a digital video disc (DVD) of the October 19, 2009 board hearing and a transcript of the proceedings. The court reviewed the entire DVD and then requested argument from counsel. The plaintiffs claimed that the defendants waived their right to pursue a variance and that the court should enter an order conveying the parcel described in the settlement agreement to the plaintiffs. The defendants countered that the plaintiffs were asking the court to rewrite the agreement and that the matter now needed to be scheduled for a trial because the board had denied the variance. At the conclusion of the hearing, the defendants’ counsel requested the opportunity to brief the issue of waiver in order to respond to the plaintiffs’ memorandum of law that had been filed that day. The court granted the request.

On November 18,2009, the court issued its memorandum of decision in which it made the following findings: (1) the defendants’ counsel, with both defendants present, had assured the court at the September 24, 2009 hearing that the application for a variance would be pursued diligently and in good faith; (2) the court indicated at that time that it would take appropriate action if the defendants attempted to circumvent its order; (3) the defendants failed to address their statements and behavior before the board as reflected in the DVD and transcript reviewed by the court; (4) the proceedings before the board did not conform to the representations made before the court at the September 24, 2009 hearing; (5) there was no evidence that the defendants proceeded in good faith at the board’s hearing on their application for a variance; and (6) “[t]he defendants practically asked for an adverse decision.” Accordingly, the court granted the plaintiffs’ motion requesting that the court enter a decree conveying the property described in the settlement agreement to the plaintiffs. This appeal followed.

The plaintiffs then filed a motion for articulation, requesting that the court articulate its decision by specifying whether “the refiling of the variance application with the [board] for the purpose of engineering its defeat was a waiver of that term of the settlement agreement so as to make that term no longer applicable in the agreement.” The court granted the motion and filed the following articulation: “The actions of the defendants, as set forth in the court’s decision and order, constituted a waiver of the term in the settlement agreement. Further, implicit in the court’s decision is the court’s conclusion that the defendants had determined to pursue their course of action before the [board] in order to nullify the effect of the settlement term. Therefore, the court also decided [that] they should be estopped from gaining the benefit of then-action.”

I

The defendants’ first claim is that the court improperly held that the parties’ settlement agreement was clear and unambiguous. Specifically, they argue that the language in § 1 (e) of the agreement provided an ambiguous remedy in the event the board did not approve the application for a variance. For that reason, they claim that the agreement could not be summarily enforced by the court.

“A trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous.” (Internal quotation marks omitted.) Hogan v. Lagosz, 124 Conn. App. 602, 613, 6 A.3d 112 (2010), cert. denied, 299 Conn. 923, 11 A.3d 151 (2011). Because the defendants challenge the trial court’s legal conclusion that the agreement was summarily enforceable, we must determine whether that conclusion is legally and logically correct and whether it finds support in the facts set out in the memorandum of decision. See id. In addition, to the extent that the defendants’ claim implicates the court’s factual findings, “our review is limited to deciding whether such findings were clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Id.

Section 1 (e) of the signed agreement provides: “[T]he [defendants] will apply for and pursue approval of a variance from the [board] to permit this new shared boundary line at their own expense on or before [November 30, 2007]. In default of [board] approval by [November 30, 2007], the parties will appear for trial in this matter at the convenience of the court in December, 2007. The application shall be filed no later than [August 18, 2007].”

A settlement agreement is a contract among the parties. Amica Mutual Ins. Co. v. Welch Enterprises, Inc., 114 Conn. App. 290, 294, 970 A.2d 730 (2009). “Contract language is unambiguous when it has a definite and precise meaning . . . concerning which there is no reasonable basis for a difference of opinion. . . . The proper inquiry focuses on whether the agreement on its face is reasonably susceptible of more than one interpretation. ... It must be noted, however, that the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. . . . [A]ny ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Internal quotation marks omitted.) Massey v. Branford, 118 Conn. App. 491, 496-97, 985 A.2d 335 (2009), cert. denied, 295 Conn. 913, 990 A.2d 345 (2010).

The defendants do not contend that any of the wording in § 1 (e) of the agreement is latently ambiguous. They claim that the failure to obtain a variance mandates that the matter be scheduled for a trial, regardless of the reason for that failure. They argue that the provision becomes ambiguous if the reason for the failure to obtain the variance is considered by the court in determining whether to summarily enforce the agreement. We disagree.

In the present case, the defendants contracted to “apply for and pursue approval of a variance.” The court determined, after a hearing, that they did not pursue the variance in good faith. Implicit in every contract is the common-law duty of good faith and fair dealing. “[I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship. ... In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.” (Internal quotation marks omitted.) Keller v. Beckenstein, 117 Conn. App. 550, 563, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).

As found by the trial court, Kenneth Tassmer, shortly after signing the settlement agreement, decided that he did not wish to honor the terms of that agreement. Upon convincing Perillo that they would prevail if the matter went to trial, the defendants filed a motion to open the settlement agreement on the ground of duress. At the hearing on that motion held April 8,2008, Kenneth Tassmer testified that he decided to repudiate the agreement the day he signed it and that “it took twenty-nine days to get Perillo on line.” At the hearing before the board, Kenneth Tassmer stated: “We don’t believe [the plaintiffs] have adverse possession. We believe if we go to trial, we would win.”

In its November 18, 2009 memorandum of decision, the court concluded that “the defendants practically asked [the board] for an adverse decision.” The defendants’ argument that the agreement is ambiguous if the court is allowed to determine that they did not pursue the variance in good faith merits little discussion. It was not clearly erroneous for the court to have found that the defendants intentionally failed to honor the terms of the agreement and set out to sabotage any possibility of obtaining the variance because they came to believe that they would prevail if the case went to trial. To award them the remedy of a trial because the board did not grant the variance, when they “practically asked [the board] for an adverse decision,” would lead to bizarre and unconscionable results.

Accordingly, the court’s conclusion that the settlement agreement was summarily enforceable is legally and logically correct and is supported by the factual findings contained in the court’s memoranda of decision filed May 8, 2008, and November 18, 2009.

II

The defendants’ next claim is that the court improperly decided issues of fact in a proceeding to summarily enforce the agreement. They argue that the court should not have made the factual finding that they were responsible for the denial of the variance application. The defendants maintain that there are genuine issues of material fact as to causation with respect to the denial of the variance and as to whether their actions before the board were taken in bad faith. Such issues, they maintain, can only be resolved before the trier of fact in a breach of contract action. We disagree.

“Agreements that end lawsuits are contracts, sometimes enforceable in a subsequent suit, but in many situations enforceable by entry of a judgment in the original suit. A court’s authority to enforce a settlement by entry of judgment in the underlying action is especially clear where the settlement is reported to the court during the course of a trial or other significant courtroom proceedings. . . . When parties agree to settle a case, they are effectively contracting for the right to avoid a trial.” (Emphasis added; internal quotation marks omitted.) Rosenblit v. Laschever, 115 Conn. App. 282, 288, 972 A.2d 736 (2009).

A settlement agreement, or accord, is a contract under which an obligee promises to accept a stated performance in satisfaction of the obligor’s existing duty. Performance of the accord discharges the original duty. Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 532,4 A.3d 288 (2010). “If there is a breach of the accord, the obligee has the option of either seeking enforcement of the original duty or seeking enforcement of any obligation under the accord.” Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn. 809. Accordingly, the plaintiffs in this case could have elected to proceed to trial on their adverse possession claim or sought the summary enforcement of the settlement agreement by the court in the same action. See id.

When the defendants failed to abide by the terms of the agreement, the plaintiffs elected to file a motion to seek enforcement of the agreement. In an Audubon hearing, the court found the agreement to be clear and unambiguous and that it had not been signed by the defendants under duress. The court ordered the defendants to proceed in accordance with the terms of the settlement agreement in its May 8, 2008 memorandum of decision.

Seemingly pursuant to the court’s order, the defendants did refile an application for the variance. After the hearing before the board, however, the plaintiffs claimed that the defendants had not proceeded in good faith, and the court held an evidentiary hearing. The defendants have cited no case law that prohibits the taking of evidence, from which the trier of fact can make findings of fact, under such circumstances. At the hearing, the plaintiffs claimed that the defendants waived their right to pursue a variance and filed a brief in support of that claim. A transcript and DVD of the hearing were submitted as evidence, without objection by the defendants. The court, upon their request, allowed the defendants to file a posthearing brief on the issue of waiver. The defendants were not precluded from submitting evidence to substantiate their claim that they had acted in good faith. We conclude that the issue of waiver was clearly presented, disputed and then properly resolved by the court.

“Waiver is the intentional relinquishment or abandonment of a known right or privilege. ... As a general rule, both statutory and constitutional rights and privileges may be waived. . . . Waiver is based upon a species of the principle of estoppel and where applicable it will be enforced as the estoppel would be enforced. . . . Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . . Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Wiele v. Board of Assessment Appeals, 119 Conn. App. 544, 549, 988 A.2d 889 (2010). Waiver is a question of fact, subject to the clearly erroneous standard of review. Id.

In its articulation filed February 22, 2010, the court found that the actions of the defendants, as set forth in its November 18, 2009 memorandum of decision, constituted a waiver of the variance provision in the settlement agreement. Those actions, according to the court, demonstrated that the defendants did not proceed in good faith. Whether a party has acted in bad faith is a question of fact. Harley v. Indian Spring Land Co., 123 Conn. App. 800, 837, 3 A.3d 992 (2010). “Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. . . . Bad faith means more than mere negligence; it involves a dishonest purpose. . . . [B]ad faith may be overt or may consist of inaction, and it may include evasion of the spirit of the bargain . . . .” (Internal quotation marks omitted.) Keller v. Beckenstein, supra, 117 Conn. App. 563-64.

The court’s factual findings find ample support in the record. At the hearing before the board, Perillo first read from a prepared statement: “We are applying for this variance because we signed an agreement in court. By being here, we complied with that order. We want to make it perfectly clear that [the plaintiffs’ counsel] does not represent us; we are representing ourselves. There is actually no hardship for us except that we would have to go back to [the] Superior Court and have a trial on the issue of [the] adverse possession claim. We’re okay with that. We do not agree with [the plaintiffs’ counsel] that our neighbors, [the plaintiffs], own part of our property. We don’t believe . . . they have adverse possession. We believe if we go to trial, we would win.”

Later in the hearing, Perillo repeatedly stressed the fact that there had not been a trial on the adverse possession claim. “[0]ur lawyer wasn’t allowed to do anything. It was an Audubon [hearing], it wasn’t a trial. We would like a trial. It was just an Audubon [hearing] where our lawyer was just told to be silent and [the plaintiffs’ counsel] ran the whole show. It wasn’t a trial. It was an Audubon [hearing]. We would like a trial.” When the plaintiffs’ counsel made a presentation in support of granting the variance, Perillo stated: “But as I said, [the plaintiffs] don’t have fifteen years, and we would prove that in a court of law, and we don’t get a chance to go to court.”

In finding that the defendants did not act in good faith at the hearing before the board, the court had reviewed the transcript of the proceeding. Significantly, it also had the DVD of that proceeding in which it could observe the defendants’ demeanor and attitude. “[T]he trial court, as trier of fact, determine [s] who and what to believe and the weight to be accorded the evidence. The sifting and weighing of evidence is peculiarly the function of the trier. [N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony. . . . We have constantly held to the rule that we will not judge the credibility of witnesses or substitute our judgment for that of the trial court.” (Internal quotation marks omitted.) Nanni v. Dino Corp., 117 Conn. App. 61, 67-68, 978 A.2d 531 (2009). In this case, we cannot conclude that the court’s finding that the defendants waived the variance provision in the settlement agreement by their failure to pursue the variance in good faith was clearly erroneous.

III

The defendants’ final claim is that the court improperly rewrote the terms of the settlement agreement. Specifically, they argue that the court exceeded its authority by eliminating § 1 (e) of the agreement and by conveying the real property described in that agreement to the plaintiffs. We already have concluded that the court’s finding that the defendants waived § 1 (e) of the agreement, i.e., the variance provision, was not clearly erroneous. We agree, however, that the court exceeded the parameters of the agreement when it conveyed the property to the plaintiffs.

It is axiomatic that courts do not rewrite contracts for the parties. Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 760, 674 A.2d 1313 (1996). In determining whether the court went beyond the scope of the settlement agreement in rendering a judgment award against the defendants, we review the court’s decision for an abuse of discretion. See Waldman v. Beck, 101 Conn. App. 669, 673, 922 A.2d 340 (2007). “[T]he court’s authority in such a circumstance is limited to enforcing the undisputed terms of the settlement agreement that are clearly and unambiguously before it, and the court has no discretion to impose terms that conflict with the agreement. See Janus Films, Inc. v. Miller, 801 F.2d 578, 582 (2d Cir. 1986) (‘[i]n determining the details of relief [pursuant to a settlement agreement], the judge may not award whatever relief would have been appropriate after an adjudication on the merits, but only those precise forms of relief that are either agreed to by the parties ... or fairly implied by their agreement’ . . . ).” Waldman v. Beck, supra, 673-74.

The parties’ settlement agreement provided that “judgment of adverse possession may enter in favor of the plaintiffs, contingent upon” various enumerated conditions. Although it has been determined that § 1 (e) was waived by the defendants and is no longer applicable, there are other conditions in the agreement that were agreed to by the parties that require completion. For example, the plaintiffs, at their expense, are obligated to record a mylar copy of the revised survey of the parties’ shared boundary line in the Wallingford land records. Also, the parties are to sign a boundary agreement reflecting the new boundary line and record that document in the land records. Further, the plaintiffs agreed to share the cost of the defendants’ installation of a continuation of the defendants’ vinyl fence along the shared boundary line equally with the defendants, up to $5000. Additionally, the parties are to install new mailboxes at different locations on their respective properties.

The court had granted the plaintiffs’ motion to enforce the settlement agreement and found that the defendants had waived one of its provisions. Nevertheless, this was not a contempt proceeding. Accordingly, pursuant to the agreement, the court should have rendered a judgment of adverse possession in favor of the plaintiffs and ordered compliance with all terms of the agreement except for the variance contingency. At that stage of the proceedings, the court exceeded the scope of the settlement agreement by conveying to the plaintiffs the property described in the agreement.

The judgment is reversed as to the order conveying the real property described in the settlement agreement to the plaintiffs and the case is remanded with direction to render a judgment of adverse possession in favor of the plaintiffs contingent on the parties’ compliance with the terms of the settlement agreement, except for the variance contingency. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiffs’ chain of title and the defendants’ chain of title descend from common grantors, Roger Tassmer and Muriel Tassmer, who are the parents of Kenneth Tassmer. The plaintiffs’ immediate predecessor in title, Thomas Tassmer, is the brother of Kenneth Tassmer.

       The settlement agreement also provided that the plaintiffs were responsible for the costs of preparing and recording a survey of the new shared boundary line, that the plaintiffs would share equally the cost (up to $5000) of the defendants’ installation of a continuation of the defendants’ vinyl fence along the shared boundary line and that the parties were to install new mailboxes at different locations on their respective properties.

       “The variance requested an exception to Wallingford’s minimum frontage requirement that would leave slightly less than the required 100 feet along the street line of the defendants’ property.” Vance v. Tassmer, supra, 115 Conn. App. 698 n.l.

       “This motion was filed pro se.” Vance v. Tassmer, supra, 115 Conn. App. 699 n.3.

       See footnote 1 of this opinion.

       A unique hardship, imposed by conditions outside of the property owner’s control, is a condition precedent to the issuance of a zoning variance. See Michler v. Planning & Zoning Board of Appeals, 123 Conn. App. 182, 185, 1 A.3d 1116 (2010).

       Other exhibits submitted at the November 5,2009 hearing included copies of the defendants’ second application for a variance, the defendants’ second application for a variance, as amended, and the plaintiffs’ letter to the board in support of the requested variance.

       If the defendants fall to comply with the terms of the settlement agreement after this case is remanded and the trial court renders judgment in accordance with this opinion, the plaintiffs can seek relief for the defendants’ failure to comply with the trial court’s orders. General Statutes § 52-22 provides: “The Superior Court in the exercise of its equitable jurisdiction may pass the title to real property by decree, without any act on the part of any party holding title to the real property, when in its judgment it is the proper mode to carry the decree into effect. When the decree is recorded in the land records in the town where the real property is situated, it shall be, while in force, as effectual to transfer the real property as the deed of the party or parties holding title.” We emphasize that a court is not without power to enforce its judgments. “While a consent judgment may not be enlarged or lessened, the trial court may, once noncompliance is determined, in the exercise of its equitable powers, fashion whatever orders are required to protect the integrity of the original judgment.” Carpenter v. Montanaro, 52 Conn. App. 55, 58, 725 A.2d 390 (1999).


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    TURI ROSTAD v. LEON HIRSCH
    (AC 31904)
    Gruendel, Robinson and Peters, Js.
    Argued February 7 —
    officially released April 19, 2011

      Hugh F. Keefe, with whom, on the brief, was Benjamin D. Gettinger, for the appellant (defendant).

      Prolog K. Das and Debra C. Ruel, with whom, on the brief, was James M. Ruel, for the appellee (plaintiff).
   Opinion

PETERS, J.

In this contested paternity action, after genetic testing established that the defendant was the father of the plaintiffs child, the trial court awarded pendente lite attorney’s fees to each member of the mother’s litigation team. The father’s appeal contests the amount of the fees awarded to the mother’s attorneys. We must decide whether we have jurisdiction to hear this interlocutory appeal and whether the record supports the court’s fee awards. We decide both of these questions in the father’s favor. Accordingly, we reverse the court’s rulings as to two of the mother’s attorneys and remand the case for recalculation of the contested fees.

On June 12, 2008, the plaintiff, Turi Rostad, filed an amended complaint alleging that the defendant, Leon Hirsch, was the father of her minor son, then fifteen years of age, and seeking an order of support and maintenance for the boy. The same day, the plaintiff filed a motion for genetic testing. The defendant denied his paternity and pleaded special defenses of laches, equitable estoppel, waiver and unclean hands.

After several months of pretrial litigation, including the defendant’s extensive discovery requests and his unsuccessful interlocutory appeal to this court, he submitted to genetic testing that established his paternity. Thereafter, the trial court granted the plaintiffs motions for child support and for pendente lite attorney’s fees in the amount of $145,489.03 for Rome McGuigan, P.C. (Rome McGuigan), $25,000 for attorney Andrew Devlin and $10,000 for attorney Thomas Asch. The defendant’s appeal challenges only the attorney’s fees award.

The defendant’s appeal presents two issues. He maintains that (1) this court has jurisdiction to decide the propriety of the trial court’s pendente lite award of attorney’s fees and (2) the trial court’s award of attorney’s fees was excessive in part. We agree.

I

APPELLATE JURISDICTION

Before we can address the merits of the substantive dispute between the parties, we must determine whether we have subject matter jurisdiction to hear the defendant’s appeal. See, e.g., Peters v. Dept. of Social Services, 273 Conn. 434, 441, 870 A.2d 448 (2005). In a prior ruling on the plaintiffs motion for review, we already have affirmed the trial court’s ruling that the defendant’s appeal automatically stayed the plaintiffs fee award. See Practice Book § 61-11 (a). We now must decide whether the court’s pendente lite fee award was a final judgment that is presently reviewable on appeal. We conclude that it is.

In this state, unless a statute provides otherwise, the appealability of an interlocutory ruling is governed by State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). See generally W. Horton & K. Bartschi, Connecticut Practice Series: Connecticut Rules of Appellate Procedure (2011 Ed.) § 61-1; C. Tait & E. Prescott, Connecticut Appellate Practice and Procedure (3d Ed. 2000) § 3.1 et seq. Pursuant to Curcio, “[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that farther proceedings cannot affect them.” State v. Curcio, supra, 31.

The parties to the appeal in this case principally disagree about the applicability of the second prong of Curdo to the trial court’s award of pendente lite litigation fees. In Hartford Accident & Indemnity Co. v. Ace American Reinsurance Co., 279 Conn. 220, 901 A.2d 1164 (2006), our Supreme Corut recently restated the test that governs our inquiry. “[U]nder the second prong of the Curdo test, the party seeking to appeal must establish that the trial corut’s order threatens the preservation of a right already secured and that the right will be irretrievably lost and the party irreparably harmed unless an immediate appeal is permitted. . . . An essential predicate to the applicability of this prong is the identification of jeopardy to [either] a statutory or constitutional right that the interlocutory appeal seeks to vindicate. . . . Moreover, even when an order impinges on an existing right, if that right is subject to vindication after trial, the order is not appealable under the second prong of Curdo.” (Citations omitted; internal quotation marks omitted.) Id., 231.

Although the parties agree that these principles govern this appeal, they disagree about whether a pendente lite award of attorney’s fees meets the requirements for immediate appealability. Our Supreme Court case law has addressed this issue only obliquely. Without referencing Curcio, the court held, in Paranteau v. DeVita, 208 Conn. 515, 523, 544 A.2d 634 (1988), that, for the purpose of appealability, a trial court judgment on the merits is a final judgment, notwithstanding the pendency of a postjudgment claim for attorney’s fees. See General Statutes § 52-263. The court thereafter relied on Paranteau to permit an immediate appeal from a judgment of strict foreclosure in which attorney’s fees remained to be determined. Benvenuto v. Mahajan, 245 Conn. 495, 501, 715 A.2d 743 (1998). Neither case, however, addressed the appealability of an award of attorney’s fees prior to the final resolution of the underlying litigation.

To supplement this history, the defendant notes that the Supreme Court twice has reviewed the merits of interlocutory attorney’s fees awards. See Hotchkiss v. Hotchkiss, 143 Conn. 443, 446, 123 A.2d 174 (1956); England v. England, 138 Conn. 410, 415-17, 85 A.2d 483 (1951). The defendant properly concedes that these precedents are distinguishable because they did not address the issue of appealability.

We must look for guidance, therefore, to appeals not dealing with attorney’s fees, in which our Supreme Court has found a sufficient risk of irreparable harm to authorize the immediate appealability of an interlocutory trial court order under the second prong of Curdo. These cases include Putman v. Kennedy, 279 Conn. 162, 167-68 n.9,900 A.2d 1256 (2006) (domestic violence restraining order); Sweeney v. Sweeney, 271 Conn. 193, 196,208, 856 A.2d 997 (2004) (enrollment of minor child in parochial school); Taff v. Bettcher, 243 Conn. 380, 386-87, 703 A.2d 759 (1997) (temporary custody order); Goodson v. State, 228 Conn. 106, 113-14, 635 A.2d 285 (1993) (order of reinstatement to employment pending arbitration); Madigan v. Madigan, 224 Conn. 749, 757, 620 A.2d 1276 (1993) (temporary custody order in dissolution action); Litvaitis v. Litvaitis, 162 Conn. 540,548, 295 A.2d 519 (1972) (pendente lite child support order in dissolution action); Hiss v. Hiss, 135 Conn. 333, 336, 64 A.2d 173 (1949) (pendente lite child support order in support action). In addition, in dictum, our Supreme Cornt has stated that “a ruling by a trial cornt regarding financial issues in a marital dissolution case — whether it be a pendente lite ruling, a ruling issued in conjunction with a final dissolution judgment or a decision regarding a postjudgment motion — is a final judgment for purposes of appeal.” Ahneman v. Ahneman, 243 Conn. 471, 479, 706 A.2d 960 (1998).

This court recently reviewed these precedents to consider the appealability of an interlocutory trial court order in a marital dissolution case. Contrary to the usual rule, that order permitted the defendant, during the pendency of the proceedings, to expend funds in his own name. Parrotta v. Parrotta, 119 Conn. App. 472, 476, 988 A.2d 383 (2010). We hypothesized that “the jurisprudence finding finality in pendente lite orders rests on the notion that the orders under scrutiny have concluded a party’s rights with respect to the issue at hand because the court is not able, at the time of the final judgment, to provide any remedial relief in regard to the pendente lite orders.” Id., 478. In Parrotta, we held that that was not the case. The trial cornt expressly had stated, as part of its order, that the funds so expended “would be taken into account” at the time the court made a final division of the marital assets. Id., 481. On that record, because the trial court’s order did not irreversibly require the contested payments to be made, we concluded that the order was not a final judgment and dismissed the plaintiffs appeal. Id., 483.

As in Parrotta, as a matter of jurisprudence, we are persuaded that, to decide whether an interlocutory ruling has caused an appellant to suffer irreparable harm, it is relevant to inquire whether the trial court, at the time of the final judgment, will be able to provide remedial relief. Many of the cases permitting an immediate interlocutory appeal, by their very nature, preclude such a second look. In the present case, the record does not disclose that either party has pursued such an inquiry. Indeed, on its face, the court’s order appears unequivocal.

On the record before us, we hold that the possibility of future remedial trial court orders is not determinative of whether the plaintiffs pendente lite attorney’s fees award is presently an appealable judgment. A contrary ruling would violate the well established principle that the arguments presented by the litigants ordinarily govern the scope of appellate review. Baldwin v. Curtis, 105 Conn. App. 844, 849-50 n.2, 939 A.2d 1249 (2008). Furthermore, it would be inconsistent with the well established judicial presumption in favor of appellate jurisdiction. See, e.g., In re Matthew F., 297 Conn. 673, 689, 4 A.3d 248 (2010); Simms v. Warden, 230 Conn. 608, 614, 646 A.2d 126 (1994). Accordingly, we agree with the defendant that we have jurisdiction to hear his appeal.

II

THE MERITS OF THE ATTORNEY’S FEES AWARD

The plaintiff asked the trial court for an award of attorney’s fees, pendente lite, of $205,971.10 to Devlin, $81,225 to Asch and $178,354.73 to Rome McGuigan. The plaintiff also sought payment of an additional $100,000 representing future attorney’s fees for the continued prosecution of this action. Characterizing the present litigation as “a simple paternity case,” the defendant objected that the amount of the fees requested was unreasonable. In addition, he maintained that the fee award should exclude expenses incurred, in part, in defense of a separate action filed in New Haven.

The court agreed with some of the defendant’s objections. It excluded the attorney’s fees in the New Haven case because that case was not a paternity action. It declined to make an award for undocumented expert fees.

The court did not agree, however, with the defendant’s contention that this was “a simple paternity case.” Although it became clear as the litigation proceeded that the defendant has been aware of the existence of his son for almost all of the boy’s life, he “adopted a defense strategy which required the plaintiff to fight every point. This include [d] refusal to undergo DNA testing prior to aprobable cause hearing, an appeal from the court’s order to undergo DNA testing, the raising of questionable special defenses, and the refusal to take a serious position on the issue of pendente lite support.” In light of this record, the court properly rejected the defendant’s argument that “the result was inevitable and could have been achieved by the plaintiff, pro se.”

Although we concur in the court’s characterization of this paternity action as one that “needed excellent, time-consuming representation in order to deal with defenses employed by the defendant,” we nonetheless must examine the specific issues that the defendant has raised about the work product of the attorneys who represented the plaintiff. Our review of a court’s award of attorney’s fees in a paternity action pursuant to General Statutes § 46b-171 is limited to an inquiry into whether the court’s ruling was an abuse of its discretion. Pagliaro v. Jones, 75 Conn. App. 625, 635-36, 817 A.2d 756 (2003).

The defendant’s appeal focuses on the court’s own finding that the plaintiff sought an award of attorney’s fees for work performed by three separate law firms “when one local firm would have sufficed.” Both the court and the defendant distinguish between the bills submitted by the law firm of Rome McGuigan and by attorneys Devlin and Asch.

With respect to Rome McGuigan, the court found that “[t]he bills submitted by Rome McGuigan are at hourly rates which are appropriate for the experience of the attorneys. . . . Rome McGuigan’s bills are fully itemized, detailed and reasonable.” The defendant’s appeal has not challenged any part of this finding.

The court characterized “[t]he bills submitted by . . . Devlin and . . . Asch as problematic. . . . Devlin, who is the plaintiffs cousin, has never handled a paternity case before. He knew that he was not licensed in Connecticut and would need local counsel. Once he lined up Rome McGuigan to represent the plaintiff, it was not reasonable for him to continue to be involved in any significant way. . . . Asch is even harder to understand. He was engaged by his friend . . . Devlin, but it is not clear why. Like . . . Devlin, he has never handled a paternity case and is not licensed in Connecticut.” The court nonetheless made an award of $25,000 in fees to Devlin and an award of $10,000 in fees to Asch.

The defendant challenges the propriety of these awards on two grounds. He maintains that neither attorney had relevant experience to contribute to the plaintiffs cause of action and that both of them overbilled for the services that they did render. He cites Devlin’s testimony that he charged the plaintiff for reviewing the plaintiffs complaint, even though that complaint mirrored the form authorized by the rules of practice and had already been reviewed and analyzed by Rome McGuigan. He maintains that it was improper for Devlin and Asch to bill the plaintiff for the expense of travel to and attendance at court hearings in which they did not actively participate.

In response, the plaintiff relies on the presumption that a trial court’s award of fees is reasonable and argues that the defendant’s contentions are unreviewable without a farther articulation of the court’s reasoning. We disagree.

By its own reasoning, the court justifiably could award attorney’s fees only in a nominal amount, if at all, to attorneys not licensed in this state who, at best, reinforced the highly professional services performed by highly competent in-state attorneys. In light of the facts found by the court, its awards to Devlin and Asch were an abuse of its discretion.

The order of the trial court requiring the defendant to pay legal fees of $145,489.03 to Rome McGuigan, P.C. is affirmed. The order of the trial court awarding legal fees of $25,000 to attorney Devlin is reversed. The order of the trial court awarding legal fees of $10,000 to attorney Asch is reversed.

The judgment is reversed only as to the amount of attorney’s fees awarded to attorneys Andrew Devlin and Thomas Asch, and the case is remanded for a redetermination of what fees, if any, they are entitled to recover. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       We decline the plaintiffs request to revisit our ruling. We note, however, that the plaintiff is incorrect in her claim that, textually, Practice Book § 61-11 (a) does not govern interlocutory orders as distinguished from interlocutory judgments. In 2002, Practice Book § 61-11 (a) was amended to provide that “proceedings to enforce or carry out the judgment or order shall be automatically stayed . . . .” (Emphasis added.)

       We recognize that the defendant also claims that an award of pendente lite attorney’s fees qualifies for immediate appellate review under the first prong of Curdo. Under the circumstances of this case, we need not address that claim.

       In Perricone v. Perricone, 271 Conn. 919, 920, 859 A.2d 569 (2004), our Supreme Court granted the plaintiffs petition for certification to appeal the following issue: “ ‘Did the Appellate Court properly dismiss the plaintiffs appeal from the trial court’s award of pendente lite attorney’s fees?’ ” The appeal, however, was later withdrawn.

       The New Haven case was brought by Lynch, Traubj Keefe & Errante, P.C., as trustee for an unidentified principal to recover payments made to the plaintiff and her son pursuant to an agreement entered into after the son’s birth. In that case, the trial court granted a motion to strike on the ground that the agreement provided that all disputes should be arbitrated. The defendant’s brief in his appeal to this court acknowledges that he is the unidentified principal to whom the agreement refers.

       General Statutes § 46b-171 (a) (1) provides in relevant part: “(A) If the defendant is found to be the father of the child, the court or family support magistrate shall order the defendant to stand charged with the support and maintenance of such child ....
      “(B) The court or family support magistrate shall order the defendant to pay such sum to the complainant, or, if a town or the state has paid such expense, to the town or the state, as the case may be, and shall grant execution for the same and costs of suit taxed as in other civil actions, together with a reasonable attorney’s fee ... .”

       Although the defendant challenges the award in its entirety, he has not provided this court with any basis for concluding that the fees awarded to Rome McGuigan are unreasonable. His argument focuses instead on the fees awarded to Devlin and Asch.


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. ESTEBAN DEJESUS
    (AC 30986)
    Beach, Bear and West, Js.

      Argued January 3 —
    officially released April 19, 2011

      Lisa Vincent, certified legal intern, with whom was Elizabeth M. Inkster, senior assistant public defender, for the appellant (defendant).

      AdamE. Mattel, special deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, Robert M. Brennan, senior assistant state’s attorney, and Thomas P. McEvoy, certified legal intern, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Esteban DeJesus, appeals from the judgment of conviction, rendered after a jury trial, of two counts of conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48 and 53a-122 (a) (3), and two counts of larceny in the first degree in violation of General Statutes § 53a-122 (a) (3). On appeal, the defendant claims that the trial court (1) abused its discretion by admitting certain evidence, (2) abused its discretion by allowing a coconspirator to give opinion testimony as to an ultimate issue of fact and (3) erred when it instructed the jury regarding the Pinkerton doctrine of vicarious liability. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In October, 2007, the state police began an investigation into an operation in which stolen vehicles were being imported from New York and sold in Connecticut. Detective Richard Van Tine received information from an informant about a stolen Cadillac Escalade located in Bridgeport. After following up on the informant’s tip, Van Tine and Sergeant Robert Kenney discovered that the Escalade was stolen from New York and had a fraudulent license plate, an altered vehicle identification number and a fraudulent title. As a result, the vehicle’s owner, Edwin Vasquez, was arrested.

Vasquez informed the police that he had purchased the stolen Escalade from a seller in the Bronx, New York. Vasquez further informed the police that an individual named Eddie Torres also acquired stolen vehicles from New York. The police spoke to Torres and learned that he had purchased two stolen vehicles that had been imported from New York, both of which had altered vehicle identification numbers. Upon farther investigation, the police learned that an individual named Edwin Gonzales facilitated the sale of the stolen vehicles to both Vasquez and Torres.

Van Tine then asked Detective Orlando Rodriguez to go undercover and pose as a buyer who wanted to purchase a stolen vehicle. Rodriguez spoke to a confidential informant who put him in contact with Gonzales. On February 1, 2008, Rodriguez met with the confidential informant and Gonzales in Bridgeport. At the meeting, Rodriguez told Gonzales that he wanted to purchase a “retagged” Cadillac Escalade. Rodriguez also expressed to Gonzales his concern about registering the stolen vehicle. Gonzales responded that he had “nothing to worry about, [because] people in New York, people I work for, will take care of it, the registration, everything is [going to] look like the vehicle is new, you have no worries, you’ll have the paperwork for it, identification for it, the titles for [it], you’ll have no problem registering that vehicle anywhere in the United States except New York.” After discussing the price of the vehicle, Gonzales told Rodriguez that he would see if he could find an Escalade and contact Rodriguez later in the week.

The confidential informant contacted Rodriguez a few days later and informed him that Gonzales had an Escalade to sell him. On February 4, 2008, Rodriguez met with the confidential informant and Gonzales to discuss the transaction. Gonzales informed Rodriguez that he had both an Escalade and a Nissan Murano available for a total cost of $20,500, and Rodriguez agreed to purchase both vehicles. Gonzales agreed to pick up both vehicles from New York and instructed Rodriguez to meet him at a rest stop on Interstate 95 in Fairfield in a few hours to complete the transaction. Rodriguez then informed his supervisors of the location of the sale so they could intercept the transaction.

After Rodriguez’ meeting with Gonzales concluded, Gonzales and the confidential informant traveled to New York, in a Lexus, to pick up the Escalade and the Murano. Once in New York, Gonzales and the confidential informant met with Juan Contreras, Juan Barrone and the defendant. Contreras and Barrone arrived in a BMW, and the defendant arrived in the stolen Escalade that was to be sold to Rodriguez. The defendant drove the Escalade through a car wash and then drove to a second location where the stolen Murano was located. Once the Murano was retrieved, the defendant, the confidential informant, Gonzales, Contreras and Barrone went to a gasoline station at which Contreras replaced the Murano’s license plate with a dealer plate. The dealer plate, XC40, rightfully belonged to New Country Motors, a car dealership at which the defendant previously had been employed. After affixing the dealer plate to the Murano, the defendant and the others traveled to Connecticut. Upon arriving at the rest stop, the defendant and Barrone went into a restaurant while Gonzales, Contreras and the confidential informant waited for Rodriguez to arrive with the money.

The police, who had set up surveillance on the rest stop, moved in and arrested the defendant, Barrone, Contreras and Gonzales. The officer who arrested the defendant noticed that he had several pieces of blue tape wrapped around his fingers. The officer also noticed that the same kind of blue tape was affixed around the perimeter of the windshields of both the Murano and the Escalade. Following the arrests, the police searched the BMW. Inside the BMW, the police discovered the counterfeit titles to the Murano and the Escalade that Gonzales had promised to Rodriguez. Above the passenger seat where the defendant was sitting, the police found two applications for temporary license plates with false information. The police also discovered two forged temporary license plates on the floor of the BMW and a package of rubber molding used to replace and secure windshield glass, along with a receipt for the molding issued from a store in New York.

The defendant was charged with two counts of conspiracy to commit larceny in the first degree and two counts of larceny in the first degree. On October 14, 2008, the jury returned a verdict finding the defendant guilty on all counts. The court then sentenced the defendant to a total effective term of ten years incarceration, execution suspended after five years, with three years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first argues that the court abused its discretion when it admitted evidence of the XC40 dealer plate. Specifically, he contends that such evidence was inadmissible because it lacked relevance, and any probative value it may have had was outweighed by its unfairly prejudicial effect. We are not persuaded.

The following additional facts are necessary to our resolution of the defendant’s claim. On September 29, 2008, the defendant filed a motion in limine seeking to “exclude as evidence . . . any crimes, misconduct or wrongdoing other than the instant crime with which the defendant is charged in this case . . . .” The defendant based his motion on the grounds that the probative value of any such evidence offered was outweighed by the potential of undue prejudice, the proffered evidence was irrelevant, the state had insufficient proof that he committed or was connected with the “ ‘other crime’ ” or misconduct and that the “ ‘other crime’ ” or misconduct was too far removed in time from the crimes he was charged with in this case.

On October 1, 2008, the parties argued the motion before the court. The defendant argued that the motion pertained to two separate occurrences. First, the defendant sought to preclude the admission of evidence of larceny charges brought against him related to the prior theft of a Honda, arguing that the prejudicial effect of such evidence outweighed any probative value. Second, the defendant sought to preclude evidence of the XC40 dealer plate that had belonged to a car dealership at which the defendant previously had been employed. The defendant argued that it was “highly prejudicial that he worked at a place, and this license plate happened] to turn up to be connected to the place that he worked, and it was on a stolen vehicle. So ... I think there’s an issue of prejudice versus probative value, which, I submit, there is no probative value and it’s highly prejudicial. That’s all I have to say regarding that matter.” The state responded by arguing that the evidence was being offered to “prove that he [engaged in the charged conduct] . . . [and] to show that he had the knowledge of stolen cars, and that it’s common scheme or practice of people stealing cars to work with others and to take cars, that he has knowledge in this area. Since we have to show that he had knowledge, the fact that other people may testify about his participating in other auto theft schemes goes directly to the intent the state is required to show, that he was not simply a passenger in this vehicle, he was one with knowledge of what was going on, and he was a participant in the coconspiracy.”

The court, in ruling on the motion, stated that it was “going to allow testimony concerning the license plate into evidence. It is relevant to a material fact in the trial, certainly whether the defendant had the intent to commit the crime of larceny, which is a specific intent crime, and also the dual intent in the conspiracy, the intent to agree and the intent to commit the crime that’s the object of the conspiracy. However, I will allow testimony only to the extent that the defendant was found driving a car with that plate, which did not belong on that car, and that the plate belonged to his employer at that time. I believe it is relevant as to intent, the pattern of behavior and an attitude toward motor vehicles . . . that may be considered indicative of the defendant’s state of mind. It also is relevant on the issue of opportunity, access to the plate may be considered as opportunity to commit the crime in question. I find that the probative value of it outweighs its prejudicial value.”

Following the court’s ruling, the parties acknowledged that there was some confusion regarding the charges stemming from the stolen Honda and the XC40 dealer plate. The parties clarified that the defendant previously was caught driving the stolen Honda, not the stolen Murano, and that the XC40 dealer plate was located on the Murano, not the Honda. After this clarification, the court ruled that it was precluding the state from presenting any evidence regarding the prior act of the defendant stealing the Honda. The court also stated, however, that its ruling allowing the state to introduce evidence regarding the XC40 dealer plate still stood because it was “relevant to a material fact. . . .”

The state later presented evidence regarding the XC40 dealer plate. Detective Paula Barunetto testified that, following the defendant’s arrest, she conducted an investigation that revealed that the plate was registered to New Country Motors and that the defendant previously had been employed there. Barunetto opined that, based on her training and experience, a former employee would have better access than a stranger to the dealer plates because of his familiarity with the dealership and the knowledge of its layout. The defendant’s former manager at New Country Motors, David Delaney, also testified that, as a former employee, the defendant would have had better access than a stranger to the dealer plates because he was aware of where they were located and on what vehicles they were kept.

We begin by setting forth our standard of review. “The applicable standard of review for evidentiary challenges is well established. We review the trial court’s decision to admit evidence, if premised on a correct view of the law . . . for an abuse of discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. ... [A] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Citations omitted; internal quotation marks omitted.) State v. Snelgrove, 288 Conn. 742, 758, 954 A.2d 165 (2008).

A

The defendant first claims that evidence regarding the XC40 dealer plate was irrelevant because the plate was not issued to New Country Motors until more than one year after his employment there terminated. We disagree.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. ... All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. . . . The trial court has wide discretion to determine the relevancy of evidence and [e]very reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Davis, 298 Conn. 1, 23, 1 A.3d 76 (2010).

The defendant was charged with two counts of conspiracy to commit larceny in the first degree in violation of §§ 53a-48 and 53a-122 (a) (3). “Our Supreme Court has held that [t]o establish the crime of conspiracy under § 53a-48 ... it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. . . . Further, the prosecution must show both that the conspirators intended to agree and that they intended to commit the elements of the underlying offense.” (Internal quotation marks omitted.) State v. Gentile, 75 Conn. App. 839, 862-63, 818 A.2d 88, cert. denied, 263 Conn. 926, 823 A.2d 1218 (2003). In conspiracy prosecutions, direct evidence of an accused’s mental state is often unavailable and thus intent commonly is proven by circumstantial evidence. States. Kenney, 53 Conn. App. 305, 312, 730 A.2d 119, cert. denied, 249 Conn. 930, 733 A.2d 851 (1999). Therefore, “intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Internal quotation marks omitted.) Id.

At trial, the defendant maintained his innocence and argued that, at most, he merely was present throughout the course of the larceny of the two vehicles. The state had the burden of proving beyond a reasonable doubt that the defendant intended to agree to play a role in stealing the two vehicles. Therefore, evidence regarding the XC40 dealer plate was relevant, though hardly conclusive, because it had a logical tendency to show a connection between the defendant and the larcenous scheme; it also tended, though not overwhelmingly, to show the intent necessary to support a finding of guilty of conspiracy to commit larceny. As the court stated, evidence of the plate was “relevant to a material fact in the trial . . . the dual intent in the conspiracy, the intent to agree and the intent to commit the crime that’s the object of the conspiracy.” The facts that the XC40 plate may well have been stolen from a car dealership at which the defendant previously worked and happened to be located on the stolen Murano tend to disprove that the defendant was merely an innocent bystander. It also tended to prove, even if somewhat remotely, that the defendant intended to participate in a conspiracy. Accordingly, although the weight of the evidence may have been at issue, we conclude that the court did not abuse its discretion in determining that it was relevant.

B

The defendant also claims that the court abused its discretion by allowing evidence of the XC40 dealer plate because any probative value of the evidence was outweighed by its unfairly prejudicial effect. We conclude that the court did not abuse its discretion in its resolution of the issue.

“Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. . . . Unfair prejudice occurs where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy .... [T]he test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury .... Such undue prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous.” (Citations omitted; internal quotation marks omitted.) State v. Douglas, 126 Conn. App. 192, 219,11 A.3d 699 (2011).

The defendant argues that the prejudicial effect of the evidence of the XC40 dealer plate outweighed its probative value because if the jury determined that he had stolen the plate, then, as a result, it may have impermissibly inferred that it was more probable that he participated in the crimes with which he was charged. That is, the argument goes, the jury may have inferred that someone who stole a dealer plate would be the sort of person who would steal cars. As the court determined, evidence of the dealer plate was relevant to prove the intent required to convict the defendant of both the conspiracy and the larceny charges. Although it was conceivable that the jury could have drawn impermissible inferences from the introduction of evidence regarding the dealer plate, the court determined that the risk of such prejudice did not outweigh the probative value of the evidence. As this court previously has stated, “[t]he determination of whether the prejudicial impact of evidence outweighs its probative value is left to the sound discretion of the trial court . . . and is subject to reversal only [when] an abuse of discretion is manifest or injustice appears to have been done.” (Internal quotation marks omitted.) Perez v. D & L Tractor Trailer School, 117 Conn. App. 680, 696, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010). Under the facts of this case, we cannot conclude that the court abused its discretion in determining that the probative value of the evidence outweighed its prejudicial effect.

II

The defendant next claims that the court abused its discretion when it allowed a coconspirator to give impermissible opinion testimony regarding an ultimate issue of fact. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. On October 6, 2008, the state offered Gonzales as a witness. On direct examination, the state asked Gonzales if he knew whether the defendant was “part of [the] group” of individuals who were arrested at the rest stop on February 4, 2008. Defense counsel objected, arguing that the state was “asking if [the defendant is] a member of the group. I would . . . submit . . . that this is the ultimate issue of fact . . . .” The state responded: “I believe I asked him if he was part of this group. Whether he’s part of the conspiracy, I didn’t ask him that.” The court overruled defense counsel’s objection, and the state continued questioning Gonzales. The following colloquy ensued:

“[The Prosecutor]: Was there any conversation between the defendant and Mr. Contreras?

“[The Witness]: No.

“[The Prosecutor]: Do you know if they know each other?

“[The Witness]: I don’t know if they know each other, I imagine that they do, but I’m not sure.

“[The Prosecutor]: All right, why do you imagine that they know each other?

“[The Witness]: Because he was the one that was driving the Escalade, I imagine so.

“[The Prosecutor]: Would you expect Mr. Contreras to have somebody that was not part of this group to drive the Escalade?

“[The Witness]: No, I don’t — I don’t know what business they have or how they manage their business in that way.

“[The Prosecutor]: But would you expect him to have someone that wasn’t part of the group driving the Escalade? . . .

“[The Witness]: No, I imagine that if he wasn’t part of the group, he wouldn’t drive the car.

“[The Prosecutor]: And would you expect someone that was not part of the group to be there when they’re changing a plate on the vehicle?

“[The Witness]: No.

“[The Prosecutor]: Would you expect someone who’s not part of the group to be present when you were to exchange cash for the retagged vehicles? . . .

“[The Witness]: No.”

The defendant argues that this line of questioning regarding whether Gonzales knew if the defendant was “part of [the] group” of individuals who were arrested at the rest stop on February 4,2008, addressed an ultimate issue of fact, namely, whether the defendant was guilty of conspiracy to commit larceny. The defendant contends, therefore, that the court improperly allowed Gonzales’ testimony because it constituted an impermissible lay opinion in which he improperly testified to an ultimate issue of fact. We disagree.

We begin by setting forth our standard of review. “Because of the wide range of matters on which lay witnesses are permitted to give their opinion, the admissibility of such evidence rests in the sound discretion of the trial court, and the exércise of that discretion, unless abused, will not constitute reversible error.” (Internal quotation marks omitted.) State v. Finan, 275 Conn. 60, 65-66, 881 A.2d 187 (2005).

First, we conclude that Gonzales’ testimony was not an impermissible lay opinion. Connecticut Code of Evidence § 7-1 provides: “If a witness is not testifying as an expert, the witness may not testify in the form of an opinion, unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness or the determination of a fact in issue.” Here, Gonzales’ testimony was rationally based on his perception of the circumstances as he perceived them on the night of February 4, 2008, and when he observed prior conduct in New York. Furthermore, Gonzales’ testimony was helpful to the determination of a fact in issue, namely, whether the defendant had the intent necessary to be convicted of conspiracy. Therefore, his testimony was a permissible lay opinion pursuant to § 7-1.

Second, we conclude that Gonzales’ testimony did not impermissibly address an ultimate issue of fact. Connecticut Code of Evidence § 7-3 (a) provides in relevant part that “[t]estimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact . . . .” “[T]he phrase ultimate issue is not amenable to easy definition. ... It is improper, [however] for a witness to offer testimony that essentially constitutes a legal opinion about the guilt of the defendant.” (Internal quotation marks omitted.) State v. Morocho, 93 Conn. App. 205, 223, 888 A.2d 164, cert. denied, 277 Conn. 915, 895 A.2d 792 (2006).

The defendant argues that the state’s questioning of Gonzales regarding whether the defendant was “part of [the] group” essentially was the same as asking Gonzales if the defendant was part of the conspiracy, and, thus, Gonzales impermissibly testified to an ultimate issue of fact. Here, we cannot conclude that Gonzales impermissibly offered opinion testimony regarding an ultimate issue of fact. Although it is true that evidence of association is relevant to proving participation in a conspiracy; see State v. Torres, 47 Conn. App. 149,158-59, 702 A.2d 142 (1997), cert. denied, 243 Conn. 963, 707 A.2d 1267 (1998); association, by itself, does not necessarily constitute intentional participation in a conspiracy. One can be “with” a group without being a conspirator, even if others in the group are, in fact, conspirators. Gonzales’ testimony that the defendant was “part of [the] group” is different from opining as to whether the defendant intended to agree to engage in a larceny or whether he intended to actually commit the larceny, both of which are ultimate issues of fact for the jury to decide. See Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 533, 733 A.2d 197 (1999). Therefore, although the jury reasonably may have found Gonzales’ testimony relevant to the issue of whether the defendant participated in the conspiracy, his testimony did not constitute an opinion about the ultimate guilt of the defendant. Accordingly, the court did not abuse its discretion in allowing Gonzales’ testimony.

Ill

The defendant finally claims that the court erred when it instructed the jury regarding the Pinkerton doctrine of vicarious liability. Specifically, he claims that the application of the Pinkerton doctrine to the facts of this case violated his right to due process. We disagree.

The following additional facts are relevant to our resolution of the defendant’s claim. When instructing the jury regarding the Pinkerton theory of liability on the two counts of larceny; see footnote 4 of this opinion; the court stated: “The final theory of liability ... is . . . under what we call the Pinkerton rule. There’s a doctrine in our law which provides that once a defendant’s participation in a conspiracy is established, he’s responsible for each of the criminal acts of the other coconspirators which are within the scope and furtherance of the conspiracy. Therefore, you would first have to find the defendant guilty of conspiracy to commit larceny one in order to consider this Pinkerton theory of liability. . . .

“The rule means that in this case, if you conclude that the defendant is, in fact, guilty of conspiracy to commit larceny one, as I have defined that term to you previously, but he did not commit larceny one as a principal or as an accessory, then you must determine whether there is sufficient evidence that has been provided to you beyond a reasonable doubt that another member of the same conspiracy did, in fact, commit the crime of larceny one.

“If a coconspirator did commit larceny one, and if that larceny one was in the scope of and in furtherance of the conspiracy for which you concluded the defendant was a member, then the defendant would be guilty of larceny one as well. In summary, if you conclude the defendant was a member of a conspiracy as has been charged in the first count of the information beyond a reasonable doubt, and that a coconspirator committed the crime of larceny one, then if you would further conclude beyond a reasonable doubt the larceny one was within the scope of and in furtherance of the conspiracy then each and every member of the conspiracy would be guilty of larceny one as charged, whether or not they actually committed the larceny one.”

The defendant does not complain that the instruction misstated the law; rather, he claims that the instruction should not have been given at all. He did not preserve this claim and thus seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant’s claim satisfies the first two prongs of Golding because the record is adequate for review and it is of constitutional magnitude. The defendant’s claim, however, fails under the third prong of Golding because there was no clear constitutional violation and the application of Pinkerton, under the facts of this case, did not deprive him of a fair trial.

“In Pinkerton v. United States, [328 U.S. 640, 647-48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946)], the United States Supreme Court concluded that under the federal common law, a conspirator may be held hable for criminal offenses committed by a coconspirator if those offenses are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy.” State v. Diaz, 237 Conn. 518, 526, 679 A.2d 902 (1996). In State v. Walton, 227 Conn. 32, 45-46, 630 A.2d 990 (1993), our Supreme Court adopted the principal of vicarious coconspirator liability set forth in Pinkerton. The court reasoned that “the rationale of Pinkerton liability . . . is essentially that, because the conspirator played a necessary part in setting in motion a discrete course of criminal conduct, he should be held responsible, within appropriate limits, for the crimes committed as a natural and probable result of that course of conduct.” (Internal quotation marks omitted.) State v. Diaz, supra, 528.

On the facts of this case, we do not conclude that the court erred in instructing the jury regarding the Pinkerton doctrine of vicarious liability. The defendant argues that the application of the Pinkerton doctrine in the present case violated his due process rights because there was no evidence to prove that the defendant ever agreed or intended to agree to participate in a larceny before it actually was completed. To the contrary, the evidence presented by the state reasonably supported the proposition that the defendant was an involved member of the conspiracy who actively participated in the larceny. The state offered the testimony of Gonzales, who opined that the defendant was “part of [the] group” of people who were arrested for the theft of the Murano and Escalade. The state further offered evidence of the XC40 dealer plate that was stolen from the defendant’s former employer and affixed to the stolen Murano. Also, the state presented evidence that established that the defendant was driving the stolen Escalade in New York, and evidence tending to show that he removed and replaced the windshields of the two vehicles during the process of their thefts. Most fundamentally, he arrived at the scene of the arrest with two stolen cars, false identifying information and a broker of stolen cars. On the basis of this evidence, the jury reasonably could have concluded that the defendant both agreed to and intended to agree to participate in the larceny of the vehicles. “Thus, in circumstances where, as here, the defendant was a full partner in the illicit venture and the coconspirator conduct for which the state has sought to hold him responsible was integral to the achievement of the conspiracy’s objectives, the defendant cannot reasonably complain that it is unfair to hold him vicariously liable, under the Pinkerton doctrine, for such criminal conduct.” State v. Diaz, supra, 237 Conn. 529.

The defendant also notes, however, our Supreme Court’s statement that “there may be occasions when it would be unreasonable to hold a defendant criminally liable for offenses committed by his coconspirators even though the state has demonstrated technical compliance with the Pinkerton rule.” Id., 530. The defendant argues that the present case is one such case where application of the Pinkerton doctrine would be unreasonable because his involvement in the crime was too attenuated and remote. We do not agree that the facts of this case qualify under the rare exception where “the nexus between the defendant’s role in the conspiracy and the illegal conduct of a coconspirator is so attenuated or remote, notwithstanding the fact that the latter’s actions were a natural consequence of the unlawful agreement, that it would be unjust to hold the defendant responsible for the criminal conduct of his coconspirator.” Id. As we explained above, there was considerable evidence from which the jury reasonably could have inferred that the defendant directly participated in the theft of the Escalade and the Murano. Additionally, we cannot conclude that the application of Pinkerton is unreasonable where the defendant was convicted of the very crime that was the underlying offense of the conspiracy, the larceny of the two vehicles. The evidence, viewed favorably to the state, supports the notion that the defendant’s role was anything but attenuated and remote. Accordingly, we disagree with the defendant’s claim that the court erred in instructing the jury regarding Pinkerton liability.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946).

       Retagging is a process that conceals the fact that a vehicle is stolen. After a vehicle is stolen, its windshield is removed, providing access to the vehicle identification number. The vehicle identification number is altered or replaced with a number that belongs to a legitimate vehicle. The windshield is then replaced and resealed; rubber caulk is used to seal the windshield in place and blue masking tape is placed around the perimeter of the windshield so the caulk is not disturbed while it dries. After this process, counterfeit documents are created and used to register the stolen vehicle.

       The confidential informant drove the Lexus, Gonzales drove the Murano, Barrone drove the Escalade and Contreras drove the BMW with the defendant sitting in the passenger’s seat.

       Counts one and three pertained to the defendant’s involvement with the theft of the Escalade, and counts two and four pertained to the defendant’s involvement with the theft of the Murano. The theories of liability regarding the larceny of the Escalade included principal, accessory, and co conspirator liability pursuant to Pinkerton. The theories of liability regarding the larceny of the Murano included accessory and coconspirator liability pursuant to Pinkerton.

       For the defendant’s conviction of the two counts of larceny, he was sentenced to five years incarceration, execution suspended after two and one-half years, with three years of probation, to run consecutively. The court merged the defendant’s conviction of the two counts of conspiracy and sentenced the defendant to five years incarceration, execution suspended after two and one-half years, to run concurrently with the larceny sentence.

       The defendant also argues that the court abused its discretion when it admitted evidence of the XC40 dealer plate because it was inadmissible uncharged misconduct evidence. Specifically, the defendant argues that evidence of the XC40 dealer plate was offered as uncharged misconduct evidence because the jury would have had to infer that the defendant stole it, and, as a result, the jury logically would have concluded that because the defendant stole the dealer plate he was therefore more likely to have participated in the theft of the two vehicles.
      We disagree with the defendant’s characterization that evidence of the XC40 dealer plate was offered as uncharged misconduct evidence. Nowhere in any of the defendant’s motions in limine does he specifically characterize the evidence of the XC40 dealer plate as uncharged misconduct evidence. In fact, the defendant expressly stated that “[t]he prior misconduct was stealing [the Honda] . . . .” “This court will not review issues of law that are raised for the first time on appeal. . . . We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . . Claims that were not distinctly raised at trial are not reviewable on appeal.” (Emphasis added; internal quotation marks omitted.) Weihing v. Dodsworth, 100 Conn. App. 29, 34 n.4, 917 A.2d 53 (2007). Therefore, we limit our review of the defendant’s claim to the extent that he argues that evidence of the XC40 dealer plate was irrelevant or that any probative of the plate was outweighed by its prejudicial effect.

       The defendant filed an additional motion in limine on October 6, 2008, which did not pertain to evidence of the XC40 dealer plate that is the subject of his claim on appeal.

       The defendant also argued that, because the XC40 dealer plate was not registered to New Country Motors until more than one year after his employment was terminated, the state did not have a good faith basis to offer such evidence. The defendant does not raise this argument on appeal, and, thus, we do not consider it; in any event, there seems to be little question but that the state had information regarding the plate prior to the questions in issue. We do consider, however, the closely related argument regarding relevance in part IA of this opinion.

       The defendant also claims that evidence of the XC40 dealer plate was irrelevant because the state failed to offer any evidence to prove that he actually stole the plate. Having concluded that the court did not abuse its discretion in determining that evidence of the XC40 dealer plate was relevant on the basis of the evidence that was presented, we need not address the defendant’s further argument.

       The defendant also argues that the prejudicial effect of the evidence of the XC40 dealer plate outweighed its probative value because the state did not prove that he actually stole the plate and, thus, that the evidence misled the jury. Our Supreme Court has stated that “[e]vidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Cecil J., 291 Conn. 813, 823, 970 A.2d 710 (2009). As we stated in part I A of this opinion, evidence of the dealer plate tended to support a relevant fact, namely, whether the defendant had the requisite intent required to be convicted of a conspiracy. Accordingly, we reject this aspect of the defendant’s claim.

       Lay opinion is admissible when, inter alia, the “opinion” is the shorthand expression of a number of facts and conditions, observed or sensed by the witness, which are so numerous, complex or evanescent that they cannot be fully recollected or detailed individually. See C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § 7.1.2, p. 403.

       Pursuant to Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       The defendant also argues that the application of the Pinkerton doctrine in the present case violated his due process rights because the coconspirators did not rely on his participation in the conspiracy, nor was his involvement necessary to complete the theft of the two vehicles. The defendant has provided no authority to support the proposition that Pinkerton or its progeny requires that a conspirator’s participation in a conspiracy be relied on by his coconspirators or that a conspirator’s participation in a conspiracy be necessary in order to complete the underlying offense. Therefore, we reject this aspect of the defendant’s claim.