author: HARPER, J.

text:
    HARVEY WEBER v. PASCARELLA MASON STREET, LLC
    (AC 27794)
    Schaller, Harper and Peters, Js.
    Argued May 24
    officially released September 11, 2007

      Daniel W. Moger, Jr., for the appellant (defendant).

      Brenden P. Ley don, for the appellee (plaintiff).
   Opinion

HARPER, J.

The defendant, Pascarella Mason Street, LLC, appeals from the judgment of the trial court denying its application to discharge or reduce a mechanic’s lien placed on its property by the plaintiff, Harvey Weber. The defendant claims that the court improperly concluded that (1) all of the services for which the plaintiff filed the lien were lienable and (2) the amount of the lien was not excessive. We affirm the judgment of the trial court.

It is undisputed that, at the time of the events underlying this appeal, the plaintiff was in the business of providing architectural services to clients under the business name of Weber & Associates. The defendant owned a building in Greenwich and rented office and residential space in the building to tenants. The court found that, on or about May 7, 2004, the parties entered into an oral contract for the plaintiff to render his services, concerning improvements to the Greenwich building, to the defendant for a fee. On June 22, 2004, the parties executed a written contract for the performance of such services. From May 7 to approximately August 27,2004, the plaintiff performed various services for the defendant. These services included, but were not limited to, the preparation of varied floor plans, demolition plans, drawings of rentable spaces for prospective tenants in the building and computer simulated models of the building. The defendant used the plaintiffs work product for such purposes as obtaining permits and marketing its building to prospective tenants.

Periodically, the plaintiff submitted invoices to the defendant for his services. The defendant made payment for only some of these charges, leaving an outstanding balance of $11,810.50. On October 13, 2004, the plaintiff caused a certificate of mechanic’s lien against the Greenwich building to be filed on the municipal land records of Greenwich, claiming the sum of $11,810.50, plus interest, due from the defendant.

In April, 2005, the plaintiff brought an action in connection with the debt, seeking, among other relief, a strict foreclosure of the hen. In June, 2005, the defendant filed a reply (denying the existence of the alleged debt), various special defenses (in part challenging the validity of the hen, the existence of any debt and the lienabihty of the plaintiffs services) and a counterclaim in which it alleged, inter aha, that the plaintiffs “dismal performance” under the contract caused it damages. The plaintiff later denied each adverse allegation set forth in the defendant’s responsive pleadings and counterclaim. In August, 2005, the defendant, in accordance with General Statutes § 49-35a, filed an application to discharge or reduce the hen. Generally, the defendant alleged that “there is not probable cause to sustain the validity of such hen.”

On August 8,2005, the court, Black, J., held an eviden-tiary hearing on the defendant’s application. On December 30,2005, the defendant, in accordance with Practice Book § 11-19 (b), filed a motion to reassign the matter to another judicial authority. The court, Rogers, J., granted the motion for reassignment, and the court, Jennings, J., thereafter considered the matter on the basis of the transcript of the proceeding held on August 8, 2005, the evidence presented at the August 8, 2005 hearing and the memoranda of law submitted by the parties. On June 15, 2006, the court issued a memorandum of decision denying the defendant’s application to discharge or reduce the lien. The defendant, in accordance with General Statutes § 49-35c, thereafter filed the present appeal.

I

At trial, the defendant claimed that many of the services provided by the plaintiff were not lienable because they were marketing tools and played no role, either actual or otherwise, in the physical improvement of its property. The court concluded that the services provided by the plaintiff “were part of the improvement or site development of the defendant’s property,” that “the plaintiffs services laid the groundwork for physical enhancement [of the defendant’s property]” or that the services “played an essential part in the scheme of physical improvement of the defendant’s property . . . .” The court concluded that the plaintiff was entitled to relief under our mechanic’s hen statute, General Statutes § 49-33, and declined to grant the application to discharge or to reduce the hen on this ground. The defendant challenges the court’s conclusion on appeal. The defendant’s challenge is without merit.

The defendant does not challenge the court’s factual findings concerning the services that the plaintiff provided or the extent to which the defendant utilized these services. The court found that, pursuant to an agreement between the parties, the plaintiff provided design services and prepared “as built floor plans, preliminary new floor layout plans, detailed demolition plans and a reflected ceiling plan.” (Internal quotation marks omitted.) The court further found that the plaintiff had prepared “drawings of individual rentable spaces for prospective tenants and . . . for marketing purposes, a three dimensional, computerized video model of what the completed building would look like to a person driving past the building . . . .” Additionally, the court stated: “The plans and drawings and the computer model prepared by the plaintiff were utilized by the defendant in the application for building permit submitted to the town of Greenwich for demolition of parts of the building or for purposes of marketing the property.”

The issue is whether the legislature intended to extend benefits under our mechanic’s lien statute to an architect who provided these types of services to a property owner. “The interpretation of the language of § 49-33 is an issue of law. . . . Questions of law are subject to de novo review.” (Citation omitted; internal quotation marks omitted.) Ceci Bros., Inc. v. Five Twenty-One Corp., 51 Conn. App. 773, 776, 724 A.2d 541 (1999).

General Statutes § 49-33 (a) provides: “If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision or any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.”

This statute has been the subject of considerable interpretation by our Supreme Court. Its interpretation of the statute guides our analysis. In Nickel Mine Brook Associates v. Joseph E. Sakai, P.C., 217 Conn. 361, 585 A.2d 1210 (1991), our Supreme Court held that an attorney who provided assistance in zoning and other matters related to real estate was not entitled to file a mechanic’s lien. The court discussed the effect of a 1974 amendment to § 49-33 (a); see Public Acts 1974, No., 74-310; which expanded the scope of the statute to services rendered “in the improvement of any lot [or] in the site development or subdivision of any plot of land.” Nickel Mine Brook Associates v. Joseph E. Sakal, P. C., supra, 366. The court noted that this amendment, in part, eliminated the requirement that lienable services “be incorporated or utilized in a building or appurtenance”; id., 365; and manifested a legislative intent to expand the scope of coverage of the mechanic’s lien statute. Id., 365-66.

The court in Nickel Mine Brook Associates noted the “distinct difference” that existed between legal services and the types of services that previously had been held to fall within the scope of § 49-33 (a). Id., 368. Specifically, the court observed that a “mechanic” has been defined as “a skilled worker who brings about a result by the use of tools, machines or equipment.” Id. The court noted that such activities as road construction, grading of a building site, installation of permanent fixtures, preparation of architectural plans actually used in the construction of a building and the construction of a well had been held to be lienable services. Id.

The court in Nickel Mine Brook Associates also noted that references in the statute’s legislative history “to surveyors and engineers who draft subdivision plans provide some evidence of the types of services that might be embraced” by the statute. Id., 369. The court noted that “[interpreting the 1974 amendment as having expanded the scope of § 49-33 (a) to include legal services could lead to the filing of mechanic’s liens by a wide range of parties who provide services to land developers, such as insurance agents, real estate agents who are instrumental in the purchase of land and advise as to its potential uses, and financial advisers such as bankers and accountants.” Id., 371. The court, mindful of its obligation to interpret the statute broadly in light of its remedial purpose, nevertheless concluded that “we refuse to adopt an interpretation of § 49-33 (a) that could lead to such a fundamental change in our mechanic’s lien statute absent clear evidence that the legislature intended such a far reaching result.” Id.

Later, in Thompson & Peck, Inc. v. Division Drywall, Inc., 241 Conn. 370, 374, 696 A.2d 326 (1997), our Supreme Court held that “the legislature did not intend to extend the benefits of the mechanic’s lien statute to an insurance agent attempting to collect unpaid premiums from an insured subcontractor.” The court resolved the issue of whether, or to what degree, services must be associated with physical enhancement of property. The court, adopting the so-called physical enhancement test, held that “the legislature did not intend to include within § 49-33 those persons or businesses whose services have not enhanced the property in some physical manner, laid the groundwork for the physical enhancement of the property, or whose work was not an essential part in the scheme of physical improvement.” Id., 374. The court thus concluded that, “like legal services, § 49-33 does not extend to services not directly associated with the physical construction or improvement of the land.” Id., 379.

In New England Savings Bank v. Meadow Lakes Realty Co., 243 Conn. 601, 614, 706 A.2d 465 (1998), however, our Supreme Corut held that surveying and engineering services concerning site development and the subdivision of a plot of land were lienable. The lienor “prepared the site testing, layout and road designs, and presented those plans to the town for preliminary project approval.” Id. The court reiterated its holding in Thompson & Peck, Inc., that “§ 49-33 does not extend to services not directly associated with the physical construction or improvement of the land.” (Emphasis in original.) Id. The court then reasoned that the surveying and engineering work at issue was sufficiently associated with the physical construction or improvement of the land, noting that the services provided were integral to receiving town approval of the project. Id. Further, the court stated that the services “laid the groundwork for the physical enhancement of the subdivision, which became an essential part of the scheme of physical improvement of the subdivision project.” Id., 615.

We conclude that the architectural services provided by the plaintiff in the present case satisfy the physical enhancement test, thus evidencing a direct association with the physical construction or improvement of the defendant’s real property. The physical nature of architectural services, including those at issue, is undeniable: “The plans and specifications practically construct the building up to the point where it can be apprehended by others. Without them or their equivalent the building could not be constructed at all: the contractor would have no basis for his bid, the materialmen would not know what materials to furnish, and the workmen would not know what manual labor to perform.” Mar-chetti v. Sleeper, 100 Conn. 339, 342, 123 A. 845 (1924). Similar to the surveying and engineering services at issue in New England Savings Bank, the services at issue laid the groundwork for the physical enhancement to real property. The plaintiffs plans and drawings were, in fact, used by the defendant to secure necessary permits from the town to enable such improvement efforts to occur lawfully. The services at issue, which played an essential role in the scheme of physical improvement of the defendant’s real property, are thus readily distinguishable from the legal services at issue in Nickel Mine Brook Associates and the insurance services at issue in Thompson & Peck, Inc. For these reasons, and mindful of our obligation to construe the mechanic’s lien statute liberally in light of its remedial purpose, we agree with the trial court’s legal conclusion that the services at issue were lienable.

II

The defendant next asserts that the court improperly rejected its claim that the plaintiff improperly calculated a credit provision of the parties’ agreement under which certain services were to be provided without charge by the plaintiff and, thus, that the amount of the lien was excessive. We disagree.

The court found that, on May 7, 2004, the defendant orally accepted a written proposal prepared by the plaintiff and dated April 23, 2004. The court found that the defendant later signed a written agreement that was dated June 22, 2004. This written agreement, prepared by the plaintiff, provided in relevant part: “I will provide a credit on your first monthly bill with [twenty] hours of my staff time (including mine) at no cost to you.”

The court further found that “[t]he plaintiff allowed a credit or discount in the amount of $2505 on the first monthly invoice submitted to the defendant for twenty hours of services performed [which were] calculated based on the agreed hourly rates of himself and his staff.” (Citation omitted.) The court noted the plaintiffs testimony at trial that “about thirteen or fourteen hours of the twenty hour credit were performed in May, 2004, prior to the [signing] of the written agreement on June 22, 2004.” The court expressly relied on the plaintiffs testimony that he began working for the defendant on or about May 7, 2004, after the defendant orally accepted the plaintiffs written proposal.

The defendant argued that by including work performed prior to the June 22, 2004 agreement in his calculation of the twenty hour credit on the first monthly invoice, the plaintiff had impermissibly “converted his activities prospecting for work into work done pursuant to the agreement [of June 22, 2004].” The court refuted this argument, finding as follows: “[T]he hours put in [by the plaintiff] prior to June 22, 2004, were expended in preparing preliminary drawings and . . . were all hours put in by [the plaintiff] or his staff in carrying out their obligations under the contract, which had been spelled out prior to June 22, 2004, in the written proposal and cover letter the plaintiff had sent to the defendant on or about April 23, 2004 . . . which was accepted verbally on May 7. . . . There is no requirement in the written contract that the services had to be performed after the contract was signed. Even disregarding the court’s finding that those services were performed pursuant to an oral agreement, it was the plaintiffs prerogative to start working under the contract prior to the actual signing, especially since the [wife of one of the defendant’s agents] and [a] representative [of the defendant] had started sending design ideas to the plaintiff for his review and consideration prior to the signing of the written contract.” (Citations omitted.)

The gist of the defendant’s claim is that the court improperly considered the plaintiff’s testimony that he was working for the defendant prior to June 22, 2004, and that the hours so spent were properly included in the twenty hour credit noted in the written contract of June 22, 2004. The defendant claimed before the trial court that testimony from the plaintiff in this regard was inadmissible because it ran afoul of the parol evidence rule. In its brief, the defendant claims that “[the plaintiff’s] understanding and the court’s finding of an oral contract dated May 7, 2004, both run afoul of the parol evidence rule.” (Internal quotation marks omitted.)

The court rejected the parol evidence claim. It reasoned that it had not used the plaintiffs testimony to vary or to contradict the terms of the parties’ written agreement but had considered and found contractually acceptable the method by which the plaintiff calculated the credit provision of that agreement. In this regard, the court noted that the agreement was silent as to whether the services the plaintiff was to include in the credit were to be performed by the plaintiff exclusively before or after the signing of the agreement.

“Ordinarily, [o]n appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference. . . . Rulings on such matters will be disturbed only upon a showing of clear abuse of discretion. . . . Because the parol evidence rule is not an exclusionary rule of evidence, however, but a rule of substantive contract law . . . the [defendant’s] claim involves a question of law to which we afford plenary review. . . .

“The parol evidence rule is premised upon the idea that when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversations, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme. . . .

“The parol evidence rule does not of itself, therefore, forbid the presentation of parol evidence, that is, evidence outside the four comers of the contract concerning matters governed by an integrated contract, but forbids only the use of such evidence to vary or contradict the terms of such a contract. Parol evidence offered solely to vary or contradict the written terms of an integrated contract is, therefore, legally irrelevant. When offered for that purpose, it is inadmissible not because it is parol evidence, but because it is irrelevant. By implication, such evidence may still be admissible if relevant (1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in a writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud. . . . These recognized exceptions are, of course, only examples of situations where the evidence (1) does not vary or contradict the contract’s terms, or (2) may be considered because the contract has been shown not to be integrated; or (3) tends to show that the contract should be defeated or altered on the equitable ground that relief can be had against any deed or contract in writing founded in mistake or fraud.” (Citation omitted; internal quotation marks omitted.) Alston Power, Inc. v. Balcke-Durr, Inc., 269 Conn. 599, 609-10, 849 A.2d 804 (2004).

The provision at issue states that the plaintiff would provide to the defendant a credit in its first monthly bill for twenty hours of work performed, either by the plaintiff personally or by his staff. The provision is unambiguous in terms of the number of hours to which it applied, when the plaintiff was to apply the credit and the types of services to which it applied. Yet, it cannot be disputed that the provision, or the written agreement as a whole, is ambiguous in that it did not provide guidance as to how the credit should be calculated where, as here, the plaintiff performed services for the defendant prior to and after the signing of the written agreement. No other provision of the agreement sheds light on the issue; thus, the agreement is “unclear as to its proper application in the circumstances presented.” Landry v. Spitz, 102 Conn. App. 34, 58, 925 A.2d 334 (2007).

The court properly considered extrinsic evidence, including the plaintiffs testimony concerning his understanding of the provision and his calculation of the credit, to aid in its interpretation of this provision. On the basis of that evidence, the court determined that the plaintiff properly included services that he had provided prior to June 22, 2004, in the credit that he applied to the first monthly bill. The court did not utilize this evidence to vary or contradict any of the provisions of the parties’ agreement but merely to interpret how those explicit provisions should be applied under the circumstances presented. Accordingly, we conclude that the court’s consideration of this evidence did not run afoul of the parol evidence rule.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also claimed that the court improperly concluded that the lien satisfied the “subscribed and sworn to” provision of General Statutes § 49-34 (1) (C). The defendant withdrew this claim during oral argument before this court.

       The defendant suggests that, by deciding its motion on the basis of the transcript of the proceeding held on August 8, 2005, as well as the evidence presented at that hearing, the court improperly resolved contested factual issues on the basis of a “cold record” rather than on the basis of its own observation of testifying witnesses. Relying on Gorelick v. Montanaro, 94 Conn. App. 14, 20 n.14, 891 A.2d 41 (2006), the defendant claims that the court’s conduct in this regard was “fundamentally unfair” and urges us to disregard the court’s factual determinations.
      As a preliminary matter, to the extent that the defendant has raised this as an issue in the appeal, the record is not adequate to afford it review. The defendant represents that, at trial, both parties stipulated that “a reassigned judge could decide the application on the transcript.” The defendant further represents that, before Judge Jennings rendered his decision, it cautioned the court “about making any decision turning on the credibility of witnesses.” Judge Jennings, in a footnote in his memorandum of decision, noted that, on February 17, 2006, and “in open court on June 15, 2006,” the parties stipulated that the matter could be “reassigned to the undersigned to be taken on the papers.” (Internal quotation marks omitted.) The court thereafter dismissed any objection by the defendant to its having resolved the matter in accordance with the parties’ stipulation. Certainly, in reviewing this issue, it would be incumbent on this court to examine the language of any stipulation made by the parties or matters related thereto. The defendant, however, has not provided this court with any transcript of proceedings in which such a stipulation was made or any other record of a stipulation. The only transcript filed by the defendant was that of proceedings on August 8, 2005. Thus, the defendant has failed in its responsibility to provide this court with a record adequate for review. See DeMatteo v. New Haven, 90 Conn. App. 305, 311-12,876 A.2d 1246, cert. denied, 275 Conn. 931, 883 A.2d 1242 (2005).
      More importantly, the defendant has not raised or identified this claim in accordance with Practice Book § 67-4 (a), in that it is not listed among the principal issues raised in the appeal. Additionally, the claim is not briefed in accordance with Practice Book § 67-4 (d) in that a proper analysis of the claim does not appear under an appropriate and distinct heading within the defendant’s brief. Instead, the defendant discusses this issue in a section of its brief entitled “NATURE OF PROCEEDINGS AND FACTS OF CASE.” The rules of appellate procedure are not abstract or technical goals; compliance with these rules is essential to the fair resolution of issues raised on appeal. A briefing strategy like that employed by the defendant is fundamentally unfair to the plaintiff and to this court. For these reasons, we decline to treat this issue as a properly asserted claim on appeal and decline to afford it review. See Grimm v. Grimm, 276 Conn. 377, 391 n.14, 886 A.2d 391 (2005) (court declines to review issue that “is buried in the statement of facts and is not a distinctly raised separate point on appeal”), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006); Northeast Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 50-51, 861 A.2d 473 (2004) (noncompliance with Practice Book § 67-4 deemed basis on which to deny appellate review of claim); Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 300 n.9, 852 A.2d 703 (2004) (same); Ramsay v. Camrac, Inc., 96 Conn. App. 190, 198 n.8, 899 A.2d 727 (court declines to review claim “buried” in discussion of related issue and not “distinctly raised as a separate point on appeal”), cert. denied, 280 Conn. 910, 908 A.2d 538 (2006).

       See, e.g., F. B. Mattson Co. v. Tarte, 247 Conn. 234, 238, 719 A.2d 1158 (1998), and cases cited therein.

       The defendant also claims that, if some of the services for which the lien was filed are not lienable, the court should have made a “proper allocation” for such services. We conclude that the court properly determined that all of the services at issue were lienable and, thus, need not address this aspect of the defendant’s claim.

       The defendant also argues, in part, that the court’s findings are improper because “[t]he evidence showed [that] the operative contract was a written agreement dated June 22, 2004. ... It followed a proposal submitted by [the plaintiff] dated April 23, 2004 . . . which was not accepted . . . .” (Citations omitted.) The defendant does not challenge the court’s factual findings, or justify this factual argument, in any greater specificity. To the extent that the defendant attempts to challenge the accuracy of the court’s factual findings, we reject such challenge because the court’s findings are supported by the evidence in the record. See, e.g., McCullough v. Waterside Associates, 102 Conn. App. 23, 27-28, 925 A.2d 352 (2007) (“where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence, or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous” [internal quotation marks omitted]).

       The contract does not contain an integration clause.


source: Caselaw Access Project

license: Public Domain

text:
    DARIN INGELS ET AL. v. YOLANDA SALDANA ET AL.
    (AC 27636)
    Bishop, DiPentima and Harper, Js.

      Argued May 30
    officially released September 11, 2007

      Edward Kanowitz, for the appellant (defendant Murray Real Estate Services, Inc.).

      Shelley R. Sadin, with whom, on the brief, was Patrick R. Smith, for the appellees (plaintiffs).
   Opinion

HARPER, J.

The dispositive issue in this appeal is whether the trial court properly found the defendant Murray Real Estate Services, Inc., to be liable for the conduct of its president in connection with a lease to which the defendant was a third party. After trial, the court rendered judgment in favor of the plaintiffs, Darin Ingels and Michelle Ingels, on two counts of their four count amended complaint. On appeal, the defendant challenges the judgment on both of those counts, as well as the court’s award of attorney’s fees to the plaintiffs. The defendant also claims that the court’s issuance of an order of posttrial discovery and sanctions was improper. We affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to our discussion. In the fall of 2000, the plaintiffs, who were contemplating relocating to Connecticut, were shown a series of apartments by the defendant’s president, Barbara Murray. Murray provided the plaintiffs with a business card, which identified her as the president of the defendant. The plaintiffs thereafter agreed to lease one such apartment from Yolanda Saldana. Saldana and the plaintiffs entered into a one year written lease beginning December 1, 2002. The lease listed Saldana’s “Address for Notice” as “c/o Murray R. E. Services, Inc., Barbara Murray” at a Westport post office box. In accordance with the terms of the lease, the plaintiffs provided a $3000 security deposit, which they delivered to Murray. Murray placed the security deposit in a bank account under the name “Barbara S. Murray, Escrow Agent for Darin J. Ingels, Tenant” (escrow account). The address listed for.the escrow account was the same post office box listed in the lease.

The plaintiffs remained in possession of the apartment for the duration of the lease, as well as two subsequent one year leases. Throughout the course of the plaintiffs’ tenancy, the plaintiffs never met with Saldana; all dealings between the plaintiffs and Saldana were made through Murray and the defendant. Notably, the plaintiffs mailed rent checks, payable to Saldana, to Murray in care of the defendant.

During the fall of 2003, the plaintiffs gave notice to Saldana that they would not be renewing their lease. Soon thereafter, Murray conducted a walk through inspection of the apartment. Murray did not make any claims for damages to be debited against the plaintiffs’ security deposit during this walk through or at any time before the plaintiffs vacated the premises on December 5, 2003.

On December 8,2003, the escrow account was closed, and the entire security deposit, plus interest, was delivered to Saldana. On December 19, 2003, Murray prepared a document entitled “Account for Security Deposit” on the defendant’s letterhead. The document explained that damages to the apartment exceeded the amount of the security deposit and that the plaintiffs therefore owed Saldana a balance of $734.45. The damages were largely overstated by the defendant, and included debits of $2500 for a single repair of localized water damage to a subjacent ceiling and $1154 for replacing carpets that had been damaged prior to the plaintiffs’ tenancy.

The plaintiffs thereafter filed suit against Saldana and the defendant. The plaintiffs’ operative amended complaint contained four counts, only two of which are relevant to this appeal. The first count was directed toward the defendant and Saldana and sought the return of the allegedly wrongfully withheld security deposit. The third count alleged that the defendant’s actions violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. After atrial to the court, judgment was rendered in favor of the plaintiffs on counts one and three and in favor of Sal-dana and the defendant on count two. The court subsequently granted the plaintiffs’ application for attorney’s fees in connection with the CUTPA claim.

I

The defendant first claims that the court improperly rendered judgment against it under count one, which the defendant asserts, set forth a breach of contract claim. Although the defendant’s brief is not a model of clarity, the defendant essentially argues that, as a matter of law, it cannot be held liable under this count because it was not a party to the contract between the plaintiffs and Saldana, the contract that was allegedly breached. We are not persuaded.

Contrary to the defendant’s characterization of the judgment against it, our review of the court’s memorandum of decision plainly reveals that the court rendered judgment against the defendant under count one for breach of fiduciary duty, not breach of contract. The court held that the defendant, as an escrow agent acting on Saldana’s behalf, owed the plaintiffs a fiduciary duty. The court further found that, by overstating damages to the apartment and giving the entire security deposit at issue to Saldana, the defendant breached that fiduciary duty, thereby causing the damages awarded. We decline to address the issue briefed because it is irrelevant to the judgment from which the defendant appeals. See Housing Authority v. Olesen, 31 Conn. App. 359, 361, 624 A.2d 920 (1993) (court declines to address defendant’s claim because it is irrelevant to disposition of appeal).

II

The defendant next argues that it cannot be held liable under counts one or three because Murray was not acting as its agent in her interactions with the plaintiffs. Specifically, the defendant claims that Murray acted in her behalf, rather than in her official capacity as its president, when interacting with the plaintiffs. Because we conclude that the defendant has raised this argument for the first time on appeal, we decline to afford it review.

The following additional facts are relevant to our discussion of this issue. At trial, the defendant argued that it could not be held liable for actions taken by Murray on behalf of Saldana. In advancing this argument, the defendant conceded repeatedly that Murray was, at all relevant times, acting on its behalf. The defendant’s argument also reflects its assumption that Murray was at all relevant times acting as an agent of Saldana. Presumably in reliance on those representations plainly evident from the defendant’s argument and theory of defense, the court noted in its memorandum of decision that the defendant acted at all relevant times as Saldana’s agent. At no time after the trial did the defendant attempt to retract its prior statements or ask the court to determine in the first instance whether an agency relationship existed between it and Murray or between Murray and Saldana.

“[This] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .” Practice Book § 60-5. Here, the court never considered whether the requisite agency relationship existed because it appeared to be an undisputed fact at trial. Having led the court to believe that it was not contesting the issue of agency, the defendant may not now claim on appeal that the court improperly found that it was bound by the actions taken by Murray on behalf of Saldana, the principal. To allow such a claim to be raised on appeal “would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Monette v. Monette, 102 Conn. App. 1, 18 n.3, 924 A.2d 894 (2007) (Schaller, J., concurring); see also Ahern v. Fuss & O’Neill, Inc., 78 Conn. App. 202, 214, 826 A.2d 1224 (“a party cannot present a case to the trial court on one theory and then seek appellate relief on a different one”), cert. denied, 266 Conn. 907, 832 A.2d 64 (2003). We therefore decline to review this issue.

Ill

Finally, the defendant challenges the court’s orders of compliance with posttrial discovery and sanctions. Because we conclude that this order is not a final judgment from which an appeal may he, we dismiss this aspect of the appeal.

The following additional facts and procedural history are necessary to our disposition of this issue. Subsequent to the court’s award of attorney’s fees, the court granted an application for a postjudgment remedy, requiring the defendant’s disclosure of assets. The defendant responded by submitting an affidavit from Murray on September 13, 2006, in which she stated that the defendant had no assets “[a]t this time.” The plaintiffs then served the defendant’s president, Murray, and its secretary, Edward Kanowitz, with subpoenas to appear at a deposition. Neither Murray nor Kanowitz appeared at the deposition. On November 15, 2006, the plaintiffs filed a “motion to compel compliance with subpoena and sanctions.” On January 8, 2007, the court granted the motion and ordered the defendant to comply with the subpoenas. The court further issued an order sanctioning the defendant in the amount of $164.57. On January 11, 2007, the defendant, prior to appearing at the deposition or being held in contempt of the court’s order, filed a supplemental appeal, challenging the compliance and sanction orders. This court then alerted the parties by letter dated May 18, 2007, to “be prepared to address at oral argument any questions the court may have as to why [the defendant’s supplemental] appeal should not be dismissed for lack of a final judgment on the ground that ... at the time the [supplemental] appeal was filed, the defendant had not been held in contempt . . . .”

We need not now discuss the merits of the claims raised by the defendant, as we conclude that the court has not rendered a final judgment on the matters challenged on appeal. General Statutes § 52-263 limits appellate jurisdiction to appeals from final judgments. Harvey v. Wilcox, 67 Conn. App. 1, 5, 786 A.2d 533 (2001). “An order issued upon a motion for discovery is ordinarily not appealable because it does not constitute a final judgment, at least in civil actions.” (Internal quotation marks omitted.) Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 255, 520 A.2d 605 (1987). Further, Presidential Capital Corp. v. Reale, 240 Conn. 623, 629, 692 A.2d 794 (1997), refutes the defendant’s contention at oral argument that there exists a material and relevant distinction between pretrial and posttrial discovery orders. In order to appeal from the court’s order of compliance and sanctions, the defendant would need to show that it has been held in contempt for noncompliance and then appeal from the resulting final judgment. See Green Rock Ridge, Inc. v. Kobernat, 250 Conn. 488, 498, 736 A.2d 851 (1999); Barbato v. J.& M. Corp., 194 Conn. 245, 249, 478 A.2d 1020 (1984). These events have not transpired.

The portion of the appeal related to the court’s order of compliance and order of sanctions is dismissed. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Murray Real Estate Services, Inc., and Yolanda Saldana were named as the defendants in this action. Saldana is not a party to this appeal. We therefore refer in this opinion to Murray Real Estate Services, Inc., as the defendant.

       Each subsequent lease also identified Saldana’s contact information as Murray, in care of the defendant.

       The other two counts were directed at both the defendant and Saldana and alleged ui\just enrichment in one count and, in another, that double damages were due for the wrongful withholding of the security deposit pursuant to General Statutes § 47a-21 (d) (2).

       The plaintiffs withdrew count four at the close of trial.

       The plaintiffs did not classify count one as a breach of contract claim and, at trial, the defendant acknowledged that count one “alleg[ed] the failure to return the security deposit.” The defendant does not claim that it lacked notice of the nature of the claim. We also note that, at trial, the defendant did not file a request to revise the complaint in accordance with Practice Book § 10-35.

       The defendant also maintains that the court improperly applied a per se rule that “[i]t is unlawful to ‘transfer money to the landlord before the time for proper notification [pursuant to General Statutes § 47a-21 (d)] has expired’ . . . This argument is not well founded, however, because the court’s memorandum of decision plainly reflects that the court based its judgment on the whole of the defendant’s conduct, which, the court concluded, amounted to a breach of the fiduciary duty owed to the plaintiffs.

       The defendant’s appeal challenges the court’s award of attorney’s fees for the same reasons as it challenges the court’s rendering of judgment on count three, which alleged violation of CUTPA. The defendant is thus not challenging the method of calculation of the award, but rather the underlying finding giving rise to the award.
      We have, of course, declined to review that underlying finding. As the defendant has presented no new arguments with respect to the court’s award of attorney’s fees, we likewise decline to consider this aspect of the defendant’s appeal.


author: PER CURIAM.

text:
    JOE BURGOS VEGA v. COMMISSIONER OF CORRECTION
    (AC 27079)
    Flynn, C. X, and Gruendel and Foti, Js.
    Argued May 22
    officially released September 11, 2007

      Annacarina Del Mastro, senior assistant public defender, for the appellant (petitioner).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Cornelius P. Kelly, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Joe Burgos Vega, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. He premises his appeal on the alleged ineffective assistance of trial counsel at his sentencing. We affirm the judgment of the habeas court.

The petitioner was charged and, following a juiy trial, convicted of two counts of assault in the first degree in violation of General Statutes § 53a-59 and one count of kidnapping in the second degree in violation of General Statutes § 53a-94. The trial court thereafter sentenced him to a total effective term of sixty years incarceration. The heinous facts underlying the petitioner’s conviction are set forth in State v. Vega, 259 Conn. 374, 378-80, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002), in which our Supreme Court affirmed the judgment of the trial court. On November 22, 2004, the petitioner filed an amended petition for a writ of habeas corpus that alleged ineffective assistance of trial counsel. By memorandum of decision filed August 1, 2005, the habeas court denied the petition for a writ of habeas corpus. The court subsequently granted the petitioner certification to appeal, and this appeal followed.

On appeal, the petitioner claims that he was denied effective assistance of counsel at his sentencing. In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States Supreme Court articulated a two part analysis for evaluating constitutional claims of ineffective assistance of counsel. “First, the [petitioner] must show that counsel’s performance was deficient. . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense.” Id., 687. A reviewing court need not “address both components of the inquiry if the [petitioner] makes an insufficient showing on one.” Id., 697; Johnson v. Commissioner of Correction, 218 Conn. 403, 428-29, 589 A.2d 1214 (1991) (reviewing court can find against petitioner on either prong of Strickland). Regarding the prejudice prong, “[i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 89 Conn. App. 850, 856, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A. 2d 672 (2005). We conclude that the petitioner has not met that burden in the present case.

The petitioner’s allegation of ineffective assistance centers on the assertion that his trial counsel did not present mitigating evidence at sentencing. Specifically, the petitioner refers to the psychiatric evaluation conducted subsequent to his incarceration by psychiatrist Charles Saldanah. Saldanah testified at the habeas trial that his diagnosis of the petitioner included alcohol dependency, depression and antisocial personality disorder characterized by behavior reflecting a “pattern of pervasive disregard for others.” Saldanah also testified that the petitioner was sexually assaulted as a child. Finally, Saldanah stated that the petitioner as a child was exposed to violence in his neighborhood and severe physical abuse in his home, although the petitioner’s mother and stepfather testified otherwise.

The petitioner argues that, had trial counsel presented that mitigating evidence at sentencing, the sentence would have been different. We disagree. As the habeas court stated in its memorandum of decision: “[F]ar from being evidence that was necessarily and foreseeably mitigating evidence . . . the psychiatric evaluation and testimony of . . . Saldanah as a whole is arguably more harmful than helpful to the petitioner. This is especially so if viewed from the perspective of a reasonable sentencing judge who would have had the opportunity to view the [victim’s] scars and disfigurement, as well as the photographs of the injuries, all evidence to which this court was not privy. A sentencing judge would have also evaluated the presentation, demeanor and credibility of all of the witnesses, including the . . . victim and the petitioner. Here, the victim testified that the petitioner had carved his name, ‘Joey,’ on her chest, sliced the nipple off her breast and then forced her to eat it. Medical doctors testified that the petitioner left a hole the size of a silver dollar where her right nipple used to be. Refusing her pleas to go to the hospital and thus still bleeding profusely, the petitioner took her to a hotel, forced her to smoke crack with him and then had sex with her just before the police arrived and arrested him. While in the transcript, the record of this evidence reveals a brutality and cruelty that defies description, it undoubtedly cannot compare to the effect on the sentencing court of experiencing live testimony from the victim and other witnesses. . . .

“[E]ven if such a psychiatric evaluation were produced, yielding the diagnoses of the petitioner’s alcohol dependency, depression and ‘antisocial personality disorder,’ such evidence could have reinforced a sentencing court’s discretionary determination that the maximum sentence was the correct one. . . . Saldanah noted that the petitioner’s conduct included his criminal activity, manifesting a violation of social norms, his pattern of endangering the safety of others and himself, deceitfulness, history of aggressive and irritable behavior and most disturbing from the point of sentencing, his lack of remorse and failure to take any responsibility whatsoever for the crime for which he was convicted. . . . Given that the conduct for which the petitioner was convicted strikes this court as being in the extreme of those spectrum of behaviors encompassed by a diagnosis of antisocial personality disorder. . . . Salda-nah’s opinion that one is rarely cured of this disorder is one that is likely to warrant and reinforce, rather than mitigate, a severe sentence.”

The petitioner has not demonstrated that, had his trial counsel presented the aforementioned evidence to the trial court, he would have received a lesser sentence. At sentencing, the trial court addressed the petitioner, stating: “What was just shocking to me was not just the brutality of the acts that were actually committed against the victim here, but once they were committed, you showed absolutely no mercy in even seeking the slightest amount of medical care or attention for her. How she didn’t basically bleed to death from the terrible assault ... is beyond me. Just looking at the scarring on her face and neck and head, she just must have bled profusely. Somehow she survived. . . . She will have not just the facial and neck scars, but as counsel already indicated, internal scars on her mind and body that will last her for the rest of her life and beyond. . . . It’s almost impossible not to recall as you sentence somebody for this case to recall her physical appearance, recall those pictures, recall her testimony here. It just was a case of almost appalling barbarianism. I can’t think of anything that rivals it that I have seen. I really can’t, and I have tried to. And I have had some pretty difficult matters either as a judge or as a prosecutor in my time period in this court and other courts. There is nothing that comes close to it or rivals it in brutality.” The court continued: “[R]ight now, just between you and I, the only responsibility I have is to make sure that no one else is subjected by you to anything resembling this. And the only way I can do that is to give you the longest sentence that the law will allow . . . .”

In light of the foregoing, we conclude that the petitioner has failed to establish a reasonable probability that the sentence imposed would have been different if his trial counsel had presented the allegedly mitigating evidence. As the habeas court noted, that evidence likely would have reinforced the severity of the court’s sentence.

The judgment is affirmed.

       The petitioner was acquitted on the charge of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1).


author: FOTI, J.

text:
    KENNY HILL v. JOSEPH RAFFONE KENNY HILL v. 119 OLIVE STREET, LLC
    (AC 27717)
    Bishop, Lavine and Foti, Js.

      Argued May 22
    officially released September 18, 2007

      Douglas J. Varga, with whom, on the brief, was Sarah W. Poston, for the appellant (plaintiff).

      Jeffrey M. Sachs, for the appellees (defendants).
   Opinion

FOTI, J.

The plaintiff, Kenny Hill, appeals from the judgments of the trial court, rendered in favor of the defendants Joseph A. Raffone and 119 Olive Street, LLC, after a trial to the court in this consolidated action sounding in contract for the sale of real property. On appeal, the plaintiff claims that the court abused its discretion by refusing to order specific performance. Specifically, the plaintiff claims that the court (1) improperly applied the election of remedies doctrine, (2) incorrectly found that it would be difficult for the court to fashion and enforce an order for specific performance, and (3) incorrectly found that his attorney made a serious misrepresentation in his letter to the defendant’s attorney. We affirm the judgments of the trial court.

The property in question, 119 Olive Street, New Haven, was purchased in 2000 by the defendant. On September 6, 2001, the defendant and the plaintiff signed a written contract under which the property would be transferred from 119 Olive Street, LLC, to the plaintiff for $307,500. The contract included by reference a first addendum, which concerned repairs that needed to be made to the premises.

The defendant’s father, Joseph Raffone, Sr., acted as his broker. On October 3, 2001, the plaintiffs real estate broker, John Migliaro, faxed the defendant a report of the plaintiffs inspection of the property. This report listed several repairs that still had to be made by the defendant. On October 24, 2001, the plaintiff and the defendant signed a second addendum to the contract. This addendum contained five clauses, some concerning the repairs previously mentioned and the others concerning the closing. Specifically, the plaintiff wanted the defendant to credit the plaintiff $1000 at the closing for defects that the plaintiff found during the inspection and wanted repaired, and the plaintiff wanted to pay an additional deposit of $9000 when all conditions of the agreement had been satisfied.

On November 12, 2001, the plaintiff inspected the property and observed that neither the heating systems nor the installation of the Sheetrock on the basement ceiling had been completed. Joseph Raffone, Sr., assured the plaintiff that the work would get done. As a result of that assurance, the plaintiff paid him the $9000 deposit. On December 3, 2001, the defendant requested an extension of the closing date to January 15, 2002, and on December 6, 2001, the plaintiff agreed to the extension. On January 10, 2002, the plaintiff and the defendant inspected the property together and found several incomplete repairs, including the installation of two of the new heating systems. On that same day, the plaintiffs attorney sent a letter to the defendant’s attorney. The letter stated that there were several repairs that had to be done and asked the defendant to keep the plaintiff informed of progress on those repairs.

In the weeks that followed, several letters passed between the parties and their attorneys. These letters discussed repairs that had been completed and repairs that needed to be completed prior to the closing. On January 30, 2002, the plaintiffs attorney sent the defendant’s attorney a letter listing the repairs that had not been completed and also noting several credits that he believed should be granted at closing. In addition, the letter stated that because interest rates had risen from the time of the original closing, the defendant “should contribute to any buydown required to get the rates close to those at the original closing.” The defendant’s attorney responded to the letter by stating that the defendant would install a new boiler for the second floor and that his client would be ready, willing and able to convey the property to the plaintiff on February 8, 2002. In response to the defendant’s attorney, the plaintiffs attorney, in his second letter dated January 30, 2002, stated that his rate lock would expire if the transaction occurred after January 31, 2002, and that if the closing did not take place on that date, the defendant would be responsible for paying the plaintiff $5000 in consideration for the extension of the closing date. The court found that there was no evidence in the record that the plaintiffs interest rate was going to rise if the parties did not close by or before January 31, 2002. There was, however, evidence that the plaintiffs mortgage commitment was valid through February 12, 2002, which was beyond the requested February 8, 2002 extension date.

On January 31, 2002, the plaintiffs attorney sent another letter to the defendant’s attorney in which he stated that the closing had to take place that day on the terms of his previous letters, or the parties had to resolve all issues by 5 p.m. that day. If neither of these conditions was met, then the letter would serve as a demand for the return of the deposit. On February 6, 2002, the defendant’s attorney sent the plaintiffs attorney a letter in which he stated that if the plaintiff was not willing to close, the defendant was willing to return the plaintiffs deposit in exchange for an execution of mutual releases. Thereafter, the plaintiff filed separate actions against the defendant and 119 Olive Street, LLC, alleging breach of contract and seeking specific performance as the remedy. He claimed that the defendants had breached the contract by failing to comply with all of the plaintiffs conditions: installing four new heating systems, painting the third floor porch and repairing the basement Sheetrock. Both defendants filed counterclaims, alleging that the plaintiff had breached the contract and therefore that they were entitled to keep the deposit as liquidated damages. The court rendered judgments in favor of the defendants on the complaints and in favor of the plaintiff on the counterclaims. Although the court found that the defendant had breached the contract and that the plaintiff was entitled to the return of his deposit, the court held that awarding specific performance would not be equitable. The plaintiff appeals from the judgments, challenging the court’s refusal to award specific performance of the contract. Additional facts will be set forth as necessary.

The plaintiff claims that the court abused its discretion when it failed to order specific performance after finding that the defendant had breached the contract. Specifically, the plaintiff argues that the factual findings the court relied on in fashioning its remedy were clearly erroneous. We disagree.

Prior to examining the plaintiff’s claim, we set forth the legal principles that guide our review. “Specific performance is an equitable remedy permitting courts to compel the performance of contracts for the sale of real property, and certain other contracts, pursuant to the principles of equity.” Jaramillo v. Case, 100 Conn. App. 815, 828, 919 A.2d 1061, cert. denied, 283 Conn. 902, 926 A.2d 670 (2007). Our standard of review is abuse of discretion because “[t]he granting of specific performance of a contract to sell land is a remedy which rests in the broad discretion of the trial court depending on all of the facts and circumstances when viewed in light of the settled principles of equity.” (Internal quotation marks omitted.) Id.

A court’s decision to deny the remedy of specific performance in a breach of contract action is fact specific. “Questions of fact are subject to the clearly erroneous standard of review. ... 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. . . . Because it is the trial court’s function to weigh the evidence ... we give great deference to its findings.” (Internal quotation marks omitted.) Id., 823.

I

The plaintiff first claims that the court improperly applied the election of remedies doctrine because his choice of specific performance was consistent with his prior request that his deposit be returned if a closing was not possible. The election of remedies doctrine, in essence, states that “a party who manifests the choice of one available remedy among others by bringing suit or otherwise has not barred his right to pursue any other remedy unless the remedies are inconsistent and the other party materially changes his position in reliance on the manifestation.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. DaSilva, 231 Conn. 441, 449, 650 A.2d 551 (1994).

The court’s finding that the plaintiffs request for specific performance was inconsistent with his previous statement is supported by the record. On January 31, 2002, the plaintiff, through his attorney, clearly stated that if his demands were not met he wanted to terminate the transaction. Therefore, the court’s finding that the prayer for an order of specific performance was incongruous with the plaintiffs letter is not clearly erroneous. Furthermore, on February 6,2002, the defendant’s attorney sent the plaintiffs attorney a letter in which he stated that the defendant was willing to return the plaintiffs deposit in exchange for an execution of mutual releases, thus offering to rescind the contract. Therefore, the defendant materially changed his position in reliance on the plaintiffs statement. Accordingly, we conclude that the court properly applied the election of remedies doctrine.

II

The plaintiff next claims that the court incorrectly found that it would be difficult for the court to fashion and enforce an order for specific performance. It has long been established that “the court cannot enforce specific performance of an agreement whose terms are indefinite and uncertain.” (Internal quotation marks omitted.) Gendelman v. Mongillo, 96 Conn. 541, 545, 114 A. 914 (1921). The court found that an order of specific performance would be “difficult to fashion and a nightmare to enforce” because the parties had argued up to the very end regarding the precise terms of the transaction. The court found that it would be difficult to supervise the installation of a proper heating system in two of the units and to compensate appropriately one party or another for the fact that interest rates had changed. This evidence supports the conclusion that judgments of specific performance would be “difficult to fashion and a nightmare to enforce.”

III

Finally, the plaintiff claims that the court incorrectly found that his attorney made a serious misrepresentation in one of his letters to the defendant’s attorney. The court, however, found that the plaintiff failed to act equitably following the defendant’s breach of the contract. “For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands.” (Internal quotation marks omitted.) Emigrant Mortgage Co. v. D’Agostino, 94 Conn. App. 793, 804, 896 A.2d 814, cert. denied, 278 Conn. 919, 901 A.2d 43 (2006). The court found that the plaintiff did not come into court with “clean hands.” First, the court found that his demands for additional money, including $5000 as consideration for an extension of the closing and $15,000 in escrow for installation of the new heating systems, were unjustified by the contract. Second, the court found that the plaintiffs lawyer’s misrepresentation regarding the expiration date of the rate lock was unfounded by the evidence presented and, as such, was a serious misrepresentation. The plaintiff argues that his attorney was referring to a problem that would occur in the future if the closing did not take place prior to the expiration of his interest rate. The plaintiff states that although his attorney may have been mistaken regarding the expiration date, there is no evidence that it was an intentional misrepresentation. The court, not convinced by this argument, found that the plaintiffs acts constituted inequitable conduct. These findings, fully supported by the record, are not clearly erroneous.

None of the court’s factual findings was clearly erroneous. The court, therefore, could have concluded properly that the balance of the equities weighed in favor of the defendant on the basis of the particular facts and circumstances of this case. We conclude that the court did not abuse its discretion in refusing to order specific performance on the ground that it would not be equitable.

The judgments are affirmed.

In this opinion the other judges concurred.

       Raffone is the sole member of the defendant 119 Olive Street, LLC. For convenience, we refer in this opinion to Raffone as the defendant.

       The defendant subsequently transferred the property to 119 Olive Street, LLC. The trial court noted in its memorandum of decision that at the time of trial, the property had been transferred back to the defendant.

       The first addendum contained four additional terms: that the seller had to provide a copy of the building permit to the buyer, that the seller had to complete installation of four new, full and completely operational gas heating systems, that the seller had to remove all debris from the basement, hallways, common areas and grounds, and that the seller had to paint the third floor porch.

       The court rendered judgments in favor of the plaintiff on the counterclaims. As to the defendant’s counterclaim, the court found that the defendant had breached the contract and, therefore, was not entitled to recover on his counterclaim. The defendant does not challenge those findings on appeal.

       The court also found, on the basis of the representations of the parties that 119 Olive Street, LLC, no longer owned the property, that the plaintiffs action against it could not succeed.

       The plaintiff cites a Florida case, Chambers v. Siler, 417 So. 2d 701 (Fla. App. 1982), for the proposition that the filing of an action for specific performance rescinds any prior offer to terminate the parties’ obligations under a purchase and sale agreement. We do not find this argument persuasive. Nevertheless, even if the argument were persuasive, the plaintiff would not automatically be entitled to the remedy of specific performance. The remedy of specific performance is within the discretion of the court to grant after it has considered all the facts and circumstances in light of the principles of equity.


author: PELLEGRINO, J.

text:
    IN RE CAMERON C.

    (AC 27780)
    Bishop, Lavine and Pellegrino, Js.

      Argued May 22
    officially released September 18, 2007

      Carolyn L. Jennings, for the appellant (respondent grandmother).

      Sherelyn M. Labowski, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Susanne D. McNamara filed a brief for the appellee (respondent father).

       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

PELLEGRINO, J.

This is an appeal from the judgment of the trial court reinstating guardianship of a minor child, C, in his biological father, subject to six months of protective supervision by the department of children and famihes (department) and other orders concerning visitation for both the respondent, C’s grandmother, and C’s mother. The respondent appeals, claiming that the court (1) failed to rely on General Statutes § 46b-56 (c) in resolving this dispute and, instead, applied the provisions of General Statutes § 46b-129 (m), and (2) improperly applied § 46b-129 (m) in granting the father’s motion to revoke commitment. We disagree with the respondent and affirm the judgment of the trial court.

The record discloses the following facts and procedural history relevant to the respondent’s appeal. C lived primarily at the home of the respondent from his birth in October, 1999, until March, 2004. In September, 2003, the father left Connecticut to reside in Florida. In December, 2003, C was suffering from the flu, had a high grade fever and needed emergency medical attention. His mother was not available to care for him, and the hospital where he was taken refused treatment absent the consent of a parent. The respondent went to Probate Court and obtained immediate temporary custody. She also made a referral to the department, alleging that the mother was not caring for C and had passed responsibility for the child to the respondent. On December 9,2003, the Probate Court issued an order of temporary custody that removed custody from the mother and awarded it to the respondent. The department subsequently brought a neglect petition on June 15, 2004. On February 16, 2005, the trial court adjudicated the child neglected, with the mother pleading nolo contendere and the father standing silent. In its ruling, the court also transferred guardianship to the respondent with six months protective supervision.

On May 31, 2005, the father moved to restore his guardianship rights and for sole custody of the child. The respondent contested the father’s motion, and the court held fifteen days of hearings on the matter. At the conclusion of the hearings, the court ruled that the cause for the transfer of guardianship no longer existed and that the respondent had failed to prove that it would not be in the best interest of the child to be returned to his father. Furthermore, the court found that placement with the father was in the child’s best interest. In reaching its conclusion that C’s father had satisfied his burden of showing that the cause for transfer of guardianship no longer existed, the court found that C’s father consistently attended counseling sessions, completed parenting classes and an anger management assessment, and had stable employment and appropriate housing for the child. As a result of its findings, the court reinstated guardianship in the father and ordered that the department provide protective supervision for six months. The court also ordered that the respondent and C’s mother were to have visitation rights. This appeal followed. Additional facts will be set forth as necessary.

I

The respondent’s first claim is that the court failed to apply § 46b-56 (c) in resolving this dispute and, instead, applied the provisions of § 46b-129 (m) in granting the father’s motion to transfer custody of his minor child. Specifically, she claims on the basis of the language used in § 46b-56, that the subsections of that statute apply to “any” custody dispute and that the court’s use of the rebuttable presumption found in General Statutes § 46b-56b, which provides that custody should be placed with a parent rather than a nonparent, was legally incorrect. We disagree with the respondent and conclude that the court applied the correct legal standard to the father’s motion for custody and guardianship.

We begin by addressing the appropriate standard of review. “The application of a statute to a particular set of facts is a question of law.” In re Nasia B., 98 Conn. App. 319, 328, 908 A.2d 1090 (2006). We therefore review the respondent’s claim under the plenary standard of review. See id.

A

The first step in determining which statute applies to the present case is to categorize the motion that was before the court. The father’s motion, filed May 31, 2005, pursuant to Practice Book § 35a-20, was labeled a “Motion to Transfer Custody and Guardianship.” The label on the motion, however, does not control our analysis. We must look to the substance of the relief sought by the motion rather than its form because “[t]o hold [a litigant] strictly to the label on his filing would exalt form over substance.” Whalen v. Ives, 37 Conn. App. 7, 17, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995); see also In re Haley B., 262 Conn. 406, 413, 815 A.2d 113 (2003). In substance, the father’s motion sought the return of C to his custody without protective supervision. Practice Book § 35a-16 provides in relevant part that “any modification motion to return the child to the custody of the parent without protective supervision shall be treated as a motion for revocation of commitment.” The motion must, therefore, be treated as a motion to revoke commitment, regardless of the label appearing on the motion.

We now turn our attention to the law that governs motions to revoke commitment. General Statutes § 46b-129 (m) sets forth the procedure by which a commitment may be challenged and vests primary authority for revocation of commitment with the trial court. Section 46b-129 (m) provides that a parent may file amotion to revoke a commitment, and, upon a finding that no cause for commitment exists, and that such revocation is in the best interest of the child, the court may revoke the commitment. This court’s analysis in In re Stacy G., 94 Conn. App. 348, 892 A.2d 1034 (2006), provides guidance on applying § 46b-129 (m). “[A] natural parent, whose child has been committed to the custody of a third party, is entitled to a hearing to demonstrate that no cause for commitment still exists. . . . The initial burden is placed on the persons applying for the revocation of commitment to allege and prove that cause for commitment no longer exists. ... If the party challenging the commitment meets that initial burden, the commitment to the third party may then be modified if such change is in the best interest of the child. . . . The burden falls on the persons vested with guardianship to prove that it would not be in the best interests of the child to be returned to his or her natural parents.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 352 n.4. A close review of the record clearly reflects that the court considered the father’s motion under the test set forth in In re Stacy G. We therefore conclude that the court properly applied the law.

B

The respondent claims that the court should have applied the factors set forth in § 46b-56 (c), rather than § 46b-129 (m), to guide its determination of what was in the best interest of the child. Specifically, she claims on the basis of the broad language used in § 46b-56, that subsection (c) applies to “any” custody dispute. We find no merit to her argument.

Pursuant to General Statutes § l-2z, “[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” Our Supreme Court has noted that “[i]n construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended.” Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1386 (1975); Lunn v. Cummings & Lockwood, 56 Conn. App. 363, 372, 743 A.2d 653 (2000).

Chapter 815j of the General Statutes, comprising §§ 46b-40 through 46b-89, inclusive, sets out rights and remedies arising from “Dissolution of Marriage, Legal Separation and Annulment” actions. See, e.g., Lamacchia v. Chilinsky, 79 Conn. App. 372, 373 n.l, 830 A.2d 329 (2003); Rosengarten v. Downes, 71 Conn. App. 372, 381 n.5, 802 A.2d 170, cert. granted, 261 Conn. 936, 806 A.2d 1066 (2002) (appeal dismissed as moot December 31, 2002); Calway v. Calway, 26 Conn. App. 737, 745, 603 A.2d 434 (1992). Although it is recognized that headings or titles of legislation are not conclusive, they may, nonetheless, be valuable aids to construction and legislative intent. See Burke v. Fleet National Bank, 252 Conn. 1, 13, 742 A.2d 293 (1999) (title of statute not determinative of, but may provide evidence of, statutory meaning); Algonquin Gas Transmission Co. v. Zoning Board of Appeals, 162 Conn. 50, 55, 291 A.2d 204 (1971); Connecticut Light & Power Co. v. Overlook Park Health Care, Inc., 25 Conn. App. 177, 179, 593 A.2d 505 (1991). The plain meaning of § 46b-56, read within the context of related statutes within chapter 815j, makes clear that this provision is intended to apply only in dissolution of marriage, legal separation and annulment actions. There is no authority for the respondent’s argument that the use of the word “any” in § 46b~56 encompasses circumstances outside of those clearly provided for in the chapter heading. To extend the provisions of § 46b-56 beyond dissolution proceedings would have the impermissible consequence of undermining the statutory scheme of commitment proceedings. See Calway v. Calway, supra, 744-45 (refusing to apply spousal obligations from chapter 815e after dissolution of marriage occurred under chapter 815j). As noted by the court, § 46b-56 (c) is inapplicable because this case does not arise from a dissolution of marriage, legal separation or annulment action.

c

The respondent also claims that the court was legally incorrect in applying the rebuttable presumption of § 46b-56b to the father’s motion. Section 46b-56b provides that in a dispute between a parent and a nonpar-ent, there is a rebuttable presumption that it is in a child’s best interest to be in the custody of the parent. We acknowledge that this presumption is not directly applicable in this case for the same reason that § 46b-56 is inapplicable—both sections appear in a chapter different from that in which § 46b-129 (m) appears. Contrary to the argument set forth in the respondent’s brief, however, our review of the record indicates that the court did not directly apply § 46b-56b to the proceedings before it. The court’s ruling simply states that in applying the In re Stacy G. framework; see In re Stacy G., supra, 94 Conn. App. 352 n.4; it was “aided” by the presumption that it is in the child’s best interest to be in the custody of his natural parent.

We need not, however, simply rest our conclusion on semantics because revocation of commitment proceedings under § 46b-129 (m) is conducted with a presumption similar to that found in § 46b-56b. See In re Juvenile Appeal (Anonymous), 177 Conn. 648, 659, 420 A.2d 875 (1979). Under the In re Stacy G. framework, after the natural parent establishes that the cause for commitment no longer exists, the guardian is saddled with the burden of establishing that placement with the natural parent is not in the child’s best interest. The natural parent, therefore, has the benefit of a presumption that revocation of commitment is in the child’s best interest. In re Stacy G., supra, 94 Conn. App. 353 n.4. As our Supreme Court has stated, “parents are entitled to the presumption, absent a continuing cause for commitment, that revocation will be in the child’s best interests unless the [guardian] can prove otherwise.” In re Juvenile Appeal (Anonymous), supra, 659. On the basis of the record, we conclude that the court properly applied In re Stacy G.

II

The respondent next claims that the court’s application of § 46b-129 (m) was legally and logically incorrect. She argues that the court failed to give proper weight to the evidence she presented at trial. Specifically, she refers to evidence she proffered that showed (1) that the father financially abandoned C, even after the court adjudicated C neglected, (2) that she is C’s psychological parent, (3) that she had a close relationship with C for more than six years, (4) that her home is the only home C has ever known and (5) that the attorney for C thought custody should remain with her. We disagree.

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Internal quotation marks omitted.) In re Patricia C., 93 Conn. App. 25, 30, 887 A.2d 929, cert. denied, 277 Conn. 931, 896 A.2d 101 (2006).

Keeping that deferential standard of review in mind, we now set forth the legal principles that guide our analysis. Section 46b-129 (m) provides in relevant part that “a parent . . . may file a motion to revoke a commitment, and, upon finding that cause for commitment no longer exists, and that such revocation is in the best interests of such child or youth, the court may revoke the commitment of such child or youth. . . .” Under the In re Stacy G. framework, “[t]he initial burden is placed on the persons applying for the revocation of commitment to allege and prove that cause for commitment no longer exists. ... If the party challenging the commitment meets that initial burden, the commitment to the third party may then be modified if such change is in the best interest of the child. . . . The burden falls on the persons vested with guardianship to prove that it would not be in the best interests of the child to be returned to his or her natural parents.” (Citations omitted; emphasis added; internal quotation marks omitted.) In re Stacy G., supra, 94 Conn. App. 352 n.4.

The court first found that the father carried his initial burden of proving that cause for commitment no longer existed. There was ample evidence in the record to support the court’s initial finding. The record indicates that the father consistently attended counseling sessions, completed parenting and an anger management assessment, had stable employment and appropriate housing for C, that the department and the guardian ad litem had reported that the father and C had had successful visitation, that a bond was developing between them and that the court-appointed psychologist, Nancy Randall, had testified that the father understood his parental role and was demonstrating responsibility. The respondent argued that the circumstances that led to the initial commitment of C prevented the father from satisfying his initial burden. The court found that even if it assumed that those facts were true, the father had improved his situation, and the reason for the transfer of guardianship no longer existed. See In re Cesar G., 56 Conn. App. 289, 294, 742 A.2d 428 (2000) (“[t]he court, in determining whether cause for commitment no longer exists, would obviously look to the original cause for commitment to see whether the conduct or circumstances that resulted in commitment continue to exist”). Taken as a whole, there were sufficient facts from which the court could have reached its conclusion. In light of the facts and circumstances presented, we conclude that the court’s finding was not clearly erroneous.

After the father successfully established that the cause for removal no longer existed, the burden shifted to the respondent to prove that it would not be in the best interest of the child to be returned to his father. “To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child’s interest in sustained growth, development, well-being, and in the continuity and stability of its environment. ... We have stated that when making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and ... we are not privileged to usurp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Emphasis in original; internal quotation marks omitted.) In re Patricia C., supra, 93 Conn. App. 32-33. Guided by that deferential standard of review, we examine the evidence that was before the court to determine whether it abused its discretion in concluding that the respondent failed to prove that it would not be in the best interest of C to be returned to his father.

The court presided over fifteen days of trial in which thirteen witnesses testified and forty exhibits were entered into evidence. Among the evidence considered was the testimony of Randall; C’s therapist, Jackie Mott; a social work supervisor at the department, Kimberly Tait; and C’s guardian ad litem. These individuals had close contact with the parties involved in this case, and all opined that they supported reinstatement of guardianship with the father.

Randall testified that reunification with the father would be in C’s best interest because of the father’s improvement and renewed interest in his son. Randall reached this conclusion despite her testimony that C viewed the respondent as the psychological parent. Randall further testified that a continued relationship with the respondent would be essential and that C would experience an initial loss from being removed from his psychological parent but that such issues could be worked out with his new family and in therapy.

Mott testified that her recommendation was to place C with his father because the father was “a fine father, and there’s no real reason why he shouldn’t have his son.” Although Mott testified that she never saw C and his father interact together, she testified that she had visited with C and his father on separate occasions and that she has continued to meet with the respondent and C’s father in an attempt to establish civility between them. She believed that the transition of guardianship to the father should occur as soon as possible because of the friction between the father and the respondent. Mott further testified that C would experience an obvious adjustment period from leaving the respondent, his relatives and his mother in a different city but that he would do fine.

Tait testified that the father kept in contact with the department, engaged the department in its services, submitted to random urine screens to rule out substance abuse, completed parenting classes and engaged in family therapy with the child. She further testified that the father’s home was appropriate, that he had maintained continuous employment for two years and was then involved in a stable relationship. Finally, Tait testified that the interaction of the father and son was appropriate and that C enjoyed the time spent with his father.

The court, in its decision, clearly credited the referenced aspects of the testimony of the witnesses. On the basis of all the evidence, the court found that the respondent’s concerns for C warranted monitoring of the father’s restored guardianship for a period of time but were not proof that restoration of guardianship to the father was not in the best interest of C. The court ordered the reinstatement of guardianship to the father subject to six months of protective supervision by the department and also awarded visitation to both the respondent and C’s mother. “[GJreat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . . [.Additionally, we] are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the Juvenile Court when they are based on reliable evidence.” (Emphasis in original; internal quotation marks omitted.) In re Patricia C., supra, 93 Conn. App. 36. As our review of the record indicates, there were ample facts on which the court could conclude that the respondent failed to prove that it was not in the best interest of C to be returned to his father. We conclude that the court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record characterizes the grandmother and the father as respondents. For purposes of this appeal and this opinion, all references to the respondent shall refer solely to the grandmother because she is appealing from the judgment of the trial court. The grandmother was C’s guardian prior to the reinstatement of the father’s guardianship.

       General Statutes § 46b-56 (c) provides: “In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors: (1) The temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) any relevant and material information obtained from the child, including the informed preferences of the child; (4) the wishes of the child’s parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child; (6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders; (7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute; (8) the ability of each parent to be actively involved in the life of the child; (9) the child’s adjustment to his or her home, school and community environments; (10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child’s family home pendente lite in order to alleviate stress in the household; (11) the stability of the child’s existing or proposed residences, or both; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child; (13) the child’s cultural background; (14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child; (15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and (16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any weight to any of the factors that it considers.” The language relied on by the respondent was added to § 46b-56 by Public Acts 2005, No. 05-258, § 3, which went into effect on October 1, 2005. For purposes of this opinion, we assume that the provisions of § 46b-56 (c) would apply to the court’s determinations made in response to the father’s May 31, 2005 motion for custody.

       General Statutes § 46b-129 (m) provides: “The commissioner, a parent or the child’s attorney may file a motion to revoke a commitment, and, upon finding that cause for commitment no longer exists, and that such revocation is in the best interests of such child or youth, the court may revoke the commilment of such child or youth. No such motion shall be filed more often than once every six months.”

       Practice Book § 35a-20 provides in relevant part: “Whenever a parent or legal guardian whose guardianship rights to a child were removed and transferred to another person by the superior court for juvenile matters seeks reinstatement as that child’s guardian, the parent or legal guardian may file a petition with the court that ordered the transfer of guardianship.”

         Practice Book § 35a-16 provides: “Motions to modify dispositions are dispositional in nature based on the prior adjudication and the judicial authority shall determine whether a modification is in the best interest of the child upon a fair preponderance of the evidence. Unless filed by the commissioner of children and families, any modification motion to return the child to the custody of the parent without protective supervision shall be treated as a motion for revocation of commitment.”

       Chapter 815t of the General Statutes, comprising General Statutes § § 46b-120 through 46b-159, inclusive, sets forth the substantive and procedural laws governing juvenile matters. See In re Prudencio O., 229 Conn. 691, 697, 643 A.2d 265 (1994).

       Prior to January 1,2006, General Statutes § 46b-56 was entitled “Superior Court orders re custody, care, therapy, counseling and drug and alcohol screening of minor children or parents in actions for dissolution of marriage, legal separation and annulment. Access to records of minor children by noncustodial parent. Parenting education program.” We note that in the 2006 supplement to the General Statutes, the reference to dissolution of marriage, legal separation and annulment was removed from the title of the statute. Phe current title of § 46b-56 is “Orders re custody, care, education, visitation and support of children. Best interests of the child. Access to records of minor child by noncustodial parent. Orders re therapy, counseling and drug or alcohol screening.” The title of chapter 815j and the statute’s location within that chapter, however, have not changed. The change in title was not the result of any amendment to § 46b-56. See Public Acts 2005, No. 05-258, § 3.

       We note that even if we were to accept the respondent’s argument that this case must be analyzed as a custody case, the court expressly concluded that it would be in the child’s best interest to be returned to his father. This conclusion cannot be overturned unless the trial court abused its discretion in making such a ruling. As set forth in part II B, there were ample facts in the record from which the court could have made its determination that placement with the father was in the child’s best interest.

       General Statutes § 46b-56b provides: “In any dispute as to the custody of a minor child involving a parent and a nonparent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, which presumption may be rebutted by showing that it would be detrimental to the child to permit the parent to have custody.”

       See part I B.

       The court’s ruling states: “The court’s conclusion regarding the best interest of the child is ‘aided’ by the provisions of General Statutes § 46b-56b: ‘In any dispute as to the custody of a minor child involving a parent and a nonparent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, which presumption may be rebutted by showing that it would be detrimental to the child to permit the parent to have custody.’ ”

       The overarching notion that a fit parent has the fundamental right to make child rearing decisions unless that would cause real and significant harm to the child has a constitutional basis. See In re Joshua S., 260 Conn. 182, 204, 796 A.2d 1141 (2002); see also Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Crockett v. Pastore, 259 Conn. 240, 789 A.2d 453 (2002); Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002).

       Because we have concluded that the court did not rely on General Statutes §§ 46b-56 (c) or 46b-56b, we need not consider the respondent’s argument with regard to the distinction between visitation and custody disputes.

       The crux of the respondent’s claim is structured in the context of the court’s application of General Statutes § 46b-56b being legally and logically incorrect. On the basis of our analysis in part I, we construe her claim to be that the court ultimately reached the wrong conclusion in its application of General Statutes § 46b-129 (m).

       The respondent seeks plain error review; see Practice Book § 60-5; of the court’s admission into evidence of the evaluation by Randall because the respondent did not object to the court’s admission of any of Randall’s reports at trial. The respondent argues that Randall had ex parte communication with the department prior to writing her report in violation of the rules of practice.
      “The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 240, 881 A.2d 160 (2005). Because the respondent’s claims here do not present the type of extraordinary situation that warrants plain error review, we decline to review them according to this standard.