text:
    STATE OF CONNECTICUT v. ALEXANDER HOLLEY, JR.
    (AC 34085)
    Beach, Robinson and Schaller, Js.

      Argued April 9
    —officially released July 30, 2013

      Shannon Daley, certified legal intern, with whom were Timothy H. Everett, assigned counsel, Christina Lindberg and Leah McGuckin, certified legal interns, and, on the brief, Sabrina Copp, Sara McCollum and Andrew Veale, certified legal interns, for the appellant (defendant).

      Jennifer Miller, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roger Dobris, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Alexander Holley, Jr., appeals from the judgment of conviction, rendered following a jury trial, of one count of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that (1) there was insufficient evidence to support his conviction of risk of injury to a child and (2) the prosecutor committed certain improprieties during closing argument that deprived him of a fair trial. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. On the afternoon of August 21, 2010, K, the complainant, received a telephone call from her male friend. He informed K of a paid opportunity to braid the hair of the defendant’s girlfriend in New Haven. K, along with her young child, Z, went to New Haven and met with her friend, the defendant, and the defendant’s girlfriend. They traveled together to the defendant’s apartment. When they arrived, K, Z, and the defendant’s girlfriend entered the bedroom where Z sat on the bed watching television as K braided the girlfriend’s hair in a nearby chair. Z eventually fell asleep at the foot of the bed. Sometime after Z had fallen asleep, the defendant entered the bedroom and began enticing his girlfriend to perform oral sex on him. K then left the bedroom in order to speak to her male friend in the kitchen. When the defendant followed K into the kitchen, she informed him that she intended to leave. The defendant began “clinking” what K thought was a gun, at which point K agreed to finish braiding the girlfriend’s hair.

At this point, K’s friend left the apartment under the pretext of going to a store. K returned to the bedroom and continued braiding the girlfriend’s hair while Z still slept on the bed. The defendant then entered the bedroom, locked the door behind him, and smoked crack cocaine with his girlfriend, leaving the crack cocaine and paraphernalia on the bedroom floor when they were finished.

Meanwhile, K’s Mend flagged down New Haven police Officer Paul Bicki, telling Bicki that his female Mend, K, along with her young child, Z, were in danger and needed police assistance at the defendant’s apartment. Bicki went to the defendant’s apartment, announced his presence, and requested that someone come to the door. He received no response. Bicki observed that a light was on in the bedroom where K and Z purportedly were in danger and contacted his supervisor for farther instructions. With the assistance of other officers who had arrived on scene, Bicki gained entry to the apartment through a living room window.

Upon entering the apartment, Bicki immediately opened the front door and let the other officers in. The officers approached the bedroom door and knocked, but received no response. The officers attempted to open the door, but discovered that the defendant was holding it shut. After opening the door, Bicki and fellow Officer Kealyn Nivakoff observed the defendant standing at the door, K and the defendant’s girlfriend lying naked on the bed, and Z lying at the foot of the same bed. The defendant refused to comply with the officers’ verbal commands to lie on the floor. When the officers attempted to restrain the defendant, a physical altercation ensued in a “very small space” between the bed and a wall. Bicki perceived the physical altercation as a “violent struggle . . . .” The defendant flailed, punched, and kicked at the five officers who were attempting to restrain him. The bed, which Z was lying on throughout the altercation, was knocked back and forth significantly, “enough that if somebody who was sleeping [on the bed] would absolutely be woken up.” The police eventually restrained and arrested the defendant.

The state, in a long form information filed on August 16, 2011, charged the defendant with two counts of kidnapping in the first degree with a firearm in violation of General Statutes § 53a-92a, one count of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a), and one count of risk of injury to a child in violation of § 53-21. The jury found the defendant guilty of risk of injury to a child and not guilty on each of the remaining charges. The court sentenced the defendant to a total effective term of fifteen months of imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence presented at trial was insufficient to support his conviction of risk of injury to a child in violation of § 53-21. Specifically, the defendant contends that the state failed to establish that his conduct, up to and during his physical altercation with the police, created a situation endangering the life or limb of Z. We are not persuaded.

As a preliminary matter, we identify the applicable standard of review. “The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . [P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Gene C., 140 Conn. App. 241, 245-46, 57 A.3d 885, cert. denied, 308 Conn. 928, 64 A.3d 120 (2013).

In the present case, the defendant was charged under the situation prong of § 53-21 (a) (1). Section 53-21 (a) provides in relevant part that “[a]ny person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered . . . shall be guilty of a class C felony . . . .” “Conduct is wilful when done purposefully and with knowledge of [its] likely consequences. . . . Moreover, [s]pecific intent is not a necessary requirement of the statute. Rather, the intent to do some act coupled with a reckless disregard of the consequences ... of that act is sufficient to [establish] a violation of the statute.” (Citations omitted; internal quotation marks omitted.) State v. Maurice M., 303 Conn. 18, 28, 31 A.3d 1063 (2011).

The defendant does not dispute his involvement in a physical altercation with police officers in close proximity to the child. His sufficiency claim is limited to the magnitude of the risk implicated by his conduct. Accordingly, the question that we must address is “whether there was sufficient evidence that the defendant’s conduct was of such a character that it demonstrated a reckless disregard of the consequences.” (Internal quotation marks omitted.) Id., 30.

The jury heard testimony that the defendant, aware of Z’s presence in the bedroom, held the bedroom door shut upon learning of the officers’ presence. From this, the jury reasonably could have inferred that the defendant intentionally barricaded the door to prevent the police from entering the bedroom. The jury also heard testimony that the defendant refused to comply with verbal commands to lie on the floor and engaged five officers in a “violent struggle” in close proximity to Z. The jury heard specific testimony that the defendant flailed, “[tried to throw] punches . . . and [kicked]” at the five officers, and that this altercation knocked into the bed where Z was lying, causing it to move back and forth significantly. In light of this evidence, and on the basis of its common knowledge and experience, the jury reasonably could have inferred that engaging five police officers in a physical altercation in close proximity to a child would create a situation likely to endanger that child’s life or limb. State v. Padua, 273 Conn. 138, 157, 869 A.2d 192 (2005) (jurors expected to apply common knowledge and experience to evidence). Construing the evidence in the light most favorable to sustaining the jury’s verdict, we conclude that the evidence was sufficient to support the defendant’s conviction.

II

The defendant next claims that the prosecutor committed certain improprieties that deprived him of a fair trial. Specifically, the defendant contends that the prosecutor made several improper remarks during the rebuttal stage of closing arguments and that those improprieties deprived him of his due process right to a fair trial and violated his fifth amendment right to remain silent. We conclude that none of these remarks were improper.

The following additional facts are necessary to resolve this claim. The defendant did not testify at trial. During closing arguments, defense counsel began his summation with the following statement: “This prosecutor did his job but gave you a mess. It’s a jungle of liars and felons and a police investigation that relied solely on them. And he wants you to make some kind of sense of it.” Defense counsel asked the jury if it “[w]ould . . . rely on liars and felons?”

Defense counsel proceeded to challenge the credibility of the state’s witnesses. Beginning with K, he referred to her as a compulsive liar, “careless parent,” drug user, and, in conclusion, stated, “[w]e all agree [K] is a liar.” Turning to K’s friend, defense counsel similarly characterized him as a drug addict and felon who could not be trusted: “He flagged down a cop and told him a story [on the night in question], like he tried to do [while testifying]. A story only his clever and deceitful mind [could conceive] to get the party broken up.”

At the outset of his rebuttal, the prosecutor stated: “To hear [defense counsel] tell it, none of us were in the same courtroom. . . . Let’s . . . talk about a few things.[Everybody in this case is lying except good old Alex. The man who transgressed by something that [defense counsel] didn’t really specify, but I think we can say [his explanation is] . . . [because he was] alleged to have smoked crack cocaine ... [he was] paranoid [and that] paranoia is demonstrated by the fact that there are three weapons in the bedroom.” The prosecutor then proceeded to rebut propositions raised by defense counsel: “Counsel's suggesting that [K] and [her friend] and the New Haven cops are all liars. It couldn’t have taken three or four cops to break the door down when this poor little Alex was holding them back, could it? They’re all liars. [K] lied to the doctors; she must be lying to you all.” After addressing defense counsel’s characterization of K, the prosecutor remarked: “[K] is not on trial here, despite what [defense counsel] would have you believe. She’s not the defendant; he’s the defendant. He, Alex Holley. Counsel is trying to take your mind and your eyes away from [K] as a witness and make her the defendant. When, in actuality, his client is the defendant. He’s on trial, not [K].”

We first identify the standard of review for claims of prosecutorial impropriety. “[T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial [impropriety].” (Internal quotation marks omitted.) State v. Campbell, 141 Conn. App. 55, 60, 60 A.3d 967, cert. denied, 308 Conn. 933, 64 A.3d 331 (2013).

When evaluating claims of prosecutorial impropriety, our inquiry is binary. State v. Payne, 303 Conn. 538, 560, 34 A.3d 370 (2012). First, we determine if an impropriety occurred. Id. Second, if an impropriety did occur, we determine whether it deprived the defendant of his due process right to a fair trial. Id. Thus, our initial task is a fact specific determination as to whether the prosecutor’s conduct was improper.

“[A]n impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial.” (Internal quotation marks omitted.) Id., 560-61. “[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the jury’s attention from the facts of the case.” (Internal quotation marks omitted.) State v. Gibson, 302 Conn. 653, 659, 31 A.3d 346 (2011).

Our Supreme Court has recently held that, with respect to prosecutorial impropriety claims implicating due process generally, “the burden is on the defendant to show . . . that the remarks were improper . . . .” State v. Payne, supra, 303 Conn. 563. Likewise, with respect to impropriety claims impheating “specifically enumerated constitutional right[s], such as the fifth amendment right to remain silent,” the burden of establishing an impropriety remains with the defendant. Id.

A

The defendant first contends that the prosecutor’s remarks referring to the defendant as “good old Alex” and “poor little Alex” were improper because they “urged the jury [to] adopt the state’s sarcastic and derisive view of the defendant as a person,” thereby depriving him of his due process right to a fair trial. We disagree.

It is well settled that “[a] prosecutor may not seek to sway the jury by unfair appeals to emotion and prejudice . . . .” (Internal quotation marks omitted.) State v. Kendall, 123 Conn. App. 625, 637, 2 A.3d 990, cert. denied, 299 Conn. 902, 10 A.3d 521 (2010). “[0]ur Supreme Court has recognized that repetitive and excessive use of sarcasm is one method of improperly swaying the fact finder.” (Internal quotation marks omitted.) Id., 642. Additionally, “we have recognized that the excessive use of sarcasm may improperly influence a jury. ... A prosecutor’s frequent and gratuitous use of sarcasm can [call on] the jurors’ feelings of disdain, and likely sen[d] them the message that the use of sarcasm, rather than reasoned and moral judgment, as a method of argument [is] permissible and appropriate for them to use.” Id., 637. “Although we neither encourage nor condone the use of sarcasm, we also recognize that not every use of rhetorical language or device is improper. . . . The occasional use of rhetorical devices is simply fair argument.” (Internal quotation marks omitted.) Id., 642.

In concluding that the prosecutor’s remarks were not improper, we find the principles set forth in State v. John M., 87 Conn. App. 301, 865 A.2d 450 (2005), aff'd, 285 Conn. 822, 942 A.2d 323 (2008), persuasive. In John M., the prosecutor made two sarcastic remarks during the rebuttal stage of closing argument. Id., 314. These remarks “were made in the course of the prosecutor’s marshaling of and commenting on the evidence, as well as in her response to defense counsel’s closing argument.” Id., 314-15. The court concluded that the prosecutor’s “limited use” of sarcasm was not improper. Id., 315.

In the present case, the prosecutor’s remarks occurred at the outset of his rebuttal in response to defense counsel’s criticism of the state’s witnesses. Indeed, defense counsel asserted that the entirety of the state’s witnesses were lying and alluded to the unlikelihood that the defendant barricaded the door against several police officers. In context, it is evident that the prosecutor was addressing an inference raised by defense counsel that it was not possible for the defendant to barricade the door against four or five police officers. See State v. Singh, 259 Conn. 693, 717, 793 A.2d 226 (2002) (state may properly respond to inferences raised by defendant’s closing argument). As in John M., the two remarks were made by the prosecutor both as he marshaled and commented on the evidence and responded to matters raised by defense counsel in his summation.

Although “[a] prosecutor may not appeal to the emotions, passions and prejudices of the [fact finder] . . . [a] situation such as the one here . . . [where] the prosecutor used sarcasm only twice in [his] rebuttal argument, does not constitute such an appeal.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. John M., supra, 87 Conn. App. 314. Accordingly, we conclude that the remarks were not improper.

B

The defendant next contends that two of the prosecutor’s remarks were improper because they infringed on and implicated, respectively,, the defendant’s constitutional right not to testify: (1) “everybody in this case is lying except good old Alex”; and (2) “[c]ounsel is trying to take your mind and your eyes away from [K] as a witness and make her the defendant. When, in actuality, his client is the defendant. He’s on trial, not [K].”

“It is well settled that comment by the prosecuting attorney ... on the defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution.” (Internal quotation marks omitted.) State v. Satchwell, 244 Conn. 547, 570, 710 A.2d 1348 (1998). “In determining whether a prosecutor’s comments have encroached upon a defendant’s right to remain silent, we ask: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify? . . . Further, in applying this test, we must look to the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact upon the jury. . . . Finally, [w]e also recognize that the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument.” (Citations omitted; internal quotation marks omitted.) State v. Haase, 243 Conn. 324, 333, 702 A.2d 1187 (1997), cert. denied, 523 U.S. 1111, 118 S. Ct. 1685, 140 L. Ed. 2d 822 (1998).

1

The defendant contends that the first remark, “everybody in this case is lying except good old Alex,” raised the defendant’s credibility as an issue, thereby violating the defendant’s right to rely on the fifth amendment and elect not to testify in his own defense. We disagree.

When viewing the remark in the context of the closing arguments, it is evident that it was prompted by defense counsel's summation and not a manifest intention to refer to the failure of the defendant to testify. Defense counsel, in his summation, repeatedly characterized the state’s witnesses as untrustworthy and irresponsible. The remark occurred at the outset of the prosecutor’s rebuttal and encapsulated the general theme of defense counsel’s summation—that all of the state’s witnesses were liars. “It is well established that [a] prosecutor may respond to the argument of defense counsel during rebuttal. ... As this court has observed, our case law consistently has held that invited argument is not improper.” (Citation omitted; internal quotation marks omitted.) State v. Lindsay, 143 Conn. App. 160, 179, 66 A.3d 944 (2013). To the extent that the remark, taken in context, can be understood as a response to defense counsel’s characterization of the state’s witnesses, we conclude that it does not establish a manifest intention to refer to the defendant’s failure to testify.

Likewise, we conclude that the jury would not have naturally and necessarily taken the remark as a comment on the defendant’s failure to testify. The defendant argues that the jury “could have reasonably understood” the remark as a reference to his failure to testify. “The test, however, is not whether it would be reasonable for the jury to interpret [the remark] as a [reference to] the defendant’s failure to testify, but whether the jury would naturally and necessarily interpret it as such.” (Emphasis in original; internal quotation marks omitted.) State v. Palmer, 78 Conn. App. 418, 424, 826 A.2d 1253, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003). The jury reasonably could have understood the remark in context as the prosecutor’s response to defense counsel’s repeated attempts to undermine the credibility of the state’s witnesses. Moreover, the court specifically instructed the jury not to draw an adverse inference from the defendant’s failure to testify. “[A] court should not lightly infer that ... a jury, sitting through lengthy exhortation, will draw [a remark’s most damaging meaning] from the plethora of less damaging interpretations.” (Internal quotation marks omitted.) State v. Williams, 81 Conn. App. 1, 16-17, 838 A.2d 214, cert. denied, 268 Conn. 904, 845 A.2d 409 (2004). We therefore conclude that the jury would not have naturally and necessarily taken the remark as a comment on the failure of the defendant to testify. Accordingly, we conclude that the remark was not improper.

2

The defendant contends that the second remark, “[c]ounsel is trying to take your mind and your eyes away from [K] as a witness and make her the defendant. When, in actuality, his client is the defendant. He’s on trial, not [K],” was improper because it referenced the defendant’s failure to offer evidence, thereby impheat-ing his constitutional right not to testify. We are not persuaded.

We do not perceive this remark as referring to the defendant’s failure to offer evidence. The record demonstrates that the prevalent theme of defense counsel’s summation was K’s character. Defense counsel referred to K as the “foundation” of the state’s case and repeatedly characterized her as a liar, unreliable, and careless. It was only after rebutting each of defense counsel’s characterizations of K that the prosecutor made the remark at issue. Thereafter, the prosecutor proceeded to discuss the evidence adduced at trial. The remark neither specifically referred to the defendant’s failure to offer evidence, nor does the context suggest such an implication. Rather, the record demonstrates that the remark was in response to defense counsel’s attempt to frame K’s character as the central issue in the case and sought to refocus the jury’s attention on the proper task of evaluating the evidence presented at trial. See State v. Lindsay, supra, 143 Conn. App. 179 (invited argument not improper). For the foregoing reasons, we conclude that the prosecutor’s remarks were not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       Prior to trial, the defendant filed a motion to suppress evidence seized by New Haven police officers following their warrantless entry of his apartment. The trial court denied the motion. The defendant on appeal does not challenge the trial court’s suppression ruling.

       The defendant invites this court to consider the presence of five police officers and two other adults in the room as mitigating any likely risk to Z’s life or limb. While we consider the presence of adults as part of the overall circumstances in which the defendant acted, the defendant’s argument is unavailing. The jury was presented with evidence that, if credited, would support it finding that the presence of officers and adults in the bedroom did not mitigate any risk to the child. The jury heard testimony that the physical altercation between the officers and the defendant occurred immediately after the officers entered the bedroom. The officers were able to secure Z only after restraining the defendant. From this, the jury reasonably could have inferred that the officers were principally concerned with restraining the defendant, not securing Z, and that the two other adults in the room did not act to protect Z during the altercation.

       “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” General Statutes § 53a-3 (13).

       Relying on State v. Robert H., 273 Conn. 56, 866 A.2d 1255 (2004), the defendant also argues that this court, when assessing his sufficiency claim, may not consider evidence pertaining to his possessing and wielding a BB gun. In Robert H., our Supreme Court held that “[i]n order for any appellate theory to withstand scrutiny ... it must be shown to be not merely before the jury due to an incidental reference, but as part of a coherent theory of guilt . . . .” (Internal quotation marks omitted.) Id., 83. According to the defendant, evidence regarding his possessing and wielding a BB gun was not focused upon by the state at trial and, therefore, cannot be relied upon to support his conviction of risk of injury to a child. Because we conclude that the defendant’s conduct during his physical confrontation with the police was sufficient to support the jury’s verdict, we need not address this argument.

       The defendant in his brief argues, in passing, that the prosecutor’s remarks also implicated his sixth amendment right to confront his accusers, but presents no analysis in support of his assertion. “We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Creative Masonry & Chimney, LLC v. Johnson, 142 Conn. App. 135, 142, 64 A.3d 359, cert. denied, 309 Conn. 903, 68 A.3d 658 (2013). We therefore decline to address this argument.

       Although the defendant did not preserve the impropriety claim at trial, it is well settled that “a defendant who fails to preserve claims of prosecutorial [impropriety] need not seek to prevail under the specific requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test.” (Internal quotation marks omitted.) State v. Payne, 303 Conn. 538, 560, 34 A.3d 370 (2012). Therefore, we will address the merits of the defendant’s claim.

       Although the defendant claims a violation of both his due process right to a fair trial and his specifically enumerated constitutional right to remain silent under the fifth amendment, he still carries the burden of establishing an impropriety. “[I]f the defendant raises a claim that the prosecutorial improprieties infringed a specifically enumerated constitutional right and the defendant meets his burden, of establishing the constitutional violation, the burden is then on the state to prove that the impropriety was harmless beyond a reasonable doubt.” (Emphasis added.) State v. Payne, supra, 303 Conn. 563.

       The defendant asserts that the prosecutor’s remarks analogizing the defendant’s situation to that of the symphonic work by Sergei Prokofiev, “Peter and the Wolf,” are also improper. The defendant, however, raised this argument for the first time in his reply brief. “[C]laims ... are unre-viewable when raised for the first time in a reply brief.” (Internal quotation marks omitted.) Certo v. Fink, 140 Conn. App. 740, 747 n.5, 60 A.3d 372 (2013). Accordingly, we decline to address this matter.

       This right is statutorily recognized in General Statutes § 64-84.

       Because we have concluded that the prosecutor’s remarks were not improper, we need not conduct a due process analysis pursuant to State v. Williams, 204 Conn. 523, 529 A.2d 653 (1987).


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    SAIF ABDO v. ALI ABDULRAHMAN ET AL. GIMMA, LLC v. SAIF ABDO ET AL.
    (AC 33957)
    DiPentima, C. J., and Lavme and Robinson, Js.
    Submitted on briefs April 22
    —officially released July 30, 2013

      John A. Florek filed a brief for the appellant (plaintiff in the first case, named defendant in the second case).

      Alan S. Tobin filed a brief for the appellees (defendants in the first case, plaintiff in the second case).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Saif Abdo, appeals from the judgment of the trial court determining that there was no partnership agreement between the plaintiff and the defendant Ali Abdulrahman. The plaintiff claims that the court erred in (1) failing to declare Gimma as a constructive trustee for a one-half interest in real property located at 281 Davenport Avenue in New Haven, (2) ruling that the defendant was not liable for sales and use taxes for the business known as the “24/7 Convenience Store,” and (3) failing to order an accounting of the 24/7 Convenience Store. The basis of the plaintiffs claims is his disagreement with the trial court’s conclusion that his testimony was not credible. Applying the appropriate deferential standard of review to those claims, we affirm the judgment of the trial court.

The following facts and procedural history were set forth in the court’s memorandum of decision and are supported by the record. The defendant immigrated to the United States in 1982. The plaintiff immigrated to the United States in 1998. Before the plaintiff arrived in the United States, the defendant had obtained possession of “several real estate properties and stores . . . .” The defendant welcomed the plaintiff to the United States, and the plaintiff began working for the defendant, eventually running several of the defendant’s retail operations. The plaintiff also lived in an apartment above one of the defendant’s properties at 281 Davenport Avenue; he did not pay rent. In August, 2000, the plaintiff and the defendant executed an ownership agreement as to the 24/7 Convenience Store, which stated: “This letter details the ownership agreement of 24/7 Convenience Store 815 Dixwell Avenue, Hamden, CT. [The defendant] is 95% owner of above-mentioned convenience store and [the plaintiff] is 5% owner. [The defendant] invested 100% of the capital for this business.” The plaintiff and the defendant both signed this agreement, and the document was notarized.

On August 2, 2002, Michael Samander executed a warranty deed, conveying 281-285 Davenport Avenue to the defendant. The defendant subsequently quit-claimed the property to Gimma. The plaintiff testified that he knew Samander and that he had participated in discussions regarding the sale of the property, but that he was not present at the time of the closing. At trial, the plaintiff introduced a document titled the “Rahman/Abdo Partnership Agreement” and dated November, 2008, which provided for the defendant and the plaintiff to each possess 50 percent of the defendant’s businesses. The defendant never signed this document.

In May, 2009, the plaintiff brought this action, alleging that he and the defendant entered into a partnership concerning a property called the Pyramid Grocery Store, the 24/7 Convenience Store, and a third property at 342 Whalley Avenue in New Haven. The plaintiff alleged further that he contributed equally in order to purchase the properties and that he did not consent to the defendant taking title to 281-285 Davenport Avenue in his name only, nor did he consent to the conveyance of the property by the defendant to Gimma. The plaintiff sought (1) an accounting for the “financial affairs of the partnership,” (2) a declaration of Gimma as a constructive trustee for the plaintiffs alleged 50 percent interest in 281 Davenport Avenue, (3) a conveyance from Gimma of a 50 percent interest in 281 Davenport Avenue to the plaintiff, (4) monetary damages, (5) punitive damages, and (6) attorney’s fees. The defendant denied the existence of a partnership.

In May, 2009, Gimma served the plaintiff with a notice to quit possession of the property at 281 Davenport Avenue. Thereafter, in June, 2009, Gimma brought a summary process action against the plaintiff in the housing session of the Superior Court, seeking a judgment of possession of the property. In December, 2009, the plaintiff moved to consolidate his action and the June, 2009 housing court action. The court, Silbert, J., granted the motion. The trial of the consolidated actions took place on April 7 and 26, 2011.

The court, Hon. David W. Skolnick, judge trial referee, filed a memorandum of decision on June 21, 2011. In the memorandum, the court outlined the parties’ positions with respect to the properties in question and to their relationship with each other. The court noted that the defendant testified that “I met [the plaintiff] in 1998—he came to me to get a job. He came to me, I gave him shelter, I gave him money, I gave him a car.” Both the plaintiff and the defendant testified at trial, along with seven other individuals who knew the parties and who also had immigrated to the United States. These individuals testified that they “overheard [the defendant] state that [the plaintiff] was his partner.” The court noted the contrast between these descriptions of the plaintiffs relationship with the defendant and the defendant’s testimony, wherein he “vehemently denied ever stating that [the plaintiff] was his partner . . . [or telling the plaintiff] that he was his equal partner.” Ultimately, after hearing testimony and reviewing evidence, the court concluded: “The claim of [the plaintiff] that he was given 50 [percent] ownership of those businesses by [the defendant] without paying anything for becoming an equal partner the court finds not to be credible.” The court rejected the plaintiffs claim of an ownership interest in the properties at 281-285 Davenport Avenue and 342 Whalley Avenue. Further, the court ordered the plaintiff to vacate the apartment at 281 Davenport Avenue. The court acknowledged the plaintiffs 5 percent ownership interest in the 24/7 Convenience Store, but concluded that there was no partnership between the plaintiff and the defendant apart from the distribution of interest in the property outlined in the ownership agreement. The court offset any payments due to the plaintiff because of his 5 percent interest and his rent free accommodation for several years.

The plaintiff filed a motion for reconsideration in which he argued that the court failed to take into account his relationship with the defendant, his managerial positions at the various properties, and the defendant’s tax liabilities for the properties. The court denied the motion, stating in relevant part: “[T]he court believes that it covered all bases in its decision including those raised by [the plaintiffs] motion . . . This appeal followed.

The plaintiff claims that the court’s decision was clearly erroneous. Specifically, the plaintiff argues that “based on a consideration of the evidence introduced at trial and the record as a whole,” the court’s conclusions were contrary to the evidence. We disagree.

There is no dispute as to the applicable standard of review of the plaintiffs claims of erroneous factual findings. “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption ... in favor of the trial court’s ruling.” (Internal quotation marks omitted.) Commissioner of Environmental Protection v. Farricielli, 307 Conn. 787, 816-17, 59 A.3d 789 (2013). “[A] partner is both principal and agent, principal as to himself and agent as to other partners. . . . Such an agency, where the facts are conflicting, is one of fact . . . .” Hotchkiss v. DiVita, 103 Conn. 436, 446-47, 130 A. 668 (1925).

In its memorandum of decision, the court noted the discrepancies between the testimony of the parties. It also discussed the testimony given by individuals who shared the same ethnic background as the plaintiff, and testified that in their culture “business dealings are a matter of ‘trust’ ” which therefore “eliminates the need for a paper trail.” The court, after hearing the evidence, concluded that “[t]he claim of [the plaintiff] that he was given 50 [percent] ownership of [the] businesses by [the defendant] without paying anything for becoming an equal partner the court finds not to be credible.” The court did find credible the testimony that the defendant hired the plaintiff when he arrived in the United States in 1998. The court noted that it also found credible the testimony that the defendant gave the plaintiff managerial responsibilities in his stores and allowed him to live in an apartment the defendant owned without paying rent. There is evidence to support the court’s determination that there was no partnership between the defendant and the plaintiff beyond their division of the 24/7 Convenience Store. Making every reasonable presumption in favor of the trial court’s ruling, we conclude that the decision as to the existence of a partnership, therefore, was not clearly erroneous.

Further, the issue of the payment of taxes is not properly before this court. The plaintiffs operative complaint, dated April 30, 2009, is devoid of any allegation addressed to the payment of taxes or tax liability. At trial, the plaintiff was questioned extensively regarding the nature of the alleged partnership, and during such questioning the plaintiff discussed the various arrangements between the plaintiff and the defendant for the payments of taxes on the different properties. The plaintiff stated that the sales and tax permit for the 24/7 Convenience Store was in his name only. The plaintiff also identified checks he had written to pay for city taxes on the 24/7 Convenience Store. The plaintiff raised the issue of tax liability in his motion to reconsider, and the court noted it in its denial of the motion.

In any event, we are not required to review an improperly raised claim. “Pleadings have an essential purpose in the judicial process. . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried .... For that reason, [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings. . . . [A]ny judgment should conform to the pleadings, the issues and the prayers for relief.” (Citation omitted; emphasis omitted; internal quotation marks omitted.) Dickman v. Office of State Ethics, Citizen’s Advisory Board, 140 Conn. App. 754, 759-60, 60 A.3d 297, cert. denied, 308 Conn. 934, 66 A.3d 497 (2013). “We have repeatedly indicated our disfavor with the failure, whether because of a mistake of law, inattention or design, to object to errors occurring in the course of a trial until it is too late for them to be corrected . . . .” (Internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 187, 708 A.2d 949 (1998). The plaintiff did not raise the issue of tax liability in his complaint, and although the court heard the plaintiffs testimony regarding the payment of taxes and acknowledged that the plaintiff raised the tax liability claim in his motion to reconsider, the court based its denial of the motion to reconsider on its determination of the plaintiffs lack of credibility. We already have concluded that such a determination was not erroneous. Accordingly, the claim with respect to tax liability was not properly before the trial court and is not properly before this court.

The judgment is affirmed.

In this opinion the other judges concurred.

       Saif Abdo also named Gimma, LLC (Gimma), as a defendant in his action, filed in May, 2009. Gimma is a limited liability company registered in Connecticut. Its principal member is Ali Abdulrahman. Gimma brought a summary process action against Abdo in June, 2009, seeking a judgment of possession of 281-285 Davenport Avenue, New Haven. The summary process action was consolidated with Abdo’s May, 2009 action. The issues on appeal concern Gimma in addition to Abdulrahman and concern only the May, 2009 action. For the sake of clarity, we therefore refer in this opinion to Abdulrahman as the defendant, Abdo as the plaintiff, and Gimma by name.

       Because we conclude that there was no error in the court’s determination that no partnership existed beyond the partition of ownership of the 24/7 Convenience Store, we need not address the plaintiffs claim that the court erred in failing to order an accounting. Beyond his argument that there was a partnership, the plaintiff offers no reason why such an accounting is owed by the defendant.

       The court stated: “[T]he court believes that it covered all bases in its [memorandum of] decision including those raised by [the motion to reconsider] in view of the fact that the defendant claimed he was frozen out of the store as far back as 2000 and during the period from 2000 to 2008, aperiod where the plaintiff was the sole proprietor of the business and received all proceeds from the store and therefore should bear the sales and use tax despite his 5 [percent] interest in the property.”


author: LAVINE, J.

text:
    DAPHNE B. NOYES v. ANTIQUES AT POMPEY HOLLOW, LLC, ET AL.
    (AC 34430)
    Lavine, Beach and Keller, Js.

      Argued March 21
    —officially released July 30, 2013

      Neil Johnson, for the appellants (defendants).

      Eric H. Rothauser, with whom, on the brief, was John L. Bonee III, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The defendants, Antiques at Pompey Hollow, LLC, and Thomas Degnan, appeal from the judgment of the trial court rendered in favor of the plaintiff, Daphne B. Noyes, following a trial to the court. On appeal, the defendants claim that the court improperly found that they (1) were unjustly enriched and (2) had violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. The defendants also claim that the court improperly awarded the plaintiff attorney’s fees pursuant to CUTPA. We affirm the judgment of the trial court.

The following facts, as found by the court, are relevant to the resolution of this appeal. The plaintiff inherited a large collection of antiques from her parents, who had lived on Martha’s Vineyard, Massachusetts. The plaintiff shared her parents’ enthusiasm for and knowledge of antiques. When the plaintiff decided to sell some of the antiques, she was referred to Degnan and his business, known as Antiques at Pompey Hollow LLC, located in Ashford. At the plaintiff’s request, Deg-nan twice viewed the plaintiff’s antiques on Martha’s Vineyard. During Degnan’s visit to Martha’s Vineyard on October 6, 2008, he and the plaintiff entered into a written consignment contract (contract). Attached to the contract were twelve pages, each containing a list of antiques with low/high value estimates provided by Degnan. Each antique was assigned a lot number, which ranged from 1 to 334. Four of the lots had reserve values, meaning that the plaintiff and Degnan agreed that the lots would not be sold for less than the reserve value. The court found, however, that the list of antiques was incomplete, as the lot numbers skipped from 70 to 186 and from 309 to 320. A line was drawn through lot number 236 with the notation “NFS.” The court found that the plaintiff consigned a total of 333 lots to the defendants. At trial, none of the parties could account for 126 lots.

On October 6, 2008, Degnan packed most of the consigned lots into his van for transport off Martha’s Vineyard. The plaintiff made arrangements with a moving concern to have the largest antiques shipped to the defendants.

To sell the plaintiffs antiques, Degnan held an auction on November 21, 2008, in Norwalk. According to Deg-nan, the auction went poorly, which he attributed to a concurrent stock market “crash.” Degnan withheld certain items from the auction in hope of better success later. Sixty-four lots were sold at auction for $6130. Degnan sent the plaintiff a check for $4597.50 as well as a list of lots sold that included the lot number, a description, and the hammer, or sale, price. The defendants retained $1532.50, representing a 25 percent commission, from the proceeds of the auction.

Degnan also sent the plaintiff a letter dated December 1, 2008, which stated: “Please find enclosed results and check for the sales you realized in our [November 21] 2008 auction. We were pleased with the results from those items sold, but would have preferred to sell a good deal more merchandise. I hope you are pleased with the results.

“We will continue to offer your remaining goods at the different venues we engage and will honor any reserves that were in the auction contract. However, as no buyer’s premium is charged at a retail sale we charge a commission of one third of the sales price for a direct sale. Any proceeds due you from such sales will be paid monthly by the [fifth] of the month following the month in which the goods are sold.

“If you have any questions or concerns, please feel free to call me at any time.

“Thank you for your business . . . /s/” (Emphasis added.)

The court found that the plaintiff did not agree to the terms of further business with the defendants as set forth in Degnan’s letter. The plaintiff, however, did not object to the defendants’ failure to return her property and continued to inquire, cordially, as to the results of the subsequent auctions Degnan proposed. Degnan also was courteous, but not prompt or thorough in his responses. Degnan mostly supplied the plaintiff with excuses for not keeping her up to date on results of sales, and he did not give her an accounting of what lots had been sold and what remained.

On March 16,2009, however, Degnan sent the plaintiff a list by lot number of eleven items sold, description, and bid amounts. He indicated a sales total of $2210 and a commission of $224. He sent the plaintiff a check in the amount of $1896. The plaintiff accepted the outcome of the sales. On May 11, 2009, Degnan sent the plaintiff a list of five antiques sold by lot number, description, and bid amount. The total sale was $500. Degnan kept a commission of $125 and sent the plaintiff a check in the amount of $375. Again, the plaintiff accepted the outcome. On June 17, 2009, Degnan sent the plaintiff a list of two items sold without lot numbers; the items sold for $1550. He kept a commission of $312.50 and sent the plaintiff a check for $1237. Once more, the plaintiff accepted the defendants’ check. The plaintiff, however, continued to request an accounting of the antiques consigned to the defendants but heard nothing further from Degnan, except excuses. Degnan finally stopped communicating altogether.

In summary, the court found that as of June, 2009, the defendants reported a total of eighty-two antiques sold. Two-hundred-fifty-one items were unaccounted for. The plaintiff commenced this action on April 27, 2010.

The case was tried to the court on October 13, 2011. At trial, the plaintiff presented a list of 141 antiques that were missing or sold incorrectly, most with lot numbers. The plaintiff estimated the value of the antiques at auction, and the court found the conservative worth of the antiques to be $23,565. The plaintiff could not explain why her list did not account for all of the antiques consigned to the defendants, testifying that she had put the list together to the best of her ability. The court, nevertheless, found the plaintiffs list and valuations to be credible.

At trial, Degnan presented a list of 108 additional items he claims that he sold in January and February, 2009, for a total of $2600. According to Degnan, the list presented was an actual list of items sold at auction, in addition to the eighty-two items he previously reported as having been sold as of June, 2009. Degnan testified that he sold all of the antiques consigned to him, except for two lots that were in the trunk of his car. The court found that, although he sold all but two items the plaintiff had given him to sell, Degnan did not send the plaintiff her share of any sales after June, 2009. He explained that he could not profitably absorb the cost of shipping the large items from Martha’s Vineyard, and that he had time-consuming disagreements with the plaintiff.

Moreover, the court found that Degnan sold a secretary, or desk, sometime during the first quarter of 2009, but that he had no records to document the transaction. He sold the secretary, which had a reserve value of $2000, purportedly for $500. Degnan also sold a sampler, which had a reserve value of $800, for $300. He sold a finely woven Persian rug with a reserve value of $3000, for $1300, and a scrimshaw whale bone busk, or corset stay, reserved at $800, for $400. The plaintiff denied that she agreed with Degnan’s judgment to sell those items for less than their reserve values.

The court did not find credible Degnan’s testimony regarding antiques sold in January and February, 2009, and that he sold all but two lots consigned to him. The court found that the list Degnan entered into evidence contained fewer lots than the number of lots missing, no lot numbers, and the descriptions of most of the antiques did not match the lot descriptions in the contract. Moreover, the court found that Degnan’s explanation as to why he sold items below the reserve values was inconsistent with, his December 1, 2008 letter and that his claim regarding shipping costs was inconsistent with paragraph 6 of the contract. The court also found evidence that the defendants were experiencing financial difficulties during the relevant period of time.

The court issued a memorandum of decision on February 24,2012. The court found that the plaintiff failed to prove her breach of contract, conversion, and negligent infliction of emotional distress claims. The court found, however, that the plaintiff had proven her unjust enrichment claim and awardéd her $17,673.25 in damages. The court also found that the plaintiff had proven her CUTPA claim and awarded her attorney’s fees of $10,290 and costs of $892.94. The defendants appealed. Additional facts will be set forth as necessary.

I

The defendants claim that the court improperly (1) found them hable to the plaintiff for unjust enrichment and (2) awarded the plaintiff damages. We disagree.

A

The defendants claim that the court’s finding that they had been unjustly enriched is clearly erroneous. “Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an. action on the contract. ... A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Emphasis added; internal quotation marks omitted.) Hospital of Central Connecticut v. Neurosurgical Associates, P.C., 139 Conn. App. 778, 784, 57 A.3d 794 (2012). “A determination that . . . restitution is appropriate under quantum meruit or unjust enrichment is a factual determination that may be reversed only if clearly erroneous.” BHP Land Services, LLC v. Seymour, 137 Conn. App. 165, 169, 47 A.3d 950, cert. denied, 307 Conn. 927, 55 A.3d 569 (2012).

The following additional facts are relevant to our resolution of the defendants’ claim. The court found that the plaintiff had failed to prove her breach of contract claim, as the contract under which she had consigned antiques to be sold at auction by the defendants terminated when the defendants sold some of those antiques on November 21, 2008, and paid the plaintiff her share of the proceeds. The defendants did not return the unsold antiques to the plaintiff or notify her of their intention to return them. The court stated that, ordinarily, retention of unsold consigned goods converts the transaction from a consignment into a sale at the election of the consignor, i.e., the plaintiff. See International Looms, Inc. v. Jono Textile Co., 34 Conn. Supp. 599, 602, 379 A.2d 3, cert. denied, 172 Conn. 719, 369 A.2d 1120 (1977). The court found that neither the plaintiff nor the defendants made an election, and that the plaintiff and Degnan entered into a new course of dealing roughly intending for the defendants to liquidate the unsold antiques. The manner, terms, duration, and commissions concerning the liquidation of the unsold antiques was uncertain and continuously changing. The court therefore found that the plaintiff had failed to prove that the defendants breached the consignment contract and that there was no new enforceable agreement between the parties.

The court found, however, that the plaintiff had proven that the defendants had received at least 141 antiques from her and that Degnan’s explanation as to what he did with those antiques and his documentation of their sale at auction, or otherwise, was not credible. The defendants did not account for those antiques. The court found that the antiques could have fetched conservatively $23,565 at auction. Under the contract, the defendants were entitled to a commission of 25 percent. The court deducted the defendants’ commission from the benefit they received by retaining and selling the antiques without paying the plaintiff her share of the proceeds. After deducting the defendants’ commission, the court found the unjust benefit to the defendants to be $17,673.25.

On appeal here, the defendants claim that there was no legal basis for the court to make a finding that they had been unjustly enriched. The defendants predicate their claim on International Looms, Inc. v. Jono Textile Co., supra, 34 Conn. Supp. 599, arguing that because the plaintiff never asked the defendants to return her unsold antiques, their agreement did not convert from a consignment of goods to a sale of goods. See id., 602. International Looms, Inc., however, is a case sounding in contract, not unjust enrichment, and therefore does not contribute to our analysis. Here, the defendants took possession of more than 200 of the plaintiffs antiques and have not accounted for 141 of them.

The plaintiff bore the burden of proving that the defendants were unjustly enriched. See Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994). The trial court found that the plaintiff was a credible witness and that Degnan was not. Moreover, Degnan admitted that, since December, 2008, the defendants had sold all but two of the plaintiffs antiques, but failed to provide an accounting of those sales and did not pay the plaintiff her share of the proceeds of those sales. Degnan used the proceeds of sales to cover the defendants’ expenses. We therefore conclude that the court’s findings that (1) the defendants were benefited by selling the unaccounted for antiques, (2) they unjustly failed to pay the plaintiff her share of the proceeds, and (3) their failure to pay was detrimental to the plaintiff were not clearly erroneous or contrary to law under International Looms, Inc.

B

The defendants next claim that the court incorrectly calculated the damages due the plaintiff for unjust enrichment. We do not agree.

The amount of damages is a question of fact for the trier of fact. See Bhatia v. Debek, 287 Conn. 397, 419, 948 A.2d 1009 (2008). “[T]he measure of damages in an unjust enrichment case ordinarily is not the loss to the plaintiff but the benefit to the defendant.” Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., supra, 231 Conn. 285. The defendants argue that the value of unjust enrichment is not the value of the antiques to the plaintiff, but the value of the antiques realized at sale.

The plaintiff and Degnan placed into evidence their respective lists of antiques consigned to the defendants for sale. The plaintiff provided a high and low value of the antiques in her list; the court accepted the lower value of the antiques in calculating the value of the antiques. The court did not find the defendants’ lists, documentation of sales, and testimony to be credible. Appellate courts do not make credibility determinations. Giulietti v. Giulietti, 65 Conn. App. 813, 878-79, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001). The court’s damages award was predicated on the evidence the court found credible. The defendants’ claim therefore fails.

n

The defendants claim that the court improperly found that they had violated CUTPA. We disagree.

We first review the law with regard to a finding of liability under CUTPA. CUTPA “is remedial in character . . . and must be liberally construed in favor of those whom the legislature intended to benefit.” (Internal quotation marks omitted.) Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 379, 880 A.2d 138 (2005). “The operative provision of [CUTPA], § 42-110b (a), states merely that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Trade or commerce, in turn, is broadly defined as the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, person or mixed, and any other article, commodity, or thing of value in this state. . . . The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce, and whether a practice is unfair depends upon the finding of a violation of an identifiable public policy. ... A CUTPA claim may be brought in the Superior Court by [a]ny person who suffers an ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b . . . .” (Citations omitted; internal quotation marks omitted.) Id., 380.

“It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]. ... All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” (Footnote omitted; internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 367-68, 736 A.2d 824 (1999).

In this case, the court found that the defendants retained the plaintiffs antiques and that Degnan led her to believe that he was attempting to liquidate them. The defendants, however, never produced an accounting or an explanation as to the disposition of 141 antiques and produced only excuses until the plaintiff commenced this action. Thereafter, the court found that the defendants’ explanations and purported documentary proof of disposition lacked credibility. The court concluded that as of the end of trial, the defendants had failed to account for the plaintiffs property. The court reasoned that although a simple breach of contract or an act of carelessness would not result in CUTPA liability, in this case, the defendants left “a trail of deceit and deception” in addition to mishandling the plaintiffs antiques.

On appeal, the defendants argue that they did not breach the consignment agreement, as they offered the plaintiffs antiques at auction in November, 2008. The court found that the defendants offered the plaintiffs antiques at that time and accounted for the antiques that were then sold. The issue is what the defendants did with the plaintiffs antiques that were not sold at that auction. The defendants have not accounted for them, and although Degnan testified that he sold all but two of the antiques, he never paid the plaintiff her share of the proceeds of sale.

The defendants also argue that because the court found that their inability to account for all of the consigned antiques was due “to poor record keeping and economic distress,” such conduct does not rise to a violation of CUTPA. We agree that mere negligence is not evidence of a CUTPA violation, but in this case, the court explicitly found that the defendants engaged in deceitful and deceptive conduct. “[A] violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy. . . . Furthermore, a party need not prove an intent to deceive to prevail under CUTPA.” (Citations omitted; internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 106, 612 A.2d 1130 (1992).

In crafting their argument on appeal, the defendants have taken the court’s finding out of context and misconstrued it. The issue is not the conduct that led to the defendants’ inability to account for 141 antiques belonging to the plaintiff, but that Degnan’s having deceived the plaintiff as to the antiques in his possession, and his excuses and unfulfilled promises to pay constitute the CUTPA violation. We conclude, on the basis of our review of the record and the court’s memorandum of decision, that the court found that the defendants’ deceitful behavior constituted a violation of CUTPA. The court’s finding was not improper.

Ill

The defendants’ last claim is that the court’s award of attorney’s fees was improper. We do not agree.

The following facts are relevant to the defendants’ claim. The court held a posttrial hearing on June 4, 2012. The court reviewed the plaintiffs evidence as to costs and attorney’s fees as to their nature, extent and reasonableness. The plaintiffs counsel charged $210 per hour, and he expended forty-nine hours on the plaintiffs case. The court found the rate was reasonable, that the forty-nine hours of time expended were necessary and reasonable, and awarded the plaintiff $10,290 in attorney’s fees and $892.94 in costs.

Here, as they did at trial, the defendants object to the amount of attorney’s fees awarded, arguing that the plaintiff was successful in only four of the ten counts alleged in her complaint. The court ruled, however, that it was not necessary to apportion attorney’s fees, as all of the claims alleged by the plaintiff were related to and dependent on the same facts, i.e., the defendants’ conduct in failing to return or to credibly account for most of the plaintiffs antiques consigned to them. We agree with the court.

“[W]e review an award of attorney’s fees under the abuse of discretion standard of review. This standard applies to the amount of fees awarded . . . and also to the trial court’s determination of the factual predicate justifying the award. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Moasser v. Becker, 121 Conn. App. 593, 595, 996 A.2d 1200 (2010).

The defendants’ claim is controlled by this court’s decision in Heller v. D. W. Fish Realty Co., 93 Conn. App. 727, 890 A.2d 113 (2006). In Heller, the plaintiffs purchased a home with the assistance of the defendant real estate agency. Id., 729. The contract of sale contained a water well contingency rider. To resolve the contingency, an agent of the defendant real estate agency undertook to have the well inspected. Id. Following a home inspection, the agent informed the plaintiffs that the well functioned properly. Id. Several weeks after moving into their new home, the plaintiffs encountered a problem with the quality of their well water and discovered dead rodents in their well. Id. The plaintiffs were required to dig a new well. Id. The plaintiffs learned that the inspector hired by the agent was not qualified to inspect the well, which contained holes used by the rodents to enter the well. Id., 730. The plaintiffs commenced an action against the defendant real estate agency and its agent sounding in breach of contract, negligence, and CUTPA violation. Id. The jury found in favor of the plaintiffs on all counts. Id. Although the plaintiffs prevailed, the court declined to award the plaintiffs attorney’s fees because they could not apportion the amount of time counsel spent on the CUTPA claim. Id., 735. The court relied on Jacques All Trades Corp. v. Brown, 57 Conn. App. 189, 752 A.2d 1098 (2000), in reaching its decision. The plaintiffs appealed to this court.

In reversing the judgment denying the attorney’s fees in Heller, this court distinguished cases in which the factual basis of a CUTPA claim is integral to or separate from the facts underlying other causes of action alleged and tried. This court stated that Jacques All Trades Corp. “involved protracted litigation concerning two different contracts. The trial court in that case awarded the named defendant $19,413.50 in attorney’s fees related to her CUTPA counterclaim in regard to one of the contracts. . . . On cross appeal, the named defendant claimed that the court should have awarded her $53,605.50 in attorney’s fees incurred in the defense of the entire litigation. ... In rejecting that claim, we stated that [General Statutes] §42-110g (d) relates solely to claims related to the prosecution of a CUTPA claim and not to all claims. . . . Because the named defendant’s CUTPA counterclaim related only to one of the two contracts involved in the parties’ lengthy litigation, we determined that the court properly awarded her $19,413.50 in attorney’s fees rather than $53,605.50. . . .

“In [Heller], the plaintiffs’ breach of contract and negligence claims were related to their CUTPA claim because they depended on the same facts. As we stated in Jacques All Trades Corp., § 42-110g (d) encompasses claims related to the prosecution of a CUTPA claim . . . not only one claim explicitly labeled as a CUTPA claim. The court therefore should not have ordered the plaintiffs to submit evidence apportioning their attorney’s fees among their claims.” (Citations omitted; internal quotation marks omitted.) Heller v. D. W. Fish Realty Co., supra, 93 Conn. App. 735-36; see also Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 325-33, 63 A.3d 896 (2013) (when certain claims provide for recovery of contractual attorney’s fees but others do not, party nevertheless entitled to full recovery of reasonable attorney’s fees if apportionment impracticable because claims arise from common factual nucleus and are intertwined). We therefore conclude that the court’s award of attorney’s fees in this case was proper because the same facts were relevant to all counts of the plaintiffs complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       The contract provided in part: “#2. Both parties agree that the owner consigns the listed property to [Degnan] for the purpose of being sold at [his] auction.
      “#3. Both parties agree that [Degnan] will offer the goods listed in section 2 of this agreement in his autumn 2008 auction to be held in Norwalk, CT. . . .
      “#6. Both parties agree that [Degnan] will pay all expenses for the promotion and execution of the sale and that no additional charges for services such as moving and or insurance will be charged to or deducted from proceeds due owners.”

       The contract provided in part: “#4. Both parties agree that [Degnan] will deduct commissions of 25 [percent] of the sales price of merchandise sold, for a hammer price of [$5000] or less, 15 [percent] of the hammer price of merchandise sold for [$5000 to $10,000], 10 [percent] of all merchandise sold for a hammer price of over [$10,000] as compensation for his services.”

       The plaintiff placed copies of a series of e-mail communications between her and Degnan into evidence. The evidence reveals the following:
      September 17, 2009: The plaintiff: “Hi Tom—just wondering f you were able to lay your hands on that Eldridge chart—and if you have a rundown for me of other items that you sold over the summer[?] Happy to hear from you when you have a chance! Thanks, DBN”
      Degnan: “Hi Daphne, No I havn’t located the chart. Our auction is on Oct 18, Hope to sell the rest of your things then and will have everything ready for you within a week of that sale, about a dozen items left including the secratexy and share etching, hope you are well, thanks, Tom”
      The plaintiff: “Okay, thanks for the info. Will you be sending the mid-September check you mentioned earlier in the summer?”
      Degnan: “Daphne, No won’t be sending check till October still have to do accounting for things sold over last several months and need to get all that together, i am short handed again and am under the gun to get this next sale without help, sorry for any inconvenience but promise to have everything ready for 10/25. Thanks, Tom”
      October 27, 2009: The plaintiff: “Hi Tom—hoping you have an update for me—I’m eager to tie up all loose ends here. Many thanks—DBN”
      Degnan: “Hi Daphne, We have some items that are not sold, We will have a check and an accounting to date in about a week. Thanks, Tom”
      November 11, 2009: The plaintiff: “Hi Tom. Awaiting the check and accounting. . . . Thanks! DNB”

       The plaintiffs complaint alleged ten counts, five similar counts against each of the defendants. The plaintiff alleged breach of contract, unjust enrichment, conversion, negligent infliction of emotional distress, and violation of CUTPA. The court found in favor of the defendants on the breach of contract, conversion, and negligent infliction of emotional distress counts. In this appeal, we are concerned only with the court’s judgment in favor of the plaintiff on the unjust enrichment and CUTPA counts.

       Paragraph 6 of the contract stated: “Both parties agree that [Degnan] will pay all expenses for the promotion and execution of the sale and that no additional charges for services such as moving and or insurance will be charged to or deducted from proceeds due [the plaintiff].”

       At trial Degnan testified as follows on cross-examination by the plaintiffs counsel:
      “Q. Did you ever send [the plaintiff] an account of the remaining person property?
      “A. No.
      “Q. Had she requested an accounting?
      “A. She had. . . .
      “Q. And during that time which you sold [the plaintiffs] property, but you didn’t pay [her], is that correct?
      “A. Correct.”

       In their brief, regarding their CUTPA claim, the defendants acknowledge that the court found that their exhibits lacked credibility.

       The court did not award the plaintiff damages because it had awarded her damages pursuant to her unjust enrichment claim.

       The language on which the defendants rely was used by the court to explain why it did not award the plaintiff punitive damages. “In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights. . . . [AJwarding punitive damages . . . under CUTPA is discretionary . . . .” (Internal quotation marks omitted.) Thorsen v. Durkin Development, LLC, 129 Conn. App. 68, 76-77, 20 A.3d 707 (2011). The court stated in its memorandum of decision, “Pursuant to the applicable legal tests, the court declines to issue [punitive damages] in this case. The court attributes the defendants’ conduct to poor record keeping and economic distress. Also, the damages and attorney’s fees and costs being awarded will sufficiently remedy the wrong committed and compensates the plaintiff for her costs of litigation in this case.”
      We see no inherent inconsistency between the court’s concluding that the defendants “left a trail of deceit and deception” for CUTPA purposes, and the court’s conclusion, for purposes of evaluating an award of punitive damages, that the defendants’ inability to account for all of the consigned antiques was due to “poor record keeping and economic distress.”

       The court reviewed the plaintiffs motion for attorney’s fees, counsel’s affidavit and itemized billing records.


author: PER CURIAM.

text:
    ERNEST KALB ET AL. v. AVENTIS CROPSCIENCE, USA, INC., ET AL.
    (AC 34384)
    Lavine, Alvord and Pellegrino, Js.
    Argued March 11
    —officially released August 6, 2013

      Ryan A. O’Neill, with whom, on the brief, was Mark Sherman, for the appellants (substitute plaintiff et al.).

      Corey M. Dennis, for the appellee (defendant Eckel Industries, Inc.).

      Jonathan F. Tabasky, for the appellee (defendant Georgia-Pacific, LLC).

      Charles K. Mone, for the appellee (defendant Warren Pumps, LLC).

      David Makarewicz, for the appellee (defendant IMO Industries, Inc.).

      John H. Van Lenten, for the appellee (defendant CBS Corporation).

      James A. Hall, for the appellee (defendant Bayer Cropscience, Inc., et al.).
   Opinion

PER CURIAM.

This appeal presents an unfortunate example of a lack of diligence in prosecuting a claim. The plaintiff, Marianna Kalb, appeals individually and as administratrix of the estate of her deceased husband, Ernest Kalb (decedent). The trial court dismissed the action for lack of subject matter jurisdiction because the fiduciary of the decedent’s estate had not been substituted as a party plaintiff. On appeal, the plaintiff claims that the trial court abused its discretion in denying her motion to open the judgment of dismissal because good cause existed to grant the motion. We affirm the judgment of the trial court.

In 2004, the decedent commenced this action against the defendants, claiming injury and damages caused by exposure to asbestos, and the plaintiff alleged loss of consortium. In 2007, the court dismissed the action for lack of diligence pursuant to Practice Book § 14-3 but vacated that dismissal a month later.

The decedent passed away in April, 2008. The plaintiff took no action for three and one-half years afterward. On July 15, 2011, the court informed the plaintiff that she could not represent the estate of her husband, encouraged her to retain counsel, and explained that because her claim was derivative, her action would be dismissed if the decedent’s action was dismissed. See Cavallaro v. Hospital of Saint Raphael, 92 Conn. App. 59, 62 n.5, 882 A.2d 1254, cert. denied, 276 Conn. 926, 888 A.2d 93 (2005). On August 15, 2011, the court sua sponte raised the issue of subject matter jurisdiction; see Greco v. Commissioner of Motor Vehicles, 61 Conn. App. 137, 143, 762 A.2d 926 (2000) (trial court may raise issue of subject matter jurisdiction sua sponte); noting that it lacked jurisdiction because there was no one legally entitled to prosecute the underlying cause of action. See Negro v. Metas, 110 Conn. App. 485, 498, 955 A.2d 599 (after death of claimant, court is powerless to proceed with cause of action without appearance of executor or administrator), cert. denied, 289 Conn. 949, 960 A.2d 1037 (2008). Again, the court informed the plaintiff that she could not represent the decedent’s estate, that her claim was derivative of the decedent’s claim and that if that action were dismissed, then her action also would be dismissed. The court gave the plaintiff an opportunity to be heard and until August 19, 2011, to brief the issue, which she failed to do. On August 22, 2011, the court sua sponte dismissed the action.

On September 1, 2011, the plaintiff, now represented by counsel, filed a motion to open the judgment of dismissal as well as a motion to substitute party plaintiff. The court denied the motion to open, finding that there was no good or compelling reason to grant the motion and that the plaintiffs lack of diligence prejudiced the defendants. The plaintiff filed a motion to reargue and reconsider, which the court, having allowed reargument, denied in February, 2012. This appeal followed.

“A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. . . . [0]ur review is limited to whether the trial court correctly applied the law and reasonably could have concluded as it did.” (Citation omitted; internal quotation marks omitted.) Negro v. Metas, supra, 110 Conn. App. 495-96.

Although the general policy of Connecticut courts is to construe the rules of practice liberally in favor of self-represented parties, that policy is severely curtailed where it interferes with the rights of other parties. Rosato v. Rosato, 53 Conn. App. 387, 390, 731 A.2d 323 (1999).

In the present case, the court stated two grounds for its dismissal of the action. First, the court concluded that the plaintiffs lack of diligence prejudiced the defendants. We cannot conclude that the trial court abused its discretion given that there were three and one-half years during which the plaintiff took no action on the case; that the plaintiff took no action on the case until after the action was dismissed; that the case was seven and one-half years old at the time the plaintiff filed the motion to open; and that defendants’ out of state counsel had to make multiple in-court appearances on behalf of the defendants. See Jeudy v. Jeudy, 106 Conn. App. 372, 378, 942 A.2d 476 (2008) (no abuse of discretion in denying motion to open where record supported findings of delay and prejudice).

Second, the court concluded that the plaintiff had presented no good and compelling reason to justify opening this judgment. See Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 94-96, 952 A.2d 1 (2008) (denial of motion to open not abuse of discretion without showing of good and compelling reason). We do not agree with the plaintiffs contention that this finding was improper. The plaintiffs reliance on Negro v. Metas, supra, 110 Conn. App. 485, is misplaced because that case is factually distinguishable. In Negro, the court did not find that a lack of diligence prejudiced the defendants. Id., 601-502. Furthermore, the plaintiffs arguments pursuant to General Statutes § 52-599 are similarly unpersuasive. Assuming without deciding that § 52-599 allowed the plaintiff as a matter of right after the case was dismissed to substitute herself as party plaintiff in her capacity as administratrix of the estate of the decedent, that has no bearing on the denial of the motion to open the judgment of dismissal, which was based on the prejudice the defendants suffered due to the plaintiffs lack of diligence. Finally, the plaintiff cites no authority to support her peculiar argument that the defendants suffered no prejudice because they could have filed the motion to substitute party instead of the plaintiff. We are unaware of any case in which a defendant has proceeded in such a curious way. We conclude that the trial court did not abuse its discretion. It correctly applied the law and reasonably could have concluded as it did. See Negro v. Metas, supra, 495-96. There was no abuse of the court’s discretion.

The judgment is affirmed.

       Ernest Kalb was also a plaintiff in this action until he died. In this opinion, all references to the plaintiff are to Marianna Kalb unless otherwise specified.
      We note that this court does not have subject matter jurisdiction to review the merits of an appeal without a person legally authorized to prosecute the appeal. See Negro v. Metas, 110 Conn. App. 485, 493-95, 955 A.2d 599, cert. denied, 289 Conn. 949, 960 A.2d 1037 (2008). On November 14, 2012, this court granted the plaintiffs motion to substitute party, permitting Mari-anna Kalb to appear as executrix of the estate of Ernest Kalb in this appeal.

       The defendants in this appeal are Bayer Cropscience, Inc., which is the successor entity to the named defendant Aventis Cropscience, U.S.A., Inc.; Cleaver-Brooks, A Division of Aqua-Chem, Inc.; Dow Chemical Company; Durabla Manufacturing Company; Eckel Industries; Flintkote Company; Foster Wheeler, LLC; Gardner Denver, Inc.; General Electric Company; CBS Corporation; IMO Industries, Inc.; New England Insulation Company; Rapid American Corporation; Union Carbide Corporation; Warren Pumps, LLC; and Georgia-Pacific, LLC, who have filed a joint brief on appeal.
      The defendants formerly included A.W. Chesterton Company; Buffalo Pumps, Inc; Certainteed Corporation; D.B. Riley, Inc., fik/a Riley Stoker Corporation; Eastern Refractories Company, Inc.; Elliot Turbomachinery Company, Inc.; Fairbanks Morse Engine; Garlock Sealing Technologies, LLC; Hopeman Bros.; Ingersoll-Rand Company; Nitram Energy, Inc., successor to Aleo Products, Inc.; Quigley Company, Inc.; Metropolitan Life Insurance Company; and Goodyear Tire and Rubber Company, who are not parties to the present appeal.

       General Statutes § 52-699 states in relevant part: “(a) A cause or right of action shall not be lost or destroyed by the death of any person, but shall survive in favor of or against the executor or administrator of the deceased person.
      “(b) A civil action or proceeding shall not abate by reason of the death of any party thereto, but may be continued by or against the executor or administrator of the decedent. If a party plaintiff dies, his executor or administrator may enter within six months of the plaintiffs death or at any time prior to the action commencing trial and prosecute the action in the same manner as his testator or intestate might have done if he had lived. If a party defendant dies, the plaintiff, within one year after receiving written notification of the defendant’s death, may apply to the court in which the action is pending for an order to substitute the decedent’s executor or administrator in the place of the decedent, and, upon due service and return of the order, the action may proceed. . . .”


text:
    LOCAL 818, COUNCIL 4, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES v. NEW BRITAIN BOARD OF EDUCATION ET AL.
    (AC 34233)
    Gruendel, Lavine and Alvord, Js.

      Argued March 19
    —officially released August 6, 2013

      J. William Gagne, Jr., with whom, on the brief, was Kimberly A. Cuneo, for the appellant (plaintiff).

      William R. Connon, with whom was Zachary D. Schurin, for the appellee (named defendant).
   Opinion

LAVINE, J.

The plaintiff, Local 818, Council 4, American Federation of State, County and Municipal Employees (union), appeals from the judgment of the trial court denying its application to vacate the arbitration award in favor of the defendant New Britain Board of Education (board). On appeal, the plaintiff claims that (1) the arbitration panel (panel) exceeded its authority, (2) the court erred in its review of the application to vacate by simply comparing the award to the submission, and (3) the panel showed a manifest disregard for the law. We affirm the judgment of the trial court.

The following facts as found by the trial court axe germane to this appeal. In the summer of 2010, the board initiated a series of layoffs due to budgetary constraints. One of the positions eliminated was held by Plummer Carroll. Carroll was a security/custodial supervisor hired on November 29, 2004. In response to the layoffs, Carroll attempted to “bump” into the position of attendance supervisor—a position not subject to the layoffs. The position Carroll sought was held by Joseph Vaver-chak, also a member of the union. Vaverchak was hired by the board on January 29, 1996 as an attendance officer. During his time as an attendance officer he was affiliated with Local 1186. Subsequently, Vaverchak was elevated to attendance supervisor and thereafter transitioned from Local 1186 to the union on November 20, 2007. At the time Carroll attempted to bump, Carroll had been affiliated with the union longer than Vaver-chak, but Vaverchak had more years of service with the board. Carroll’s ability to bump, therefore, depended on whether seniority was measured by time spent in the union, or time spent employed by the board.

Carroll contended that because he had been a member of the union longer than Vaverchak, he was entitled to bump Vaverchak, and assume the job of attendance supervisor. The board took an opposing position, basing its calculation of seniority on time employed by the board, and not union affiliation. In the board’s view, Carroll was junior to Vaverchak and would therefore not be allowed to bump into Vaverchak’s position. Pursuant to the collective bargaining agreement (agreement), Carroll filed a grievance and the dispute was submitted to the panel. The issue was submitted as follows: “1. Did the employer violate Section[s] 16.5, 15.12, and/or 15.13 of the 2008-2012 Collective Bargaining Agreement when the Superintendent of Schools determined that Carroll did not have the requisite qualifications and demonstrated ability for the position of Attendance Supervisor. 2. If so, what shall the remedy be.”

The following language from the agreement is relevant to this appeal. Section 15.12 of the agreement delineates the right to bump a junior employee and provides, in relevant part, that “an employee who is scheduled to be laid off, may bump another employee within the same or lower classification who has less seniority than the employee being laid off, provided the employee is qualified to perform the work.” Section 4.0 of the agreement defines “seniority” as “the length of service of the employee from the last date of employment by the Board.” Section 15.5 provides: “Regardless of the source of funding, in the event of a layoff the order of layoff shall be as follows: a) Substitute employees; b) Temporary employees; c) Part time employees; d) Full-time employees with the least seniority with Local 818.” (Emphasis added.) Finally, Section 15.13 establishes the right to pursue a grievance in the event a request to bump is denied.

The panel found that the plain language of the agreement supported the board’s position that seniority was to be measured by service to the board and not membership in the union. In doing so, the panel rejected the union’s argument that the reference to “seniority within Local 818” in Section 15.5 displaced the plain language of Section 4.0. Instead, the panel agreed with the board that seniority was to be defined solely by Section 4.0, which defined seniority as “the length of service of the employee from the last date of employment by the Board.” As support for the award, the panel also found that the agreement had been amended when the prospect of layoffs loomed and weighed the fact that the membership of the union consists of supervisors, most of whom transition from Local 1186. Because the panel found that Carroll did not have the requisite seniority to bump Vaverchak, it did not proceed to the question of his qualifications for the attendance supervisor position.

The union sought to vacate the award. The union’s application was based on claims that (1) the panel exceeded its power, (2) the panel engaged in misconduct and prejudiced the rights of the union, and (3) the award is against public policy. The court found that the arbitration submission was unrestricted and rejected the claim that the award was in excess of the panel’s authority. With respect to the union’s claims of misconduct and violations of public policy, the court found that there was not “a shred of evidence” that could support such theories. The application to vacate was denied on January 9, 2012. This appeal followed.

We begin by setting forth the standard of review and the legal principles pertinent to this appeal. The standard governing the review of arbitration awards is narrow and well established. Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 273 Conn. 86, 92, 868 A.2d 47 (2005). As the authority of the arbitrator flows from the parties’ mutual agreement, “the extent of our judicial review of the award is delineated by the scope of the parties’ agreement. . . . When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. . . . Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution.” (Internal quotation marks omitted.) Id., 92-93.

In short, “[o]ur review is limited to a comparison of the award to the submission. Our inquiry generally is limited to a determination as to whether the parties have vested the arbitrators with the authority to decide the issue presented or to award the relief conferred. With respect to the latter, we have explained that as long as the arbitrator’s remedies were consistent with the agreement they were within the scope of the submission. . . . The party challenging the award . . . bears the burden of producing evidence sufficient to demonstrate that the award does not conform to the submission.” (Citation omitted; internal quotation omitted.). Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, 288 Conn. 223, 230, 951 A.2d 1249 (2008).

The union first claims that the panel exceeded its authority in rendering an award in favor the board. It argues that, pursuant to General Statutes § 52-418 (a) (4), the panel improperly disregarded the agreement by not using Section 15.5 as the basis for defining seniority. Specifically, the union quarrels with the panel’s decision to look solely to Section 4.0 of the agreement for the definition of seniority. The union also argues that because the submission specifically referenced Sections 15.5, 15.12 and 15.3, the panel did not have the authority to look to Section 4.0 in its effort to determine how seniority should be calculated.

The union’s argument is not persuasive insofar as it confuses an arbitrator’s authority to make a decision with the merits of a decision itself. This distinction is of great importance because judicial review of an arbitration award is limited to whether the award conforms to the submission. See Burr Road Operating Co. II, LLC v. New England Health Care Employees Union, District 1199, 142 Conn. App. 213, 223, 70 A.3d 42 (when submission is unrestricted “the only question is whether the award conforms to the submission”), cert, granted, 309 Conn. 909, 68 A.3d 662 (2013). There can be no doubt that the panel had the authority to interpret “seniority” according to the agreement. In fact, this was the panel’s principal task. To say that the panel was unable to look at the entire agreement in the interpretation of a specific provision raises a question of construction that is beyond our narrow review. Our review is limited and does not include revisiting pure matters of contract interpretation; this court may not substitute its own judgment for that of an arbitrator when a panel does not exceed its authority. See, e.g., Masters v. Masters, 201 Conn. 50, 72-73, 513 A.2d 104 (1986) (“[t]o the extent that the defendant claims that the arbitrator misapplied or overlooked part of the agreement, then, appellate review is foreclosed”).

We do not inquire into whether the panel’s interpretation of “seniority” was correct. The question posed by the submission was whether the board violated certain provisions of the collective bargaining agreement when it determined that Carroll was not entitled to bump. The panel’s award fully comported with the submission: “The [board] did not violate Sections 15.5, 15.12 and/ or 15.13 [of the agreement] . . . .” We agree with the court that the panel in no way exceeded its authority.

The union also attacks the manner in which the trial court reviewed the application to vacate, arguing that simply comparing the award to the submission is insufficient. The union argues that the court should have engaged in a more thorough comparison, namely, comparing the agreement to the award. This argument confuses the scope of judicial review. “In our construction of § 52-418 (a) (4), we have, as a general matter, looked to a comparison of the award with the submission to determine whether the arbitrators have exceeded their powers.” (Internal quotation marks omitted.) Industrial Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., supra, 273 Conn. 94; see also Board of Education v. Local 818, Council 4, AFSCME, AFL-CIO, 5 Conn. App. 636, 640, 502 A.2d 426 (1985) (“merely claiming inconsistency between the agreement and the award will not trigger judicial examination of the merits of the arbitration award”).

Here, the court considered the application appropriately and found: “The submission to the arbitrators was unrestricted. They were asked to hear the evidence and determine whether the relevant provisions of the [agreement] were violated when the [board] refused to permit Carroll to bump into the Attendance Supervisor position. They determined that there was no violation; indeed, from the language of the arbitration award it is clear that they determined that is was not even a close call, a decision that appears manifestly correct.”

Finally, the union claims that the panel acted in manifest disregard of the law. To the extent that this claim was not alleged in the application to vacate and is now being raised for the first time on appeal, the claim is not properly before us. See Ritcher v. Childers, 2 Conn. App. 315, 318, 478 A.2d 613 (1984) (“[t]he theory upon which a case is tried in the trial court cannot be changed on review, and an issue not presented to or considered by the trial court cannot be raised for the first time on review”).

The judgment is affirmed.

In this opinion the other judges concurred.

       The Connecticut State Board of Mediation and Arbitration was a defendant at trial, but is not a party to this appeal.

       On January 9, 2012, the court also granted the board’s cross application to confirm the arbitration award.