author: LANDAU, J.

text:
    THAMES RIVER RECYCLING, INC., ET AL. v. ANTHONY J. GALLO ET AL.
    (AC 16742)
    Lavery, Landau and Daly, Js.

      Argued April 1
    officially released November 3, 1998

      Ira B. Grudberg, with whom were Alinor C. Sterling and, on the brief, David L. Belt, for the appellants-appellees (defendants).

      James A. Wade, with whom were Bradford S. Babbitt and, on the brief, Janet C. Hall, for the appellees-appel-lants (plaintiffs).
   Opinion

LANDAU, J.

The defendants, Anthony J. Gallo (Gallo), Star Distributors, Inc., (Star) and A. Gallo Company of Litchfield (Gallo of Litchfield), appeal from the trial court’s judgment rendered in favor of the plaintiffs, following a jury trial, on the plaintiffs’ amended complaint alleging breach of contract, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, conversion, misrepresentation and violation of the Connecticut Unfair Trade Practices Act (CUTPA). The plaintiffs, Thames River Recycling, Inc. (Thames River), Peter Holmes, Paul Novak and John F. McCarthy, filed a cross appeal challenging the trial court’s award of attorney’s fees and its failure to order an additur. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 1,1980, legislation known in Connecticut as the “bottle bill” became law. The bottle bill requires consumers to pay a five cent deposit on certain glass, plastic and aluminum beverage containers at the time of purchase. Consumers may return the empty containers (returns) to obtain a refund of the five cent deposit. The beverage distributor is also required to pay a one and one-half cent handling fee for each return redeemed in the distributor’s territory. After paying the deposit and the handling fee, the distributor owns the returns, which are recyclable materials, and may dispose of them as it chooses. See General Statutes §§ 22a-244 and 22a-245.

Originally, consumers returned cans and bottles to retailers who sold the beverages. In the mid-1980s, reverse vendors or third party recyclers developed another method of returning recyclable containers. Reverse vendors typically place machines in supermarkets. The machine accepts a return by reading the bar code on its side to determine the distributor responsible for it and then issues a nickel or equivalent store credit. The reverse vendor then charges the beverage distributor for the nickel refund paid to the consumer and the one and one-half cent handling fee. In return, the beverage distributor owns the returns. The reverse vendor either gives the distributor a credit for the scrap value of the returns or disposes of the recyclable materials as directed by the distributor.

In response to the bottle bill, Holmes, Novak and McCarthy, who are each beverage distributors, founded Thames River in 1979, and were its corporate stockholders and directors. Thames River accepts and processes all forms of returns. At the time Thames River was formed, each of the shareholders agreed to send all of the returns they owned by virtue of their being beverage distributors to Thames River. Each of Thames River’s shareholders directed that the returns handled by reverse vendors be sent to Thames River, which in turn sold the recyclable materials and divided any profit among the shareholders. New England Recycling Company (New England Recycling) and Environmental Products Corporation (Environmental Products) are two reverse vendors with whom Thames River, Star and Gallo of Litchfield do business.

In 1992, Holmes, McCarthy and Novak wanted to increase the volume of recyclable materials handled by Thames River and approached Gallo, a beverage distributor who does business as Star and Gallo of Litch-field, to invite him to become a shareholder and principal in Thames River. During the parties’ negotiations, representatives from Thames River asked Gallo how many returns they could expect from Star and Gallo of Litchfield. Gallo told them he was unable to provide that information. Thames River representatives, who knew that approximately 90 to 95 percent of beverage containers sold are returned, then asked Gallo for the number of cases of beverages Gallo’s businesses sold annually. Gallo responded that his annual volume of sales was approximately three million cases. Gallo did not, however, tell the representatives of Thames River that he did not intend to send 25 percent of the returns to Thames River because Star and Gallo of Litchfield had prior agreements with New England Recycling and Environmental Products whereby the reverse vendors sold the returns and paid Star and Gallo of Litchfield the scrap value of the recyclables.

On the basis of the representations made by Gallo and in consideration of a promise of all Star’s and Gallo of Litchfield’s returns, Thames River, Holmes, McCarthy and Novak entered into an agreement with Gallo, Star 1 and Gallo of Litchfield as set forth in a series of documents. In return, Gallo received shares of stock in Thames River at no cost to him. As part of the agreement, Star’ and Gallo of Litchfield were to send all of their recyclable materials to Thames River, and Gallo was made a director of Thames River. Thames River agreed to purchase recycling equipment owned by Star Container Recycling and Processing Company and City Leasing, two companies controlled by Gallo that handled returns for both Star and Gallo of Litchfield. In addition, Thames River agreed to handle containers called “bar bottles,” which had to be sorted and returned to breweries; Thames River did not provide this service for anyone other than the defendants.

From the inception of the contract, Star and Gallo of Litchfield failed to send all of their returns to Thames River. Gallo never directed New England Recycling and Environmental Products to deliver the recyclable materials owned by Star and Gallo of Litchfield to Thames River, and he kept the scrap credits issued to Star and Gallo of Litchfield by New England Recycling and Environmental Products. In 1994, when he was confronted with his failure to supply all of his recyclable materials to Thames River, Gallo replied that third party recyclables were not part of the agreement and repudiated his obligation to send them to Thames River. The plaintiffs commenced suit against the defendants in July, 1994. In August, 1994, Gallo attempted to tender his shares of stock in Thames River. He also resigned his position as a director of the corporation. Thames River rejected Gallo’s tender of his shares of stock.

The jury answered a number of interrogatories and rendered a verdict in favor of the plaintiffs, assessing $400,465.43 in damages against Star and $133,488.47 in damages against Gallo of Litchfield, but nothing against Gallo. The trial court awarded the plaintiffs $120,000 in attorney’s fees and costs from Gallo pursuant to the plaintiffs’ CUTPA claim. The defendants appealed and the plaintiffs cross appealed. Additional facts will be mentioned as necessary.

I

On appeal, the defendants claim (1) that the trial court improperly instructed the jury, (2) that the trial court should have set aside the verdict and (3) that there was insufficient evidence for the jury to find that there was a meeting of the minds among the parties. We disagree.

A

The defendants claim that the trial court improperly instructed the jury (1) as to how to determine whether the parties had a meeting of the minds, (2) as to how to determine whether there was a breach of fiduciary duty and (3) as to whether there were CUTPA violations. The defendants also claim (4) that the trial court improperly refused to instruct the jury that Gallo’s tender of his shares terminated the contract.

“Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. . . . We must review the charge as a whole to determine whether it was correct in law and [whether it] sufficiently guided the jury on the issues presented at trial.” (Citations omitted; internal quotation marks omitted.) State v. Elijah, 42 Conn. App. 687, 691, 682 A.2d 506, cert. denied, 239 Conn. 936, 684 A.2d 709 (1996).

Our standard of review on this claim is whether it is reasonably probable that the jury was misled. See McSwiggan v. Kaminsky, 35 Conn. App. 673, 681, 647 A.2d 5, cert. denied, 231 Conn. 934, 649 A.2d 256 (1994). “The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Citations omitted; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 603, 662 A.2d 753 (1995).

1

The defendants’ first claim as to the jury charge is that the trial court’s instruction with respect to whether there was a meeting of the minds among the parties was misleading and inconsistent. The following additional facts are necessary for our review.

The parties agreed that they never discussed New England Recycling and Environmental Products during their negotiations. Prior to the execution of the agreements at issue, the plaintiffs and the defendants had different agreements with New England Recycling and Environmental Products: Holmes, McCarthy and Nolan instructed the reverse vendors to take all returns to Thames River for recycling; Star and Gallo of Litch-field instructed New England Recycling and Environmental Products to sell the returns as recyclable material, and to give Star and Gallo of Litchfield credit against the deposit and handling charges. After the execution of the subject agreements, the parties continued to do business as usual with the third party vendors; that is, Star and Gallo of Litchfield did not direct New England Recycling and Environmental Products to take their returns to Thames River.

At trial, the plaintiffs argued that the defendants agreed when Gallo signed the exclusive supply and sales agreement on September 29, 1992, that Star and Gallo of Litchfield would give “to Thames River an exclusive franchise to receive and recycle all of the Distributor’s recyclable material.” Gallo, Star and Gallo of Litchfield contended that the language did not include the returns collected by the third party vendors.

The defendants took exception to the following portion of the trial court’s jury charge as to count one of the amended complaint: “In order to constitute a contract, the parties must assent to the same thing. In the same sense, if there was a misunderstanding between the parties or a misapprehension by one of them or both so that their minds never met, no contract was entered into by them, the making of a contract depends not on the parties’ having meant the same thing but on their having said the same thing. However, even though parties manifest mutual assent to the same words of the agreement, there may be no contract because of a material difference of understanding as to the terms of the exchange.” (Emphasis added.) The defendants claim that the emphasized words do not correctly express the law of contracts in Connecticut and that because they are juxtaposed with correct statements of the law, the charge is inconsistent and misleading. We are unpersuaded.

Our review of the trial court’s instruction as to count one of the plaintiffs’ amended complaint reveals that it was approximately five pages in length and was adapted to the law and to the issue in question. Contrary to the defendants’ assertion, the language “the making of a contract depends not on the parties’ having meant the same thing but on their having said the same thing” is the law of Connecticut, although maybe not as artfully expressed as it might have been. To wit, “It is the general rule that a contract is to be interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties. [Mulligan v. Rioux, 229 Conn. 716, 740, 643 A.2d 1226 (1994)]; Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990); Powel v. Burke, 178 Conn. 384, 387, 423 A.2d 97 (1979).” Levine v. Massey, 232 Conn. 272, 278, 654 A.2d 737 (1995); see also Garrison v. Garrison, 190 Conn. 173, 175, 460 A.2d 945 (1983); Hydro-Hercules Corp. v. Gary Excavating, Inc., 166 Conn. 647, 652, 353 A.2d 714 (1974); Hess v. Dumouchel Paper Co., 154 Conn. 343, 347, 225 A.2d 797 (1966); Nutmeg State Machinery Corp. v. Shuford, 129 Conn. 659, 661, 30 A.2d 911 (1943) (“making of a contract does not depend upon the secret intention of a party but upon the intention manifested by his words or acts, and on these the other party has a right to proceed”).

We will not conduct an overly technical review of a trial court’s instruction to determine whether it is correct. Read as a whole, the trial court’s instruction on whether there was a meeting of the parties’ minds was an accurate statement of the law in Connecticut and did not mislead the jury. Therefore, the trial court’s instruction was not improper as to the issue of the meeting of the minds.

2

The defendants’ second claim with respect to the jury instruction is that the trial court improperly charged the jury that Gallo, as a stockholder and director of Thames River, owed the corporation a fiduciary duty and put the issue before the jury. We disagree.

The following review of the pleadings is necessary for our analysis of this claim. Count four of the plaintiffs’ amended complaint alleges that Thames River is a close corporation. Paragraph nineteen alleges that “Gallo, in his capacity as a director of Thames River, owed a fiduciary duty to the corporation and its shareholders, and was bound to use and have the utmost good faith, honesty and loyalty to Thames River and its shareholders.” Paragraph twenty-one alleges that “Gallo, in his capacity as a shareholder, owes a fiduciary duty to the other stockholders of Thames River, and is bound to use and have the utmost good faith, honesty and undivided loyalty toward its shareholders.” Count four also alleges, in paragraphs twenty-two and twenty-three, that Gallo breached his fiduciary duties to Thames River and its shareholders, who, as a result of his breach, suffered damages.

The trial court gave the jury the following instructions, in part, with respect to the allegations of count four: (1) “Shareholders in a closely held corporation owe one another substantially the same fiduciary duties that partners owe to one another, the utmost good faith and loyalty. Like the duties of loyalty owed by directors to the corporation and the shareholders, the duty of loyalty from one shareholder in a closely held corporation to another requires conduct and good faith, and in a manner he reasonably believes to be in the best interest of the corporation and with such care as would be exercised by an ordinarily prudent person in a like position under similar circumstances.” (2) “The duty of loyalty owed by directors of the corporation and the shareholders protects faithlessness in self dealing by directors. A director must not only act affirmatively to protect the interest of the corporation, but also refrain from doing anything that would work injury to the corporation or deprive it of property or advantage which might properly come to it. Evidence of bad faith, dishonesty or malfeasance is not required to establish a breach of loyalty. Even passive negligence can constitute a breach of the director’s duties.” The jury answered “yes” to the interrogatory: “Did Anthony Gallo breach any fiduciary duty he had to Thames River Recycling, Inc.?”

Gallo claims that Connecticut law supports the proposition that he did not owe a fiduciary duty to the stockholders or the corporation as a consequence of his being a director and a minority stockholder who did not control the corporation. He also claims that as a matter of law, the breach of fiduciary duty claim should not have gone to the jury.

The plaintiffs, on the other hand, cite cases, but no Connecticut appellate case, that stand for the proposition that minority shareholders in a close corporation owe a fiduciary duty to the corporation and to the stockholders. The plaintiffs do, however, cite Connecticut authority for the rule that a director of a corporation occupies a fiduciary relationship to both the corporation and its stockholders. See Katz Corp. v. T. H. Canty & Co., 168 Conn. 201, 207, 362 A.2d 975 (1975). They also cite authority for the requirement that a director act in good faith. See General Statutes § 33-756. The plaintiffs are correct in their assertion of the law of this state with respect to the duty a director owes a corporation.

The plaintiffs argue that because the defendants did not request separate jury interrogatories regarding each duty alleged, it cannot be known whether the jury found that Gallo breached his duty as a director or his duty as a shareholder or both. Therefore, the jury’s verdict must stand. The defendants reply that the general verdict rule is inapplicable in this case. We agree with the plaintiffs.

Our Supreme Court has held that the general verdict rule applies to the following scenarios: “(1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” Curry v. Burns, 225 Conn. 782, 801, 626 A.2d 719 (1993).

In this case, the plaintiffs’ first theory of recovery is that Gallo, in his capacity as a shareholder, breached a fiduciary duty; their second theory is that Gallo, in his capacity as director, breached a fiduciary duty. The defendants denied that Gallo owed a duty either as a director or as a shareholder. This count, therefore, falls into the third scenario as set forth in Curry. Absent interrogatories that reveal the basis for the verdict on this count, the application of the general verdict rule is appropriate. See Fabrizio v. Glaser, 38 Conn. App. 458, 461, 661 A.2d 126 (1995), aff'd, 237 Conn. 25, 675 A.2d 844 (1996).

Here, the parties did submit interrogatories to the jury. Only one of them concerned Gallo’s breach of fiduciary duty, i.e., “[d]id Anthony Gallo breach any fiduciary duty he had to Thames River Recycling, Inc.?” Gallo was in a position to ask the trial court to submit jury interrogatories to address the issue he now presents on appeal. Gallo took an exception to the trial court’s refusal to charge the jury as he requested—that a minority shareholder owes no fiduciary duty to a coiporation. It is clear that he was aware of the two legal theories on which the plaintiffs’ claim of breach of fiduciary duty was based. To preserve properly the issue for appeal, he should have asked for separate interrogatories to address each of the legal theories alleged. “When there are alternative bases for the verdict, it is necessary for the interrogatories to reveal the actual grounds for the jury’s verdict in order for the general verdict rule to be precluded.” Id., 464.

Furthermore, it is too late in the day for the defendants to make this argument. Our rules of practice contain provisions for the framing of issues for trial. Pleadings have an essential purpose in the judicial process. See Rummel v. Rummel, 33 Conn. App. 214, 217, 635 A.2d 295 (1993). “The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way . . . .” DuBose v. Carabetta, 161 Conn. 254, 261, 287 A.2d 357 (1971). The defendant is not excused from following our established rules of practice. If Gallo was aware of the two separate factual bases on which count four was pleaded, he could have corrected the problem by filing a request to revise or a motion to strike or any other procedural remedy provided by the rules of practice.

A party to a lawsuit cannot take his chances with the jury and hope to overturn the verdict on appeal where he knew the issue was not properly framed in the pleadings and failed to take corrective action, either by taking advantage of the rules of practice to narrow the issues for the jury or by asking for separate interrogatories. “[I]f parties will insist on going to trial on issues framed in a slovenly manner, they must abide the verdict; judgment will not be arrested for faults in statement when facts sufficient to support the judgment have been substantially put in issue and found. . . . Want of precision in alleging the cause of an injury for which an action is brought, is waived by contesting the case upon its merits without questioning such defect.” (Internal quotation marks omitted.) Cellu Tissue Corp. v. Blake Equipment Co., 41 Conn. App. 413, 418, 676 A.2d 405 (1996).

“[T]he so-called general verdict mle provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.” (Emphasis added; internal quotation marks omitted.) Curry v. Burns, supra, 225 Conn. 786. Therefore, the trial court’s jury charge was not improper.

3

The defendants claim that the trial court improperly instructed the jury with respect to the plaintiffs’ CUTPA claim because it misstated the law in regard to negligence and did not give the defendants’ requested instruction regarding intent to deceive. We disagree with both claims.

The defendants’ claims concern the following portion of the trial court’s charge. “[T]o recover under CUTPA for a simple breach of contract, the plaintiff must show substantial aggravating circumstances intending to breach. Under [CUTPA] intent to deceive is not relevant. The fact that a deception occurred and injured others in business is all that is required. A failure to disclose information does not violate the Connecticut Unfair Trade Practices Act unless our distributors, [Gallo of Litchfield or Gallo], had a duty to disclose the information.

“In determining whether [Star, Gallo of Litchfield or Gallo] had an obligation to disclose to Thames River that some recyclable material originally distributed by [Star] and [Gallo of Litchfield] was being collected and resold by [New England Recycling] and [Environmental Products] without returning it to [Star] or [Gallo of Litchfield], you should apply the instructions I gave you in connection with the claim of negligent misrepresentation from count three of the amended complaint.

“In considering the second [factor], proof that a party acted negligently is not sufficient to establish that the party’s conduct was immoral, unethical or unscrupulous. Therefore, proof that a party acted negligently is not sufficient to establish that the party violated [CUTPA] unless the party claiming the act was violated also proved by a preponderance of the evidence that the third factor, which I will describe in a moment, has been violated. Where the claimed violation of CUTPA is grounded in negligence, proof that the first criterion for determining that the act had been violated, that whether the conduct of the defendant violated public policy as it has been established by statute or common law or other established counts of unfairness standing alone is sufficient to establish a violation of the act.

“The third factor for determining whether an act or practice was unfair or deceptive, that is whether it caused substantial unjustified injury to consumers, competitors or other business people, is the most important of the three criteria for determining whether there has been a violation of CUTPA.

“Proof of an unjustified injury to consumers, competitors or other business people is a necessary predicate for recovery under [CUTPA], In order for an act or practice to have caused substantial unjustified injuries to consumers, competitors or other business persons, the following three factors must be found: One, the injury caused must have been substantial; two, the injury caused must not have been outweighed by any countervailing benefits to consumers or by competition that the practice produces; and three, that the injury caused must have been an injury that the consumer, competitor or other business person could not reasonably have avoided.” (Emphasis added.)

Our courts are well versed in the law that determines whether CUTPA has been violated. “[I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [Wjhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen] .... All three criteria do not need to be satisfied to support a finding of unfairness.

“A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy. . . . Furthermore, a party need not prove an intent to deceive to prevail under CUTPA. . . . Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 105-106, 612 A.2d 1130 (1992).” (Internal quotation marks omitted.) Gebbie v. Cadle Co., 49 Conn. App. 265, 279, 714 A.2d 678 (1998).

a

The defendants’ first claim with respect to the CUTPA charge is that the trial court included the instruction that negligence alone “is sufficient to establish a violation of the act.” Although this language is printed in the transcript and we acknowledge that this statement of the law, as transcribed, is incorrect, our review of the transcript and the charge in its entirety leads us to conclude that this statement did not mislead the jury.

As noted by the emphasis in our recitation of the challenged instruction, the court thrice stated the law with respect to negligence and CUTPA, twice correctly and once incorrectly. We also note that the defendants did not bring the incorrect statement to the trial court’s attention immediately following the trial court’s charge when there was time for the trial court to correct it. When giving a lengthy jury instruction, as in this case, “an inadvertent slip of the tongue by the trial court”; State v. Delosantos, 13 Conn. App. 386, 391, 536 A.2d 609 (1988); may occur.

“An erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury was misled.” (Internal quotation marks omitted.) Id. Here, the trial court correctly stated the law and informed the jury that to find a violation of CUTPA grounded in negligence, the plaintiff must prove that the act violated public policy and “caused substantial unjustified injury to consumers, competitors or other business people.” Taken as a whole, the trial court’s charge did not mislead the juiy.

b

The defendants’ second claim with regard to the CUTPA instruction is that the trial court improperly told the jury that intent to deceive is not relevant. We disagree with the defendants’ claim.

The crux of the defendants’ argument is that the trial court did not use their request to charge no. 39 verbatim. There is no requirement that a trial court instruct the jury in the exact words requested by a party. The trial court may put the substance of the request to charge in its own words. See Goodmaster v. Houser, 225 Conn. 637, 644 n.7, 625 A.2d 1366 (1993). All that is required is that the instruction “must correctly adapt the law to the case in question and must provide the jury with sufficient guidance . . . .” Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 603.

The defendants rely on Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 657 A.2d 212 (1995), and A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 579 A.2d 69 (1990), particularly our Supreme Court’s holding that “the first prong, standing alone, is insufficient to support a CUTPA violation, at least when the underlying claim is grounded solely in negligence.” Id., 217. The pleadings in both of those cases are clearly distinguishable from the pleadings in the case before us because the CUTPA claim here is not grounded solely in negligence. In Williams Ford, Inc., and A-G Foods, Inc., the plaintiffs’ CUTPA claims were based on negligence only. Here, the plaintiffs alleged breach of contract, negligent misrepresentation and breach of fiduciary duty by reference in their CUTPA count against Gallo. Therefore, the trial court’s instruction on the CUTPA count correctly adapted the law to the case in question and provided sufficient guidance to the jury.

The plaintiffs argued that even if the trial court’s instruction was improper, which we hold it was not, the impropriety was harmless because the defendants incorrectly presume that the jury based its CUTPA finding solely on the negligent misrepresentation claim. As we have noted, the plaintiffs’ CUTPA count alleged three different theories as to how the defendants violated the act. The parties did not submit interrogatories to the jury to determine the basis of the CUTPA award. Only the jurors know why they found that Gallo violated CUTPA. Therefore, the general verdict rule applies for the same reasons as those discussed in part IA 2 concerning breach of fiduciary duty. See Curry v. Burns, supra, 225 Conn. 782.

We therefore conclude that the jury instruction with respect to the CUTPA count was proper.

4

The defendants next claim that the trial court improperly refused to charge the jury that Gallo’s tender of his shares terminated the obligation to perform. More specifically, the defendants claim that the trial court improperly failed to permit the jury to consider whether Gallo’s tender of his Thames River stock after the present lawsuit was commenced terminated the exclusive supply agreement and whether damages could be assessed after that date. We do not agree.

“When either party has offered evidence which he claims proves a certain set of facts important to the decision of the case and properly requests the court to charge the law applicable to those facts, it is the duty of the court to comply in substance with the requests. Berman v. Kling, 81 Conn. 403, 407, 71 A. 507 [1908].” Tyburszec v. Heatter, 141 Conn. 183, 187, 104 A.2d 548 (1954). The following facts, which are not in dispute, are relevant to our consideration of this claim.

At a meeting of the Thames River board of directors in the spring of 1994, the plaintiff McCarthy accused Gallo of not sending his recyclable materials from Environmental Products and New England Recycling to Thames River. Gallo responded that the third party recyclables were not part of the agreement, a position that he maintained at another directors’ meeting one month later. In July, 1994, Thames River commenced the present lawsuit against Gallo. Thereafter, Gallo attempted to tender his stock in Thames River. The corporation rejected his tender offer, which was followed by Gallo’s resignation as a director of Thames River. Star and Gallo of Litchfield continued to send their returns to Thames River as they had done previously, but not the third party returns.

The defendants claim that any obligation they had under the supply agreement was terminated in August, 1994, and that the trial court had a duty to instruct the jury on the legal consequences of that termination. The defendants submitted requests to charge that related to whether Gallo’s offer and tender of his stock in Thames River and Thames River’s refusal to accept that tender terminated the admittance and supply agreements. The defendants’ theory is that if the supply agreement was terminated, there would be no damages after the date of termination. We are not persuaded.

“The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as he would have been in had the contract been performed. West Haven Sound Development Corporation v. West Haven, [201 Conn. 305, 319, 514 A.2d 734 (1986)]; Gordon v. Indusco Management Corporation, 164 Conn. 262, 272, 320 A.2d 811 (1973). Damages for breach of contract are to be determined as of the time of the occurrence of the breach. Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 749, 535 A.2d 1287 (1988); Gordon v. Indusco Management Corporation, supra, 164 Conn. 264.” (Internal quotation marks omitted.) West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 317-18, 541 A.2d 858 (1988).

The plaintiffs’ position is that the defendants breached the exclusive supply agreement when they failed to send all of the recyclable materials generated by Star and Gallo of Litchfield to Thames River, and that Gallo repudiated the agreement when he informed his fellow stockholders that third party recyclables were not part of the agreement and that he would not direct New England Recycling and Environmental Products to send his recyclable material to Thames River. We agree.

“An anticipatory breach of contract occurs when the breaching party repudiates his duty before the time for performance has arrived. Martin v. Kavanewsky, 157 Conn. 514, 518-19, 255 A.2d 619 (1969); Koski v. Eyles, 37 Conn. Sup. 861, 862, 440 A.2d 317 (1981). Its effect is to allow the nonbreaching party to discharge his remaining duties of performance, and to initiate an action without having to await the time for performance. Martin v. Kavenewsky, supra.” (Internal quotation marks omitted.) Pullman, Comley, Bradley & Reeves v. Tuck-it-Away, Bridgeport, Inc., 28 Conn. App. 460, 465, 611 A.2d 435, cert. denied, 223 Conn. 926, 614 A.2d 825 (1992). Actions that occur after the time of breach are “irrelevant to the amount of damages that were previously determined.” Rametta v. Stella, 214 Conn. 484, 493, 572 A.2d 978 (1990); Levesque v. D & M Builders, Inc., 170 Conn. 177, 183, 365 A.2d 1216 (1976). Gallo’s efforts to tender his stock in the corporation after Star and Gallo of Litchfield failed to send all of their returns to Thames River and after Gallo told his fellow stockholders that third party recyclables were not part of the agreement and after the plaintiffs commenced suit are not relevant. Therefore, the trial court did not improperly refuse to charge the jury that Gallo’s tender of his stock terminated the obligation to perform.

B

The defendants claim that the trial court improperly refused to set aside the verdicts (1) against Gallo of Litchfield and (2) against Gallo on the CUTPA claim. These claims lack merit.

“A trial court’s discretion is limited when setting aside a juiy verdict. Paramount is the basic principle that it must not usurp the factfinding function of the jury. It is well established law that, where a jury trial is elected, [l]itigants have a constitutional right to have issues of fact decided by the jury .... The right to a jury trial is fundamental in our judicial system, and . . . the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of a trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded [persons] passed upon by the jury and not by the court. . . . Further, [t]he conclusion of a jury on issues of fact, if it is one at which honest [persons] acting fairly and intelligently could arrive reasonably, must stand, even though the opinion of the trial court and [this court] might be that a different result should have been reached. . . . The trial judge is, therefore, limited to determining whether there is any evidence to support the verdict.” (Citations omitted; internal quotation marks omitted.) Lemonious v. Burns, 23 Conn. App. 735, 738-39, 583 A.2d 1328, cert. denied, 218 Conn. 903, 588 A.2d 1078 (1991).

“The evidence must be construed in a light most favorable to sustaining the jury’s verdict. ... It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.” (Citations omitted; internal quotation marks omitted.) State v. Radzvilowicz, 47 Conn. App. 1, 16-17, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997).

1

The defendant Gallo of Litchfield claims that because there was insufficient evidence to support the jury’s assessment of damages against it, the trial court improperly refused to set aside the verdict. More specifically, Gallo of Litchfield argues that on the basis of the testimony of the plaintiffs’ expert witness and the plaintiffs’ maximum damages model, it is liable only for 2 to 3 percent of the damages the plaintiffs claim, or $25,000. In this case the jury rendered a total verdict of $533,953.91, of which $133,488.47 was assessed against the defendant Gallo of Litchfield. We disagree.

Our review of the transcript and the exhibits reveals that there was sufficient evidence to support the jury’s verdict against Gallo of Litchfield. In addition to the testimony of the plaintiffs’ expert and the maximum damages model he developed, the jury could reasonably have found that the plaintiffs incurred losses in addition to those identified in the maximum damages model. The plaintiffs presented evidence that Thames River hired additional employees and purchased more trucks to handle the volume of recyclable material promised by the defendants and to sort the defendants’ bar bottles. The Thames River stockholders purchased a new building to accommodate the increased volume of recyclable material and continued to incur rent at its prior location. The stockholders also expended their personal resources to obtain credit. On the basis of those subordinate facts, we conclude that there was sufficient evidence to support the jury’s verdict and that the trial court did not abuse its discretion in failing to set aside the verdict against Gallo of Litchfield.

2

The defendants claim that the CUTPA verdict against Gallo should have been set aside because (1) it was based on an improper jury charge and (2) the trial court’s award of CUTPA damages was improper where the jury did not award damages against Gallo. We are unpersuaded.

“Whether a practice is unfair and thus violates CUTPA is an issue of fact. . . . The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court.” (Citation omitted; internal quotation marks omitted.) Krawiec v. Blake Manor Development Corp., 26 Conn. App. 601, 607-608, 602 A.2d 1062 (1992).

a

The defendants’ first claim is that the CUTPA verdict against Gallo should be set aside because the trial court’s instructions to the jury were improper. The defendants’ claim lacks merit for all of the reasons set forth in part IA 3 of this opinion. In addition, “CUTPA reflects a public policy that favors remedying wrongs that may not be actionable under other bodies of law. ... It is, therefore, not necessary to find [the defendant] liable for some underlying actionable wrong in order to support a CUTPA claim.” (Citation omitted.) Willow Springs Condominium Assn. v. Seventh BRT Development Corp., 245 Conn. 1, 43, 717 A.2d 77 (1998). Therefore, the trial court properly exercised its discretion in refusing to set aside the CUTPA verdict.

b

The defendants’ second claim is that the trial court improperly assessed attorney’s fees against Gallo regarding the CUTPA claim because (1) the jury had not assessed damages against him and (2) the award is contrary to public policy. We do not agree.

i

“[T]he public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices. ... In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for the award of attorney’s fees and costs. . . . Once liability has been established under CUTPA, attorney’s fees and costs may be awarded at the discretion of the court. . . . We will not interfere with the trial court’s exercise of this discretion unless there is manifest abuse or injustice appears to have been done.” (Internal quotation marks omitted.) Gebbie v. Cadle Co., supra, 49 Conn. App. 279-80.

“The award of attorney’s fees and punitive damages under CUTPA has some features not common to such awards in other types of cases. For example, the trial court is not precluded from exercising this discretion even if it finds that the plaintiff has not suffered ascertainable damages. Tillquist v. Ford Motor Credit Co., 714 F. Sup. 607 [617] (D. Conn. 1989). Additionally, the amount of attorney’s fees that the trial court may award is based on the work reasonably performed by an attorney and not on the amount of recovery. General Statutes § 42-1 lOg (d).” Jacques All Trades Corp. v. Brown, 42 Conn. App. 124, 131, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997).

In the matter before us, the jury found Gallo liable for breach of contract, breach of fiduciary duty, negligent representation and violation of CUTPA. In answering interrogatories, the jury determined a lump sum of damages in answer to interrogatory number three, which it assessed against the two corporate defendants on the verdict form. In answering interrogatories dealing with the damages the plaintiffs sustained as a result of Gallo’s breach and tortious actions, the jury responded, “same as 3.” The reasonable explanation for this response is that although the jury found that Gallo’s actions were illegal, they were not the proximate cause of the plaintiffs’ losses. Nonetheless, in keeping with the law of this jurisdiction, the plaintiffs were entitled to have the trial court award them attorney’s fees for acting as private attorneys general in order to redress Gallo’s deceptive behavior in failing to disclose to his business associates that a significant number of recyclables would not be sent to Thames River.

ii

Finally, the defendants claim that because this litigation is a commercial dispute and not a dispute between a consumer and a corporation, the plaintiffs should not be awarded attorney’s fees. This public policy argument is contrary to our case law. Our Supreme Court previously has “stated in no uncertain terms that CUTPA imposes no requirement of a consumer relationship.” Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 496, 656 A.2d 1009 (1995). “We agree with the plaintiff that CUTPA is not limited to conduct involving consumer injury. General Statutes § 42-1 lOg (a) provides in part: ‘Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages.’ Person, as defined by the statute, includes: ‘a natural person, corporation, trust, partnership, incorporated or unincorporated association, and any other legal entity.’ General Statutes § 42-110a (3). The statute’s coverage is broad and its puipose remedial. Hinchliffe v. American Motors Corporation, 184 Conn. 607, 616, 440 A.2d 810 (1981). The General Assembly has not seen fit to limit expressly the statute’s coverage to instances involving consumer injury, and we decline to insert that limitation. We agree with the plaintiff that a competitor or other business person can maintain a CUTPA cause of action without showing consumer injury.” McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 566-67, 473 A.2d 1185 (1984).

If the legislature intended the remedy afforded by CUTPA to apply to all persons, including corporations, the entire statute, with all its provisions, must also apply to corporations. Therefore, the plaintiffs were entitled to attorney’s fees in the discretion of the trial court. Because we find that it did not abuse its discretion, the trial court’s award of attorney’s fees to the plaintiffs was proper and there was no reason to set aside the verdict.

C

The defendants’ final claim on appeal is that there was insufficient evidence for the jury to determine that there was a meeting of the minds among the parties. We do not agree.

The standards by which we review claims of insufficient evidence are well established. “An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law.” (Internal quotation marks omitted.) Steiger v. J. S. Builders, Inc., 39 Conn. App. 32, 34, 663 A.2d 432 (1995).

“We do not sit as the seventh juror when we review the sufficiency of the evidence; State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990); rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict .... Moreover, [i]n reviewing the jury verdict, it is well to remember that [j jurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994).

“Evidence is sufficient to sustain a verdict where it induces in the mind of the [trier] that it is more probable than otherwise that the fact in issue is true. ... It is the province of the trier of fact to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. ... In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated jury could return the verdict that it did.” (Citations omitted; internal quotation marks omitted.) Baker v. Cordisco, 37 Conn. App. 515, 528, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995).

“[T]o form a contract, generally there must be a bargain in which there is a manifestation of mutual assent to the exchange between two or more parties; see Restatement (Second), Contracts §§ 1 (c), 15, 19 (Tent. Dr. 1964); 1 Williston, Contracts (1957) §§ 18, 22; see also Hoffman v. Fidelity & Casualty Co., 125 Conn. 440, 444, 6 A.2d 357 (1939); Clark v. Diefendorf 109 Conn. 507, 510, 147 A. 33 (1929).” Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981). “The manifestation of assent may be made wholly or partly by written or spoken words or by other acts or by failure to act.” (Internal quotation marks omitted.) Id.

In addition to the facts set forth previously in this opinion, the jury also could reasonably have found that Gallo signed all of the documents and agreements related to Thames River on the advice of counsel. On the basis of the evidence before it, including copies of all documents signed by the parties, the jury could reasonably have inferred from the subordinate facts that there was a meeting of the minds among the parties and that Gallo, Star and Gallo of Litchfield agreed to give Thames River all of their recyclable materials. We will not disturb the jury’s verdict because it was within the province of the jury to pass on the credibility of the witnesses, and there was sufficient evidence by which the members of the jury could reasonably infer that there was a meeting of the minds among the parties.

II

The plaintiffs have cross appealed claiming that the trial court improperly (1) abused its discretion by awarding less than all of the attorney’s fees it found to be reasonable and (2) failed to award an additur based upon the inherent ambiguity between the jury’s answers to interrogatories and its verdict. We affirm the judgment of the trial court.

A

The plaintiffs’ first claim is that the trial court abused its discretion by awarding less than all of the attorney’s fees that the court found to be reasonable pursuant to the plaintiffs’ CUTPA claim. We disagree.

The jury found that Gallo violated CUTPA. Pursuant to § 42-110g, plaintiffs prevailing on a CUTPA claim are entitled to attorney’s fees, which are to be awarded by the trial court. The trial court held a hearing on December 23, 1996, on the plaintiffs’ motion for an award of $235,066.86 in attorney’s fees and costs. The trial court found the hourly rate charged by the plaintiffs’ counsel was reasonable and that the total fee charged was reasonable. The trial court was aware of the factors to be considered in the award of attorney’s fees and costs as articulated in Steiger v. J. S. Builders, Inc., supra, 39 Conn. App. 38; see footnote 19; and awarded the plaintiffs $100,000 in attorney’s fees and $20,000 in costs, exclusive of costs permitted by General Statutes § 52-257. The plaintiffs claim that the trial court abused its discretion by awarding less than half of the attorney’s fees and costs it found to be reasonable, and ask this court to award the amount of damages found to be reasonable.

“Awarding . . . attorney’s fees under CUTPA is discretionary; General Statutes § 42-1 lOg (a) and (d) . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.” (Internal quotation marks omitted.) Neilsen v. Wisniewski, 32 Conn. App. 133, 138, 628 A.2d 25 (1993). “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . State v. Polanco, 26 Conn. App. 33, 41, 597 A.2d 830 [cert. denied, 220 Conn. 926, 598 A.2d 367] (1991). The salient inquiry is whether the court could have reasonably concluded as it did. Yale University School of Medicine v. McCarthy, [26 Conn. App. 497, 501, 602 A.2d 1040 (1992)]. It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds. State v. Schroff 198 Conn. 405, 413, 503 A.2d 167 (1986). In determining whether there has been an abuse of discretion, much depends upon the circumstances of each case. Id.” (Internal quotation marks omitted.) State v. Arbour, 29 Conn. App. 744, 748, 618 A.2d 60 (1992).

The transcript of the trial court’s hearing on the plaintiffs’ CUTPA claim is before us for review. In rendering its decision, the trial court cited two Appellate Court cases, and said that it was aware of twelve factors it is to consider when awarding attorney’s fees and that it considered all of those guidelines and did not seize on one to the exclusion of the others. See Steiger v. J. S. Builders, Inc., supra, 39 Conn. App. 39.

“Our review of whether the trial court correctly applied the guidelines and set a reasonable award of attorney’s fees is limited to a consideration of whether the court abused its discretion.” Id. The trial court informed the parties when it made the award of costs and attorney’s fees that it knew the law and applied it to the facts of this case as required. The plaintiffs have pointed to nothing in the record or the transcript to indicate that the trial court did not apply the law to the facts. The plaintiffs’ only claim is that the trial court did not award all of the fees and costs the plaintiffs assert were due them. Without more, the plaintiffs have not sustained their burden of persuading this court that there was an abuse of discretion. Therefore, we will not disturb the trial court’s award.

B

The plaintiffs’ second claim on their cross appeal is that the trial court improperly failed to award an additur based on the ambiguity inherent in the jury’s answers to the interrogatories. Specifically, the plaintiffs claim that the trial court improperly failed to assess $533,953.91 in damages against Gallo.

A review of the facts specific to this claim is necessary. The jury was instructed to answer twenty-eight interrogatories relevant to the plaintiffs’ claims against the defendants. See footnote 6. The interrogatories contained two sets of three questions each concerning whether there was an enforceable contract, whether the contract had been breached and what damages were the result of the breach. Significantly, there was no interrogatory asking whether any party’s breach of contract was the proximate cause of the plaintiffs’ loss. One set of each of these interrogatories was directed to each of the corporate defendants. The jury entered a monetary figure in response to interrogatory number three only, “$533,953.91,” which concerned Star. The answer with respect to Gallo of Litchfield was “included in # 3.” The jury answered the interrogatory concerning the amount of damages Thames River sustained as a result of Gallo’s breach “same as 3.” Although the jury found that Gallo had violated CUTPA, the foreperson simply drew a line in response to the damages question on the interrogatory form. The jury completed the verdict form assessing $400,465.43 in damages against Star and $133,488.47 against Gallo of Litchfield and none against Gallo personally. The plaintiffs moved for an additur or, in the alternative, that the verdict be set aside and a new trial ordered as to damages.

The plaintiffs argue that because the jury found Gallo breached the contract by failing to send all his returns to Thames River, made a misrepresentation, breached his fiduciary duties, breached his duty of good faith and fair dealing and violated CUTPA, it is clear that Thames River suffered $533,953.91 in damages. The plaintiffs ask this court to make an award of additur. In the alternative, the plaintiffs asks that the case be remanded to the trial court for a new trial as to damages only. The defendants contend that the ambiguity between the interrogatories and the verdict requires this court to set aside the verdict and order a new trial.

“The trial court’s refusal to set aside the verdict or to order an additur is entitled to great weight and every reasonable presumption should be given in favor of its correctness. In reviewing the action of the trial court in denying the motions for additur and 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 they 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 their 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).

“If, on the evidence, the jury could reasonably have decided as they did, [the reviewing court] will not find error in the trial court’s acceptance of the verdict.... However, it is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence. . . . The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, mistake or corruption. . . . It is the function of this court to determine whether the trial court abused its discretion in denying [a party’s] motion. ... In reviewing this issue, our sole responsibility is to decide whether, on the evidence presented, the jury could fairly have reached the conclusion it did.” (Citations omitted; internal quotation marks omitted.) Id., 113-14.

Our Supreme Court has established the parameters of a trial court’s discretion in ruling on a motion for additur. They are: whether (1) the jury award shocks the conscience, (2) the plaintiff, who has proved substantial injuries, is awarded inadequate damages and (3) the verdict is inherently ambiguous. Id., 114-15. None of the parameters enunciated by our Supreme Court is present in the jury award before this court. Although the jury’s award is approximately one-half of what the plaintiffs’ claimed, the members of the jury could reasonably have found that although Gallo breached his contract, committed numerous torts against the plaintiffs and violated CUTPA, his actions were not the cause of the plaintiffs’ loss. The jury reasonably could have inferred from the subordinate facts that the plaintiffs’ loss was caused by the corporate defendants’ failure to send all of their recyclable materials to Thames River. Because the jury’s verdict does not shock the conscience, is not inadequate and is not ambiguous, the trial court did not improperly fail to set aside the verdict or award an additur.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 42-110a et seq.

       See General Statutes § 22a-243 et seq.

       At trial, Gallo conceded that he would have been able to provide the requested information.

       The documents included a preliminary letter of agreement, an admittance agreement, an exclusive supply and sales agreement, an addendum to an agreement dated February 26, 1981, a contract of purchase and sale, a security agreement and a bill of sale.

       Holmes, McCarthy and Novak had previously paid $10,000 for their equivalent shares of stock.

         The jury’s answers to interrogatories reveal its findings:
      (1) There was an enforceable contract between Star and Thames River obligating Star to supply Thames River with recyclable material collected by New England Recycling and Environmental Products.
      (2) Star breached its contract with Thames River.
      (3) Thames River sustained $533,953.91 in damages as a result of Star’s breach of contract.
      (4) There was an enforceable contract between Gallo of Litchfield and Thames River obligating Gallo of Litchfield to supply Thames River with recyclable material collected by New England Recycling and Environmental Products.
      (5) Gallo of Litchfield breached its contract with Thames River.
      (6) The money damages Thames River sustained as a result of Gallo of Litchfield’s breach is “included in # 3.”
      (7) Gallo breached his contract with Thames River.
      (8) The money damages Thames River sustained as a result of Gallo’s breach is the “same as # 3.”
      (9) Gallo made a negligent misrepresentation to Thames River prior to the time the parties signed the exclusive supply and sales agreement and the admittance agreement, which resulted in damage to Thames River.

        (10) The money damages Thames River sustained as a result of Gallo’s negligent misrepresentation axe the “same as # 3.”
      (11) Gallo breached any fiduciary duty he had to Thames River.
      (12) The money damages Thames River sustained as a result of any breach of fiduciary duty by Gallo are “see # 3.”
      (13) Star and Gallo of Litchfield did not breach the implied covenant of good faith and fair dealing with Thames River.
      (14) Because they did not breach the implied covenant of good faith and fair dealing, Thames River sustained no money damages.
      (15) Gallo breached the implied covenant of good faith and fair dealing with Thames River.
      (16) The money damages Thames River sustained as a result of Gallo’s breach of the implied covenant of good faith and fair dealing are “see # 3.”
      (17) through (20) Star and Gallo of Litchfield did not violate CUTPA. Because they did not violate CUTPA, Thames River did not sustain any money damages.
      (21) Gallo violated CUTPA.
      (22) The money damages Thames River sustained as a result of Gallo’s CUTPA violation are “see # 3.”
      (23) through (28) Star, Gallo of Litchfield and Gallo did not convert any property of Thames River. Because they did not convert any of its property, Thames River did not sustain any money damages.

       The trial court’s charge as to count one stated in part: “In the first count of their amended complaint, Thames River claims that [Star] and [Gallo of Litchfield] breached the exclusive supply and sales agreement dated September 29th, 1992 by failing to supply Thames River with all of the distributor’s . . . recyclable material. Specifically, Thames River claims that [Star] and [Gallo ofLitchfield] failed to supply it with recyclable material received by [New England Recycling] and [Environmental Products] and processed and resold by them. [Star] and [Gallo ofLitchfield] claim there was no obligation to deliver the recyclable material received by [New England Recycling] and [Environmental Products] to Thames River.
      “The Exclusive Supply and Sales Agreement dated September 29th, 1992, states that the distributors, meaning [Star] and [Gallo of Litchfield], give to Thames River, meaning Thames River Recycling, an exclusive franchise to receive and recycle all of the distributor’s recyclable material. The parties disagree concerning whether the phrase ‘all of the distributor’s recyclable material’ includes recyclable material received, processed, and sold by [New England Recycling] and [Environmental Products] of which was never returned to [Star] and [Gallo of Litchfield].
      “Before considering whether [Star] and [Gallo of Litchfield] breached a contract with Thames River Recycling, you must first determine whether an enforceable contract existed between them. In order for you to find that an enforceable contract existed between [Star] and [Gallo ofLitchfield] and Thames River, you must find that their minds had truly met. In order for you to find that there was an offer and acceptance sufficient to create an enforceable contract, you must find that both the offer and the acceptance were based on an identical understanding by the parties.
      “In order to constitute a contract, the parties must assent to the same thing. In the same sense, if there was a misunderstanding between the parties or a misapprehension between the parties or a misapprehension by one of them or both so that their minds never met, no contract was entered into by them, the making of a contract depends not on the party’s having meant the same thing but on their having said the same thing. However, even though the parties manifest mutual assent to the same words of the agreement, there may be no contract because of a material difference of understanding as to the terms of the exchange.
      “The burden is on the party seeking to recover damages for breach of contract to prove that there was a meeting of the minds with respect to its version of the claimed contract. In determining what the parties intended, you may consider not only the language used in the contract, but also the circumstances surrounding the making of the contract, the motives of the parties, and the purposes they sought to accomplish. You may also consider a party’s conduct for the purpose of determining what it intended.
      “The words of a contract must be given their common usage and meaning. The word distributors in the phrase "distributor’s recyclable material’ is the possessive form that denotes ownership. Ownership is evidenced by title, possession, or right of possession, control, or responsibility. Therefore, unless [Star] and [Gallo of Litchfield] owned the recyclable materials collected and resold by [New England Recycling], this recyclable material was not [Star and Gallo of Litchfield’s] recyclable material and [Star] and [Gallo of Litchfield] were not obligated to supply it to Thames River.
      “In Connecticut, all beer distributors must accept and refund a deposit on all empty beverage containers of the kind, size, and brand sold by that distributor. A refund of five cents deposit on each container offered for refund and pay a one and one-half cent handling fee on each such container offered for refund. Accordingly, beer distributors own all of the empty beverage containers that they accepted and refunded deposits on. Connecticut law does not require a dealer or operator of a redemption center to return empty beverage containers to the distributor.
      “However, Connecticut law does mandate that distributors remove or arrange for the removal of the containers from the premises of the dealer or redemption center. Ambiguities in a contract document or documents are to be resolved against the party responsible for its drafting. Therefore, when two meanings are possible, an agreement is to be construed against the party who drew it and for whose benefit the provision was inserted.
      “Where the parties appear to have agreed to the terms of the contract, when circumstances disclose a latent ambiguity in the meaning of an essential word and this ambiguity goes to the essence of the supposed contract, the result is that there is no contract. . . .”

       “There is authority for the proposition that if A makes an agreement with B, thinking that B is C, the contract is voidable at A’s option. There are undoubtedly many statements to that effect in cases and in accepted textbooks. 1 Page, Contracts, § 260; 1 Elliot, Contracts, § 102; Anson, Contracts (Patterson Ed.) § 214. It is to be noted, however, that Page prefaces his many citations to support his text with the statement that in most of the cases there is present an element of fraud in which, we have no doubt, he means to include cases where B has reason to know A is acting under a mistake. On the bald proposition, Williston, 5 Contracts (Rev. Ed.), §§ 1558, 1573, takes an opposite view, as does the Restatement, 2 Contracts, § 503, and particularly illustration 2 on page 967.” Nutmeg State Machinery Corp. v. Shuford, supra, 129 Conn. 661.

         The defendants have not provided any legal authority for the proposition that a director of a close corporation does not owe the corporation or the stockholders a fiduciary duty. “We will not review such claims, absent law and analysis.” New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 101, 709 A.2d 14 (1998).
      The defendants also provide no analysis of their claim that the breach of fiduciary duty claim should not have gone to the jury. “[Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Fitzgerald v. Fitzgerald, 16 Conn. App. 548, 554, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988). Fromer v. Freedom of Information Commission, 36 Conn. App. 155, 156, 649 A.2d 540 (1994).” (Internal quotation marks omitted.) New London Federal Savings Bank v. Tucciar-one, supra, 48 Conn. App. 101.

       We need not decide this question in order to decide the issue on appeal.

       General Statutes § 33-756 (a) provides: “A director shall discharge his duties as a director, including his duties as a member of a committee: (1) In good faith; (2) with the care an ordinarily prudent person in a like position would exercise under similar circumstances; and (3) in a manner he reasonably believes to be in the best interests of the corporation.”

       Practice Book § 147, now § 10-35.

       Practice Book § 151, now § 10-39.

       The defendants’ claim was properly preserved for appellate review by their request to charge.

       The defendants’ request to charge no. 39 stated: “Although no intent to deceive is necessary in order to establish a deceptive act or practice in violation of the Connecticut Unfair Trade Practices Act, the lack of an intent to deceive is sufficient to justify a finding that conduct was not immoral, unethical or unscrupulous and, therefore, did not satisfy the second criterion for determining whether the action was unfair in violation of the unfair trade practices act.” The defendants cite in support of this request A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 216-17, 579 A.2d 69 (1990). The text cited by the defendants does not address the issue of intent to deceive.

       In a footnote in their brief, the defendants also attempt to assert a claim that the plaintiffs were comparatively negligent, which the defendants failed to raise by means of a special defense, and that the trial court failed to give certain requested instructions in that regard. The plaintiffs quite appropriately point out in their brief that our Supreme Court has specifically disapproved of this practice. See State v. Grant, 221 Conn. 93, 107 n.13, 602 A.2d 581 (1992). In their reply brief, the defendants concede that they did not intend to raise this issue as a separate claim. Therefore, we will not review it.

       See footnote 4.

       General Statutes § 42-110g (d) provides in relevant part: “In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. ...”

       The trial court should consider the following factors in setting reasonable attorney’s fees: “(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson v. Georgia Highway Express, Inc., [488 F.2d 714, 717-19 (5th Cir. 1974).]” Steiger v. J. S. Builders, Inc., supra, 39 Conn. App. 38.

       We note that this is not a zero damages case. See Malmberg v. Lopez, 208 Conn. 675, 546 A.2d 264 (1988). In Malmberg, our Supreme Court held that the reviewing “court’s endorsement of one plausible explanation of the verdict over another would amount merely to speculation. Such ambiguity requires a rehearing in full, on both liability and damages.” Id., 683. Here, the jury answered interrogatories as to whether Gallo breached the contract, his fiduciary duty and an implied covenant of good faith and fair dealing affirmatively, and responded to interrogatories asking the amount of money damages the plaintiffs sustained as a result of those breaches with the words, “see # 3.”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    IN RE BRIANNA F.

    (AC 17073)
    O’Connell, C. J., and Schaller and Sullivan, Js.
    Argued March 16
    officially released November 3, 1998

      Sharon Wicks Domfeld, for the appellant (petitioner).

      Raymond C. Lubus, for the appellee (respondent mother).

      Carolyn Signorelli, assistant attorney general, for the department of children and families.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parlies involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

SCHALLER, J.

The petitioner, Brianna F., appeals from the decision of the trial court on a joint motion for advice regarding the effect of the determination in a prior petition for termination of parental rights. On appeal, the petitioner claims that the trial court improperly (1) concluded that in this second termination action no collateral estoppel effect should be accorded to the previous adjudication that Brianna had been neglected and abused, and that grounds existed to terminate the parental rights of the respondent mother and (2) prevented her from relitigating in this second termination proceeding the factual bases for the adjudication in the first termination proceeding. We affirm the trial court’s order.

The following facts are relevant to this appeal. The petitioner and her twin sister, A, were bom on December 28, 1993, to the respondent mother. The twins were the third and fourth children of the respondent. At the time of Brianna’s birth, the respondent had ended her relationship with R, the father of the twins. One month after the petitioner was bom, the respondent allowed a seventeen year old man, J, who had been asked to leave his previous residence, to live with her.

On February 13, 1994, the respondent brought Brianna to the Danbury Hospital emergency room to be treated for episodes of projectile vomiting containing blood. The respondent reported that a similar condition existed when the petitioner was two weeks old. The petitioner was discharged on February 15,1994, in good condition. On February 24, 1994, the respondent again brought the petitioner to the Danbury Hospital emergency room because she had coughed up blood that evening. She was discharged later that evening, with her condition attributed to the side effects of a thrush infection in her mouth.

On February 25, 1994, the petitioner’s twin sister, A, was taken to the emergency room at Danbury Hospital because she had been vomiting and spitting up blood. A was again brought to the emergency room during the early morning of Febmaiy 28, 1994, because she had spit up blood. At that time, the respondent told the examining physician that A’s twin sister had been admitted previously for projectile vomiting with blood and that thrash was the suspected cause. The respondent also advised the treating physician, however, that on February 25, 1994, A had hit her chest in a fall on ice involving her car seat. Later in the day, both A and Brianna were taken to their pediatrician for a regularly scheduled office visit. The pediatrician observed no extraordinary conditions regarding the children even after being advised by the respondent of A’s February 25 injury and her emergency room visit earlier that day. The pediatrician noted in his written report that the official results of the chest X ray were still pending.

On March 2,1994, A was admitted to Danbury Hospital by ambulance at approximately 12:45 a.m. The attending physician reported that she was critically ill upon arrival and was unresponsive to stimuli. Her specific symptoms included severe anemia, respiratory arrest, low red blood cell count, a two inch linear bruise over her liver, a distended abdomen and an enlarged liver. Possible causes of her condition included infection, chronic blood loss and severe injury caused by trauma. A was transferred to the intensive care unit at Yale-New Haven Hospital, where she later died from her injuries.

Harold Wayne Carver II, the chief state medical examiner, performed an autopsy on A, and his report revealed the following. Her liver was lacerated and there were 150 cc. of blood present in her abdomen. Carver concluded that the liver injury was caused by “punch-like force,” although he stated that similar damage could be sustained by squeezing the child with considerable force. The child had sustained numerous, chronic injuries to her ribs. She had also sustained an injury to the brain tissue that resulted in severe swelling. Such an injury could have been caused by her having been violently shaken. Carver concluded that the cause of death was lack of oxygen caused by multiple blunt traumatic injuries. These were caused by one incident of vigorous, uninterrupted shaking of the child’s body for more than one minute with sufficient force to fracture her ribs from front to back.

Testimony at trial revealed that several witnesses had observed J “tossing the infants in the air like little footballs and putting a spin on them as they flew.” He also handled the children in a rough manner, holding them by their sleep suits and dropping them into their crib instead of laying them down. The respondent was aware of J’s treatment of her children and asked him to stop it on numerous occasions. He persisted, however, and she allowed him to remain living with her and the children.

On March 4, 1994, the commissioner of the department of children and families filed coterminous petitions alleging that Brianna was a neglected and abused child pursuant to General Statutes (Rev. to 1993) § 17a-101, and seeking to terminate the parental rights of the respondent and R. The grounds alleged to support the termination of parental rights were as follows: (1) the child has been abandoned by her father in the sense that he has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; and (2) the child has been denied by reason of act or acts of commission or omission by both mother and father, the care, guidance or control necessary for her physical, educational, moral or emotional well-being. The trial court entered orders of temporary custody on March 7, 1994. On October 12, 1994, the trial court allowed amendments to the petition to include additional allegations to substantiate the claims of abuse and neglect.

Evidence was presented over approximately fifteen days, concluding on December 7,1994. In the adjudicatory phase of the termination proceeding, the trial court determined, in its memorandum of decision dated March 8,1995, that Brianna was a neglected and abused child as of the date of the last amendment to the petition, October 12, 1994. The trial court found by clear and convincing evidence that the respondent mother had allowed Brianna to suffer multiple serious and life threatening injuries at the hands of a live-in boyfriend during the two month period that Brianna lived with her mother, and that the mother evidenced an inability to make responsible judgments for the benefit of the child. Because of the mother’s conduct, the trial court concluded that absent a complete reassessment by the mother of her priorities, Brianna would be at risk if she were returned to her mother’s custody.

On November 22,1995, the trial court issued its memorandum of decision in the dispositional phase of the proceedings. The trial court concluded that while the psychological trauma to the child associated with her physical injuries and the death of her twin sister would be substantial, the mother had presented evidence that she was in the process of addressing her personality defects that led to the child’s abuse and neglect, and that in time she would be capable of providing a safe and appropriate home for her child. The trial court concluded that it could not find that the respondent mother is and will be unable to change and overcome her defects and deficiencies in judgment and perception of responsibilities within any reasonable time period in order to parent Brianna effectively. The trial court ultimately concluded that termination of the respondent’s parental rights would not be in the best interest of the child at the present time and dismissed the petition. The trial court did, however, order that the child be committed to the custody of the department for a period not to exceed twelve months, based on the finding of abuse and neglect.

The petitioner filed the second termination petition, which is the subject of this appeal, on April 1, 1996, alleging that the respondent has failed to achieve the degree of rehabilitation necessary to assume a responsible position in the petitioner’s life. On August 6, 1996, the petitioner and the respondent filed a joint motion for advice seeking guidance from the trial court as to the effect of the first termination proceeding on the second termination proceeding. A hearing was held, and on February 27, 1997, the trial court rendered an oral decision on the parties’ motion. The trial court concluded that the determination reached in the adjudicatory phase of the prior proceeding should not be accorded preclusive collateral estoppel effect. The trial court also stated that the adjudicatory grounds for termination alleged in the first petition could not be reliti-gated in the second proceeding. This appeal followed.

I

As a preliminary matter, we address the propriety of a motion for advice seeking guidance from the trial court on the issues raised in this appeal. “Motions for advice are not recognized by the statutes or rules of court in this state. Our Supreme Court, well over a century ago, voiced its strong objection to the practice of requesting advisory opinions. See Reply of the Judges, 33 Conn. 586 (1867). In more recent times, our Supreme Couit has held that an action at law does not lie where the purpose is merely to secure advice on the law; Connecticut Savings Bank v. First National Bank & Trust Co., 133 Conn. 403, 411, 51 A.2d 907 (1947); and that if jurisdiction is thereby lacking, neither the Supreme Court nor the trial court should deliver an advisory opinion. Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 246, 558 A.2d 986 (1989).

“In this instance, however, even though the defendant’s motion was labeled a ‘Motion for Advice,’ the defendant was seeking clarification of a prior order of the court. In such situations ‘we look to the substance of the claim rather than the form.’ Whalen v. Ives, 37 Conn. App. 7, 16, 654 A.2d 798 [cert. denied, 233 Conn. 905, 657 A.2d 645] (1995). ‘Motions for interpretation or clarification, although not specifically described in the rules of practice, are commonly considered by trial courts and are procedurally proper.’ Holcombe v. Holcombe, 22 Conn. App. 363, 366, 576 A.2d 1317 (1990). . . . We conclude that the trial court had jurisdiction to consider the defendant’s motion.” (Citations omitted.) Zadravecz v. Zadravecz, 39 Conn. App. 28, 30, 664 A.2d 303 (1995).

We note that under most circumstances the response to a motion for advice does not satisfy the appealable final judgment requirements of General Statutes §§ 52-263 and 51-197a, Practice Book § 4000, now § 61-1, and State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). In this case, however, we are satisfied that the trial court’s order does qualify as an appealable final judgment under the authority of Convalescent Center of Bloomfield, Inc. v. Dept. of Income Maintenance, 208 Conn. 187, 195, 544 A.2d 604 (1988) (judgment denying claim of collateral estoppel appealable final judgment similar to criminal defendant’s defense of double jeopardy because both invoke right not to go to trial on merits).

We now turn to the substance of the petitioner’s claims on appeal. The petitioner first claims that the trial court improperly refused to apply the doctrine of collateral estoppel to the determination in the previous termination proceeding that Brianna had been adjudicated to be neglected and that grounds existed for the termination of the respondent’s parental rights. Specifically, the petitioner claims that preclusive effect should be accorded to the previous determination that adequate grounds existed to terminate the respondent’s parental rights, and that in this second termination proceeding the trial court should proceed immediately to the dispositional phase of the proceeding to determine whether termination is in the best interest of the child. We are not persuaded.

“Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. State v. Aillon, 189 Conn. 416, 424 n.8, 456 A.2d 279 (1983); State v. Wilson, 180 Conn. 481, 485, 429 A.2d 931 (1980); 1 Restatement (Second), Judgments § 27; James & Hazard, [Civil Procedure (2d Ed. 1977)] §§ 11.3 and 11.17.” In re Juvenile Appeal (83-DE), 190 Conn. 310, 316, 460 A.2d 1277 (1983).

“The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. See Corey v. Avco-Lycoming Division, 163 Conn. 309, 316-17, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); James & Hazard, supra, § 11.2. Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest. The doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies. See 1 Restatement (Second), Judgments § 20, comment n; § 24, comment f; § 26 (1) (f), comment i; § 28.

“Because the issue of whether termination of parental rights is appropriate must be decided upon the basis of conditions as they appear at the time of trial, the doctrines of res judicata and collateral estoppel ordinarily afford very little protection to a parent who has once successfully resisted an attempt to terminate his rights to a child. Parents have a constitutionally protected right to raise and care for their own children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). This right is not free from intervention by the state, however, when the continuing parens patriae interest of the state in the well being of children is deemed by law to supercede parental interests. See General Statutes §§ 17-43a, 46b-129 (e); In re Juvenile Appeal (83-BC), 189 Conn. 66, 77, 454 A.2d 1262 (1983); Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975).” In re Juvenile Appeal (83-DE), supra, 190 Conn. 318-19.

Because the parent-child relationship is at issue, all relevant facts and family history should be considered by the trial court when deciding whether to terminate the respondent’s parental rights. To proceed immediately to the dispositional phase of the termination proceeding without considering the adjudicatory issue of whether grounds exist to terminate the respondent’s parental rights at the current time would not satisfy the statutory requirements, nor would it present an accurate picture of the complete parent-child relationship. To conclude otherwise would serve to discount a parent’s ability to achieve personal rehabilitation. The parent-child relationship presents an ongoing dynamic that cannot be frozen in time. The entire picture of that relationship must be considered whenever the termination of parental rights is under consideration by a judicial authority. We conclude, therefore, that preclusive collateral estoppel effect should not be accorded to the previous adjudication that grounds existed by clear and convincing evidence to terminate the respondent’s parental rights.

II

The petitioner next claims that the trial court’s order improperly precludes her from relitigating, in the second termination proceeding, the factual bases for the adjudication in the first termination proceeding. On the basis of our interpretation of the trial court’s order and in light of the relevant Connecticut case law, we disagree.

In ruling on the parties’ motion for advice, the trial court appeared to render inconsistent rulings. Specifically, the trial court stated that the petitioner could not relitigate the issues of neglect and grounds for termination from the first petition in the adjudicatory phase, yet also stated that the petitioner was “not barred from referring to those facts because they clearly gave rise to . . . they’re already there. You’re not barred from referring to those as a predicate for . . . there was a neglect adjudication. It was based on these facts.” We interpret the trial court’s order to mean that the petitioner could not rely on the finding of neglect and grounds for termination from the first proceeding to establish conclusively that grounds exist to terminate the respondent’s parental rights in this second proceeding. The trial court’s order, therefore, was designed to prevent the application of preclusive collateral estoppel on these issues. The trial court, however, did not preclude the petitioner, in a subsequent proceeding, from relying on the grounds litigated in the first proceeding.

Our interpretation of the trial court’s order is consistent with our case law on this subject. We previously decided the issue of whether evidence presented in a previous termination proceeding that was resolved on the merits in the parents’ favor should be admitted in a second termination proceeding in In re John B., 20 Conn. App. 725, 570 A.2d 237 (1990). We concluded in that case that once the filing of a second termination proceeding is justified based on a change of circumstances, res judicata and collateral estoppel do not apply to prevent introduction of facts that were in existence or were presented at the prior termination proceeding. Id., 732. To justify this conclusion, we emphasized the importance of taking into account the entire relationship between the parent and the child. Id.

In this case, the petitioner has alleged facts that support a change of circumstances. Specifically, she has alleged that the respondent has failed to achieve sufficient rehabilitation so as to enable her to serve a responsible role in the petitioner’s life. The rule enunciated in In re John B. is therefore applicable. Accordingly, in a subsequent termination proceeding, the petitioner may introduce, and the trial court may consider, facts and evidence that actually were introduced or could have been introduced together with the findings of the first trial court. The court may then consider all such facts, evidence and findings together with new evidence to determine if the petitioner has met her burden of proof. By that means, the trial court will “take into account the entire relationship between the parent and child” as it exists at the time of the applicable termination proceeding. Id., 732. To preclude consideration of the facts existing at the time of the first proceeding would not allow for a comprehensive analysis of the parent-child relationship.

We conclude, therefore, that the petitioner is not precluded from introducing the facts, evidence and findings that supported the adjudication in the first termination proceeding. The petitioner is not entitled, however, to an automatic finding that grounds now exist to support the termination of the respondent’s parental rights. Accordingly, the petitioner may then litigate the existence of other facts that have arisen subsequent to the first termination proceeding and that are relevant to the termination of the respondent’s parental rights.

The trial court’s order on the motion for advice is affirmed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The petitioner in this case is the minor child, Brianna F., who is represented by her court-appointed attorney and guardian ad litem in these proceedings.

       On the date the first petition was filed, General Statutes (Rev. to 1998) § 17a-101 (f) provided in relevant part: “In proceedings in the superior court under this section ... (4) evidence that the child has been abused or has sustained a nonaccidental injury shall constitute prima facie evidence that shall be sufficient to support, an adjudication that such child is uncared for or neglected. . . .” This provision was repealed in 1996.

       The following colloquy occurred:
      “The Court: The court finds that legal significance attaches to the court’s action in dismissing the [prior] petition. . . . What this court finds is that that case ended. There was an end to that case and that, it was the court’s intention that that . . . termination case end and that the neglect action was substantiated and that everyone would carry forward from there. This court finds that the facts upon which the neglect determination and adjudication issued before that case was dismissed were subsumed into the finding of neglect. The court finds that the termination controversy has been decided. The court also notes that in bringing a new petition, the petitioner has put the respondent on notice of various allegations to which the respondent has the right, under our state and federal constitutions, to be heard and defend, and to suggest that, in this new and separate legal proceeding, the respondent would not be able to defend against the alleged grounds for termination would not be appropriate. Because the court finds that that issue was previously litigated and that petition was dismissed, the court finds that the grounds originally litigated, apparently at length in the original termination proceeding, cannot be relitigated in the instant action initiated by the petitioner.
      “[Petitioner’s Attorney]: If I might ask the court to elaborate on your last statement—that the grounds previously litigated cannot be relitigated. . . . Is it Your Honor’s ruling that the evidence, which was submitted at the first trial to support, an allegation of omission and commission, might not be submitted at the subsequent trial as to omission and commission?
      “The Court: Not as a new allegation. No, you can’t try it again. Clearly, the facts that gave rise to both the termination finding and the neglect finding—they’re títere. ... In other words, use it as a factual predicate, if you will, for a failure to rehabilitate—anything you want, but on acts and omissions, unless there are new acts and omissions, should probably not be pled in this new proceeding. ... I want to make this clear. You’re not barred from referring to those facts because they clearly gave rise to —
      “[Petitioner’s Attorney]: That was my concern, Your Honor. I thought I understood Your Honor to say that they could not come in.
      “The Court: They’re already there. See, that’s why I don’t understand why you feel that you have to relitigate. They’re there, but they’re not the predicate, in this court’s opinion . . . for a finding of—automatic finding of termination. That case is over. That act and omission count in this court’s mind at least, ended. . . . You’re not barred from referring to those as a predicate for, hey, there was a neglect adjudication. It was based on these facts. There has been a failure to rehabilitate or there’s been no ongoing parent-child relationship since then. That would be appropriate in a termination proceeding, but to reallege those facts and say, I want another chance to reprove them or I want them accepted as proven in this new termination proceeding, this court is not allowing that.
      “[Petitioner’s Attorney]: I think, Your Honor, I’m having some difficulty meshing that with the cases which, essentially, go to what I think is the opposite . . . situation. ... In re Juvenile Appeal (83-DE) [supra, 190 Conn. 310] and in In re John B., [20 Conn. App. 725, 570 A.2d 237 (1990)] because, I think that Your Honor’s ruling, essentially, puts us more into that context and those cases, as I read them, say that you can rely on those facts and—add them to the new facts.
      “The Court: Well, I disagree. . . . [The previous case] was dismissed. ... It ended, in this court’s mind. The facts were heard. The court may have made an adjudication in that, but it dismissed the entire case because it felt the neglect adjudication and disposition were sufficient, so I’m saying that’s off—that case—that controversy has already been determined. You know, bring a new petition, if you will or proceed on the one, but I don’t feel that you can relitigate that issue in your new petition.”

       We also note that appellate courts from other jurisdictions have held similarly. See People in Interest of J.R., 711 P.2d 701 (Colo. App. 1985); Scott v. Dept. of Social Services, 76 Md. App. 357, 370, 545 A.2d 81, cert. denied, 314 Md. 193, 550 A.2d 381 (1988), cert. denied, 492 U.S. 910, 109 S. Ct. 3226, 106 L. Ed. 2d 575 (1989); In re Ballard, 311 N.C. 708, 716, 319 S.E.2d 227 (1984); In re Wheeler, 87 N.C. App. 189, 193-94, 360 S.E.2d 458 (1987); In re Stewart Children, 82 N.C. App. 651, 654, 347 S.E.2d 495 (1986); State ex rel. Juvenile Dept. v. Newman, 49 Or. App. 221, 227-28, 619 P.2d 901 (1980), rev. denied, 290 Or. 449 (1981).