author: BISHOP, J.

text:
    SALOMON SMITH BARNEY, INC., ET AL. v. JERRY COTRONE
    (AC 23545)
    Lavery, C. J., and Dranginis and Bishop, Js.

      Argued January 8 —
    officially released March 2, 2004

      Christopher C. L. Hooper, with whom, on the brief, were Brent M. Stratton and Arthur L. Ledford, for the appellant (defendant).

      JohnR. Snyder, with whom, on the brief, was Stewart E. Newman, for the appellees (plaintiffs).
   Opinion

BISHOP, J.

This is an appeal by the defendant, Jerry Cotrone, from the judgment of the trial court granting the application filed by the plaintiffs, Salomon Smith Barney, Inc. (Salomon), and its financial advisor-employee, Mijanou M. Spurdle, to compel arbitration of the defendant’s claim against the plaintiffs. We affirm the judgment of the trial court.

On appeal, the defendant has asserted several claims that fairly can be summarized as follows: (1) the purported agreement between him and Salomon was unsigned and, therefore, does not comply with the prerequisites of General Statutes § 52-408 for enforcement; and (2) the purported agreement, even if signed, is invalid. As to the latter claim, the defendant asserts that the contract is ambiguous and violates good faith and fair dealing, that he was deceived by Spurdle as to the effect of the agreement, that the agreement does not comport with the requirements of the New York Stock Exchange and the National Association of Securities Dealers for contracts between brokerage houses and their clients, and, finally, that the agreement is a contract of adhesion.

At the outset, we note that the court’s order compelling arbitration is a final judgment from which an appeal lies. See Smith & Smith Building Corp. v. DeLuca, 36 Conn. App. 839, 841, 654 A.2d 368 (1995). Thus, we have jurisdiction to determine the issues on appeal.

The following procedural and factual background sets the context for our discussion of the defendant’s appeal. On July 1,2002, the plaintiffs filed an application to compel arbitration against the defendant in which they alleged, inter alia, that he had been a customer who had maintained a securities account with Salomon and that Spurdle, an employee of Salomon, had been his financial consultant; the defendant had executed an “account application and client agreement” (agreement) with Salomon; the agreement contained an arbitration clause pursuant to which the defendant had agreed to arbitrate “all claims or controversies” concerning or arising from any of his accounts or any transactions with Salomon, and including any disputes with any employees of Salomon; and despite the agreement to arbitrate, the defendant had commenced an action against the plaintiffs in the Superior Court concerning a dispute arising out of the parties’ business relationship. On the basis of the agreement, the plaintiffs sought an order in this action, directing the defendant to proceed, in compliance with the terms of the agreement and pursuant to 9 U.S.C. § 4 and General Statutes § 52-410, with arbitration of the claims that he had asserted in his action. Subsequently, after oral argument and the submission of affidavits and the agreement, the court granted the plaintiffs’ application to compel arbitration. This appeal followed.

We begin by observing that § 52-408 evinces a public policy favoring arbitration as a vehicle for dispute resolution. It provides in relevant part that “[a]n agreement in any written contract, or in a separate writing executed by the parties to any written contract, to settle by arbitration any controversy thereafter arising out of such contract, or out of the failure or refusal to perform the whole or any part thereof ... to arbitrate any controversy which may arise between them in the future . . . shall be valid, irrevocable and enforceable, except when there exists sufficient cause at law or in equity for the avoidance of written contracts generally.”

General Statutes § 52-410 (a) provides for the enforcement of such agreements. It provides in relevant part that “[a] party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court ... for an order directing the parties to proceed with the arbitration in compliance with their agreement. . . .” When confronted with such an application, the task of the court is to determine whether the parties did, in fact, enter into an agreement and whether the agreement provides for arbitration. See Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 770, 613 A.2d 1320 (1992). Additionally, the issue of whether the parties to a contract have agreed to arbitration implicates their intention, an issue of fact for the court’s determination. A. Dubreuil & Sons, Inc. v. Lisbon, 215 Conn. 604, 608-609, 577 A.2d 709 (1990). Consequently, a court’s finding on the factual question of whether the parties to a contract have agreed to arbitration is subject to review under the clearly erroneous standard. Id., 609.

The defendant first claims that the purported agreement is invalid on the ground that he did not sign the agreement and, thus, it was not in writing. It is well established that for an agreement to arbitrate to be enforceable, it must be in writing. Bennett v. Meader, 208 Conn. 352, 361, 545 A.2d 553 (1988). In this instance, the record reflects that on November 9,1999, the defendant signed the four page, consecutively paginated document on the second page. Directly above his signature, the following is printed: “I acknowledge that I have received the Client Agreement which contains a predispute arbitration clause in section 6.” Section six of the agreement, set out in bold type on page three, is captioned “arbitration.” It provides for final and binding arbitration of any claims arising out of the parties’ business relationship.

Although the defendant acknowledges that he signed the document on page two, he asserts that he did not, in fact, sign the arbitration agreement set forth on page three of the document. In essence, he claims that the four page document was, in fact, two separate two page documents, the first part being the application and the latter part being the actual agreement. Thus, he argues, he signed only the account application and not the agreement itself. We are not persuaded.

Even if the defendant’s construction of the four-page document is correct, his signature on page two of the document suffices to bind him to the arbitration provision on the following page. As correctly noted by the plaintiffs, “[W]here . . . the signatories execute a contract which refers to another instrument in such a manner as to establish that they intended to make the terms and conditions of that other instrument a part of their understanding, the two may be inteipreted together as the agreement of the parties.” (Internal quotation marks omitted.) Lamb v. Emhart Corp., 47 F.3d 551, 558 (2d Cir. 1995) (applying Connecticut law); Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 7, 110 A.2d 464 (1954). The court therefore correctly determined that the agreement to arbitrate was in writing.

The defendant claims alternatively that even if he signed the agreement, it is invalid for a myriad of reasons, as previously noted. We find none of the reasons proffered by the defendant to elude his obligation to arbitrate his claims against the plaintiffs to be persuasive. His claim that the agreement is ambiguous is patently without merit. Contrary to his assertion, the arbitration language in § 6 is clear, direct and unequivocal.

The defendant’s claim that the contract violates the plaintiffs’ duty of good faith and fair dealing appears to be premised on his assertion that he had been friendly with the financial adviser before signing the agreement and that he signed the agreement without fully reading it and understanding its terms. The short answer to that claim is that the record is devoid of any factual or legal support from which the court or we could determine that the agreement to arbitrate violated the defendant’s right to be treated fairly and in good faith. Similarly, the defendant’s claim that he was deceived as to the effect of the agreement finds no support in the record. Additionally, whether the agreement to arbitrate fully comports with the procedural requirements of the New York Stock Exchange is not material to the issue of whether the agreement, as a contract, is enforceable.

Last, we agree with the reasoning of those cases that have held that the question of whether the entire agreement containing an arbitration provision is a contract of adhesion is one for an arbitrator’s determination and not, at this juncture, one for judicial review. See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 637 F.2d 391,398 (5th Cir. 1981); Shotto v. Laub, 632 F. Sup. 516, 522 (D. Md. 1986).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant initially claimed that the contract was illegal because it specifically precludes actions for punitive damages. At oral argument, counsel for the plaintiff withdrew that claim.

       The defendant claims specifically that the agreement violates the New York Stock Exchange rule requiring that on an account application and agreement, there must be notice of an arbitration clause together with notice of the page of the agreement containing the arbitration clause above the signature line. In this instance, there is notice of the arbitration clause above the signature line, but with reference to its section number rather than to the page on which the arbitration clause is found in the agreement.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    FRANK A. ARCANO, JR. v. BOARD OF EDUCATION OF THE CITY OF STAMFORD ET AL.
    (AC 23605)
    Foti, Flynn and DiPentima, Js.

      Argued January 8 —
    officially released March 2, 2004

      Kevin J. Maher, with whom, on the brief, was James D. Moran, Jr., for the appellants (defendants).

      William B. Bilcheck, Jr., for the appellee (plaintiff).
   Opinion

FLYNN, J.

The defendants, the board of education of the city of Stamford and Kemper Insurance Group, appeal from the decision of the workers’ compensation review board (board) affirming the findings and award of the workers’ compensation commissioner (commissioner) in favor of the plaintiff, Frank A. Arcano, Jr. The defendants argue on appeal that the board improperly affirmed the commissioner’s finding that the plaintiff was totally disabled from March 6,1998, until the close of the evidentiary record. The defendants also argue that the method of calculation of attorney’s fees awarded was not articulated by the commissioner and that the defendants were not given an opportunity to cross-examine the plaintiffs counsel regarding the amount of his fee petition. Because there is substantial evidence in the record to support the board’s decision, and because we find that the claim regarding attorney’s fees is without merit, we affirm the decision of the board.

The basic facts of this case as found by the commissioners are not in dispute. The plaintiff was employed by the defendant board of education as a custodian. On January 13, 1997, the plaintiff suffered a cerebral vascular accident (stroke) while working in his capacity as an employee of the board of education at Rogers Magnet School. The plaintiff had been lifting credenzas weighing between 250 and 400 pounds with the assistance of his coworkers. Just after lifting one credenza by himself, he began to feel ill. He was subsequently taken to see Leonard Vinnick, his physician. Vinnick examined the plaintiff and found that he had speech difficulty and referred him to Evangelos Xistris, a neurologist, who concluded that the plaintiff had suffered a stroke. The plaintiff began to suffer paralysis to his left side, particularly to his head, arm and leg. As a result of the paralysis, the plaintiff began to drag his left foot and developed an infectious ulcer on the bottom of his foot.

Commissioner Robin L. Wilson concluded in her June 7, 2000 finding and award that the plaintiffs stroke had been caused by lifting the credenzas and therefore was work related and compensable. Commissioner Wilson also determined that the plaintiffs foot ulcer was caused by his paralysis, which resulted from the stroke, and was therefore also compensable. Commissioner Wilson ordered the defendants to issue voluntary agreements accepting liability for the plaintiffs injuries, to reimburse the plaintiff for any sick or vacation time used while he was out on total disability, to pay the plaintiff temporary total and temporary partial disability benefits as determined, to reimburse the plaintiff for any out-of-pocket medical expenditures, to pay all reasonable and necessary medical bills related to the claim and to reimburse the plaintiff for the cost of deposing a particular physician. The commissioner’s finding and award was not appealed.

After a formal hearing was held to determine the type and amount of benefits due the plaintiff, Commissioner James J. Metro issued his finding and award on October 2, 2001. Commissioner Metro concluded that the plaintiff was totally disabled from January 14 to August 3, 1997, and from March 6, 1998, to July 12, 2001, and ordered the defendants to pay the plaintiff temporary total disability benefits owed to him for these time periods at the stipulated base compensation rate of $364.67 per week. Commissioner Metro determined that the plaintiff was entitled to statutory interest on unpaid temporary total disability benefits during these periods and was also due attorney’s fees as a result of the undue delay caused by the defendants’ lack of compliance with Commissioner Wilson’s June 7, 2000 order. He awarded attorney’s fees in the amount of $3850, i.e., 22 hours at the rate of $175 per hour. Commissioner Metro broke down the hours as follows: 9.5 hours at workers’ compensation hearings; 4 hours of office conference time; and 8.5 hours of telephone conference time. The case was then appealed to the board.

The board was presented with the primary issue that is now facing this court: Whether the commissioner had sufficient evidence on which to find that the plaintiff was totally disabled after March 6, 1998. In affirming Commissioner Metro’s finding and award, the board emphasized the deposition testimony of Vinnick, which it found sufficient to support the finding of total disability. On the matter of attorney’s fees, the board concluded that the record amply supported Commissioner Metro’s conclusion of undue delay by the defendants and held that the defendants effectively had waived their right to cross-examine the plaintiffs counsel. This appeal ensued.

At the outset, we set forth the applicable standard of review. “When the decision of a commissioner is appealed to the board, the board is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. . . . The commissioner has the power and duty, as the trier of fact, to determine the facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Our scope of review of the actions of the board is similarly limited.” (Internal quotation marks omitted.) Sprague v. Lindon Tree Service, Inc., 80 Conn. App. 670, 673, 836 A.2d 1268 (2003). Although the court may not supplant its conclusions for those of the board, the court “retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.” (Internal quotation marks omitted.) Saf-ford v. Owens Brockway, 262 Conn. 526, 534, 816 A.2d 556 (2003).

I

The defendants first claim that the board acted improperly as a matter of law by affirming Commissioner Metro’s conclusion that the plaintiff was totally disabled as of March 6, 1998. The defendants rely entirely on Vinnick’s deposition testimony in support of their claim. Specifically, the defendants argue that Vinnick testified that the plaintiff was disabled after March 8,1998, only by virtue of medical conditions that pre-existed his work-related accident, namely, hypertension, congestive heart failure, diabetes and nephrotic syndrome. The defendants noted that Vinnick testified that the plaintiffs foot ulcer did not exist prior to his work-related accident, but that it had “healed” as of March 3, 1999, and did not “break down” again until January, 2001. The defendants argue that because Vin-nick testified that the other conditions were not a result of the compensable injury and that the foot ulcer had healed, the plaintiff was not disabled during the relevant time periods because of his work-related accident, but rather as a result of his other preexisting conditions.

We agree with the plaintiff that the defendants presented only the portion of Vinnick’s testimony that was favorable to their position. The defendants’ argument that the plaintiff did not suffer from any work-related disability as of March 6,1998, presupposes that the foot ulcer suffered by the plaintiff did not result from his stroke. However, accepting this argument ignores Vin-nick’s testimony that the plaintiffs stroke caused the foot ulcer in that the damage done to his central nervous system by the stroke triggered a change in his ambulatory pattern wherein more weight was placed on one of his feet. The physician further testified that even if the plaintiff had not suffered from a foot ulcer, he could not have gone back to work due to right hand tremors and changes in his mentation that were caused by the stroke.

The defendants argue that Vinnick’s testimony that they have cited in support of their argument was “unambiguous and uncontroverted” as well as “uncontra-dicted.” However, Vinnick summed up the sequence of the plaintiffs maladies as follows: “I think he developed a stroke .... As a result of that stroke, he developed this disequilibrium. As a result ... he developed a foot ulcer. This foot ulcer has been the harbinger of all sorts of bad things for him. It has prevented him from working because, as a result of his foot ulcer and after his surgery for his foot ulcer ... he went into congestive heart failure, and from then on, it has been nothing but a spiral downhill for him.” Although the defendants refer to the plaintiffs stroke as entirely separate from his other conditions, Vinnick testified that the plaintiffs congestive heart failure “was contributed to by the fact that he had an infection going on in his foot ... as well as the fact that he had this foot ulcer that set all this up and that ... he developed, whether it was in Boston or a nursing home, he probably had ... a heart attack.” The physician further testified that the stroke could have aggravated the plaintiffs diabetes, small vessel disease and hypertension.

In addition to Vinnick’s testimony, a letter from the plaintiffs podiatrist, James Gunipero, was admitted into evidence. Gunipero wrote: “In my opinion, [the plaintiff] has been totally disabled since [March, 1998] due to the repeated ulcerations and breakdown of his left foot. ... If [the plaintiff] had stayed in his job, he would have lost his foot, his leg and possibly more.”

We conclude that sufficient evidence existed to support Commissioner Metro’s determination that the plaintiffs stroke caused or exacerbated conditions that prevented the plaintiff from working during the relevant time periods. Therefore, the board properly affirmed the findings of the commissioner on this claim.

II

The defendants’ next claim is that the board improperly affirmed the commissioner’s award of attorney’s fees to the plaintiff. It is well settled that a trial court has discretion to award a party attorney’s fees. See Gianquitti v. Sheppard, 53 Conn. App. 72, 83, 728 A.2d 1133 (1999). This standard applies both to the amount of fees awarded and to the determination of the factual predicate justifying the award. Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 252, 828 A.2d 64 (2003). Workers’ compensation commissioners similarly have discretion to award attorney’s fees, which is squarely bestowed on them by General Statutes §§31-300 and 31-327.

The defendants argue that the commissioner’s award of attorney’s fees was not detailed enough to ascertain the method of calculation used to determine the fee. The commissioner set out the award of attorney’s fees as follows: “[T]he [plaintiff] is entitled to have his attorney’s fees, i.e., twenty-two hours at the rate of $175 per hour for a total of $3850 paid to [the plaintiffs counsel]. ” The commissioner also detailed the number of hours the attorney claimed to have spent working on various tasks. There is no mystery as to how the commissioner arrived at the amount of attorney’s fees. If the commissioner had set forth the attorney’s rate and time spent, but then awarded a significantly higher or lower amount, then the commissioner would have been required to explain his or her deviation. See Toth v. American Frozen Foods, Inc., 04069 CRB-04-99-06 (August 9,2000) (remanded for articulation where commissioner subtracted $1700 from amount requested without explanation). We also note that the defendants implied in their argument that this award may have risen above the 20 percent cap on attorney’s fees set forth in the workers’ compensation fee guidelines promulgated by the chairman of the workers’ compensation commission. This does not affect our decision in that (1) the attorney’s fees awarded did not comprise more than 20 percent of the temporary total disability payments owed to the plaintiff and (2) this percentage may be exceeded where fees have been awarded because of undue delay, as in this case. See Day v. Middletown, 59 Conn. App. 816, 823 n.10, 757 A.2d 1267 (noting § 5 of fee guidelines permits commissioner to determine attorney’s fees based on time spent in contested cases or formal hearings), cert. denied, 254 Conn. 945, 762 A.2d 900 (2000); see also Heene v. Professional Ambulance Service, Inc., 03743 CRB-06-97-12 (January 8, 1999).

The defendants also claim that they were denied the opportunity to cross-examine the plaintiffs counsel regarding the amount of his requested fee. In support of their argument, the defendants cite the board’s decision in Cirrito v. Resource Group Ltd. of Connecticut, 4248 CRB-1-00-6 (June 19, 2001). In Cirrito, the board remanded the matter on the issue of attorney’s fees because the denial of the defendants’ request to cross-examine the plaintiffs counsel regarding the amount of his requested fee constituted a denial of procedural due process. The board concluded that the defendants’ counsel had adequately preserved an objection for review and that the commissioner’s ruling “[cast] a shadow of doubt over whether the [defendants] were afforded a meaningful right to respond to this item of evidence, given their articulated desire to cross-examine the preparer of the document.'” (Emphasis added.) Id.

Cirrito is plainly distinguishable from the present case. The record indicates that the defendants’ counsel did not request an opportunity to cross-examine the plaintiffs counsel and also failed to object to the request for attorney’s fees. The plaintiffs contend that this lack of objection constituted a waiver of the right to cross-examine the plaintiffs counsel. We agree.

It is axiomatic that a trial court must “[afford] the parties the opportunity to present evidence and to be heard on the issue of reasonable attorney’s fees. . . . [A] party seeking attorney’s fees must satisfy the undisputed requirement that the reasonableness of attorney’s fees and costs ... be proven by an appropriate evi-dentiary showing. . . . This protects the opposing party’s right to litigate fully the reasonableness of the attorney’s fees.” (Internal quotation marks omitted.) Resurreccion v. Normandy Heights, LLC, 76 Conn. App. 642, 651, 820 A.2d 1116, cert. denied, 264 Conn. 917, 826 A.2d 1159 (2003). Until recently, it was unclear whether a party’s right to litigate the reasonableness of attorney’s fees is waived if it was not asserted at trial. Our Supreme Court has afforded us guidance on this issue in its recent decision, Smith v. Snyder, 267 Conn. 456, 839 A.2d 589 (2004). In that case, the court clarified the evidentiary burden required in setting forth attorney’s fees, holding that “the proponent must present to the court at the time of trial ... a statement of the fees requested and a description of services rendered.” Id., 479. The Smith court determined that the plaintiffs’ bare request for attorney’s fees was inadequate under this standard, but the court did not reverse the award due to the opposing counsel’s failure to object or to respond in any way to the request. Id., 481. The court concluded that “the defendants, in failing to object to the plaintiffs’ request for attorney’s fees, effectively acquiesced in that request, and, consequently, they now will not be heard to complain about that request.” Id.

In this case, we note that although the defendants are not expressly challenging the evidence produced by the plaintiffs counsel regarding his requested fees, the record reveals that the plaintiffs counsel provided to the commissioner a detailed description of the tasks he performed and the time spent on each task. The record does not indicate that defendants’ counsel in any way objected to this award or requested an opportunity to question the plaintiffs counsel on this issue. In light of the holding in Smith, we find this fact to be dispositive and will not overturn the board’s affirmation of the commissioner’s award of attorney’s fees.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Frank A. Arcano, Jr., died in December, 2001. The commissioner’s subsequent order in February, 2002, directed the defendants to remit payment for benefits to the plaintiffs estate.

       The issues of compensability and the amount of compensation benefits owed to the plaintiff were bifurcated, and findings were made by both Commissioner Robin L. Wilson and Commissioner James J. Metro.

       The defendants emphasized Vinnick’s testimony that the ulcer had not healed until March 3, 1999. Accepting this fact as true, their argument contesting the plaintiffs disability from March, 1998, until March, 1999, would be baseless unless it could be established that the foot ulcer did not result from the stroke.

       “[The Plaintiffs Counsel]: But the right hand tremors and the processing delay, would that have inhibited him from returning back to work?
      “[The Witness]: Absolutely, in addition to all the other problems.
      “[The Plaintiffs Counsel]: [SJtanding alone, if he had processing delays and tremors in his hand—
      “[The Witness]: I don’t see how he could go back to work with changes in his mentation.
      “[The Plaintiffs Counsel]: And that condition has remained the same since March 3, 1999, until the present?
      “[The Witness]: If anything, it has gotten worse. He’s even more confused.”

       The defendants challenge the award of attorney’s fees partly on the basis of their contention that they were not required to make temporary total disability payments to the plaintiff and that attorney’s fees were therefore inappropriate because if no benefits were owed, then no undue delay was committed. We need not address this argument for two reasons. First, the defendants were ordered to do several things in Commissioner Wilson’s finding and award on compensability, which they did not do. As they did not challenge that award, they cannot now contend that they were not obligated to perform these tasks. Second, because we have determined that the board properly affirmed the commissioner’s finding that the plaintiff was totally disabled during the contested time periods, the defendants’ argument is not valid.

       The plaintiffs counsel actually requested $4068.75 in attorney’s fees and claimed to have spent 23.25 hours on this case. However, when the number of hours that the plaintiffs counsel testified to have spent on this case were calculated, they in fact equated to twenty-two hours.

       “ [I] t is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . This principle applies with even greater force to an agency’s interpretation of its own duly adopted regulations. . . . When an agency has expertise in a given area and a history of determining factual and legal questions similar to those at issue, its interpretation is granted deference by the courts.” (Citations omitted; internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 138-39, 778 A.2d 7 (2001).

       The chairman of the workers’ compensation commission issues fee guidelines pursuant to General Statutes § 31-280 (b) (11) (C), which directs the chairman in relevant part to “[i]ssue . . . annually . . . guidelines for the maximum fees payable by a claimant for any legal services rendered by an attorney in connection with the provisions of this chapter, which fees shall be approved in accordance with the standards established by the chairman . . . .”


author: McLACHLAN, J.

text:
    CARL S. FEEN v. NEW ENGLAND BENEFIT COMPANIES, INC., ET AL.
    (AC 23903)
    West, McLachlan and Peters, Js.
    Argued December 5, 2003 —
    officially released March 2, 2004

      Wesley W. Horton, with whom were Daniel J. Krisch, Timothy P. Pothin and, on the brief, Marisa A. Bellair and Barbara Ellis, legal intern, for the appellant (named defendant).

      Ira B. Grudberg, with whom was Minor C. Sterling, for the appellee (jplaintiff).
   Opinion

McLACHLAN, J.

In this breach of contract action, the defendant New England Benefit Companies, Inc., appeals from the judgment of the trial court awarding the plaintiff, Carl S. Feen, $371,400.09 in damages. At issue is the court’s construction of two oral contracts governing the payment of commissions to the plaintiff for two joint marketing ventures undertaken with the defendant. On appeal, the defendant claims that the court (1) improperly concluded that one contract remained in force after the occurrence of an event that the defendant contends terminated the contract and (2) misconstrued the commission structure of the other contract. We affirm the judgment of the trial court.

This appeal arises out of a business relationship between the plaintiff, an insurance broker, and the defendant, a Rhode Island corporation specializing in administering and marketing group insurance policies to professional organizations. The purpose of the relationship was for the plaintiff to assist the defendant, through its principal, Samuel H. Fleet, in marketing group life, medical and disability insurance plans to two organizations: The Connecticut Bar Association (bar association) and the Connecticut State Dental Association (dental association). It was Fleet’s hope that the plaintiff, who purportedly had established good relations with both organizations, would be pivotal to the success of those marketing efforts.

Beginning in the summer of 1993, Fleet and the plaintiff met several times to discuss their marketing plans and eventually reached an oral agreement that, in exchange for the plaintiffs assistance in procuring a group insurance contract with the bar association, the defendant would pay the plaintiff a percentage of its total annual commission income. In January, 1994, the bar association accepted the defendant’s offer, and the defendant began administering group insurance plans for the bar association’s membership, underwritten by Homelife Financial Assurance Corporation (Homelife).

Shortly thereafter, the parties discussed a similar arrangement for the plaintiff to assist the defendant in marketing a group insurance plan to the dental association. The parties again reached an oral agreement that if the defendant secured the dental association’s group insurance business, the plaintiff would receive a share of the commissions. In late 1994, the dental association accepted the defendant’s offer for a three year contract, and the defendant began administering group insurance plans for the dental association’s membership.

Although initially the relationship between the parties was amicable, it tinned acrimonious when, in early 1996, the defendant substituted CNA Insurance Company (CNA) for Homelife as underwriter for the bar association policies and, thereafter, stopped making commission payments to the plaintiff. At approximately the same time, the defendant also stopped making commission payments to the plaintiff for the dental association policies, having paid the plaintiff only for the first year of the contract.

On April 18, 2001, the plaintiff brought a two count complaint against the defendant for its alleged breach of the two oral contracts governing the payment of commissions related to the bar association and dental association insurance contracts. At trial, Fleet and the plaintiff provided conflicting testimony as to the terms of the commission agreements. As to the bar association contract, they both testified that they had agreed that the plaintiff would receive one-third of the defendant’s total annual commission on the policies and that the defendant would keep the remaining two-thirds. The principal ar ea of disagreement between the parties concerned whether their commission splitting agreement would continue if the defendant replaced the underwriter for the bar association policies. The plaintiff testified that the agreement would continue on a one-third-two-thirds basis even if the defendant replaced the initial underwriter. Fleet, in turn, testified that he and the plaintiff had agreed to negotiate a new commission splitting agreement if the bar association policies were underwritten through a new carrier. Fleet expressly denied ever telling the plaintiff that their arrangement would continue for as long as the defendant provided group insurance services to the bar association, regardless of the underwriter.

With respect to the dental association contract, the plaintiff testified that he and Fleet had agreed that the plaintiff would receive 1 percent of the defendant’s total annual commission in the first year of the contract and 2 percent in years two and three of the contract. Fleet, in contrast, testified that the agreement called for the plaintiff to receive 1 percent in the first year, 0.5 percent in the second year and nothing in the third year.

After hearing those conflicting versions of the contracts, the court credited the plaintiffs testimony over that of Fleet in virtually every respect. The court found that the parties had agreed that the commission payments would continue for as long as the defendant administered policies to the bar association membership, regardless of whether the initial underwriter was replaced. As to the dental association contract, the court found that the commission structure agreed to by the parties called for payments of 1 percent, 2 percent and 2 percent, respectively, for the three years of the contract. Consequently, the court awarded the plaintiff damages in the amount of $371,400.09. This appeal followed.

I

The defendant first claims that the court improperly construed the duration of the bar association contract as continuing after the replacement of Homelife, the initial underwriter, with CNA and, consequently, awarded excessive damages. We decline to review that claim.

The defendant predicates its claim on the contention that the oral contract at issue was a personal services contract, terminable at the will of either party, and that its replacement of Homelife in 1996 was an act sufficient to terminate the contract. The defendant argues, therefore, that the court’s damages award was excessive to the extent that it included damages that occurred past early 1996.

Because the defendant failed to raise that issue before the trial court, the claim was not preserved for appellate review. “[I]t is the appellant’s responsibility to present such a claim clearly to the trial court so that the trial court may consider it and, if it is meritorious, take appropriate action. . . . For us [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Citation omitted; internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 265, 828 A.2d 64 (2003). “A plaintiff cannot try his case on one theory and appeal on another.” McNamara v. New Britain, 137 Conn. 616, 618, 79 A.2d 819 (1951). We accordingly conclude that the issue was not properly preserved for appellate review.

Although we ordinarily limit our review on appeal to issues that were distinctly raised at trial and ruled on by the court, we can nevertheless consider unpreserved claims under the rubric of plain error, as the defendant urges. For the two reasons we will set forth, we decline to do so.

First, the defendant requests such review for the first time in his reply brief. “It is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 48 n.42, 717 A.2d 77 (1998). That principle has routinely been applied to requests to review an unpreserved claim pursuant to the plain error doctrine. See, e.g., Daniels v. Alander, 75 Conn. App. 864, 882-83, 818 A.2d 106, cert. granted on other grounds, 264 Conn. 901, 823 A.2d 1219 (2003); State v. Barlow, 70 Conn. App. 232, 249, 797 A.2d 605, cert. denied, 261 Conn. 929, 806 A.2d 1067 (2002). We accordingly do not review the defendant’s claim.

Second, even if the defendant had requested plain error review in its principal brief, we remain unconvinced that such review is warranted. As we have often reiterated, plain error review “is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Holmes, 78 Conn. App. 479, 484, 827 A.2d 751, cert. denied, 266 Conn. 909, 832 A.2d 73 (2003). We are not persuaded that the claim presents the type of extraordinary situation for which such review is reserved. In both its principal and reply briefs, the defendant characterizes its claim as one that hinges on a facet of contract law that, while alluded to in dicta in a case more than a half century old, has yet to be squarely addressed by our courts.

Confronted, as we allegedly are here, with a claim contingent on unsettled legal principles, we must decline to afford plain error review for the simple reason that such claim does not implicate an error that “is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Id. Indeed, plain error review is more appropriately applied to unambiguous instances of impropriety; for instance, where the trial court has failed to apply a clearly relevant statute to a case. See State v. Thornton, 55 Conn. App. 28, 32, 739 A.2d 271 (1999). We accordingly decline to review the claim.

II

The defendant next claims that the court improperly construed the annual commission percentages owed the plaintiff under the dental association contract. Specifically, the defendant claims that the evidence on the commission structure adduced at trial established that the plaintiff was entitled only to 1 percent in the first year, 0.5 percent in the second year and nothing in the third year. We disagree.

As that claim is predicated on the court’s construction of an ambiguous oral contract term, it is reviewed under the clearly erroneous standard. See Bijur v. Bijur, 79 Conn. App. 752, 759, 831 A.2d 824 (2003). We therefore do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached but, rather, focus on whether the conclusion reached was legally correct and factually supported. See id.

As noted previously, the court found that the plaintiff was entitled to commission percentages of 1 percent, 2 percent and 2 percent, respectively, for the three years of the contract. Underlying the court’s construction was its assessment of the conflicting testimony offered and the credibility of those by whom it was offered.

The defendant advances several arguments as to why the court’s construction was improper. Principal among them is that the court’s decision to credit the plaintiffs rendition of the commission structure was unsound because only the plaintiff testified in support of that rendition and, in contrast, Fleet’s rendition was supported by both the testimony of Peter Buchetto, a representative of the dental association, and certain documentary evidence introduced at trial. Quite simply, the defendant maintains that the plaintiffs testimony was outweighed by the testimony and evidence introduced by the defendant.

The sheer volume of testimony supporting or purporting to support one version of events is not itself dispositive of the credibility of that version. Indeed, the volume of testimony often has little correlative effect on either the court’s assessment of the veracity of the facts testified to or the believability of those testifying. See, e.g., In re Travis R., 80 Conn. App. 777, 785, 838 A.2d 1000 (2004) (concluding that although one version of events may be supported by more testimony than another version, court may credit either version).

Furthermore, the court specifically stated in its memorandum of decision that it did not find the testimony of either Fleet or Buchetto to be credible. The defendant argues that although the court expressly stated that it doubted Fleet and Buchetto’s credibility, it failed to articulate its reasons for doing so. Although the court’s reasons for doubting their credibility might have been more clearly articulated, we will not question on appeal the soundness of its assessment. As we have frequently observed, the trial judge has the unique distinction of having personally presided over the trial and, in that capacity, has the opportunity to view the evidence presented in the totality of the circumstances, i.e., scrutinizing the demeanor and conduct of the witnesses. See, e.g., State v. Nguyen, 253 Conn. 639, 658, 756 A.2d 833 (2000). In recognition of its superior position to evaluate those factors as they coalesce at trial and the disparate ability of a reviewing court to glean such things from the written record, we have held that the trial court is vested with the sole discretion to make credibility assessments and to assign the weight to be given testimony. See id.

Furthermore, the written documentation claimed by the defendant to support its version of the agreement was found by the court to be of similarly dubious credibility. The defendant introduced two letters from Fleet to Buchetto, dated September 2 and 7,1994, in which the commission splitting agreement was discussed. Both letters state that the plaintiffs commission percentages had been reduced to 0.5 percent in the second year and nothing in the third year of the dental association contract. Although those letters may appear to corroborate the version of the agreement advanced by Fleet and Buchetto, the court accorded them little weight. The court, found that Fleet’s testimony that both letters were “blind copied” to the plaintiff was not credible, particularly when there was no indication on the face of the letters that they had been sent to the plaintiff. Additionally, our review of the record reveals that Fleet earlier had testified in a deposition on November 16, 2000, that the letters were not sent to the plaintiff. When questioned on cross-examination about the inconsistent testimony, Fleet explained that sometime following the deposition, he “suddenly” remembered that the letters had, in fact, been mailed to the plaintiff. The court instead concluded, and we agree, that Fleet unilaterally and without the plaintiffs consent reduced the plaintiffs commissions for years two and three of the contract.

The defendant also asserts that the court’s finding as to the structure of the commission agreement was “inherently illogical” because the payments essentially constituted a finder’s fee and that, given such purpose, it is illogical for the parties to have intended to increase the plaintiffs fee in the second and third years of that contract. We fail to recognize how increasing the commission payments for the second and third years of the contract is inherently illogical, particularly when the plaintiff offered a plausible explanation for the payment scheme. The plaintiff testified that he had agreed to a reduction of his compensation in the first year because Fleet advised him that the dental association was pressing for concessions in the defendant’s proposal and that the reduction would help procure the association’s business. We find ample support in the record for the court’s construction of the dental association commission agreement and accordingly conclude that the court’s findings were not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although Samuel H. Fleet, a principal of New England Benefit Companies, Inc., originally was named as a defendant, the action was withdrawn as to him. We therefore refer in this opinion to New England Benefit Companies, Inc., as the defendant.

       Although Homelife was later purchased by and merged with another insurer, we refer in this opinion to the original underwriter as Homelife.

       Also testifying at trial was Peter Buchetto, a dental association representative, whose testimony essentially mirrored that of Fleet.

       The court awarded the plaintiff damages of $105,756.76 for the defendant’s breach of the bar association contract and $265,643.33 for its breach of the dental association contract.

       Because, at the time of trial, the defendant still administered the bar association’s policies, the court calculated damages to and including the time of trial.

       Although the defendant argues that this claim was not raised at the trial level because it would have been inconsistent with the facts alleged, the defendant does not address how this obviates the concerns underlying the preservation doctrine, namely, that by failing to raise this argument before the trial court, the defendant effectively tied the court’s hands and denied it the opportunity to contemplate or to apply the legal theories advanced.

       See Burkle v. Superflow Manufacturing Co., 137 Conn. 488, 78 A.2d 698 (1951).

       It fairly could be surmised that the court’s determination was based on its observation, alluded to elsewhere in its memorandum of decision, that the testimony of both Fleet and Buchetto was riddled with inconsistencies and inexplicable failures of memory.
      Also, if the defendant was unclear as to the reasons underlying the court’s assessment of their credibility, it could have filed a motion for an articulation, as provided for by Practice Book § 66-5.


text:
    TRUDY A. BLATCHLEY ET AL. v. ABRAHAM MINTZ ET AL.
    (AC 23461)
    Bishop, DiPentima and Mihalakos, Js.
    Argued October 29, 2003 —
    officially released March 9, 2004

      John D. Josel, for the appellant (named plaintiff).

      Charles W. Fleischmann, for the appellees (defendant Jeffrey L. Gross et al.).

      Frank H. Santoro, with whom, on the brief, were Paul T. Edwards and Joyce A. Lagnese, for the appellee (defendant George L. Van der Aue).
   Opinion

BISHOP, J.

This appeal is brought by a woman who was rendered partially paralyzed as a result of brain surgery. The underlying issues are whether the trial court, in instructing the jury, improperly restricted and mischaracterized the claims to be submitted to the jury for adjudication. For the reasons set forth, we affirm in part and reverse in part the judgment of the trial court.

The jury could reasonably have found the following facts relevant to our discussion of this appeal. In December, 1994, the plaintiff, Trudy A. Blatchley, was taken to a hospital after she awoke with a feeling of numbness and tingling on her left side. While hospitalized, the plaintiff was under the care of a neurologist, Daniel Alkaitis, a partner of a fellow neurologist, the defendant Jeffrey L. Gross. Various examinations and tests revealed that the plaintiff had a small abnormality in her brain, which was interpreted as consistent with, inter aha, multiple sclerosis, a demyelinating disease.

Alkaitis arranged for the plaintiff to undergo more tests, the results of which were interpreted by Gross. According to the plaintiff, Gross discussed the plaintiffs condition with his partners and was aware of her condition. The plaintiff continued to undergo testing and in late January, 1995, the abnormality that previously had been detected had doubled in size.

The plaintiff was informed that Gross wanted her to see a neurosurgeon, as he believed she had a brain tumor. The plaintiff alleged that a neurosurgeon, Abraham Mintz, was told by Gross that the plaintiff needed surgery for a rapidly expanding brain lesion. The plaintiff further claimed that Gross told Mintz that the plaintiff had received a thorough workup and that tests had been done to rule out infection and multiple sclerosis.

On February 10, 1995, Mintz undertook a diagnostic biopsy of the tissue of the mass, which was sent to the hospital’s pathology department for immediate analysis while the plaintiff remained sedated in the operating room. Pathologist George L. Van der Aue, also a defendant, examined the biopsied tissue. The plaintiff alleged that following that examination, Van der Aue communicated to Mintz that the plaintiffs biopsied specimen showed a tumor and that, on the basis of that communication, Mintz decided to undertake further surgery to remove the mass. Following the surgery, the plaintiff awoke paralyzed and without sensation in the left side of her body. The biopsy specimens ultimately revealed that the tissue removed from the brain was not cancerous but, instead, merely showed demyelination.

In May, 1997, the plaintiff brought a negligence action alleging medical malpractice against, among others, Gross and Van der Aue. After a trial, the jury returned a verdict in favor of the defendants. In posttrial motions, the plaintiff asked the court to set the verdict aside and to order a new trial. The. court accepted the jury’s verdict, denied the plaintiffs motion to set aside the verdict and for a new trial, and rendered judgment for the defendants, from which the plaintiff has appealed.

On appeal, the plaintiff challenges the court’s instructions to the jury, claiming that the court improperly (1) restricted her claims against Gross* * and (2) mischaracterized her claim against Van der Aue. We address each of those claims in turn. Additional facts will be set forth where necessary.

I

We first turn to the plaintiffs disagreement with the court’s instructions to the jury with respect to her claims against Gross. We begin our analysis by noting that we will reverse a judgment because of an improper jury instruction only if it can be shown that it is reasonably probable that the jury was misled. Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn. App. 306, 311, 819 A.2d 844 (2003). To make that determination, we consider whether such instructions were correct in the law, adapted to the issues in the case and provided sufficient guidance to the jury. Id., 311-12. Simply put, the test to be applied is whether the instruction, considered as a whole, presents the case to the jury so that no injustice will result. Id.

In the present case, as part of its instruction concerning the plaintiffs negligence claim against Gross, the court instructed the jury as follows:

“I’ve described what the claim in this case is of malpractice against Dr. Gross, and I’ve described it in a certain way. What I am going to describe that claim as, because I believe this is, in fact, what the claim is in this case, and it is the claim that you will be deciding, is that Dr. Gross told Dr. Mintz that the plaintiff had been worked up for multiple sclerosis, but that multiple sclerosis had been ruled out, meaning that the plaintiff definitely did not have multiple sclerosis or demyelinat-ing disease. That is the claim in this case that you may consider . . . .”

The plaintiff argues that that instruction improperly eliminated from the jury’s consideration valid and supported claims of negligence against Gross that had been pleaded and upon which requests to charge had been submitted. We are not persuaded.

There can be no dispute that it is the duty of the trial court to state to the jury the claims presented to it for adjudication. See Dimeo v. Burns, Brooks & McNeil, Inc., 6 Conn. App. 241, 245, 504 A.2d 557 (court has obligation to frame instructions so as to be adapted only to issues in case), cert. denied, 199 Conn. 805, 508 A.2d 31 (1986). The record reflects, however, as we will discuss, that the claims that the plaintiff argues were improperly eliminated were not issues in the trial of the case, as the plaintiff implicitly waived her right to have the jury consider those claims. Accordingly, we conclude that the court properly tailored its instructions to reflect the issues actually before the jury. As such, we cannot conclude that the jury was misled by the court’s instructions. See Harlan v. Norwalk Anesthesiology, P.C., 75 Conn. App. 600, 607, 816 A.2d 719 (“[instructions that are correct as a matter of law cannot be characterized as misleading”), cert. denied, 264 Conn. 911, 826 A.2d 1155 (2003).

Our conclusion rests on the exchange that occurred in open court when the plaintiff sought to amend her complaint. The record discloses that at the end of her case-in-chief, the plaintiff filed a request to amend her complaint in accordance with the evidence adduced at trial. When Gross objected to that amendment, the following exchange, in relevant part, occurred:

“[The Plaintiffs Counsel]: The changes are merely to reflect what has been proven at trial and . . . the court should allow those variances between the pleadings as they existed and the proof at trial through an amended complaint. There’s no . . . change in the theory of recovery. It’s merely — it’s a refinement based on the testimony ....
“The Court: Just to clarify for me, if you would, please, with respect to paragraph thirty-seven. Which subparagraph of thirty-seven do you claim applies to the testimony of this case? You have made it real clear, it seems to me, that the only theory of liability upon which you’re pursuing Dr. Gross is the communication to . . . Dr. Mintz that [multiple sclerosis] had been ruled out. That’s . . . the only one, correct?
“[The Plaintiffs Counsel]: That’s — that’s the referral. Dr. Mintz testified that [the plaintiff] . . . was being referred by the neurosurgeon, Dr. Gross, and as part of that referral, he was told that [multiple sclerosis] had been ruled out.
“The Court: But the way you’ve put this, you’ve put it in a way that’s far broader than what I think you’ve got. I mean, you’ve pointed — and I think accurately— to what [defense counsel’s] questioning did by way of bringing out a theory that was supportable through the testimony of a board certified neurologist. . . . But that’s a very narrow theory. . . . So, looking at this, seeing it written large like this, my question really is, why write it so large when, in fact, really, the only thing that could go in under it is what we’ve just talked about? If I read the language in that way as being that broad ... it could, as written, go to the very decision to refer to neurosurgery at all. . . .
“[The Plaintiffs Counsel]: We’ve — and I’ve made it very clear to the court and to counsel that what we’re proceeding on is Dr. Gross ’ statement during the referral that [multiple sclerosis] had been ruled out.
“The Court: So that, in fact, the practical fact is that with respect to Dr. Gross, apart from the changes to paragraphs, I guess you said sixteen to eighteen, which are more specific and—
“[The Plaintiffs Counsel]: There’s eighteen through twenty-one.
“The Court: Oh, I’m sorry. Eighteen is the one in particular, though, is it not, that talks about the—
“[The Plaintiffs Counsel]: The referral.
“The Court: Right, the referral. That’s the one that refers to the referral.
“[The Plaintiffs Counsel]: Right.
“The Court: That — that whether that is referenced by your paragraph [37, subparagraph (f)], which it could be, I suppose, or by your paragraph [37, subparagraph (e)], that it doesn’t change what you’ve represented to me on the record or to all of us on the record as to the basis, and the sole basis, on which you’d be pursuing Dr. Gross?
“[The Plaintiffs Counsel]: Right.
“The Court: Okay, [to defendant Gross’ counsel] that is a clarification and a substantial narrowing of language. I have never been under the notion that they were trying anything else. I think they’ve been real clear over the last days that’s what they’re looking to do. . . .
“[The Defendant Gross’ Counsel]: Well, if we’re understanding it that way, then all of these other allegations should have been taken out of this complaint. If that’s all he’s going forward on, what he’s going forward on should be here.
“The Court: Well, you know, I understand that, except . counsel doesn’t have the obligation to take out of a complaint all these things. ... I am going to permit the filing of this complaint. ... As to Dr. Gross, I agree with [defendant Gross’ counsel], it’s far broader in this iteration than what the evidence is; however, I think, fairly, in light of the new paragraph eighteen, that either subparagraph (f) or subparagraph (e) [of paragraph thirty-seven] read very narrowly can be understood to mean exactly what [the plaintiffs counsel] has indicated he’s pursuing. So, I’m going to allow the amendment with that understanding.” (Emphasis added.)

It is clear from that exchange that the court permitted the filing of the plaintiffs amended complaint only with the understanding that the sole issue of liability that the plaintiff was pursuing was Gross’ alleged communication to Mintz that multiple sclerosis had been ruled out. Furthermore, by conceding that that was the sole issue of liability she was pursuing, the plaintiff implicitly waived her right to have the jury consider any additional claims against Gross. Put simply, the plaintiffs representations to the court made clear that her additional claims against Gross were not issues in the case.

As a consequence, we conclude that the court’s instructions were tailored to reflect the actual issue before the jury. That issue was whether Gross negligently had told Mintz that the plaintiff had been worked up for multiple sclerosis, but that multiple sclerosis had been ruled out. Whether Gross negligently failed to state affirmatively to Mintz that multiple sclerosis was still a consideration or whether he failed to treat or to diagnose the plaintiff properly were not issues advanced by the plaintiff at trial. For that reason, we conclude that the plaintiff has failed to demonstrate that it is reasonably probable that the court’s charge misled the jury. Accordingly, her first claim must fail.

II

We next consider the plaintiffs attack on the court’s instructions to the jury concerning Van der Aue.

We begin our analysis by noting that our review of the plaintiffs claims are governed by the standards previously set forth. We emphasize that “[a] jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. . . . The test to determine if a juiy charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 446, 782 A.2d 87 (2001). Our standard of review for the plaintiffs claim is whether it is reasonably probable that the jury was misled. See Sevigny v. Dibble Hollow Condominium Assn., Inc., supra, 76 Conn. App. 311.

The following additional facts and procedural history axe relevant to our discussion of the plaintiffs claims. During the plaintiffs case-in-chief, the plaintiffs counsel called pathologist Daniel Perl to testify as an expert in the field of pathology. Specifically, Perl was called to testify about the standard of care applicable to a board certified pathologist rendering an intraoperative pathologic diagnosis in February, 1995. Perl gave the following relevant testimony concerning the applicable standard of care:

“One needs to make this determination: Is it normal or is it abnormal? One then needs to make the determination, is this tumor or not tumor? If it is tumor, the distinction between a primary tumor of the nervous system and a metastasis needs to be made. Beyond that, in — maybe additional information, but that’s where one has to go in terms of standard of care. You have to be able to tell that the tissue is abnormal, that a tumor is present and that it’s either primary or a metastasis. The other features, in terms of the cell of origin, the grading ... in the vast majority of cases, is not an important question as far as he’s concerned. He needs to know, I’m dealing with a primary cancer in the brain, now I proceed, or, oh, I’m not dealing with a primary cancer of the brain, I’m dealing with a metastasis, oh, my God, I’m dealing with a completely different problem, or he needs to know, I’m not dealing with a tumor at all, this is not a cancer. Those are things he needs to know. . . . [I]n the operating room ... in this kind of consultation, that’s how far one needs to go.”

He further testified that the standard of care required that Van der Aue communicate to the neurosurgeons that a tumor was not present. Perl testified that the words Van der Aue used to convey the results of his intraoperative consultation to Mintz constituted a definitive communication that the biopsy specimen showed a tumor. That communication, Perl testified, was a deviation of the standard of care.

Thus, a fair reading of the record reveals that Perl stated that Van der Aue had misdiagnosed the biopsy specimen as showing a tumor and that the words used in Van der Aue’s communication to the neurosurgeons constituted a definitive communication of that misdiagnosis.

Although not part of the plaintiffs claims, the term “definitive diagnosis of tumor” was used repeatedly by defense counsel throughout the trial. During cross-examination, however, in response to a question from defense counsel in which the term “definitive diagnosis” was used, Perl expressed his concern with counsel’s use of that term.

Perl cautioned that use of the term “definitive diagnosis” in the context of this case connoted a diagnosis that would include a description of the cell type and the grade of the malignancy, and that such a detailed analysis would not be the objective of the pathologist when conducting a frozen section diagnosis. He further indicated that, when analyzing a frozen section in this context, the definitive statement that needs to be made intraoperatively is simply that “the biopsy specimen showed tumor or not.” He concluded that because Van der Aue’s communication to the neurosurgeons was definitive of tumor, Van der Aue had breached the applicable standard of care. It is noteworthy that at no time did Perl testily that Van der Aue had rendered a definitive diagnosis of tumor to the neurosurgeons.

Despite that testimony, defense counsel continued to use interchangeably the dissimilar concepts of a definitive communication of the presence of a tumor and a communication of a definitive diagnosis of the tumor. It is the confusion created at trial by counsel’s interchangeable use of those different concepts that is central to our analysis of the court’s jury instructions. The court gave the following relevant instruction concerning the plaintiffs claim against Van der Aue: “As for Dr. Van der Aue, the plaintiff has alleged and sought to prove that he deviated from the standard of care for board certified pathologists in February of 1995 by communicating a definitive diagnosis of tumor to her neurosurgeons on February 10,1995, based on his intra-operative interpretation of frozen sections of her biopsied brain tissue. In this case, there is no dispute that a board certified pathologist would have deviated from the standard of care by communicating a definitive diagnosis of tumor to the plaintiffs neurosurgeons based upon an examination of the frozen sections Dr. Van der Aue examined intraoperatively on February 10, 1995. Dr. Van der Aue insists, however, that he did not violate the standard of care for board certified pathologist in this case because the only diagnosis he ever communicated to the neurosurgeons was not definitive for tumor.” (Emphasis added.)

After the jury was instructed, the plaintiff took exception to the charge on the grounds that the court’s use of the term “definitive diagnosis” was inappropriate in light of the evidence adduced at trial that “definitive diagnosis” was a term of art in the practice of pathology. She further asserted that the issue presented for adjudication was whether Van der Aue had made a definitive statement to the neurosurgeons that the plaintiffs biopsy specimen showed a tumor, not whether Van der Aue went further and communicated a definitive diagnosis of that tumor. The court declined to recharge on that issue.

On appeal, the plaintiff asserts that the court’s instruction mischaracterized her claim of negligence against Van der Aue and, thus, misled the jury in reaching a proper verdict with respect to that defendant. Specifically, she argues that the court improperly eliminated from the jury’s consideration her claim against Van der Aue that he had violated the standard of care by definitively communicating to the neurosurgeons that the plaintiffs biopsy specimen showed a tumor, and, instead, substituted a alternate claim that Van der Aue violated the standard of care by communicating a definitive diagnosis of tumor. As to the latter claim, the plaintiff asserts that she neither pleaded nor offered proof at trial that Van der Aue had made a definitive diagnosis of tumor, as such claim was not a necessary underpinning to a finding that Van der Aue had violated the applicable standard of care. We agree.

The court instructed the jury that “the plaintiff has alleged and sought to prove that [Van der Aue] deviated from the standard of care for board certified pathologists ... by communicating a definitive diagnosis of tumor to her neurosurgeons . . . .” Our careful review of the record reveals that the court’s statement was inaccurate. Although the plaintiff clearly alleged and offered testimony that Van der Aue’s communication to the neurosurgeons of a probable astrocytoma was definitive for tumor, i.e., a definite statement that the biopsied section contained a tumor, the plaintiff did not claim that Van der Aue had made a definite diagnosis, as that term was defined during testimony. In fact, as noted, the plaintiffs expert testified that a pathologist would rarely make such a detailed analysis intraopera-tively.

At the outset, we note that the plaintiffs pleadings alleged that Van der Aue was negligent in that he “performed an analysis and reported to the surgeon that the [plaintiffs] biopsy specimen showed a tumor; based upon Van der Aue’s report of tumor, the neurosurgeon resected the lesion in the plaintiffs brain.”

Also, in her closing statement the plaintiff argued in relevant part: “It is a violation of the standard of care, and the communication to the surgeon was wrong. And it was that communication of tumor, however it was said, that it was a tumor without any uncertainty is what led to the surgery going forward from biopsy to resection, and it was that resection that caused my client’s damages. ... He misinterpreted the slides, and he led the surgeons to believe that they were dealing with a tumor.”

In her rebuttal to the defendant’s closing argument, the plaintiff again posited: “No one is saying that there was a definitive diagnosis. What needs to be done on frozen section is, is it tumor or not a tumor? The definitive diagnosis ... is not necessary for a frozen section analysis. The question is, was it definitively stated it was a tumor or not, not definitive diagnosis.”

Additionally, in her written request to charge, the plaintiff stated in relevant part: “The plaintiff claims that Dr. Van der Aue violated the standard of care in improperly interpreting the frozen section biopsy . . . and in failing to properly communicate to the surgeons that he could not arrive at a diagnosis, and instead diagnosing ‘tumor.’ ” The plaintiff was entitled to that or to a similar charge, as that request properly tracked the evidence.

Finally, the testimony of the plaintiffs expert, Perl, was offered in support of the plaintiffs claim that Van der Aue’s definitive communication of tumor to the neurosurgeons violated the standard of care.

Thus, the plaintiff never alleged that Van der Aue deviated from the standard of care by communicating a definitive diagnosis of tumor to her neurosurgeons, but, rather, alleged that the standard of care was violated because Van der Aue definitively slated that the plaintiffs biopsy specimen showed a tumor. Given the expert testimony offered at trial regarding the additional information that is communicated when rendering a definitive diagnosis of tumor, we conclude that these are two very different claims, the former prescribing as requisite a greater burden of proof than the latter.

In addition to being unsupported by the pleadings, the issue submitted to the jury in the court’s charge was unsupported by the evidence as well. The evidence adduced at trial established that a definitive communication by Van der Aue to the neurosurgeons that the plaintiffs biopsy specimen showed a tumor constituted a violation of the standard of care. Nothing in the evidence, however, established that Van der Aue would have to go two steps further and definitively communicate the tumor’s cell type and grade of malignancy, as is done when rendering a definitive diagnosis, to deviate from the standard of care.

Thus, in instructing the jury that “the plaintiff has alleged and sought to prove that [Van der Aue] deviated from the standard of care for board certified pathologists ... by communicating a, definitive diagnosis of tumor to her neurosurgeons,” the court conflated a “definitive communication of tumor” and “definitive diagnosis of tumor.” That was inconsistent with the plaintiffs claim in the case and the evidence adduced by the plaintiff in support of that claim.

We therefore conclude that the court’s charge improperly submitted to the jury an issue that was supported neither by the pleadings nor the evidence and eliminated from the jury’s consideration the plaintiffs actual claim of negligence against Van der Aue. See Josephson v. Meyers, 180 Conn. 302, 306, 429 A.2d 877 (1980) (court’s duty is to submit to jury only those issues relevant to pleadings and facts in evidence). Because the jury was never given the opportunity to evaluate the proper claim, we further conclude that the court’s instructions misled the jury in reaching a proper verdict. Accordingly, the plaintiff is entitled to a new trial.

The judgment is reversed only with respect to Van der Aue and the case is remanded for a new trial as to that defendant only. The judgment court is affirmed in all other respects.

In this opinion the other judges concurred.

       Michael Blatchley was named as a plaintiff but is not involved in this appeal. We refer in this opinion to Trudy Blatchley as the plaintiff.

       Also named as defendants were Associated Neurologists of Southern Connecticut, P.C.; George L. Van der Aue, M.D., P.C.; Fairfield County Pathology Consultants; Fairfield County Pathology Consultants, P.C.; and St. Vincent’s Medical Center. The plaintiff alleged that Associated Neurologists of Southern Connecticut, P.C., was vicariously liable for her injuries because Gross was acting within the scope of his employment in making the referral to Mintz. Similarly, the plaintiff alleged that George L. Van der Aue, M.D., P.C., Fairfield County Pathology Consultants, Fairfield County Pathology Consultants, P.C., and St. Vincent’s Medical Center were vicariously liable for her injuries because Van der Aue was acting within the scope of his employment in communicating his interpretation of the plaintiffs biopsy specimens. Vicarious liability, however, is not an issue in this appeal. We therefore refer only to Gross and to Van der Aue as the defendants throughout this opinion.
      We further note that, in addition to the aforementioned parties, this action was also brought against other individuals and entities. Before trial, however, a settlement was reached with those parties, and the case against them was withdrawn.

       We also acknowledge that, at oral argument, it appeared that counsel for the plaintiff raised for the first time to this court an additional claim that the trial court’s charge regarding that claim also was improper. We decline to address that claim, however, on the basis of the well established rule, that this court, does not have to entertain claims that are raised for the first time at oral argument and, thus, are inadequately briefed.

       The plaintiff raises additional claims on appeal with respect to Van der Aue; however, we need not, address them inasmuch as our holding with respect to the court’s improper jury instructions is dispositive.

       The first count of the plaintiffs operative complaint set forth the following claims against Gross:
      “18: Defendant Gross did not examine plaintiff prior to referring plaintiff to [Mintz] but called [Mintz] and informed him that he was referring the plaintiff for neurosurgery, that she had an expanding mass lesion, and that a thorough neurologic workup had been conducted and that multiple sclerosis (a demyelinating disease) had been ruled out. . . .
      “37: Plaintiffs injuries and deficits were caused by the negligence of the defendant Gross, for whose negligence defendant [Associated Neurologists of Southern Connecticut, P.C.] is responsible, in one or more of the following respects:
      “a. in that he failed to treat properly the plaintiff;
      “b. in that he failed to diagnose properly the plaintiffs medical condition;
      “c. in that he failed to provide proper neurologic and medical treatment to the plaintiff;
      “e. in that he improperly referred the plaintiff for neurosurgery;
      “f. in that he failed to exercise that degree of care, skill, and/or diligence ordinarily employed by neurologists under similar circumstances as set forth in this Complaint.”

       At trial, the plaintiff made the following relevant written requests to charge, which were refused by the court:
      “14: It is the plaintiffs position that Gross also spoke with Dr. Mintz and referred [the plaintiff] to Dr. Mintz for surgery. The plaintiff claims that pursuant to Gross’ duty, this referral should only have been made if Gross clearly communicated to Dr. Mintz that [multiple sclerosis] or demyelinating disease was still a potential cause of the plaintiffs condition and that stating that [multiple sclerosis] had been ruled out constituted a deviation from the standard of care. . . .
      “27: In the complaint, the plaintiff sets forth the specific ways in which she contends Dr. Gross was negligent. The plaintiff contends that Dr. Gross was negligent:
      “a. in that he failed to treat properly the plaintiff;
      “b. in that he failed to diagnose properly the plaintiffs medical condition;
      “c. in that he failed to provide proper neurologic and medical treatment to the plaintiff;
      “e. in that he improperly referred the plaintiff for neurosurgery;
      “f. in that he failed to exercise that degree of care, skill, and/or diligence ordinarily employed by neurologists under similar circumstances as set forth in this Complaint.”

         See footnote 5.

       See footnote 5.

       From the record, it appears that Van der Aue’s communication to the neurosurgeons consisted of a written note on which is stated: “Atypical astrocytic process with vascular proliferation, probably astrocytoma, awaiting permanent sections.” Additionally, the plaintiff adduced testimony from Mintz that Van der Aue personally appeared in the operating room and told him that the plaintiffs biopsy specimen showed a tumor.

       In addition, the court’s instruction presented the case to the jury in such a way that an injustice was done to the plaintiff, given that both the plaintiff and her expert, Perl, indicated at trial that Van der Aue’s communication to the neurosurgeons did not constitute a definitive diagnosis, but rather was only a definitive communication of tumor.


text:
    ANTHONY BARASSO v. REAR STILL HILL ROAD, LLC, ET AL.
    (AC 23632)
    Dranginis, Bishop and McLachlan, Js.

      Argued December 3, 2003 —
    officially released March 9, 2004

      Sabato P. Fiano, with whom, on the brief, was Jonathan D. Elliott, for the appellants (defendants).

      Leonard A. Fasano, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

The defendants in this foreclosure action, Rear- Still Hill Road, LLC, and Emerald Realty, Inc. (Emerald), appeal from the judgment of the trial court rendered in favor of the plaintiff, Anthony Barasso. The defendants claim that the court (1) improperly granted the plaintiffs motion for summary judgment and (2) failed to appoint a disinterested appraiser for the foreclosure sale. We agree with the defendants’ first claim and, therefore, reverse the judgment of the trial court.

The relevant facts are as follows. The plaintiff holds a note, now in default, dated November 7, 1994, for $250,000 from Emerald, secured by a second mortgage on certain property in Hamden. Frank Verderame holds the first mortgage on that property. Emerald subsequently conveyed the property by quitclaim deed to Rear Still Hill Road, LLC, the present owner of the fee interest.

Previously, the court granted the plaintiffs motion to strike the defendants’ special defenses, and the defendants appealed. We reversed that judgment and remanded the case with direction to deny the plaintiffs motion to strike. Barasso v. Rear Still Hill Road, LLC, 64 Conn. App. 9, 14, 779 A.2d 198 (2001). The plaintiff subsequently filed the motion for summary judgment giving rise to this appeal. The defendants filed an objection, accompanied by the sworn affidavit of James R. McMahon III, the vice president of Emerald (McMahon affidavit). After oral argument, the court granted the plaintiff’s motion for summary judgment. The parties thereafter stipulated to a judgment of foreclosure by sale, which the court ordered on September 23, 2002, and this appeal followed. Additional facts will be provided as necessary.

I

As a threshold matter, the plaintiff claims that this appeal should be dismissed on the ground that the defendants are not aggrieved by the stipulated judgment. “Aggrievement, in essence, is appellate standing.” Marine Midland Bank v. Ahern, 51 Conn. App. 790, 797, 724 A.2d 537 (1999), appeal dismissed, 252 Conn. 151, 745 A.2d 189 (2000). In Gladysz v. Planning & Zoning Commission, 256 Conn. 249, 773 A.2d 300 (2001), our Supreme Court explained that “[ajggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected. . . . We traditionally have applied the following two part test to determine whether aggrievement exists: (1) does the allegedly aggrieved party have a specific, personal and legal interest in the subject matter of a decision; and (2) has this interest been specially and injuriously affected by the decision.” (Citations omitted; internal quotation marks omitted.) Id., 255-56.

That test is satisfied in the present case. Although the defendants later stipulated to certain terms and the method of the inevitable foreclosure judgment, they filed special defenses to the action and objected to the plaintiffs motion for summary judgment as to the liability of the defendants.

Relying on our decision in Hunt v. Guimond, 69 Conn. App. 711, 796 A.2d 588 (2002), the plaintiff argues that the defendants cannot challenge the granting of the motion for summary judgment as to liability after they stipulated to the judgment of foreclosure by sale. In Hunt, we dismissed the defendant’s appeal from the trial court’s award of attorney’s fees and interest for lack of aggrievement where the defendant, subsequent to the award, had paid the fees and interest to the plaintiffs pursuant to a private stipulation between the parties. We held that the defendant’s interest was not injuriously affected because he voluntarily paid the fees and interest to the plaintiffs when the parties agreed to settle the dispute privately and canceled the scheduled sale of the property. Id., 715-16.

The facts of this case are distinguishable from those in Hunt. In Hunt, the defendant stipulated to pay and paid the attorney’s fees after the trial court issued the award. In the present case, the defendants never stipulated to the granting of the motion for summary judgment as to liability. Rather, they stipulated to the judgment simply to protect their interests in the event they were unsuccessful on appeal as to the issue of liability. Accordingly, we conclude that the defendants are aggrieved and, thus, possess the requisite standing to pursue this appeal.

II

The defendants claim that the court improperly granted the plaintiffs motion for summary judgment because there exist genuine issues of material fact. We agree.

Summary judgment is appropriate where “the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995); Practice Book § 17-49. Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary. Faigel v. Fairfield University, 75 Conn. App. 37, 40, 815 A.2d 140 (2003).

Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. “[H]e must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.” (Internal quotation marks omitted.) Town Bank & Trust Co. v. Benson, 176 Conn. 304, 307, 407 A.2d 971 (1978). A material fact is a fact that will make a difference in the result of the case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). “[T]he burden of showing the nonexistence of any material fact is on the party seeking summary judgment .... It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn. App. 427, 430, 755 A.2d 219 (2000). The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of fact. Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992). Once raised, if it is not conclusively refuted by the moving party, a genuine issue of fact exists, and summary judgment is inappropriate.

The court is required to view the facts presented in a motion for summary judgment in the light most favorable to the party opposing the motion. Mingachos v. CBS, Inc., 196 Conn. 91, 111, 491 A.2d 368 (1985). “[I]ssue-finding, rather than issue-determination, is the key to the procedure.” (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 433, 362 A.2d 857 (1975). “[T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Internal quotation marks omitted.) Kroll v. Sebastian, 58 Conn. App. 262, 265, 753 A.2d 384 (2000).

The defendants claim that the McMahon affidavit, submitted in opposition to the plaintiffs motion for summary judgment, raised genuine issues of material fact. “[Affidavits filed in connection with a motion for summary judgment must be made on personal knowledge, must set forth facts which would be admissible in evidence, and must show that the affiant is competent to testify to all matters stated in the affidavit. . . . Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue.” (Citations omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969). Our review of the record persuades us that the McMahon affidavit satisfies that standard.

The affidavit alleged that Ralph Barasso, the plaintiffs brother, repeatedly had represented to the defendants that he was an authorized agent of both the plaintiff and Verderame, an alleged business partner of the plaintiff. Several times, McMahon met with Ralph Barasso and Verderame to discuss and to negotiate potential real estate deals and financing. As part of those negotiations and at the request of Ralph Barasso, McMahon provided detailed information concerning his family’s corporate entities, finances and properties to Ralph Barasso, who represented that the information would be shared in confidence with the plaintiff and Verderame.

Prior to executing the note and mortgage at issue in this appeal, Ralph Barasso and Verderame represented to McMahon that they would provide all necessary financing for a planned elderly housing project. On September 2,1994, Verderame loaned Trinity Estates Development Corporation (corporation), of which McMahon serves as president, $400,000, and on October 14,1994, the plaintiff loaned the corporation $50,000. The defendants claim they relied on that representation and those financial dealings when they executed the note and mortgage on November 7, 1994, for the property at issue. Following execution of the note, the plaintiff and Verderame failed to provide the financing as promised. In August, 1997, Verderame obtained the first mortgage on the parcel. One year later, the plaintiff commenced foreclosure proceedings against the defendants.

Viewed in the light most favorable to the defendants, the affidavit raised several areas in which factual determinations may control the outcome. A first issue is whether Ralph Barasso was an authorized agent of the plaintiff, which impacts not only the plaintiffs claim, but also the defendants’ special defenses. Another pertains to the defendants’ claims of fraud.

The existence of an agency and whether a person is acting within the bounds of his authority as an agent are questions of fact. Cohen v. Meola, 184 Conn. 218, 220, 439 A.2d 966 (1981); Adams v. Herald Publishing Co., 82 Conn. 448, 451, 74 A. 755 (1909). Proof of an implied agency “is generally found in the acts and conduct of the parties.” Leary v. Johnson, 159 Conn. 101, 105, 267 A.2d 658 (1970).

The defendants have raised several special defenses that are intertwined with the agency question. One is equitable estoppel. That doctrine requires proof that “the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury.” Zoning Commission v. Lescynski, 188 Conn. 724, 731, 453 A.2d 1144 (1982). In its memorandum of decision, the court explained that the defendants’ equitable estoppel claim “lacks a key element .... The actions complained of here are those of other parties.” Were a jury to find Ralph Barasso to be an agent of the plaintiff, that element would arguably be met.

The defendants also raise the defense of fraud in the inducement.* * “Fraud in the inducement to enter a contract is a well established equitable defense.” Connecticut National Bank v. Voog, 233 Conn. 352, 367, 659 A.2d 172 (1995). “Fraud and misrepresentation cannot be easily defined because they can be accomplished in so many different ways. They present, however, issues of fact. ” (Internal quotation marks omitted.) Harold Cohn & Co. v. Harco International, LLC, 72 Conn. App. 43, 50, 804 A.2d 218, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002). Our Supreme Court has stated that the “summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions. ... It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised.” (Citations omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. 376. We conclude that the McMahon affidavit presented the necessary factual predicate for a fraud in the inducement defense.

In addition, the defendants raised the defense of unclean hands. Application of that doctrine, which requires a weighing of facts, rests within the sound discretion of the trial court. Thompson v. Orcutt, 257 Conn. 301, 308, 777 A.2d 670 (2001). We thus leave to the court, on remand, the determination of whether unclean hands exists under the particular facts of this case.

Having examined the McMahon affidavit, the court concluded that “[t]here is nothing before the court to support [its factual] allegations . . . .” Similarly, in DiUlio v. Goulet, 2 Conn. App. 701, 704, 483 A.2d 1099 (1984), because the trial court had “discounted the plaintiffs counteraffidavit, in effect, resolving the issue,” we reversed the judgment. “This is not the function of the court when ruling on a motion for summary judgment. Its proper role is not to try issues of fact but to determine whether there is a material issue of fact.” Id. Here, the plaintiff did not present a scintilla of evidence refuting the factual allegations raised in the McMahon affidavit.

Accordingly, we conclude that a genuine issue of material fact exists as to whether Ralph Barasso was an agent of the plaintiff, which in turn raises genuine issues of material fact as to whether representations were made by Ralph Barasso, the plaintiff and Verder-ame that would constitute fraud in the inducement or permit the application of equitable estoppel. Those questions may be answered only by the trier of fact. For that reason, summary judgment was inappropriate.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       Because we conclude that the motion for summary judgment was granted improperly, we do not consider the defendants’ second claim.

       “A general agent for a disclosed or even partially disclosed principal subjects the principal to liability for acts done on his account which usually accompany or are incidental to transactions which the agent is authorized to conduct.” Cleaveland v. Gabriel, 149 Conn. 388, 394, 180 A.2d 749 (1962).

       The essential elements of an action in fraud are: “(1) that afalse representation was made as a statement of fact; (2) that it was untrue and known to be untrue by the party making it; (3) that it was made to induce the other party to act on it; and (4) that the latter did so act on it to his injury.” (Internal quotation marks omitted.) Maturo v. Gerard, 196 Conn. 584, 587, 494 A.2d 1199 (1985).

       The doctrine of unclean hands holds that one who seeks to prove that he is entitled to the benefit of equity must first come before the court with clean hands; Cohen v. Cohen, 182 Conn. 193, 201, 438 A.2d 55 (1980); and must therefore “show that his conduct has been fair, equitable and honest as to the particular controversy in issue.” Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 525, 686 A.2d 481 (1996).

       The defendants also alleged, as a special defense, that the plaintiff breached the covenant of good faith and fair dealing. “We recently stated that special defenses and counterclaims alleging a breach of an implied covenant of good faith and fair dealing ... are not equitable defenses to a mortgage foreclosure. . . . Accordingly, the defendants’ special defense is legally insufficient and is not a valid legal or equitable defense to a foreclosure action.” (Citation omitted; internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn. App. 700, 716-17, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002).