author: McLACHLAN, J.

text:
    NICHOLAS BIELLO v. TOWN OF WATERTOWN
    (AC 27399)
    Flynn, C. J., and McLachlan and Pellegrino, Js.

      Argued March 28
    officially released August 5, 2008

      Robert S. Kolesnik, Sr., with whom, on the brief, was Robert S. Kolesnik, Jr., for the appellant (plaintiff).

      Michael J. Rose, with whom, on the brief, were Johanna G. Zelman and Robin B. Kallor, for the appellee (defendant).
   Opinion

McLACHLAN, J.

The plaintiff, Nicholas Biello, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant, the town of Watertown. The plaintiff claims that the court improperly concluded that (1) it lacked subject matter jurisdiction over his wage claims arising subsequent to July 1, 1996, because he failed to exhaust internal grievance procedures before filing his complaint, (2) the holding in Fennell v. Hartford, 238 Conn. 809, 681 A.2d 934 (1996), precludes recoveiy for wage claims against a municipality under the theories of implied contract, unjust enrichment and quantum meruit, (3) a stipulation he signed in April, 1996, constituted an accord and satisfaction with respect to certain of his wage claims and (4) the statute of limitations precluded recovery for all wage claims arising prior to September 13, 1997. We conclude that the court’s conclusions on the first two issues are dispositive of this case and were decided correctly. We affirm the judgment of the trial court.

From the evidence presented at trial, the court reasonably could have found the following facts. The plaintiff was employed by the defendant from May, 1971, through July, 2001. In 1992, he was promoted to the position of supervisor in the water and sewer department, a position covered by a collective bargaining agreement. In July, 1994, the defendant’s water and sewer authority was separated from the public works department. The restructuring resulted in the creation of a new position, superintendent. That person would be the department head of the water and sewer authority. The plaintiff was offered the position of superintendent. When he declined, he was instructed to fill the position of assistant superintendent and to act as the department head until the position of superintendent could be filled. There was some question as to whether the assistant superintendent position was covered by the collective bargaining agreement.

The water and sewer authority recommended to the town council that the plaintiffs salary as assistant superintendent be set at $45,808 for fiscal year 1995 (July 1, 1994, through June 30, 1995) and $50,000 for fiscal year 1996 (July 1, 1995, through June 30, 1996). Although the town council approved the position of assistant superintendent, it declined to approve the salary recommended by the water and sewer authority. Instead, the town council approved a salary in the same amount that the plaintiff had been receiving in his former position as supervisor. For fiscal year 1995, the plaintiff received a base salary of approximately $38,000 plus overtime pay, totaling $47,364. For fiscal year 1996, the plaintiffs base salary of approximately $40,000 and overtime pay totaled $49,003.18.

When the defendant refused to pay the plaintiff the salary recommended by the water and sewer authority for the position of assistant superintendent, the union filed a grievance on his behalf, and the claim was submitted to arbitration. The issue submitted focused on the title of the plaintiffs position, the nature of his duties and the rate of pay he should be receiving. On April 18, 1996, shortly after the plaintiff began his presentation before the three arbitrators, the panel terminated the proceeding. The panel indicated that it lacked the authority either to create a position or to compel the defendant to staff it and that it lacked the authority to compel the defendant to set a particular rate of pay for a position if it existed. Shortly thereafter, on that same day, the parties entered into an agreement under which the plaintiff was to be compensated $10,000 “for additional duties performed between July 1, 1994 to June 30, 1996.” The stipulation was dated and signed by the plaintiff, the defendant and the union on April 18, 1996.

On July 1, 1996, the position of superintendent was filled, the position of assistant superintendent was eliminated and the plaintiff was returned to his former position of supervisor. At that point, it is undisputed that he was again a member of the collective bargaining unit. He claims that he continued to perform the duties of assistant superintendent until he retired in 2001. He did not file any grievances after July 1, 1996, with respect to his continuing claim that the defendant was not paying him an appropriate salary. In that regard, he maintained that he should have been paid the amount recommended by the water and sewer authority for fiscal years 1995 and 1996, and that, thereafter, he should have been paid at a rate reflective of the assistant superintendent duties he performed even though his job title had reverted to that of supervisor.

On September 27,1999, the plaintiff filed a complaint alleging breach of an implied contract, unjust enrichment, quantum meruit and breach of the implied covenant of good faith and fair dealing. A four day trial on the plaintiffs complaint was conducted in September and October, 2005, and on January 18, 2006, the court, Hon. Howard J. Moraghan, judge trial referee, issued its memorandum of decision. In that decision, the court concluded that it lacked subject matter jurisdiction over the plaintiffs wage claims accruing subsequent to July 1,1996, because the plaintiff had failed to exhaust internal grievance procedures available under the collective bargaining agreement. The court further found that the town council, by charter, had the sole authority to determine the plaintiffs salary and that the recommendation of the water and sewer authority, for an amount in excess of the salary approved by the town council, did not constitute an implied contract. The court reasoned that Fennell v. Hartford, supra, 238 Conn. 809, precluded recovery under the theories of implied contract, unjust enrichment and quantum meruit. The court also found that the stipulation constituted an accord and satisfaction with respect to certain of the plaintiffs wage claims and that the statute of limitations precluded recovery for the wage claims arising prior to September 13, 1997. The court rendered judgment in favor of the defendant, and this appeal followed.

I

The plaintiffs first claim is that the court improperly determined that it lacked subject matter jurisdiction over wage claims arising subsequent to July 1, 1996. The court determined that when the plaintiffs position reverted to supervisor on July 1,1996, once again he was covered by the terms and conditions of the collective bargaining agreement. Because the plaintiff failed to raise his claims pursuant to the grievance and arbitration provisions contained in that agreement, the court concluded that he failed to exhaust the remedies available to him.

The plaintiff does not argue that he was not an employee covered by the collective bargaining agreement, nor does he contend that the court incorrectly determined that he did not utilize the procedures set forth in that agreement. Instead, he claims that a prior ruling of the court, Leheny, J., in which it denied the defendant’s motion for summary judgment on this issue, and Judge Moraghan’s prior ruling, in which he denied the defendant’s motion to dismiss the plaintiffs complaint on the ground that he failed to join the union as a necessary and indispensable party, constituted the law of the case and could not be overruled absent some new or overriding reason.

The law of the case doctrine provides that “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” (Internal quotation marks omitted.) Wasko v. Manella, 87 Conn. App. 390, 395, 865 A.2d 1223 (2005). “A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. . . . [0]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.” (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 130-31, 788 A.2d 83 (2002).

The previous rulings of the court did not address directly the issue as presented before Judge Moraghan when he rendered final judgment. Further, a court must view the evidence in the light most favorable to the nonmoving party when considering a motion for summary judgment; see Lopes v. Farmer, 286 Conn. 384, 388, 944 A.2d 921 (2008); and is required to construe the facts as alleged in the complaint in a manner most favorable to the pleader when considering a motion to dismiss. See Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432-33, 829 A.2d 801 (2003). After four days of evidence submitted at trial, the court made a reasoned determination that the plaintiff was a member of the union as of July 1, 1996, and was covered by the terms and conditions of a collective bargaining agreement. Further, the court found that he did not follow the grievance and arbitration provisions in that agreement with respect to the wage claims accruing after that date, the same claims that he now asserts in the present case.

“The exhaustion of remedies doctrine is applied in a number of different situations . . . including when an exclusive grievance or arbitration procedure is contained in a collective bargaining agreement and when an administrative appeal is taken. In both contexts, if a party has failed to avail itself of the arbitration or appeal process, the trial court is without subject matter jurisdiction to hear its claims.” (Citation omitted.) Neiman v. Yale University, 270 Conn. 244, 253, 851 A.2d 1165 (2004). The plaintiff has not challenged the court’s factual findings that he could have availed himself of the grievance procedures set forth in the collective bargaining agreement after July 1,1996, and that he failed to do so. Accordingly, we conclude that the court properly determined that it lacked subject matter jurisdiction over the wage claims that accrued after that date.

II

The plaintiffs next claim is that the court improperly concluded that the holding in Fennell v. Hartford, supra, 238 Conn. 809, precluded his recovery against the defendant for wage claims under the theories of implied contract, unjust enrichment and quantum meruit. Specifically, the plaintiff argues that Judge Leheny’s previous ruling, denying the defendant’s motion for summary judgment, constituted the law of the case. The plaintiff claims that the court’s decision on the motion for summary judgment addressed the argument that Fennell precluded recovery and rejected it. The plaintiff argues that the previous ruling, concluding that the holding of Fennell was limited to implied contracts that are based on pension or employee manuals, was correct and that Judge Moraghan improperly held to the contrary when he rendered judgment. We disagree.

A court is not bound to follow a prior interlocutory ruling that it finds to be incorrectly decided. See Wasko v. Manella, supra, 87 Conn. App. 395. In rendering judgment in favor of the defendant in the present case, the court quoted extensively from Fennell and agreed with the defendant’s position that the doctrines of implied contract, unjust enrichment and quantum meruit do not apply in municipal employee wage claim disputes. Judge Moraghan’s determination was correct, and, therefore, it would have been improper to follow the law of the case under these circumstances.

Additional facts are helpful in our analysis. Watertown’s first charter was adopted on July 6, 1961. Van Deusen v. Watertown, 62 Conn. App. 298, 304, 771 A.2d 177, cert. denied, 256 Conn. 911, 772 A.2d 1125 (2001). The court found—and the finding is unchallenged by the plaintiff—that the defendant’s charter “recites and establishes that the town council is the only entity with authority to set the salary of an assistant superintendent . . . .” Although the water and sewer authority made a recommendation to the town council as to the plaintiffs proposed salary in the position of assistant superintendent, the water and sewer authority is an entity subordinate to the town council.

“It has been well established that a city’s charter is the fountainhead of municipal powers .... The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised. . . . Agents of a city, including [its commissions], have no source of authority beyond the charter. ... In construing a city charter, the rules of statutory construction generally apply. . . .

“The officer, body or board duly authorized must act [on] behalf of the municipality, otherwise a valid contract cannot be created. Generally the power to make contracts on behalf of the municipality rests in the council or governing body .... Generally, no officer or board, other than the common council, has power to bind the municipal corporation by contract, unless duly empowered by statute, the charter, or authority conferred by the common council, where the latter may so delegate its powers .... It follows that agents of a city, including its commissions, have no source of authority beyond the charter. [T]heir powers are measured and limited by the express language in which authority is given or by the implication necessary to enable them to perform some duty cast upon them by express language. . . . [A]ll who contract with a municipal corporation are charged with notice of the extent of . . . the powers of municipal officers and agents with whom they contract, and hence it follows that if the . . . agent had in fact no power to bind the municipality, there is no liability on the express contract .... Thus, every person who deals with [a municipal corporation] is bound to know the extent of its authority and the limitations of its powers.” (Citations omitted; internal quotation marks omitted.) Fennell v. Hartford, supra, 238 Conn. 813-14.

Given these well established principles, the plaintiff does not argue that he had an express contract with the defendant for the salary amount recommended by the water and sewer authority. Rather, he argues that he was entitled to additional wages under the theories of implied contract, unjust enrichment or quantum meruit. “An implied contract is an agreement between the parties which is not expressed in words but which is inferred from the acts and conduct of the parties.” Brighenti v. New Britain Shirt Corp., 167 Conn. 403, 406, 356 A.2d 181 (1974). “Quantum meruit is a theory of contract recovery that does not depend upon the existence of a contract, either express or implied in fact. . . . Rather, quantum meruit arises out of the need to avoid unjust enrichment to a party, even in the absence of an actual agreement. . . . [Q]uantum meruit and unjust enrichment are common-law principles of restitution; both are noncontractual means of recovery without [a] valid contract . . . .” (Citations omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 401, 766 A.2d 416 (2001), on appeal after remand, 80 Conn. App. 436, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004).

Fennell v. Hartford, supra, 238 Conn. 809, however, is dispositive of the plaintiffs claims. In Fennell, three retired police officers of the defendant city claimed that they were entitled to certain pension and retirement benefits with respect to accrued sick leave and service credits for military time. Id., 811. The plaintiffs argued that certain provisions in the pension manual prepared and distributed by the defendant’s pension commission summarizing their retirement benefits created an implied contract. The plaintiffs claimed that under appropriate circumstances, the terms of an employment manual may give rise to an implied contract between employer and employee in the public sector. Id., 812-13.

Our Supreme Court disagreed. The court reasoned as follows: “[C]ourts have consistently refused to give effect to government-fostered expéctations that, had they arisen in the private sector, might well have formed the basis for a contract or an estoppel. . . . We believe that implied contract claims in the public sector, based upon pension or employee manuals, would only invite endless litigation over both real and imagined claims of misinformation by disgruntled citizens [and employees], imposing an unpredictable drain on the public fisc.” (Citation omitted; internal quotation marks omitted.) Id., 816. “On the basis of the above considerations, we cannot superimpose implied contract principles upon the terms of the plaintiffs’ pension based upon a representation in a pension manual. We conclude, as a matter of law, that the pension manual created and distributed by the commission could not confer any additional benefits not provided for by the city’s charter.” Id. “In order for additional retirement or pension benefits to be conferred on the plaintiffs and other city employees, the city council must adopt ordinances in compliance with the statutory and charter mandates. . . . The plaintiffs concede that this was not done. If additional benefits were allowed to be conferred in any other manner, the actions of the commission would impinge on the city council’s legislative prerogative to oversee the maintenance of the city’s municipal employees’retirement fund. . . . In sum, the commission was without authority to confer additional benefits through the pension manual.” (Citations omitted; emphasis added.) Id., 817-18.

In the present case, the plaintiff argues that the holding in Fennell is limited to claims of implied contract that are based on pension or employee manuals. The plaintiff further attempts to distinguish Fennell on the ground that the representation in the pension manual was written whereas the representations to him were oral. We conclude that the reasoning in Fennell applies under the circumstances of this case. The water and sewer authority simply had no authority to establish the plaintiffs salary. The fact that the representations were oral is not helpful to the plaintiffs claim. As Fennell indicates, implied contract claims in the public sector would invite endless litigation on the basis of misinformation by employees, thereby drawing down the public fisc. Such misinformation is even more likely if based on oral rather than written representations. Accordingly, because the water and sewer authority lacked the authority to set the plaintiffs salary, and because the town council did not approve the suggested salary, the court properly determined that the plaintiffs wage claims were precluded under the theories of implied contract, uryust enrichment and quantum meruit.

The judgment is affirmed.

In this opinion the other judges concurred.

       It is unnecessary, therefore, to address the plaintiffs third and fourth claims.

       The assistant superintendent position was not one of the listed positions in the collective bargaining agreement. Nevertheless, it is undisputed that the plaintiff continued to pay union dues.

       The plaintiff received the payment and cashed the check. That amount was added to his base salary and overtime pay for fiscal year 1996, resulting in total earnings of $59,003.18.
      The defendant argued that the parties’ stipulation constituted an accord and satisfaction with respect to all of the plaintiffs wage claims that arose from the duties he performed as the acting department head and the assistant superintendent. The plaintiff argued that the settlement only resolved those claims relating to the additional duties he performed as the acting department head from July 1, 1994, through June 30, 1996. It is unnecessary to address this claim in light of our conclusions with respect to the other issues discussed in this opinion.

       The plaintiff also alleged negligent and intentional infliction of emotional distress in counts three and four of his four count complaint. On January 30, 2004, the court, Leheny, J., granted the defendant’s motion for summary judgment as to those counts, and the plaintiff on appeal has not challenged that ruling.

       Section 609 of the Watertown town charter provides: “Compensation. Salaries of all the directors and other employees of the Town directly or indirectly under the supervision of the Town Manager shall be determined by the Town Council, upon the recommendation of the Town Manager.”
      The town manager is the chief executive officer in the town of Watertown.

       Section IÜ.2 of appendix B of the Watertown town charter provides in relevant part: “Powers and duties. The Water and Sewer Authority ... is in no way to be construed as an autonomous Authority, but shall be a subordinate body of the Town Council. . . .”

       Although Fennell did not address claims of quantum meruit or unjust enrichment, we conclude that the rationale behind the policy equally applies to those theories of recovery in municipal employment situations.

        We note that Vertex, Inc. v. Waterbury, 278 Conn. 557, 577 & n.14, 898 A.2d 178 (2006), recognized that a claim for unjust enrichment could be made against a municipality. That case, however, involved a claim made by a plaintiff corporation that had installed a computer software program on the defendant city’s computers under a written contract. The corporation sought additional money for additional services rendered in connection with the performance of that contract. Municipal employment cases, like Fennell and the present case, however, involve different considerations. See Fennell v. Hartford, supra, 238 Conn. 816.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ACKERLY AND BROWN, LLP v. RICHARD SMITHIES ET AL.
    (AC 28346)
    Flynn, C. X, and Robinson and Berdon, Js.
    Argued May 20
    officially released August 5, 2008

      Maura C. Smithies, pro se, the appellant (defendant).

      Kie Westby, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant Maura C. Smithies appeals from the judgment, rendered after a court trial, in favor of the plaintiff, Ackerly & Brown, LLP. On appeal, Maura Smithies claims that the court improperly concluded that expert testimony was required for her claim of legal malpractice. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts are necessary for our resolution of Maura Smithies’ appeal. Attorney Michael Sconyers, a partner in the plaintiff law firm, represented Maura Smithies and her husband, the defendant Richard Smithies, in a lawsuit involving a failed residential lease. In that action, a third party sued the defendants for damages. Sconyers informed the defendants that the case could be settled for $7500, that the cost of proceeding to trial could be expensive and that the outcome of the trial was uncertain. The defendants declined to make a settlement offer. Following a four day trial, the jury returned a verdict in favor of the third party and awarded damages of approximately $25,000. Sconyers filed motions to set aside the verdict and for a new trial, which the court denied, and a motion for remittitur, which the court granted. The court reduced the third party’s damages to approximately $8000. The professional relationship between Sconyers and the defendants ended after the third party filed her appeal but before it was argued and briefed.

The plaintiff submitted a final bill to the defendants, indicating a balance due of $15,680.70. The defendants failed to make any payments to the plaintiff with respect to this outstanding balance. On August 11, 2005, the plaintiff commenced the present action, a one count complaint seeking a collection of the outstanding balance. The defendants filed an answer and counterclaim, essentially claiming that Sconyers had committed legal malpractice in his handling of the underlying lawsuit.

On November 20, 2006, prior to the start of evidence, the plaintiff filed a motion in limine to preclude the defendants from presenting any evidence regarding legal malpractice. The basis for this motion was the defendants’ failure to disclose an expert witness in accordance with the rules of practice with respect to the issue of whether Sconyers had committed legal malpractice. The court granted the motion. After a trial in which the court heard testimony from Sconyers and the defendants, it issued a memorandum of decision filed November 15, 2006. The court determined that the absence of expert testimony was fatal to the defendants’ claim of legal malpractice. Specifically, the court found that Sconyers was “an attorney with many years of learning and experience. He used this learning and experience to make many tactical and legal decisions before, during and after the trial to the jury.” It further concluded that this was not a case of an attorney’s failure to meet an obvious standard of care. The court rendered judgment in favor of the plaintiff in the amount of $15,680.70 plus costs and 12 percent interest from August 19, 2005. The court also rendered judgment in favor of the plaintiff with respect to the defendants’ counterclaim. This appeal followed.

Maura Smithies claims that the court improperly concluded that expert testimony was required for her claim of legal malpractice. Specifically, she argues that Sconyers’ alleged acts of negligence were so apparent that the need for expert testimony was obviated. We are not persuaded.

We begin our analysis by setting forth the applicable standard of review. The determination of whether expert testimony is needed to support a claim of legal malpractice presents a question of law. Vanliner Ins. Co. v. Fay, 98 Conn. App. 125, 136, 907 A.2d 1220 (2006). Accordingly, our review is plenary. Id., 137.

It is axiomatic in our jurisprudence that “[generally, to prevail on a legal malpractice claim ... a [party] must present expert testimony to establish the standard of proper professional skill or care. . . . Not only must the [party] establish the standard of care, but [she] must also establish that the [attorney’s] conduct legally caused the injury of which [she] complainfs].” (Internal quotation marks omitted.) DiStefano v. Milardo, 82 Conn. App. 838, 842, 847 A.2d 1034 (2004), aff'd, 276 Conn. 416, 886 A.2d 415 (2005); see also Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990); Glaser v. Pullman & Comley, LLC, 88 Conn. App. 615, 619, 871 A.2d 392 (2005) (‘‘[p]roving allegations of legal malpractice usually requires expert testimony”); Dunn v. Peter L. Leepson, P.C., 79 Conn. App. 366, 369, 830 A.2d 325, cert. denied, 266 Conn. 923, 835 A.2d 472 (2003).

Our courts have carved out a limited exception to this general rule in cases in which “there is present such an obvious and gross want of care and skill that the neglect [to meet the standard of care] is clear even to a layperson.” (Internal quotation marks omitted.) Anderson v. Schoenhorn, 89 Conn. App. 666, 671, 874 A.2d 798 (2005); see also Celentano v. Grudberg, 76 Conn. App. 119, 126, 818 A.2d 841, cert. denied, 264 Conn. 904, 823 A.2d 1220 (2003); Pearl v. Nelson, 13 Conn. App. 170, 173, 534 A.2d 1257 (1988). Simply put, “[i]n legal malpractice litigation, expert evidence is required for most cases but not for all.” St. Onge, Stewart, Johnson & Reens, LLC v. Media Group, Inc., 84 Conn. App. 88, 95, 851 A.2d 1242, cert. denied, 271 Conn. 918, 859 A.2d 570 (2004).

Finally, we set forth the rationale behind the need of expert testimony, as established by the appellate courts of this state. “The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the [attorney’s] actions in light of that standard.” (Emphasis added.) Davis v. Margolis, supra, 215 Conn. 416; Dixon v. Bromson & Reiner, 95 Conn. App. 294, 297-98, 898 A.2d 193 (2006); DiStefano v. Milardo, supra, 82 Conn. App. 842; Bent v. Green, 39 Conn. Sup. 416, 420, 466 A.2d 322 (1983).

As the court observed, “[t]he allegations of negligence in this case involve such tactical questions as whether to file a motion for summary judgment, the questions asked at voir dire, the questions asked of witnesses, whether to make objections to certain evidence, the substance of requests to charge and effective cross-examination.” We conclude, as the trial court did, that the defendants’ allegation of Sconyers’ negligence required expert testimony to assist the judge, as the trier of fact, in determining both the applicable standard of care and the evaluation of Sconyers’ actions with respect to that standard. The court found that Sconyers was an attorney with many years of experience and learning and that he used this background to make various tactical and legal decisions before, during and after the trial involving the defendants and the third party. We are not persuaded that this is a case in which an attorney has done nothing to protect the interests of a client; cf. Paul v. Gordon, 58 Conn. App. 724, 728, 754 A.2d 851 (2000); or the trial judge’s knowledge of the rules of practice eliminates the need for expert testimony. Cf. Dubreuil v. Witt, 80 Conn. App. 410, 421-22, 835 A.2d 477 (2003), aff'd, 271 Conn. 782, 860 A.2d 698 (2004). Instead, the court properly concluded that the general rule requiring expert testimony in a legal malpractice action applied, and, in the absence of such testimony, the defendant’s claim of legal malpractice failed.

The judgment is affirmed.

       Richard Smithies, who also was a defendant at trial, and Maura C. Smithies, each filed an appearance and acted pro se before the trial court. Subsequent to the court’s judgment rendered in favor of the plaintiff, Ackerly & Brown, LLP, Maura C. Smithies filed an appeal on behalf of herself and Richard Smithies. This appeal was dismissed nisi for the failure to file the documents required by Practice Book § 63-4. After she filed the appropriate documents, the appeal was reinstated only as to Maura C. Smithies.
      Richard Smithies subsequently filed a motion for joinder as an appellant. This motion was treated as a motion for permission to file a late appeal and was denied. Following Richard Smithies’ motion for reconsideration, it was ordered that he file a proper motion to file a late appeal on his behalf. This motion was denied on December 19, 2007.
      We note, therefore, that the only appellant before us is Maura C. Smithies. As a pro se party, she cannot represent the interests of another party, namely, Richard Smithies. “A pro se party may not appear on behalf of another pro se party. ... To do so would be to engage in the unauthorized practice of law. See General Statutes § 51-88.” (Citation omitted.) Collard & Roe, P.C. v. Klein, 87 Conn. App. 337, 343-44 n.3, 865 A.2d 500, cert. denied, 274 Conn. 904, 876 A.2d 13 (2005).

       “Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . .” (Internal quotation marks omitted.) Dixon v. Bromson & Reiner, 95 Conn. App. 294, 297, 898 A.2d 193 (2006); see also Davis v. Margolis, 215 Conn. 408, 415, 576 A.2d 489 (1990). The elements of a legal malpractice action are (1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages. Vona v. Lerner, 72 Conn. App. 179, 187-88, 804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003).

       Practice Book § 13-4 (4) provides in relevant: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. Each defendant shall disclose the names of his or her experts in like manner within a reasonable time from the date the plaintiff discloses experts, or, if the plaintiff fails to disclose experts, within a reasonable time prior to trial. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subdivision, or if an expert witness who is expected to testily is retained or specially employed after a reasonable time prior to trial, such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. ...”

       Maura Smithies argues in her appellate brief that Sconyers never read the lease in the underlying action. We note that the court’s memorandum of decision does not address the question of whether Sconyers did or did not read the lease between the defendants and tire third party. Maura Smithies did not file a motion for articulation. See Practice Book § 66-5. Because the court did not address this argument, and Maura Smithies failed to seek an articulation, we conclude that the record is inadequate to review this claim. See JCV Investment Group, Inc. v. Manjoney, 56 Conn. App. 320, 324, 742 A.2d 438 (2000); Commissioner of Public Works v. Middletown, 53 Conn. App. 438, 449, 731 A.2d 749, cert. denied, 250 Conn. 923, 738 A.2d 654 (1999); see also Practice Book § 60-5. “It is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter. ... In the absence of any such attempts, we decline to review this issue.” (Internal quotation marks omitted.) Bingham v. Dept. of Public Works, 286 Conn. 698, 704 n.5, 945 A.2d 927 (2008). Accordingly, on the basis of an inadequate record, we decline to review Maura Smithies’ claim that Sconyers failed to read the lease between the defendants and the third party.

       Maura Smithies also claims that the court’s decision was contrary to the weight of the evidence. This appears to be a claim challenging the sufficiency of the evidence with respect to the court’s judgment in favor of the plaintiff on the defendants’ counterclaim. “An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law.” (Internal quotation marks omitted.) Lisiewski v. Seidel, 95 Conn. App. 696, 705, 899 A.2d 59 (2006). We have reviewed the entire record and conclude that the court’s findings were not clearly erroneous and that the judgment in favor of the plaintiff was proper.


author: LAVINE, J.

text:
    CHRISTOPHER B. KENNEDY v. LEANNA L. KENNEDY
    (AC 27274)
    (AC 28217)
    Lavine, Robinson and Stoughton, Js.
    Argued March 17
    officially released August 5, 2008

      Christopher B. Kennedy, pro se, the appellant (plaintiff).

      Ira A. Jacobs, for the minor child, Kathleen Kennedy.

      Jacqueline A. Wilson, for the minor child, Brenna Kennedy.
   Opinion

LAVINE, J.

These consolidated appeals are two in a series brought by the pro se plaintiff, Christopher B. Kennedy. The appeal form for AC 27274 indicates that the plaintiff is appealing from the decision of the trial court filed December 22, 2005. The appeal form for AC 28217 indicates that the plaintiff is appealing from the decision of the trial court rendered on October 23, 2006. Both of the plaintiffs appeals raise jurisdictional questions. On December 22, 2005, the court, Swords, J., issued an order concerning the plaintiffs right to visit with his minor children. Since that time, the visitation order at issue in AC 27274 has been superseded by further orders of the court, Shluger, J. The order of October 23, 2006, at issue in AC 28217, concerns the appointment of counsel to represent one of the parties’ minor children, which is an interlocutory order. We therefore dismiss AC 27274 as moot and AC 28217 for lack of a final judgment.

These appeals present this court with procedural challenges. The plaintiffs briefs do not state clearly the issues to be considered in either appeal, as the issues are generally expressed in phrases, not sentences, using words invoking rights emanating from the federal constitution and our General Statutes and rules of practice. The briefs are devoid of clear, concise statements of the issues and procedural and factual histories as required by our rules of practice. The defendant, Leanna L. Kennedy, failed to file a brief. Counsel for the parties’ minor daughters filed briefs representing that the issues on appeal did not implicate the rights of the minor children, that they are uncertain of the plaintiffs claims, and, in one instance, counsel represented that because she had not yet been appointed at the times in question she could not address the claims.

Despite the lack of specificity in his briefs, the plaintiff claimed, at oral argument, that he had been denied certain federal constitutional and statutory rights and that certain orders of the trial court violated our statutes and rules of practice in a manner that was prejudicial to him as a father with attention deficit disorder. Given the serious nature of the plaintiffs allegations pertaining to his constitutional, statutory and parental rights, we undertook an extensive review of the two volume file, the available transcripts and all of the published opinions from prior appeals concerning the parties in order to comprehend the factual and procedural history underlying these appeals. See Syragakis v. Syragakis, 79 Conn. App. 170, 175, 829 A.2d 885 (2003) (court may take judicial notice of file).

Our review disclosed that the parties were married in 1988 and are the parents of three children. See footnote 2 of this opinion. In April, 2001, the plaintiff commenced an action seeking a judgment of dissolution, which was rendered in May, 2002. The dissolution judgment incorporated the parties’ agreement for joint legal and physical custody of their children and a fifty-fifty shared parenting plan. In June, 2002, the defendant filed a motion to modify custody, visitation and support. On February 4, 2003, the court, Graziani, J., “clearly” found that the shared parenting plan was not working and was no longer in the best interests of the children. The court also found a substantial change in circumstances and awarded the defendant sole custody of the children, subject to reasonable rights of visitation in the plaintiff.

Despite the modification, things did not go well for the parties and especially for their children. Restraining orders against the plaintiff were issued pursuant to General Statutes § 46b-15. See Putman v. Kennedy, 279 Conn. 162, 900 A.2d 1256 (2006); Putman v. Kennedy, 104 Conn. App. 20, 932 A.2d 439 (2007) (reversing judgment as to plaintiffs daughters); Putman v. Kennedy, 104 Conn. App. 26, 932 A.2d 434 (2007) (affirming judgment as to plaintiffs son), cert. denied, 285 Conn. 909, 940 A.2d 809 (2008). In April, 2004, as a result of criminal charges filed against him, the court, White, J., issued a criminal protective order against the plaintiff, prohibiting him from having any contact with his children.

On May 5, 2004, attorney Susan Lee Heintz entered her appearance as the guardian ad litem for the parties’ children. On June 14, 2004, Judge Graziani ordered that “the parties shall each submit to a full psychological evaluation subject to the terms and conditions as outlined in the agreement of the parties.” David M. Mantell, a clinical psychologist, was appointed to conduct the psychological evaluation. On September 10, 2004, Heintz filed a motion in which she represented that Mantell had completed his evaluation of the children and requested that Mantell be permitted to evaluate the children with each of the parties. Heintz requested that “any restraining orders be modified so that the children and parents can be evaluated by Dr. Mantell.” On October 12, 2004, the court, Solomon, J., agreed to a modification of the criminal protective order so that the plaintiff could participate in the psychological evaluation with Mantell.

In December, 2005, a jury found the plaintiff not guilty of the criminal charges pending against him, and the criminal protective order expired by its own terms. The plaintiff believed, as a result of the not guilty verdict, that his right to visit with his children would revert to Judge Graziani’s order of February 4, 2003. On December 22,2005, an emergency hearing was held to consider a motion for an order filed by the defendant. The defendant requested that the court adopt Mantell’s recommendation that the plaintiffs visitation with the parties’ daughters be supervised. Following the hearing at which Heintz testified, Judge Swords ordered that the plaintiff have one hour of supervised visitation with his daughters per week but no visitation with his son. The plaintiff appealed from the order modifying his right to visit with his children, which is docketed as AC 27274.

Thereafter, on June 29, 2006, Judge Swords granted the motion for appointment of counsel for the minor children filed by Heintz. Attorney Ira A. Jacobs was appointed to represent the parties’ children. During the course of his discussions with the daughters, Jacobs learned that the girls’ individual wishes with respect to visiting with the plaintiff were inconsistent with each other. He concluded that ethically he could not represent both of them and filed a motion for advice. On October 23, 2006, Judge Swords ordered the appointment of additional counsel so that each of the daughters had her own counsel. The defendant appealed from that order, which appeal is docketed as AC 28217.

I

AC 27274

The plaintiffs appeal is taken from the December 22, 2005 order of the court limiting his visitation to one hour of supervised visitation with his daughters per week. We dismiss the appeal as moot.

Following oral argument before us on March 17,2008, we undertook an extensive review of the trial court file and this court’s pending docket. We took judicial notice; see Syragakis v. Syragakis, supra, 79 Conn. App. 175; that more than 100 items had been docketed in the trial court file since Judge Swords issued the subject visitation order on December 22, 2005. We also took notice of at least one appeal that has been filed in this court subsequent to the appeals at issue in this opinion. Our further review of the trial court file disclosed a memorandum of decision dated and noticed to the parties on April 4, 2008. That memorandum of decision by Judge Shluger was a ruling on the plaintiffs motion for articulation and clarification concerning the court’s orders dated June 26, 2007, September 5, 2007, November 15, 2007, and January 9, 2008. In his decision, Judge Shluger stated in part: “In each of the four decisions which this court has rendered, of which the plaintiff seeks clarification and articulation, the court has consistently and progressively expanded and enlarged the plaintiff father’s access to the children.”

Although Judge Shluger had expanded the plaintiffs visitation with his daughters, neither the plaintiff nor counsel for either of the minor children brought this change of circumstances to our attention at the time of oral argument. Thereafter, we issued sua sponte an order for supplemental briefs, asking the plaintiff and counsel for the minor children why the appeal should not be dismissed as moot. In their supplemental briefs, neither the plaintiff nor either counsel for the minor children provided any .legal analysis as to why the appeal should not be dismissed as moot, although they acknowledged that the plaintiffs visitation with his daughters had been enlarged since December 22, 2005.

Even though the issue of mootness was not raised in the briefs or at oral argument, this court has a duty to consider it sua sponte “because mootness implicates the court’s subject matter jurisdiction. It is, therefore, a threshold matter to resolve.” (Internal quotation marks omitted.) In re William D., 97 Conn. App. 600, 603, 905 A.2d 696 (2006), aff'd, 284 Conn. 305, 933 A.2d 1147 (2007). “Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 802, 925 A.2d 292 (2007).

“When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) In re Steven M., 264 Conn. 747, 754, 826 A.2d 156 (2003). “It is axiomatic that if the issues on appeal become moot, the reviewing court loses subject matter jurisdiction to hear the appeal. ... 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.” (Internal quotation marks omitted.) Bornemann v. Connecticut Siting Council, 287 Conn. 177, 181-82, 947 A.2d 302 (2008).

As the plaintiff concedes, subsequent to Judge Swords’ December 22, 2005 order regarding the plaintiffs right to visit with his daughters, Judge Shluger expanded the amount of time and the circumstances under which the plaintiff may visit with his daughters. Given that Judge Swords’ order has been superseded and is no longer in effect, this court is not able to afford the plaintiff any practical relief. Because the appeal is moot, subject matter jurisdiction is lacking. See Carpenters. Carpenter, 7 Conn. App. 112, 113 n.2, 507 A.2d 526 (1986).

We therefore dismiss AC 27274.

II

AC 28217

This appeal was taken from Judge Swords’ order appointing separate counsel for each of the parties’ minor daughters. The plaintiff claims “improper service, denied due process and equal protection and prejudice and discrimination by the court.” We dismiss the appeal for lack of a final judgment.

The record reveals that on October 18, 2006, Jacobs, who had been appointed to represent the parties’ minor children, filed a “motion for order and motion for advice postjudgment.” In his motion, Jacobs represented, among other things, that on June 29, 2006, he was appointed to represent the minor children of the parties; on July 18,2006, via a letter, Jacobs informed the parties that he at one time had served as a temporary assistant clerk to the court, J. Kaplan, J.; on September 27, 2006, pursuant to the Rules of Professional Conduct, he filed a motion stating that the parties’ daughters were expressing contradictory and opposing positions that materially limited his ability to represent both of them; and that on October 17, 2006, Jacobs received a letter from the plaintiff requesting that he immediately withdraw from this matter, given his relationship with Judge Kaplan.

Judge Swords heard argument on Jacobs’ motion from the plaintiff, Jacobs, Heintz and counsel for the defendant on October 23,2006. During the proceedings, the plaintiff stated that he was concerned about a conflict of interest between Jacobs and Judge Kaplan. The transcript of the proceeding reveals, however, that the primary focus of the proceeding concerned how to resolve the need to appoint counsel for both girls, given their different needs and personalities, and to abide by MantelTs advice that they be shielded from multiple evaluations and the introduction of new professionals. At the conclusion of the proceedings, Judge Swords ordered that Jacobs continue to represent the older daughter and that new counsel be appointed for the younger one. Judge Swords also ruled that “the relationship that [the plaintiff] put on the record to support his claim of conflict of interest is insufficient to show a conflict of interest between Judge Kaplan and . . . Jacobs.”

The transcript of October 23, 2006, also reveals that the plaintiff interrupted the proceedings to inquire about motions he had filed to enlarge his visitation rights and why the case had not been transferred from the judicial district of Tolland to the regional family trial docket. Judge Swords informed the plaintiff that his motions were not before the court at that time and explained why the case could not be transferred to the regional family trial docket.

On the basis of our review of the plaintiffs principal brief, we discern that his complaint is not with the court’s having appointed counsel for each of his daughters but is based on his perception that his motions regarding a change in visitation were not being heard and that the judges and staff of the Tolland judicial district did not accord him due process and equal protection. The record before us does not disclose that any motions other than Jacobs’ motion for an order and for advice were before Judge Swords on October 23, 2006. Moreover, we can find no record of the plaintiffs having had his claims concerning his perception of the lack of due process and equal protection heard by the court on that day. As to the conflict the plaintiff alleges between Judge Kaplan and Jacobs, in his brief the plaintiff merely mentions that Judge Swords found that there was no conflict of interest. He does not claim that the court’s finding was clearly erroneous or constituted any other type of impropriety. If the plaintiff had any issue with Judge Swords’ finding that there was no conflict of interest between Jacobs and Judge Kaplan, he has abandoned any such claim by failing to brief the issue adequately. See Baker v. Baker, 95 Conn. App. 826, 833, 898 A.2d 253 (2006).

Following oral argument on March 17,2008, this court sua sponte issued the following order: “[t]he appellant and counsel for the minor children are hereby ordered to file simultaneous supplemental briefs of no more than ten pages on or before May 23,2008, giving reasons, if any, why the appeal taken from the trial court’s order of October 23, 2006, challenged on appeal in AC 28217, should not be dismissed for lack of a final judgment.” This order required the plaintiff and counsel for the minor children to analyze whether this court has subject matter jurisdiction over ah appeal challenging the appointment of counsel to represent one of the minor children in a custody and visitation dispute postjudgment. None of the supplemental briefs provide legal support for the proposition that this court has subject matter jurisdiction as to this appeal.

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

The test for determining whether an appeal challenges a final judgment is set forth in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id., 31. The present appeal satisfies neither prong of the Curcio test.

Although an order modifying custody and visitation postdissolution is an appealable final judgment; see, e.g., Ford v. Ford, 68 Conn. App. 173, 181, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002); Kelly v. Kelly, 54 Conn. App. 50, 55-56, 732 A.2d 808 (1999); in this case, the dispute over the modification of custody and visitation is ongoing, as motions to modify filed by the plaintiff have not yet been adjudicated. In a dissolution action in which custody and visitation are at issue, the court may appoint counsel to represent a minor child to protect the best interest of the child. See General Statutes § 46b-54 (a) and (b); Practice Book § 25-24. “The purpose of appointing counsel for a minor child ... is to ensure independent representation of the child’s interests, and such representation must be entrusted to the professional judgment of appointed counsel within the usual constraints applicable to such representation.” (Internal quotation marks omitted.) Ireland v. Ireland, 246 Conn. 413, 436, 717 A.2d 676 (1998). In this case, appointing counsel for both daughters is “merely a step along the road”; State v. Parker, 194 Conn. 650, 653, 485 A.2d 139 (1984) (superseded by statute on other grounds; see State v. Fanning, 98 Conn. App. 111, 112 n.1, 908 A.2d 573 [2006], cert. denied, 281 Conn. 904, 916 A.2d 46 [2007]); to a final judgment resolving the custody and visitation issues. Moreover, the plaintiff has failed to explain why his objection cannot be vindicated on appeal from a final judgment resolving the custody and visitation dispute. Because the appointment of counsel for each of the parties’ minor children is not a final judgment, we lack subject matter jurisdiction, and the appeal must be dismissed.

The appeals are dismissed.

In this opinion the other judges concurred.

       Our computerized research generated fourteen citations to judgments rendered by this court or our Supreme Court. We are aware of one additional appeal that is pending in this court. Generally, the appeals concern the plaintiff and his interaction with his children and his right to custody and visitation.

       The parties have three children. Their oldest child, Sean Kennedy, has reached the age of majority. Any claims related to the plaintiffs rights to custody and visitation with his son are moot. The parties’ minor children, Kathleen Kennedy and Brenna Kennedy, are each represented by counsel. The minor children also have the benefit of a guardian ad litem.

       In AC 27274, the plaintiffs statement of the issues sets forth: “[1] improper service, denied due process and equal protection, 2. denied rights to counsel, 3. denied rights to disability accommodations, 4. failure to consider [General] Statutes § [§] 46b-56,56A & 120,5. ruling against the evidence [and] 6. impossible orders, prejudice and discrimination by the court.”
      In AC 28217, the plaintiffs statement of the issues sets forth: “1. improper service, denied due process and equal protection and prejudice and discrimination by the court.” Moreover, the issues were not adequately briefed; the brief is four pages long.
      To the extent that the plaintiff claims that his parental rights have been terminated without the benefit of legal representation provided by the state, we summarily reject such claim or claims. The plaintiffs parental rights have not been terminated nor could they be within the context of an action for the dissolution of marriage, even when the issues concern the custody and visitation rights of the parties. Court-ordered limitations on visitation do not result in the termination of parental rights.

       Although the organization of the plaintiffs briefs comports with our rules of practice; see Practice Book c. 67; the briefs lack the particularity required by Practice Book § 67-4 (c) and (d) (4) and (5). In his briefs, the plaintiff referred to numerous motions, but he neglected to identify the motions by docket number or the dates of the rulings thereon.

       Pursuant to order of this court, counsel for the parties’ daughters appeared at oral argument but, as our review of the entire file disclosed, did not inform us of significant changes in the plaintiffs visitation rights that have occurred pursuant to orders of the trial court while these appeals were pending.

       The defendant’s maiden name was restored pursuant to the judgment of dissolution.

       The criminal charges arose out of an alleged altercation between the plaintiff and the parties’ son.

       The plaintiff appealed from the postjudgment order appointing counsel for the minor children. This court sua sponte ordered the parties to appear at the court’s motion calendar and to give reasons, if any, why the appeal should not be dismissed for lack of a final judgment. See State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983); see also Bucy v. Bucy, 19 Conn. App. 5, 7-8, 560 A.2d 483 (1989). The appeal was dismissed for lack of a final judgment. See Kennedy v. Kennedy, 282 Conn. 916, 924 A.2d 138 (2007) (certification denied).

       Initially, Jacobs represented all three of the parties’ children. Judge Shluger vacated the order of representation as to the parties’ son, who had become eighteen years old.

       Judge Shluger’s April 4, 2008 memorandum of decision contains the following recitation of facts: “On June 26,2007, the court relieved the family of the previously ordered psychological evaluation, replaced AMPS [Inc.] with Kidsafe [CT], a more relaxed and flexible supervisor of visits which permits off-site visitation, expanded the one hour Wednesday visits to two hours, permitted telephone, e-mail, regular mail, permitted visits at the [plaintiffs] home and permitted the [plaintiff] to attend academic and extracurricular activities with the children. . . .
      “On September 5, 2007, the court . . . again expanded the [plaintiffs] visits to permit unsupervised visits for the first time in several years and ordered that the [plaintiff] would be entitled to copies of all school and medical records of the children.
      “On November 15, 2007, the court again expanded the Wednesday visits and authorized an expanded unsupervised visit, the day after Christmas, from 10 a.m. until 6 p.m. The court expanded e-mail contact and cellular telephone contact with the children.
      “On January 11,2008, the court again expanded visitation wherein Kidsafe [CT] was removed from the scenario and the girlfriend of the [plaintiff] and the boyfriend of the [defendant] would facilitate the transition of the children. The [plaintiff] was granted an unsupervised visit with the children on January 20, 2008, from 10 a.m. to 6 p.m. to coincide with his new son’s birthday.”

       The order for supplemental briefs stated: “Subsequent to oral argument held on March 17,2008, this court took judicial notice of the ongoing litigation in the underlying matter. See Syragakis v. Syragakis, [supra, 79 Conn. App. 175], The panel notices several orders of the trial court modifying the plaintiffs visitation with his daughters. Those orders are summarized in the trial court’s memorandum of decision dated April 4, 2008, in response to the plaintiffs motion for articulation and clarification, trial court docket [number] 388. The appellant and counsel for the minor children are hereby ordered to file simultaneous supplemental briefs of no more than ten pages on or before May 23, 2008, giving reasons, if any, why the appeal taken from the trial court’s December 22, 2005 order, trial court docket [number] 289, challenged in AC 27274 should not be dismissed as moot as that order has been superseded or modified. See, e.g., In re Steven M., 264 Conn. 747, 754, 826 A.2d 156 (2003).”
      The plaintiff requested additional time in which to file his supplemental brief. This court granted him ten additional days to do so.

       The transcript of the proceeding on October 23, 2006, contains a representation by Heintz that Jacobs had served as a clerk in the early 1990s.

       During the October 23, 2006 proceeding, the plaintiff stated to Judge Swords that he had filed a grievance and criminal complaints against Judge Kaplan. He also stated that he had filed a federal lawsuit against both Judge Kaplan and Judge Swords.

       At the time, the older daughter was thirteen years old and the younger one ten years old.

       The plaintiff requested additional time in which to submit his brief, and this court granted him an additional ten days in which to do so.

       Our review of the various transcripts reveals that a hearing on the plaintiffs motions to modify custody and visitation are dependent in part on the completion of the psychological evaluation and the opportunity for counsel for the minor children to meet with their clients.

       General Statutes § 46b-54 provides in relevant part: “(a) The court may appoint counsel for any minor . . . children of either or both parties at any time ... if the court deems it to be in the best interests of the . . . children. . . . (b) Counsel for the . . . children may also be appointed ... 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 . . . .”

       Practice Book § 25-24 (a) provides in relevant part: “Any appropriate party may move for . . . appointment of counsel for the minor child . . . .”


author: ROBINSON, J.

text:
    WE 470 MURDOCK, LLC v. COSMOS REAL ESTATE, LLC, ET AL.
    (AC 28906)
    Bishop, DiPentima and Robinson, Js.
    Argued April 14
    officially released August 5, 2008

      Melvin A. Simon, for the appellant (plaintiff).

      Thomas E. Minogue, Jr., for the appellee (named defendant).
   Opinion

ROBINSON, J.

The plaintiff, WE 470 Murdock, LLC, appeals from the judgment of the trial court awarding it $4650 in damages arising from a breach of contract action against the defendant Cosmos Real Estate, LLC. The plaintiff claims that the court improperly interpreted the contractual language of the purchase and sale agreement when it concluded that the liquidated damages provision limited the recoverable amount to the title insurance premium. We agree and, accordingly, reverse in part the judgment of the trial court and remand the case for further proceedings.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. The defendant is a limited liability corporation formed by Dina Begetis, Pagioti Begetis and Effosene Begetis, all of whom are daughters of Asimina Begetis. On March 1, 2004, Asimina Begetis and the defendant, as owners of undivided one-half shares of the commercial property located at 470 Murdock Avenue in Meriden, listed the property for sale. Beginning in April, 2004, the plaintiff engaged in a series of negotiations with the intent of purchasing the property, a process that culminated on November 22,2004, when the plaintiff and the defendant executed the purchase and sale agreement. Asimina Begetis was not a signatory to this agreement, nor was her. ownership interest referenced in the document.

The purchase and sale agreement contained a specific provision regarding options and damages in the event that the defendant was unable to deliver marketable title. Initially, the defendant was “allowed a reasonable postponement of closing not to exceed thirty . . . days within which to perfect title.” In the event that the purported defect was not remedied, the contract provided for two alternatives: “[The plaintiff] (i) may elect to accept such title as the [defendant] can convey, without modification of the purchase price, or (ii) may reject such title. Upon such rejection, all sums paid on account hereof, together with any expenses actually incurred by the [plaintiff] for attomey[’s] fees, nonrefundable fees of lending institutions, title search costs and inspection fees (the total cost of which shall not . . . exceed the cost of fee title insurance based on the amount of the purchase price) shall be paid to the [plaintiff] without interest thereon.” For the purchase price of $1.7 million, the parties stipulated that the cost of the title insurance was $4650, a sum that included a premium of $1860.

Pursuant to an amendment to the purchase and sale agreement, the closing date was set for March 1, 2005. On or about February 10, 2005, counsel for the plaintiff sent an unexecuted warranty deed referencing the joint ownership of the property by the defendant and Asimina Begetis. At that time, the defendant realized that the sale could not go forward without the consent of Asimina Begetis. The defendant was unable to procure the requisite consent, and, accordingly, the sale did not occur. Thereafter, the plaintiff submitted to the defendant an itemized list of its incurred expenses totaling $109,353.03, an amount that it believed it was entitled to pursuant to the liquidated damages clause of the purchase and sale agreement.

On December 7, 2005, the plaintiff filed a five count amended complaint against the defendant and Asimina Begetis. The defendant filed an answer and special defenses on January 2, 2007, the first special defense alleging that pursuant to paragraph six of the agreement, any damages award was limited to the premium for the title insurance policy. Following a four day trial, the court rendered judgment in favor of the plaintiff on the breach of contract claim but found in favor of the defendant and Asimina Begetis on the remaining four counts. After finding that the defendant had breached the contract, the court analyzed the liquidated damages provision of the contract to determine the appropriate damages. The court held that the liquidated damages provision was enforceable but that the amount recoverable in the event of a breach was limited to the cost of the title insurance policy. Accordingly, the court awarded the plaintiff $4650 in damages. This appeal followed. Additional facts will be set forth as necessary.

The plaintiff first claims that the court misinterpreted the liquidated damages provision of the underlying contract to place a limit on the amount of recoverable damages in the event of a breach. We agree.

We begin our analysis with the well established standard of review for the interpretation of a contract. “When a party asserts a claim that challenges the trial court’s construction of a contract, we must first ascertain whether the relevant language in the agreement is ambiguous. ... A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself.” (Citation omitted; internal quotation marks omitted.) David M. Somers & Associates, P.C. v. Busch, 283 Conn. 396, 402-403, 927 A.2d 832 (2007). “[W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . Because a question of law is presented, review of the trial court’s ruling is plenary, and this court must determine whether the trial court’s conclusions are legally and logically correct, and whether they find support in the facts appearing in the record.” (Internal quotation marks omitted.) Small Business Transportation, Inc. v. ABC Stores, LLC, 96 Conn. App. 14, 17-18, 899 A.2d 73 (2006).

“The intent of the parties as expressed in a contract is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Lighthouse Landings, Inc., 279 Conn. 90, 109-10, 900 A.2d 1242 (2006).

As was previously noted, in the event that marketable title was not delivered, paragraph six of the purchase and sale agreement provided the following instruction: “[The plaintiff] (i) may elect to accept such title as the [defendant] can convey, without modification of the purchase price, or (ii) may reject such title. Upon such rejection, all sums paid on account hereof, together with any expenses actually incurred by the [plaintiff] for attorney [’s] fees, nonrefundable fees of lending institutions, title search costs and inspection fees (the total cost of which shall not . . . exceed the cost of fee title insurance based on the amount of the purchase price) shall be paid to the [plaintiff] without interest thereon.” The court interpreted the placement of the parenthetical as intended to modify the entire enumeration of recoverable expenses.

We conclude that the language of this provision is clear and unambiguous, and accordingly, it presents a question of law subject to plenary review. According to a common, natural and ordinary reading of the contractual language, the parties agreed to an enumerated list of recoupable expenses in the event of a breach, including “attomeyf’s] fees, nonrefundable fees of lending institutions, title search costs and inspection fees . . . .” Although this list is followed by a parenthetical that places a limit on the “total cost,” the logical and sensible conclusion is that the use of that term in the parenthetical is limited to the total costs of the inspection fees. Interpreting the provision so that the parenthetical modifies the entire preceding list results in an illogical result that obviates the need for the enumerated list, a result that contradicts firmly established principles of contract construction. “[T]he individual clauses of a contract . . . cannot be construed by taking them out of context and giving them an interpretation apart from the contract of which they are a part. ... A contract should be construed so as to give full meaning and effect to all of its provisions . . . .” (Emphasis in original; internal quotation marks omitted.) William Raveis Real Estate, Inc. v. Newtown Group Properties Ltd. Partnership, 95 Conn. App. 772, 779, 898 A.2d 265 (2006). Therefore, the court’s interpretation was improper.

The judgment is reversed only as to the award of damages and the case remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Asimina Begetis was also a defendant in the underlying action, but she is not a party to this appeal. Therefore, we refer in this opinion to Cosmos Real Estate, LLC, as the defendant.

       Additionally, the plaintiff maintains that the court improperly applied the doctrines of mitigation of damages, causation and unjust enrichment to the language of the contract. Because we agree with the plaintiffs claim regarding the construction of the liquidated damages clause, we need not reach this issue.

       The first and second counts sounded in breach of contract as to the defendant and Asimina Begetis, respectively. The third count alleged conspiracy to defraud by both the defendant and Asimina Begetis. The remaining two counts stated claims against Asimina Begetis alone, and included claims of tortious interference with contractual relations and misrepresentation. The court’s damages award arising from its judgment as to the first count is the only subject of this appeal.


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. STEPHEN TUNICK
    (AC 28461)
    Bishop, DiPentima and Mihalakos, Js.
    Argued April 30
    officially released August 5, 2008

      Robert A. Serafinowicz, with whom, on the brief, was John R. Williams, for the appellant (defendant).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict,
      state’s attorney, and Pamela J. Esposito, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Stephen Tunick, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2). On appeal, the defendant claims that the court improperly refused to disqualify itself from presiding over the criminal trial after having participated actively in plea negotiations prior to trial. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant’s claim on appeal. The defendant was arrested on June 15, 2006, at which time he hired attorney William Taylor to represent him. On September 12, 2006, the defendant entered a plea of not guilty. Several continuances were granted, and, finally, on November 17, 2006, the case was scheduled for trial to commence on November 20,2006. On November 18,2006, attorney John R. Williams filed an appearance with the court via facsimile in lieu of Taylor’s appearance. For no explained reason, the Superior Court clerk’s office did not enter Williams’ appearance in the court’s file by the morning of November 20, 2006, so that when court was convened on that day, the court file still reflected that Taylor represented the defendant.

When the case was called, neither the defendant, nor Taylor or Williams were present. The court, Ginocchio, J., promptly ordered that the defendant be rearrested. Later in the day, attorney Joseph M. Merly, a member of Williams’ law firm, appeared in court with the defendant. The court vacated the rearrest order and reinstated the bond. The court further asked Merly to counsel with his client to determine if it was his client’s intent to apply for accelerated rehabilitation or to go to trial.

On November 21, 2006, Williams filed the defendant’s motion for recusal, stating in court: “Your Honor has participated in plea negotiations in this case; you have demonstrated an appearance of bias; you have made representations on the record of facts, which, in fact, are not correct, and I have with me an attorney, a member of the bar . . . prepared to swear that in fact, representations you made yesterday putting this case in here for trial as of this morning are contrary to representations you made to him in January.” The court denied the defendant’s motion to disqualify. This appeal followed.

An appeal as to a judge’s impartiality is governed by the abuse of discretion standard of review. State v. Bunker, 89 Conn. App. 605, 614, 874 A.2d 301 (2005), appeal dismissed, 280 Conn. 512, 909 A.2d 521 (2006). “The standard to be employed is an objective one, not the judge’s subjective view as to whether he or she can be fair and impartial in hearing the case. . . . Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification.” (Internal quotation marks omitted.) Id., 612-13. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Id., 614.

We have repeatedly stated that an allegation of judicial bias implicates the basic concepts of a fair trial. Our thorough review of the record, however, leads us to conclude that there is no factual basis for the defendant’s claim of bias. Nowhere in the record does it appear that the court participated in any plea negotiations or that the court in any way expressed an opinion that the case was a strong one for the state.

We first address the defendant’s claim that the court participated in pretrial negotiations. In paragraph four of his affidavit in support of his motion to disqualify, Williams asserted that the court “pressured and attempted to coerce the defendant ... to accept the State’s proposal that he waive his right to a trial and accept Accelerated Rehabilitation . . . .” The transcript reveals that the only references to accelerated rehabilitation made by the court are as follows:

“The Court: Both [the prosecutor] and Mr. Taylor [were] in chambers, and I believe there was no mistake that they were both told to be back on Monday to either file the [application for accelerated rehabilitation] or have Mr. Williams file an appearance, and if his client chose to pursue the [accelerated rehabilitation], we would give it the normal continuance; if not, we would pick a jury. . . .
“The Court: [The defendant] was supposed to—he and some counsel are supposed to be here at 10 o’clock either to pick a jury or to decide whether or not to apply for [accelerated rehabilitation],
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“The Court: . . . Now, the question today—because if we had determined today whether or not your client was going to apply for accelerated rehabilitation or select a jury, and I needed to know today so this would not be delayed any longer. So, do you want to confer with him now? . . .
“[Defense Counsel]: My client’s indicating his intent to go to trial, Your Honor. We won’t be applying for [accelerated rehabilitation], . . .
“The Court: I’m not going to entertain any longer— he has been told by two attorneys, I’m sure, about the benefits of [accelerated rehabilitation] or lack of benefits. He has been apprised of that situation. . . .
* * *
“The Court: Mr.—I wanted [the defendant] here Monday with either an [accelerated rehabilitation] application or someone from your firm to indicate what he was going to do.
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“The Court: Just so your client knows, once jury selection begins, I am not going to entertain—or Judge Carroll is not going to entertain an accelerated rehabilitation motion, so he knows that, okay?
“[Defense Counsel]: Once we start, I understand, that’s it.
“The Court: Yes, well once it starts, we’re not going to be in the middle of jury selection and he’s going to decide, oh, I want to file an [accelerated rehabilitation] motion.”

It would take a tortured reading of that colloquy to conclude that it amounted to a plea negotiation. There is absolutely no merit to the claim by the defendant.

Williams further claims in paragraph four of his affidavit that he was informed that “Judge Ginocchio had indicated that he considered the State’s case to be strong . . . .” Again, the record does not reflect such a statement ever having been made by the court, and we conclude that there is no merit to this claim as well.

A claim against the judicial authority hits at the integrity of the judicial system. We are mindful that an attorney has a responsibility to his or her client to question the words or deeds of a judge when the record supports a possibility that the judge may have exhibited bias or has given the appearance of acting in a manner that could lead one to believe that the proceedings have been tainted. An attorney also has a responsibility to the court, however, to search the record thoroughly before such a claim is made. Similarly, the court, in fulfilling its duty to justice, must carefully analyze the motion and give careful consideration to the argument of counsel, and, if after careful consideration, there is a reasonable possibility of concluding that the record supports such claim of bias, the court should grant the motion for recusal.

We have reviewed the record carefully and conclude that there is absolutely no evidence that would lead us to reverse the trial court’s conclusion. The defendant’s remaining allegations of bias on the part of the court are equally meritless.

The judgment is affirmed.

In this opinion the other judges concurred.

       The discussions that took place on November 17, 2006, were done in chambers, and no transcript is aváilable for that day. The events of that day later were recorded by virtue of the court’s explanation made during a discussion of the defendant’s motion to disqualify, which took place on November 21, 2006.

       The defendant’s motion to disqualify, filed on November 21, 2006, states:
      “The defendant respectfully moves to disqualify Hon. James P. Ginocchio from sitting on the trial of this action for the reason that Judge Ginocchio has participated in pretrial settlement matters in this case and has used his judicial office in an attempt to coerce the defendant to accept a bargain with the state and waive his Sixth Amendment right to a trial by jury.”

       Raising a claim of bias on the part of a judge is a serious business and should be not undertaken without a sound basis in the record. See Rules of Professional Conduct 8.2 (a) (“[a] lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge”). Although we conclude that there is no factual basis in the record for the defendant’s claim, this court makes no finding as to whether counsel’s statements to the court were knowingly false or made with a reckless disregard as to their truth, and, therefore, we make no finding as to whether counsel violated rule 8.2 (a) of the Rules of Professional Conduct. See State v. Perez, 276 Conn. 285, 300-301, 885 A.2d 178 (2005).