author: GRUENDEL, J.

text:
    MARC WEINER ET AL. v. MICHAEL H. CLINTON ET AL.
    (AC 28317)
    DiPentima, Gruendel and Robinson, Js.
    Argued January 15
    officially released March 18, 2008

      Thomas P. Willcutts, for the appellants (plaintiffs).

      Marcy Tench Stovall, with whom, on the brief, was David P. Friedman, for the appellee (named defendant).
   Opinion

GRUENDEL, J.

In this legal malpractice action, the plaintiffs, Marc Weiner and TMG Marketing, Inc., appeal from the summary judgment rendered by the trial court in favor of the defendant Michael H. Clinton. They claim that the court improperly (1) applied General Statutes § 52-577 to the second count of their complaint and (2) concluded that no genuine issue of material fact existed as to their pleading in avoidance of the defendant’s statute of limitations defense. We affirm the judgment of the trial court.

In June, 1998, the plaintiffs retained the defendant to represent them in an action brought against the plaintiffs by Michael Lawton. See Lawton v. Weiner, 91 Conn. App. 698, 882 A.2d 151 (2005). Months after Lawton filed suit, he filed a motion for sanctions against the plaintiffs for their failure to comply fully with his discovery requests. On May 21, 1999, the court ordered the plaintiffs to provide substantive responses to all discovery requests within fourteen days. On June 15, 1999, Lawton filed a motion for default for the plaintiffs’ fail-rue to comply with the May 21, 1999 discovery order. On June 25, 1999, attorney Steven W. Varney filed an appearance in lieu of the defendant on behalf of the plaintiffs. At that time, the defendant’s representation of the plaintiffs ceased.

On June 29,1999, the court granted Lawton’s motion for default for failure to comply with the discovery order. Varney subsequently asked the defendant to prepare an affidavit describing his conduct in connection with the discovery order, and the defendant complied. In that affidavit, the defendant averred that “as counsel for [the plaintiffs], the undersigned understood the [discovery] order to require [them] to provide a response or production in the event the requested item of information existed. As [the plaintiffs] did not have in [their] possession the requested production items or the requested item did not exist, the undersigned did not interpret the order to require further pleading. . . . [H]ad the undersigned understood the order to require further pleading, [he] would have simply filed a supplemental response indicating, again, that the [plaintiffs] did not have possession of the information requested. . . . [M]y understanding at the time was that the only problem that [Lawton’s] counsel had with the responses was his disbelief that the information was not in my client’s possession. Therefore, I did not respond to the motion for default as I assumed the court would simply prohibit the [plaintiffs] from attempting to introduce any evidence which would be relevant to the discovery requests . . . .” On September 3, 1999, the plaintiffs filed with the court a motion for reargument of their July 26, 1999 motion to set aside the default judgment, to which was appended the aforementioned affidavit. The court denied that motion, and a hearing in damages followed, at the conclusion of which the court found in favor of Lawton on multiple counts of his complaint. The court awarded Lawton compensatory and punitive damages, as well as attorney’s fees, and rendered judgment accordingly.

On November 22, 2004, the plaintiffs commenced the present action by way of a four count complaint. Count one alleged negligence on the part of the defendant, and count two alleged breach of contract on the part of the defendant. In his answer, the defendant denied the allegations of negligence and breach of contract. He further pleaded, as a special defense, that the plaintiffs’ action was time barred. In avoidance of that special defense, the plaintiffs alleged fraudulent concealment on the part of the defendant. The defendant thereafter filed a motion for summary judgment on the ground that both counts against him were barred by § 52-577. The court heard argument on the motion on July 31, 2006, and permitted the plaintiffs to supplement the evidentiary record after that date. In its thorough October 19,2006 memorandum of decision, the court granted the motion for summary judgment in favor of the defendant on counts one and two of the complaint and rendered judgment accordingly. This appeal followed.

Before considering the plaintiffs’ claims on appeal, we first note the well established standard of review. “Practice Book § [17-49] requires that judgment shall be rendered forthwith 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. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. ... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Citations omitted; internal quotation marks omitted.) Lunn v. Cummings & Lockwood, 56 Conn. App. 363, 370, 743 A.2d 653 (2000). Our review of the trial court’s decision to grant a motion for summary judgment is plenary. Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

I

In rendering summary judgment in favor of the defendant on the breach of contract count of the plaintiffs’ complaint, the court concluded that that count was “only a legal malpractice claim cloaked in contract terms” and, thus, was time barred by § 52-577. The plaintiffs contend that the court’s determination was improper. We disagree.

Not all claims against attorneys must necessarily be construed as tort claims. Mac’s Car City, Inc. v. DeNigris, 18 Conn. App. 525, 530, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). Connecticut law recognizes that “one may bring against an attorney an action sounding in both negligence and contract.” Caffery v. Stillman, 79 Conn. App. 192, 197, 829 A.2d 881 (2003). At the same time, one cannot “bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract.” Id.; see also Gazo v. Stamford, 255 Conn. 245, 262, 765 A.2d 505 (2001); Shuster v. Buckley, 5 Conn. App. 473, 478, 500 A.2d 240 (1985). As we recently observed, “tort claims cloaked in contractual language are, as a matter of law, not breach of contract claims.” Pelletier v. Galske, 105 Conn. App. 77, 81, 936 A.2d 689 (2007). The question, then, is whether the second count of the plaintiffs’ complaint was essentially a claim of legal malpractice.

“Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . .” (Internal quotation marks omitted.) Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221 (1984). Whether the plaintiffs claim is one for malpractice depends on the allegations of the complaint. Id. Interpretation of the pleadings is a question of law over which our review is plenary. See Mac’s Car City, Inc. v. DeNigris, supra, 18 Conn. App. 529.

The first and second counts of the plaintiffs’ complaint largely are identical. Both allege that the defendant failed to use reasonable care, skill and diligence in providing legal services to the plaintiffs. “Where the

plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence the complaint sounds in negligence, even though he also alleges that he retained him or engaged his services.” Shuster v. Buckley, supra, 5 Conn. App. 478. The only difference between the two counts is that the second alleges that the defendant’s use of reasonable care, skill and diligence in providing legal services was an “express and/or implied” term of the contract between the parties. That is a distinction without a difference. The second count of the complaint contains no allegations that refer to specific actions required by the defendant; contra Connecticut Education Assn., Inc. v. Milliman USA, Inc., 105 Conn. App. 446, 459, 938 A.2d 1249 (2008); nor does it contain allegations of the defendant’s refusal to take certain actions. See Hill v. Williams, 74 Conn. App. 654, 659, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). The second count does not assert that “a defendant who is a professional breached an agreement to obtain a specific result.” Caffery v. Stillman, supra, 79 Conn. App. 197. Rather, it simply repeats the allegation that the defendant breached the standard of care applicable to legal professionals. Accordingly, the court properly pierced the pleading veil and concluded that the plaintiffs’ claim was one sounding in malpractice masked in contract garb.

“Actions for legal malpractice based on negligence are subject to § 52-577, the tort statute of limitations. . . . Section 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held hable and in some cases will serve to bar an action before it accrues.” (Citation omitted; internal quotation marks omitted.) Sanborn v. Greenwald, 39 Conn. App. 289, 301-302, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). The present case recalls Gazo v. Stamford, supra, 255 Conn. 245, in which our Supreme Court noted that “the only practical difference between the plaintiffs negligence and contract claims is that different statutes of limitations would apply to the two claims. The law should not permit him to recast what is essentially a tort claim as a contract claim solely to gain the potential advantage of a longer statute of limitations.” Id., 266.

We conclude that, despite the nomenclature employed by the plaintiffs, the second count of the plaintiffs’ complaint sounds in legal malpractice. Filed more than five years after the alleged malpractice, it is barred by § 52-577.

II

The plaintiffs next claim that the court improperly concluded that no genuine issue of material fact existed as to their pleading in avoidance of the defendant’s statute of limitations defense. “The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of fact.” Barasso v. Rear Still Hill Road, LLC, 81 Conn. App. 798, 803, 842 A.2d 1134 (2004). We conclude that the plaintiffs have not met that burden.

In their pleading in avoidance of the defendant’s statute of limitations defense, the plaintiffs alleged that the defendant fraudulently concealed from them “the wrongdoing set forth in the plaintiffs’ complaint that gives rise to the plaintiffs’ causes of action” in violation of General Statutes § 52-595. By way of interrogatory, the defendant subsequently asked the plaintiffs to “ [i] dentify each of the specific acts of wrongdoing giving rise to the plaintiffs’ cause of action that was concealed from you, as alleged in [the plaintiffs’ reply to special defenses].” In responding to that interrogatory, the plaintiffs stated: “That [the] defendant . . . knowingly and intentionally took no action and filed nothing in response to a court order granting a motion for sanctions and ordering substantive compliance with discovery .... That [the] defendant . . . knowingly and intentionally filed no response to a motion for default filed in reaction to his failure to respond to the court’s discovery order . . . .”

“[T]o prove fraudulent concealment, the plaintiffs [must] show: (1) [the] defendant’s actual awareness, rather than imputed knowledge, of the facts necessary to establish the plaintiffs’ cause of action; (2) [the] defendant’s intentional concealment of these facts from the plaintiffs; and (3) [the] defendant’s concealment of the facts for the purpose of obtaining delay on the plaintiffs’ part in filing a complaint on their cause of action.” Bartone v. Robert L. Day Co., 232 Conn. 527, 533, 656 A.2d 221 (1995). To do so, “it [is] not sufficient for the plaintiffs to prove merely that it was more likely than not that the defendants had concealed the cause of action. Instead, the plaintiffs [must] prove fraudulent concealment by the more exacting standard of clear, precise, and unequivocal evidence.” (Internal quotation marks omitted.) Id.

We conclude that the plaintiffs failed to present a factual predicate for their claim that the defendant intentionally concealed the facts alleged in their interrogatory response. Far from concealing those facts, the defendant memorialized them in an affidavit he furnished to the plaintiffs only months after they transpired. Moreover, the plaintiffs filed a copy of that affidavit with the court as part of their September 3, 1999 motion for reargument of their July 26, 1999 motion to set aside the default judgment. Thus, as of September, 1999, the defendant’s sworn statement as to the specific acts of alleged wrongdoing giving rise to the plaintiffs’ cause of action was both a matter of public record filed with the Superior Court and a part of the plaintiffs’ file in the underlying action. As the court noted in its memorandum of decision, the “plaintiffs present no evidence whatsoever that [the defendant] concealed the affidavit from them, much less that he did so intentionally.” The court also stated: “The evidence relied upon by the plaintiffs fails to show any intent on [the defendant’s] part to conceal facts, nor does it support a finding that [the defendant’s] alleged concealment was directed toward obtaining a delay in the filing of this action to take advantage of the statute of limitations.” (Internal quotation marks omitted.) On our examination of the pleadings, affidavits and other proof submitted, we agree. We therefore conclude that the court properly rendered summary judgment on that ground.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although named as defendants, Steven W. Varney and the law firm of Brown, Paindiris & Scott, LLP, are not parties to this appeal. We therefore refer to Clinton as the defendant.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       The plaintiffs appealed from that judgment to this court with no success. See Lawton v. Weiner, supra, 91 Conn. App. 721.

       Count three alleged negligence on the part of Varney and his law firm, while count four alleged breach of fiduciary duty on the part of Varney. Neither is relevant to the present appeal.

       Specifically, count one alleged in relevant part: “As an attorney representing the plaintiffs, [the] defendant . . . owed a duty to the plaintiffs to use reasonable care, skill and diligence in providing legal services to them, in accordance with the applicable standards of care for legal professionals. . . . The default judgment entered against the plaintiffs in the Lawton suit, and the economic damages suffered by the plaintiffs as a result of said judgment, were caused by the carelessness, negligence and breach of the applicable professional standards of care by [the] defendant ... in one or more of the following respects: [a] he failed to seek to stay the Lawton suit on the basis of an agreement to arbitrate the disputes that were the subject of the Lawton suit; [b] he failed to seek additional extensions of time, as needed, to file proper discovery compliance in a timely manner; [c] he failed to interpose objections to Lawton’s discovery requests; [d] he failed to file compliance with the [Lawton] discovery requests in a timely fashion; and/ or, [e] he failed to properly advise [the] defendants Varney and [Brown, Paindiris & Scott, LLP] of the status of the proceedings of the Lawton suit upon transferring the file to [Brown, Paindiris & Scott, LLP].”
      Likewise, count two, the purported contract claim against the defendant, alleged in relevant part: “Under the express and/or implied terms of [the defendant’s] contract to provide legal services to the plaintiffs, [the] defendant . . . owed a duty to the plaintiffs to use reasonable care, skill and diligence in providing legal services to them, in accordance with the applicable standards of care for legal professionals. . . . The default judgment entered against the plaintiffs in the Lawton suit, and the economic damages suffered by the plaintiffs as a result of said judgment, were caused by [the defendant’s] breach of his contract to provide legal services to the plaintiffs, in one or more of the following respects: [a] he failed to seek to stay the Lawton suit on the basis of an agreement to arbitrate the disputes that were the subject of the Lawton suit; [b] he failed to seek additional extensions of time, as needed, to file proper discovery compliance in a timely manner; [c] he failed to interpose objections to Lawton’s discovery requests; [d] he failed to file compliance with the [Lawton] discovery requests in a timely fashion; and/or, [c] he failed to properly advise [the] defendants Varney and [Brown, Paindiris & Scott, LLP] of the status of the proceedings of the Lawton suit upon transferring the file to [Brown, Paindiris & Scott, LLP].”

       No written contract was submitted to the court.

       General Statutes § 52-595 provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    IN RE ANTHONY A.

    (AC 28658)
    McLachlan, Lavine and Robinson, Js.
    Argued January 23
    officially released March 18, 2008

      Gary J. Wilson, with whom, on the brief, was Daniel C. Ford, for the appellant (respondent mother).

      Colleen Broderick, assistant attorney general, with whom were Susan T. Pearlman and Stephen G. Vitelli, assistant attorneys general, and, on the brief, Richard Blumenthal, attorney general, for the appellee (petitioner).

      David B. Rozwaski, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LAVINE, J.

The respondent mother appeals from the judgment of the trial court finding the child neglected pursuant to General Statutes § 46b-120 (9) (B) and (C). On appeal, the respondent claims that the court improperly found that the child was neglected on the date the neglect petition was filed. We disagree and, therefore, affirm the judgment of the trial court.

The court made the following findings of fact in its memorandum of decision filed on March 19, 2007, after a trial held on several days in January and February, 2007. The respondent has suffered from a serious psychiatric disorder for a number of years. When she learned that she was pregnant in July, 2005, the respondent stopped taking her prescribed medication and receiving therapy. During a prenatal visit, a social worker recommended that the respondent reconnect with REACH, a therapy program she had attended for treatment of her disorder. The respondent failed to heed that advice.

The respondent had lived in her own apartment until shortly before the child was bom, when she returned to her parents’ home so that they could help her care for the child. The respondent went into labor on February 28, 2006. She went to the emergency room of a hospital, refused treatment and returned to her parents’ home. Later that evening, she became psychotic and locked herself in a bathroom. Her parents called police and emergency medical technicians for help. The respondent was violent, and she needed to be restrained. She was taken to a hospital where she gave birth to the child the following day, March 1, 2006.

A psychiatrist evaluated the respondent on March 1, 2006, and determined that she was not acutely psychotic, although she had symptoms of her underlying disorder. The psychiatrist recommended that the respondent take medication, but she refused to do so. On March 3, 2006, a social worker (investigator) from the department of children and families (department) met with the respondent after a hospital social worker made a referral to the department. The conversation the investigator had with the respondent upset the respondent, and the respondent requested that her mother come to the hospital. The investigator met with the respondent’s mother, herself a department employee, and the two developed a plan of supervised care for the child. The respondent’s parents would alternate supervising the respondent and the child. The respondent’s mother also volunteered to take leave from her employment to care for the respondent and the child. Because the respondent had not taken medication for her illness for nine months and had a psychotic episode the night before the child was bom, the investigator stated that the respondent should live with a relative until the respondent was again taking her medication, her psychosis had been stabilized and she was able to care for the child safely.

When the investigator and the respondent’s mother discussed those plans with the respondent, the respondent became enraged and accused her mother of trying to steal her child. She refused to approve the plan. The psychiatrist who had evaluated the respondent on March 1,2006, evaluated her again on March 3,2006, and found that the respondent was delusional and paranoid. She was unable to make decisions for herself or care for her newborn child. The psychiatrist issued an emergency order committing the respondent to an inpatient psychiatric hospital for up to fifteen days. That same day, March 3, 2006, the department invoked a ninety-six hour hold on the child. At the time, the child’s father was incarcerated. The child was placed in the care of the respondent’s parents on March 6, 2006. The petitioner, the commissioner of children and families, filed the neglect petition at issue on March 7, 2006.

On the basis of the evidence presented, the court found that the petitioner had met her burden by the preponderance of the evidence that the child was neglected on the date the petition was filed. Both of the child’s biological parents, the only persons with legal authority over the child, were institutionalized on March 7, 2006, and were not able to provide the child with proper care and attention, physically and emotionally. Moreover, the respondent had two recent psychotic episodes. Because she had not taken medication during her pregnancy and in view of her postpartum state, the respondent was at risk of psychotic behavior. According to the respondent’s psychiatrist, the respondent’s heightened risk of psychotic behavior would last for ninety days following the child’s birth.

The court found by the preponderance of the evidence that the respondent was unstable at the time the neglect petition was filed and that her parents were unable to prevent or control her psychotic episodes. There was nothing, such as a court order, to prevent the respondent from returning to her parents’ home when her emergency psychiatric commitment expired. The petitioner, therefore, had a legitimate concern for the safety of the child if the respondent returned to her parents’ home. The court found that the child was neglected on the date the petition was filed because he was denied proper care and attention, physically and emotionally, due to the potential for him to live under conditions, circumstances or associations injurious to his well-being. See General Statutes § 46b-120 (9) (B) and (C).

On appeal, the respondent claims that her constitutional right to family integrity under the federal constitution and her right to equal protection pursuant to the constitution of Connecticut, as amended, which forbids discrimination on the basis of a person’s mental disability, were denied. Neither of these claims was raised at trial and neither is adequately briefed. We therefore decline to review them. See In re Christina M., 90 Conn. App. 565, 584, 877 A.2d 941 (2005), aff'd, 280 Conn. 474, 908 A.2d 1073 (2006). In her brief, the respondent essentially argues that the court’s finding that the child was neglected at the time the petitioner filed the neglect petition is clearly erroneous.

“Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) In re Jessica S., 51 Conn. App. 667, 674-75, 723 A.2d 356, cert. denied, 251 Conn. 901, 738 A.2d 1090 (1999).

“[A]n adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding that the child is neglected is different from finding who is responsible for the child’s condition of neglect. Although [General Statutes] § 46b-129 requires both parents to be named in the petition, the adjudication of neglect is not a judgment that runs against a person or persons so named in the petition; [i]t is not directed against them as parents, but rather is a finding that the children are neglected . . . .” (Emphasis in original; internal quotation marks omitted.) In re T.K., 105 Conn. App. 502, 505-506, 939 A.2d 9 (2008). The focal point of a neglect petition is not a condemnation of the parents but a determination of the status of the child. In re Allison G., 276 Conn. 146, 164, 883 A.2d 1226 (2005).

Here, the respondent does not contest the court’s underlying finding of facts with respect to her mental health and her circumstances at the time of the child’s birth or that she was institutionalized on the date the petition was filed. Her argument is that on March 7, 2007, the child was not denied proper care and attention because he was safely in the care of his maternal grandparents. We review the application of a statute to a particular set of facts by the plenary standard of review. See In re Nasia B., 98 Conn. App. 319, 328, 908 A.2d 1090 (2006).

In this case, the court found that on the date the petition was filed, the respondent had a history of men-. tal illness and that she had not taken her medication or received other therapy during her pregnancy. The respondent had rejected medical advice that she take her medication following the birth of the child. On March 3, 2006, a psychiatrist determined that the respondent was unable to make decisions on her own behalf or to care for the child. A fifteen day emergency psychiatric commitment was ordered for the respondent. Moreover, the respondent’s parents were not able to control the respondent when she was in the midst of a psychotic episode. The court also found that there was no court order preventing the respondent from entering her parents’ home and coming in contact with the child. The child’s father was incarcerated.

“Our statutes clearly and explicitly recognize the state’s authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected. . . . The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.” (Citation omitted; emphasis in original; internal quotation marks omitted.) In re T.K., supra, 105 Conn. App. 511-12.

On the basis of our review of the record and the court’s memorandum of decision, we conclude that the court’s finding that the child was neglected on March 7, 2006, was not clearly erroneous. The fact that the child was in the care of the respondent’s parents at that time and that he was not harmed does not change the analysis. Both the respondent and the child’s father were institutionalized on that date, and no other person had legal authority to care for the child. Furthermore, the respondent’s psychiatric state was not expected to stabilize for ninety days following the birth of the child. There was nothing to prevent the respondent from returning to her parents’ home, where the child was living, when she was released from the fifteen day emergency psychiatric commitment. See General Statutes § 46b-120 (9) (C).

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the neglect petition included allegations against the child’s father, only the mother is a party to this appeal. We refer to her as the respondent.

       The respondent disputed that the child was neglected because the respondent’s family had a plan in place for his care. The court pointed out that the issue to be decided was whether, on the basis of a preponderance of the evidence, there was sufficient evidence to find that the child was neglected on the date the neglect petition was filed. Furthermore, the record indicates that the respondent did not agree to let her parents take the child home when she was unable to leave the hospital.

       General Statutes § 46b-120 (9) provides in relevant part: “[A] child or youth may be found ‘neglected’ who . . . (B) is being denied proper care and attention, physically, educationally, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth . . . .”

       At the dispositional phase of the proceeding held on March 21, 2007, the court rendered judgment in accordance with an agreement that the respondent and the child’s father share joint legal guardianship of the child with the respondent’s parents, and that the child live with the respondent and the respondent’s parents.


author: PER CURIAM.

text:
    MARCELLUS RUFFIN v. COMMISSIONER OF CORRECTION
    (AC 28287)
    Bishop, Harper and Beach, Js.
    Submitted on briefs January 4
    officially released March 18, 2008

      Mary H. Trainer, special public defender, filed a brief for the appellant (petitioner).

      David I. Cohen, state’s attorney, Robert J. Scheinblum, senior assistant state’s attorney, and James M. Bemardi, supervisory assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Marcellus Ruffin, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly failed to conclude that his trial counsel had provided ineffective assistance. Specifically, the petitioner alleges that the court improperly concluded that his trial counsel did not render ineffective assistance regarding effectively advising him concerning the proposed plea bargain, adequately preparing for trial and properly representing him at sentencing. We disagree and affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. In 1995, the petitioner was convicted, following a jury trial, of conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a), attempt to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-49 (a), and manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The conviction arose out of the petitioner’s participation in a gun battle at an apartment building in Stamford, during which a seven year old child was struck by a stray bullet and killed. See State v. Ruffin, 48 Conn. App. 504, 506, 710 A.2d 1381, cert. denied, 245 Conn. 910, 718 A.2d 18 (1998). The gun battle apparently involved a dispute between two rival groups, one of which the petitioner was a member. See id. The trial court, Nigro, J., imposed a sentence of forty years. The conviction was affirmed on appeal. See id.

The petitioner thereafter filed a petition for a writ of habeas corpus, alleging that his trial counsel, John Imhoff, Jr., was ineffective for failing, inter alia, to advise him effectively with regard to the proposed plea bargain, to prepare for trial adequately and to represent him properly during sentencing. In a memorandum of decision filed November 2,2006, the habeas court, Hon. Anthony V. DeMayo, judge trial referee, rejected the petitioner’s claims. The court later granted the petition for certification to appeal to this court. This appeal followed.

Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. The issue of ineffective assistance of counsel presents a mixed question of fact and law. Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As such, the factual findings of the habeas trial court will not be disturbed unless they are found to be clearly erroneous. Ghant v. Commissioner of Correction, 255 Conn. 1, 6, 761 A.2d 740 (2000). Legal conclusions drawn from the facts are subject to plenary review. Id.

In order to prevail on a claim of ineffective assistance of counsel, a petitioner must satisfy two elements: that the performance of counsel “fell below the reasonable competence displayed by attorneys with ordinary training and skill in the criminal law” and that the petitioner’s defense was prejudiced thereby. Ostolaza v. Warden, 26 Conn. App. 758, 774, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). In order to show prejudice, a petitioner must satisfy the trier that, in the absence of inadequate representation, the outcome would, with reasonable probability, have been different. Stricklands. Washington, supra, 466 U.S. 693. A reasonable probability is one which is sufficient to undermine confidence in the result. Id., 694.

On the basis of our review of the record and the briefs, we conclude that the court properly concluded that Imhoff did not render ineffective assistance to the petitioner. We first examine the petitioner’s claim that the court improperly failed to find that Imhoff failed to advise him adequately regarding the state’s plea offer. The court found that Imhoff adequately explained the plea offer, which the petitioner chose not to accept. Imhoff managed to negotiate the offer of twenty years incarceration, execution suspended after twelve to fifteen years, which was rejected by the petitioner. The court was free to credit Imhoff s recollection that he had discussed with the petitioner the specific terms and conditions of the offer and that the petitioner alone had chosen to reject the offer and to proceed to trial. In light of the credibility determination made by the court, the petitioner cannot demonstrate that Imhoff s performance was deficient. “The habeas court, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” Alexander v. Commissioner of Correction, 103 Conn. App. 629, 638, 930 A.2d 58, cert. denied, 284 Conn. 939, 937 A.2d 695 (2007).

We next examine the petitioner’s claim that the court improperly failed to conclude that Imhoff failed to investigate alibi witnesses adequately prior to trial. The court properly concluded that Imhoffs investigation regarding alibi witnesses fell within the range of reasonable professional assistance mandated by Strickland. He met and talked with a number of potential witnesses, including alibi witnesses, and the decisions to call some and not others were not unreasonable. See, e.g., Hopkins v. Commissioner of Correction, 95 Conn. App. 670, 676-77, 899 A.2d 632, cert. denied, 279 Conn. 911, 902 A.2d 1071 (2006).

We last examine the petitioner’s claim that the court improperly failed to find that Imhoff failed to represent him properly during sentencing by failing to correct certain errors in the presentence investigation report relating to his employment history. The petitioner has failed to satisfy the prejudice prong of Strickland. Although Imhoff did not correct an error in the presentence investigation report as to the petitioner’s work record, the petitioner has not demonstrated that the discrepancy would have made a difference in the sentence imposed. Further, an error in the report regarding the petitioner’s criminal history was corrected. We conclude that the court properly rejected the petitioner’s claims of ineffective assistance of counsel.

The judgment is affirmed.

       The habeas trial was conducted before the court, Hon. John Ottaviano, Jr., judge trial referee, which subsequently rejected the petitioner’s claims in a two page memorandum of decision. The petitioner thereafter filed a motion for articulation, but Judge Ottaviano became incapacitated and could not respond to the motion for articulation. On August 9, 2005, the petitioner filed a motion for reconsideration, following which the petitioner’s case was referred to Judge DeMayo. By agreement of the parties, Judge DeMayo decided the matter after reviewing the records and transcripts of the underlying criminal case, and the proceedings conducted previously before Judge Ottaviano.

       The petitioner set forth twelve allegations of ineffective assistance in his habeas petition, which the habeas court reviewed. The petitioner briefed three of the twelve issues on appeal and has not briefed the remaining nine issues. Accordingly, we deem those nine issues abandoned. See Hopkins v. Commissioner of Correction, 95 Conn. App. 670, 674 n.1, 899 A.2d 632, cert. denied, 279 Conn. 911, 902 A.2d 1071 (2006).

       Because we conclude that the petitioner has failed to satisfy the prejudice prong, we do not determine whether Imhoffs representation constituted deficient representation. See Pierce v. Commissioner of Correction, 100 Conn. App. 1, 12 n.5, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).


author: FLYNN, C. J.

text:
    STEVEN L. ZELVIN ET AL. v. JEM BUILDERS, INC. JEM BUILDERS, INC. v. KENNETH C. ZELVIN ET AL.
    (AC 26422)
    Flynn, C. J., and DiPentima and Robinson, Js.

      Argued January 7
    officially released March 18, 2008

      Paul M. Geraghty, with whom, on the brief, were Michael S. Bonnano and Marisa A. Mascolo, for the appellants (plaintiffs in the first case, defendants in the second case).

      Frank N. Eppinger, with whom was Thomas F. Collier, for the appellee (defendant in the first case, plaintiff in the second case).
   Opinion

FLYNN, C. J.

Steven L. Zelvin and Kenneth C. Zelvin appeal from the judgments of the trial court denying their application to vacate or to modify an arbitration award and granting the application to confirm the award filed by JEM Builders, Inc. (JEM Builders). On appeal, the Zelvins claim that the court improperly confirmed the award because the submission to the arbitration panel was restricted and the arbitration panel exceeded the scope of its authority. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to the Zelvins’ appeal. On March 27, 2000, the Zelvins and JEM Builders entered into a contract in which JEM Builders agreed to purchase lot 6, located in the Mystic Shores subdivision of Groton. The contract contained a broad arbitration provision providing in relevant part that “[t]he Buyer and Seller agree any controversy or claim arising from or relating to this Agreement or the breach thereof be settled by binding arbitration administered by the American Arbitration Association (‘AAA’) pursuant to their Rules for the Real Estate Industry. Either Buyer or Seller may initiate a request for such arbitration with the AAA office . . . .”

A dispute later arose, and, as a result, JEM Builders, as the initiating party, filed a demand for arbitration on March 17, 2003, in accordance with the arbitration clause in the contract. In its description of the nature of the dispute, JEM Builders asserted that the Zelvins had breached the contract by failing to convey lot 6. In the demand for arbitration, JEM Builders also sought specific performance, “[d]amages for lost profit on the new home construction customer that was lost,” punitive damages, attorney’s fees and “[a]ny other remedies deemed necessary by the Arbitration Board.” In response, the Zelvins filed an answer, in which they denied that they had breached the contract and stated that JEM Builders was not entitled to any relief. Additionally, the Zelvins filed their own demand, which they styled as a counterclaim, asserting that JEM Builders had defaulted on the contract, and they requested liquidated damages, attorney’s fees and costs, and “[s]uch other relief as the panel deems just and proper.” Thereafter, on May 9, 2003, JEM Builders filed a revised demand, providing more details about the dispute and seeking specific performance, money damages, punitive damages, attorney’s fees and costs and “[s]uch other remedies as the Arbitration panel may deem necessary.” The Zelvins subsequently filed a supplemental answer.

Following several days of hearings in October, 2003, and in January, 2004, a panel of three arbitrators issued an award on April 29, 2004, concluding, inter alia, that the Zelvins had breached the contract regarding lot 6 by “violating the covenant of good faith and fair dealing that is implicit in every contract.” As part of the arbitration award, the panel ordered the following relief: “[JEM Builders] is awarded [$80,000] as damages resulting from [the Zelvins’] breach of the contract. There was evidence sufficient to support a finding of damages relating to the appreciation of value of Lot No. 6 . . . .”

The Zelvins then filed with the court an application to vacate or, in the alternative, to modify the award pursuant to General Statutes §§ 52-418 and 52-419. JEM Builders filed an application to confirm the award. See General Statutes § 52-417. The applications were consolidated, and a hearing was held on October 7, 2004. Thereafter, the court denied the Zelvins’ application to vacate or to modify the award and granted JEM Builders’ application to confirm the award. This appeal followed.

On appeal, the Zelvins challenge the court’s conclusions that the submission was unrestricted and that the arbitration panel acted within its authority in awarding JEM Builders damages in the amount of $80,000. Specifically, the Zelvins contend that the panel exceeded its authority by failing to conform the award to the submission and by manifestly disregarding the law.

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

“Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that . . . the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. ... In other words, [u]nder an unrestricted submission, the arbitrators’ decision is considered final and binding; thus the courts will not review the evidence considered by the arbitrators nor will they review the award for errors of law or fact. . . .

“The significance ... of a determination that an arbitration submission was unrestricted or restricted is not to determine what the arbitrators are obligated to do, but to determine the scope of judicial review of what they have done. Put another way, the submission tells the arbitrators what they are obligated to decide. The determination by a court of whether the submission was restricted or unrestricted tells the court what its scope of review is regarding the arbitrators’ decision.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 80-81, 881 A.2d 139 (2005). With these principles in mind, we turn to the Zelvins’ claims on appeal.

I

The Zelvins first claim that the court improperly concluded that the submission was unrestricted. We disagree.

“In determining whether a submission is unrestricted, we look to the authority of the arbitrator.” (Internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn. App. 224, 229, 755 A. 2d 990, cert. denied, 254 Conn. 939, 761 A. 2d 760 (2000). “Arbitration is a creature of contract and the parties themselves, by the terms of their submission, define the powers of the arbitrators.” (Internal quotation marks omitted.) United States Fidelity & Guaranty Co. v. Hutchinson, 244 Conn. 513, 519, 710 A.2d 1343 (1998). “If the parties have agreed in the underlying contract that their disputes shall be resolved by arbitration, the arbitration clause in the contract is a written submission to arbitration. . . . This submission can be invoked by a demand for arbitration by one or both parties when a dispute arises. The agreement for submission constitutes the charter for the entire ensuing arbitration proceedings.” (Citations omitted.) Vail v. American Way Homes, Inc., 181 Conn. 449, 451, 435 A.2d 993 (1980).

“Where the language of the arbitration clause indicates an intention on the part of the parties to include all controversies which may arise under their agreement, and where the record reveals no specific questions which the parties submitted to the arbitrator, the submission will be construed as unrestricted. . . . A submission is deemed restricted only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.” (Citations omitted; internal quotation marks omitted.) United States Fidelity & Guaranty Co. v. Hutchinson, supra, 244 Conn. 519.

In the present case, the court concluded that the submission agreement of the parties was unrestricted. In their brief, the Zelvins assert that, notwithstanding the broad arbitration clause contained in the contract for the purchase and sale of lot 6, the demand and the revised demand filed by JEM Builders, coupled with the “pleadings” filed by the Zelvins, rendered the submission restricted. We, however, are not persuaded by the Zelvins’ contention and agree with the court that the submission of the parties was unrestricted.

The purchase and sale contract contained an arbitration clause, providing authority to the arbitrators to decide “any controversy or claim arising from or relating to this Agreement or the breach thereof . . . .” The arbitration clause also lacked any “language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review.” (Internal quotation marks omitted.) Exley v. Connecticut Yankee Greyhound Racing, Inc., supra, 59 Conn. App. 229. In accordance with the broad arbitration clause, the parties submitted their respective claims to the arbitrators, and, contrary to the Zelvins’ assertion, the filing of the demands and the counterclaim did not place restrictions on the authority of the arbitrators. Rather, both JEM Builders’ demands and the Zelvins’ counterclaim were couched in general language, alleging a contractual dispute and requesting, inter alia, any relief that the arbitration panel deemed necessary. Accordingly, the court properly construed the submission as unrestricted.

II

Having concluded that the submission was unrestricted, we next consider the Zelvins’ claim that the court improperly concluded that the arbitrators did not exceed their authority in awarding JEM Builders damages in the amount of $80,000. Specifically, the Zelvins contend that the award, granting JEM Builders $80,000 in damages for the appreciation in the value of lot 6, did not conform to the submission. We are not persuaded.

In reviewing a claim that the award does not conform to the submission, “the reviewing court conducts in effect, de novo judicial review. . . . Our inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred. With respect to the latter, we have explained that, as long as the arbitrator’s remedies were consistent with the agreement they were within the scope of the submission. ... [A] claim that the award does not conform to the submission is predicated on the arbitrators’ absolute lack of authority to decide an issue or to grant certain relief.” (Citations omitted; internal quotation marks omitted.) Cianbro Corp. v. National Eastern Corp., 102 Conn. App. 61, 66-67, 924 A.2d 160 (2007). “In making this determination, the court may not engage in fact-finding by providing an independent interpretation of the contract, but simply is charged with determining if the arbitrators have ignored their obligation to interpret and to apply the contract as written.” Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 86. Last, we note that “the burden rests on the party challenging the award to produce evidence sufficient to show that it does not conform to the submission.” (Internal quotation marks omitted.) Id., 89.

Specifically, the Zelvins argue that the $80,000 award did not conform to the submission because JEM Builders never alleged a claim for damages due to the appreciation in value of lot 6. In support of their claim, the Zelvins rely on Waterbury Construction Co. v. Board of Education, 189 Conn. 560, 457 A.2d 310 (1983), and Local 63, Textile Workers Union v. Cheney Bros., 141 Conn. 606, 109 A.2d 240 (1954), cert. denied, 348 U.S. 959, 75 S. Ct. 449, 99 L. Ed. 748 (1955). Those cases, however, are distinguishable from the present case. The cases cited by the Zelvins involved situations in which the parties, in accordance with arbitration clauses in their contracts, had submitted their disputes to arbitration and had set forth very detailed and specific issues for resolution in their respective claims and counterclaims. See Waterbury Construction Co. v. Board of Education, supra, 561; Local 63, Textile Workers Union v. Cheney Bros., supra, 609-11. In the awards, the arbitrators addressed, inter alia, certain issues that had not been presented to them in the detailed statements of the parties’ claims. Waterbury Construction Co. v. Board of Education, supra, 563; Local 63, Textile Workers Union v. Cheney Bros., supra, 611-12, 616. Our Supreme Court therefore concluded that the arbitrators, with respect to those portions of the awards, had gone beyond the submissions in deciding issues not presented to them and had exceeded their authority. Waterbury Construction Co. v. Board of Education, supra, 563; Local 63, Textile Workers Union v. Cheney Bros., supra, 616.

We conclude that the cases cited by the Zelvins are not applicable to our determination of whether the award in the present case failed to conform to the submission. Here, neither JEM Builders nor the Zelvins’ alleged their claims or requested relief in their respective demands and counterclaims with the degree of specificity found in Waterbury Construction Co. and in Local 63, Textile Workers Union. Rather, both parties submitted to the arbitration panel the general issue of a contractual dispute, relating to the purchase and sale of lot 6. Both parties requested any relief that the panel deemed necessary, and, JEM Builders also sought, inter alia, money damages in its revised demand. We therefore are not persuaded that the arbitrators exceeded their authority in awarding $80,000 in damages.

It is well established that “a party cannot object to an award which accomplishes precisely what the arbitrators were authorized to do merely because that party dislikes the results.” (Internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 258 Conn. 101, 110, 779 A.2d 737 (2001). Accordingly, the arbitrators, who had authority pursuant to the arbitration clause to decide “any controversy or claim arising from or relating to [the purchase and sale contract] or the breach thereof,” resolved the contractual dispute and fashioned a remedy that they deemed appropriate—precisely what JEM Builders and the Zelvins had submitted to the arbitration panel and had alleged in their demands and counterclaim. See 1 M. Domke, Commercial Arbitration (3d Ed. 2003) § 39:6, p. 39-13 (“[t]he parameters of the exceeded powers inquiry are defined by the submission of issues to the arbitrator and the arbitrator’s authority as set forth in the arbitration agreement”).

It, therefore, cannot be said that the relief granted to JEM Builders, namely, damages in the amount of $80,000, necessarily falls outside of the submission. The arbitration clause did not prohibit the arbitrators from awarding monetary damages in their resolution of disputes pertaining to the purchase and sale contract. More specifically, the arbitration clause was devoid of any limitations on the authority of the arbitrators to award damages due to the appreciation in the value of lot 6. We conclude that the remedy of $80,000 in damages was not inconsistent with the parties’ agreement to arbitrate. See Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 90-91.

Ill

The Zelvins next claim that the court improperly failed to conclude that the arbitrators’ award of damages for the appreciation in value of lot 6 was in manifest disregard of the law. Specifically, the Zelvins assert that the arbitration panel manifestly disregarded the law in awarding damages that JEM Builders had failed to plead specifically in its demands. We disagree.

“Our courts have held that claims of manifest disregard of the law fall within the statutory proscription of § 52-418 (a) (4). [A]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418 (a) (4) because the arbitrator has exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. . . . [T]he manifest disregard of the law ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator’s extraordinary lack of fidelity to established legal principles.” (Internal quotation marks omitted.) Lathuras v. Shoreline Dental Care, LLC, 65 Conn. App. 509, 513, 783 A.2d 83, cert. denied, 258 Conn. 936, 785 A.2d 231 (2001).

“Under this highly deferential standard, the defendant has the burden of proving three elements, all of which must be satisfied in order for a court to vacate an arbitration award on the ground that the arbitration panel manifestly disregarded the law: (1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable.” (Internal quotation marks omitted.) Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 102; Garrity v. McCaskey, 223 Conn. 1, 9, 612 A.2d 742 (1992). “[A] necessary predicate to a claim that the arbitrators manifestly disregarded the law is that the arbitrators generally were vested with the authority to decide the issue or to grant the relief but ignored clearly applicable law in making that determination.” Harty v. Cantor Fitzgerald & Co., supra, 88.

We conclude that the Zelvins have failed to satisfy their heavy burden of demonstrating that the arbitrators manifestly disregarded the law in awarding JEM Builders damages in the amount of $80,000. As we stated previously, it cannot be said that the arbitrators acted improperly in awarding damages in the amount of $80,000 when both parties requested that the arbitrators award any relief that they deemed necessary. Further, it is not disputed that JEM Builders requested money damages in its revised demand. Although the request for money damages did not refer specifically to the appreciation in value of the lot, the Zelvins have failed to provide any authority to support their contention that such specificity is required in a demand for arbitration. Thus, the law allegedly ignored by the arbitrators cannot be considered “well defined, explicit, and clearly applicable.” (Internal quotation marks omitted.) Id., 102.

The judgments are affirmed.

In this opinion the other judges concurred.

       The real estate industry rules of the American Arbitration Association provide: “Arbitration under an arbitration provision in a contract shall be initiated in the following manner:
      “a. The initiating party (hereinunder claimant) shall, within the time period, if any, specified in the contracts), give written notice to the other party (hereinafter respondent) of its intention to arbitrate (demand), which notice shall contain a statement setting forth the nature of the dispute, the amount involved, if any, the remedy sought, and the hearing locale requested, and
      “b. shall file at any regional office of the AAA three copies of the notice and three copies of the arbitration provision of the contract, together with the appropriate filing fee as provided in the schedule.
      “The AAA shall give notice of such filing to the respondent or respondents. A respondent may file an answering statement in duplicate with the AAA within ten days after notice from the AAA, in which event the respondent shall at the same time send a copy of the answering statement to the claimant. If a counterclaim is asserted, it shall contain a statement setting forth the nature of the counterclaim, the amount involved, if any, and the remedy sought. If a counterclaim is made, the appropriate fee provided in the schedule shall be forwarded to the AAA with the answering statement. If no answering statement is filed within the stated time, it will be treated as a denial of the claim. Failure to file an answering statement shall not operate to delay the arbitration. . . .” American Arbitration Association, Real Estate Industry Arbitration Rules (2003 Ed.).

       In his argument to the trial court, the Zelvins’ attorney indicated that he could not dispute the arbitrators’ finding that the Zelvins had acted in bad faith in their performance of the contract. Instead, he attacked the damages awarded for the appreciation in the value of lot 6.

       General Statutes § 52-418 provides In relevantpart: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       General Statutes § 52-419 provides in relevant part: “(a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated, or, when the court is not in session, any judge thereof, shall malee an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.”

       General Statutes § 52-417 provides: “At any time within one year after an award has been rendered and the parties to the arbitration notified thereof, any party to the arbitration may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, to any judge thereof, for an order confirming the award. The court or judge shall grant such an order confirming the award unless the award is vacated, modified or corrected as prescribed in sections 52-418 and 52-419.”

       To support their claims that the submission was restricted and that the award failed to conform with the submission, the Zelvins suggested to this court at oral argument that the liquidated damages clause of the contract, which notably the arbitrators had found to be unenforceable, placed limitations on what relief could be granted in the event of a breach or default. The Zelvins, however, failed to assert this argument in their brief to this court. “We generally do not consider claims raised for the first time at oral argument.” Harty v. Cantor Fitzgerald & Co., supra, 275 Conn. 84 n.5.

       In their application to vacate the award or to modify the award, the Zelvins alleged, inter alia, that the arbitrators exceeded their authority in rendering an award that failed to conform to the submission, referring to General Statutes §§ 52-418 (a) (4) and 52-419 (a) (2).

       To support their claim that the arbitrators exceeded their authority, the Zelvins also briefly refer to statements made by JEM Builders during the arbitration proceedings and in a deposition, in which JEM Builders allegedly stated that it was not seeking money damages. Transcripts of the arbitration hearings and depositions have not been submitted in their entirety as part of the record on appeal. We cannot determine, without speculation, whether there is any merit to the Zelvins’ argument. As a result of the inadequate record, we decline to review this claim. See Cianbro Corp. v. National Eastern Corp., supra, 102 Conn. App. 71.

       In their appellate brief, the Zelvins also raise a claim of arbitral misconduct for the first time. See General Statutes § 52-418 (a) (3). Because the Zelvins failed to raise this claim before the trial court, we decline to afford it review. See Mendes v. Automobile Ins. Co. of Hartford, 212 Conn. 652, 661 n.6, 563 A.2d 695 (1989).

       In its appellate brief, JEM Builders contends that it submitted evidence on the appreciation in value of the lot on the second day of the four day arbitration proceeding, which spanned a period of time from October, 2003, to January, 2004. This assertion, if true, belies the Zelvins’ contention made in their brief that they were unable to address and defend against the issue of damages relating to the change in value of the lot. We, however, cannot address this argument due to the inadequate record. See footnote 8.