author: MIHALAKOS, J.

text:
    NABIL KADDAH v. COMMISSIONER OF CORRECTION
    (AC 27778)
    Harper, Lavine and Mihalakos, Js.

      Argued September 20, 2007
    officially released January 22, 2008

      Jodi Zils Gagne, special 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 Gerard P. Eisenman, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

MIHALAKOS, J.

The petitioner, Nabil Kaddah, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court (1) abused its discretion in denying the petition for certification and (2) improperly rejected his claim that his first habeas counsel provided ineffective assistance. We dismiss the appeal.

The relevant facts are set forth in the opinion in the petitioner’s direct appeal. “Between 3 and 3:30 a.m. on August 27, 1994, the [petitioner], while driving his gray Pontiac Grand Prix, approached Leanne Kollar on Middle Street in Bridgeport. Kollar, who was working as a prostitute, entered the [petitioner’s] car in anticipation of engaging in sex for money. The [petitioner] drove around Bridgeport, eventually stopping on Salem Street. He turned off the engine and locked the doors to the vehicle. The [petitioner] then began to choke Kollar, telling her that, if she removed her clothes, he would not hurt her. Kollar began to undress, and the [petitioner] reclined her seat back and started to choke her again. Kollar managed to open the car door in an attempt to escape, and the [petitioner] began hitting and punching her. They both rolled out of the car together, after which the [petitioner] kneeled over Kollar and continued strangling her. After hitting the [petitioner] and knocking the [petitioner’s] eyeglasses off his face, Kollar was able to flee to a nearby house. The [petitioner] then drove away.

“When the police arrived, Kollar gave them a description of the [petitioner] and told the officers where the [petitioner] lived, as she had been to his apartment on prior occasions. The police went to the [petitioner’s] apartment and waited for him to return. Meanwhile, the [petitioner] returned to Middle Street and picked up Jennifer Williamson, another prostitute. The [petitioner] drove to the comer of Maplewood and Laurel Avenues, where he and Williamson engaged in a physical stmggle. The [petitioner] hit Williamson, bit her on the back and strangled her. During the stmggle, Williamson stopped moving and the [petitioner] pushed her out of the car and drove away.

“Sara Iza, a resident of Laurel Avenue, saw the [petitioner’s] car on Maplewood Avenue at approximately 5:30 a.m. on August 27, 1994. When her husband, Luis Iza, went outside to start his car at approximately 6 a.m., he saw Williamson’s naked body lying in the street, in the same spot where Sara Iza had seen the [petitioner’s] car stop earlier. Malka Shah of the office of the chief medical examiner testified that Williamson died from asphyxia, which had been caused by strangulation.

“At his trial, the [petitioner] raised the defenses of mental disease or defect and, alternatively, extreme emotional disturbance. The jury rejected these defenses and found the [petitioner] guilty of the murder of Williamson and the attempted murder and unlawful restraint of Kollar.” State v. Kaddah, 250 Conn. 563, 565-66, 736 A.2d 902 (1999). The court sentenced the petitioner to a total effective term of seventy-five years imprisonment. Our Supreme Court subsequently affirmed the conviction. See id., 581.

In 2001, the petitioner, represented by attorney Salvatore Adamo, filed his first petition for a writ of habeas corpus, alleging that his appellate counsel, attorney Glenn Falk, had rendered ineffective assistance in the direct appeal of the underlying criminal case because he had failed to argue the existence of a conflict between the petitioner and his trial attorney, James Ruane, and had failed to raise a Connecticut constitutional claim. The petitioner further alleged that Ruane had rendered ineffective assistance in the underlying criminal case. The petitioner alleged, among other things, that Ruane had asserted the defense of mental disease or defect against the petitioner’s wishes, did not permit the petitioner to testify on his behalf and failed to argue effectively against the sparse medical evidence used to convict the petitioner.

The court, White, J., denied the habeas petition. The petitioner appealed from the judgment of the habeas court but withdrew the appeal before this court rendered judgment.

Thereafter, in 2004, the petitioner filed a second petition for a writ of habeas corpus, claiming that Adamo was ineffective as the petitioner’s first habeas counsel. The petitioner alleged that Adamo was ineffective because he failed to question Falk or to introduce any evidence regarding Falk’s ineffective assistance as appellate counsel and failed to question Ruane properly. Specifically, the petitioner alleged that Adamo inadequately questioned Ruane in the areas of whether the petitioner knew he had the right to testify at trial and whether the petitioner wanted to raise the defense of mental disease or defect. The court, Fuger, J., found that the petitioner had failed to meet the burden imposed by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), because he could not show that he was prejudiced by either Ruane’s or Adamo’s assistance. The court, accordingly, denied the petition for habeas relief. Judge Fuger subsequently denied the petition for certification to appeal. This appeal followed.

We begin by setting forth the applicable standard of review. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. . . .

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . For the petitioner to prevail on his claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Anderson v. Commissioner of Correction, 83 Conn. App. 595, 597, 850 A. 2d 1063, cert. denied, 271 Conn. 905, 859 A.2d 560 (2004).

“We examine the petitioner’s underlying claim of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, [supra, 466 U.S. 668], the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to 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. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable.

“The first component, generally referred to as the performance prong, requires that the petitioner show that counsel’s representation fell below an objective standard of reasonableness. ... In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” (Citation omitted; internal quotation marks omitted.) Santiago v. Commissioner of Correction, 90 Conn. App. 420, 424-25, 876 A.2d 1277, cert. denied, 275 Conn. 930, 883 A.2d 1246 (2005), cert. denied sub nom. Santiago v. Lantz, 547 U.S. 1007, 126 S. Ct. 1472, 164 L. Ed. 2d 254 (2006).

Our analysis of whether the court abused its discretion in denying certification to appeal necessarily is driven by the petitioner’s underlying ineffective assistance claims against Adamo, his first habeas counsel. See Simms v. Warden, supra, 230 Conn. 612. The petitioner claims that Adamo rendered ineffective assistance when he (1) failed to call Falk to the witness stand, (2) failed to pursue zealously an issue that was raised in the habeas petition, (3) failed to call Ruane to the witness stand and (4) failed to question Ruane properly when the state called him to the witness stand. We address these claims in turn.

I

We begin our analysis of the petitioner’s appeal by disposing of his claim that Adamo rendered ineffective assistance by failing to call Falk to the witness stand and failing to pursue a claim that Falk was ineffective as appellate counsel. This claim arises from Adamo’s inclusion in the petitioner’s first habeas petition of an allegation that Falk’s representation of the petitioner on his direct appeal was ineffective. At the first habeas hearing, however, Adamo failed to call Falk to the witness stand or to present any evidence regarding Falk’s alleged ineffective assistance. The petitioner now claims that Adamo’s abandonment of this claim amounts to ineffective assistance on the part of Adamo. We disagree.

At the second habeas hearing, Adamo testified that the inclusion of the ineffective assistance allegation against Falk in the first habeas petition was done merely to placate his client—Adamo did not believe the claim had any merit. On the basis of his assessment that the claim was meritless and would fail, Adamo decided it would not be prudent to call Falk to testify. Adamo’s assessment of Falk’s representation was corroborated through Falk’s uncontradicted testimony at the second habeas hearing that only those issues likely to succeed were presented to our Supreme Court on appeal. In light of this uncontradicted testimony, Adamo’s abandonment of the claim against Falk was a strategic decision that merely eliminated a weaker argument from the petition. As we stated in Vivo v. Commissioner of Correction, 90 Conn. App. 167, 876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d 1253 (2005), “[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible . . . . ” (Internal quotation marks omitted.) Id., 172. The petitioner has set forth no persuasive arguments as to why Adamo’s failure to pursue a meritless claim amounts to deficient performance.

II

The petitioner’s next claim is that Adamo’s representation was deficient in failing to call Ruane to the witness stand at the first habeas hearing. Specifically, the petitioner claims that Adamo “took an unnecessary risk in failing to call [Ruane] and almost lost the opportunity to question one of the main witnesses in the case.” The petitioner’s assertion that Adamo’s failure to call Ruane was somehow evidence of deficient performance lacks any evidentiary or legal support, and we fail to see any merit in the petitioner’s claim.

During the first habeas hearing, Adamo and the prosecutor formed a “gentleman’s agreement,” under which the state’s attorney would call Ruane to the witness stand to testify. Adamo believed that this arrangement would be advantageous because he would then be able to ask Ruane leading questions and not be hampered by the restrictions imposed on the questioning of a witness on direct examination. The second habeas court acknowledged in its decision that this was a risky move by Adamo because there was no real guarantee that Ruane would be called as a witness. The court, however, found that the gentleman’s agreement was in fact honored and that Adamo was able effectively to elicit testimony from Ruane on cross-examination. Accordingly, the court ruled that no prejudice accrued to the petitioner because Ruane testified at the first habeas hearing.

The petitioner has put forth no argument as to why Adamo’s decision amounted to ineffective assistance of counsel when the agreement was honored and Ruane did in fact testify. We therefore cannot say that Adamo’s performance was deficient in this regard.

Ill

The petitioner’s final claim is that Adamo’s questioning of Ruane was ineffective. The petitioner’s two part argument is that Adamo’s examination was ineffective because (1) it consisted of “approximately ten questions” and (2) the questions asked did not include whether he advised the petitioner that he had the right to testify and whether he informed the petitioner that he could choose not to proceed with the insanity defense. We address each of these issues in turn.

A

The first part of the petitioner’s claim asserts that Adamo provided ineffective assistance because he failed to ask Ruane a sufficient number of questions. The petitioner’s brief, however, does not present questions that Adamo should have asked but did not, nor does it offer additional areas of inquiry that Adamo failed to explore. More importantly, the petitioner sets forth no case law or legal principles that dictate a finding of ineffective assistance based solely on the number of questions asked of a witness. Indeed, such a holding would create absurd results because effective representation cannot be gauged solely by the number of questions counsel poses to a witness but, rather, must be determined on the basis of the answers that those questions are designed to elicit. The brevity with which a skillful attorney can conduct an effective examination of a witness simply cannot be the basis for granting a writ of habeas corpus. To conclude otherwise would be the quintessential elevation of form over substance. Accordingly, the petitioner’s bald assertion that Adamo’s representation was ineffective for failing to ask Ruane a sufficient number of questions must fail.

B

The second part of the petitioner’s claim is that Adamo provided ineffective assistance because he questioned Ruane inadequately in two areas during cross-examination. Specifically, the petitioner asserts that Adamo inadequately questioned Ruane about whether Ruane had advised the petitioner that he had the right to testify or whether Ruane had informed the petitioner that he could choose not to proceed with the insanity defense. We are not persuaded.

Adamo testified at the second habeas hearing that during the course of the first habeas proceeding, he had talked with Ruane off the record and that Ruane stated that he had advised the petitioner that he had the right to testify and that the decision to exercise that right was his. On the basis of this conversation, Adamo believed that having Ruane testify about this matter would have been harmful to the petitioner’s case because it showed that Ruane was a competent attorney. The second habeas court credited this testimony in finding that the failure to question Ruane on whether he told the petitioner that it was his right to testify was a strategic decision and not deficient performance. The court further noted that it could not find any prejudice flowing to the petitioner from his failure to testify at trial because the evidence of his guilt was “overwhelming” and his proposed testimony was simply to say, “I’m not guilty.” The court found that although the petitioner’s proposed testimony certainly would have been additional evidence for the jury to consider, it seemed to fly in the face of all the evidence presented from which the jury concluded that the petitioner was guilty beyond all reasonable doubt. On the basis of the content of the petitioner’s proposed testimony, no prejudice flowed from his failure to testify that would have undermined confidence in the outcome of his criminal trial. We agree with the court that Adamo’s representation was not deficient in this regard.

The court next addressed the petitioner’s claim that Ruane used the insanity defense against the petitioner’s wishes. The court found that the petitioner had established though his testimony at the second habeas hearing that he did not want to have the insanity defense raised at his underlying criminal trial. The court, however, did not make a finding that the petitioner in fact objected to Ruane’s use of the insanity defense during the criminal trial. The court simply concluded that even if the ultimate decision regarding which defense to present rested with the petitioner, the imposition of the insanity defense against the petitioner’s wishes did not result in any prejudice. The petitioner now claims that Adamo’s failure to question Ruane on whether he used the insanity defense against the petitioner’s wishes amounts to ineffective assistance because Adamo failed to “flush out why such actions were prejudicial to the petitioner.” We are not persuaded by the petitioner’s argument because the petitioner has not shown that he in fact objected at his criminal trial to the imposition of an insanity defense.

We begin our analysis of this part of the petitioner’s claim by noting that the constitutional status of a defendant’s right to reject an insanity defense is an unresolved issue. Dean v. Superintendent, Clinton Correctional Facility, 93 F.3d 58, 61 (2d Cir. 1996) (“[there is] significant uncertainty surrounding the constitutional status of a defendant’s right to reject an insanity defense”), cert. denied sub nom. Dean v. Senkowski, 519 U.S. 1129, 117 S. Ct. 987, 136 L. Ed. 2d 868 (1997). In accordance with “the recognized policy of self-restraint and the basic judicial duty to eschew unnecessary determinations of constitutional questions”; Negron v. Warden, 180 Conn. 153, 166, 429 A.2d 841 (1980); we need not answer this unresolved constitutional question absent a showing that the petitioner objected at his criminal trial to the use of an insanity defense. See also Dean v. Superintendent, Clinton Correctional Facility, supra, 61-62.

Our determination of whether the petitioner objected to the use of an insanity defense is guided by the reality that effective counsel must oftentimes persuade a client to chose a legal strategy that the client instinctively disfavors. “Thus, a court reviewing an ineffective assistance of counsel claim based on the imposition of an insanity defense must be careful not to confuse, through the prism of hindsight, persuasion with coercion and disagreement with objection. Rather, the court must review such a claim in the context of an adversarial process which the Constitution advances as the essential ingredient of a fair trial.

“Thus, in accordance with the burden imposed on the defendant by [Strickland v. Washington, supra, 466 U.S. 687], a petitioner claiming ineffective assistance of counsel based on counsel’s imposition of an insanity defense over petitioner’s objection bears the burden of showing that he in fact objected. In accordance with our acknowledgement of the vigor with which competent defense counsel advises a client on a strategic decision as significant as an insanity defense or plea, a petitioner who does not state an objection on the record must show not only that he ‘disagreed’ with counsel, but that his ‘will was overborne by his counsel.’ [See United States v. Teague, 953 F.2d 1525, 1535 (11th Cir.) (en banc) (affirming District Court’s determination that the defendant’s ‘will was not overborne’ on the decision not to testify), cert. denied, 506 U.S. 842, 113 S. Ct. 127, 121 L. Ed. 2d 82 (1992)]. Disagreement colored by acquiescence is not sufficient.” Dean v. Superintendent, Clinton Correction Facility, supra, 93 F.3d 62; accord Frascone v. Duncan, Docket No. 01 CV 5924 (GBD), 2005 U.S. Dist. LEXIS 11687, *6-7 (S.D.N.Y. June 14, 2005).

On this record, the petitioner has not met his burden of showing that he in fact objected to Ruane’s use of an insanity defense. At the second habeas hearing, the petitioner testified that Ruane failed to tell him that the use of an insanity defense at trial was the petitioner’s decision. The petitioner further testified that although he did not want to use the insanity defense, he did not believe he had any say in the decision of what defense to present. There is no indication, however, that the petitioner ever made a direct objection to the court at any time during the trial, including those portions of the trial when the relevant testimony and argument concerning the petitioner’s mental state was introduced.

The petitioner has also failed to meet his alternative burden of showing that his will was “overborne” by counsel. The petitioner refers to a two page excerpt from the June 11, 1996 trial transcript where Ruane moves to withdraw from the case as evidence of the petitioner’s disagreement with Ruane’s desire to use an insanity defense. Ruane had the following colloquy with the court: “I have serious reservation as to whether my client will listen to my advice in what defense to put on. . . . [A]t least at this juncture, it does appear this morning that my client does not listen to my advice. That might change, of course, but I can’t—I don’t know whether it will change, [and] I’d be in a difficult position to try the case and make those decisions unilaterally if, in fact, he disagreed with me as to what defense to put on.” Although this colloquy certainly shows some level of disagreement between the petitioner and Ruane, it falls short of establishing that the petitioner’s will was overborne by counsel. At most, it evidences that Ruane recognized that at that point in the proceedings, his client was disagreeing with which defense to present. Furthermore, shortly after moving to withdraw, Ruane told the court: “Your Honor, I’ve consulted with the members of my firm, and we’re confident that [the petitioner’s] attitude today is a mere blip on the otherwise tranquil relationship we’ve had, and so we’re not moving to withdraw. We think this problem will work out. If it continues, we will advise the court so that it does not go too far along.” There is no indication anywhere in the record before us that Ruane subsequently failed to convince the petitioner to proceed with the insanity defense. In addition, Ruane testified at the first habeas hearing that his relationship with the petitioner did not deteriorate during the trial and that the petitioner sent him holiday cards and notes. Even more importantly, the petitioner argued directly to the court at his criminal trial that he required the services of a translator and that trial should be delayed until his relatives arrived from overseas. The petitioner, therefore, was not incapable of making his views known.

The petitioner has not carried his burden of showing that he objected to the insanity defense or that his will was overborne. Therefore, under Strickland, the petitioner has failed to show how either his trial counsel or first habeas counsel was deficient. See Strickland v. Washington, supra, 466 U.S. 687.

We carefully have reviewed the record, the court’s ruling and the briefs submitted by the parties. The petitioner has not demonstrated that the issues raised with regard to the court’s dismissal of his petition for a writ of habeas corpus on the issue of ineffective assistance of counsel are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). Having failed to satisfy any of those criteria, the petitioner has failed to demonstrate that the court’s denial of his petition for certification to appeal, relative to his ineffective assistance of counsel claim, reflects an abuse of discretion. See Simms v. Warden, supra, 230 Conn. 616.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner claims that the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut provide a right to effective assistance of counsel. Although the petitioner refers to his right under article first, § 8, of the Connecticut constitution, he has failed to explain why he is entitled to any greater protection under the due process clause of the state constitution than he is under the analogous provisions of the federal constitution. See State v. SuUivan, 244 Conn. 640, 646 n.6, 712 A.2d 919 (1998). We therefore limit our review to the petitioner’s federal constitutional claim. See, e.g., State v. Rogelstad, 73 Conn. App. 17, 20 n.4, 806 A.2d 1089 (2002).

        State v. Kaddah, 250 Conn. 563, 565-66, 736 A.2d 902 (1999).

       The petitioner also fleetingly asserts in his brief that Adamo’s representation was ineffective because his closing argument was too short and his entire examination of Ruane “only took two transcript pages.” These claims likewise lack legal support, and we find them to be without merit.

       The court conceded that it was unclear as to whether counsel can impose an insanity defense over the objection of a defendant.

       Because the petitioner has not alleged that the Connecticut constitution affords any greater protection than the federal constitution, our review of the petitioner’s appeal is limited to his federal constitutional claims. See footnote 1.

       Because we fmd that the petitioner has not met his burden of establishing that he objected to the use of an insanity defense, we decline to address the issue of whether prejudice may be presumed from the imposition of an insanity defense against a defendant’s wishes. See generally United States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (presumption of prejudice found in “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified”). We do note, however, that this is an unsettled area of federal constitutional law. See, e.g., United States v. Williamson, 53 F.3d 1500, 1511 (10th Cir.) (“the admission by counsel of his client’s guilt to the jury . . . represents a paradigmatic example of the sort of breakdown in the adversarial process that triggers a presumption of prejudice”), cert. denied sub nom. Dryden v. United States, 516 U.S. 882, 116 S. Ct. 218, 133 L. Ed. 2d 149 (1995); United States v. Holman, 314 F.3d 837, 840 (7th Cir. 2002) (conceding guilt may be valid trial strategy), cert. denied, 538 U.S. 1058, 123 S. Ct. 2238, 155 L. Ed. 2d 1108 (2003); see also Jones v. State, 110 Nev. 730, 738-39, 877 P.2d 1052 (Nev. 1994) (applying presumption of prejudice to imposition of insanity defense against defendant’s wishes).


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    CONNECTICUT EDUCATION ASSOCIATION, INC. v. MILLIMAN USA, INC., ET AL.
    (AC 28123)
    Gruendel, Lavine and Pellegrino, Js.

      Argued October 9, 2007
    officially released January 29, 2008

      Martin A. Gould, with whom was Mark W. Baronas, for the appellant (plaintiff).

      Paul E. Pollock, for the appellee (defendant Sorokin, Gross & Hyde, P.C.).
   Opinion

PELLEGRINO, J.

The plaintiff, the Connecticut Education Association, Inc., appeals from the judgment, rendered after a trial to the court, in favor of the defendant Sorokin, Gross & Hyde, P.C., a Connecticut law firm. On appeal, the plaintiff claims that the trial court improperly (1) found that there was no contract between the parties as alleged in the complaint and (2) determined that part of the complaint sounded in tort, rather than contract. We affirm the judgment of the trial court.

The court made the following factual findings relevant to our discussion. The plaintiff is a union that represents public school teachers. The plaintiffs employees are unionized, and the benefits provided by the pension plan for these employees were subject to collective bargaining. The defendant advised the plaintiff with respect to its pension plan and related matters from 1989 until 1998. Milliman USA, Inc. (Milliman), provided the plaintiff with actuarial services during this time period.

In 1995, the plaintiff became concerned with the costs of funding its employees’ pension plan. At this time, eligible retirees could choose to receive their pension either in a lump sum or in periodic payments. Both options included an annual cost of living adjustment (annual adjustment) of 2 percent. The plaintiff realized that an unexpected number of retirees were selecting the lump sum option, which caused a financial strain on the pension plan.

Two directors of the plaintiff, John Yrchik, the executive director, and Carol DeBarba, the director of administration and finance, sought ways to reduce this burden on the pension plan. Yrchik and DeBarba, acting on behalf of the plaintiff, requested assistance from both Milliman and the defendant. Specifically, DeBarba contacted Barrie Wetstone, the partner in the defendant law firm who handled the plaintiffs account, and requested a legal opinion as to whether certain proposed changes to the pension plan were permissible. One of the changes proposed by the plaintiff was whether the annual adjustment could be eliminated when a retiree chose the lump sum option. The plaintiffs request for a legal opinion was faxed to the defendant on November 2, 1995.

In a letter dated November 28, 1995, Sharon Kowal-Freilich, an associate in the defendant law firm, formally responded to the plaintiffs request. This letter opined that the annual adjustment could be eliminated when a retiree chose the lump sum option, as long as it is done only on a prospective basis. The plaintiff used this information in its negotiations with the Connecticut Education Association Professional Staff Organization, the union that represented the professionals employed by the plaintiff. The plaintiff and that union ultimately agreed to amend the pension plan. Specifically, the amendment provided that if a retiree elected the lump sum option, then the annual adjustment was eliminated. If, however, a retiree opted for periodic payments, then he or she was entitled to a 2.5 percent annual adjustment. The defendant drafted language to amend the pension plan in accordance with this agreement.

On or about the end of August, 1998, the plaintiff ended its professional relationship with the defendant. The plaintiff hired a law firm based in Washington, D. C., Bredhoff & Kaiser (Bredhoff), as counsel with respect to the pension plan. The plaintiff then reached an identical arrangement with the Associated Staff Organization of the Connecticut Education Association, the union representing the staff members of the plaintiff, with respect to the annual adjustments. Bredhoff incorporated these changes. Additionally, Bredhoff submitted the pension plan to the Internal Revenue Service for review, as a cautionary measure, and received an approval letter in March, 1999.

On April 19, 2001, an actuary employed by Milliman faxed DeBarba information regarding a recent federal District Court case, Laurenzano v. Blue Cross & Blue Shield of Massachusetts, 134 F. Sup. 2d 189 (D. Mass. 2001). The actuary was concerned that the disparate treatment of the annual adjustments was not permissible. DeBarba eventually requested a legal opinion from Bredhoff. On October 19, 2001, Bredhoff “advised that the discrepancy in treatment was improper” and recommended reverting to the 2 percent annual adjustment for both lump sum and annuity pensions. The plaintiff unilaterally amended the pension plan to enact this recommendation, and, as a result, a complaint was filed with the National Labor Relations Board. During the pendency of this complaint, the plaintiff incorporated a 2.5 percent annual adjustment as to both options, which subsequently was negotiated down to 2 percent.

The plaintiff commenced the present action, and the operative complaint, dated March 21, 2005, alleged, inter alia, negligence and breach of contract on the part of Milliman, and breach of contract by the defendant. The court rendered judgment in favor of Milliman and the defendant on September 22, 2006. With respect to the claim against the defendant, the court concluded that it was not “persuaded by a preponderance of the evidence that [the plaintiff] and [the defendant] entered into the agreement which has been alleged. ” This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly found that there was no contract between the parties as alleged in the plaintiffs complaint. Specifically, it argues that there was no conflicting evidence regarding the critical terms of the contract. We are not persuaded.

The following additional facts are necessary for our resolution of this issue. In paragraph four of count three of the plaintiffs operative complaint, the following was alleged: “On or about 1999, the defendant . . . contracted with the [plaintiff] to provide the [plaintiff] with competent and professional legal services necessary and appropriate to maintain the [plaintiffs] Pension Plan ... in good standing as a qualified defined benefit pension plan, under the Internal Revenue Code . . . and the Employment Retirement Income Security Act [of 1974 (ERISA), 29 U.S.C. § 1101 et seq.] ... and agreed, as part of said contract, to perform said services with due diligence and reasonable care.” In its answer, the defendant denied this allegation.

DeBarba testified that she was employed by the plaintiff from 1993 until January, 2005. One of her responsibilities was to oversee the pension plan. DeBarba acknowledged that the defendant had advised the plaintiff regarding the plan beginning in the late 1980s, prior to her employment with the plaintiff. She testified that Wetstone and Kowal-Freilich drafted plan amendments and reviewed the plan to keep it in compliance with the law. She further explained that this arrangement had been established prior to her employment with the plaintiff.

Yrchik testified that he was the plaintiffs executive director starting in May, 1995. He admitted that, at the time this employment commenced, the defendant already had been in place as pension plan counsel. Specifically, Yrchik stated: “[The plaintiff] had an ongoing relationship with the [defendant]. If we needed legal opinions, we asked the [defendant]. If we needed plan amendments to be drafted, the [defendant] drafted them, and the [defendant] was responsible for ensuring that the plan was in compliance with the federal law.”

Kowal-Freilich testified that she began working for the defendant in 1985 and remained in its employ until December, 2000. She began practicing in the employment benefit department in late 1989 or early 1990. During cross-examination, the plaintiffs counsel questioned Kowal-Freilich as follows:

“Q. And your arrangement with the [plaintiff] was to help them with their pension plan and to keep it in compliance with the [Internal Revenue Service] code and ERISA, correct?

“A. Correct.

“Q. And so you answered any questions that they would pose to you regarding the pension plan?

“A. Correct. . . .

“Q. You would tell them when they were out of compliance or when they were in compliance?

“A. We would tell them what they needed to do to address a particular issue to stay in compliance. Yeah.

“Q. Okay. If you became aware of a change in the law, whether through a new case or a new regulation or something that would put the compliance of their plan in jeopardy, would you—would it be part of your arrangement with them to let them know?

“A. Yes.

“Q. And that was the agreement that you had with them, that you would do that?

“A. Well, yeah, I guess.” (Emphasis added.)

In its memorandum of decision, the court noted that the plaintiff had alleged a “rather precise contractual agreement . . . .” Furthermore, the court found that the plaintiff failed to prove, by a preponderance of the evidence, that the parties had entered into the contract alleged in the operative complaint. The court further found that the defendant did not promise the specific result of ensuring that the pension plan would remain compliant with the Internal Revenue Service code and ERISA standards. On appeal, the plaintiff maintains that the court’s findings were improper because the “testimony presented by both parties was that [the defendant] was responsible for ensuring that the [plaintiffs] plan was in compliance with the [Internal Revenue Service] code and ERISA.”

As a preliminary matter, we set forth certain legal principles germane to our discussion. “It is well settled that the existence of a contract is a question of fact.” (Internal quotation marks omitted.) Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 216, 932 A.2d 401 (2007); Aquarion Water Co. of Connecticut v. Beck Law Products & Forms, LLC, 98 Conn. App. 234, 238, 907 A.2d 1274 (2006); see also C. Tait, Connecticut Evidence (3d Ed. 2001) § 3.6.2, p. 147. “Whether the plaintiff sustained his burden of proof is a question of fact for the trier. Our job in reviewing a factual determination of the trial court is limited. We are not the finders of fact; that is for the trial court. . . . Our job is merely to examine if there is sufficient evidence in the record to support the decision of the trial court.” (Citation omitted; internal quotation marks omitted.) Northeast Gunite & Grouting Corp. v. Chapman, 20 Conn. App. 201, 203-204, 565 A.2d 256 (1989). Put differently, the court’s evaluation of the evidence is a proper exercise of its fact-finding function, and its findings may be upset only if we determine them to be clearly erroneous. See Hunter’s Ambulance Service, Inc. v. Shernow, 70 Conn. App. 96, 111, 798 A.2d 991 (2002).

“In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.” (Citation omitted; internal quotation marks omitted.) Cadle Co. v. D’Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004); see also Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 227, 890 A.2d 509 (“[credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude” [internal quotation marks omitted]), cert. denied, 549 U.S. 823, 127 S. Ct. 157, 166 L. Ed. 2d 39 (2006); Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 507, 646 A.2d 1289 (1994).

In the present case, the court heard testimony from three witnesses, DeBarba, Yrchik and Kowal-Freilich with respect to the arrangement between the plaintiff and the defendant. None of the witnesses provided any direct testimony regarding the origin, formation, details or scope of the contract between the parties. No written contract was entered into evidence. No testimony was given by any partner in the defendant law firm or by any of the plaintiffs employees or supervisors. DeBarba and Yrchik were not employed at the time that the defendant was hired as legal counsel for the pension plan. Kowal-Freilich stated that it was her understanding that the arrangement was for the defendant to keep the pension plan in compliance with the Internal Revenue Service code and ERISA. At the conclusion of her testimony, however, she clearly demonstrated some uncertainty as to the scope of the agreement that existed.

“Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption ... in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., supra, 284 Conn. 216-17. Furthermore, “[t]he trial court is not bound by the uncontradicted testimony of any witness.” (Internal quotation marks omitted.) West Farms Mall, LLC v. West Hartford, 279 Conn. 1, 17, 901 A.2d 649 (2006); see also Bieluch v. Bieluch, 199 Conn. 550, 555, 509 A.2d 8 (1986); Moss v. Foster, 96 Conn. App. 369, 378 n.6, 900 A.2d 548 (2006) (trier of fact can disbelieve any evidence, even if uncontradicted); Giulietti v. Giulietti, 65 Conn. App. 813, 878, 784 A.2d 905 (trial court free to reject uncontradicted testimony of witness), cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001); State v. Alvardo, 62 Conn. App. 102, 110-11, 773 A.2d 958 (trier of fact free to reject uncontradicted testimony and equally free to reject part of witness’ testimony even if other parts credible), cert. denied, 256 Conn. 907, 772 A.2d 600 (2001). Put another way, “[a]bsence of direct contradiction by the mouth of a witness does not make a fact undisputed within the meaning of the rule. . . . The trial court is at liberty to discredit any witness or multitude of witnesses, if it deems that it has cause to do so. It is one of the important functions of a trier to determine the relative credit to be given to oral evidence.” (Internal quotation marks omitted.) Greco v. Morcaldi, 145 Conn. 685, 687, 146 A.2d 589 (1958); State v. Coulombe, 143 Conn. 604, 608, 124 A.2d 518 (1956).

On the basis of our review of the record, we conclude that the court was free to conclude that the plaintiff failed to establish the existence of the agreement alleged in its complaint. See, e.g., C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 3.1, pp. 36-37. We are not presented with a situation in which there is uncontroverted, overwhelming documentary evidence supporting the existence of the contract alleged in the plaintiffs complaint that would warrant a departure from the general rule that permits a trial court to reject even uncontested evidence. See Willow Funding Co., L.P. v. Grencom Associates, 246 Conn. 615, 623, 717 A.2d 1211 (1998). Instead, the court was presented with testimony from three witnesses, none of whom participated in the formation of the alleged agreement between the parties. In the exercise of its fact-finding responsibility, the court concluded that the evidence did not support the contract alleged. Restricted by our limited scope of review, we cannot conclude that this finding was improper.

We decline the plaintiff’s invitation to second-guess the court’s assessment of the credibility of the witnesses. See Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. 507. The court was able to observe the witnesses’ demeanor and to judge their credibility. It was within that court’s discretion to find that the evidence was insufficient to establish the existence of the contract alleged in the plaintiffs operative complaint. Consequently, we cannot say that the court’s decision was clearly erroneous.

II

The plaintiff next claims that the court improperly determined that part of the complaint sounded in tort, rather than contract. Specifically, it argues that our jurisprudence requires nothing more than an allegation that the defendant breached the implied agreement to use due diligence and reasonable care to establish its breach of contract claim. We agree in part with the plaintiff but affirm the decision of the court on other grounds.

The following additional facts are necessary for our discussion. In the operative complaint, the plaintiff alleged that the defendant agreed, “as part of said contract, to perform said services with due diligence and reasonable care.” In response to this allegation, the court, in its memorandum of decision, stated: “To the extent that the third count alleges that legal services were not performed ‘with due diligence and with reasonable care,’ then the claim functionally sounds in tort and is barred by the statute of limitations. I do not find that any more specific agreement was mutually agreed to.”

The plaintiff contends that a party may bring a claim of malpractice or breach of contract on the basis of inadequately performed professional services. We agree with this general statement of the law. “It is well settled that an attorney may be subject to a claim for breach of contract arising from an agreement to perform professional services. ... In a claim such as this, the client [usually] has the option to sue for either breach of an implied contract, negligence or both.” (Citation omitted; internal quotation marks omitted.) Celentano v. Grudberg, 76 Conn. App. 119, 124-25, 818 A.2d 841, cert. denied, 264 Conn. 904, 823 A.2d 1220 (2003); see also Mac’s Car City, Inc. v. DeNigris, 18 Conn. App. 525, 530, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). That is not to say, however, that a party “may bring an action in both negligence and contract merely by couching a claim that one has breached a standard of care in the language of contract. Thus, we believe that a claim that a defendant promised to work diligently or in accordance with professional standards is not made a contract claim simply because it is couched in the contract language of promise and breach. Additionally, that case is distinguishable from a true contract claim in which a plaintiff asserts that a defendant who is a professional breached an agreement to obtain a specific result.” Caffery v. Stillman, 79 Conn. App. 192, 197, 829 A.2d 881 (2003).

The question, then, is whether the allegations in the third count of the plaintiffs operative complaint sound in contract or tort. If a contract claim was set forth, then the six year statute of limitations applied. If a tort claim was set forth, then the court properly concluded that it was time barred by the three year statute of limitations. We begin our analysis with the observation that the interpretation of pleadings is always a question of law for the court, and our review, therefore, is plenary. See id.; see also Carpenter v. Commissioner of Correction, 274 Conn. 834, 842, 878 A.2d 1088 (2005).

A brief review of the relevant case law will facilitate our discussion. In Shuster v. Buckley, 5 Conn. App. 473, 478, 500 A.2d 240 (1985), we stated: “Where the plaintiff alleges that the defendant negligently performed legal services and failed to use due diligence the complaint sounds in negligence, even though he also alleges that he retained him or engaged his services.” See also Alexandra v. Strong, 81 Conn. App. 68, 79, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004). In Hill v. Williams, 74 Conn. App. 654, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003), we concluded that allegations of a lawyer’s refusal to take certain actions indicated an intentional act rather than inadvertence or negligence and went beyond “being merely couched in the language of tort . . . .” (Internal quotation marks omitted.) Id., 659. Finally, in Rosato v. Mascardo, 82 Conn. App. 396, 410, 844 A.2d 893 (2004), we rejected the argument that “Connecticut law does not recognize a medical malpractice claim that proceeds on a contract theory unless there has been a claim of a breach of a promise to achieve a particular result . . . .” We examined the complaint and concluded that it did not set forth a cause of action of negligence or malpractice but instead “specified alleged acts of the defendant that would constitute a deviation from the alleged agreement between the parties.” Id., 411.

The plaintiff alleged that the defendant agreed to maintain the pension plan in compliance pursuant to the Internal Revenue Service code and ERISA “and agreed, as part of said contract, to perform said services with due diligence and reasonable care.” It further alleged that the defendant breached the contract, inter alia, by failing “to provide competent and professional legal services necessary and appropriate to maintain the [pension plan] in good standing as a qualified defined benefit pension plan, and to perform said services with due diligence and reasonable case.” We conclude that these allegations set forth a breach of contract claim and are more than a malpractice claim couched in the language of promise and breach. The plaintiffs allegations refer to specific actions required by the plaintiff, that is, that the defendant maintain the pension plan in compliance with the Internal Revenue Service code and ERISA. The operative complaint further sets forth a claim that the defendant had agreed to undertake those specific actions with due diligence and reasonable care. We conclude, contrary to the court, that the plaintiffs claim does not functionally sound in tort.

The application of an equally well established principle controls the resolution of the plaintiffs claim. “It is axiomatic that a plaintiff may rely only upon what he has alleged [and] the right of a plaintiff to recover is limited to the allegations of his complaint. . . . What is in issue is determined by the pleadings and these must be in writing.” (Emphasis added; internal quotation marks omitted.) Saye v. Howe, 92 Conn. App. 638, 642, 886 A.2d 1239 (2005); see also Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002). We explained in Monetary Funding Group, Inc. v. Pluchino, 87 Conn. App. 401, 867 A.2d 841 (2005), that “[p]leadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them. . . . The purpose of a complaint . . . is to limit the issues at trial, and such pleadings are calculated to prevent surprise. ... It is fundamental in our law that the right of a [party] to recover is limited to the allegations in his [pleading]. . . . Facts found but not averred cannot be made the basis for a recovery.” (Emphasis added; internal quotation marks omitted.) Id., 414.

In the present case, the plaintiffs allegations that the defendant failed to perform its services with due diligence and reasonable care were intertwined and commingled with the allegation of “a rather precise contractual agreement . . . .’’It was not a general allegation of a failure on the part of the defendant to exercise due diligence. As we have noted, the plaintiff alleged that the defendant “agreed, as part of said contact, to perform said services with due diligence and reasonable care.” In part I, we concluded that the court properly determined that that plaintiff failed to sustain its burden with respect to the existence of the contract between the parties. As a result of this finding, there was no contract obligating the defendant to perform its services with due diligence. Simply put, the plaintiff did not allege a general failure of the defendant to perform with due diligence and reasonable care. Instead, it claimed that the defendant failed to act with due diligence and reasonable care with respect to a contract specifically obligating the defendant to maintain the pension plan in good standing under the Internal Revenue Service code and ERISA. The court concluded that the plaintiff had failed to prove “the assertion that [the defendant] in effect promised the specific result of the plan’s being in compliance with all Internal Revenue Service and ERISA standards.” The defendant did not owe the plaintiff any contractual duty to perform its services. We conclude, therefore, that the court properly rendered judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also brought this action against Milliman USA, Inc., an actuarial and consulting firm; Barrie Wetstone, a partner in the defendant law firm; and Sharon Kowal-Freilich, an attorney employed by the defendant law firm. The counts directed against Wetstone and Kowal-Freilich were severed by agreement. Additionally, the plaintiff has not appealed from the judgment rendered in favor of Milliman USA, Inc. Accordingly, we refer in this opinion to Sorokin, Gross & Hyde, P.C., as the defendant.

       The defendant claims, as alternative grounds for affirming the judgment of the court, that there was no breach of the alleged contract and that the plaintiff failed to prove damages resulting from the alleged breach of contract. As a result of our resolution of the issues raised by the plaintiff, we need not reach these claims.

       Stuart Lewis, a lawyer who specialized in employee benefit plans, testified that “[a] properly obtained [Internal Revenue Service] determination letter signifies that the [Internal Revenue Service] has approved in form the qualifications of the plan. . . . Qualification meaning meeting the qualification requirement of the Internal Revenue Code.”

       The plaintiffs original complaint, dated March 15, 2002, contained two counts directed against the defendant. Count three of that complaint alleged that the plaintiff sustained damages and losses as a result of the defendant’s “carelessness, negligence and breach of the standard of care . . . . ” Count four of that complaint set forth a breach of contract claim. The defendant moved for summary judgment with respect to both counts. The plaintiff withdrew its negligence claim against the defendant, and the court denied the motion for summary judgment with respect to the breach of contract claim.

       Specifically, Kowal-Freilich stated that in 1985, she obtained employment with the firm of Gross, Hyde and Williams. That law firm merged with Sorokin and Sorokin in 1989, resulting in the formation of the defendant.

       “[I]t is axiomatic that [w]e may affirm a proper result of the trial court for a different reason.” (Internal quotation marks omitted.) Wilson v. Jefferson, 98 Conn. App. 147, 161 n.12, 908 A.2d 13 (2006).

       “Where the complaint alleges legal malpractice based on negligence, the tort statute of limitations applies.” Shuster v. Buckley, 5 Conn. App. 473, 477, 500 A.2d 240 (1985). General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       General Statutes § 52-576 (a) provides: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.”


author: McLACHLAN, J.

text:
    STEPHEN K. REICHENBACH ET AL. v. KRASKA ENTERPRISES, LLC
    (AC 26022)
    DiPentima, McLachlan and Hennessy, Js.

      Argued October 9, 2007
    officially released January 29, 2008

      Neil R. Marcus, with whom was Barbara M. Schel-lenberg, for the appellant (defendant).

      Thomas W. Beecher, for the appellees (plaintiffs).
   Opinion

McLACHLAN, J.

The defendant, Kraska Enterprises, LLC, appeals from the judgment of the trial court, rendered after a trial to the court, granting a permanent injunction in favor of the plaintiffs, Stephen K. Reichen-bach, Ronald W. Kern, Ethel A. Kern, Curtis J. Knapper and Barbara K. Knapper. The defendant claims that the court improperly (1) denied its motion to dismiss the plaintiffs’ action for failure to exhaust administrative remedies, (2) enforced a stipulated judgment against it that had been entered in 1983 and (3) construed the terms of the stipulated judgment. We affirm the judgment of the trial court.

From the evidence presented at trial, the court reasonably could have found the following facts. The plaintiffs own single-family homes on Chatterton Point, which is adjacent to the Chatterton Marina, located on Shore Drive in New Fairfield. The defendant, a limited liability company, owns and operates the Chatterton Marina. The members of the limited liability company are three brothers: Richard Kraska, Philip Kraska and Robert Kraska. Richard Kraska, the oldest brother, is the managing member of the business. The Kraska brothers have been operating the marina since 1994. Prior to that time, the grandfather of the Kraska brothers, Richard Chatterton, owned the business, and they became more involved in the operation as their grandfather’s health deteriorated. The defendant acquired the marina from the grandfather’s estate in 1999.

Chatterton began operating the marina in the late 1940s or early 1950s. The parties stipulated that after 1974, the marina became a preexisting, nonconforming use. Since 1974, it has been and remains located in a residential zone, which prohibits commercial marinas, boatyards and the servicing and repairs of boats and boat engines. In 1977, the town of New Fairfield brought an action against Chatterton, doing business as the Chatterton Marina, and the Candlewood Yacht Club, Inc., to enforce the town’s zoning regulations and to prohibit the expansion of the nonconforming marina use. As a result of that litigation, those parties entered into a stipulated judgment that was approved by the Superior Court on January 18, 1983 (1983 stipulated judgment). In that judgment, the court ordered, inter alia, that the defendant Chatterton was permanently enjoined from (1) increasing the level and intensity of his use of the property as a boat marina and boat service business beyond that existing in June, July, August and September, 1974, (2) increasing the number of his floating piers to more than three, increasing the number of his moorings to more than fifteen and increasing the number of his boat slips to more than seventy-five, (3) storing any boats, vessels or yachts on lots designated as “E” and “F” on the map attached as schedule A to the judgment and (4) using the property for overnight camping.

The Kerns purchased property located at 6 Shore Drive on Chatterton Point in New Fairfield in 1972. Reichenbach and his wife purchased property at 10 Shore Drive on Chatterton Point in New Fairfield in 1991. The property of the Knappers is located between the properties owned by Reichenbach and the Kerns. Reichenbach and Ronald Kern testified about the defendant’s use of the marina property and its impact on the use and enjoyment of their neighboring properties. They also testified as to the efforts made to resolve their problems with the defendant, such as talking directly with the Kraska brothers, and approaching town officials to enforce the regulations and the 1983 stipulated judgment. When their efforts failed, the plaintiffs commenced the present action against the defendant, claiming a private nuisance, and seeking damages and an injunction to prohibit its violation of the zoning regulations and the 1983 stipulated judgment.

At the conclusion of a four day trial in October, 2004, counsel for the parties requested that the court allow them the opportunity to brief the legal issues and to schedule a date for oral argument. On October 15, 2004, the parties filed their posttrial briefs. The defendant also filed a motion to dismiss, with an accompanying memorandum, claiming that the court lacked subject matter jurisdiction over the plaintiffs’ action because they had failed to exhaust their administrative remedies. On October 18, 2004, the court first heard argument on the defendant’s motion to dismiss. After denying the motion, counsel for the parties argued the issues as briefed.

The court issued its memorandum of decision on November 3, 2004. In that decision, the court found that (1) the plaintiffs had standing to sue and that the matter was ripe for judicial action, (2) Richard Kraska, the defendant’s financial officer, acknowledged through counsel and at trial that the marina was bound by the 1983 stipulated judgment, (3) the defendant was in violation of the orders set forth in the 1983 stipulated judgment, (4) the defendant created an ongoing nuisance to the plaintiffs, whose safe and quiet enjoyment of their properties had been compromised, and (5) the defendant, through purposeful interactions with various town officials, had thwarted the efforts of the plaintiffs and the current zoning commission to enforce the applicable regulations and the 1983 stipulated judgment.

The court rendered judgment in favor of the plaintiffs and issued a permanent injunction enjoining certain activities and ordering certain actions to be taken in connection with the operation of the marina. Included in the orders was the requirement that the defendant comply with the applicable regulations of the town of New Fairfield and the 1983 stipulated judgment. The court did not award monetary damages. This appeal followed.

I

As a threshold matter, we address the defendant’s claim that the court lacked subject matter jurisdiction because the plaintiffs failed to exhaust their administrative remedies. The defendant filed a motion to dismiss the action after the parties had rested but before the court rendered its judgment. “[Ojnce the question of lack of jurisdiction of a court is raised, [however, it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case.” (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 616, 872 A.2d 408 (2005).

“Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum. ... In the absence of exhaustion of that remedy, the action must be dismissed.” (Internal quotation marks omitted.) Miskimen v. Biber, 85 Conn. App. 615, 618 n.3, 858 A.2d 806 (2004), cert. denied, 272 Conn. 916, 866 A.2d 1287 (2005). The defendant claims that the plaintiffs should have appealed to the town’s zoning board of appeals when the town’s zoning enforcement officer withdrew a cease and desist order issued to the defendant on July 16, 2001. That order indicated that the defendant was in violation of the 1983 stipulated judgment and the zoning regulations of the town of New Fairfield. At the very least, the defendant argues, the plaintiffs should have requested that the zoning enforcement officer issue another cease and desist order if they believed the defendant was continuing to violate the zoning regulations.

This claim is without merit for a number of reasons. First, the plaintiffs not only sought enforcement of the zoning regulations but also the 1983 stipulated judgment, and they sought damages for nuisance. The court specifically found that the defendant’s conduct constituted a nuisance. Second, there was testimony at trial that the cease and desist order was withdrawn by the zoning enforcement officer because the matter was thought to have been settled. There also was testimony that the neighbors had, on numerous occasions, attempted to enlist the assistance of the town in resolving their issues with the defendant. When the problems continued, Reichenbach indicated that the plaintiffs believed that they had no other recourse but to commence the present action.

In addition, our case law is clear that nearby property owners specifically and materially damaged by the violation of zoning regulations may bring private zoning enforcement actions directly to the Superior Court, without first applying to municipal zoning authorities, as an exception to the exhaustion of administrative remedies doctrine. See Simko v. Ervin, 234 Conn. 498, 504, 661 A.2d 1018 (1995); Cummings v. Tripp, 204 Conn. 67, 527 A.2d 230 (1987); Blum v. Lisbon Leasing Corp., 173 Conn. 175, 180, 377 A.2d 280 (1977); Miskimen v. Biber, supra, 85 Conn. App. 617 n.3; Raymond v. Rock Acquisition Ltd. Partnership, 50 Conn. App. 411, 415-16, 717 A.2d 824 (1998).

As noted by our Supreme Court: “At common law, property owners have the right to seek an injunction as well as damages for a nuisance affecting the enjoyment of their property. This right is supplementary to the right to seek injunctive relief from the zoning authorities for the violation of a zoning ordinance. ... In deciding whether a nuisance exists, a court will often find it necessary to interpret the pertinent zoning regulations because the nuisance issue is intertwined with the lawfulness of the conduct involved. From a judicial viewpoint, it would be both inefficient and time consuming to require a litigant, as a prerequisite to judicial consideration of the nuisance claim, to exhaust his or her administrative remedies by first obtaining a ruling from the zoning board of appeals as to the lawfulness of the defendant’s conduct.” (Citation omitted.) Cummings v. Tripp, supra, 204 Conn. 79-80.

In the present case, the plaintiffs alleged that the defendant’s activities and use of the Chatterton Marina, which resulted in increased use, traffic and noise that interfered with the quiet enjoyment of their properties, constituted a nuisance to the plaintiffs. There was considerable testimony at trial by Reichenbach and Ronald Kern as to the effect of the boat traffic and repair activities of the defendant on the use and enjoyment of their properties as well as the danger to their safety and that of their families. Nuisance was not only alleged but proved to the satisfaction of the court. It specifically found that “the conduct of the defendant constitute [d] a nuisance and damages were caused to the plaintiffs,” and that “[the defendant] created an ongoing nuisance to the neighbors, whose safe and quiet enjoyment of their property has been compromised.”

Although the defendant never challenged the adequacy of the plaintiffs’ allegations pertaining to nuisance in a pretrial motion, it claimed in its posttrial motion to dismiss that the plaintiffs’ action did not fall within the exception to the exhaustion of administrative remedies doctrine because they failed to allege specific and material damage as the result of the defendant’s activities but, rather, made conclusory allegations of irreparable harm. On appeal, the defendant likewise claims that the plaintiffs’ nuisance allegations are “con-clusoiy, not clear and precise allegations of specific and material claims of damage.”

“ [T]he interpretation of pleadings is always a question of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary.” (Internal quotation marks omitted.) Petitte v. DSL.net, Inc., 102 Conn. App. 363, 374, 925 A.2d 457 (2007). “Our general practice in this state is to require fact pleading only. . . . Practice Book § 10-1 requires only that each pleading contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved . . . .” (Citation omitted; internal quotation marks omitted.) Florian v. Lenge, 91 Conn. App. 268, 274, 880 A.2d 985 (2005). “[T]he modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Owen, 88 Conn. App. 806, 813, 873 A.2d 1003, cert. denied, 275 Conn. 902, 882 A.2d 670 (2005).

The plaintiffs’ operative complaint alleges: “By reason of the activities and uses of the Chatterton Marina cited [in the complaint], which results in increased use, traffic and noise and interference with the quiet enjoyment of the [plaintiffs’ properties, and/or constitute a nuisance to the [plaintiffs and which also results in the impairment of the value of the [plaintiffs’ properties, if these activities and uses, which constitute expansions of any valid, non-conforming use and violations of the zoning regulations and the 1983 [stipulated [j]udgment are permitted to continue, the [p]laintiffs will suffer irreparable injury for which they have no adequate remedy at law.” We conclude that the plaintiffs’ complaint adequately defined the claim that the defendant’s conduct constituted a nuisance and that the plaintiffs were specifically and materially damaged by that conduct.

The defendant also claims that the plaintiffs’ action does not fall within the exception to the exhaustion doctrine because they abandoned their claim of damages at trial and presented no evidence to support the allegations in their complaint that they had been harmed. Specifically, it argues that the plaintiffs’ failure to introduce testimony by an appraiser or themselves as to the diminution in value to their properties caused by the defendant’s activities precluded the court from finding that they had been damaged. We disagree.

In their prayers for relief, the plaintiffs sought, inter alia, money damages. The defendant is correct that no testimony was presented to the court with respect to the diminution in value of the plaintiffs’ properties. Consequently, the court did not award money damages to the plaintiffs.

The plaintiffs, however, also requested injunctive relief in their prayer for relief. “If the plaintiffs have suffered special damages as alleged in their complaint, the court has equitable jurisdiction and may grant injunctive relief.” Blum v. Lisbon Leasing Corp., supra, 173 Conn. 180. Economic damage is but one form of special damage that would entitle a plaintiff to injunctive relief. See Granger v. A. Aiudi & Sons, 60 Conn. App. 36, 44-45, 758 A.2d 417, cert. denied, 255 Conn. 902, 762 A.2d 908 (2000).

In a nuisance action, the trier of fact may properly consider discomfort and annoyance. See Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 41, 404 A.2d 889 (1978); Herbert v. Smyth, 155 Conn. 78, 81-84, 230 A.2d 235 (1967); Nailor v. C. W. Blakeslee & Sons, Inc., 117 Conn. 241, 246, 167 A. 548 (1933). In the present case, the court heard extensive testimony concerning the unreasonable noise, dust and traffic, as well as the danger to the plaintiffs’ safety, caused by the increased boat traffic and the defendant’s activities at the marina. The court’s findings in this regard support the issuance of the permanent injunction.

Accordingly, the plaintiffs’ action fell within the exception to the exhaustion of administrative remedies doctrine, and the court properly denied the defendant’s motion to dismiss.

II

The defendant next claims that the court improperly enforced the 1983 stipulated judgment against it, a non-party to that judgment, because it had insufficient notice of the judgment prior to its purchase of the marina. Specifically, the defendant argues that there was no evidence that the stipulated judgment was recorded in the land records of New Fairfield or that any of the Kraska brothers had actual notice of all of the terms in that judgment. The defendant claims that, as a subsequent purchaser of the marina property, it could be bound only by those facts that appear in its chain of title to the property.

The defendant’s claim regarding lack of actual or constructive notice is being raised for the first time on appeal. During the trial, counsel for the defendant, in his opening statement, indicated that the defendant intended to present evidence to show that it was in compliance, and always had been in compliance, with the 1983 stipulated judgment. The case was tried on that theory, and neither counsel nor the defense witnesses ever claimed that the 1983 stipulated judgment did not apply to the defendant. In fact, Richard Kraska testified that he was very familiar with the 1983 stipulated judgment and related the efforts of the defendant to comply with the orders set forth therein.

In its posttrial brief, and during the closing argument to the court, the defendant claimed that the 1983 stipulated judgment was not applicable because the judgment did not contain language that the orders were applicable to the “heirs, successors and assigns” of the parties to that judgment. The defendant argued that the stipulated judgment could not be enforced against it because the plaintiffs failed to prove that the defendant

was in privity with Chatterton. The court did not agree with the defendant’s claim, and the defendant has not raised the privity issue on appeal.

No argument was made by the defendant, in the pleadings, briefs or statements made before the court, that it had no actual or constructive notice of the terms of the 1983 stipulated judgment. Because it was not raised at trial, we will not consider the notice issue on appeal. “[A] party cannot present a case to the trial court on one theory and then seek appellate relief on a different one . . . .” (Citation omitted; internal quotation marks omitted.) Ingels v. Saldana, 103 Conn. App. 724, 730, 930 A.2d 774 (2007). “For this court to . . . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.” (Internal quotation marks omitted.) Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn. App. 663, 680, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005).

The court’s conclusion that the 1983 stipulated judgment applied to the defendant, therefore, remains undisturbed. We also note, however, that even if the notice issue had been properly presented to the court and preserved as an issue on appeal, the defendant could not prevail because it did not challenge the court’s finding that the defendant’s activities constituted a nuisance and caused harm to the plaintiffs. If the stipulated judgment was not applicable to the defendant, the defendant nevertheless created a nuisance, and the court could enter injunctive relief on that basis alone.

III

Because we have determined that the 1983 stipulated judgment is applicable to the defendant for the reasons set forth in part II, we address the defendant’s final claim that the court misinterpreted the terms of that judgment. In its decision, the court found that the defendant violated the stipulated judgment and ordered it to remove permanently all picnic tables and benches from the marina property. Further, the court defined a “boat slip” as “one parking space for one single boat, vessel, yacht or watercraft (boat) at, and tied to, the piers and/or fingers attached to said piers” and limited the defendant to a maximum number of seventy-five boat slips. (Emphasis in original.) The defendant challenges those orders, claiming that the 1983 stipulated judgment does not prohibit the use of benches and picnic tables on its property. It further argues that the term “boat slip” is not defined in the 1983 stipulated judgment and that the evidence at trial did not support the court’s definition of that term.

With respect to the picnic tables and benches, the defendant is correct that no mention is made of them in the 1983 stipulated judgment. That fact, however, is of no moment. As we previously noted, the court found that the defendant’s activities constituted a nuisance, and the defendant has not challenged that finding in this appeal. There was testimony presented that the defendant placed the tables and benches on the marina property sometime in 1998 or 1999. At that time, the customers of the marina began having parties and stayed late into the evening, were very loud and allowed their dogs to trespass onto the plaintiffs’ properties. The court reasonably could have concluded that the noisy parties late into the evening unreasonably interfered with the plaintiffs’ use and enjoyment of their properties. It, therefore, properly could enjoin the use of the tables and benches on the defendant’s property.

With respect to the defendant’s claim regarding the definition and number of boat slips, the 1983 stipulated judgment specifically prohibited more than seventy-five boat slips and prohibited increasing the level and intensity of the use of the property as a boat marina. That judgment, however, did not define the term “boat slip,” and the parties in the present case disputed its meaning. The court heard testimony from the parties and their witnesses as to the history of the marina property and their opinions as to the proper construction of that term. In order to determine whether the defendant had violated the 1983 stipulated judgment, the court had to define the term “boat slip.”

“A stipulated judgment is not a judicial determination of any litigated right. ... It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. ... [It is] the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy. . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement.” (Internal quotation marks omitted.) Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn. App. 1, 17-18, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514 (2004).

“In giving meaning to the terms of a contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered together. . . . The contract must be construed to give effect to the intent of the contracting parties. . . . This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained. . . . [I]ntent ... is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” (Internal quotation marks omitted.) Phillips v. Phillips, 101 Conn. App. 65, 74, 922 A.2d 1100 (2007). “[Where] . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard.” (Internal quotation marks omitted.) Wolosoff v. Wolosoff, 91 Conn. App. 374, 381, 880 A.2d 977 (2005). Whether a contract is ambiguous is a question of law subject to plenary review. See Enviro Express, Inc. v. AIU Ins. Co., 279 Conn. 194, 200, 901 A.2d 666 (2006).

We, therefore, must determine initially whether the agreement, specifically the term “boat slip,” was ambiguous. “A word is ambiguous when it is capable of being interpreted by reasonably well informed persons in either of two or more senses. . . . ‘Ambiguous’ can be defined as unclear or uncertain, or that which is susceptible of more than one interpretation, or understood in more ways than one.” (Citation omitted.) Baldwin v. Baldwin, 19 Conn. App. 420, 422, 562 A.2d 581 (1989). We conclude that the term “boat slip” is not self-evident and is, therefore, ambiguous.

“Because we have concluded that the relevant term of the agreement is ambiguous, [t]he determination of the intent of the parties to a contract ... is a question of fact subject to review under the clearly erroneous standard. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Citation omitted; internal quotation marks omitted.) Phillips v. Phillips, supra, 101 Conn. App. 75.

Here, the court was presented with dictionary definitions and witness testimony as to the definition of “boat slip.” The court adopted the definition given by the zoning enforcement officer, the zoning commission and Reichenbach. It declined to adopt the definition proffered by Richard Kraska. Having thoroughly reviewed the briefs, record and transcripts, we conclude that the court’s definition of “boat slip” was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Stacie Ann Reichenbach also was a plaintiff, but she died before the trial commenced.

       The property owned by the Candlewood Yacht Club, Inc., is located to the east of the defendant’s property and is not involved in this appeal.

       On the third day of the trial, the court, with the consent of the parties, viewed the area of Chatterton Point and the properties of the parlies.

       When the defendant filed its appeal, the plaintiffs timely filed their own statement of issues, claiming, as an alternate ground for affirming the court’s judgment, that the town’s zoning regulations prohibiting the expansion of nonconforming uses would require the rendering of judgment in favor of the plaintiffs even if the 1983 stipulated judgment did not apply to the defendant. The plaintiffs filed a motion for articulation with the trial court in order to present an adequate record to this court in connection with that claim.
      Pursuant to an order of this court, the trial court further articulated its order as follows: “The court finds that the parameters for approved activities were set out in the 1983 judgment of the court and that the conduct of the defendant posfjudgment violated that order. Those prior violations and the uses enjoined by the court order are unlawful expansions of valid nonconforming uses, which are in violation of the zoning regulations of the town of New Fairfield.”
      Because we do not agree with the defendant’s claims on appeal, we need not consider the plaintiffs’ alternate ground for affirmance or the arguments presented by the defendant addressed to that issue.

       We note that Richard Kraska, during his direct examination, testified that he was “very familiar” with the zoning history of the marina property and, as previously stated, was “very familiar” with the 1983 stipulated judgment.