author: BISHOP, J. FLYNN, C. J.,

text:
    MICHAEL FEINBERG v. JOANNE FEINBERG
    (AC 26999)
    Flynn, C. J., and Bishop and Pellegrino, Js.

      Argued February 4
    officially released May 26, 2009

      Steven D. Ecker, for the appellant (defendant).

      Michael S. Feinberg, pro se, the appellee (plaintiff).

      Robert D. Zaslow, guardian ad litem for the minor child.
   Opinion

BISHOP, J.

The defendant, Joanne Feinberg, appeals from the postdissolution order of the trial court granting the plaintiff, Michael Feinberg, physical custody of the parties’ minor child. On appeal, the defendant claims that the court improperly relied on outdated evidence and factually unsupported findings to determine that the best interest of the child would be served by primarily residing with the plaintiff and attending Simsbury public schools. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The parties were married on July 25, 1992, and have one minor son, Steven, bom on November 3,1996. On November 20,1998, the marriage was dissolved, and the parties entered into a stipulated agreement for judgment, which was incorporated by reference into the dissolution judgment. Pursuant to the stipulation, the parties were awarded joint legal custody; Steven was to live primarily with the defendant in Canton and stay with the plaintiff two days per week. The parties’ parenting plan called for Steven to alternate weekends with his parents.

Beginning in April, 1999, the parties were involved in a series of visitation and custody disputes. On August 8, 2002, they entered into a stipulation that revised the parenting plan, establishing a system of joint decision making regarding Steven’s health, education and upbringing, and increasing the amount of days for Steven to spend with the plaintiff. Pursuant to the stipulation, the child’s primary residence remained with the defendant.

By motion filed June 25, 2004, the plaintiff sought to modify the custodial and support arrangements, claiming, inter alia, that the defendant had failed to comply with the 2002 stipulation by refusing to communicate with the plaintiff regarding parenting issues, excluding the plaintiff from school conferences and hindering the child’s education by repeatedly bringing him to school late. The motion further stated that Steven should be enrolled in the Simsbury public school system and moved to the plaintiffs home, where he would enjoy a stable and nurturing home environment with the plaintiff, his wife and two stepdaughters.

Commencing on February 3, 2005, the court, Hon. John R. Caruso, judge trial referee, held hearings on the motion, during which the parties and the guardian ad litem, Robert D. Zaslow, submitted proposed orders. On August 25, 2005, in light of the approaching commencement of the school year, the court issued an interim order changing the child’s primary residence, for school residency purposes, from Canton to Sims-bury, and on September 2, 2005, the court issued its memorandum of decision, which included orders regarding custody and support. In its memorandum, while noting that “[t]here is little doubt that the parties love their son and he loves them,” the court made the observation that the inability of the parties to properly coparent had a negative effect on the child and that until the plaintiff filed a motion to modify, the defendant had failed in a number of respects in her parenting responsibility. The court noted that until the 2004-2005 school year, Steven was late to school and other appointments a number of times as a result of the defendant’s failure to ensure his being on time. The court concluded that above all, Steven needed “to be in an environment that is conducive to his development as a well adjusted child.” The court found that the change to the Simsbury public school system would be in Steven’s best interest because he would enjoy a more stable home environment and live closer to his maternal grandmother. In framing its orders, the court adopted Zaslow’s proposals, which included the following modifications: (1) the plaintiff was granted final decision-making authority for educational decisions, (2) the primary residence of the child, for school residency purposes, was changed to the plaintiffs home in Sims-bury, (3) the defendant was to have the child on Mondays and Tuesdays, and the plaintiff was to have the child on Wednesdays and Thursdays, with the parties to alternate weekends, and (4) the child’s extracurricular activities were to take place in Simsbury.

On September 13, 2005, the defendant filed two motions to reargue, requesting that the court reverse its decision to change the primary residence of the child for school residency purposes and arguing that the modification was made without any demonstrated educational need on the part of the child. Following the court’s denial of these motions, the defendant, on February 21, 2006, filed a motion for articulation of the court’s orders regarding custody and support. The motion was denied. On review, this court did not order an articulation of the court’s order regarding custody. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that the court improperly relied on outdated evidence and factually unsupported findings to determine the best interest of the child. Specifically, the defendant argues that the court’s determination of the child’s best interest was factually unsupported because (1) the court’s determination that the child’s tardiness was an issue was based on stale evidence at the time of trial, (2) no evidence was offered to support the court’s finding that the defendant’s home was no longer conducive to the child’s development as a well adjusted child, (3) no evidence was offered to support the court’s finding that the change to the Sims-bury public school system would be in the child’s best interest and (4) no evidence was offered to support the court’s finding that the child would enjoy a more stable home environment with the plaintiff. Although we agree that the court appears to have relied, to some extent, on outdated information, we cannot say that the record on which the court made its decision was devoid of current information relating to the child’s best interest.

We review this claim under the prevailing law on custody modification. “The authority to render orders of custody and visitation is found in General Statutes [Rev. to 2003] § 46b-56, which provides in part: (a) In any controversy before the superior court as to the custody or care of minor children . . . the court may at any time make or modify any proper order regarding . . . custody and visitation .... (b) In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child .... Before a court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child.” (Internal quotation marks omitted.) Payton v. Payton, 103 Conn. App. 825, 833, 930 A.2d 802, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007). “[T]he best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of [the child’s] environment.” (Internal quotation marks omitted.) In re Ryan R., 102 Conn. App. 608, 625-26, 926 A.2d 690, cert. denied, 284 Conn. 923, 924, 933 A.2d 724 (2007).

“The sole question is whether the trial court abused its discretion in deciding that the best interests of the child would be served by [the modification]. The trial court [has] the advantage of observing the witnesses and the parties. Considerable evidence [normally is] presented concerning the activities of the parties since [the rendering of the original judgment]. In circumstances like these, whether the best interests of the [child] dictate a change of custody is left to the broad discretion of the trial court. ... A mere difference of opinion or judgment cannot justify the intervention of this court. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Payton v. Payton, supra, 103 Conn. App. 834.

“When the factual basis of the trial court’s decision is challenged on appeal, the role of this court is to determine whether the facts set out in . . . the decision . . . are clearly erroneous. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) In re Anthony E., 96 Conn. App. 414, 418, 900 A.2d 594, cert. denied, 280 Conn. 914, 908 A.2d 535 (2006).

The following additional facts are necessary for our disposition of the defendant’s claim. The child’s school progress reports show that during the time that Steven was in the defendant’s primary custody, he was tardy twice and absent once during the 2002-2003 school year, tardy eighteen times and absent twice during the 2003-2004 school year and tardy once and absent three times during the 2004-2005 school year. Testimony also was offered to show that the defendant habitually had been late picking Steven up from day care and extracurricular events and that the defendant routinely had been late to coparent counseling sessions, causing the counselor to end the sessions. The record contains evidence, as well, that the defendant suffered from an illness during the child’s 2003-2004 school year, which required multiple surgeries and extensive recovery time, making it difficult for her to get the child to school on time during that year but that she had since recovered before the hearings on the motion to modify.

At trial, Zaslow proposed that Steven primarily reside with the plaintiff and attend Simsbury schools: (1) to eliminate the tardiness issue, (2) to put the child in close proximity to his maternal grandmother, who cared for the child when the defendant was unavailable, (3) to reduce the amount of time that the child spent in transit and (4) to streamline the contact between the child’s combative parents. Zaslow noted that Simsbury schools could offer Steven a superior educational experience and more after school activities, including a two hour after school program that would better serve him than his current day care. Zaslow further noted that the plaintiffs house and the maternal grandmother’s house were in close proximity to the Simsbury school. Zaslow’s proposed orders, which were premised on joint parenting, were careful to provide a fifty-fifty split of the child’s time between his parents, as opposed to the previous sixty-forty split with the majority of the time going to the defendant.

Although we share the defendant’s concern that the court appears to have relied, in part, on outdated information in formulating its orders, particularly the child’s tardiness from school during the 2003-2004 school year, our review of the record reveals that the court did not abuse its discretion in determining that the best interest of the child would be served by changing his primary residence and school. We conclude that there was adequate current information in the record to support the court’s determination. Although we acknowledge that the court put significant weight on the child’s tardiness during the 2003-2004 school year, we recognize, as well, that “[a] party’s prior conduct . . . may have a direct bearing on his or her present fitness to be a custodial parent. In the exercise of its awesome responsibility to find the most [salutary] custodial arrangement for the children of divorce, the court must . . . take account of the parents’ past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the children’s growth, development and well-being. ... At the same time, however, the focus of the court’s inquiry must be designed to meet the primary objective which is to determine the present parenting ability of the parties.” (Citation omitted; internal quotation marks omitted.) O’Neill v. O’Neill, 13 Conn. App. 300, 304, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). On the basis of the foregoing, and mindful that we do not sit in substitute judgment over the facts, we conclude that it was not improper for the court to consider the defendant’s past history of tardiness as a factor in reaching its conclusion regarding the child’s best interest.

It is axiomatic that we are bound by the findings made by a court in the proper exercise of its broad discretion regarding the determination of a child’s best interest in custody modification cases. Because adequate evidence was presented that a change of primary residency would then provide the child with a more stable environment, we conclude that the court did not abuse its discretion in making its orders. Accordingly, on the basis of the record before us, we conclude that there was evidence to support the court’s finding that the child’s best interest would be served by residing in Simsbury and attending Simsbury public schools when the court issued its orders in 2005, and that the court, therefore, did not abuse its discretion in rendering its decision.

The judgment is affirmed.

In this opinion PELLEGRINO, J., concurred.

FLYNN, C. J.,

dissenting. I respectfully dissent from the majority opinion. I agree with the defendant, Joanne Feinberg, that her then current parenting abilities were the proper measure of whether she should continue to have physical custody of her son in Canton. O’Neill v. O’Neill, 13 Conn. App. 300, 303-304, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). In custody decisions, the trial court is bound to consider the child’s present best interests and not what would have been in the child’s best interests at some previous time. Blake v. Blake, 207 Conn. 217, 224, 541 A.2d 1201 (1988), citing In re Juvenile Appeal (Anonymous), 177 Conn. 648, 664, 420 A.2d 875 (1979). Although in determining what is in the child’s best interests the court may take into account a parent’s past behavior, and here did so, the court in this case improperly failed to focus on the defendant’s then present situation and present parenting abilities and how these affected the child’s current best interests.

The present controversy between the parties over the physical custody of their minor son began with the plaintiff Michael Feinberg’s postjudgment motion for modification of custody filed June 25,2004. The plaintiff claimed that the defendant had failed to comply with the parties’ August 8, 2002 stipulated parenting plan in nineteen separate ways, including allowing unexcused tardiness in the son’s school attendance in the Canton public schools. The court held hearings on the plaintiffs motion and on the defendant’s subsequent motion to modify custody and child support beginning on February 3, 2005, and concluding on May 9, 2005. On August 25, 2005, almost four months later, the court issued a brief order stating that the child’s residence and schooling would be switched to Simsbury, with the plaintiff.

On September 2, 2005, the court issued a memorandum of decision in which it observed that the parties’ complete inability to agree negatively affected the child. The court further stated: “Until the plaintiff filed [his motion to modify custody and support], the defendant failed in a number of respects in her parenting responsibility. Until this academic year, Steven was late to school and other appointments a number of times as a result of the defendant’s failure to ensure his being on time. Above all else, Steven needs to be in an environment that is conducive to his development as a well adjusted child. The court finds that the change to the Simsbury school system would be in the child’s best interest. He will enjoy a more stable home environment and be close to his grandmother.” The defendant’s motion to reargue was denied by the court on September 15, 2005.

The defendant filed a motion for articulation on February 21,2006, asking that the court specify how she had failed in her parental responsibilities. The defendant sought an articulation of “the actual factual findings underlying the [cjourt’s statement about [the defendant’s] alleged failing(s) as a parent; what adverse consequences if any were caused to the minor child which need rectification; and what is the basis for the [cjourt’s evident belief that the situation will be improved by transferring the child to the Simsbury school system?” The request for articulation was not answered until almost fifteen months later, after this court, on May 10, 2007, ordered the court to do so pursuant to Practice Book § 66-7. Our order directed the court to articulate only “what it meant by its September 2, 2005 order that the defendant shall pay to the plaintiff child support in accordance with the Connecticut child support guidelines.” Thereafter, appellate briefing of the case continued and oral argument was heard in this court on February 4, 2009.

I agree with the defendant that the evidence demonstrated that the child’s tardiness at school due to the defendant’s illnesses had occurred in the prior school year and had been ameliorated in the then current school year by the time of the court’s hearings. During the school year in which the court’s hearings were held, the child was absent only once and tardy but two times. The record does not appear to include any evidence of other missed appointments. It was the defendant’s present parenting ability that was at issue. See O’Neill v. O’Neill, supra, 13 Conn. App. 303-304 (court improperly relied on thirteen month old family relations custody report rather than evidence of party’s current caretaking abilities in determining custody of child).

A finding of the court that a custodial parent has failed in her parenting responsibility which focuses improperly on past school attendance rather than the child’s current good attendance in determining the present best interest of the child leaves the parent subject to a stigma that is not warranted by the law or the record in this case. The defendant should be able to vindicate her rights on appeal.

I would hold that the court’s reliance on outdated information regarding the child’s school attendance was improper and that its finding about other missed appointments was unsupported and, therefore, clearly erroneous. I would reverse the decision and remand the case for a new hearing at which the present parenting abilities of each parent would be the focus. Because of the law’s delay and the years that have passed in which the child has been schooled in Simsbury, I would adopt the suggestion of the defendant and maintain the present custody and schooling order pending the outcome of the new hearing, rather than reverting to the status quo ante.

       We note the irony that in a case in which the appellant has alleged that the trial court based its orders on outdated information, this appeal comes to be heard more than three and one-half years later, a significant passage of time in this child’s life. No disinterested reader should find in this opinion any suggestion of what custodial arrangement might, now, be in the child’s best interest.


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    ROBERT J. KELLY v. PETER C. ALBERTSEN
    (AC 28932)
    DiPentima, Gruendel and Schaller, Js.

      Argued January 12
    officially released May 26, 2009

      P. Jo Anne Burgh, for the appellant (plaintiff).

      Robert Dennis Silva, with whom, on the brief, was Michael G. Rigg, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The issue presented in this case is whether the trial court improperly failed to allow the plaintiff, Robert J. Kelly, to conduct discovery prior to ruling on the motion to dismiss filed by the defendant, Peter C. Albertsen, for lack of subject matter jurisdiction. We affirm the judgment of the trial court.

For the underlying facts of the plaintiffs appeal we turn to our Supreme Court’s opinion in a related case. “In September, 1995, the plaintiff sought medical treatment from [the defendant], a physician employed by the [University of Connecticut Health Center (health center)], complaining of pain and discomfort associated with a history of kidney stone disease and chronic kidney function problems. [The defendant] conducted an evaluation of the plaintiff and advised him that he had kidney stones, recommending that the plaintiff undergo a series of surgical procedures, including a laser lithotripsy, to treat the condition. On October 24, 1995, the plaintiff underwent surgery at the [health center] under the attention of the [health center’s] agents and employees, including [the defendant]. The plaintiff was informed that the surgery was successful. Following the surgery, the plaintiff began to notice blood in his urine, which he reported to [the defendant]. As a result of this complaint and after further evaluation by [the defendant] in an effort to detect the cause of the bloody urine, on February 5, 1996, the plaintiff underwent a cystoscopy, a surgical procedure that examines the interior of the bladder. See Stedman’s Medical Dictionary (28th Ed. 2006). As a result of that procedure, [the defendant] was able to rule out bladder cancer as the cause of the plaintiffs bloody urine. Between 1996 and 2000, the plaintiff continued to experience episodes of bloody urine and sought further diagnosis by the [health center], although one was never made.

. “On May 23, 2000, the plaintiff underwent another cystoscopy, which was performed by [the defendant] at the [health center]. On that same day, [the defendant] informed the plaintiff for the first time that he detected some type of ‘foreign body’ in the plaintiffs left ureter, which [the defendant] initially identified as a plastic sheath. [The defendant] recommended additional surgery to diagnose and treat the condition. In June, 2000, the plaintiff consulted with two additional physicians from a different medical facility for evaluation and treatment of the foreign body. On July 20, 2000, the plaintiff underwent surgery at Hartford Hospital for removal of the plastic sheath, which later was identified as laser fibers. The plaintiff ultimately underwent four additional surgical procedures in order to remove the laser fibers and treat his condition, the last of which occurred on December 14, 2000.” Kelly v. University of Connecticut Health Center, 290 Conn. 245, 248-50, 963 A.2d 1 (2009).

On September 11,2002, the plaintiff filed an amended two count complaint. In count one, the plaintiff alleged that the defendant, while practicing at the health center, was negligent in his treatment of the plaintiff. In count two, the plaintiff alleged that the defendant committed battery when he operated on the plaintiff without obtaining the plaintiffs informed consent. On April 16, 2003, the defendant filed a motion to dismiss for lack of subject matter jurisdiction. In his motion, the defendant argued that as an employee of the state, he is immune from suit because the plaintiffs action did not allege wilful, wanton, reckless or malicious conduct. The defendant then filed a motion for a protective order to prevent the taking of his deposition in response to the filing of a notice of his deposition on or about July 2, 2003. The plaintiff objected to both motions on August 28, 2003. In his memorandum of law in opposition to the defendant’s motion to dismiss, the plaintiff argued that the allegations in his complaint that “[t]he injuries and losses experienced by [the plaintiff], were caused by the carelessness and negligence of [the defendant]” should be inferred as alleging that the defendant’s actions were indeed reckless and that limited discovery was necessary to determine whether the defendant was acting outside the scope of his employment because the issue was essential to the court’s subject matter jurisdiction. The plaintiff included a letter from Martyn Vickers, a physician, stating that the defendant’s actions “deviated from the standard of care and that this deviation resulted in an adverse outcome and complicated and prolonged [the plaintiffs] clinical course.” The court granted the defendant’s motion for a protective order on September 2, 2003.

During the arguments on the motion to dismiss on March 5, 2007, the plaintiff indicated his desire to conduct limited discovery or to present evidence at a later date. The court proceeded with the motion, thereby implicitly denying the plaintiffs requests. In a memorandum of decision filed April 27, 2007, the court granted the defendant’s motion. Relying on our Supreme Court’s decisions in Martin v. Brady, 261 Conn. 372, 802 A.2d 814 (2002), and Shay v. Rossi, 253 Conn. 134, 749 A.2d 1147 (2000), overruled in part on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003), the court reasoned that to overcome the statutory immunity of General Statutes § 4-165 for employees of the state who are sued in their individual capacity, the plaintiff must allege sufficient facts to support a conclusion that the defendant was acting outside of the scope of his employment or was acting wilfully or maliciously. The court concluded that even when the complaint is construed in the light most favorable to the plaintiff, it did not allege acts amounting to the reckless or malicious conduct defined in Martin and Shay. The plaintiff filed a motion for reargument on May 11, 2007, which the court denied on June 6, 2007. The plaintiff also filed a motion for articulation. The court denied the motion on March 3, 2008. This appeal followed.

We begin with the well established principles that guide our resolution of the plaintiffs claim. “A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Filippi v. Sullivan, 273 Conn. 1, 8, 866 A.2d 599 (2005). “Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to § 4-165, implicate the court’s subject matter jurisdiction.” (Internal quotation marks omitted.) Mercer v. Strange, 96 Conn. App. 123, 128, 899 A.2d 683 (2006); see Practice Book § 10-31. “[A] subject matter jurisdictional defect may not be waived ... [or jurisdiction] conferred by the parties, explicitly or implicitly. . . . [0]nce raised, either by a party or by the court itself, the question must be answered before the court may decide the case.” (Internal quotation marks omitted.) Litchman v. Beni, 280 Conn. 25, 30, 905 A.2d 647 (2006).

In deciding a motion to dismiss that challenges the court’s jurisdiction, the court must take the facts alleged in the complaint, including facts necessarily implied from the allegations, and construe them in the light most favorable to the pleader. Bellman v. West Hartford, 96 Conn. App. 387, 393, 900 A.2d 82 (2006); see McIntosh v. Sullivan, 274 Conn. 262, 267, 875 A.2d 459 (2005). Moreover, “every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Novak v. Levin, 287 Conn. 71, 79, 951 A.2d 514 (2008).

“As with sovereign immunity, § 4-165 provides state officers and employees with qualified immunity.” Manifold v. Ragaglia, 94 Conn. App. 103, 112, 891 A.2d 106 (2006). General Statutes § 4-165 (a) provides in relevant part that “[n]o state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment. ...” This type of qualified statutory immunity “involves immunity from suit and is intended to permit courts expeditiously to weed out suits which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits.” (Internal quotation marks omitted.) Manifold v. Ragaglia, supra, 112. When, as here, the motion to dismiss raises the issue of statutory immunity under § 4-165, the court must “examine the pleadings to decide if the plaintiff has alleged sufficient facts . . . with respect to personal immunity under § 4-165, to support a conclusion that the defendant[s] [were] acting outside the scope of [their] employment or wilfully or maliciously.” (Internal quotation marks omitted.) Martin v. Brady, supra, 261 Conn. 376.

The plaintiff argues that the court improperly failed to allow him to conduct limited discovery and to hold an evidentiary hearing. We disagree.

Once the defendant raised the issue of subject matter jurisdiction, the court was obliged to address it. “[A]s soon as the jurisdiction of the court to decide an issue is called into question, all other action in the case must come to a halt until such a determination is made.” (Internal quotation marks omitted.) Bellman v. West Hartford, supra, 96 Conn. App. 392; see Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) (“[i]t is axiomatic that once the issue of subject matter jurisdiction is raised, it must be immediately acted upon by the court”). Therefore, allowing the plaintiff to conduct discovery prior to ruling on the motion to dismiss would have been inconsistent with the policy that once the issue of subject matter jurisdiction has been raised, it must be decided immediately and before any other action in the case is taken. See Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996) (“inappropriate for the trial court to consider [third party plaintiffs’] amended third party complaint, rather than its initial complaint, when acting on the [third party defendant’s] motion to dismiss for lack of subject matter jurisdiction”); Gurliacci v. Mayer, supra, 545 (court should not have allowed plaintiff to amend complaint prior to ruling on motion to dismiss, allowing amendment inconsistent with rule that all other action in case must stop once court’s jurisdiction called into question); Fennelly v. Norton, 103 Conn. App. 125, 136-39, 931 A.2d 269 (inappropriate for court to look beyond pleading and allow plaintiff to add allegations to application at evidentiary hearing when defendant’s motion to dismiss premised on insufficiency of application for visitation), cert. denied, 284 Conn. 918, 931 A.2d 936 (2007).

Discovery gathered after a court’s denial of a motion to dismiss may, of course, be used to support claims that the court does have subject matter jurisdiction in subsequent motions. See Manifold v. Ragaglia, supra, 94 Conn. App. 119-22. We know of no authority, however, that requires a court to allow a plaintiff to conduct discovery to meet the burden of alleging facts that clearly demonstrate that the court has subject matter jurisdiction prior to the court’s ruling on a motion to dismiss challenging jurisdiction. Indeed, our policy that all other action in a case “comes to a halt” once the issue of subject matter jurisdiction has been raised counsels against the allowance of discovery prior to the court’s determination of the jurisdictional issue.

The plaintiff further argues that because there were “issues of fact” regarding the court’s jurisdiction, the court was obligated to conduct an evidentiary hearing. Specifically, the plaintiff states that there were “issues of fact focused on the defendant’s state of mind” during the surgical procedure performed on the plaintiff and relies on the proposition that “[w]hen issues of fact are necessary to the determination of a court’s jurisdiction, 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.” (Internal quotation marks omitted.) Bellman v. West Hartford, supra, 96 Conn. App. 396. The facts of this case, however, render that proposition inapplicable.

As our Supreme Court has explained, “in the absence of any disputed issues of fact pertaining to jurisdiction, there [is] no need to hold an evidentiary hearing before deciding the motion to dismiss.” Amore v. Frankel, 228 Conn. 358, 369, 636 A.2d 786 (1994); see also Coughlin v. Waterbury, 61 Conn. App. 310, 315, 763 A.2d 1058 (2001) (due process requires evidentiary hearing prior to adjudication of jurisdictional challenge when issues of fact disputed); Bradley’s Appeal from Probate, 19 Conn. App. 456, 467, 563 A.2d 1358 (1989) (same). Although “we indulge every presumption in favor of subject matter jurisdiction”; ABB Automation, Inc. v. Zaharna, 77 Conn. App. 260, 267, 823 A.2d 340 (2003); the allegations here did not contain a factual dispute regarding jurisdiction that necessitated an evidentiary hearing. The defendant’s motion to dismiss did not challenge the factual allegations in the plaintiffs complaint. Rather, the defendant asserted that he was “immune from suit, as the [pjlaintiffs action fail[ed] to allege wilful, wanton, reckless or malicious acts . . . .’’On appeal, the plaintiff does not challenge the court’s finding that his complaint did not allege that the defendant acted in a wilful, wanton or reckless manner, nor does the plaintiff claim that his complaint alleged “issues of fact” regarding the defendant’s state of mind. Accordingly, the court properly ruled on the motion to dismiss without holding an evidentiary hearing or allowing the plaintiff to conduct discovery.

The judgment is affirmed.

In this opinion the other judges concurred.

       As the plaintiff states in his principal brief, and reiterates in his reply brief, the sole issue on appeal is whether the court improperly granted the defendant’s motion to dismiss without first affording the plaintiff an opportunity to conduct discovery or holding an evidentiary hearing. We therefore do not consider the propriety of the court’s ruling on the motion to dismiss. Similarly, the plaintiff does not challenge, nor do we address, the granting of the motion for a protective order.

       In August, 2005, the plaintiff filed a complaint against the University of Connecticut Health Center and the state, alleging medical malpractice and lack of informed consent. Kelly v. University of Connecticut Health Center, 290 Conn. 245, 247-48 & 247 n.2, 250, 963 A.2d 1 (2009). The trial court granted the state’s motion to dismiss for lack of subject matter jurisdiction. Id., 250. Our Supreme Court affirmed the judgment of the trial court. Id., 248.

       The defendant filed an additional motion for aprotective order on November 26, 2003, in which he asked the court to prevent him from having to respond to the plaintiffs first set of interrogatories and request for production. The plaintiff objected to the defendant’s motion. Our review of the record indicates that there was no ruling on the second motion for a protective order. On November 28, 2003, the plaintiff moved for a continuance of the oral argument on the defendant’s motion to dismiss, requesting that the motion for a protective order be resolved prior to the hearing on the motion to dismiss, as information sought in the discovery requests would have a direct bearing on the motion to dismiss. There was also no ruling on the motion for a continuance.

       Our review of the record reveals no adequate explanation for the four year delay other than the pendency of the plaintiffs other action. See footnote 2.

       Our decision does not, as the plaintiff appears to suggest, foreclose a plaintiffs ability to sustain his burden of alleging facts demonstrating the court’s jurisdiction over the action. We note that the plaintiff could have filed a bill of discovery; see H & L Chevrolet, Inc. v. Berkley Ins. Co., 110 Conn. App. 428, 433-34, 955 A.2d 565 (2008); which would have allowed him to discover facts relevant to his jurisdictional burden.


author: PETERS, J.

text:
    MELVIN DELGADO v. COMMISSIONER OF CORRECTION
    (AC 29199)
    Flynn, C. J., and Gruendel and Peters, Js.

      Argued March 9
    officially released May 26, 2009

      Arthur L. Ledford, special public defender, for the appellant (petitioner).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, Margaret Gaffney Radionovas, senior assistant state’s attorney, and Erika L. Brookman, deputy assistant state’s attorney, for the appellee (respondent).
   Opinion

PETERS, J.

Claims of judicial error that a criminal defendant failed to raise on direct appeal are renewable in a petition for habeas corpus only if the petitioner can show “cause and prejudice” for his prior default. Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). To comply with this requirement, “the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition.” Id. In this case, in the absence of such a showing, the habeas court not only denied the petitioner’s petition for habeas corpus but also denied the petitioner’s request for certification to appeal. We agree with the habeas court’s denial of certification and dismiss the petitioner’s appeal.

On February 20,2007, the petitioner, Melvin Delgado, filed a five count amended petition for a writ of habeas corpus alleging (1) the ineffective assistance of his trial counsel, (2) the ineffective assistance of his appellate counsel, (3) prosecutorial impropriety, (4) the denial of a fair and impartial trial arising out of the “cumulative effect” of the ineffective assistance and prosecutorial impropriety alleged in counts one and three and (5) actual innocence. The respondent, the commissioner of correction, filed a special pleading seeking the dismissal of the third and fourth counts on the ground of procedural default. Noting the absence of any reply by the petitioner to these allegations, the habeas court treated the motion to dismiss as a motion for summary judgment, which it then granted in favor of the respondent on the two defaulted counts.

After a hearing on the remaining counts of the petition, the habeas court found that the petitioner had also failed to establish his claim on those counts. Counsel for the petitioner then filed a petition for certification to appeal from the judgment of the habeas court on counts one and two, which had been tried. The petitioner also filed a second petition pro se for certification to appeal from the judgment generally, on the ground of ineffective assistance of his habeas counsel. Pursuant to General Statutes § 52-470 (b), the habeas court denied both petitions for certification.

Represented by new counsel, the petitioner challenges only the denial of his second petition for certification and only with respect to the two counts that the court held to have been procedurally defaulted. We agree with the court’s denial of that petition and dismiss the petitioner’s appeal.

We begin by setting forth the appropriate standard of review. “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion.” Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). To prove an abuse of discretion, the petitioner must demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Emphasis in original; internal quotation marks omitted.) Id., 616. “If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” Id., 612.

Our resolution of the petitioner’s appeal may usefully begin by noting what is not in dispute. The petitioner does not challenge the validity of the respondent’s allegation that, in both the petitioner’s trial and his direct appeal, he did not raise any issue about prosecutorial impropriety or cumulative error. In effect, the petitioner concedes that once the respondent had raised the defense of procedural default, to succeed in the claims raised in the third and fourth counts of his habeas petition, the petitioner bore the burden to show cause and prejudice for his default.

The petitioner claims, nonetheless, that the habeas court improperly granted the respondent’s motion for summary judgment. He maintains that the court denied him the opportunity to present “any evidence as to how the petitioner could meet his burdens of cause and prejudice.”

The record establishes that on February 16, 2007, citing Practice Book §§ 23-30 and 23-29 (2), the respondent filed a return alleging that, because of the petitioner’s procedural default, the petitioner was not entitled to habeas relief on the third and fourth counts of his petition. The return expressly informed the petitioner that “[t]o overcome the procedural default, the petitioner ‘must establish cause and prejudice conjunctively’ in order to obtain relief.” On July 10, 2007, the respondent moved to dismiss the petitioner’s claims in counts three and four for failure to establish cause and prejudice.

At the hearing on the respondent’s motion to dismiss, the habeas court noted the petitioner’s failure to contest the respondent’s allegations, either by filing a pleading pursuant to Practice Book § 23-31 or in any other way. The court stated: “I have the defense of procedural default having been raised, and I don’t see it being denied. That which is not denied is therefore admitted.” In response, the petitioner asked the court “to take the [respondent’s] motion under advisement and listen to the testimony of the petitioner’s witnesses and then act on the motion after the petitioner rests.” When the court inquired why the petitioner had not filed a reply to the respondent’s motion, his counsel conceded both the underlying ground for the procedural default (the petitioner’s failure to raise his claims on direct appeal) and his failure to reply to the respondent’s return, but asked for an opportunity to present the testimony of appellate counsel or some kind of testimony in the form of transcripts or affidavits, to establish cause and prejudice.

This colloquy is notable for what it lacks. At the hearing, the petitioner never identified specific evidence to present to the court. Furthermore, the petitioner never requested additional time to obtain such evidence. It was this barren record that was the basis for the habeas court’s decision to treat the respondent’s motion to dismiss as a motion for summary judgment and to grant the motion with respect to counts three and four of the petition.

The petitioner’s contention that the habeas court improperly deprived him of the opportunity to make a factual showing of cause and prejudice has three parts. First, he maintains that the manner in which the respondent raised the claim of procedural default was improper and misleading. Second, he faults the habeas court for failing to permit him to amend his pleadings or to present evidence relevant to a showing of cause and prejudice. Third, he invokes the principle of judicial economy as justifying reversal of the order of the habeas court. We are not persuaded.

I

The petitioner’s principal argument in support of his claim that the habeas court abused its discretion is that the manner in which the respondent raised the claim of procedural default was so confusing that the court was required to excuse the petitioner’s failure to file the response that otherwise would have been mandated by Practice Book § 23-31. Relying on Practice Book §§ 10-50 and 10-51, the petitioner faults the respondent’s reply to his petition for failing to characterize the claim of procedural default as a “defense” and for failing to present that claim in a paragraph separate from other defenses.

As the respondent notes, however, the petitioner has failed to acknowledge that the respondent’s return expressly stated, citing Cobham v. Commissioner of Correction, supra, 258 Conn. 40, that “the standard for evaluating procedurally defaulted claims is cause and prejudice.” Furthermore, the respondent expressly informed the petitioner that, to prevail, he was required to “ ‘demonstrate good cause for his failure to raise a claim at trial or on direct appeal’,” as well as to show “ ‘actual prejudice resulting from the impropriety claimed in the habeas petition.’ ”

We agree with the respondent that this record left no basis for confusion as to what the petitioner was required to do under Practice Book § 23-31 to meet his burden of answering the respondent’s claim of procedural default. We decline to attribute talismanic significance to the respondent’s failure to attach the label “defense” to this informative pleading. The respondent’s claim was clear on its face.

II

The petitioner’s second claim is that the habeas court abused its discretion by failing to permit him to amend his pleadings or to present evidence relevant to a showing of cause and prejudice. A necessary predicate for this contention is a showing that the petitioner requested an opportunity to file such an amendment or to present such evidence. The record of the hearing held by the habeas court in response to the respondent’s motion for dismissal of counts three and four of the habeas petition is to the contrary.

At the outset, we note that the petitioner never filed a pleading with the habeas court to make the requisite showing of evidence of cause and prejudice during the five month interval between the respondent’s motion and the hearing on that motion. Furthermore, at that hearing, the petitioner failed to request permission (1) to file a late reply to the respondent’s return, (2) to amend his pleadings or (3) to present specifically identified evidence relating to his procedural default. In short, he took no formal steps to preserve his habeas claim. All that the petitioner ever presented to the court on this issue was his counsel’s statement, at the hearing, that he wanted to present unspecified testimony of appellate counsel or “responsive transcripts or affidavits.” To this day, the petitioner has not proffered even an outline of an argument of evidence that would have established cause and prejudice to excuse his procedural default.

The petitioner’s total failure to comply in any fashion with Practice Book § 23-31 demonstrates that he failed to meet his burden of establishing cause and prejudice for his procedural defaults. See Taylor v. Commissioner of Correction, 284 Conn. 433, 447 n.18, 936 A.2d 611 (2007). On the record before it, the habeas court was entitled to find that the petitioner was procedurally barred from obtaining habeas corpus relief on counts three and four of his habeas complaint. See Ankerman v. Commissioner of Correction, 104 Conn. App. 649, 654, 935 A.2d 208 (2007) (failure to show cause and prejudice for defaulted habeas claim precludes appellate review), cert. denied, 285 Conn. 916, 943 A.2d 474 (2008).

Ill

Finally, the petitioner invokes the interests of judicial economy as a ground for us to set aside the court’s denial of his request for certification of his habeas appeal. He urges us to avoid “unnecessary litigation” in the form of future habeas petitions to consider the claims that the court in this case held to have been procedurally defaulted. We decline to address the merits of this inartful effort to sidestep the consequences of the petitioner’s failure to avail himself of multiple opportunities to prove his case.

In sum, the petitioner has not met his burden of showing that the habeas court abused its discretion in failing to grant his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus.

The appeal is dismissed.

In this opinion the other judges concurred.

       In the underlying case, the petitioner was convicted of the crime of murder as an accessory in violation of General Statutes §§ 53a-54a and 53a-8. Consequently, he was sentenced to a total effective term of imprisonment of sixty-five years. State v. Delgado, 247 Conn. 616, 725 A.2d 306 (1999).

       General Statutes § 52-470 (b) provides: “No appeal from the judgment rendered in a habeas corpus proceeding brought by or on behalf of a person who has been convicted of a crime in order to obtain such person’s release may be taken unless the appellant, within ten days after the case is decided, petitions the judge before whom the case was tried or, if such judge is unavailable, a judge of the Superior Court designated by the Chief Court Administrator, to certify that a question is involved in the decision which ought to be reviewed by the court having jurisdiction and the judge so certifies.”

       Practice Book § 23-31 provides: “(a) If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply.
      “(b) The reply shall admit or deny any allegations that the petitioner is not entitled to relief.
      “(c) The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default. The reply shall not restate the claims of the petition.”

       Practice Book § 10-50 provides in relevant part: “No facts may be proved under either a general or special denial except such as show that the plaintiffs statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. . . .”
      Practice Book § 10-51 provides in relevant part: “Where several matters of defense are pleaded, each must refer to the cause of action which it is intended to answer, and be separately stated and designated as a separate defense, as, First Defense, Second Defense, etc. Where the complaint or counterclaim is for more than one cause of action, set forth in several counts, each separate matter of defense should be preceded by a designation of the cause of action which it is designed to meet, in this manner: First Defense to First Count, Second Defense to First Count, First Defense to Second Count, and so on. ...” (Emphasis original.)


author: BEACH, J.

text:
    FROOM DEVELOPMENT CORPORATION ET AL. v. DEVELOPERS REALTY, INC., ET AL.
    (AC 29527)
    Harper, Beach and Robinson, Js.

      Argued January 5
    officially released June 2, 2009

      Carl H. Hoffman, with whom was Frederic S. Ury, for the appellants (plaintiffs).

      David S. Hoopes, with whom, on the brief, were Glenn E. Coe, Proloy K. Das and Peter J. Royer, for the appellees (defendants).
   Opinion

BEACH, J.

This action arises from an unsuccessful effort to develop a shopping center in Concord, New Hampshire. The plaintiffs, Froom Development Corporation and the president of that corporation, Ronald J. Froom, appeal from the judgment of the trial court denying their motion to set aside the verdict, which was rendered on all but one count in favor of the defendants, a collection of individuals and corporate entities, including Developers Realty, Inc. (Developers Realty), and the Marion Eisenbaum Estate Trust (trust). On appeal, the plaintiffs claim that the court (1) abused its discretion in denying their motion to set aside the verdiet on the grounds (a) of inconsistency, (b) that it was inherently ambiguous for the jury to return a verdict in favor of the plaintiffs while awarding zero damages and (c) that the verdict was contrary to the law and unsupported by the evidence, and (2) abused its discretion by denying their oral motion for a mistrial made after the jury returned with a revised verdict. We affirm the judgment of the trial court.

The following facts, as stated by the court in its ruling on the plaintiffs’ motion, and procedural history are relevant to our resolution of the plaintiffs’ appeal. “The case involved a business dispute arising out of a written agreement between the plaintiffs . . . and the defendant Developers Realty ... a corporation and one of several entities formed by the Eisenbaum family involved with the development of shopping malls. In essence, the agreement provided that if [Developers Realty] chose to develop real property brought to its attention by [the plaintiffs], then [the plaintiffs] would have a 50 percent ownership interest in the joint venture project. In all cases, [Developers Realty] would provide funds for all preconstruction development expenses and construction expenses, although it was the intent of the parties to obtain construction mortgages as soon as possible. The agreement also set out the understanding that if a parcel of property introduced by [the plaintiffs] was selected for possible development, and [Developers Realty] elected at a later date not to proceed with the development, [the plaintiffs] would be given a reasonable time to continue the project alone or to find a new partner to replace [Developers Realty], . . .

“[The plaintiffs] directed [Developers Realty] to real property on Loudon Road near Concord, New Hampshire, which appeared developable into a shopping center, and [Developers Realty] took steps to obtain options to purchase two parcels of the property. Some time in the 2000-2001 time frame, there was evidence that [Developers Realty] and individuals and entities associated with [Developers Realty] began to ignore [the plaintiffs] and any communications from [them] about the Concord project. . . . [In] July, 2003, [Developers Realty] directly told [the plaintiffs] that [it] no longer considered [the plaintiffs] to be a joint venture partner in the Concord project.

“The Concord project itself had a troubled life span. [The plaintiffs] initially envisioned a shopping center project of four retail outlets and a restaurant with a total amount of 140,000 to 150,000 square feet of space situated on eighteen to twenty acres of land. [Developers Realty] later increased the size of the proposed project and purchased or optioned more than ten additional acres. There was interest from various retail stores that continued for several years, but there was never sufficient interest to make the project a reality. Varying evidence was presented from all sides as to the root cause for the eventual failure of the project. [The plaintiffs] blamed the defendants’ incompetence and inattention. The defendants saw the reasons as being the vagaries of the marketplace, competition from other developers and certain difficulties arising from the location of the property. For whatever reasons, however, the Concord project was not able to attract a satisfactory anchor tenant, and all parties agree that the lack of such a tenant kept other retailers from signing leases sufficient to get construction financing. The evidence showed that while Dick’s Sporting Goods, an attractive potential anchor tenant, considered renting 50,000 square feet of retail space on the Concord project property, it eventually located elsewhere in the area because [Developers Realty] was unable to attract Bed Bath & Beyond as another tenant.”

Thereafter, the plaintiffs brought a complaint in multiple counts against the defendants. By the end of trial, the number of counts had been narrowed to six: breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., conversion and tortious interference with business relations.

In the verdict, as accepted, the jury found in favor of the plaintiffs only on the count alleging breach of the covenant of good faith and fair dealing and awarded no damages on that count. The plaintiffs thereafter filed a motion to set aside the verdict, which the court denied. This appeal followed. Additional facts will be set forth as necessary.

I

We first address the defendants’ threshold jurisdictional claim that the plaintiffs have not appealed from a final judgment. See, e.g., Levarge v. General Dynamics Corp., 282 Conn. 386, 390, 920 A.2d 996 (2007). The defendants argue that we do not have subject matter jurisdiction over this appeal because the plaintiffs appealed from the court’s memorandum of decision denying their motion to set aside the verdict, rather than from the judgment the court rendered. They argue that as a result, the plaintiffs have not appealed from a final judgment. We disagree.

“[T]he right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met. . . . Moreover, [t]he statutory right to appeal is limited to appeals by aggrieved parties from final judgments .... Because our jurisdiction over appeals ... is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim.” (Internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 194, 884 A.2d 981 (2005).

The record shows that the verdict was reached on October 26, 2007. A motion to set aside the verdict was filed on November 5, 2007. The court denied that motion and rendered judgment on December 21, 2007. The appeal was filed on January 9, 2008. The appeal form states that the appeal was taken from the denial of the motion to set aside the verdict and does not specifically state that it was taken from the judgment rendered at the same time. If this is a defect, however, it amounts to no more than one of form that requires challenge, if at all, within ten days after the filing of the appeal. See Letsch v. Slady, 145 Conn. 401, 402, 143 A.2d 642 (1958); Practice Book § 66-8; see also General Statutes § 52-263. Because the defendants have failed to move to dismiss the appeal, they have waived any such defect. See Maciejewska v. Lombard Bros., Inc., 171 Conn. 35, 37 n.1, 368 A.2d 206 (1976); Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596 (1960). Accordingly, we now turn to the merits of the plaintiffs’ appeal.

II

The plaintiffs claim that the court abused its discretion in denying their motion to set aside the verdict. The plaintiffs argue that the court should have granted the motion on the grounds (1) of inconsistency, (2) that it was inherently ambiguous for the jury to return a verdict in favor of the plaintiffs while awarding zero damages and (3) that the verdict was contrary to the law and unsupported by the evidence. We disagree.

We begin by setting forth our standard of review. “The standard of review governing our review of a trial court’s denial of a motion to set aside the verdict is well settled. The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence. . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach [its] conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles .... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 32-33, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).

A

The plaintiffs claim that the court abused its discretion when it denied their motion to set aside the verdict on ground of inconsistency. We disagree.

“The role of an appellate court where an appellant seeks a judgment contrary to a general verdict on the basis of the jury’s allegedly inconsistent answers to such interrogatories is extremely limited. ... To justify the entry of a judgment contrary to a general verdict upon the basis of answers to interrogatories, those answers must be such in themselves as conclusively to show that as [a] matter of law judgment could only be rendered for the party against whom the general verdict was found; they must negative every reasonable hypothesis as to the situation provable under the issues made by the pleadings; and in determining that, the court may consider only the issues framed by the pleadings, the general verdict and the interrogatories, with the answers made to them, without resort to the evidence offered at the trial. ... It is not the function of a court to search the record for conflicting answers in order to take the case away from the jury on a theory that gives equal support to inconsistent and uncertain inferences. When a claim is made that the jury’s answers to interrogatories in returning a verdict are inconsistent, the court has the duty to attempt to harmonize the answers.” (Citations omitted; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 269-70, 698 A.2d 838 (1997).

1

The plaintiffs argue that the jury interrogatory answers regarding causation of injury were inconsistent. They argue that it was inconsistent for the jury to find on the count alleging breach of the implied covenant of good faith and fair dealing that the breach caused legal injury while finding on the breach of contract count that the breach did not cause legal injuiy. The plaintiffs’ argument is hinged on their contention that the jury “misperceived” the court’s instructions that “[t]he covenant of good faith does not create new contract terms and may not be employed to achieve a result contrary to the terms in an express contract.” We disagree.

The jury’s answers to the interrogatories regarding causation of injury on the count alleging breach of the implied covenant of good faith and fair dealing and on the count alleging breach of contract were not inconsistent. Two separate breaches were involved. In their complaint, the plaintiffs pleaded breach of contract and breach of the implied covenant of good faith and fair dealing as separate causes of action. Although both counts had some allegations in common, the two counts were not identical. The breach of contract count focused on the ways in which Developers Realty engaged in conduct that injured the plaintiffs’ right to receive benefits under the contract. The count alleging breach of the implied covenant of good faith and fair dealing additionally alleged that Developers Realty, while engaging in conduct that injured the plaintiffs’ right to receive benefits under the contract, was acting in bad faith and with dishonest purpose.

In its instructions to the jury, the court explained that “every contract contains within it an implied covenant of good faith and fair dealing, which requires that the parties to the contract do nothing which will injure the right of the other party to receive the benefits of the contract. . . . Under this rule, [Developers Realty] had an obligation to exercise good faith to see that the plaintiffs received their 50 percent interest in the Concord . . . project and the other rights pursuant to the memorandum of understanding. . . . Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party. . . . Good faith and fair dealing means an attitude or state of mind denoting honesty of purpose and freedom from intention to defraud. It means being faithful to one’s duty and obligation under the contract. . . . Good faith is defined as the opposite of bad faith. If the defendant engaged in bad faith, you must find that it did not fulfill the covenant. Bad faith generally implies a design to mislead or deceive another or ... a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one’s rights or duties. Bad faith is not simply bad judgment or negligence, but rather, it implies the conscious doing of a wrong because of dishonest purpose. Bad faith contemplates a state of mind affirmatively operating with furtive design or ill will.” See Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 271 (jury interrogatories to be read in conjunction with jury instructions); see also Carford v. Empire Fire & Marine Ins. Co., 94 Conn. App. 41, 45, 891 A.2d 55 (2006) (“[t]o constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiffs’ right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith” [internal quotation marks omitted]).

With respect to both counts, the plaintiffs claimed that as a result of the breach, they lost their rights to the Concord project, their business opportunity for development of the project and the value of their services. The complaint also alleged, with respect to both counts, damage to their business credibility. In their opening argument, the defendants conceded that there was a breach of contract. They stated, inter alia, that there was a period in time in which Developers Realty did not treat the plaintiffs as a partner. The jury could have found that no injury flowed from the breach of contract, which the defendants had conceded, because there was never any income stream from the Concord project. The jury, however, could have found that the defendants acted in bad faith in breaching the contract, and, as a result, the plaintiffs suffered injury to their credibility. In short, the plaintiffs pleaded two separate causes of action, and it is not necessarily inconsistent for the jury to find that the breach of the express terms did not cause any injury while finding that the breach of the implied covenant of good faith and fair dealing did cause legal injury.

2

The plaintiffs next claim that the jury’s verdict was inconsistent with the jury interrogatories and, accordingly, that the court should have granted their motion to set aside the verdict. The plaintiffs contend that after deliberating for a second time, “the jury returned with the interrogatories unchanged, but with a second verdict which the trial judge had essentially dictated.” The plaintiffs argue that the second verdict “continued with the inconsistencies relating to breach of contract and breach of the covenant of good faith and fair dealing.” We disagree.

The following additional facts are relevant to our resolution of this issue. The jury initially returned a verdict in favor of the plaintiffs on the counts alleging breach of the implied covenant of good faith and fair dealing, conversion, breach of fiduciary duty and violation of CUTPA. In its answers to interrogatories, the jury found that the alleged breach of fiduciary duty and alleged conversion had not caused legal injury and that the alleged CUTPA violation had not caused ascertainable loss. The court did not accept this verdict because the court deemed it to be inconsistent with the answers to the jury interrogatories. The court explained: “[You stated that] the breach of the fiduciary duty did not. . . cause injury. You’ve also stated that the conversion did not cause injury, and you’ve stated as to CUTPA that the violation did not cause ascertainable harm. Causation is an essential part of liability. So, I am going to ask you to reconsider your plaintiffs’ verdict form saying that you find in favor of the plaintiffs in connection with the conversion, breach of fiduciary duty and [CUTPA].” The court further explained that the jury could resolve this inconsistency by either changing the finding on the verdict form or changing the interrogatory answers. The jury then changed its verdict on the three counts in question from a plaintiffs’ verdict to a defendants’ verdict and, therefore, found that the plaintiffs prevailed only on the count alleging breach of the implied covenant of good faith and fair dealing. The court accepted this revised verdict.

Contrary to the plaintiffs’ assertions, the court did not impermissibly limit the jury as to how it could resolve the inconsistencies. The court explained that it was inconsistent for the jury to find in its answers to interrogatories that the alleged breach of fiduciary duty and alleged conversion had not caused legal injury and that the alleged CUTPA violation had not caused ascertainable loss, while at the same time returning a verdict for the plaintiffs on those counts. The court instructed the jury that causation of injury is an element of each cause of action and indicated that to be consistent, the jury should change either its interrogatory answers or its verdict. The jury resolved the inconsistency by changing its verdict on the breach of fiduciary duty, conversion and CUTPA counts from a plaintiffs’ to a defendants’ verdict.

B

The plaintiffs next claim that the court should have set aside the verdict on the ground that it was inherently ambiguous for the jury to return a verdict in favor of the plaintiffs on the count alleging breach of the implied covenant of good faith and fair dealing and also to award zero damages. We disagree.

“[T]he role of the trial court on a motion to set aside the jury’s verdict is not to sit as a seventh juror, but, rather, to decide whether, viewing the evidence in the light most favorable to the prevailing party, the jury could reasonably have reached the verdict that it did. ... A verdict is not defective as a matter of law as long as it contains an intelligible finding so that its meaning is clear. ... A verdict will be deemed intelligible if it clearly manifests the intent of the jury.” (Citation omitted; internal quotation marks omitted.) Hall v. Bergman, 106 Conn. App. 660, 680, 943 A.2d 515, cert. granted on other grounds, 287 Conn. 911, 950 A.2d 1287 (2008). “[T]he amount of a damage award is a matter peculiarly within the province of the trier of fact . . . and [i]f, on the evidence, the jury could reasonably have decided as [it] did, [the reviewing court] will not find error in the trial court’s acceptance of the verdict . . . .” (Citation omitted; internal quotation marks omitted.) Wickers v. Hatch, 252 Conn. 174, 183, 745 A.2d 789 (2000). “In reviewing the action of the trial court in denying the motions ... to set aside the verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict [it] did. The trial court’s decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess then-credibility and to determine the weight that should be given to their evidence. Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury. . . . Our task is to determine whether the total damages awarded falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case . . . .” (Internal quotation marks omitted.) Childs v. Bainer, 235 Conn. 107, 113, 663 A.2d 398 (1995).

In support of their argument, the plaintiffs cite Malmberg v. Lopez, 208 Conn. 675, 681, 546 A.2d 264 (1988), in which our Supreme Court held that a verdict finding the issues in favor of the party seeking to recover damages but awarding zero damages was inherently ambiguous. The plaintiffs also rely on Fox v. Colony T.V. & Appliance, Inc., 37 Conn. App. 453, 656 A.2d 705, cert. denied, 233 Conn. 915, 659 A.2d 185 (1995), in which we stated that “[a] plaintiffs verdict with a nominal damage award ordinarily suggests that the jury found that despite the defendant’s liability, the plaintiff failed to prove damages. . . . The jury’s intent in rendering a plaintiffs verdict with zero damages ... is far less clear. ... In this situation, it cannot be stated with certainty either that the jury found that the plaintiff had failed to prove any damages or that the jury was confused as to the correct interplay between damages and liability. . . . [T]he jury’s intent in finding the issues for the plaintiff, but awarding zero damages, is known only to the jurors, and this court’s endorsement of one plausible explanation of the verdict over another would amount merely to speculation. . . . The appropriate course of action when such an ambiguous verdict is rendered is to order a new trial on all issues.” (Citations omitted; internal quotation marks omitted) Id., 455-56, citing Malmberg v. Lopez, supra, 681-83.

In the present case, the award of zero damages was not inherently ambiguous. The intent of the jury was not unclear. The jury’s answers to the interrogatories indicated that it found that the plaintiffs proved that Developers Realty had breached the covenant of good faith and fair dealing and that the breach had caused injury to the plaintiffs. The jury answered, “no,” in response to the question, “[d]id the plaintiffs prove the existence and the amount of damages with reasonable certainty?”

The present case is similar to Hughes v. Lamay, 89 Conn. App. 378, 873 A.2d 1055, cert. denied, 275 Conn. 922, 883 A.2d 1244 (2005). In that case, we distinguished Malmberg and Fox by stating that unlike the alleged injuries in those two cases, in Hughes, the plaintiffs alleged injuries were speculative in nature. Id., 386. In Hughes, the jury returned a plaintiffs verdict but awarded no damages. Id., 380-81. This court held that, in context, the award of zero damages fell “ ‘within the necessarily uncertain limits of fair and reasonable compensation’ ” and, therefore, was not ambiguous because the plaintiffs alleged injuries were speculative in nature. Id., 386. In the present case, the plaintiff had to prove lost profits with reasonable certainty to recover damages. See Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 69, 717 A.2d 724 (1998). In its instructions to the jury, the court explained: “The plaintiffs here claim that the breach [of the implied covenant of good faith and fair dealing] caused them to lose the opportunity to earn profits from their promised 50 percent of the equity interest in the Concord project. It is permissible to award damages based on claimed lost profits and, in estimating these, it is allowable to consider financial projections made by a defendant or defendants. There may be other ways to calculate profits in other cases, but many of them are not available in this case because the Concord project did not come to fruition and was not a success. . . . [Y]ou must find that the evidence provides a basis for estimating the amount of lost profits with reasonable certainty.”

The breach of contract that the defendants conceded in opening argument occurred before the project got off the ground. The plaintiffs claimed damages for lost profits reasonably to be anticipated at the time of the breach. The plaintiffs’ expert, David Dumeer, relied on pro forma projections outlining the sales potential for the Concord project. Alan Schachter, the defendants’ expert witness, testified that the calculations used by Dumeer were inappropriate for ascertaining the value of a lost business opportunity. There was evidence provided throughout the opinion of the defendants’ expert that the value of the lost opportunity claimed by the plaintiffs was zero. The jury was free to credit the defendants’ expert and not to credit the plaintiffs’ expert. See Mierzejewski v. Brownell, 102 Conn. App. 413, 422, 925 A.2d 1126 (trier free to accept or reject, in whole or part, testimony offered by either party), cert. denied, 284 Conn. 917, 931 A.2d 936 (2007). The award of zero damages, therefore, was not inherently ambiguous.

C

The plaintiffs next claim that the court abused its discretion in denying their motion to set aside the verdict as contrary to the law and unsupported by the evidence. We disagree.

1

The plaintiffs argue that the court abused its discretion in finding that there was sufficient evidence to support the jury’s findings that the breach of contract, breach of fiduciary duty and conversion did not cause legal injury. We disagree.

The plaintiffs essentially argue that it was clear from the evidence presented at trial that the defendants’ conduct caused them to lose their 50 percent interest in the Concord project. The plaintiffs’ argument assumes that the defendants’ actions necessarily deprived them of something of value. From Froom’s testimony and the parties’ agreement, the jury reasonably could have determined that Froom had no management rights in the partnership. The jury also reasonably could have found that the written agreement did not allow Froom to receive any benefit from the project unless and until it was built and generating income. The testimony of Froom and Kevin M. Dowd, general counsel and senior vice president of Developers Realty, indicates that the Concord shopping center was never built and that it never generated income. The jury reasonably could have concluded that Froom was not entitled to receive benefits from the project and thus suffered no injury.

2

The plaintiffs next argue that the court abused its discretion in finding that there was sufficient evidence to support the jury’s finding that the defendants’ CUTPA violations caused the plaintiffs no ascertainable harm. We disagree.

“To prevail on a CUTPA claim, the plaintiffs must prove that (1) the defendant engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce; General Statutes § 42-110b (a); and (2) each class member claiming entitlement to relief under CUTPA has suffered an ascertainable loss of money or property as a result of the defendant’s acts or practices. General Statutes § 42-110g (a).” (Emphasis added; internal quotation marks omitted.) Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217, 947 A.2d 320 (2008).

The plaintiffs make arguments with respect to the CUTPA claim similar to those made concerning the breach of contract, breach of fiduciary duty and conversion counts. Here, again, we conclude that the jury reasonably could have concluded that Froom was not entitled to receive benefits from the project until it was built and generating income and that because the project was never built, he did not suffer any losses.

3

The plaintiffs next argue that the court abused its discretion in finding that there was sufficient evidence to support the jury’s findings that the defendant trust proved by clear and convincing evidence that it did not breach the fiduciary duty owed to the plaintiffs. We have concluded in part II C 1 that the court did not abuse its discretion in determining that there was sufficient evidence to support the jury’s finding that any breach of fiduciary duty did not cause any injury. Regardless of whether there was sufficient evidence to support the jury’s finding that the trust did not breach the fiduciary duty owed to the plaintiffs, the outcome would remain the same in that the defendants would still prevail on the count alleging a breach of fiduciary duty. Even if we were to assume there was a breach, a defendants’ verdict on this count is supported by the evidence because there was sufficient evidence to support the jury’s finding that any breach did not cause any injury.

For the foregoing reasons, we conclude that it was not an abuse of discretion for the court to deny the plaintiffs’ motion to set aside the verdict. We also note that when we view the totality of the plaintiffs’ claims with respect to the motion to set aside the verdict together with the record as a whole, we discern that the jury reasonably and fundamentally could have determined that the plaintiffs suffered no quantifiable harm, despite the breach, and thus reasonably could have reached the verdict that it did.

Ill

The plaintiffs claim that the court abused its discretion by denying their oral motion for a mistrial made after the jury returned with the revised verdict. We decline to review this claim.

“While the remedy of a mistrial is permitted under the rules of practice, it is not favored. ... On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances which may arise during the trial in which his function is to assure a fair and just outcome. . . . The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice. . . . The decision whether to grant a mistrial is within the sound discretion of the trial court.” (Internal quotation marks omitted.) Label Systems Corp. v. Agkamohammadi, 270 Conn. 291, 316-17, 852 A.2d 703 (2004).

After the juiy returned its revised verdict, the plaintiffs made an oral motion for a mistrial. The court responded, “denied,” and did not elaborate. The plaintiffs did not move for an articulation to ascertain the basis for the court’s decision. Accordingly, we cannot review this claim. The plaintiffs subsequently filed a “motion to set aside the verdict, for a new trial and/or a renewed motion for mistrial” in which, inter alia, they renewed their motion for a mistrial on the basis of the jury’s “hopeless confusion.” In its memorandum of decision, the court did not specifically address the plaintiffs’ motion for a mistrial. “It is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision . . . .” (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 232, 828 A.2d 64 (2003); see also Practice Book §§ 60-5 and 66-5. In view of the inadequate record, we cannot ascertain why the court denied the motion for a mistrial, and, therefore, we decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this action include Developers Realty; Two Loudon Developers, LLC, whose members were Joseph R. Baranowski, Wayne Eisenbaum, Alan Eisenbaum and AMPM Developers; WAAM Developers, a limited liability company whose members were Wayne Eisenbaum, Alan Eisenbaum, Alan Helene and Marla Eisenbaum Helene; Kevin M. Dowd, an attorney for Developers Realty; Joseph Baranowski, president of Developers Realty; Alan Helene, individually and as general partner of AMPM Enterprises, LLC; Wayne Eisenbaum; Alan Eisenbaum; Marla Eisenbaum Helene; and the trust of which Wayne Eisenbaum, Alan Eisenbaum, Marla Eisenbaum Helene were trustees.

       In opening argument, the defendants conceded that Development Realty had breached the written agreement but contended, however, that the breach did not cause the plaintiffs any iiyury. The breach of contract count was against Developers Realty and the trust; the breach of the implied covenant of good faith and fair dealing count was against Developers Realty and the trust; the breach of fiduciary duty count was against Joseph R. Baranowski, Kevin M. Dowd, Developers Realty and the trust; the count alleging violation of CUTPA was against Baranowski, Two Loudon Developers, LLC, WAAM Developers, Developers Realty and the trust; the conversion count was against Baranowski, Dowd, Wayne Eisenbaum, Two Loudon Developers, LLC, WAAM Developers, Developers Realty and the trust; and the tortious interference with business relations count was against Developers Realty, Baranowski, Dowd, the trust, Wayne Eisenbaum, Two Loudon Developers, LLC, and WAAM Developers.

       Practice Book § 66-8 provides: “Any claim that an appeal or writ of error should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ. Any such motion must be filed in accordance with Sections 66-2 and 66-3 within ten days after the filing of the appeal . . . .” (Emphasis added.)

       General Statutes § 52-263 provides in relevant part that “[u]pon the trial of all matters of fact in any cause or action in the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict . . . .” (Emphasis added.)

       Among their claims of inconsistency, the plaintiffs assert that because the evidence showed that Joseph R. Baranowski was the agent of the trust and WAAM Developers, it was inconsistent for the jury to find that (1) Baranowski and Developers Realty failed to prove that they did not breach their fiduciary duty to the plaintiffs while at the same time finding that the trust had proved that it did not breach its fiduciary duty to the plaintiffs and (2) Baranowski and Developers Realty violated CUTPA while also finding that the trust and WAAM Developers had not violated CUTPA.
      Not only does it appear from the motion to set aside the verdict and from the transcripts provided to us that this claim was not raised before the trial court, the court did not address these issues. Accordingly, we will not review it. “[BJecause [appellate] review is limited to matters in the record, we 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).

       In both of these counts, the plaintiffs alleged that the trust was also liable in that Developers Realty was a shell corporation that was controlled by the trust.

       To the extent that the plaintiffs also argue that it was inconsistent for the jury to find in their favor on the count alleging breach of the implied covenant of good faith and fair dealing and in favor of the defendants on the breach of contract count, we do not agree for the reasons stated in part II A 1.

       The plaintiffs also claim that it was inherently ambiguous for the jury to have found that a breach of fiduciary duty and a conversion occurred and also to have awarded no damages on those counts. Although the jury initially returned a plaintiffs’ verdict on these counts and awarded zero damages on them, the court did not accept this verdict. The jury, thereafter, changed its verdict on, inter alia, the counts alleging a breach of fiduciary duty and conversion from a plaintiffs’ verdict to a defendants’ verdict. The court accepted this verdict form. It was not ambiguous for the jury to determine that the plaintiffs did not prevail on the counts alleging breach of fiduciary duty and conversion and not to award damages with respect to those counts.

        Malmberg is a wrongful death case in which the jury had returned a plaintiffs’ verdict but awarded no damages. Malmberg v. Lopez, supra, 208 Conn. 676. The certified issue decided by the Supreme Court in that case was whether the Appellate Court improperly remanded the case for further proceedings only on the issue of damages while allowing the jury’s determination of liability in favor of the plaintiff to remain undisturbed. Id., 679.

       The return of a plaintiffs’ verdict established a technical legal injury that entitled the plaintiffs to at least nominal damages. Hughes v. Lamay, supra, 89 Conn. App. 386 n.7. “[Tjhis court as a general rule [however] will not reverse and grant a new trial for a mere failure to award nominal damages.” (Internal quotation marks omitted.) Id.

       The plaintiffs offer several arguments that the jury’s findings were contrary to law and not supported by the evidence. The plaintiffs argue that “[a]s a result of the defendants’ conduct, Froom was (1) disenfranchised from his benefits and rights under the joint venture agreement, including the business opportunity provided by it; (2) disenfranchised from his benefits and rights under the landowner option agreements; (3) disenfranchised of his accumulated work as partner; and (4) denied his partnership right to participate in the management of the proj ect, as provided by General Statutes § 34-335 (f) .... At a minimum, the defendants took from Froom his 50 percent ownership interest in the Concord project, as valued at the time of the defendants’ taking.”

       “Proof of a fiduciary relationship imposes a twofold burden on the fiduciary. Once a fiduciary relationship is found to exist, the burden of proving fair dealing shifts to the fiduciary. Furthermore, the standard of proof for establishing fair dealing is not the ordinary fair preponderance of the evidence standard. The fiduciary is required to prove fair dealing by clear and convincing evidence.” Stuart v. Stuart, 112 Conn. App. 160, 171 n.5, 962 A.2d 842, cert. granted on other grounds, 290 Conn. 920, 966 A.2d 237 (2009).

       The plaintiffs also claim that because the jury found that Joseph R. Baranowski did not prove by clear and convincing evidence that he did not breach the fiduciary duty owed to the plaintiffs, the court abused its discretion in not finding that the jury was not required to find the trust liable on the theory that Baranowski acted as an agent of the trust with respect to the Concord project. This claim was not raised before the trial court. Accordingly, we decline to consider it on appeal. See Solano v. Calegari, 108 Conn. App. 731, 742, 949 A.2d 1257, cert. denied, 289 Conn. 943, 959 A.2d 1010 (2008).

       In their “motion to set aside the verdict, for a new trial and/or a renewed motion for mistrial” the plaintiffs renewed their motion for a mistrial on the basis of the jury’s “hopeless confusion.” To the extent that the plaintiffs claim that this is improper, we decline to review this claim. In its memorandum of decision, the court did not specifically address the plaintiffs’ motion for a mistrial. “It is . . . the responsibility of the appellant ... to ask the trial judge to rule on an overlooked matter.” (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., supra, 265 Conn. 232.
      We note that the context of the renewed motion for a mistrial suggests that the motion raised the same general subject matter that was developed at greater length in the motion to set aside the verdict.