author: LANDAU, J.

text:
    NEW HAVEN SAVINGS BANK, SUCCESSOR TRUSTEE v. SIMON R. LAPLACE ET AL.
    (AC 21388)
    Landau, Mihalakos and Dranginis, Js.

      Argued June 11
    officially released October 2, 2001

      William H. Clendenen, Jr., with whom, on the brief, was Nancy L. Walker, for the appellants (defendants).

      John J. Resnik, with whom, on the brief, was Emily Resnik Conn, for the appellee (plaintiff).
   Opinion

LANDAU, J.

In this foreclosure action, the defendant Simon R. LaPlace appeals from the judgment rendered by the trial court in favor of the plaintiff, New Haven Savings Bank, successor trustee, following the granting of the plaintiffs motion for summary judgment. On appeal, the defendant claims, in essence, that the trial court improperly granted the plaintiffs motion for summary judgment by concluding that (1) the defendant’s fiduciary duty defenses and counterclaims were irrelevant, (2) the plaintiff gave proper notice of default and (3) the defendant was required to plead a lack of proper acceleration as a special defense to the foreclosure. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. In January, 1989, the defendant became indebted to his father, William B. LaPlace, in the amount of $185,000 by executing a promissory note (note) that was secured by a mortgage in that amount on a piece of real property located in Deep River. The defendant’s father died, and the note and mortgage were assigned to the William B. LaPlace revocable trust (trust). The life beneficiary of the trust is the defendant’s stepmother; the residual beneficiaries of the trust are the defendant and his brother, if the life beneficiary fails to exercise certain rights under the trust. The plaintiff became the successor trustee to the trust. In February, 1998, the plaintiff commenced an action against the defendant, alleging that the defendant had failed to pay the note according to its terms and that the principal balance of the note, plus interest, costs and fees were due.

In response to the complaint, the defendant denied that he failed to pay the note and that the balance, interest, costs and fees were owing. He also alleged eight special defenses and six counterclaims. As a basis for the special defenses and counterclaims, the defendant alleged that the plaintiff owed him a fiduciary duty, among other things, to preserve the assets of the trust, to deal with the beneficiaries in a fair and equitable manner, to manage the trust in a manner that is in the best interests of the designated beneficiaries and to effect the intent of the settlor of the trust. The defendant also alleged that the plaintiff and the predecessor trustee improperly failed and refused to credit payments made by the defendant, refused to calculate the interest due under the note and mortgage, and rejected funds presented by the defendant to bring the note and mortgage current. The defendant also claimed that the plaintiff reneged on an agreement to bring the note current.

The defendant claims that the various alleged acts of wrongdoing by the plaintiff constituted a breach of a fiduciary duty owed to him, violated the Connecticut Uniform Prudent Investor Act, breached the covenant of good faith and fair dealing, violated the common law and various sections of the Connecticut Uniform Commercial Code, and violated the Connecticut Unfair Trade Practices Act. On the basis of the plaintiffs alleged wrongdoing, the defendant claimed by way of special defenses that the court should deny the plaintiff the equitable remedy of foreclosure. Also, on the basis of the plaintiffs wrongdoing, the defendant asserted counterclaims that he has incurred certain damages and losses. He also sought the equitable remedy of an accounting.

The plaintiff filed a motion to strike the defendant’s special defenses and counterclaims as a whole, arguing that they were legally insufficient because they did not raise issues that are proper in a foreclosure action. The court reasoned that if one of the counterclaims or special defenses was legally sufficient, the motion must fail. Taking the allegations of the special defenses and counterclaims as true; see Bell v. Board of Education, 55 Conn. App. 400, 402, 739 A.2d 321 (1999); the court denied the motion to strike because the defendant alleged payment, which is a traditional defense to a foreclosure action.

After it replied to the defendant’s special defenses and counterclaims, the plaintiff filed a motion for summary judgment on the ground that there was no genuine issue of material fact that the defendant was liable under the note and that his special defenses and counterclaims were legally insufficient to bar summary judgment. The court granted the motion for summary judgment in the plaintiffs favor, concluding that there is no genuine issue of material fact that the trust is the holder of the note, that the defendant failed to make payments and that the defendant had notice of the acceleration and default on the note. Thereafter, the court ordered foreclosure by sale and set the sale date. The defendant appealed to this court.

“The standards governing our review of a trial court’s decision on a motion for summary judgment are clear. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Trotta v. Branford, 26 Conn. App. 407, 409, 601 A.2d 1036 (1992). While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); the party opposing [summary judgment] must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . Bassin v. Stamford, 26 Conn. App. 534, 537, 602 A.2d 1044 (1992). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). . . . Cortes v. Cotton, 31 Conn. App. 569, 572-73, 626 A.2d 1306 (1993).

“Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [T]he trial court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist. . . . Fleet Bank, N.A. v. Galluzzo, 33 Conn. App. 662, 666, 637 A.2d 803, cert. denied, 229 Conn. 910, 642 A.2d 1206 (1994). . . . Field v. Kearns, 43 Conn. App. 265, 270, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996).” (Internal quotation marks omitted.) Rosario v. Hasak, 50 Conn. App. 632, 636-37, 718 A.2d 505 (1998).

“The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial corut draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. Practice Book § 4061 [now § 60-5]; United Illuminating Co. v. Groppo, 220 Conn. 749, 752, 601 A.2d 1005 (1992); Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” (Internal quotation marks omitted.) SLI International Corp. v. Crystal, 236 Conn. 156, 163, 671 A.2d 813 (1996). “On appeal, the scope of our review of the granting of a motion for summary judgment is plenary.” Richter v. Danbury Hospital, 60 Conn. App. 280, 286, 759 A.2d 106 (2000). First, we must determine whether there is an absence of genuine issues of material fact and, then, whether the movant is entitled to judgment as a matter of law.

I

The defendant’s first claim is that the court improperly granted the motion for summary judgment in favor of the plaintiff by concluding that the defendant’s fiduciary duty special defenses and counterclaims were irrelevant. We are not persuaded.

A

The defendant admits that he executed the note and mortgage and that the documents were assigned to the trust. He denies knowledge or information sufficient to form a belief that the plaintiff is the successor trustee. In support of its motion for summary judgment, the plaintiff produced the document appointing the plaintiff successor trustee. The defendant presented no evidence to contradict the appointment. The defendant also admits that he made payments due on the note through July, 1996. In his brief to this court, the defendant acknowledges that the plaintiff, as administrator of the trust, has authority to enforce the note and mortgage. He argues, however, that because he is a remainderman under the trust, the plaintiff owes him a fiduciary duty that affects the manner in which it can enforce the mortgage and the note.

More specifically, in his brief, the defendant argues that he should have been permitted to prove the fiduciary duty that the plaintiff owes to him and that if he had prevailed, the plaintiff would have had to prove, by clear and convincing evidence, that it dealt fairly with him and the trust. The defendant further argues, by some unknown leap of logic, that his allegations of the plaintiffs failure to provide proper notice of default, miscalculating the amount due, reneging on its agreement to reinstate the note, refusing tenders and insisting on foreclosure demonstrate genuine issues of material fact as to the plaintiffs unfair dealing as to him. In a footnote, the defendant also suggests that the plaintiff was motivated by a conflict of interest in commencing the foreclosure action. He suggests that the trustee consistently has favored the life beneficiary of the trust, who made the successor trustee appointment, rather than the contingent remaindermen. Regrettably, this footnote suggests to us only that the issue underlying the entire matter is one of animosity between the defendant and his stepmother concerning money, the seemingly eternal divider of families.

Despite his claims, the defendant has not cited any law holding that a trustee must forbear foreclosing a mortgage on a note held by the trust if a contingent remainderman is the maker of the note, which is the substance of the defendant’s argument. A trustee’s duty is to protect the interests of the beneficiaries of the trust by guarding the trust res. See O’Leary v. McGuinness, 140 Conn. 80, 88, 98 A.2d 660 (1953).

The defendant would have us believe that because he has a contingent interest in the trust, he does not have to repay the note or that he can repay the note on his own terms. Not only is there no law to support the defendant’s position, the facts themselves do not support it. The defendant borrowed money from his father and signed a promissory note to repay the money at 10 percent interest per annum by 2004. The note required the defendant to make monthly payments of $1988.04. Upon his death, the defendant’s father bequeathed the note and the mortgage to a revocable trust to provide for his second wife during her lifetime. The trust thus became the holder of the note. The trustee is bound to protect the assets of the trust.

B

The court granted the plaintiffs motion for summary judgment, concluding that the defendant’s special defenses and counterclaims were not related to the making, validity or enforcement of the note. We agree. See Southbridge Associates, LLC v. Garofalo, 53 Conn. App. 11, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).

“Because a mortgage foreclosure action is an equitable proceeding, the trial court may consider all relevant circumstances to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court. . . . Where the plaintiffs conduct is inequitable, a court may withhold foreclosure on equitable considerations and principles. . . .

“At common law, the only defenses to an action of this character would have been payment, discharge, release or satisfaction ... or, if there had never been a valid hen. . . . Moreover, our courts have permitted several equitable defenses to a foreclosure action. [I]f the mortgagor is prevented by accident, mistake or fraud, from fulfilling a condition of the mortgage, foreclosure cannot be had .... Other equitable defenses that our Supreme Court has recognized in foreclosure actions include unconscionabihty . . . abandonment of security . . . and usury.” (Citations omitted; internal quotation marks omitted.) Id., 15-16.

In Southbridge Associates, LLC, this court agreed with the trial court that special defenses and counterclaims alleging a breach of an implied covenant of good faith and fair dealing and a breach of fiduciary duty are not equitable defenses to a mortgage foreclosure. Id., 16-19. As in Southbridge Associates, LLC, the note and mortgage at issue here do not require the trustee to negotiate with the defaulting defendant prior to bringing a foreclosure action. As to his allegations concerning the various uniform acts, the defendant has not cited case law from any jurisdiction that would raise genuine issues of material fact as to how the enforcement of a standard form note and mortgage violates the various acts. Absent law and analysis, we will not review the claim. See New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 100, 709 A.2d 14 (1998). Additionally, because the special defenses alleging that the plaintiff improperly rejected payment, credited payments and computed interest do not attack the making, validity or enforcement of the note or mortgage, such defenses are also not relevant to a foreclosure action.

The trial court therefore properly concluded that the defendant’s fiduciary duty defenses and counterclaims are irrelevant to the foreclosure issue because they do not attack the making, validity or enforcement of the note or mortgage, nor do they raise other matters that have been held to be proper defenses to a foreclosure action.

II

The defendant’s next claim is that the court improperly concluded that the plaintiff gave proper notice of the default. The defendant also claims, pursuant to Citicorp Mortgage, Inc. v. Porto, 41 Conn. App. 598, 602-603, 677 A.2d 10 (1996), that proper notice of default is a condition precedent to acceleration. We disagree.

In support of its motion for summary judgment, the plaintiff submitted, among other things, a letter dated November 17, 1997. Neither party disputes the authenticity of the letter, but they disagree as to the letter’s purpose. The plaintiff claims that the letter was notice of acceleration, and the defendant claims that it was notice of default. The defendant also claims that the letter cannot constitute proper notice of default because it failed to include the amount due the trust, i.e., how much the defendant had to tender to the plaintiff to cure the default. Furthermore, the defendant notes that the letter concerns two promissory notes that the plaintiff claims are in default. Although we agree with the defendant that the purpose of the letter is unclear, that it refers to two different promissory notes and that the references it contains are ambiguous, we conclude that notice of default was not a condition precedent to foreclosure and that the irregularities in the letter create no genuine issues of material fact.

“Notices of default and acceleration are controlled by the mortgage documents. Construction of a mortgage deed ‘is governed by the same rules of interpretation that apply to written instruments or contracts generally, and to deeds particularly. The primary rule of construction is to ascertain the intention of the parties. This is done not only from the face of the instrument, but also from the situation of the parties and the nature and object of their transactions.’ 55 Am. Jur. 2d, Mortgages § 175 (1971). A promissory note and a mortgage deed are deemed parts of one transaction and must be construed together as such. Id., § 176.” Citicorp Mortgage, Inc. v. Porto, supra, 41 Conn. App. 602. Where the terms of the note and mortgage require notice of default, proper notice is a condition precedent to an action for foreclosure. See id., 602-603.

Here, the mortgage deed provides that the defendant is indebted to his father in the amount of $185,000 as evidenced by a promissory note attached to the deed. The relevant portion of the note provides: “If any payment due hereunder shall not have been paid within fifteen days after the same is due, or if any other agreement of the maker herein contained shall be in default and shall not have been fully performed within fifteen days after the written notice of default has been mailed to any maker hereof . . . then the entire unpaid principal, with accrued interest, shall, at the option of the holder hereof, become due and payable forthwith.”

“A promissory note is nothing more than a written contract for the payment of money, and, as such, contract law applies. ... In construing a contract, the controlling factor is normally the intent expressed in the contract, not the intent which the parties may have had or which the court believes they ought to have had. . . . Where . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard. . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity.” (Citations omitted; internal quotation marks omitted.) Alco Standard Corp. v. Charnas, 56 Conn. App. 568, 571, 744 A.2d 924 (2000).

In Alco Standard Corp., the court construed language nearly identical to the language in the note signed by the defendant in the present case and applied it in a foreclosure action. “The language of the note is clear and unambiguous; it differentiates between monetary and nonmonetary defaults, and provides for notice of default and an opportunity to cure only with reference to the latter. The default in this case was for failure to make payments as promised. Therefore, there was no obligation to provide notice of default. We do not agree with the defendants’ argument that any default, including nonpayment, requires a notice of default and an opportunity to cure. That interpretation flies in the face of the note’s clear language and would cause the entire first phrase of the default paragraph to be without a specific legal meaning. Clearly, the language addresses two separate and distinct alternatives that would cause the unpaid principal to become immediately due. Those are (1) payment not being made as promised or (2) the occurrence of some other violation of the agreement that is not cured within thirty days of written notice.

“Because the note did not require notice of default for failure to make payment, there was no genuine issue of material fact, and summary judgment as to liability was properly rendered.” Id., 572.

In his reply brief, the defendant attempts to distinguish Alco Standard Corp., by arguing that the plaintiff and the defendant agreed that the plaintiff was required to give notice of default. Parties, however, may not agree to an issue that is a matter of law, as opposed to a stipulation of facts. Whether a creditor is required to give notice of default as a condition precedent to foreclosure is controlled by the language of the note and mortgage. Citicorp Mortgage, Inc. v. Porto, supra, 41 Conn. App. 602. A trustee is bound by the terms of the trust. See State v. Thresher, 77 Conn. 70, 83, 58 A. 460 (1904). The court, therefore, properly concluded that there was no genuine issue of material fact with respect to the propriety of the trustee’s notice.

Ill

The defendant’s final claim is that the court improperly concluded that he was required to plead lack of proper acceleration as a special defense to foreclosure. We disagree.

The defendant’s claim is based on the following portion of a footnote in the court’s memorandum of decision: “The defendant further argues that summary judgment should be denied because the plaintiffs demand letter failed to specify the amount due. Nonetheless, this allegation is not contained within any special defense or any count of the counterclaim. A genuine issue of material fact must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment. . . . Collum v. Chapin, 40 Conn. App. 449, 453, 671 A.2d 1329 (1996).” (Internal quotation marks omitted.)

The applicable rule regarding the material facts to be considered on a motion for summary judgment is that the facts at issue are those alleged in the pleadings. See Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 488-89, 280 A.2d 359 (1971). The defendant argues that the court improperly concluded that he had waived the right to contest the sufficiency of the notice by failing to plead the claim as a special defense because the plaintiff alleged proper notice and the burden was on the plaintiff to prove that the acceleration was valid. The defendant cites Practice Book § 10-50 in support of this position.

On the basis of our conclusion in part II of this opinion, we need not reach this claim. Under the terms of the note and mortgage, the plaintiff was under no obligation to provide notice to the defendant. Whether the notice that the plaintiff sent the defendant was proper is not a genuine issue of material fact in this case, as no notice was required.

The judgment is affirmed and the case is remanded for the purpose of setting a new sale date.

In this opinion the other judges concurred.

       Simon R. LaPlace Company, the tenant in the foreclosed premises, was also named as a defendant at trial and has joined the appeal. We refer in this opinion to the individual defendant, Simon R. LaPlace, as the defendant.

       The defendant identified the issues presented as follows:
      “1. In this foreclosure action, where the plaintiff trustee advanced no funds and acquired the note and mortgage solely as trustee of a trust for the benefit of the defendant, did the trial court err in granting summary judgment on the defendant beneficiary’s claims of breach of fiduciary duty on the ground that they were irrelevant?
      “2. Where the plaintiff trustee alleged that it had accelerated the note and that the entire principal balance with interest was due, did the trial court err in holding that the defendant beneficiary was required to plead the lack of proper acceleration as a special defense to foreclosure?
      “3. Where the plaintiff trustee failed to inform the defendant beneficiary of the amount he needed to pay to cure the default, did the trial court err in finding as a factual matter that the trustee gave proper notice of default and was entitled to summary judgment?
      “4. Where the defendant beneficiary raised several equitable circumstances — including the trustee’s fiduciary status, its inaccurate accounting, its invalid acceleration of the note, and its refusal of the beneficiary’s tenders — did the trial court err in granting summary judgment of foreclosure?”

       See General Statutes § 45a-541 et seq.

       See General Statutes §§ 42a-l-201 (19), 42a-l-103, 42a-l-203, 42a-2-302.

       See General Statutes § 42-110a et seq.

       At oral argument before this court, the parties disputed the standard of review applicable to a motion for summary judgment.

       The defendant refers to Ms interest in the trust as a remainder interest. The trust is a revocable trust that gives the life beneficiary the right to invade the principal and to divest the corpus by will. The defendant’s interest in the trust is actually that of a contingent remainderman.

       See part III of this opinion where we conclude that the plaintiff was not required to provide notice of default.

       The plaintiffs motion for summary judgment concerned only the defendant’s liability for the money due. A hearing was held on the disputed issue of the amount of money owed.

       The defendant conspicuously fails to address the fact that his brother is also a contingent remainderman of the trust and how forbearance of the mortgage might affect his brother’s interests. We note that where there are two or more beneficiaries, a trustee has a duty to deal impartially with all beneficiaries. Connor v. Hart, 157 Conn. 265, 276, 253 A.2d 9 (1968).

       Although the defendant alleged payment, the defendant admitted that he made all payments due on the note only until June, 1996, and that he made no further attempt at payment until over one year later, after the plaintiff had sent the defendant the letter indicating that the note was in default.

       The defendant’s good faith claim appears to be directed at the appointment of the successor trustee. The appointment of a successor trustee has nothing to do with the making of the note or mortgage, but flows from the powers vested in the life beneficiary pursuant to the trust.

       The defendant did not brief any issues concerning his counterclaim seeking the equitable remedy of an accounting. Although we consider the claim abandoned, we note that the only issue before the court was the defendant’s liability pursuant to the note and mortgage, not the amount owed.

       The text of the letter stated: “This is to advise you that this office represents New Haven Savings Bank, which is the successor trustee of the trust created by William B. LaPlace by agreement with Fleet Bank of Connecticut under date of September 11, 1990. We have been consulted by New Haven Savings Bank with reference to the promissory note from you to William B. LaPlace in the amount of $185,000 dated January 4, 1989, secured by mortgage and also the promissory note from you to William B. LaPlace in the amount of $7500 dated July 6, 1984.
      “Both of these notes are in default. Pursuant to the terms of the notes, notice is hereby given to you of the default and of the fact that the trustee has exercised its option to declare all sums immediately due and payable in the event of your failure to bring all payments current within the time period allowed by the note. Please note that any payment should be made in care of the trust department of New Haven Savings Bank.”

       The parties dispute the amount of the defendant’s default. The defendant tendered certain funds to the plaintiff to cure the default, but the plaintiff refused to accept them, claiming that the funds were insufficient.


source: Caselaw Access Project

author: HEALEY, J.

license: Public Domain

text:
    GENNARO TEVOLINI v. PAMELA J. TEVOLINI
    (AC 19861)
    Foti, Flynn and Healey, Js.
    Argued May 3
    officially released October 2, 2001

      Alan Scott Picket, for the appellant (plaintiff).

      Rhonna W. Rogol, with whom was Sari B. Jaffe, for the appellee (defendant).
   Opinion

HEALEY, J.

The plaintiff, Gennaro Tevolini, appeals from the judgment of the trial court dissolving his marriage to the defendant, Pamela J. Tevolini. On appeal, the plaintiff claims that the court (1) abused its discretion in making its financial orders after it had precluded him from contesting the defendant’s assertion as to the condition of her health, which was a material fact in the court’s fashioning of its alimony order, and had created an irrebuttable presumption that the defendant was disabled, and (2) improperly denied his motion for a physical examination of the defendant where she claimed that she was disabled and thus incapable of being employed. We reverse in part the judgment of the trial court.

The following facts are relevant to our disposition of the plaintiffs appeal. The plaintiff, age forty-three, and the defendant, age forty-nine, were married on June 16, 1990, in Rhode Island. No children have been bom to the defendant since the marriage. The plaintiff, a high school graduate, was, and still is, a hairdresser. He has a fourteen year old daughter from a prior marriage for whom he pays $100 per week in child support, and he is responsible for 50 percent of her nonreimbursed medical expenses. The defendant was a secretary who had an earning capacity at the time she married the plaintiff. In 1995, she became certified as a fitness instructor and continues in that occupation on a part-time basis earning $30 for each class. At the time of the trial,the defendant was receiving social security disability benefits of $910 per month.

The plaintiff attributed the failure of the marriage to the stresses of the marriage; the defendant believed that her illness and resulting disability caused the breakdown. The court rendered judgment of dissolution on the ground of irretrievable breakdown.

In addition, certain other circumstances should be set forth, particularly those going to the matter of the defendant’s health, the plaintiffs attempt to inquire into that area, and the court’s response and rulings on that phase of the trial, which specifically involved the issue of alimony. This action was commenced in October, 1997. At that time, the defendant already had been found to be disabled by United States Social Security Administration. When she was determined to be disabled by the Social Security Administration on September 15, 1997, she was notified that she would become entitled to “monthly disability benefits” beginning in March, 1998, amounting to $910. At the time of the trial, she was receiving $910 monthly in social security benefits.

On February 26, 1999, the defendant filed with the court proposed orders seeking in alimony the sum of $650 per week “to be paid until the death of either party or the remarriage of the defendant or the defendant regaining her health so that she is able to be employed.” In her proposed orders, the defendant claimed that she “presently has [the Epstein-Barr virus], which attacks the immune system and . . . has been diagnosed by Susan M. Levine, M.D., with chronic fatigue syndrome.” In response, the plaintiff filed a motion for a physical examination of the defendant, requesting that she “be compelled to attend a physical examination by a physician of the plaintiffs choosing” because of her claims that she suffers from chronic fatigue syndrome, an illness that she did not suffer from prior to the parties’ separation.

Prior to trial, the plaintiff pressed his motion for a physical examination of the defendant and argued that it should be granted by the court. The court heard the plaintiffs motion at trial and denied it upon learning from the defendant that she had qualified for social security disability benefits. During the colloquy regarding the motion, the court questioned the plaintiff about the purpose of the requested examination when the defendant already had qualified for social security benefits. The plaintiff responded that his intent was “to refute that conclusion” that the defendant was disabled and, in particular, because he had not been a party to her examination for social security benefits eligibility. The court replied, “Well, I don’t review what [the Social Security Administration] does. My policy has always been [that] if somebody qualifies for social security, as far as I’m concerned they’re not in the labor market.” The plaintiff argued that he was not trying to make a point as to whether the defendant was in the labor market at that time; he claimed, rather, that “the whole issue has to do with the duration of alimony under [General Statutes § 46b-82].” The court then denied the motion.

During the trial itself, the court articulated its denial of the plaintiff’s motion for a physical examination. The court stated, “I’ll tell you what. I can tell you what I said. If you qualify for social security disability, you are not able to work, and that’s my position. I don’t review what [the Social Security Administration] has ruled on. As far as I’m concerned, she may have minimal working ability, but that’s as far as it goes because she’s still collecting social security. They can have her reviewed if they think she should go back to work as of today, if she got a check for last month, and she hadn’t received any notice that she’s been withdrawn from social security then, as far as I am concerned, she’s disabled and that’s the end of that. You don’t have to belabor it.”

The defendant also testified at trial that she believed that her illness caused the dissolution of the parties’ marriage. When the plaintiff objected to the testimony on the ground that there had not been any evidence presented regarding the defendant’s illness, the court responded, “We don’t have to. We know that she is on social security disability. She didn’t get there out of the grace of God. All right.”

After rendering its judgment dissolving the marriage on the ground of irretrievable breakdown, the court entered certain other orders. It ordered that the defendant retain real estate in Stamford, where the parties had resided. It ordered that the plaintiff pay to the defendant, as periodic alimony, the sum of $400 weekly “until the death of either party, the remarriage of the defendant or future court order.” Having taken judicial notice of the court file in a separate action that was filed by the defendant to recoup an investment, the court ordered that because the plaintiff and the defendant each had contributed $80,000 to that investment, each party was to be the sole owner “of all rights arising out of $80,000 of the investment with the [defendants in that action].” Further, it ordered that the escrowed tax refunds be divided equally (after paying the tax preparer) and that certain items of personalty be returned to the plaintiff. The remaining assets on the parties’ financial affidavits were to be retained by each party, and each party was to be solely responsible for the liabilities listed on the respective affidavits. This appeal followed.

I

“The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. . . It is within the province of the trial court to find facts and draw proper inferences from the evidence presented.” (Internal quotation marks omitted.) Werblood v. Birnbach, 41 Conn. App. 728, 730, 678 A.2d 1 (1996). In reviewing “a trial court’s exercise of its broad discretion in domestic relations cases, [we are] limited to the questions of whether the [trial] court correctly applied the law and could reasonably have concluded as it did . . . Moreover, we do not retry the facts. ... In determining whether the trial court could reasonably conclude as it did on the evidence before it, every reasonable presumption should be given in favor of the correctness of its action.” (Emphasis added; internal quotation marks omitted.) Lowe v. Lowe, 47 Conn. App. 354, 361, 704 A.2d 236 (1997); see Bender v. Bender, 60 Conn. App. 252, 256, 758 A.2d 890, cert. granted on other grounds, 255 Conn. 914, 763 A.2d 1037 (2000).

We turn first to the plaintiffs claim that the court abused its discretion in making its financial orders because it precluded him from contesting the defendant’s assertion as to the condition of her health, which the plaintiff claims was a material factor in the court’s fashioning of the alimony order. The plaintiff further contends that the court, in effect, concluded that the defendant was disabled without any evidence to support such a determination and improperly created an irrebuttable presumption that she was disabled on the basis of her receipt of social security benefits.

Our alimony statute is set forth in § 46b-82. In determining whether to award alimony, that statute requires the court to consider a number of factors, including the health of the parties. “A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.” (Internal quotation marks omitted.) O’Neill v. O’Neill, 13 Conn. App. 300, 306, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); see Watson v. Watson, 20 Conn. App. 551, 555, 568 A.2d 1044 (1990). Our Supreme Court has stated that “health is a material factor in awarding alimony.” McGuinness v. McGuinness, 185 Conn. 7, 10-11, 440 A.2d 804 (1981); see Gallo v. Gallo, 184 Conn. 36, 49, 440 A.2d 782 (1981). “A party’s health is one of the factors which draws its significance, in part, from the impact it necessarily has upon other statutory [§ 46b-82] factors. For example, a party’s health problem may also have an impact upon such things as vocational skills, employability, income and/or needs.” A. Rutkin, K. Hogan & S. Oldham, Family Law and Practice (2d Ed. 2000) § 33.8, p. 46. “General Statutes § 46b-82 and the factors contained therein govern whether the court will award alimony in a dissolution action. The court is to consider these factors in making an award of alimony, but it need not give each factor equal weight. ... As long as the trial court considers all of these statutory criteria, it may exercise broad discretion in awarding alimony.” (Citation omitted; internal quotation marks omitted.) Costa v. Costa, 57 Conn. App. 165, 173-74, 752 A.2d 1106 (2000).

Under § 46b-82, “[i]n determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . .” (Emphasis added.) Section 46b-82, therefore, provides for a hearing regarding alimony matters. Our Supreme Court has stated that “[a] hearing can be a proceeding in the nature of a trial with the presentation of evidence, it can be merely for the purpose of presenting arguments, or, of course, it can be a combination of the two. . . . Not only does a hearing normally connote an adversarial setting, but usually it can be said that it is any oral proceeding before a tribunal. . . . Our cases consistently recognize the generally adversarial nature of a proceeding considered a hearing, in which witnesses are heard and testimony is taken.” (Citations omitted; internal quotation marks omitted.) Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 469-70, 378 A.2d 547 (1977). “A hearing necessarily involves an opportunity by a party to present his arguments.” Colonial Trust Co. v. Austin, 133 Conn. 696, 699, 54 A.2d 503 (1947).

We conclude that because the defendant placed her health at issue in her claim for alimony, the plaintiff then had a right under § 46b-82 to be heard and to offer evidence to refute that claim. That right to be heard, to be meaningful, included, inter alia, the right not only to argument, but also to present evidence at the trial regarding that issue. Even though an action for divorce or dissolution of marriage is a creature of statute, it must be remembered that divorce “is essentially equitable in its nature.” Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835 (1975).

Before we determine whether the court abused its discretion in precluding the plaintiff from contesting the defendant’s assertion as to her health, we first consider his claim that the court improperly concluded that the defendant was disabled when, as the plaintiff claims, the defendant offered no evidence of her alleged illness other than her receipt of social security disability benefits and her testimony that her illness caused the end of the marriage. Insofar as the record before us is concerned, the only evidence that the court permitted as to the defendant’s health was the defendant’s statement that she believed that her illness was the cause of the dissolution of the marriage. When the plaintiff objected to that statement because “we haven’t heard any testimony concerning her illness,” the court stated that “[w]e don’t have to. We know that she is on social security disability. She didn’t get there out of the grace of God. All right.”

That colloquy occurred after the court denied the plaintiffs motion for a physical examination of the defendant, as previously indicated. It is significant to note that in denying that motion, the court, having been informed that the defendant was receiving social security disability payments, stated, inter alia, that “[i]f you qualify for social security disability, you are not able to work, and that’s my position . . . [even though] she may have minimal working ability . . . .’’It appears that since March, 1998, the plaintiff has been receiving $911 per month in social security disability payments. Whether that amount was for “total disability,” as the defendant claims, is not disclosed by evidence.

There was no evidence that the defendant was “totally disabled” for social security purposes, as she claimed in the trial court and before us on appeal. To be sure, her counsel posited to the trial court that the defendant had “applied for last summer and has now qualified for social security disability as a fully disabled person.” (Emphasis added.) That statement by the defendant’s counsel does not constitute evidence because “ [i]t is well settled that representations of counsel are not, legally speaking, ‘evidence.’ ” Cologne v. Westfarms Associates, 197 Conn. 141, 154, 496 A.2d 476 (1985), citing Curtis v. Rives, 123 F.2d 936, 941 (D.C. Cir. 1941); Dunn v. Stewart, 235 F. Sup. 955, 964 (S.D. Miss. 1964); Celentano v. Zoning Board of Appeals, [135 Conn. 16, 18, 60 A.2d 510 (1948)]; American National Bank & Trust Co. of Mobile v. Long, 281 Ala. 654, 656, 207 So. 2d 129 (1968); Sloan v. Sloan, 393 So. 2d 642, 644 (Fla. App. 1981); Davis v. Independence, 404 S.W.2d 718, 720 (Mo. 1966); Wilson v. Motors Ins. Corp., 349 S.W.2d 250, 254 (Mo. App. 1961) (statements of unsworn attorney do “not prove themselves or constitute evidence”); O’Hearn v. O’Hearn, 55 App. Div. 2d 766, 767, 389 N.Y.S.2d 651 (1976); see also State v. Duntz, 223 Conn. 207, 236, 613 A.2d 224 (1992) (“[statements or comments made by attorneys in the course of examination or argument are not facts in evidence, and may not properly be considered by the [finder of fact]”); Constantine v. Schneider, 49 Conn. App. 378, 397, 715 A.2d 772 (1998) (“ ‘[Representations by counsel are not ‘evidence’ upon which an appellate court can rely when reviewing the findings of the trial court’ ”); State v. Carsetti, 12 Conn. App. 375, 379, 530 A.2d 1095 (same), cert. denied, 205 Conn. 809, 532 A.2d 77 (1987).

In addition, we already have noted the absence in the record of any documentary evidence of the defendant being “totally or fully” disabled. That leaves us, so as far as her health is concerned, only with her own testimony that her “illness” was the cause of the end of her marriage and her statement on her financial affidavit that she receives $910 monthly in social security benefits. In like fashion, there is no evidence in the record that she suffers from and is disabled by the maladies of the Epstein-Barr virus and chronic fatigue syndrome. The record discloses only representations by the defendant’s counsel that the defendant was suffering from those maladies. That cannot be considered legally valid evidence. Once the defendant put her health in issue, it was incumbent on her to offer pertinent evidence to support her position. See Powers v. Powers, 186 Conn. 8, 11, 438 A.2d 846 (1982). That she did not do. Moreover, the court’s ruling, which was based on the lack of evidence before it, that the Social Security Administration’s “determination” to award her monthly disability payments effectively terminated the plaintiffs right to examine the defendant as to her disability, was improper, given the significance of “health” as a material factor under § 46b-82.

The defendant argues, on the basis of the doctrine of judicial notice, that state courts may take judicial notice of federal statutes. Citing certain sections of the Social Security Act of 1935, 42 U.S.C. § 301 et seq., as amended, the defendant asserts in her brief that there was sufficient evidence before the court such that “it certainly was neither irrational nor illogical for the court to infer from [the] defendant’s having been found to be disabled for the purposes of the [Social Security Act] that more probably than not she was disabled and its ruling must therefore be upheld.” (Emphasis added.) That inference, however, assumes that the defendant has proven that she was “disabled,” as she claimed.

The plaintiff maintains that the court improperly substituted the conclusions of the Social Security Administration for what should be its own independent fact-finding determination. Although he does not challenge the right of the fact finder to draw inferences, the plaintiff claims that what the court did was more than draw an “improper” inference; rather, he claims, the court, in legal effect, created an irrebuttable presumption that the defendant was disabled. We agree with the plaintiff; that was the practical effect of the court’s ruling.

The question then arises whether, on the record before us, the court’s announced policy that “[i]f you qualify for social security disability, you are not able to work, and that’s my position,” and that “[the trial court does not] review what [the Social Security Administration] has ruled on,” in denying the plaintiffs motion for a physical examination and the court’s later prohibition at the trial of any evidence of the defendant’s health, constitutes an abuse of discretion. We conclude that in this case, it does constitute an abuse of discretion.

An irrebuttable presumption, also known as a conclusive presumption, is, according to Black’s Law Dictionary, “[a] presumption that cannot be overcome by any additional evidence or argument.” Black’s Law Dictionary (7th Ed. 1999). “A presumption of law must be based upon facts of universal experience and be controlled by inexorable logic.” (Internal quotation marks omitted.) Ducharme v. Putnam, 161 Conn. 135, 140, 285 A.2d 318 (1971), citing Valentine v. Pollak, 95 Conn. 556, 561, 111 A. 869 (1920). Irrebuttable presumptions are impermissible under the due process clauses of the fifth and fourteenth amendments to the United States constitution when “not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination.” Vlandis v. Kline, 412 U.S. 441, 452, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973); see Cleveland Board of Educations v. LaFleur, 414 U.S. 632, 644-45, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974). “Rather, standards of due process require that the State allow . . . the opportunity to present evidence [rebutting the presumption].” Vlandis v. Kline, supra, 452. “[The United States Supreme Court] has held more than once that a statute creating a presumption which operates to deny a fair opportunity to rebut it violates the due process clause . . . " Heiner v. Donnan, 285 U.S. 312, 329, 52 S. Ct. 358, 76 L. Ed. 772 (1932); Salemma v. White, 175 Conn. 35, 40, 392 A.2d 969 (1978).

It is important to our analysis to understand first that neither party claims that the court relied on any statutory authority provided for in the Social Security Act that creates any presumption that receipt of disability benefits by this defendant in a dissolution case irrebuttably forecloses any inquiry by a plaintiff into the health of that defendant. Second, it is the plaintiffs claim that nonetheless, the practical effect of the court’s ruling was to render his efforts to explore the health issue at trial fruitless, as if the disability payments did, in some fashion, justify the court’s announced “policy.”

Furthermore, we do not believe that the “inference” claimed by the defendant is one that logically and reasonably can be drawn in this dissolution case in which health is material and the plaintiff has, by the court, effectively been precluded from probing that issue. An “inference” means “[a] conclusion reached by considering other facts and deducing a logical consequence from them.” Black’s Law Dictionary, supra. To be properly proven, the inference not only must be logical and reasonable, but strong enough so that it can be found that it is more probable than not that the fact to be inferred is true. Hennessey v. Hennessey, 145 Conn. 211, 214-15, 140 A.2d 473 (1958). Once again, on the basis of the evidence actually before the court, we cannot say that it would be reasonable to draw such an inference. We recognize, though, that the law makes no distinction between direct and circumstantial evidence. See State v. Gunning, 183 Conn. 299, 312, 439 A.2d 339 (1981). We conclude that the court could not properly infer that the defendant’s qualification for and receipt of social security disability payments foreclosed discussion as to the issue of her health relative to the alimony order.

The defendant argues that the court’s actions, even if they were erroneous, constituted harmless error and would not warrant the reversal of the financial orders. She also argues in her brief that the record shows “that the result would be unchanged even if the trial court had not disallowed an independent medical examination or drawn an inference from [the] defendant’s disability determination.” (Emphasis added.) We do not agree.

“The [plaintiff] is entitled to relief from the trial court’s improper rulings only if one or more of those rulings were harmful. DiBerardino v. DiBerardino, 213 Conn. 373, 385, 568 A.2d 431 (1990); Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982); McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 40, 440 A.2d 801 (1981). It is well settled that the burden of establishing harm rests on the appellant. Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990); Hensley v. Commissioner of Transportation, 211 Conn. 173, 184, 558 A.2d 971 (1989); Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 7, 513 A.2d 1218 (1986). To meet this burden in a civil case, the appellant must show that the ruling would likely affect the result.” (Internal quotation marks omitted.) Borkowski v. Borkowski, 228 Conn. 729, 747, 638 A.2d 1060 (1994); see Bell v. Biharey, 168 Conn. 269, 273, 362 A.2d 963 (1975).

It follows, from what we previously have set forth, that the plaintiff has demonstrated that the court’s actions clearly were harmful and affected the result reached on the alimony issue in this case. The health of a party is a material criterion under § 46b-82, and our Supreme Court has stated that the trial court must consider all of the criteria in that statute. Caffe v. Caffe, 240 Conn. 79, 82, 689 A.2d 468 (1997). Moreover, in its memorandum of decision, the court stated that it took into account all of tire relevant factors in determining the alimony award pursuant to § 46b-82. The court’s rulings clearly were harmful and warrant the reversal of the financial orders. In a word, they constitute an abuse of discretion. Accordingly, we remand the matter for a new trial on all of the financial issues, not limited to alimony.

II

The plaintiff next contends that the court abused its discretion by denying his motion for a physical examination of the defendant. Although we disagree with the reasoning of the court in denying the motion, we nonetheless uphold the denial of the motion itself.

Pursuant to Practice Book § 13-11 (a), “[i]n any civil action, in any probate appeal, or in any administrative appeal where the judicial authority finds it reasonably probable that evidence outside the record will be required, in which the mental or physical condition of a party ... is material to the prosecution or defense of said action, the judicial authority may order the party to submit to a physical or mental examination by a physician . . . .” Practice Book § 13-11 (c) provides in relevant part that “such order may be made only on motion for good cause shown . . . .”

We review the court’s denial of a motion for a physical examination under an abuse of discretion standard. See In re Daniel C., 63 Conn. App. 339, 365, 776 A.2d 487 (2001) (standard of review for denial of motion for psychological examination in termination of parental rights case is one of abuse of discretion); State v. Nguyen, 52 Conn. App. 85, 94, 726 A.2d 119 (1999) (standard of review of denial of motion for physical examination of sexual assault victim is one of abuse of discretion), aff'd, 253 Conn. 639, 756 A.2d 833 (2000). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Nguyen, supra, 94; see Knock v. Knock, 224 Conn. 776, 782, 621 A.2d 267 (1993).

This court can sustain a decision on a theory different from that adopted by the trial court. See Groton v. Commission on Human Rights & Opportunities, 169 Conn. 89, 101, 362 A.2d 1359 (1975). In this case, the court denied the plaintiffs motion for a physical examination of the defendant on the ground that her receipt of social security disability benefits had rendered such an examination unnecessary. Although we disagree with the court’s rationale, as previously set forth, we nonetheless uphold the denial of the motion because the plaintiff failed to demonstrate good cause for a physical examination.

Practice Book § 13-11 does not provide the definition of the phrase “for good cause shown.” Black’s Law Dictionary (6th Ed. 1991), however, defines “good cause” as a “[l]egally sufficient ground or reason.” In this case, the plaintiff did not establish good cause to support his motion for a physical examination.

The plaintiff had notice of the defendant’s claimed ailments prior to receiving her proposed financial orders in 1999. Moreover, the plaintiff had available to him various discovery means that would have enabled him to obtain information about the defendant’s health short of an actual physical examination. In her financial affidavits of 1997 and 1998, the defendant stated that the status of her health prevented her from securing gainful employment. The defendant further provided letters of authorization, permitting the plaintiff to speak with her treating physicians, and she also gave him a medical report from one of her treating physicians, Levine, in 1998. The plaintiff had even filed a motion to take Levine’s deposition. The plaintiff, however, did not pursue any conversations with the defendant’s treating physicians, nor did he depose Levine.

We further note that in the context of the dissolution of a marriage, the court possesses wide discretion to act in accordance with principles of equity. Pasquariello v. Pasquariello, supra, 168 Conn. 583; see Meehan v. Meehan, 40 Conn. App. 107, 112-13, 669 A.2d 616, cert. denied, 236 Conn. 915, 673 A.2d 1142 (1996). “Equity is a two-way street and must be recognized as such wherever the court employs equity to resolve a dispute. ” (Internal quotation marks omitted.) Plackett v. Hackett, 42 Conn. Sup. 36, 53, 598 A.2d 1112 (1990), aff'd, 26 Conn. App. 149, 598 A.2d 1103 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992). In this case, where alternative means existed to obtain information regarding the health status of the defendant, the plaintiff not only lacked good cause to support his motion for a physical examination, but principles of equity mandated the denial of the motion. Accordingly, we uphold the denial of the plaintiffs motion for a physical examination of the defendant.

Ill

We now turn to the matter raised by the defendant, which is that if a new trial is ordered, as we are ordering in this appeal, we should review the court’s failure to award her medical benefits, life insurance and counsel fees, as well as its alleged disparate treatment of the parties as to the gifts each received from their respective families. We note that the defendant had filed a motion requesting the court to articulate its memorandum of decision. The court responded to that motion.

On the basis of our holding that the court abused its discretion in making its financial orders, we conclude that it is unnecessary to address the defendant’s claim, as we are remanding this matter for a new hearing on all financial issues. To conclude otherwise would defeat the goal of an equitable distribution of the parties’ assets. In this case, the financial issues are inextricably interwoven. “The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Papa v. Papa, 55 Conn. App. 47, 51, 737 A.2d 953 (1999).

The judgment is reversed as to the financial orders only and the case is remanded for a new hearing on all financial issues.

In this opinion the other judges concurred.

       Our judgment does not affect that portion of the trial court’s judgment dissolving the marriage of the parties.

       The marriage was the defendant’s third marriage and the plaintiffs second marriage.

       Additional circumstances will be referred to as necessary.

       The defendant also was informed that she had to be disabled for five full calendar months “in a row” before she could be entitled to benefits. Thus, her first month of entitlement to benefits would be March, 1998. Further, she was informed that she would receive $9011 around January 18,1999, which was money due her for the period from March, 1998, through December, 1998.

       “[MJonthly disability benefits” is about as specific as the claimed evidence gets as to the type of disability that the defendant is receiving. It is true that during the trial, the defendant’s counsel made the statement to the court that the defendant had “applied for last summer and has now qualified for social security disability as a fully disabled person.” That, of course, is not evidence. “It is well settled that representations of counsel are not, legally spealdng, ‘evidence.’ ” Cologne v. Westfarms Associates, 197 Conn. 141, 154, 496 A.2d 476 (1985); see Constantine v. Schneider, 49 Conn. App. 378, 395, 715 A.2d 772 (1998).

       The plaintiff further argues that the court concluded that he was collaterally estopped from contesting the defendant’s health. We do not agree with the plaintiffs assertion because we do not regard such a doctrine to be applicable here.
      Our Supreme Court has stated that “[c]ollateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970).” (Emphasis added.) Walsh v. Stonington Water Pollution Authority, 250 Conn. 443, 460-61, 736 A.2d 811 (1999). We are aware that our Supreme Court has “held that the doctrine [of collateral estoppel] may also apply to determinations of administrative agencies under certain circumstances.” State v. Fritz, 204 Conn. 156, 172, 527 A.2d 1157 (1987).
      For collateral estoppel to apply, however, privity must exist, in this case, between the plaintiff and the Social Security Administration. “Privity is not established . . . from the mere fact that persons may happen to be interested in the same question or in proving or disproving the same facts. 46 Am. Jur. 2d, Judgments § 532. While the concept of privity is difficult to define precisely, it has been held that a key consideration for its existence is the sharing of the same legal right by the parties allegedly in privity.” (Internal quotation marks omitted.) State v. Fritz, supra, 204 Conn. 173. It is apparent that the plaintiff and the Social Security Administration are not in privity in this case. Accordingly, the doctrine of collateral estoppel is not invoked here.

       General Statutes § 46b-82, entitled “Alimony,” provides: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-61, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability) estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       In Gallo, on the issue of the statutory criteria for alimony and the award of property, our Supreme Court stated that “[i]t would be error to exclude testimony on any of the statutory factors.” Gallo v. Gallo, supra, 184 Conn. 49.

       There is in the record before us no evidence of the actual award by the Social Security Administration. There is, however, in 1he defendant’s appendix to her brief a copy of the “Notice of Award” of such ($911) monthly payments to her. The “Notice of Award,” however, admittedly was not presented to the trial court. Moreover, there was no evidence before that court that the actual award was for “total disability,” which is the degree of disability claimed by the defendant.

       The defendant’s counsel represents that the plaintiff was informed of and given a copy, at a pretrial conference, of the written opinion of Levine, the physician who was said to be “treating” the defendant, and that the defendant had been diagnosed as having chronic fatigue syndrome. There is no indication that Levine ever testified at the trial or that her opinion ever was made an exhibit at the trial. It is not only true that representations of counsel “are not ‘evidence’ upon which an appellate court can rely when reviewing the findings of the [finder of fact],” but. neither “can a [document] that was not made under oath and never admitted as an exhibit constitute evidence upon which [the reviewing court] may evaluate the ruling of the trial court.” State v. Carsetti, supra, 12 Conn. App. 379.

       In civil cases, conclusive presumptions also are called legal or irrebuttable presumptions. C. Tait, Connecticut Evidence (3d Ed. 2001) § 3.16.1.

       Black’s Law Dictionary defines a “presumption of law” to mean “[a] legal assumption that a corut is required to make if certain facts are established and no contradictory evidence is produced.” Black’s Law Dictionary, supra.

       We keep in mind that there is no evidence in this case of the degree of the defendant’s disability. Not only was the actual award not in evidence, but there is no evidence that she in fact is disabled by the maladies that she claims to have. Although she may be disabled, those claimed maladies still have to be demonstrated appropriately by evidence.

       The court, however, did not cast its ruling in terms of probability, as the defendant suggests, but rather as one of unqualified determination.

       We are not persuaded by the defendant’s argument that the court’s “errors” cannot be harmful because they can be remedied should the condition of her health change and that should that consequently bring about a change in her social security, then the plaintiff would have the right to seek a modification on the showing of a substantial change in circumstances. Such gossamer possibilities are not persuasive.

       After the court filed its memorandum of decision, the defendant filed her motion for articulation. That motion requested that the court rule on the “following overlooked matters,” and referred to her requests for counsel fees and the plaintiffs contribution to her medical insurance premiums. It also asked the court to state “whether or not it took into consideration gifts received by the plaintiff from his father in determining the plaintiffs income to arrive at an alimony order.”
      In its articulation, the court disputed the suggestion that it had “overlooked” anything, and pointed out that no order was entered as to counsel fees and medical insurance premiums. As to the request concerning the matter of family gifts to the plaintiff, the court articulated that its memorandum of decision stated that it had “reviewed the testimony [and] evaluated the witness and documents in evidence In its memorandum of decision, the court stated that this was “all in light of General Statutes §§ 46b-81, 46b-82 and other relevant law” in arriving at its decision.


text:
    ELLEN MCGINTY v. JOHN MCGINTY
    (AC 19081)
    Landau, Mihalakos and O’Connell, Js.
    Argued January 22
    officially released October 2, 2001

      Lori Welch-Rubin, with whom, on the brief, was Jane Grossman, for the appellant (plaintiff).

      Alan Scott Pichel, for the appellee (defendant).
   Opinion

LANDAU, J.

The plaintiff, Ellen McGinty, appeals from the judgment of the trial court granting the motion of the defendant, John McGinty, to modify visitation with respect to the parties’ minor child. On appeal, the plaintiff claims that the court (1) committed plain error by hearing motions to modify the visitation order without the participation of counsel for the minor child and (2) abused its discretion by modifying the visitation order without finding a material change in circumstances. We affirm the judgment of the trial court.

The following facts are relevant to the disposition of this matter. The parties’ marriage was dissolved by agreement on November 22, 1996. The parties, who lived a relatively short distance from each other, shared joint legal custody of their minor child. The plaintiff, however, had primary physical custody. In September, 1997, the defendant filed several postdissolution motions, including a motion for appointment of counsel for the minor child, which the court granted on October 14,1997. In May, 1998, pursuant to the dissolution agreement, the plaintiff notified the defendant of her intention to move with the child from her home in Connecticut to New Jersey. The defendant filed a motion to enjoin the plaintiff from moving with the child, which was denied on September 4,1998. Counsel for the minor child participated in the relocation proceedings. Shortly after the court’s decision, the plaintiff moved with the child to New Jersey.

On October 13 and 14, 1998, the defendant and the plaintiff, respectively, filed postjudgment motions to modify the court’s visitation order. The parties’ respective motions proposed, inter alia, solutions to the problems inherent in regular interstate visitation. At the October 26, 1998 hearing on the respective motions, counsel for the minor child was not present in court. The court noted that counsel for the child needed to be replaced immediately and advised the parties that if they could not come up with a joint nominee, the court would appoint someone. The court then asked the parties if they consented to going forward on the motions to modify visitation without counsel for the child. Both parties agreed. The court subsequently concluded that the defendant’s proposed visitation schedule was in the best interest of the child. Accordingly, the court granted the defendant’s motion to modify visitation and denied the plaintiffs motion. This appeal followed.

I

The plaintiff first claims that it was plain error for the court to have gone forward on the motions to modify visitation without the participation of counsel for the minor child. We conclude that because the plaintiff does not have standing, we do not have subject matter jurisdiction over the claim.

“The issue of standing implicates the court’s subject matter jurisdiction. . . . Standing focuses on the party seeking to be heard and not on the issues that party wants to have heard. . . . The question of standing does not involve an inquiry into the merits of the case. ... It merely requires allegations of a colorable claim of injury to an interest that is arguably protected by [a] statute or common law.” (Citations omitted; internal quotation marks omitted.) Taff v. Bettcher, 35 Conn. App. 421, 424-25, 646 A.2d 875 (1994).

In Taff the defendant appealed from a decision of the trial court granting the plaintiffs motion to modify the pendente lite order of custody regarding the parties’ minor child. Id., 422. The defendant claimed that the trial court improperly conducted a hearing on the motion to modify custody without counsel for the minor child present. Id., 423. This court concluded that where the trial court appoints counsel for a minor child pursuant to General Statutes § 46b-54, no authority or legal interest is conferred on the parents. Id., 425-26. Because the defendant was asserting a right that she did not have, we concluded that she did not have standing. Id., 426.

Here, the plaintiff is asserting that the minor child was denied his right to have counsel participate in the proceedings. Because the plaintiff is asserting a right that does not belong to her, she does not have standing to assert her claim. See id. Accordingly, we do not have subject matter jurisdiction and we dismiss this claim.

II

The plaintiff next claims that the court abused its discretion by modifying the visitation order without finding that there was a substantial change in circumstances. We disagree.

We first set forth our standard of review. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parties to the hearing. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . .

“[I]n determining [whether there has been an abuse of discretion] the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . [W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached. . . .

“When a court rules on a motion to modify visitation, it is statutorily incumbent on the court that its order be guided by the best interest of the child standard, as set forth in General Statutes § 46b-56 (b). Ireland v. Ireland, 246 Conn. 413, 452, 717 A.2d 676 (1998) (Citations omitted; internal quotation marks omitted.) Szczerkowski v. Karmelowicz, 60 Conn. App. 429, 432-33, 759 A.2d 1050 (2000). It is in that light that we review whether the court abused its discretion. Id., 433.

In Szczerkowski, as here, the defendant claimed that the court abused its discretion by modifying a visitation order without finding that there was a substantial change in circumstances. Id., 432. We concluded that when considering motions to modify visitation, courts should apply the best interest of the child standard. Id.; see also General Statutes § 46b-56. Here, on the basis of our review of the record, we conclude that the court did apply the best interest of the child standard to its rulings on the motions to modify the visitation order and that its rulings did not constitute an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The motions filed by the defendant included, inter alia, a motion for contempt, which alleged that the plaintiff was not in compliance with the court’s order regarding visitation, and a motion for modification of visitation, requesting that the court increase the defendant’s visitation time with the minor child.

       At the time that the motions were heard, the minor child had weekday overnight visitation with the defendant. In her motion, the plaintiff claimed that overnight visitation during the school week was disruptive and exhausting for the child.

       The attorney who represented the minor child had moved to Atlanta, Georgia.

       The following colloquy regarding counsel for the minor child took place:
      “The Court: I think [counsel for the minor child] has to be replaced.
      “[Defendant’s Counsel]: I agree with that, Your Honor.
      “[Plaintiffs Counsel]: I concur.
      “The Court: And I think we should replace her immediately.
      “[Defendant’s Counsel]: Want us to see if we can agree on somebody?
      “The Court: I would take a joint nominee but if you can’t agree on a joint nominee, then I am going to appoint somebody .... Now can we proceed in the meantime without somebody on board for the [minor] at the moment?
      “[Plaintiffs Counsel]: I think we can, Your Honor.
      “[Defendant’s Counsel]: I think we can on visitation, Your Honor.”

       General Statutes § 46b-54 provides: “(a) The court may appoint counsel for any minor child or children of either or both parties at any time after the return day of a complaint under section 46b-45, if the court deems it to be in the best interests of the child or children. The court may appoint counsel on its own motion, or at the request of either of the parties or of the legal guardian of any child or at the request of any child who is of sufficient age and capable of making an intelligent request.
      “(b) Counsel for the child or children may also be appointed on the motion of the court or on the request of any person enumerated in subsection (a) of this section in any case before the court when the court finds that the custody, care, education, visitation or support of a minor child is in actual controversy, provided the court may make any order regarding a matter in controversy prior to the appointment of counsel where it finds immediate action necessary in the best interests of any child.

        “(c) Counsel for the child or children shall be heard on all matters pertaining to the interests of any child, including the custody, care, support, education and visitation of the child, so long as the court deems such representation to be in the best interests of the child.”

       The plaintiffs invocation of the plain error doctrine does not get her over the hurdle of standing. See Lowe v. Lowe, 47 Conn. App. 354, 363-64, 704 A.2d 236 (1997) (appellant does not have standing to claim court committed plain error by not appointing separate counsel for eldest child).
      The plaintiff also claims that the court, by its rulings on the motions to modify visitation, abused its discretion by depriving the minor child of time with the plaintiff. To the extent that the minor child does have a legal right to time with the plaintiff mother, we conclude that the right belongs to the child, not the parent. Again, the plaintiff cannot gain standing by asserting rights possessed by her child. Taff v. Bettcher, supra, 35 Conn. App. 426. Accordingly, we do not have subject matter jurisdiction over the plaintiffs claim and we dismiss it.

       General Statutes § 46b-56 (b) provides in relevant part: “In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference, provided in making the initial order the court may take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child . . . .”


text:
    M.J. DALY & SONS, INC. v. CITY OF WEST HAVEN
    (AC 20542)
    Lavery, C. J., and Landau and Dranginis, Js.

      Argued June 12
    officially released October 2, 2001

      William J. Egan, with whom was Barbara E. Crowley, for the appellant-appellee (defendant).

      John B. Farley, with whom were Robert M. Barrack and, on the brief, Dennis C. Cavanaugh, for the appellee-appellant (plaintiff).
   Opinion

LANDAU, J.

The defendant, the city of West Haven (city), appeals and the plaintiff, M.J. Daly & Sons, Inc. (Daly), cross appeals from the judgment rendered in favor of Daly, after a trial to the court, in this action sounding in contract and tort. On appeal, the city claims that the court improperly (1) concluded that Daly was not required to submit its claims to the project engineer, (2) concluded that Daly’s claims were not barred by the defense of accord and satisfaction, (3) reached conclusions not supported by the facts and (4) failed to grant the city’s motion to dismiss for lack of subject matter jurisdiction. On cross appeal, Daly claims that the court improperly applied the clear- and convincing standard of proof to its tort claims. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the claims raised on the appeal and cross appeal. The city accepted Daly’s bid to make improvements to the city’s sewage disposal system. The contract called for completion of the improvements by March 31, 1993. Pursuant to the terms of the contract, the project engineer was the interpreter of the requirements of the contract and the arbiter of disputes that arose under the contract. In the event of the termination of the project engineer, the contract provided that the city “shall appoint an engineer against whom [Daly] makes no reasonable objection, whose status under the Contract Documents shall be that of the former [engineer].” At the time the parties entered into the contract, the project engineer was the firm of Cascio Bechir.

Problems with the project developed almost immediately. Daly discovered an underground structure that was not shown on the plans and which delayed the initial excavating. Later, Daly discovered that the force main pipe running from the pumping station to the water pollution control plant was made of asbestos cement and, therefore, a parallel force main pipe needed to be installed. Work on the project stopped while the city’s engineers prepared the plans and specifications for the construction of the new force main pipe. Furthermore, an existing pump failed, requiring Daly to perform emergency bypass pumping.

On January 20, 1995, the city terminated Cascio Bechir as the project engineer. The city then purported to appoint the engineering firm of Black & Veatch as the successor project engineer on March 24, 1995. At no time did the city seek Daly’s consent for the appointment of Black & Veatch as project engineer. On January 31, 1996, Daly brought an action alleging that the city failed to compensate Daly for change orders to the contract. On June 13,1996, the city elected to terminate the contract with Daly prior to the completion of the project.

Daly set out its action against the city in a six count complaint. The first count alleged that the city breached the contract by failing to compensate Daly for delay caused by the city and for change orders to the contract. The second count claimed damages for expenses incurred by Daly for home office expenses and overhead. The third count claimed a lack of good faith in the handling of Daly’s claims under the contract. The fourth count alleged that the city was negligent in its failure to provide Daly with accurate plans for the project. The fifth count alleged negligent misrepresentations and omissions by the city regarding payment for change orders to the contract. The sixth count alleged that the city misrepresented its willingness to compensate Daly for the emergency bypass pumping. In response to Daly’s complaint, the city pleaded several special defenses, alleging, inter alia, that Daly’s claims were barred by accord and satisfaction and by Daly’s failure to submit its claims to the project manager for resolution. The city also counterclaimed, alleging that Black & Veatch, as the project engineer, had considered Daly’s claims and had determined that Daly was due $171,326 under the contract. The city claimed that, pursuant to the terms of the contract, the court should enforce the project engineer’s award.

The case was tried to the court. The court concluded that the city had not proven the special defense of accord and satisfaction because there was no meeting of the minds between the city and Daly that the payments tendered by the city were in full satisfaction of the debt. The court also concluded that the city had not proven its second special defense because Daly, in accordance with the contract, objected to the appointment of Black & Veatch as project engineer and, therefore, Daly was not required to submit its claims to Black & Veatch. The court then concluded that Daly proved a number of its claims and was entitled to damages in the amount of $544,540.21 and interest in the amount of $178,878.81 for a total award of $723,419.02. This appeal and cross appeal followed.

We first set forth our standard of review. It is well settled that “[t]he scope of our . . . review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings are clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Commissioner of Transportation v. Towpath Associates, 255 Conn. 529, 539-40, 767 A.2d 1169 (2001).

I

THE APPEAL

A

The city first claims that the court’s finding that Black & Veatch was not the project manager for purposes of dispute resolution between the city and Daly was clearly erroneous. We disagree.

The following additional facts are necessary for our resolution of the city’s claim. The contract provided that the project engineer was to be the arbiter of all disputes between the city and Daly. The contract further provided that where the city terminated the project engineer, the city was to name a successor project engineer. The successor project engineer was to be vested with the same status as the former engineer. Under the contract, Daly could object to the appointment of the successor project engineer.

There is evidence in the record that shows that on March 24, 1995, the city purported to name Black & Veatch as the successor project engineer. There is also evidence that shows that in the months following the purported appointment of Black & Veatch, Daly did work with Black & Veatch on the project. In a letter dated June 19, 1995, the city advised Daly that it may not have formally notified Daly that it had switched the project engineer from Cascio Bechir to Black & Veatch. Counsel for Daly, in a letter dated October 9, 1995, advised the city that the “appointment [of Black & Veatch] was not made in accordance with [the contract] . . . [and that] Black & Veatch is unable to act on such administrative matters requiring an impartial and objective decision. Accordingly, Daly does not accept Black & Veatch as the designated Project Engineer under the contract.” Later, in a letter dated December 8, 1995, Daly again notified the city that it objected to the appointment of Black & Veatch as project engineer on the grounds that it had not been consulted and because it did not believe that Black & Veatch was impartial or objective.

Citing to the December 8,1995 letter, the court found that Daly reasonably had exercised its contractual right to object to the appointment of Black & Veatch as project manager. Therefore, while Daly did, for convenience, recognize Black & Veatch for some purposes, Black & Veatch was not the project manager for purposes of dispute resolution. On the basis of our review of the record, we cannot conclude that the court’s findings were clearly erroneous.

B

The city next claims that the court improperly failed to conclude that change order number six to the contract constituted an accord and satisfaction of Daly’s claims for the events that occurred prior to June 8, 1995. We disagree.

The following additional facts are necessary for our review of this claim. When it was discovered that the force main running from the pumping station to the water pollution control plant was made out of asbestos, the parties prepared contract change order number one to allow the plaintiff to construct a new force main. Predictably, construction of the new force main delayed work on the rest of the project. Later, via change order number six dated June 7, 1995, the city compensated Daly $174,512.72 for delay on the project. In its action against the city, Daly claimed damages for extended home office overhead for the period between August 1, 1994, and June 8, 1996. Daly also claimed damages for down time incurred while one of its subcontractors installed the new force main. The court awarded Daly damages for both claims.

The city claims that the court improperly failed to find that the city’s payment to Daly made pursuant to change order number six constituted an accord and satisfaction of the claims for down time and the extended home office overhead prior to June 8, 1995. As the trial court noted in its memorandum of decision, “[t]o prove an accord and satisfaction, the defendant must show that at the time of the agreement there was a good faith dispute over the existence of a debt . . . and that the debtor and the creditor negotiated a contract of accord to settle the claim. . . . The proponent must be able to show that there was a meeting of the minds, and that the offer by the debtor was clearly tendered as full satisfaction of the debt and that the payment was knowingly accepted.” (Citations omitted.) Munroe v. Emhart Corp., 46 Conn. App. 37, 42-43, 699 A.2d 213, cert. denied, 243 Conn. 926, 701 A.2d 658 (1997). “Without a mutual assent, or a meeting of the minds, there cannot be a valid accord.” (Internal quotation marks omitted.) Id., 42. Whether a meeting of the minds has occurred is a factual determination. See id., 43.

Here, because the parties were aware of a number of potential claims by Daly and because change order number six was silent with respect to those claims, the court found that there was no meeting of the minds for purposes of accord and satisfaction. On the basis of our review of the record, we cannot conclude that the court’s finding is clearly erroneous. Therefore, the court did not improperly conclude that change order number six did not constitute an accord an satisfaction.

C

The city next claims that the court’s findings of fact do not support its conclusions that the city was liable for (1) emergency bypass pumping costs and (2) extended home office overhead costs. We disagree.

1

The city first claims that the court’s findings of fact do not support its conclusion that the city was liable for emergency bypass pumping. More specifically, the city claims that the court’s conclusion is improper because it did not find that the city was at fault for the pumping. We disagree.

The following additional facts are necessary for our resolution of this claim. As part of the project, Daly agreed to install bypass pumping to serve the city while it constructed the new main pump station. After delay caused by the need to construct the new force main, Daly projected that the bypass pumping would remain in place for nine weeks. Because the city’s existing pumps failed or were in danger of failing, the city requested that Daly provide emergency temporary bypass pumping. The pumping lasted for 176 days for a total cost of $421,364.78. The court also found that Daly was entitled to an additional $35,910 for the fifteen days that the project was shut down to accommodate an event hosted by the city. The court then found that Daly’s total expenses should be reduced by $39,200 due to an emergency component provision in the contract and $220,248 because Daly was responsible for ninety-two days of the pumping. Accordingly, the court found that Daly was entitled to a total of $197,827 in damages for its additional expenditures on bypass pumping.

Where a contractor, at the request of the owner, subsequently agrees to provide services not contemplated at the time of formation of the original contract, the new agreement is binding on the owner. See Brian Construction & Development Co. v. Brighenti, 176 Conn. 162 166-67, 405 A.2d 72 (1978). Here, on the basis of the court’s findings that the emergency bypass pumping was necessitated by the failure of the city’s existing pumps and that Daly performed the pumping at the request of the city, we conclude that the court’s conclusion that the city is liable for the emergency bypass pumping is supported by the facts.

2

The city next claims that the court’s conclusion that it was liable to Daly for extended home office overhead costs was improper because it did not find that the city was at fault for the delay. We disagree.

The following additional facts are necessary for our resolution of this claim. The court found that Daly expended $349,151 in home office overhead costs for the 677 days between August 1, 1994, and June 8, 1996. Of the 677 days, the court found that Daly was responsible for seventy-seven days of the delay. The court then found that the city was responsible for a substantial portion of the delays encountered throughout the project. The delay attributed by the court to the fault of the city included the delay related to the discovery of the underground structure, the delay associated with the construction of the new force main not covered by a change order to the contract, the delay caused by the emergency bypass pumping and the delay caused by the accommodation of an event hosted by the city. The court concluded that Daly was entitled to $309,419 in damages for its home office overhead expenses caused by the delay of the city.

“Home office overhead is a well-recognized item of damage for delay . . . .” (Internal quotation marks omitted.) Southern New England Contracting Co. v. State, 165 Conn. 644, 663, 345 A.2d 550 (1974). The city argues, however, that because the court did not expressly find that the city was at fault for the delay that occurred within the delay period, it could not have concluded that the city was liable for the home office overhead. We disagree. We conclude, on the basis of the court’s finding that the city was responsible for a substantial portion of the delays encountered throughout the project and, especially, its finding that the delay for the emergency bypass pumping was the fault of the city, that the court’s conclusion is supported by the facts.

D

The city’s final claim is that the court improperly failed to grant its motion to dismiss Daly’s action for lack of subject matter jurisdiction. More specifically, the city claims that because the contract provided that the project engineer was the arbiter of disputes under the contract, the trial court did not have subject matter jurisdiction over the claims. We conclude that the city’s claim is moot and, therefore, we do not have subject matter jurisdiction over the claim.

The following additional facts and procedural history are necessary for our resolution of the city’s claim. In a motion dated December 20, 1996, the city moved the court to dismiss Daly’s claims for breach of contract on the ground that the contract provided that all claims under the contract were to be decided by the project manager. In its memorandum of decision, the court agreed with the city’s assertion that the parties contract provided that the project manager was the arbiter of disputes. The court concluded, however, that because there was a factual dispute regarding whether there was a project engineer in place to decide disputes, it had subject matter jurisdiction over the claims. At trial, the court found that there was no project manager for purposes of dispute resolution.

“Mootness implicates the court’s subject matter jurisdiction and is thus a threshold matter for us to resolve. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . When . . . events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Citations omitted; internal quotation marks omitted.) Ayala v. Smith, 236 Conn. 89, 93-94, 671 A.2d 345 (1996).

Here, we agree with the city’s assertion that in ruling on the motion to dismiss, the trial court should have resolved the factual disputes relevant to the motion. See Coughlin v. Waterbury, 61 Conn. App. 310, 315-16, 763 A.2d 1058 (2001). We conclude, however, that because those factual disputes were resolved in Daly’s favor at trial, there is no practical relief that we can grant the city. Therefore, the city’s claim is moot, and we do not have subject matter jurisdiction to review the claim.

II

THE CROSS APPEAL

On cross appeal, Daly claims that the court applied the wrong standard of proof to its tort claim that the city acted in bad faith. More specifically, Daly argues that the court applied the clear and convincing standard to the claim although the proper standard is preponderance of the evidence. We disagree.

The following additional facts are necessary for our resolution of Daly’s claim. In its action, Daly claimed that the city was liable in tort for breach of good faith and fair dealing, negligence, negligent misrepresentation and intentional misrepresentation. In its memorandum of decision, the court found that Daly’s claims were, in essence, a claim that the city acted in bad faith and that “there [was] no clear and compelling evidence to show or suggest that the city acted in bad faith toward Daly.” Accordingly, the court found in favor of the city.

The standard of proof applicable to claims of bad faith is clear and convincing evidence. See Citino v. Redevelopment Agency, 51 Conn. App. 262, 270, 721 A.2d 1197 (1998). Daly argues, however, that its claims are subject to the preponderance of the evidence standard. In light of the court’s classification of Daly’s several claims as a bad faith claim, we conclude that Daly reads the court’s memorandum of decision too narrowly. The court applied the correct standard.

The judgment is affirmed.

In this opinion the other judges concurred.

       The city also alleged that it already had paid Daly the award as determined by the project manager.

       After recalculating interest, adding attorney’s fees and ruling on several posttrial motions, the court awarded Daly $1,043,275.91.

       There is evidence that pursuant to the initial contract between the city and Black & Veatch, Black & Veatch was not to be vested with the power to review claims related to the project. The evidence further shows that not until 1996 was the contract between the city and Black & Veatch amended to provide Black & Veatch with the power to review claims on the project.

       Daly’s concern regarding the possibility of Black & Veatch serving as the arbiter of claims on the project apparently flows from a provision of the contract between the city and Black & Veatch dated June 5,1995, which provides that Black & Veatch will assist the city with “[pjreparation for litigation, arbitration, or other legal or administrative proceedings and appearances in court or at arbitration sessions in connection with project disputes or construction incidents.”

       The court, found that the total expenditure did not include Daly’s costs for the nine weeks of pumping contemplated by the contract. Accordingly, the court credited the city $43,500.78, tire amount contemplated by the contract.

       The city also argues that the court’s findings regarding the calculation of the number of days that it is liable for the emergency bypass pumping is clearly erroneous. On the basis of our review of the record, we cannot agree.

       In calculating its award, the court reduced the $349,151 that Daly had expended in home office overhead by $39,732 for the seventy-seven days of delay attributed to Daly.

       The city makes two other claims respecting the court’s award of damages for extended home office overhead. First, citing West v. All State Boiler, Inc., 146 F.3d 1368 (Fed. Cir. 1998), the city argues that the court’s award was improper because it did not find that Daly (1) was on standby for the project and (2) was unable to take on other work. Second, the city claims that the court improperly calculated the amount of time that Daly was entitled to receive extended home office overhead expenses. On the basis of our review of the record, we conclude that these claims are raised for the first time on appeal and, accordingly, we decline to review them. Practice Book § 60-5.

       The court found that the argument in the city’s motion was encompassed in its special defenses and that because there were facts in dispute, the issues should be decided at trial.