author: SHELDON, J.

text:
    DUANE TOMPKINS v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 32932)
    Bear, Espinosa and Sheldon, Js.

      Argued March 6
    officially released July 3, 2012

      David C. Yale, with whom, on the brief, was Elliot B. Spector, for the appellant (plaintiff).

      Valida Dee Harmon, commission counsel, for the appellee (named defendant).

      Alexander Wood, pro se, the appellee (defendant).
   Opinion

SHELDON, J.

The issue presented in. this appeal is whether the trial court properly dismissed the appeal of the plaintiff, Duane Tompkins, from the amended final decision of the named defendant, the freedom of information commission (commission), ordering the plaintiffs former employer, the town of Enfield police department (department), to disclose the plaintiffs redacted employment termination records to the defendants the Journal Inquirer and Alexander Wood and Jenna Carlesso, staff writers for the Journal Inquirer. The plaintiff claims that the trial court erred in sustaining the commission’s order of disclosure over his objection that the subject records are exempt from disclosure under either General Statutes § 1-210 (b) (2) because their release would constitute an invasion of his personal privacy, or § 1-210 (b) (3) (G) because they contain uncorroborated allegations of criminal activity. For the following reasons, we disagree and thus affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. While the plaintiff was a lieutenant with the department, he downloaded certain official departmental forms onto his personal thumb drive for use by one of the officers in the department’s canine unit. Prior to downloading the forms onto the thumb drive, the plaintiff deleted from it all of his personal documents, including the texts of several instant message conversations between himself and other unidentified individuals and other personal records. When the canine officer to whom the thumb drive had been given ceased working for the department, for reasons unrelated to this case, he was replaced by another canine officer who continued to use the thumb drive in the course of his official duties for approximately one year without incident.

One day, however, when the second canine officer attempted to open the files on the thumb drive, he found that he could not do so. To determine what was wrong with the thumb drive, the officer brought it to a computer technician who was not affiliated with the department. Discovering that certain files on the thumb drive were corrupted, the technician attempted to recover them. In so doing, the technician inadvertently uncovered the personal records that the plaintiff thought he had permanently erased. The technician provided the canine officer with a disc of the recovered files and informed him that he would need to review the files in order to locate the desired forms. Upon reviewing the disc, however, the officer found the plaintiff’s instant message conversations as well as other records tending to demonstrate improper off duty conduct by the plaintiff. The canine officer then turned the disc over to the department for its review. On the basis of its review, the department commenced an internal affairs investigation as to both the origins of the recovered thumb drive records and the plaintiff’s fitness for duty as a police officer. Thereafter, on or about October 9, 2007, the town of Enfield (town) and the plaintiff entered into an agreement severing his employment with the town as of July 9, 2008. The agreement referenced, but did not describe in detail, the plaintiffs off duty conduct. In addition, the town agreed that in the event of a request for disclosure of any documents relating to the plaintiffs off duty conduct, it would give the plaintiff notice of the request and an opportunity to object to disclosure of the documents as an invasion of his personal privacy under § 1-210. The town and the plaintiff agreed that the severance agreement, so negotiated, would be in lieu of all further proceedings by the town against the plaintiff on the basis of his off duty conduct.

On October 15, 2007, the Journal Inquirer, Wood and Carlesso requested the town to produce “all records generated or received by the [town], including the [department], in connection with the recent suspension of [the plaintiff].” The request “include[d] but [wa]s not limited to all records related to the facts or allegations that led to the suspension, including facts uncovered by the internal investigation, and all records setting forth the starting and ending dates of the suspension and any effects the suspension may have had on the [plaintiffs] compensation.” In its October 22, 2007 response to the request, the town refused to produce the requested records, claiming that it was prohibited from so doing in light of applicable statutory exemptions under § 1-210 and an objection to disclosure filed by the plaintiff under General Statutes § 1-214 (c).

On October 30, 2007, the Journal Inquirer, Wood and Carlesso appealed to the commission from the town’s refusal to provide them with the requested records. Prior to the hearing, on February 5, 2008, the town released the severance agreement between the plaintiff and the town to the Journal Inquirer, Wood and Carl-esso, which indicated that there had been “disputes between [the plaintiff] and the [department] concerning [the plaintiffs] off-duty conduct” and that “[the plaintiff had] decided to resign his position in lieu of further proceedings.”

On March 14, 2008, the town submitted to the commission, for its in camera review, a series of documents containing instant message conversations between the plaintiff and unidentified individuals together with the findings of the department’s internal affairs investigation (subject records). The town claimed exemptions from disclosure with respect to the subject records under §§ 1-210 (b) (2) and (3) (G) and 1-217. At the hearing before the commission’s hearing officer on March 27, 2008, the town provided the Journal Inquirer, Wood and Carlesso with records documenting the compensation status of the plaintiff after he was suspended and until the severance agreement became effective, as well as a portion of the subject records.

The hearing officer issued a proposed final decision on May 8, 2008, proposing to rule that the subject records do not pertain to a matter of public concern, but only to details of the plaintiffs off duty, private activity. Thereafter, however, at a special meeting on June 17, 2008, the commission voted to reject the hearing officer’s proposed final decision and directed its staff, instead, to prepare a new proposed final decision consistent with the commissioners’ comments at the special meeting. A second proposed final decision, ordering disclosure of all of the subject records without redactions, was approved and issued by the commission as its final decision on August 13, 2008. The plaintiff appealed from this decision to the trial court.

Upon reviewing the subject records in camera, the trial court initially remanded the case to the commission to reconsider its final decision “by reviewing the documents again and discussing whether it is a matter of legitimate public concern to release the verbatim transcripts . . . .” The court retained jurisdiction over the case pending the remand. The commission later issued an amended final decision dated April 21, 2010. In that decision, the commission found that, although the subject records pertained to a matter of legitimate public concern, they should be redacted to exclude certain sexually explicit language and information tending to identify the residential address of the plaintiff. On November 5, 2010, the trial court dismissed the plaintiff’s appeal on the merits, concluding that the commission’s amended final decision complied with the requirements of § 1-210 (b). The court summarily rejected the plaintiff’s claim that its inquiry on his statutory appeal should be governed by the standards recognizing and enforcing the plaintiff’s expectation of personal privacy under the fourth and fourteenth amendments to the United States constitution. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff challenges the trial court’s rejection of his claim of exemption under § 1-210 (b) (2) on two legal bases. First, he contends that, in construing and applying the exemption for disclosures constituting invasions of personal privacy, the commission and the court were obligated to consider and to enforce his constitutional right to privacy under the fourth and fourteenth amendments to the United States constitution. Second, he argues that, even if the constitutional right to privacy is inapplicable to his statutory claim, the subject records satisfy both parts of the established test governing such claims, as articulated by our Supreme Court in Perkins v. Freedom of Information Commission, 228 Conn. 158, 168, 635 A.2d 783 (1993). For the following reasons, we disagree.

A

An appeal from a commission decision is governed by the Uniform Administrative Procedure Act (UAPA). See Board of Pardons v. Freedom of Information Commission, 19 Conn. App. 539, 546, 563 A.2d 314, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989); see also General Statutes § 4-166 et seq. “[W]here aparty appeals pursuant to the jurisdictional grant of the UAPA, the agency action is measured by the standards contained within the UAPA. . . . We, therefore, review the merits of the . . . claims in the context of the limited scope of judicial review afforded by the UAPA to determinations made by an administrative agency. . . . With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . Judicial review of the conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . The present appeal is from the decision of the trial court. We review that decision only to determine whether it was rendered in accordance with the [UAPA].” (Citations omitted; internal quotation marks omitted.) Pet v. Dept. of Health Services, 228 Conn. 651, 660-61, 638 A.2d 6 (1994). Therefore, we must determine whether the court improperly found that the commission was not obligated to review the plaintiffs constitutional claims in the underlying Freedom of Information Act (act) action.

The plaintiff relies on Chairman v. Freedom of Information Commission, 217 Conn. 193, 585 A.2d 96 (1991), for his contention that the court improperly analyzed whether there would be an invasion of his personal privacy under § 1-210 (b) (2) by disclosing the subject records without considering whether his constitutional expectation of privacy would thereby be violated. The plaintiff, however, misconstrues the mandate of Chairman. In Chairman, our Supreme Court concluded that the commission, relying on the precepts of the first amendment to the United States constitution, improperly determined that a public official has minimal or nonexistent rights to personal privacy. Id., 198-99. The court concluded that “[t]he fact that the [act] implicates first amendment concerns of access to information . . . does not necessarily imply that first amendment constraints on the personal privacy rights of public figures control the application of statutory privacy exemptions under the [act]. It cannot be assumed that constitutional precepts that have evolved in the context of civil libel proceedings determine the extent of privacy rights in the entirely different context of the [act].” Id. In other words, the mere fact that the act addresses matters that implicate constitutional concerns does not mean that constitutional standards govern the act. Our Supreme Court’s conclusion in Chairman, therefore, directly contravenes the plaintiffs contention that the court was required to consider his constitutional right to personal privacy in the context of his appeal.

By analogy to the previously described analysis from Chairman, it must be noted that the personal privacy interest protected by the fourth and fourteenth amendments is very different from that protected by the statutory exemption from disclosure of materials, the release of which would constitute an invasion of personal privacy under the act. Whereas the former concerns itself with preventing unreasonable intrusions by the government or its agents into those aspects of an individual’s person, property or activities as to which he has an actual and justifiable expectation of freedom from such governmental intrusions, the latter concerns itself with preventing further disclosure or dissemination by the government of information already in its possession when such disclosure would be highly offensive to a reasonable person and would not promote public awareness of matters of legitimate public interest. The constitutional inquiry under the fourth and fourteenth amendments as to the reasonableness of governmental access to private information simply has no bearing on the potential of such information, if disclosed, to offend reasonable persons or to shed light on matters of legitimate public concern. Accordingly, we conclude that the court did not err in refusing to employ fourth and fourteenth amendment standards to evaluate his claim for an exemption from disclosure of the subject records under § 1-210 (b) (2).

B

Alternatively, the plaintiff claims that the subject records satisfy both parts of the Perkins test governing exemption from disclosure under § 1-210 (b) (2). See Perkins v. Freedom of Information Commission, supra, 228 Conn. 168. More specifically, he contends that, because the content of the subject records is not related to a subject of legitimate public concern and would be highly offensive to a reasonable person, the records should be exempt from disclosure under Perkins. Therefore, he claims that the court’s dismissal of his appeal from the commission’s decision to disclose them was in error. We disagree.

We first set forth the applicable standard of review and governing case law. The plaintiff contends that the commission, in determining whether disclosure was appropriate, made findings of law rather than findings of fact, and thus that the standard of review should be de novo. We disagree. The present case involves applying the well settled meaning of § 1-210 (b) (2) to the facts of this particular case. The appropriate standard of judicial review, therefore, is “whether the commission’s factual determinations are reasonably supported by substantial evidence in the record taken as a whole.” Rocque v. Freedom of Information Commission, 255 Conn. 651, 659-60, 774 A.2d 957 (2001).

We note initially that public policy favors the disclosure of public records. See Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 626, 609 A.2d 998 (1992). “[A]ny exception to that rule [therefore] will be narrowly construed in light of the general policy of openness expressed in the [act] legislation.” (Internal quotation marks omitted.) Ottochian v. Freedom of Information Commission, 221 Conn. 393, 398, 604 A.2d 351 (1992). “The burden of establishing the applicability of an exemption clearly rests upon the party claiming the exemption.” (Internal quotation marks omitted.) Perkins v. Freedom of Information Commission, supra, 228 Conn. 167. “This burden requires the claimant of the exemption to provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why an exemption applies to the materials requested.” New Haven v. Freedom of Information Commission, 205 Conn. 767, 776, 535 A.2d 1297 (1988).

When a claim for exemption is made under § 1-210 (b) (2), the person claiming the exemption must meet a twofold burden of proof. First, he must establish that the files at issue are personnel, medical or similar files. Perkins v. Freedom of Information Commission, supra, 228 Conn. 168. In this case, there is no dispute that the Journal Inquirer, Wood and Carlesso sought disclosure of personnel or similar files. Second, he must prove that disclosure of the files would constitute an invasion of his personal privacy. Id.

The test for determining whether a disclosure constitutes an invasion of personal privacy under § 1-210 (b) (2) was enunciated in Perkins v. Freedom of Information Commission, supra, 228 Conn. 175. There, our Supreme Court held that, “the invasion of personal privacy exception of [General Statutes] § 1-19 (b) (2) [now § 1-210 (b) (2)] precludes disclosure . . . only when the information sought by a request [1] does not pertain to legitimate matters of public concern and [2] is highly offensive to a reasonable person.” (Emphasis added.) Id.

As to the first prong, our Supreme Court has determined that, “where a public official’s private life does not concern or implicate his job as a public official, such information is not a legitimate matter of public concern.” Director, Retirement & Benefits Services Division v. Freedom of Information Commission, 256 Conn. 764, 777, 775 A.2d 981 (2001). In the present case, however, the commission’s findings demonstrate that the plaintiffs conduct did implicate his job as a public official. The commission observed that the subject records were of two types: (1) verbatim transcripts of instant message conversations between the plaintiff and other, unidentified individuals; and (2) documentation from the internal affairs investigation. In evaluating whether the plaintiffs instant message conversations pertained to a legitimate matter of public concern, the commission first noted that they “contain the information which formed the basis for and triggered the internal affairs investigation in this case.” Therefore, the commission found that disclosure of the instant message conversations was “necessary to facilitate the public’s understanding and evaluation of the [department’s] investigative process, decision-making and overall handling of an important matter involving a fellow police officer.”

Furthermore, the commission found that the documentation from the internal affairs investigation “evidence [d] a continuing practice that could pose a danger to portions of the public.” As to the records’ description of the plaintiffs off duty conduct, the commission implicitly determined that the conduct was egregious when it noted that “the more egregious the specific behavior, the more a finding of legitimate public concern is warranted . . . .” The commission also noted that “the fact that [the plaintiff] remained on the payroll of the [town] for ten months after the execution of the severance agreement, as well as the fact that the [t]own agreed to allow [the plaintiff] to have control over the release of his employment records . . . adds to the legitimacy of the public concern in this case.”

On the basis of the foregoing findings, which are well supported by our own in camera review of the subject records, we conclude that the commission’s determination that the subject records implicated legitimate matters of public concern is supported by substantial evidence. Thus, the trial court did not err in upholding the conunission’s decision that the subject records are not exempt from disclosure under § 1-210 (b) (2).

II

The plaintiff also argues before this court that the subject records are exempt from disclosure under § 1-210 (b) (3) (G) because they contain uncorroborated evidence of criminal allegations and thus are subject to destruction pursuant to § 1-216. Because the plaintiff failed to raise this claim before the trial court, we decline to review it on appeal.

Although the plaintiff initially raised the claim that the subject records are exempt from disclosure under § 1-210 (b) (3) (G) in his appeal from the commission’s final decision dated August 13, 2008, he neglected to brief or to argue that claim before the trial court. Thus, after the commission issued its amended final decision, which included, inter alia, a finding that the subject records are not exempt from disclosure under § 1-210 (b) (3) (G), the plaintiff raised no objection to that finding when he challenged the amended final decision on other grounds. The issue, therefore, was never decided by the court.

It is fundamental that claims of error must be distinctly raised and decided in the trial court before they are reviewed on appeal. As a result, Connecticut appellate courts “will not address issues not decided by the trial court.” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998); see also Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670 (1996) (claims “neither addressed nor decided” by trial court not properly before appellate tribunal). Similarly, Practice Book § 60-5 provides in relevant part that our appellate courts “shall not be bound to consider a claim unless it was distinctly raised at the trial . ...” As our Supreme Court has explained, “[t]he reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial — after it is too late for the trial court or the opposing party to address the claim — would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party.” (Internal quotation marks omitted.) State v. Dalzell, 282 Conn. 709, 720, 924 A.2d 809 (2007). We, therefore, conclude that this claim was abandoned at trial and decline to address it.

The judgment is affirmed.

In this opinion the other judges concurred.

       The Journal Inquirer, a newspaper based in Manchester, and Carlesso have not actively participated in any appeals subsequent to the commission’s decision. Accordingly, the commission and Wood are the only defendants participating in the appeal to this court.

       General Statutes § 1-210 (b) provides in relevant part: “Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (2) Personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

       General Statutes § 1-210 (b) provides in relevant part: “Nothing in the Freedom of Information Act shall be construed to require disclosure of . . . (3) Records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . (G) ■uncorroborated allegations subject to destruction pursuant to section 1-216 .. . .”
      Additionally, we note that the plaintiff also claims that the records were subject to destruction pursuant to General Statutes § 1-216. Section 1-216 provides: “Except for records the retention of which is otherwise controlled by law or regulation, records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records. If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records.” Because the issue of destruction is not relevant to the underlying issue of disclosure, we need not address it.

       The plaintiff also claims that the court improperly declined to consider whether public concern over the subject records outweighs his expectation of privacy under the United States constitution. Our Supreme Court has expressly rejected a balancing test for determining what constitutes an invasion of personal privacy for purposes of § 1-210 (b). See Perkins v. Freedom of Information Commission, 228 Conn. 158, 175, 635 A.2d 783 (1993); Chairman v. Freedom of Information Commission, 217 Conn. 193, 200-201, 585 A.2d 96 (1991). We, therefore, conclude that this claim lacks merit.
      Lastly, the plaintiff argues that the court improperly declined to consider whether the department’s search of his thumb drive was an unconstitutional act and violated his expectation of privacy under the United States constitution. More specifically, citing to Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), the plaintiff appears to be asserting that the exclusionary rule applies to the search of his thumb drive. “[U]nder the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality.” (Internal quotation marks omitted.) State v. Boyd, 295 Conn. 707, 717, 992 A.2d 1071 (2010). Because the exclusionary rule does not apply to civil cases; see In re Nicholas R., 92 Conn. App. 316, 321, 884 A.2d 1059 (2005); we conclude that this claim also lacks merit.

       General Statutes § 1-214 (c) provides: “A public agency which has provided notice under subsection (b) of this section shall disclose the records requested unless it receives a written objection from the employee concerned or the employee’s collective bargaining representative, if any, within seven business days from the receipt by the employee or such collective bargaining representative of the notice or, if there is no evidence of receipt of written notice, not later than nine business days from the date the notice is actually mailed, sent, posted or otherwise given. Each objection filed under this subsection shall be on a form prescribed by the public agency, which shall consist of a statement to be signed by the employee or the employee’s collective bargaining representative, under the penalties of false statement, that to the best of his knowledge, information and belief there is good ground to support it and that the objection is not interposed for delay. Upon the filing of an objection as provided in this subsection, the agency shall not disclose the requested records unless ordered to do so by the Freedom of Information Commission pursuant to section 1-206. Failure to comply with a request to inspect or copy records under this section shall constitute a denial for the purposes of section 1-206. Notwithstanding any provision of this subsection or subsection (b) of section 1-206 to the contrary, if an employee’s collective bargaining representative files a written objection under this subsection, the employee may subsequently approve the disclosure of the records requested by submitting a written notice to the public agency.”

       Section 1-217 governs the nondisclosure of residential addresses of certain individuals.

       Our Supreme Court has noted that the public may have a legitimate interest in the integrity of local police departments and in disclosure of how such departments investigate and evaluate citizen complaints of police misconduct. See Hartford v. Freedom of Information Commission, 201 Conn. 421, 435, 518 A.2d 49 (1986).

       Additionally, we note that although, pursuant to Perkins, the finding that the subject records pertain to legitimate matters of public concern is sufficient to negate exemption from disclosure, the commission also determined that some of the language would be highly offensive to a reasonable person and accordingly redacted it from the disclosed records. We conclude that such redaction is appropriate in light of the content of the records. See Rocque v. Freedom of Information Commission, supra, 255 Conn. 665-68 (concluding that sexually explicit language contained in verbatim transcripts was not legitimate matter of public concern and was highly offensive to reasonable person).

       Records subject to destruction under this section are exempt from disclosure pursuant to § 1-210 (b) (3) (G).

       The town, which was initially a codefendant with the plaintiff in the proceeding before the commission, claimed that the subject records constituted those described in § 1-216, and thus that they were exempt from disclosure pursuant to § 1-210 (b) (3) (G). The town raised this claim before both the commission and the trial court. The commission found that the records were not exempt from disclosure pursuant to § 1-210 (b) (3) (G). The court, however, dismissed the town’s appeal for failure to prosecute and thus never adjudicated this claim.

       The commission also determined that the subject records were a legitimate public concern but redacted them in compliance with Perkins.


source: Caselaw Access Project

author: FLYNN, J. ESPINOSA, J.,

license: Public Domain

text:
    GINSBERG AND GINSBERG, LLC, TRUSTEE OF THE WIYOT TRUST v. ALEXANDRIA ESTATES, LLC, ET AL.
    (AC 32479)
    Beach, Espinosa and Flynn, Js.

      Argued November 30, 2011
    officially released July 3, 2012

      Jennifer M. McGrath, with whom, on the brief; was Matthew J. Donovan, for the appellant (plaintiff).

      Joseph A. DiSilvestro, with whom, wasFrankJ. Kolb, Jr., for the appellee (defendant John Neubig).
   Opinion

FLYNN, J.

This case involves a determination of priorities of encumbrances in an action to foreclose an $880,000 mortgage brought by the plaintiff, Ginsberg & Ginsberg, LLC, trustee of the Wiyot Trust, against the defendants, Alexandria Estates, LLC (Alexandria Estates), a mortgagor, and Elizabeth Mazzucco, Ben Mazzucco, Jitendra Patel, Sean Drinan, John Neubig, Empire Paving, Inc., and Statewide Construction, Inc., which was heard by the court on a short calendar motion. The principal issue arises between the plaintiff and Neubig over his claimed entitlement to payment of the sum of $35,000 for each lot that might be developed on the mortgaged premises, which, by virtue of an agreement made between Neubig and Dale Construction 01, LLC (Dale Construction), was recorded on the land records. The trial court rendered judgment for Neubig, holding that Neubig had an interest in the land mortgaged to the plaintiff that was prior to the plaintiffs lien. We reverse that judgment of the court, and further reverse the judgment of strict foreclosure, and remand the case to the trial court for the purpose of determining lien priorities and rendering judgment consistent with this opinion.

In its brief to the trial court, the plaintiff claims that Dale Construction “never had any ownership interest in the property,” and the filing of the agreement did not “bind heirs, successors and assigns of the property . . . whether or not they were recorded prior in time to the mortgage.” In its fourth argument before the court against Neubig’s claim of priority, the plaintiff argued that Neubig’s claim arose by virtue of an agreement between Neubig and Dale Construction, which “never had an interest in the real estate.” Neubig further argued through counsel: “I mean, you talk about something that’s outside of the chain of title, it was never in.” Because it was outside the chain of title, the plaintiff argued that “no title searcher’s ever going to find that, and so what, even if they found it, it doesn’t mean anything, [be] cause [Dale Construction] never owned anything.”

On appeal, the plaintiff claims that the Dale Construction-Neubig filing was outside its chain of title and was a personal agreement that did not run with the land. Resolution of the issues depends on whether the interest Neubig claims was in the plaintiffs chain of title, and whether Neubig has an interest in the mortgaged premises that was a real, as opposed to a personal, covenant that did not run with the land, and whether such interest had priority over the plaintiffs mortgage. The trial court heard oral argument from the attorneys in which they made representations and took briefs, to which they appended documents and deposition extracts, but no evidence was taken from witnesses under oath, no documentary exhibits were marked as exhibits, no stipulation of facts was entered, and there were no admissions in the pleadings on which the court could rely.

Our standard of review is plenary when we are required to determine the intent behind language in a deed or other written instrument by which litigants claim an interest in real estate. Under that plenary standard, we are not required to give customary deference to the trial court’s factual inferences. See Contegni v. Payne, 18 Conn. App. 47, 51, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989).

The plaintiffs principal claims on appeal can be distilled down to two. First, the plaintiff claims that Neu-big’s claimed interest in the land cannot be prior to the plaintiffs mortgage because Neubig’s interest represents only a personal contract or covenant rather than a “real covenant,” which could run with the land. Leaving that argument aside for the moment, there is a second issue on appeal, namely, that the document by which Neubig claimed an interest in the land was not in the plaintiffs chain of title. Specifically, the plaintiff briefs its claim that the August, 2002 agreement, by which Neubig claims an interest, establishes that Dale Construction “never had any ownership interest in the property .... [T]he deed conveying the property from Neubig to Alexandria Estates made no reference to the agreements and there was no reservation in the warranty deed conveying the property to Alexandria Estates that would alert subsequent title holders of the Agreement made between Neubig and Alexandria Estates.”

The principal issues to be decided, namely, whether Neubig’s agreement with Dale Construction is in the plaintiffs chain of title and is a real covenant running with the land, depend necessarily upon a review of the pertinent deeds relating to the parties’ claims. The concept of the chain of title is well explained and expressed in the Connecticut Standards of Title: “The ‘chain of title’ concept is a principle of case law, developed to protect subsequent parties from being charged with constructive notice of the existence and contents of those recorded instruments which a title searcher would not be expected to discover by the customary search of land records. ...” Connecticut Bar Association, Connecticut Standards of Title (1999), standard 2.2.

Key to making any decision in this case is a review of the deed of conveyance from Neubig to Alexandria Estates. If this deed made the conveyance subject to the Neubig-Dale Construction agreement, it bears on the issue as to whether the Neubig agreement is prior to the plaintiffs mortgage. This deed is not in the record before us. We are unable to review this matter without it, and the court could not properly determine priorities without this document.

The judgments are reversed and the case is remanded for further proceedings to determine the order of priorities in accordance with this opinion.

In this opinion BEACH, J., concurred.

ESPINOSA, J.,

concurring in part and dissenting in part. In this foreclosure action, the defendant John Neu-big filed a motion to determine priorities of encumbrances running with the subject property owned by the defendant Alexandria Estates, LLC (Alexandria Estates). Specifically, Neubig claimed that his interest in the subject property was prior in right to that of the plaintiff mortgagee, Ginsberg & Ginsberg, LLC, trustee of the Wiyot Trust. On appeal, the plaintiff challenges the judgment of strict foreclosure on the ground that the court improperly determined that Neubig’s interest was superior to its interest in the property. I agree with my colleagues in the majority that the judgments of the trial court should be reversed. Respectfully, I disagree with the majority that the case should be remanded to that court for further proceedings related to Neubig’s interest in the property. I would direct the court, on remand, to grant the plaintiff priority over any interest of Neubig.

The relevant background facts and procedural history are not in dispute. Neubig was the former owner of the subject property, located in North Haven, having sold it to Dale Construction 01, LLC (Dale Construction), on November 7, 2002, by virtue of a purchase and sale agreement. By mutual agreement, at the time of the closing, Neubig transferred title of the property to Alexandria Estates, which was closely associated with Dale Construction as a business entity. It appears that Alexandria Estates intended to subdivide the property into building lots for the construction of single family homes. In 2007, Alexandria Estates executed a promissory note, promising to pay the plaintiff $860,000 with interest. The note was secured by a mortgage lien on the subject property. In 2008, the plaintiff initiated the present foreclosure action, claiming that Alexandria Estates failed to make a required interest payment on the note. Thereafter, Neubig was made a defendant in the action and filed a motion to determine whether his encumbrance on the subject property was superior to the plaintiffs mortgage hen on the property.

Before the trial court, Neubig attempted to demonstrate the nature of his interest in the subject property by relying on several written agreements filed on the North Haven land records. First, he relied on an agreement between him and Dale Construction, which agreement was recorded on the land records on March 4, 2004. In relevant part, that agreement required Dale Construction to pay Neubig $35,000 for each lot, after the first lot, later approved for residential development on the subject property. Second, Neubig relied on an agreement between him and Alexandria Estates, which was recorded on the land records on November 7, 2002. That agreement required Alexandria Estates to pay Neu-big $35,000 for each lot, after the first lot, later approved for residential development on the subject property. Third, Neubig relied on a notice of equitable interest, recorded on the land records on May 3, 2005. That notice referred to the $35,000 payments due Neubig for approved lots and described with particularity the agreement between him and Dale Construction, which agreement was recorded on the land records.

In concluding that Neubig’s interest was superior to that of the plaintiff, the court specifically relied on the agreement between Neubig and Alexandria Estates, recorded on the land records on November 7, 2002. The court reasoned that the parties intended that the agreement be recorded on the land records. On this ground, the court concluded that the agreement ran wdth the land and, thus, gave Neubig a superior interest to that of the plaintiff.

The dispositive issue is as follows: Was the agreement between Neubig and Alexandria Estates a personal covenant or a real covenant? If the agreement was personal, it cannot be said to have run with the land and, thus, have bound the plaintiff, a future grantee. “For purposes of the distinction between real covenants and personal covenants, a covenant may ‘run with the land,’ or may simply be a matter between the grantor and purchaser. If the covenant does not touch or concern the occupation or enjoyment of the land, it is the collateral and personal obligation of the grantor or lessor and does not run with the land.” 21 C.J.S. 359-60, Covenants § 32 (2006). “A covenant that touches and concerns the land can be one that calls for either doing physical things to the land, or refraining from doing physical things to the land.” Id., p. 359. “Whether a promise with respect to the use of land is a covenant real as distinguished from a personal covenant depends upon the intent of the parties to the promise, to be determined in the light of the attendant circumstances. If it touches the land involved to the extent that it materially affects the value of that land, it is generally to be interpreted as a covenant which runs with the land.” (Emphasis added.) Carlson v. Libby, 137 Conn. 362, 367, 77 A.2d 332 (1950). “A covenant in a deed which restrains the use to which the land may be put in the future as well as in the present and which might very likely affect its value, touches and concerns the land.” Dick v. Sears-Roebuck & Co., 115 Conn. 122, 125, 160 A. 432 (1932). There is no dispute as to what agreements Neubig relied on to demonstrate the nature of his interest in the sub-jectproperty. Thus, the issue is one of law and is entitled to plenary review by this court.

Here, the agreements at issue certainly are related to the land. The agreements contained descriptions of the subject property and included language that appeared to bind the heirs and assigns of the parties. Moreover, the agreements were recorded on the land records. Yet, it cannot be said that the agreements are covenants that touch and concern the land and, thus, run with the land. The agreements require that payment be made to Neubig, the former owner of the subject property, when certain lots on the subject property are approved for subdivision. The agreements do not call for anything to be done to the land, do not call for anything not to be done to the land, do not materially affect the value of the land or restrain the future use of the land. Simply put, the agreements do not concern the occupation or enjoyment of the land by any party. The agreements did not run with the land, but were merely personal covenants between Neubig, on the one hand, and Dale Construction and Alexandria Estates, on the other, that were filed on the land records. The court improperly relied on the agreements to grant Neu-big priority over the plaintiff, which was not bound by the agreements.

I would remand the case to the court with direction to grant the plaintiff priority with respect to Neubig’s claimed interest in the property. On several grounds, I respectfully disagree with the majority’s decision to remand the case to the trial court for the purpose of examining the deed that conveyed the subject property from Neubig to Alexandria Estates.

This is not an action to quiet title. The narrow issue is whether the agreements relied on by Neubig entitle him to priority over the plaintiff, as argued. Neubig did not rely on any language in the deed before either this court or the trial court. There is nothing in the record to suggest that the deed was in any way part of Neubig’s theory of superior priority over the plaintiff. Even if we were to assume that the language in the deed was relevant to the issue before this court, I do not believe that it is proper for this court, on its own initiative, to raise that ground on Neubig’s behalf. There is no claim that Neubig did not avail himself of a full and fair opportunity to present his case before the trial court and to defend his appeal before this court. Because this court is not an advocate for any party; see Nieves v. Cirmo, 67 Conn. App. 576, 587 n.4, 787 A.2d 650 (“[t]he court is not an advocate and should not be placed in a position of making tactical decisions for the attorneys before it”), cert. denied, 259 Conn. 931, 793 A.2d 1085 (2002); I would not look beyond the grounds properly relied on by Neubig, as well as the specific claim of error brought before this court. “It is a bedrock principle of appellate jurisprudence that, generally, claims of error not raised before the trial court will not be considered by a reviewing court. The principle is rooted in considerations of fairness as well as judicial economy.” (Emphasis in original.) State v. Elson, 125 Conn. App. 328, 340-41, 9 A.3d 731 (2010) (en banc), cert. granted on other grounds, 300 Conn. 904, 12 A.3d 572 (2011). Likewise, it is “well established that [appellate] review is limited to claims raised by the parties in their briefs.” Payton v. Payton, 103 Conn. App. 825, 841, 930 A.2d 802 (Schaller, J., concurring), cert. denied, 284 Conn. 934, 935 A.2d 151 (2007); see also Sequenzia v. Guerrieri Masonry, Inc., 298 Conn. 816, 822, 9 A.3d 322 (2010) (reviewing court lacks authority to resolve case on any basis, regardless of claims raised on appeal).

For the foregoing reasons, I concur with the majority’s judgment, insofar as it reverses the judgments of the trial court. I dissent from that portion of the majority’s judgment remanding the case to the trial court for further proceedings to examine the deed conveying the subject property from Neubig to Alexandria Estates.

       The plaintiff withdrew the action against the defendants Elizabeth Maz-zucco on December 3, 2008, and Empire Paving, Inc., on June 28, 2010.

       We note the following procedural history in the case. Before being made a party, the defendant Neubig, by motion dated June 18, 2008, moved to determine priorities. The plaintiff objected to that motion because Néubig was not then a party. When Neubig sought to become a party by motion dated May 5, 2008, the court, Crawford, J., denied his motion on June 9, 2008. Subsequently, the plaintiff filed a motion to join Neubig and others, which was granted by the court. Service was made on Neubig on June 26, 2008, joining him and other defendants in the foreclosure action. The defendant Neubig then moved again to determine priorities by motion dated September 8, 2008. That was granted by the court, Abrams, J., on February 13, 2009, and by memorandum of decision dated and filed July 31, 2009. A final judgment of strict foreclosure was rendered on June 28, 2010. The plaintiff appealed from both the July 31,2009 order, finding Neubig’s interest in the foreclosed property prior in right to the plaintiffs interest, and from the judgment of strict foreclosure rendered on June 28, 2010.

       On appeal, the plaintiff also argued in its brief, “[l]ikewise, here, all agreements were outside the chain of title; most notably, the August 2002 agreement executed by Neubig and Dale Construction, which never had any ownership interest in the property, and the May 2005 agreement which merely attempted to remedy the fact that Dale Construction had no authority to enter a contract that could run with the land. Moreover, the deed conveying the property from Neubig to Alexandria Estates made no reference to the agreements and there was no reservation in the warranty deed conveying the property to Alexandria Estates that would alert subsequent title holders of the agreement made between Neubig and Alexandria Estates.” The dissent takes no account of this claim in the appellate brief nor the argument of the plaintiffs trial counsel that the Dale Construction-Neubig agreement was outside the chain of title. It contends that the dispositive issue is whether the Neubig-Alexandria Estates agreement was a real or personal covenant. We disagree that the trial court or this court, exercising plenary review, could make the determination of priorities in title without the deed of conveyance from Neubig to Alexandria Estates. What the dissent does not contemplate is that if the conveyance from Neubig to Alexandria Estates were expressly made subject to the Dale Construction-Neubig agreement, it could burden the land and be prior to the plaintiffs later recorded mortgage. The Neubig-Alexandria Estates deed was not placed before the trial court in any manner.

       The parties entered no stipulation of facts and marked no exhibits in evidence. They did attach uncertified copies of deeds and deposition extracts to their briefs, which they did not seem to disagree about, but attached no copy of the Neubig deed to Alexandria Estates. We take no position in this appeal about whether that is the proper way to present evidence bearing on who is a prior or subsequent encumbrancer on the title in question.

       Although it is not dispositive of the issue before this court, it is worth noting by way of background Neubig’s unchallenged assertion that Alexandria Estates was an assign of Dale Construction, such that Dale Construction’s agreement bound Alexandria Estates. He asserted that “[e]ach was the alter ego of the other as the companies were closely held within the same family and Alexandria Estates . . . was formed for the sole purpose of holding the property in question.”

       The agreement between Neubig and Dale Construction, recorded on March 4, 2004, stated in relevant part: “The covenants and stipulations of this agreement shall apply to and bind the heirs, executors, administrators, successors and assigns of the respective parties hereto.” That agreement, like the agreement between Neubig and Alexandria, recorded on November 7, 2002, included, in “Schedule A,” a detailed description of the property at issue.


author: BISHOP, J.

text:
    TOWN OF STRATFORD v. ERIC CASTATER
    (AC 33314)
    DiPentima, C. J., and Bear and Bishop, Js.

      Argued March 5
    officially released July 3, 2012

      Michael S. Casey, for the appellant (plaintiff).

      Frank B. Cochran, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff, the town of Stratford, appeals from the judgment of the trial court, rendered in favor of the defendant, Eric Castater, after a court trial. On appeal, the plaintiff claims that the court improperly (1) concluded that its claim for money had and received was unavailing because the cash out benefits were authorized, (2) concluded that the payment was not detrimental to the plaintiff and (3) balanced the equities of the two parties. We affirm the judgment of the trial court.

The following procedural history and facts, as found by the court, are relevant to our discussion of the issues on appeal. From March 9, 2009, through December 11, 2009, the defendant was employed as the assistant to James Miron, who served as the plaintiffs mayor from December 11,2005, through December, 2009. The defendant’s responsibilities required him to work in close concert with the mayor. He was a salaried full-time employee and entitled to benefits pursuant to policies incorporated in his employment agreement. The employment agreement, in turn, provided that although the defendant’s employment could be terminated without notice during the first six months of his employment, he could be discharged after the initial six months only with sixty days advance notice or immediately without advance notice subject to the plaintiffs paying “full salary and benefits for the sixty (60) day calendar period immediately following your date of termination.” This written employment contract, in turn, incorporated by reference an appendix, effective July 1, 2008, that fisted the benefits package applicable to the defendant’s position as a nonunion aide to the mayor. These benefits included five personal days per calendar year, ten professional development days, ten vacation days and ten days of sick leave, all prorated in the first year of employment based on the starting month and accruing as of January 1 after the initial year. The agreement provided, as well, that unused vacation and sick leave could be “cashed out” upon termination of employment, but it did not contain a similar provision regarding unused personal and professional development days. It did provide that “[p]erfect attendance days are eliminated.” Finally, and significantly, paragraph XX of the agreement contained the following provision: “This benefits description is for information only and may be changed, altered or modified by the [plaintiff] prospectively in the discretion of the Mayor. Except as otherwise provided in an employment letter, any such revisions shall not adversely affect leave balance accruals or payouts. Except for that limitation, any such revisions will supercede those provided in this package. Employees will be notified of any such changes by communication from the Mayor, the CAO or the HR Director.”

Once Miron lost his bid for reelection in November, 2009, he decided to terminate the defendant’s employment. By letter dated December 4, 2009, Miron advised the defendant that his employment was terminated effective December 11,2009, and that the plaintiff would pay “full salary and benefits for the next sixty calendar” days. On the same date, Miron retroactively rescinded the provision in the agreement eliminating payment for perfect attendance days as it related to employees in the defendant’s category. A contemporaneous termination notice approved by Miron set forth the categories and accrued hours of benefits and salary that the defendant was to receive as “cash-out” benefits. It was Miron’s view at the time, and the defendant’s during litigation, that the mayor had broad authority to modify the employment agreement to include termination benefits for professional development days and perfect attendance. On December 11, 2009, the plaintiff issued payments to the defendant in accordance with the terms of his termination notice as approved by Miron, the mayor at the time.

Later, in January, 2010, after a new administration had taken office, the plaintiff notified the defendant that it was contesting the scope and extent of the benefits he had received as part of his termination package. Also, based on the distribution received by the defendant in conjunction with the termination of his employment, he was informed by the state department of labor’s unemployment compensation department (department) that he would be ineligible for unemployment compensation through March 13,2010. Notwithstanding the plaintiff’s position that it overpaid the defendant in December, 2009, the defendant made no repayment to the plaintiff. He did not make any claims against the plaintiff arising from the termination of his employment or tenure as a municipal employee, and he did not appeal from the decision of the department concerning his date of eligibility for unemployment compensation.

The plaintiff thereafter brought this action. In the first count, the plaintiff alleged a cause of action for money had and received. More specifically, the plaintiff claimed that it overpaid the defendant in the amount of $4744.37, that it had no moral or legal obligation to make the overpayment, that it was entitled to be repaid the amount of the overpayment, and that, even though the defendant in equity and good conscience had no right to retain the overpayment, he refused to reimburse the plaintiff for the amount of the overpayment. In the second count, the plaintiff repeated the operative allegations of the first count and added to them the allegation that the defendant did not earn and was not otherwise entitled to the overpayment and that his continued retention of the unwarranted benefit resulted in unjust enrichment. Finally, in count three, sounding in conversion, the plaintiff repeated the allegations of count one and added to them a claim that although the plaintiff had demanded repayment of funds rightly belonging to it, the defendant had assumed and exercised ownership and control over such funds to the plaintiffs detriment.

In response to the complaint, the defendant filed an answer, generally denying the inculpating allegations of the complaint. Additionally, the defendant filed three special defenses. In his first special defense, he alleged that he had accepted payment in full settlement of claims he could have made against the plaintiff, including the termination of his employment contract, that the plaintiff had informed the state of all payments made to him for purposes of calculating his eligibility for unemployment compensation, and that the conduct of the parties amounted to an accord and satisfaction for all claims arising from his employment and termination. The defendant alleged in his second special defense that he had paid all applicable federal and state income taxes on the amounts paid to him by the plaintiff and that he did not appeal from the decision of the department denying benefits to him for the period of time encompassed by the disputed distribution to him. Finally, in his third special defense, the defendant claimed that the plaintiffs newly elected mayor, shortly after he took office, cast aspersions on him by publicly stating that he was going to seek repayment of amounts improperly paid to the defendant and, as a result, the defendant’s reputation had been sullied, requiring him to seek counsel and making it more difficult for him to secure employment. The defendant claimed, in this special defense, that, because of this conduct, the plaintiff was guilty of unclean hands in its quest for repayment of funds paid to him. Finally, in a pleading captioned “Motion for Judgment,” the defendant sought not only judgment on his behalf but an award of counsel fees from the plaintiff.

During trial, the court dismissed the third count of the complaint for failure to make out a prima facie case and thereafter rendered judgment in favor of the defendant on counts one and two of the complaint. The court concluded, as to the first count, that the payments to the defendant were authorized and, to the extent that the defendant was overpaid by Miron because he exceeded his authority or made factual mistakes leading to the amount of the benefits paid, the plaintiff, nevertheless, did not have a superior right in equity to repayment by the defendant. Balancing the equities, the court determined that it would be inequitable to require the defendant to return the disputed payments to the plaintiff pursuant to the plaintiffs claim for money had and received. Additionally, as to the count alleging unjust enrichment, the court concluded that the plaintiff suffered no detriment in making the disputed payments to the defendant and that the defendant, moreover, had paid taxes on the amounts received and that his receipt of unemployment benefits was delayed due to his receipt of the disputed benefits. Therefore, the court concluded, the equities balanced in favor of the defendant retaining the distribution he received from the plaintiff. This appeal followed.

I

The plaintiff claims that the corat improperly concluded that its claim for money had and received was inapplicable because the cash out benefits were authorized. More specifically, the plaintiff contends that the mayor did not have the broad powers to modify the employment agreement. We need not reach the merits of the plaintiffs claim regarding the mayor’s authority because we affirm the decision of the trial court on the ground that the court properly exercised its equitable powers.

As a prelude to our assessment of the court’s decision, we set forth the parameters of the relevant deci-sional law. An action for money had and received has an ancient pedigree. “Common-law courts construed the action of general or indebitatus assumpsit broadly so as to be applicable on equitable or moral grounds. From the early seventeenth century, common-law courts implied an assumpsit, or promise, whenever a contractual debt was found to exist. . . . Ultimately the action of general assumpsit was extended to contracts implied in law (now referred to as quasi contracts), which included contracts founded on a statutory duty to pay money, in which the assumpsit was a pure fiction. . . . Courts frequently upheld actions in general assumpsit when the defendant would otherwise be unjustly enriched. . . . Thus, this court [has] held that when money is paid by one on the basis of a mistake as to his rights and duties and the recipient has no right in good conscience to retain the money, an action of indebitatus assumpsit may be maintained to recover the money, regardless of whether the mistake was one of fact or of law. . . . The action of indebitatus assumpsit for the recovery of money had and received, and for money paid ... is an action of the common law, but, to a great extent, an equitable action, adopted for the enforcement of many equitable, as well as legal rights. And it is a fundamental principle of this action, that it lies for the recovery of money, which, ex aequo et bono, ought to be paid over to the plaintiff; and that the law, in case of such equity, will imply a promise to pay it.” (Citations omitted; internal quotation marks omitted.) Westport v. Bossert Corp., 165 Conn. 410, 413-14, 335 A.2d 297 (1973). In a similar vein, our Supreme Court opined: “The action for money had and received is an equitable action to recover back money paid by mistake where the payor is free from any moral or legal obligation to make the payment and the payee in good conscience has no right to retain it. Is the plaintiff in this action, as between it and the defendant, in equity and good conscience entitled to the money? If it is, then it is entitled to recover. The real ground of recovery is the equitable right of the plaintiff to the money.” Bridgeport Hydraulic Co. v. Bridgeport, 103 Conn. 249, 261-62, 130 A. 164 (1925).

Furthermore, “[e]quitable remedies are not bound by formula but axe molded to the needs of justice. . . . The court’s determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings . . . that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve 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.) Stewart v. King, 121 Conn. App. 64, 71, 994 A.2d 308 (2010).

In the case at hand, the court determined that the mayor had the authority to make the disputed payments and that the payee had the right, in equity, to retain the payments. As to the mayor’s authority, the plaintiff argued that the town charter (charter) gives to the town council “the power to make, alter and repeal resolution^] and ordinances . . . relative to the appropriation of [flown funds” and that the charter provides, as well, that the council has the authority to “fix [the] salaries . . . of all . . . Mayoral appointees [and] shall further have the power to approve or disapprove wage and salary schedules recommended by the Mayor for administrative department employees . . . .” (Citation omitted; internal quotation marks omitted.) In response to this argument, however, the court pointed out: “These provisions not only fail to cover the issue of termination of employment, but also do not address the extent of the mayor’s authority regarding personnel decisions.” The court noted, as well, that the charter gives the mayor broad authority to administer and supervise “all departments, agencies and offices of the [plaintiff]” and specifically to “act as the bargaining agent ... in all labor and employment matters . . . .” Finally, the court noted, the charter provides: “The power to appoint persons to employment, granted to the Mayor by this charter, shall be exercised solely and exclusively by him or her.” From the charter language, the court concluded: “These provisions suggest abroad grant of authority to the town’s mayor, by virtue of the town charter, regarding personnel decisionfs]. The appendix to the employment agreement . . . reinforces that conclusion in the provision which specifies that the mayor can modify, change or alter the benefit descriptions in his discretion.” (Citation omitted; internal quotation marks omitted.)

Although the plaintiff contests the court’s conclusions regarding the mayor’s authority to alter the defendant’s benefits package unilaterally, we need not resolve the issue of the mayor’s authority in order to resolve the appeal. Because, in this form of action, the plaintiff must prove both that the mayor lacked the authority to make a payment and that it would be inequitable for the payee to retain the payment, we may affirm the court’s judgment upon proof either that the payment was authorized or that its retention by the defendant is equitable under all the circumstances. Consequently, if we conclude that the court properly determined that the defendant has no obligation, in equity, to return the payment, we need not address the question of whether the payment was authorized or the product of a mistake by Miron. We turn, then, to the court’s assessment of whether the defendant had any obligation to repay any funds to the plaintiff.

In making this assessment, the record makes it amply clear that the court balanced the equities. The court stated: “Even if Miron were mistaken as to the extent of his authority or if factual mistakes were made in calculating the benefits, there is no evidence that [the defendant] knew of those mistakes ... or demanded or induced the payment. Thus, the court concludes [the defendant] acted in good faith and justifiably accepted the ‘cash out’ benefits paid to him upon his termination. Furthermore, the defendant not only paid taxes on the ‘cash out’ benefits, but their receipt delayed his eligibility date to collect unemployment benefits. In balancing the equities, as the court is required to do for this cause of action, the court concludes that [the defendant] has a right ‘in good conscience’ to retain the ‘cash out’ benefits that he received from the [plaintiff].” (Citation omitted.)

On the basis of the court’s factual findings, as amply supported by the record, we do not find that the court abused its discretion in balancing the equities in favor of the defendant’s retention of the disputed payments. Thus, the court did not err in deciding, as a matter of equity, that the defendant had no obligation to repay the plaintiff based on its claim of money had and received.

n

The plaintiff next claims that the court improperly rendered judgment in favor of the defendant on its claim for unjust enrichment. More specifically, the plaintiff contends that the court improperly concluded that the payment to the defendant was not detrimental to the plaintiff. We disagree.

Although related to the plaintiffs first claim because it is similarly “broad and flexible” and, like that claim, is based on “the principle that it is contrary to equity and good conscience for a defendant to retain a benefit that has come to him at the expense of the plaintiff’; Gagne v. Vaccaro, 255 Conn. 390, 409, 766 A.2d 416 (2001); a claim of unjust enrichment has different requirements. “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.” (Citations omitted; internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 282-83, 649 A.2d 518 (1994). It is the plaintiffs burden to prove the elements of a claim of unjust enrichment, including that the defendant was benefited. See New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 451-52, 970 A.2d 592 (2009).

“[T]he determinations of whether . . . particular [facts constitute the elements of unjust enrichment] are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve 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.” (Citations omitted; internal quotation marks omitted.) Ayotte Bros. Construction Co. v. Finney, 42 Conn. App. 578, 581, 680 A.2d 330 (1996). Finally, unjust enrichment results when “it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff.” (Internal quotation marks omitted.) National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985); see also Pokorny v. Getta’s Garage, 219 Conn. 439, 462, 594 A.2d 446 (1991).

As with the claim for money had and received, the court determined that the plaintiff had failed to demonstrate that the defendant had been unjustly enriched by the amount and character of the plaintiffs “cash out” payment to him. The court determined, as well, that the plaintiff had not suffered any detriment in making the disputed payment to the defendant. It is clear from the court’s comprehensive and thorough memorandum of decision that the court considered all the factual circumstances and factors relevant to the plaintiff’s unjust enrichment claim, as it did in regard to the related claim for money had and received, in arriving at its conclusion that it would be equitable for the defendant to retain the disputed payments. As to the plaintiff’s claim that payment of the disputed benefits was adequate proof of detriment itself, the court concluded that the plaintiff did not suffer any detriment by making the disputed payments and that, because the defendant paid taxes on the benefits received and his receipt of unemployment benefits was delayed by reason of his receipt of the disputed funds, it would be inequitable to require him to make restitution to the plaintiff.

On the basis of our review of the record, and the court’s thorough analysis of the issues at hand, we conclude that the court did not abuse its discretion in denying the plaintiffs claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the plaintiff organizes its appeal into three separate claims, we do not address its third claim regarding the balancing of the equities independently because we address the merits of that claim throughout our discussion of the first two claims.

       At trial and in their appellate briefs, both parties also made reference to provisions of the town charter. The plaintiff argues that relevant charter provisions indicate that the town council has overarching authority regarding financial and personnel matters, while the defendant argues that the charter clearly indicates that the mayor serves as the plaintiffs chief administrative officer and, as such, has the authority to act as the mayor did in this instance. For reasons set forth in this opinion, we need not resolve the parties’ disputed claims regarding the mayor’s authority because we find no abuse of discretion in the court’s determination that it would not be equitable to require the defendant to return the disputed disbursements to the plaintiff.

       The notice included the following: “Vacation 150.00 [hours] . . . Perfect Attendance Days 22.50 [hours] . . . Sick Leave 137.50 [horns] . . . Professional [Development] Days 150.00 [horns] . . . Notice Provision 330.00 [hours].”

       The court also denied the defendant’s motion for counsel fees after which the defendant separately appealed, claiming that the court’s order denying his request for fees was improper. The defendant’s appeal is the subject of a related opinion published simultaneously with this opinion. See Stratford v. Castater, 136 Conn. App. 535, 46 A.3d 953 (2012).


author: DiPENTIMA, C. J.

text:
    TOWN OF STRATFORD v. ERIC CASTATER
    (AC 33494)
    DiPentima, C. J., and Bear and Bishop, Js.

      Argued March 5
    officially released July 3, 2012

      Frank B. Cochran, for the appellant (defendant).

      Michael S. Casey, for the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

The defendant, Eric Castater, appeals from the denial of his motion for attorney’s fees. Specifically, the defendant claims that the court (1) improperly concluded that the plaintiff, the town of Stratford, did not bring the underlying action in bad faith, (2) improperly concluded that General Statutes § 31-72 was inapplicable to the present case and (3) failed to follow proper procedure in denying him attorney’s fees. We affirm the judgment of the trial court.

The facts underlying this appeal are set forth by this court in Stratford v. Castater, 136 Conn. App. 522, 46 A.3d 953 (2012), a related case released on the same date as this opinion. The following additional facts are necessary for the resolution of this appeal. In 2010, the plaintiff brought the underlying action in three counts: money had and received, unjust enrichment and conversion. The action sought the return of $4744.38 that allegedly had been paid improperly to the defendant upon the termination of his employment. The court rendered judgment in favor of the defendant. Thereafter, the defendant filed a motion seeking an order of reasonable attorney’s fees. The plaintiff filed an objection to this motion. The court denied the defendant’s motion for attorney’s fees. The defendant filed amotion to reconsider, which was denied. This appeal followed.

I

The defendant first claims that the court should have concluded that the plaintiff brought the underlying action in bad faith. Specifically, the defendant argues that the court should have found bad faith where (1) there were news reports that a subsequent political administration was threatening to file this action in order to scapegoat the defendant and carry out its feud with the previous political administration and (2) there was no legal basis for recovery under any of the causes of action alleged by the plaintiff. We disagree.

“The general rule of law known as the American rule is that attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. . . . This rule is generally followed throughout the country. . . . Connecticut adheres to the American rule. . . . There are few exceptions. For example, a specific contractual term may provide for the recovery of attorney’s fees and costs ... or a statute may confer such rights. . . . This court also has recognized a bad faith exception to the American rule, which permits a court to award attorney’s fees to the prevailing party on the basis of bad faith conduct of the other party or the other party’s attorney. . . . Broadnax v. New Haven, [270 Conn. 133, 178, 851 A.2d 1113 (2004)]; id., 178-79 (trial court properly denied motion for attorney’s fees in declaratory judgment action challenging practice of underfilling positions in city’s fire department); see also Maris v. McGrath, 269 Conn. 834, 844, 850 A.2d 133 (2004) ([i]t is generally accepted that the court has the inherent authority to assess attorney’s fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons . . .); Peterson v. Norwalk, 152 Conn. 77, 80, 203 A.2d 294 (1964) (trial court properly denied plaintiffs request for attorney’s fees in declaratory judgment action against city’s public utility commission because [n] either the statutes nor the rules provide for an allowance for counsel fees in declaratory judgment actions).” (Internal quotation marks omitted.) ACMAT Corp. v. Greater New York Mutual Ins. Co., 282 Conn. 576, 582-83, 923 A.2d 697 (2007).

Furthermore, “[s]ubjectto certain limitations, atrial court in this state has the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated. . . . To ensure . . . that the award of attorneys’ fees against them will not deter persons with colorable claims from pursuing those claims, we have declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes . . . and a high degree of specificity in the factual findings of [the] lower courts. . . . Whether a claim is colorable, for purposes of the bad-faith exception, is a matter of whether a reasonable attorney could have concluded that facts supporting the claim might be established, not whether such facts had been established. ... To determine whether the bad faith exception applies, the court must assess whether there has been substantive bad faith as exhibited by, for example, a party’s use of oppressive tactics or its wilful violations of court orders; [t]he appropriate focus for the corut ... is the conduct of the party in instigating or maintaining the litigation. ... As applied to a party, rather than to his attorney, a claim is colorable, for purposes of the bad faith exception to the American rule, if a reasonable person, given his or her first hand knowledge of the underlying matter, could have concluded that the facts supporting the claim might have been established.” (Citations omitted; internal quotation marks omitted.) Hirschfeld v. Machinist, 131 Conn. App. 364, 369-70, 27 A.3d 395, cert. denied, 302 Conn. 947, 30 A.3d 1 (2011). “[W]e review the trial court’s decision to award attorney’s fees for abuse of discretion.” (Internal quotation marks omitted.) Broadnax v. New Haven, supra, 270 Conn. 178.

We conclude that the court properly denied the defendant’s claim for attorney’s fees. Here, the court determined that the plaintiffs case against the defendant was not frivolous and, accordingly, that the defendant failed to satisfy the test for the bad faith exception to the American rule. The court noted that although it had concluded during the trial that the plaintiff “had failed to make out a prima facie case on the third count of the complaint, the court did not draw that conclusion as to the first and second counts of the complaint . . . .” The court also explained that the defendant misconstrued the court’s decision in his favor as an implicit conclusion that the plaintiff had not presented colorable claims. The court stated that “[b]oth sides made arguments in good faith to the court regarding the applicability of the law to the facts proven.” See Gianetti v. Norwalk Hospital, 304 Conn. 754, 816-17, 43 A.3d 567 (2012) (affirming denial of attorney’s fees where trial court specifically found that defendant had not acted in bad faith); ACMAT Corp. v. Greater New York Mutual Ins. Co., supra, 282 Conn. 583 (trial court improperly awarded attorney’s fees where court did not make finding of bad faith and no other exceptions to American rule applied); cf. Hirschfeld v. Machinist, supra, 131 Conn. App. 370 (trial court did not abuse discretion in imposing sanctions where court found plaintiffs actions were in bad faith).

The court also rejected the defendant’s argument that the plaintiffs “objection to his request for permission to file a motion for summary judgment and his request to amend his answer, as well as its unwillingness to engage in any form of alternate dispute resolution, rise to the level of bad faith . . . .” See ACMAT Corp. v. Greater New York Mutual Ins. Co., supra, 282 Conn. 594 (trial court improperly granted attorney’s fees where court found that plaintiff failed to prove that defendant acted in bad faith, and there was no claim of a statutory or contractual basis for award). The defendant argues that the plaintiff “brought this action fully aware that it was seeking to reopen a contract of employment that had been terminated to the satisfaction of both parties, without fraud and according to applicable statutory provisions relating to the payment (‘cash-out’) of benefits and to withholding taxes,” citing General Statutes § 31-76k. As we have stated, however, the court rejected the defendant’s argument that the plaintiff brought the action in bad faith. The court also noted that the plaintiff was under no legal obligation to resolve its claims against the defendant through an alternative dispute resolution process. Thus, the court concluded that the defendant did not show that the plaintiff had acted in bad faith or that the plaintiffs action was frivolous. We therefore conclude, on the basis of our review of the record, that the court did not abuse its discretion in denying the defendant’s request for attorney’s fees.

n

The defendant claims that the court improperly concluded that § 31-72 was inapplicable to his claim for attorney’s fees. Specifically, the defendant argues that the court (1) should have considered the public policy expressed in § 31-72 when deciding whether the American rule should be applied to bar his claim for attorney’s fees and (2) erred in holding that § 31-72 should be so strictly construed as to provide no support for his claim for attorney’s fees. We disagree.

The defendant’s claim presents a question of statutory interpretation, over which our review is plenary. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Fennelly v. Norton, 294 Conn. 484, 492-93, 985 A.2d 1026 (2010).

Section 31-72 provides, in relevant part: “When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-7U, inclusive, or fails to compensate an employee in accordance with section 31-76k or where an employee or a labor organization representing an employee institutes an action to enforce an arbitration award which requires an employer to make an employee whole or to make payments to an employee welfare fund, such employee or labor organization may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action. . . .” (Emphasis added.)

The defendant’s claim fails for two reasons. First, as noted previously, the court did not make a finding of bad faith, arbitrariness or unreasonableness. Our Supreme Court has stated: “Connecticut follows the American rule, a general principle under which, attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception. ... In the present case, § 31-72 provides the statutory predicate for an award of reasonable attorney’s fees to prevailing plaintiffs; it is well established, however, that it is appropriate for a plaintiff to recover attorney’s fees, and double damages under that statute, only when the trial court has found that the defendant acted with bad faith, arbitrariness or unreasonableness.” (Citation omitted; emphasis added; internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 268-69, 828 A.2d 64 (2003).

Second, the language of the statute does not support an award of attorney’s fees under these facts. Here, the court noted that § 31-72 was inapplicable because the defendant “was paid his fringe benefits upon termination and did not have to file suit to collect them . . . .” The court, therefore, reasoned that § 31-72 only provides for the recovery of attorney’s fees where the employee is the party making a claim against the employer under § 31-72, citing the principle that statutes providing for the recovery of attorney’s fees are in derogation of the common law and are strictly construed. The defendant argues that because § 31-72 is a remedial statute and therefore is entitled to liberal construction; see Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 240; the principle of strict construction relating to attorney’s fees should be disregarded. We conclude, to the contrary, that the court properly invoked the doctrine of strict construction because the underlying action does not fall within those actions envisaged by § 31-72. The plain language of § 31-72 specifically provides remedies for employees who bring civil actions against employers for unpaid wages. This statute does not encompass the present situation, where an employee was sued by an employer under theories of money had and received, unjust enrichment and conversion. See Fennelly v. Norton, supra, 294 Conn. 504-505 (“[W]hen a statute is in derogation of common law . . . it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction. ... In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope.'” [Emphasis added; internal quotation marks omitted.]). Therefore, the court properly concluded that § 31-72 was inapplicable to the defendant’s claim for attorney’s fees.

Ill

Finally, the defendant claims that the court improperly failed to follow proper procedure in denying his motion for attorney’s fees. Specifically, the defendant argues that the court abused its discretion in failing to schedule a hearing on his motion to reargue or for reconsideration, as well as his motion for attorney’s fees. We disagree.

“Whether to allow counsel fees and in what amount calls for the exercise of judicial discretion. . . . Generally, when the exercise of the court’s discretion depends on issues of fact which are disputed, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Citation omitted; internal quotation marks omitted.) Esposito v. Esposito, 71 Conn. App. 744, 747, 804 A.2d 846 (2002).

Here, the defendant requested a hearing on his motion for attorney’s fees for the first time in his motion for reconsideration. In the motion for reconsideration, the defendant’s counsel specifically stated that “[o]n Thursday, March 31, 2011, counsel marked the motion ‘take on the papers’: no objection had been made.” It is well established that “[t]he knowledge and admissions of an attorney are imputed to his client.” Lafayette Bank & Trust Co. v. Aetna Casualty & Surety Co., 177 Conn. 137, 140, 411 A.2d 937 (1979). Thus, even assuming that the defendant had a right to a hearing on his motion for attorney’s fees, he waived that right when his counsel marked the motion for attorney’s fees “ ‘take on the papers’ the later request for a hearing on the motion for reconsideration, therefore, was ineffective. See, e.g., LPP Mortgage, Ltd. v. Lynch, 122 Conn. App. 686, 697-98, 1 A.3d 157 (2010) (defendants waived right to challenge award of attorney’s fees by expressly approving court’s formula). The defendant cites no authority, nor are we aware of any, in support of his argument that the trial court was obligated to hold a hearing on the motion for reconsideration itself. “[A] motion to reargue ... is not to be used as an opportunity to have a second bite of the apple . . . .” (Internal quotation marks omitted.) Opoku v. Grant, 63 Conn. App. 686, 692-93, 778 A.2d 981 (2001). Therefore, we conclude that the court did not abuse its discretion in not holding a hearing on the defendant’s motion for attorney’s fees and on his motion to reargue or for reconsideration.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-72 provides: “When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-71Í, inclusive, or fails to compensate an employee in accordance with section 31-76k or where an employee or a labor organization representing an employee institutes an action to enforce an arbitration award which requires an employer to make an employee whole or to malte payments to an employee welfare fund, such employee or labor organization may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court, and any agreement between him and his employer for payment of wages other than as specified in said sections shall be no defense to such action. The Labor Commissioner may collect the full amount of any such unpaid wages, payments due to an employee welfare fund or such arbitration award, as well as interest calculated in accordance with the provisions of section 31-265 from the date the wages or payment should have been received, had payment been made in a timely manner. In addition, the Labor Commissioner may bring any legal action necessary to recover twice the full amount of unpaid wages, payments due to an employee welfare fund or arbitration award, and the employer shall be required to pay the costs and such reasonable attorney’s fees as may be allowed by the court. The commissioner shall distribute any wages, arbitration awards or payments due to an employee welfare fund collected pursuant to this section to the appropriate person.”

       The defendant also claims that the court abused its discretion under “all circumstances present,” in denying his motion for attorney’s fees. Because the court properly concluded that no common-law or statutory exception to the American rule applied here, we need not address this claim.

       “The action of indebitatus assumpsit for the recovery of money had and received, and for money paid ... is an action of the common law, but, to a great extent, an equitable action, adopted for the enforcement of many equitable, as well as legal rights. And it is a fundamental principle of this action, that it lies for the recovery of money, which, ex aequo et bono, ought to be paid over to the plaintiff; and that the law, in case of such equity, will imply a promise to pay it.” (Emphasis in original; internal quotation marks omitted.) Westport v. Bossert Corp., 165 Conn. 410, 414, 335 A.2d 297 (1973).

       The defendant also claims, essentially, that the court “failed to follow pertinent case law” in that it did not follow the “alternative” tests for the bad faith exception to the American rule set forth in Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 254-55, 828 A.2d 64 (2003). The defendant argues that under Schoonmalcer, “if a party either seeks the action for oppressive reasons or is unable to articulate a good faith argument, the successful opponent may seek fees.” In Schoonmalcer, our Supreme Court stated that a “plaintiff who brings or maintains a frivolous action engages in bad faith litigation conduct” and may be hable for attorney’s fees. Schoonmaker v. Lawrence Brunoli, Inc., supra, 254. Our Supreme Court noted that it previously had adopted the definition of a frivolous action set forth in rule 3.1 of the Rules of Professional Conduct. Id. A comment to this rule had explained that an “action is frivolous ... if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.” (Emphasis in original; internal quotation marks omitted.) Id., 254-55.
      Subsequent to Schoonmaker, however, our Supreme Court has stated that it has “declined to uphold awards under the bad-faith exception absent both clear evidence that the challenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes . . . .” (Emphasis added; internal quotation marks omitted.) Maris v. McGrath, 269 Conn. 834, 845, 850 A.2d 133 (2004). We need not address the defendant’s claim because the court concluded that the plaintiff, although it did not prevail in the underlying litigation, asserted colorable claims and did not act in bad faith. Thus, we need not address the issue of whether the standard in Schoonmaker is still good law, because even under that standard, the court properly rejected his claim for attorney’s fees.

       Although the defendant’s brief does not expressly claim that the court should have held a hearing on the motion for attorney’s fees, he does appear to assert this argument in his brief.

       The plaintiff filed a timely objection to the motion for attorney’s fees, stating that “[i]f the court is inclined to award attorney’s fees based on [the] defendant’s assertion that this matter is frivolous, the plaintiff moves for a hearing to specifically address the charge.” This request by the plaintiff specifically was conditioned on the court’s inclination to award attorney’s fees and has no bearing on the defendant’s affirmative waiver of his right to a hearing.