author: McLACHLAN, J.

text:
    DIANE B. GARRIGUS ET AL. v. GENEVIEVE VIARENGO
    (AC 28396)
    McLachlan, Lavine and Foti, Js.

      Argued October 17, 2008
    officially released February 17, 2009

      Angelo Paul Sevarino, for the appellant (defendant).

      Norman J. Voog, with whom, on the brief, was Christopher J. Molyneaux, for the appellee (plaintiff Matthew Vaccarelli).
   Opinion

McLACHLAN, J.

The defendant, Genevieve Viarengo, appeals from the judgment of the trial court, rendered after a trial to the court, awarding the plaintiff Matthew Vaccarelli, administrator c.t.a. of the estate of Stella Jankowski, damages in the amount of $496,070, and imposing a constructive trust for the benefit of the plaintiff on the certificates of deposit, bank accounts and savings bonds that the defendant had held jointly with Stella Jankowski. The defendant claims that the court improperly found that the plaintiff satisfied the heightened burden of proof with respect to his claim of fraud and the elements necessary for the imposition of a constructive trust. We affirm the judgment of the trial court.

From the evidence presented at trial, the court found the following facts. Walter Jankowski and Stella Jan-kowski were husband and wife. No children were bom to the marriage. In September, 1991, they executed reciprocal wills at the office of attorney John Wabiszc-zewicz. Each will provided that if the testator’s spouse predeceased him or her, the entire estate would be divided among ten nieces, nephews and cousins in varying percentages. The defendant is one of the nieces named in the wills. The Jankowskis appointed each other as fiduciaries.

Walter died on March 27, 1997. The defendant was one of the first relatives to visit Stella after his death. Within days of the death, the defendant accompanied Stella to her bank, at which time Stella added the defendant as a joint owner on savings bonds worth approximately $80,000. Within six months of Walter’s death, Stella added the defendant as a joint owner on several savings and checking accounts, certificates of deposit and additional savings bonds. During that period of time, Stella and the defendant met with Wabiszczewicz to discuss the probating of Walter’s will and the drafting of a new will for Stella. When Wabiszczewicz inquired as to Walter’s assets, Stella did not disclose most of the bank accounts or any of the savings bond holdings that she had held jointly with Walter, nor did she mention that she had added the defendant as a joint owner of most of those assets.

In discussing the provisions of her new will, Stella told Wabiszczewicz that she wanted each of her ten nieces, nephews and cousins to receive 10 percent of her estate. She directed Wabiszczewicz to name the defendant and Richard Golebiewski as the executors. She also indicated that she wanted to give the defendant a durable power of attorney and that she wanted the defendant to be the person entrusted with her health care decisions. The defendant was present during all of those discussions and also was present when Stella executed a new will and other documents on July 11, 1997. The defendant was aware of the extent of Stella’s holdings but had remained silent when the subject of Stella’s assets was raised by Wabiszczewicz.

After she executed her will, Stella told the defendant and Golebiewski that her valuables were kept in a safe in the attic of her home. She gave both of her executors the combination to the safe and had each of them practice opening it at various times. Stella died on October 10, 2001. Within days of her death, Golebiewski went to Stella’s home and discovered that the contents of the safe and the financial records in the basement were missing. He telephoned the defendant, who informed him that she had taken everything and that she would review them. Within two weeks after Stella’s death, the defendant began sending jointly held certificates of deposit and savings bonds in varying amounts to Stella’s heirs with little explanation. When those heirs questioned the defendant as to the amounts received, she gave vague responses concerning their share in the estate and did not disclose her jointly owned accounts and bonds.

In January, 2002, the defendant and Golebiewski submitted an application to open Stella’s estate with the Probate Court. The application, signed under oath, stated that Stella’s gross taxable estate was $70,000. At that point in time, Golebiewski still had no knowledge of the extent of Stella’s assets because the defendant failed to provide him with the information that he had requested. The defendant’s lack of cooperation prompted Golebiewski to contact the United States Department of the Treasury in February, 2002, to receive an accounting of the savings bonds that had been disbursed by the defendant. In March, 2002, Wabis-zczewicz instructed the defendant to account fully for the joint holdings in her possession. She did not cooperate, and Wabiszczewicz suggested that she seek legal advice 1'rom another attorney regarding his direction to disclose all of the accounts.

Eventually, it was discovered that Stella’s estate, which was comprised of some jewelry, her home in Waterbury and jointly held bank accounts, certificates of deposit and savings bonds, totaled $803,859. The jointly owned assets formed the bulk of the estate, with a value in excess of $706,000. At the time of Stella’s death, the accounts and bonds she held jointly with the defendant totaled $496,070, and the defendant claimed that those accounts were hers and not part of the estate property. The remainder of the jointly held bank accounts, certificates of deposit and savings bonds were jointly held by Stella and twelve other individuals. The disagreement as to the ownership of the jointly held assets resulted in several unproductive probate hearings, leading to the resignations of the defendant and Golebiewski as the executors of Stella’s estate. On January 21,2004, the plaintiff was appointed administrator c.t.a. of her estate by the Probate Court.

On October 19, 2004, the plaintiff filed the present action against the defendant. The operative complaint alleged undue influence, fraud, statutory theft and unjust enrichment and sought to have a constructive trust and a resulting trust imposed for the benefit of the estate on the bank accounts, certificates of deposit and savings bonds that had been held jointly by Stella Jankowski and the defendant. During an eight day trial in July, 2006, the court heard testimony from several witnesses and admitted dozens of exhibits.

On December 8, 2006, the court issued its memorandum of decision. After setting forth its findings of fact and its determinations with respect to the credibility of the witnesses, the court concluded: (1) there was no evidence that the defendant exerted any pressure or otherwise forced Stella to create joint accounts with the defendant or others, and, therefore, the plaintiff could not prevail on the claim of undue influence; (2) the plaintiff proved his claim of fraud by clear and convincing evidence, thereby rebutting the presumption that the joint bank accounts and savings bonds held by Stella and the defendant were the property of the defendant; (3) the plaintiff, with respect to his statutory theft claim, failed to prove by clear and convincing evidence that the defendant possessed the specific intent to permanently deprive Stella of her assets; (4) the plaintiff could not recover under his claim for unjust enrichment because he failed to prove the existence of a contract between the defendant and the plaintiff or the defendant and Stella; (5) with respect to the bank accounts and savings bonds held jointly by Stella and the defendant, the imposition of a constructive trust was warranted because there was ample evidence that those assets had been held jointly as a convenience for Stella and to facilitate the distribution of her estate to her nieces, nephews and cousins; and (6) the imposition of a resulting trust was not warranted because the court had already determined that the defendant committed fraud and had implemented a constructive trust for the benefit of the estate.

On the basis of those findings and conclusions, the court awarded the plaintiff damages in the amount of $496,070, and imposed a constructive trust for the benefit of the estate on the bank accounts, certificates of deposit and savings bonds that the defendant had held jointly with Stella. This appeal followed.

I

The defendant’s first claim is that the court improperly found that the plaintiff satisfied the heightened burden of proof with respect to his claim of fraud. Specifically, the defendant argues that the plaintiff failed to establish by clear and convincing evidence that the defendant made a false representation of a material fact to Stella, that any promises she may have made were made with the intention of not keeping them or that any representations made were made with the intent of inducing Stella to create jointly held assets. Additionally, the defendant claims that the court improperly concluded that any silence on the part of the defendant, in the absence of an actual misrepresentation, could be the basis for a finding of fraud. We disagree.

Joint survivorship bank accounts are governed by General Statutes § 36a-290. That statutory provision creates a presumption, rebuttable only by clear and convincing evidence, that the establishment of a joint account is evidence of the intent of the named owners to have the proceeds, on the death of one of them, go to the other joint account holder. See Durso v. Ves-sichio, 79 Conn. App. 112, 122, 828 A.2d 1280 (2003). In the absence of fraud, undue influence or other clear and convincing evidence to the contrary, the creation of such an account is prima facie evidence of the intent of the named owners to vest title to the account, including all subsequent deposits made to it, in the survivor. General Statutes § 36a-290 (b). The controlling federal regulation for joint United States savings bonds is 31 C.F.R. § 353.70 (b).

In the present case, the court found that the plaintiff, by clear and convincing evidence, rebutted that presumption by establishing that the defendant committed a fraud on the estate of Stella Jankowski. “[C]lear and convincing proof . . . denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) Boccanfuso v. Green, 91 Conn. App. 296, 305-306, 880 A.2d 889 (2005).

“Fraud and misrepresentation cannot be easily defined because they can be accomplished in so many different ways. They present, however, issues of fact. . . . The trier of facts is the judge of the credibility of the testimony and of the weight to be accorded it. . . . When the trial court finds that a plaintiff has proven all of the essential elements of fraud, its decision will not be reversed or modified unless it is clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . .

“Under the common law ... it is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury. ... All of these ingredients must be found to exist . . . .” (Citations omitted; internal quotation marks omitted.) Ferris v. Faford, 93 Conn. App. 679, 691-92, 890 A.2d 602 (2006).

The defendant argues that the plaintiff failed to prove any of the elements of fraud by clear and convincing evidence. With respect to the first element, making a false representation as a statement of fact, the defendant claims that no evidence was submitted to show that she had made any representation to Stella with respect to the creation of joint accounts or the manner in which the defendant intended to distribute Stella’s assets after her death. Because there was no proof that any representations had been made, the defendant argues, the plaintiff failed to prove the remaining elements of fraud, i.e., that she had made representations to Stella that she had known to be untrue and that she had made representations for the purpose of inducing Stella to establish joint assets.

In essence, the defendant is arguing that there is no direct evidence that any such representations were made. There was no testimony that anyone heard the defendant tell Stella that she should add her name as a joint owner to Stella’s bank accounts, certificates of deposit or savings bonds. No one heard a discussion between the defendant and Stella in which the defendant indicated that she would divide the joint assets among the ten beneficiaries named in the will, including the joint assets held by the defendant and Stella. No one overheard a conversation in which the defendant assured Stella that she would not keep the proceeds from the survivorship accounts for herself.

Direct evidence of false statements is not necessary, or even expected, under such circumstances. If, indeed, as the court found, the defendant wanted Stella to believe that she would divide all of Stella’s assets equally among the ten nieces, nephews and cousins, while planning instead to keep all of the proceeds in the joint accounts bearing her name, she certainly would not have announced her intentions to Stella or any of the beneficiaries. Proof of fraud likely would be circumstantial rather than direct.

Although “[t]he party alleging fraud bears the burden of proving it with clear, precise, and unequivocal evidence. . . . The evidence can be direct or circumstantial. . . . Proof by circumstantial evidence is sufficient where rational minds could reasonably and logically draw the necessary inferences. . . . Each inferential fact need not be proven by the quantum of proof required to find the ultimate fact.” (Citations omitted; internal quotation marks omitted.) Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 110, 912 A.2d 1019 (2007). “The law does not distinguish between direct and circumstantial evidence as far as probative force is concerned. . . . Insofar as circumstantial evidence can be and is routinely used to meet the higher standard of proof in a criminal prosecution, so can it be used in a case . . . where the applicable standard is that of clear and convincing proof.” (Citations omitted; internal quotation marks omitted.) In re Cheyenne A., 59 Conn. App. 151, 158-59, 756 A.2d 303, cert. denied, 254 Conn. 940, 761 A.2d 759 (2000).

In the present case, in reaching its conclusion that the defendant perpetrated a fraud on Stella’s estate, the court found the following facts. Stella was very close to all of her ten nieces, nephews and cousins and referred to them as her children. On the day of Walter’s death, the defendant came to visit Stella at her home in Waterbury; prior to Walter’s death, the defendant’s visits were infrequent. Within days of his death, the defendant transported Stella to the bank, and the defendant’s name was added as a joint owner on savings bonds worth approximately $80,000. The defendant claimed that Stella did not tell her why she had transferred the assets into ajoint account and that she did not ask her the reason for the transfer. Within six months of Walter’s death, the defendant was added as a joint owner on several of Stella’s savings and checking accounts, certificates of deposit and savings bonds.

Stella told several people, including Wabiszczewicz, the attorney who drafted her will, that she wanted to divide her estate equally among her “children.” Although the defendant was with Stella when she met with Wabiszczewicz and discussed her intentions, neither Stella nor the defendant disclosed the fact that joint accounts had already been established and that the defendant was the joint owner on the bulk of those assets. Both Stella and the defendant were under the impression that joint assets did not have to be disclosed to the Probate Court in the inventory of the estate or for purposes of succession taxes.

When a few relatives became aware that the defendant was a joint owner on some of Stella’s bank accounts, they expressed their concern to Stella that those accounts would belong to the defendant when Stella died. Stella was adamant that the defendant’s name had been added for convenience only because the defendant helped Stella with her financial affairs and was the coexecutor of her will. Stella indicated that she had told the defendant that her estate was to be divided equally among the ten beneficiaries.

Sometime during Stella’s final hospitalization, the defendant removed all of the joint assets from Stella’s safe without informing Golebiewski, the coexecutor of Stella’s will. After Stella’s death, when Golebiewski opened the safe, he discovered that most of the contents had been removed, and he contacted the defendant. The defendant admitted that she had taken the safe’s contents and the financial records from the basement because she “needed to go through things” and told him that “there was nothing for him to see.” Within two weeks of Stella’s death, the defendant sent certificates of deposits and savings bonds that were jointly held by Stella and others to the named joint owners. The defendant claimed that she did so at the direction of Wabiszczewicz, who denied telling her to distribute any of the joint assets. There were twelve other individuals named on joint assets, but the amounts were significantly less than the joint assets held by Stella and the defendant. The court noted that there was little credible evidence of Stella’s intentions in creating the other joint accounts but inferred that she did so under her mistaken belief that she could avoid probate scrutiny and tax consequences.

When the various heirs contacted the defendant to inquire about the amount of the joint assets distributed, she gave vague responses and never informed them as to her claimed share of the joint assets. Throughout the six month period following Stella’s death, the defendant did not cooperate with Golebiewski in providing him with the information necessary to file the estate tax returns. Golebiewski, as the coexecutor, was forced to contact the Department of the Treasury for an accounting of the savings bonds that had been held by Stella. The defendant also refused to cooperate with Wabiszc-zewicz when he instructed her to disclose all of the joint holdings and, thereafter, advised her to seek other legal advice regarding his direction to disclose those assets.

Months after Stella’s death, Golebiewski and the other beneficiaries became aware of the fact that the defendant claimed joint assets worth approximately $496,070 at the time of Stella’s death. Because Stella had created joint holdings with virtually all of her bank accounts, certificates of deposit and savings bonds, the remainder of her estate to be divided among the ten nieces, nephews and cousins consisted of the net proceeds from the sale of the Waterbury residence, which was approximately $76,500. As previously stated, Wabi-szczewicz was not aware of the joint accounts and drafted Stella’s will with the provision that all succession and estate taxes would be paid from the residual estate and not prorated among the various recipients of property that passed outside of the estate. As a consequence, the defendant became the recipient of the vast majority of Stella’s estate with no tax liability under the will. The remainder of the estate, however, had significant tax liability. There was very little left to be distributed among the remaining beneficiaries.

In its lengthy memorandum of decision, the court often commented that it found the defendant’s testimony “not worthy of belief’ or her claims “not to be credible.” On the basis of its findings of fact and credibility determinations, the court concluded: “It is clear to the court that Stella made arrangements to have the defendant’s name on her accounts out of convenience and not as an intention to make a gift to her. It is also clear to this court, based on the credible testimony, that Stella informed the defendant that the moneys and bonds that they held jointly were to be divided evenly between the ten ‘children.’ ” Accordingly, the court found in favor of the plaintiff on his claim of fraud.

The defendant argues that the court’s conclusion is clearly erroneous because there is no evidence that the defendant made any actual misrepresentation to Stella about her plans for the future distribution of Stella’s assets and that the court improperly found that any silence on the defendant’s part when Stella discussed the division of her assets among her “children” satisfied the element of fraud requiring a false representation. We conclude that under the circumstances of this case, the court’s conclusion that the defendant’s silence constituted fraudulent behavior was not clearly erroneous.

In its decision, the court reasoned as follows: “It is also clear to this court that the defendant undoubtedly assented to follow Stella’s intentions. While the defendant asserts in her brief that ‘no witness can offer any proof that [the defendant] made any definite or certain unequivocal misrepresentation to Stella,’ there certainly are strong inferences that she did so. The credible testimony was that Stella told the defendant that she was to divide the assets among the ten ‘children.’ When faced with Stella’s direction, the court can only imagine that the defendant had three options: agree or consent to divide the assets, refuse to divide the assets or to remain silent. Given the testimony that Stella was a strong willed individual, the defendant would not have remained as a confidant of Stella’s if she refused her direction. If the defendant remained silent, Stella undoubtedly assumed the defendant’s assent, as she thereafter transferred the assets into joint names.”

It is well settled that silence can constitute fraud under certain circumstances. “Fraud is defined as [d]eceit, deception, artifice, or trickery operating prejudicially on the rights of another, and so intended, by inducing him to part with property or surrender some legal right. . . . Anything calculated to deceive another to his prejudice and accomplishing the purpose, whether it be an act, a word, silence, the suppression of the truth, or other device contrary to the plain rules of common honesty.” (Emphasis added; internal quotation marks omitted.) Nelson v. Charlesworth, 82 Conn. App. 710, 714, 846 A.2d 923 (2004). “[U]nder certain circumstances, there may be as much fraud in a person’s silence as in a false statement.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Egbarin, 61 Conn. App. 445, 455, 767 A.2d 732, cert. denied, 255 Conn. 949, 769 A.2d 64 (2001), quoting Egan v. Hudson Nut Products, Inc., 142 Conn. 344, 347, 114 A.2d 213 (1955). In the present case, the defendant was the coexecutor of Stella’s will, was entrusted to make health care decisions for Stella, was given Stella’s power of attorney and helped Stella with her financial affairs. Stella told the defendant how she wanted her assets to be distributed. Under those circumstances, the court’s conclusion that the defendant’s silence constituted fraud was not clearly erroneous.

Having found, by inference, that the defendant made false representations or that she made false representations through her silence, the court concluded that the remaining elements of fraud also had been satisfied: “There was no evidence presented that indicated that the defendant told anyone of her becoming a joint owner of Stella’s substantial assets prior to her death, including Stella’s attorney. Further, the defendant’s actions after Stella’s death in cleaning out Stella’s safe, her reluctance to meet with her coexecutor, her surreptitiously disposing of the other joint accounts and her reluctance to disclose the extent of her holdings clearly lead this court to the conclusion that the defendant had no intention to fulfill her promise to Stella at the time she made it.

“As a result of the defendant’s representations, Stella relied on them and thereafter transferred her various [certificates of deposit], savings accounts and [United States] savings bonds into joint names with her and the defendant in an amount which totaled approximately $496,070 at the time of Stella’s death. It is also clear to this court that as a result of the defendant’s assurances, Stella made no effort to change her will or otherwise provide for the remainder of her nine ‘children,’ which clearly was her intent.” Accordingly, the court concluded that the plaintiff successfully had rebutted the presumption as to joint accounts set forth in § 36a-290 and in 31 C.F.R. § 353.70 (b).

The defendant’s challenge of the evidence focuses on the contradictory evidence that was presented at trial and the claim that the testimony of the plaintiffs witnesses was not believable. Such an argument challenges the credibility of the witnesses and not the sufficiency of the evidence. The court, as the finder of fact, was the final arbiter of credibility and was free to believe the testimony of the plaintiffs witnesses and to disbelieve the testimony of the defendant and her witnesses. Duplissie v. Devino, 96 Conn. App. 673, 682, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). In viewing the evidence in the light most favorable to the plaintiff, we cannot conclude that he failed to satisfy his heightened burden of proving that the defendant had perpetrated a fraud on Stella’s estate.

II

The defendant’s next claim is that the court improperly found that the plaintiff satisfied the heightened burden of proof with respect to the elements necessary for the imposition of a constructive trust. Specifically, the defendant argues that the plaintiff failed to prove by clear and convincing evidence that the relationship between Stella and the defendant “was of such a nature as to equate to the type of confidential relationship necessary to impose a constructive trust.” The defendant also claims that the court’s conclusion that the defendant was unjustly enriched by virtue of the fact that she obtained the bulk of Stella’s estate and yet had virtually no succession tax liability under the will was inconsistent with the court’s judgment in favor of the defendant on the plaintiffs count of unjust enrichment.

“A court’s determination of whether to impose a constructive trust must stand unless it is clearly erroneous or involves an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) Menard v. Gaskell, 92 Conn. App. 551, 555, 885 A.2d 1254 (2005).

“A constructive trust arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy. ... A constructive trust arises whenever another’s property has been wrongfully appropriated and converted into a different form . . . [or] when a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” (Emphasis added; internal quotation marks omitted.) Cadle Co. v. Gabel, 69 Conn. App. 279, 288, 794 A.2d 1029 (2002). “The issue raised by a claim for a constructive trust is, in essence, whether a party has committed actual or constructive fraud or whether he or she has been unjustly enriched.” Id., 295.

In the present case, the court imposed a constructive trust on the assets held jointly by Stella and the defendant after reciting the previously stated standards in its memorandum of decision and finding that the plaintiff had proved by clear and convincing evidence that the defendant committed fraud in obtaining those assets and was unjustly enriched by holding the personal property that in equity and good conscience belonged to the ten beneficiaries of Stella’s estate. The court, in its discussion, stated that Stella told the defendant to divide the jointly held assets among her ten “children,” that the defendant failed to do so and that the defendant was unjustly enriched because she obtained the bulk of Stella’s estate yet had virtually no succession tax liability under the will.

The defendant’s argument that the court could not impose a constructive trust because there was no confidential relationship between Stella and the defendant is without merit. The defendant claims that “[b]efore the court can find that a constructive trust exists and should be imposed, the court must find, in addition to the element [of] fraud or misrepresentation, that a confidential relationship existed between Stella, as transferor, and the defendant, as transferee, at the time of the transfer of the property.” (Emphasis in original.) Our case law does not support that position. “In order for a constructive trust to be imposed, the plaintiff must allege [and prove] fraud, misrepresentation, imposition, circumvention, artifice or concealment, or abuse of confidential relations.” (Emphasis added; internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 860, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001).

If fraud is established by clear and convincing evidence, which it was in this case, there is no additional requirement to prove the existence of a confidential relationship. The court imposed a constructive trust because it had found in favor of the plaintiff on his claim of fraud and because the defendant would be unjustly enriched if she retained the proceeds from the assets she had held jointly with Stella. The court did not address the issue of whether a confidential relationship existed; it was not necessary to do so.

The defendant’s final claim is that the court improperly concluded that the defendant would be unjustly enriched if allowed to retain the proceeds from the joint accounts when the court rendered judgment in favor of the defendant on the plaintiffs count alleging unjust enrichment. The defendant argues that the court’s finding is inconsistent. We disagree.

Count four of the plaintiffs operative complaint, titled “Unjust Enrichment,” alleged that the defendant benefited from her wrongful acts by failing to justly compensate Stella’s estate or its heirs, thereby unjustly enriching herself. In its memorandum of decision, the court found in favor of the defendant on this claim because “the plaintiff failed to show sufficient facts to prove the existence of a contract between the defendant and the plaintiff or the decedent. Absent that prerequisite, there can be no recovery for unjust enrichment, and judgment is entered in favor of the defendant on this count.”

“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.” (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006). In his cause of action alleging unjust enrichment, therefore, the plaintiff in this case had to prove the existence of a contract. He failed to do so. In seeking a constructive trust, however, there is no requirement that the transfer of the property at issue was made pursuant to an existing contract. The plaintiff, after proving fraud, had to prove that the defendant would be unjustly enriched if allowed to retain the proceeds from the joint assets. They are different causes of action requiring different elements of proof. It was not inconsistent for the court to conclude that the defendant would be unjustly enriched unless it imposed a constructive trust on the jointly held bank accounts, certificates of deposit and savings bonds because the plaintiff did not have to prove the existence of a contract to be entitled to that equitable remedy.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original complaint was brought by Diane B. Garrigus, Richard Golebiewslci, Jerry W. Golebiewski, Edward Szydlik, John Szydiik, Lori G. Woscyna and Vaccarelli, administrator c.t.a. of the estate of Stella Jankowski. The defendant filed a motion to dismiss the complaint as to all plaintiffs except Vaccarelli, which was granted by the court, Gallagher, J., on February 22, 2005. Accordingly, in this opinion, we refer to Vaccarelli as the plaintiff.

       The plaintiff has not cross appealed from the court’s judgment in favor of the defendant on the counts of undue influence, statutory theft or unjust enrichment or the count requesting the imposition of a resulting trust.

       General Statutes § 36a-290 provides: “(a) When a deposit account has been established at any bank, or a share account has been established at any Connecticut credit union or federal credit union, in the names of two or more natural persons and under such terms as to be paid to any one of them, or to the survivor or survivors of them, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them or to the survivor or any of the survivors of such persons after the death of one or more of them. Any such payment constitutes a valid and sufficient release and discharge of such bank, Connecticut credit union or federal credit union, or its successor, as to all payments so made.
      “(b) The establishment of a deposit account or share account which is a joint account under subsection (a) of this section is, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, prima facie evidence of the intention of all of the named owners thereof to vest title to such account, including all subsequent deposits and additions made thereto, in such survivor or survivors, in any action or proceeding between any two or more of the depositors, respecting the ownership of such account or its proceeds.
      “(c) This section shall not apply to any deposit account or share account where any owner died before October 1, 1971, nor shall it apply to any action pending on that date.”

       Section 353.70 of title 31 of the Code of Federal Regulations provides in relevant part: “The following rules govern ownership or entitlement where one or both of the persons named on a bond have died without the bond having been surrendered for payment or reissue . . .

        “(b) Coowner bond—(1) One owner deceased. If one of the coowners named on a bond has died, the surviving coowner will be recognized as the sole and absolute owner, and payment or reissue will be made as though the bond were registered in the name of the survivor alone. Any request for reissue by the surviving coowner must be supported by proof of death of the other coowner. . . .” (Emphasis in original.)
      The parties have not argued that joint savings bonds are to be treated differently than joint bank accounts for purposes of rebutting the presumption of ownership.

       The defendant cited cases, which do not hold as she stated, and cited § 183 of the Restatement of Restitution (1937). The Restatement, however, addresses a situation in which a constructive trust can be imposed on an interest in land, and provides that such a trust may be enforced by a third person if (a) the transferee induced the transfer by fraud, duress or undue influence, or (b) the transferee was in a confidential relation to the transferor at the time of the transfer, or (c) the transfer was made by the transferor in contemplation of death. See Restatement, Restitution § 183 (1937). Again, as in the case law, if there is fraud, it is not necessary to prove the added element of a confidential relationship.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    TERRANCE STEVENSON v. COMMISSIONER OF CORRECTION
    (AC 28977)
    Bishop, Harper and Beach, Js.

      Argued November 13, 2008
    officially released February 17, 2009

      Michael Oh, special public defender, for the appellant (petitioner).

      Melissa Patterson, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

HARPER, J.

The petitioner, Terrance Stevenson, appeals from the judgment of the habeas court dismissing his fourth amended petition for a writ of habeas corpus. The petitioner claims that the court improperly concluded that his counsel in a prior habeas proceeding did not render ineffective assistance by failing to pursue adequately a claim related to the performance of his trial counsel. We affirm the judgment of the habeas court.

The record reveals the following relevant facts and procedural history. Following a jury trial, the petitioner was convicted of conspiracy to commit murder and as an accessory to murder. The petitioner was sentenced to a total effective term of incarceration of sixty years. Following a direct appeal, the judgment of conviction was affirmed by this court. State v. Stevenson, 53 Conn. App. 551, 733 A.2d 253, cert. denied, 250 Conn. 917, 734 A.2d 990 (1999).

The opinion of this court set forth the following facts underlying the conviction: “On March 21, 1994, Jeffrey Dolphin became involved in a dispute with James Baker and the [petitioner] over a lost quantity of cocaine. At some point during this dispute, Baker, Dolphin and the [petitioner] were joined by Jermaine Harris, also known as ‘Chico,’ and Trent Butler. While Dolphin maintained that a third party lost the cocaine, the [petitioner] blamed Dolphin for the missing cocaine and pulled a gun on him.

“Thereafter, Baker asked, ‘Why don’t we make this motherfucker do it?’ The [petitioner] pointed the gun at Dolphin again and forced him into the back of an old white station wagon driven by Baker. Butler, Harris and the [petitioner] were also in the car. Butler then told Dolphin that they wanted him to shoot somebody to make up for the money that he had lost, which Dolphin refused to do.

“Upon Dolphin’s refusal, Harris stated that he would shoot the victim, Amenophis Morris. At that point, Baker parked the vehicle on Exchange Street in New Haven, about one-half block from the victim’s home. Harris got out of the car, put on a mask and walked to the victim’s home accompanied by the [petitioner], while the others remained behind. Both of the men were armed. Dolphin then heard nine or ten gunshots from the direction of the victim’s home, although he could not see who was shooting. When Harris and the [petitioner] returned to the vehicle, Harris shouted, T got him!’ The victim had been shot to death as he sat on his front porch eating dinner.

“When the men let Dolphin out on another street, they threatened him and told him not to say anything about what had happened. Approximately one month after the homicide, the New Haven police department arrested Dolphin on unrelated narcotics charges. While in custody, Dolphin provided the police with information implicating Baker, Butler and Harris in the homicide. Dolphin did not give the police the [petitioner’s] name or his street name, ‘Joe the Flea.’ The following day, Dolphin made a photographic identification of Harris.

“In February, 1995, in a tape-recorded statement, Dolphin informed Butler’s attorney, Leo Ahem, that the information he had told the police was false. Thereafter, in early March, 1995, in another conversation with the New Haven police, Dolphin made photographic identifications of Butler and Baker. At that time, Dolphin stated to the police that he did not recognize anyone else in the array of photographs, including the [petitioner]. In September, 1995, Dolphin informed the state’s attorney’s office that the statement that he made to Ahem was false. It was not until October 31,1995, that Dolphin informed the police that the fourth individual involved in the homicide was ‘Joe the Flea,’ and that his real name was Terrance Stevenson, the [petitioner].” Id., 553-55.

Following his conviction, the petitioner filed a petition for a writ of habeas corpus based in part on a claim that his trial counsel, Thomas Conroy, had rendered ineffective assistance. In this prior habeas proceeding, the petitioner was represented by David B. Rozwaski. The court rejected the petitioner’s claims and denied the petition. Subsequently, this court, holding that the habeas court had not abused its discretion in denying the petitioner’s petition for certification to appeal, dismissed the petitioner’s appeal from that ruling. Stevenson v. Commissioner of Correction, 67 Conn. App. 908, 792 A.2d 909, cert. denied, 260 Conn. 905, 795 A.2d 547 (2002).

In the present habeas proceeding, the petitioner alleged in a two count fourth amended petition for a writ of habeas corpus that Rozwaski had rendered ineffective assistance. In count one, the petitioner alleged that Rozwaski was deficient in that he had failed to raise claims relating to the performance of the assistant public defender who represented the petitioner in the direct appeal. The petitioner does not challenge the court’s resolution of that count of his petition.

In count two, the petitioner alleged that Rozwaski was deficient in that he failed to raise a claim related to Conroy’s ineffective representation in that, during the petitioner’s criminal trial, Conroy had failed adequately to discredit Dolphin’s testimony that Dolphin had been threatened by the petitioner’s codefendants. The following facts provide context for this claim. At the petitioner’s criminal trial, Dolphin testified with regard to his conflicting statements concerning the individuals involved in the crimes and why, having had earlier opportunities to do so, he had not identified the petitioner as having been involved in the shooting until October, 1995. Essentially, Dolphin attributed his statements and his late identification of the petitioner to the fact that he had been threatened while he was incarcerated at the New Haven Correctional Center prior to trial. Dolphin testified concerning several specific instances between 1994 and 1995 in which he had been threatened by Baker, Butler and Harris, the petitioner’s codefen-dants, who also were incarcerated at the facility.

During the present habeas proceeding, the petitioner presented evidence that at the criminal trial, Conroy had presented testimony from two department of correction employees that contradicted Dolphin’s testimony that he had been threatened by Butler on March 8, 1995, and that Conroy had not presented any additional evidence to challenge Dolphin’s testimony that he had been threatened on other occasions. The petitioner also presented evidence concerning Rozwaski’s investigation of this aspect of the criminal trial and Rozwaski’s representation during the prior habeas proceeding.

During the present habeas proceeding, the petitioner also presented evidence that he believed was relevant to discrediting Dolphin’s claims. This evidence had not been presented either by Conroy during his criminal trial or Rozwaski during the prior habeas proceeding. As relevant, the petitioner presented testimony from Michelle DeVeau, a records specialist at the department of correction. DeVeau testified that a computer data entry known as an RT-42 appeared in Dolphin’s department file. DeVeau explained that RT-42 entries are confidential and are accessible to and seen by some department personnel only. DeVeau also testified that a purpose of the RT-42 was to notify department personnel of issues or conflicts between inmates or between inmates and department personnel to keep inmates separated from those with whom conflict was likely. The entry at issue, dated May 3, 1994, stated that Dolphin was testifying against both Baker and Butler but did not specify that steps should be taken to keep Dolphin away from these inmates.

The petitioner also presented testimony from Robert Correa, the warden of the New Haven Correctional Center. Correa testified that he was not aware of the existence of any directive to keep Dolphin away from these individuals. He also testified, however, that, generally, if a prison employee had knowledge of the contents of an RT-42, it would have caused such employee to keep the inmates involved separated in terms of housing, movement within the prison and otherwise. With regard to one of the instances of threatening, Dolphin stated that he had been threatened by Baker and Harris in the prison gym in March, 1995. Correa testified that, at times relevant, Baker, Butler and Harris likely were housed in the prison cell block and that Dolphin likely was housed in the prison dormitories. Because Dolphin and these other inmates were members of two separate prison populations, Correa opined, such an encounter during recreation time in the prison gym would have been contrary to prison policy. Correa also testified, however, that other opportunities existed for members of these separate populations to come into contact with each other while incarcerated at the prison.

The petitioner also presented testimony from a judicial branch marshal concerning procedures that marshals followed generally when transporting inmates when the marshals had departmental notice that a “keep separate” order appeared in an inmate’s department file. Finally, the petitioner testified, inter alia, concerning his personal knowledge of the living situations of Harris, Baker, Butler and Dolphin while at the prison, as well as his knowledge of relevant procedures and customs concerning the interaction of inmates at the prison. The petitioner also testified that he discussed these issues, related to Dolphin’s testimony, with both Conroy and Rozwaski.

In ruling on the petitioner’s claim, the habeas court stated: “The shooting which gave rise to this case occurred on March 21, 1994. While Dolphin implicated Baker, Butler and Harris shortly afterward, he did not implicate the petitioner until October 31, 1995, despite being shown a photographic array containing the petitioner’s [photograph] in March, 1995. At trial, Dolphin gave as his reason for not identifying the petitioner that the petitioner’s codefendants had threatened him while they were all incarcerated together at the New Haven Correctional Center. In support of this claim, the petitioner elicited testimony from [DeVeau and Correa].

“In order to prevail on this claim, the petitioner is required to prove that trial counsel . . . Conroy, was ineffective and [that] had it not been for such deficiency, the petitioner would likely have been acquitted. The court must therefore find that had the jury heard the testimony that was elicited during this habeas trial, [it] probably would have had a reasonable doubt about the testimony of Dolphin, and the petitioner would probably have been acquitted.

“After a careful review of the testimony, particularly that of warden Correa, it is the opinion of the court that the petitioner has proven that the petitioner’s code-fendants were likely housed in the cell block area of New Haven Correctional Center and that Dolphin was likely housed in the dorms. However, it is also the opinion of the court that the petitioner has not proven that his codefendants and Dolphin could not have had contact with each other despite the fact that they were in separate housing facilities.

“Therefore, it is the opinion of the court that the petitioner has not proven his claim that, but for the deficiency of trial counsel, he probably would have been acquitted.” The court dismissed the petition for a writ of habeas corpus and subsequently granted the petition for certification to appeal. See General Statutes § 52-470 (b). This appeal followed.

On appeal, the petitioner claims that Conroy was ineffective in that he challenged Dolphin’s testimony with regard to only one of the incidents of threatening that Dolphin described. The petitioner argues: “Attorney Conroy should have obtained the RT-42 and should have procured the testimony of warden Correa and Michelle DeVeau to produce evidence tending to show that . . . Dolphin would have been kept separate from the other defendants.” The petitioner argues that he demonstrated the prejudicial effect of Conroy’s performance: “Had attorney Conroy introduced the RT-42 and the testimony of Correa and DeVeau, there is a reasonable probability that the jury would have had reasonable doubt as to . . . Dolphin’s claims of being threatened by the codefendants and thus reasonable doubt as to the identification of the petitioner as a participant in the murder.” The petitioner claims that in concluding that he did not prove that Conroy’s alleged deficient performance caused him any harm at trial, the court improperly required him to prove the facts underlying his petition beyond a reasonable doubt. The petitioner argues: “To require . . . that the petitioner prove that it was impossible for . . . Dolphin and his codefen-dants to have any contact is to require proof at a standard higher than the fair preponderance of the evidence standard.” (Internal quotation marks omitted.)

“The standard of appellate review of a habeas coxpus proceeding is well settled. Although a habeas court’s findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. . . . As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) Crump v. Commissioner of Correction, 61 Conn. App. 55, 58, 762 A.2d 491 (2000).

“[A] person convicted of a crime is entitled to seek a writ of habeas corpus on the ground that his attorney in his prior habeas corpus proceeding rendered ineffective assistance.” Lozada v. Warden, 223 Conn. 834, 845, 613 A.2d 818 (1992). When, as here, the petitioner’s claim is that prior habeas counsel did not effectively pursue a claim that trial counsel rendered inadequate representation, the following principles apply: “To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective and (2) that his trial counsel was ineffective. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unworkable. . . . Only if the petitioner succeeds in [this] herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel.” (Citations omitted; internal quotation marks omitted.) Id., 842-43.

The court appropriately considered whether the evidence presented in this proceeding, if utilized by Conroy at the petitioner’s criminal trial, likely would have changed the outcome of the criminal trial. The court made findings of fact concerning the different housing arrangements of Dolphin and the petitioner’s codefen-dants while at the New Haven Correctional Center. The court also found that these individuals could have had contact with each other at the facility. The evidence, and the reasonable inferences to be drawn therefrom, demonstrated that interaction between Dolphin and the petitioner’s codefendants during their incarceration was possible, regardless of the existence of the RT-42, prison regulations or the fact that Dolphin was confined to a separate housing facility within the center. The petitioner does not appear to challenge the court’s findings of fact with regard to this issue.

The gist of the petitioner’s claim is that the court applied an incorrect standard of law, requiring him to prove beyond a reasonable doubt that contact between Dolphin and the petitioner’s codefendants was not possible. The court, however, did not couch its analysis in those terms. The court explained that for the petitioner to prevail, “[t]he court must . . . find that had the jury heard the testimony that was elicited during this habeas trial, [it] probably would have had a reasonable doubt about the testimony of Dolphin and the petitioner would have probably been acquitted.” The court thereafter stated that “the petitioner has not proven that his code-fendants and Dolphin could not have had contact with each other despite the fact that they were in separate housing facilities.” Although the court’s analysis is brief, a reasonable interpretation of that analysis, viewed as a whole, is that the petitioner failed to demonstrate that contact between these individuals was so unlikely that it would have affected the jury’s assessment of Dolphin’s testimony. During the habeas proceeding, the petitioner, in attempting to cast doubt on Dolphin’s claims, relied on the fact that Dolphin and the petitioner’s code-fendants lived in separate prison populations. The court rejected that rationale, noting that this fact did not eliminate the opportunity for contact. We reject the petitioner’s invitation to interpret the court’s finding as an indication that the court viewed the mere possibility of contact, regardless of the likelihood of such contact, as being dispositive or that it had required him to prove his claims beyond a reasonable doubt. “We do not presume error; the trial court’s ruling is entitled to the reasonable presumption that it is correct unless the party challenging the ruling has satisfied its burden demonstrating the contrary. . . . Absent a clear indication that the court did not apply [the correct] standard, we conclude that the trial court applied the correct legal standard.” (Citation omitted; internal quotation marks omitted.) State v. Cooper, 227 Conn. 417, 434, 630 A.2d 1043 (1993).

The judgment is affirmed.

In this opinion the other judges concurred.

       The petitioner also argues that if this court agrees that Conroy’s representation was deficient as alleged, “then . . . Rozwaski had an obligation to pursue that claim” concerning Conroy during the prior habeas proceeding. The petitioner notes the new evidence that his attorney in the present proceeding, Damon A. R. Kirschbaum, presented in support of the petition. The petitioner argues: “If that evidence was available to . . . Kirschbaum, then it was available to Rozwaski. The prejudice to [the] petitioner from . . . Rozwaski’s negligence is that [the petitioner did not prevail in the prior habeas proceeding]. Had . . . Rozwaski raised the claim against . . . Conroy and put on the evidence he should have, there is a reasonable probability that the [prior] habeas petition would have been granted.”
      The court did not make any findings concerning the adequacy of the representation provided to the petitioner by Conroy or Rozwaski but tailored its analysis to the issue of prejudice. The court did not conclude expressly that the petitioner failed to demonstrate that Rozwaski’s alleged deficient representation caused him any prejudice. The court’s conclusion that Con-roy’s alleged deficiencies did not affect the outcome of the criminal trial necessarily resolved in favor of the respondent, the commissioner of correction, the issue of whether Rozwaski’s representation during the prior habeas proceeding was prejudicial.
      We agree with the court’s conclusion that the petitioner failed to demonstrate that Conroy’s alleged deficient performance likely affected the outcome of the criminal trial. This conclusion is dispositive of this appeal. Accordingly, we do not address whether Conroy or Rozwaski rendered effective assistance. Even were this issue not dispositive of the appeal, we note that the lack of findings concerning the effectiveness of the representation provided by either Conroy or Rozwaski prevents us from considering in this appeal issues related to adequacy of representation. “When the record on appeal is devoid of factual findings by the habeas court as to the performance of counsel, it is improper for an appellate court to make its own factual findings.” Small v. Commissioner of Correction, 286 Conn. 707, 716, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S. Ct. 481, 172 L. Ed. 2d 336 (2008).

       The court’s language closely resembles the language customarily used by courts to define prejudice in habeas cases when the petitioner’s claim is based on the ineffective assistance of counsel. See, e.g., Thergood v. Commissioner of Correction, 109 Conn. App. 710, 714, 952 A.2d 854 (“[t]o satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” [internal quotation marks omitted]), cert. denied, 289 Conn. 953, 961 A.2d 422 (2008).


author: GRUENDEL, J.

text:
    DEBORAH POREMBA, ADMINISTRATRIX (ESTATE OF DANIEL LISI) v. YALE-NEW HAVEN HOSPITAL ET AL.
    (AC 29178)
    Gruendel, Robinson and Borden, Js.
    Argued November 12, 2008
    officially released February 17, 2009

      Neil Johnson, for the appellant (plaintiff).

      George Catlett, with whom, on the brief, was Bhavna Changrani, for the appellee (defendant Craig S. Hecht).
   Opinion

GRUENDEL, J.

This is a medical malpractice appeal about informed consent. The plaintiff, Deborah Por-emba, administratrix of the estate of Daniel Lisi, appeals from the judgment of the trial court rendered after a jury trial in favor of the defendant Craig S. Hecht, a licensed physician. The plaintiff claims that the court improperly determined that the defendant was not required to obtain written informed consent pursuant to General Statutes § 17a-543 (b) prior to performing any surgical procedure. We affirm the judgment of the trial court.

The relevant facts are as follows. The decedent, Lisi, had a history of schizophrenia, for which he received treatment at Harbor Health Services, an outpatient psychiatric care facility. Lisi lived independently with a roommate in an apartment in Branford. He never was declared legally incompetent or assigned a conservator and was able to make his own decisions and handle his financial affairs.

In addition to schizophrenia, Lisi suffered from severe obstructive sleep apnea. After nonsurgical treatment proved unsuccessful, Lisi was referred to the defendant, an otolaryngologist. On January 5, 2001, the defendant met with Lisi and conducted a physical examination, which revealed a severe septal deviation, a redundant uvular and soft pallet. The defendant recommended, as nonsurgical alternatives, that Lisi stop smoking and lose weight. The defendant advised Lisi of surgical options that included tracheostomy, which is “[a]n operation to make an opening into the trachea.” T. Stedman, Medical Dictionary (28th Ed. 2006) p. 2007. The defendant also advised Lisi on an uvulopalatopha-ryngoplasty procedure that consisted of uvulopalato-pharyngoplasty, septoplasty and turbinectomy. It is undisputed that at the January 5, 2001 meeting, the defendant discussed with Lisi the benefits and risks of that procedure, including death.

On February 2, 2001, the defendant conducted with Lisi a consultation for surgery. They discussed an alternative surgical treatment option, tracheostomy, in which Lisi indicated his disinterest. The defendant again discussed with Lisi the risks of bleeding, velophamgeal insufficiency and death that accompanied the uvulopa-latopharyngoplasty procedure. At that meeting, the defendant informed Lisi that he would need to obtain preoperative medical clearance.

Lisi thereafter met with physician Robert Henry on February 6, 2001. After examining Lisi and reviewing his laboratory data, Henry granted surgical clearance. His February 12, 2001 letter to the defendant stated in relevant part: “I recently saw . . . Lisi in preoperative evaluation prior to his upcoming surgery. Clinically, he has been doing well except for his persistent snoring and difficulty with sleep. He has not had any chest pain, or shortness of breath, and has had no complaints except those related to his septum and sleep apnea. ... In summary . . . Lisi has clinically been stable, and he is approximately a Goldman Class I risk, the lowest of four classes for his preoperative assessment. He is medically stable and appropriate for his upcoming surgery. From the perspective of his schizophrenia, that too, has been stable, and I see no contraindications to his upcoming surgery.”

On March 20, 2001, approximately one week before Lisi’s scheduled surgery, the defendant prepared a consent form titled “Yale-New Haven Hospital Permission for Operation, Special Procedure or Treatment.” That document stated in part that the defendant had informed the patient “of the general purpose, potential benefits, possible hazards and inconveniences and alternatives to the above operation, special procedure or treatment along with any needed anesthesia/sedation, medication or transfusion.” The defendant signed that portion of the document on March 20, 2001. At trial, the defendant testified that it is his custom to sign such consent forms one week prior to surgery outside the presence of the patient. He further testified that customarily, the patient then reviews and signs the consent form outside of the operating room on the day of surgery prior to the procedure. The defendant explained that Yale-New Haven Hospital required a consent form signed by the patient as a prerequisite to any surgical procedure.

The remainder of the consent form stated in relevant part that “[t]he general purpose, potential benefits, possible hazards and inconveniences of [uvulopalatopha-ryngoplasty], septoplasty [and] turbinectomy have been explained to my satisfaction by [the defendant] and alternatives have been discussed. I, Daniel Lisi, hereby consent to the performance of the operation, special procedure or treatment named above under [the defendant’s] direction, along with whatever anesthesia/sedation, medication or transfusion is necessary, the risks, benefits and alternatives of which have also been explained to me. ... I further authorize my physician to do whatever may be necessary in the event that any unforeseen conditions arise during the course of the operation, special procedure, or treatment.” On March 26, 2001, Lisi signed that consent form. The defendant performed the scheduled procedure on Lisi later that day without complications. The procedure completed, the defendant left Lisi in the care of the hospital’s anesthesia staff while he met with Lisi’s family.

While under the care of the anesthesia staff, Lisi suffered complications during extubation. Following extu-bation, Lisi began to thrash and desaturate. Attempts to reintubate Lisi by the anesthesia staff were unsuccessful. The defendant, who was talking with Lisi’s family at the time, responded to an emergency call and performed a cricothyroidotomy on Lisi. Although that emergency procedure saved his life, Lisi never regained consciousness. He survived on life support for approximately nine months and died on January 9, 2002.

The plaintiff thereafter commenced this civil action against the defendant. The trial began on July 24, 2007, with an argument outside of the presence of the jury as to the applicability of § 17a-543 (b). After hearing from both parties, the court determined that § 17a-543 (b) pertains to “medical and surgical procedures for the treatment of psychiatric illnesses” and thus did not apply in the present case. Following trial, the jury returned a verdict in favor of the defendant. The court denied the plaintiffs subsequent motion to set aside the verdict and rendered judgment accordingly. The plaintiff now appeals.

On appeal, the plaintiff maintains that the court improperly concluded that the defendant was not bound by § 17a-543 (b) to obtain Lisi’s written informed consent prior to performing the uvulopalatopharyngoplasty procedure. The plaintiff claims that the court improperly concluded that § 17a-543 (b) applies to medical and surgical procedures for the treatment of psychiatric illnesses. In the plaintiffs view, § 17a-543 (b) applies to all medical and surgical procedures. The defendant disagrees, arguing that the statute applies only to psychiatric patients receiving treatment for psychiatric illnesses. Because the surgical procedure at issue here pertained to sleep apnea and not a psychiatric illness, the defendant claims that § 17a-543 (b) did not require written informed consent prior to the procedure.

We need not decide that question of statutory interpretation. Following a trial, the jury rejected the plaintiffs allegation that the defendant failed to obtain informed consent from Lisi. On appeal, the plaintiff does not challenge that factual determination. Cf. Godwin v. Danbury Eye Physicians & Surgeons, P. C., 254 Conn. 131, 141, 757 A.2d 516 (2000) (claim that trial court improperly instructed jury on doctrine of informed consent); DeGennaro v. Tandon, 89 Conn. App. 183, 188, 873 A.2d 191 (claim that “there was insufficient evidence for the jury to conclude that there was a lack of informed consent”), cert. denied, 274 Conn. 914, 879 A.2d 892 (2005); Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn. App. 359, 379, 805 A.2d 130 (2002) (claim that court’s jury instruction inadequate with respect to medical negligence and informed consent). Furthermore, it is undisputed that the defendant obtained Lisi’s written informed consent prior to performing the uvulopalatopharyngoplasty procedure. That signed consent provided, inter alia, that “[t]he general purpose, potential benefits, possible hazards and inconveniences of [uvulopalatopharyngoplasty], septoplasty [and] turbinectomy have been explained to my satisfaction by [the defendant] and alternatives have been discussed. I, Daniel Lisi, hereby consent to the performance of the operation, special procedure or treatment named above under [the defendant’s] direction, along with whatever anesthesia/sedation, medication or transfusion is necessary, the risks, benefits and alternatives of which have also been explained to me.” Lisi’s signed consent was introduced into evidence at trial. Thus, irrespective of whether § 17a-543 (b) obligated the defendant to obtain written informed consent in the present case, it remains that the defendant complied with that requirement by procuring his patient’s written informed consent prior to proceeding with the surgical procedure.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as a defendant in the plaintiffs original complaint was Yale-New Haven Hospital. On September 22, 2003, the court granted Yale-New Haven Hospital’s motion to strike all counts pertaining thereto without objection by the plaintiff. When the plaintiff failed to file a new pleading, the court, on November 7, 2003, rendered judgment in favor of Yale-New Haven Hospital pursuant to Practice Book § 10-44. The plaintiff has not appealed from that judgment. We therefore refer to Hecht as the defendant.

       “An otolaryngologist is aphysician specializing in that branch of medicine concerned with medical and surgical treatment of the head and neck, including the ears, nose and throat.” (Internal quotation marks omitted.) Wasfi v. Chaddha, 218 Conn. 200, 201 n.4, 588 A.2d 204 (1991).

       Uvulopalatopharyngoplasty is the “surgical resection of unnecessary palatal and oropharyngeal tissue in selected cases of snoring, with or without sleep apnea.” T. Stedman, supra, pp. 1406, 2080. Septoplasty is an “[ojperation to correct defects or deformities of the nasal septum, often by alteration or partial removal of skeletal structures.” Id., p. 1750. Turbinectomy is the “[sjurgieal removal of a turbinated bone.” Id., p. 2056.

       Desaturation is “[t]he act, or the result of the act, of making something less completely saturated; more specifically, the percentage of total binding sites remaining unfulfilled, e.g., when hemoglobin is 70 [percent] saturated with oxygen and nothing else, its d. is 30 [percent].” T. Stedman, supra, p. 521.

       A cricothyroidotomy is an “[ijncision through the skin and cricothyroid membrane for relief of respiratory obstruction; used before or in place of tracheotomy in certain emergency respiratory obstructions.” T. Stedman, supra, p. 460.

       General Statutes § 17a-543, titled “Procedures governing medication, treatment, psychosurgeiy and shock therapy,” is part of the patients’ bill of rights. Section 17a-543 (b) provides: “No medical or surgical procedures may be performed without the patient’s written informed consent or, if the patient has been declared incapable of caring for himself or herself pursuant to sections 45a-644 to 45a-662, inclusive, and a conservator of the person has been appointed pursuant to section 45a-650, the written consent of such conservator. If the head of the hospital, in consultation with a physician, determines that the condition of an involuntary patient not declared incapable of caring for himself or herself pursuant to said sections is of an extremely critical nature and such patient is incapable of informed consent, medical or surgical procedures may be performed with the written informed consent of: (1) The patient’s health care representative; (2) the patient’s conservator or guardian, if he or she has one; (3) such person’s next of kin; (4) a person designated by the patient pursuant to section l-56r; or (5) a qualified physician appointed by a judge of the Probate Court. Notwithstanding the provisions of this section, if obtaining the consent provided for in this section would cause a medically harmful delay to a voluntary or involuntary patient whose condition is of an extremely critical nature, as determined by personal observation by a physician or the senior clinician on duty, emergency treatment may be provided without consent.”

       The defendant argues in his brief, as an alternate basis for affirmance, that he “complied with General Statutes § 17a-543 (b) by obtaining written informed consent from the patient for the nonpsychiatric procedure,” a contention with which the plaintiff has not disagreed either by way of reply brief or at oral argument. Indeed, the plaintiffs brief makes no mention whatsoever of the written consent signed by Lisi on March 26, 2001.