author: DiPENTIMA, C. J.

text:
    STATE OF CONNECTICUT v. NICHOLAS M. MENDITTO
    (AC 34999)
    DiPentima, C. J., and Alvord and Sullivan, Js.

      Argued September 11—
    officially released December 24, 2013

      Naomi T. Fetterman, with whom, on the brief, was Aaron J. Romano, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Matthew Gedansky, state’s attorney, and Andrew Durham, assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The dispositive issue in this appeal is whether the modification of penalties for illegal possession of marijuana following the enactment of No. 11-71 of the 2011 Public Acts (P.A. 11-71) “decriminalized” the possession of less than one-half ounce of marijuana for purposes of General Statutes § 54-142d. The defendant, Nicholas M. Menditto, appeals from the judgments of the trial court denying his petitions for destruction of records of his convictions for two counts of possession of a controlled substance in violation of General Statutes (Rev. to 2009) § 21a-279 (c), and denying his motions to dismiss his violation of probation proceedings and charges of possession of a controlled substance in violation of General Statutes (Rev. to 2011) § 21a-279 (c) and use of drug paraphernalia in violation of General Statutes (Rev. to 2011) § 2 la-267 (a). On appeal, the defendant claims that the trial court erred in denying (1) his petitions for destruction of records, and (2) his motions to dismiss. We affirm the judgments of the trial court.

The record reveals the following facts and procedural history. On October 28, 2009, the defendant entered pleas of guilty in two matters on two charges of possession of a controlled substance in violation of General Statutes (Rev. to 2009) § 21a-279 (c). The defendant received a total effective sentence of two years incarceration, execution suspended, and eighteen months probation. During his probationary period, the defendant was arrested on March 25, 2011, and again charged in a third matter with possession of a controlled substance in violation of General Statutes (Rev. to 2011) § 2 la-279 (c) in addition to use of drug paraphernalia in violation of General Statutes (Rev. to 2011) § 21a-267 (a). As a result, on April 26, 2011, the defendant was charged in two separate dockets with violation of probation pursuant to General Statutes § 53a-32. See footnote 5 of this opinion.

On July 1, 2011, P.A. 11-71 became effective. Public Act 11-71 modified the penalties for possession of less than one-half ounce of marijuana to make conduct that previously was a crime under General Statutes (Rev. to 2011) § 21a-279 (c) a violation under newly enacted General Statutes § 21a-279a (a). See Public Acts 2011, No. 11-71, § 1 (a) (P.A. 11-71). Section 21a-279a (a) provides in relevant part: “Any person who possesses or has under his control less than one-half ounce of a cannabis-type substance . . . shall (1) for a first offense, be fined one hundred fifty dollars, and (2) for a subsequent offense, be fined not less than two hundred dollars or more than five hundred dollars.” Citing this modification of penalties in accordance with P.A. 11-71, on July 20, 2011, the defendant filed a motion to dismiss the March, 2011 charges of possession and use of drug paraphernalia. Additionally, on July 21, 2011, the defendant filed petitions for destruction of records of his previous convictions and motions to dismiss his violation of probation proceedings. In his petitions, the defendant argued that as a result of the enactment of P.A. 11-71, § 54-142d applied to his previous convictions, and, therefore, pursuant to that statute his records should have been destroyed.

In separate memoranda of decision, the court, Bal-dini, J., denied the defendant’s petitions for destruction of records and the defendant’s motions to dismiss. With respect to the defendant’s petitions for destruction of records and his motions to dismiss his violation of probation proceedings, the court concluded that P.A. 11-71 did not decriminalize the possession of less than one-half ounce of marijuana for purposes of § 54-142d. The court found that the defendant’s convictions, which remain violations under § 21a-279a (a), fell outside the reach of § 54-142d. With respect to the defendant’s motion to dismiss the March, 2011 charges of possession and use of drug paraphernalia, the court followed the reasoning set forth in State v. Graham, 56 Conn. App. 507, 743 A.2d 1158 (2000), and concluded that the “savings statutes”; see General Statutes § 1-1 (t) and General Statutes § 54-194; precluded dismissal.

The defendant thereafter entered conditional pleas of nolo contendere as to the March, 2011 charge of possession and the two violation of probation charges, pursuant to General Statutes § 54-94a. The court, Mul-larkey, J., accepted the pleas, frned the defendant $150 and terminated his probation. This appeal followed.

I

The defendant first claims that the court erred in denying his petitions for destruction of records. Specifically, the defendant argues that the term “decriminalized” in § 54-142d, properly construed and given its plain meaning, encompasses the reclassification of a crime to a violation. Relying on this interpretation of the term, the defendant argues further that P.A. 11-71 decriminalized the possession of less than one-half ounce of marijuana by making conduct that was a crime under General Statutes (Rev. to 2009) § 21a-279 (c) a violation under § 21a-279a (a). The state counters that the plain meaning of “decriminalized” is synonymous with legalization. Accordingly, the state contends that the remedies under § 54-142d are not permitted in this case because P.A. 11-71 did not legalize the possession of less than one-half ounce of marijuana. We reject the defendant’s claim and agree with the state.

The resolution of this appeal requires us to interpret the term “decriminalized” in § 54-142d. “Statutory interpretation is a question of law over which this court exercises plenary review.” State v. LaFleur, 307 Conn. 115, 125, 51 A.3d 1048 (2012). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . The test to determine ambiguity is whether the statute, when read in context, is susceptible to more than one reasonable interpretation. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) McCoy v. Commissioner of Public Safety, 300 Conn. 144, 150-51, 12 A.3d 948 (2011).

As § l-2z directs, we begin our analysis with the text of the statute. Section 54-142d provides in relevant part: “Whenever any person has been convicted of an offense in any court in this state and such offense has been decriminalized subsequent to the date of such conviction, such person may file a petition ... for an order of erasure, and the Superior Court or records center of the Judicial Department shall direct all police and court records and records of the state’s or prosecuting attorney pertaining to such case to be physically destroyed.” (Emphasis added.) Noticeably, the text of the statute does not expressly define the term decriminalized. A wider search, moreover, reveals that the term is not expressly defined elsewhere in the General Statutes. Our textual inquiry, however, does not end here.

As part of our textual analysis under § l-2z, General Statutes § 1-1 (a) requires that we construe decriminalized in accordance with the commonly approved usage of the language. See State v. Fernando A., 294 Conn. 1, 17, 981 A.2d 427 (2009). Put another way, “[i]f a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” (Internal quotation marks omitted.) Marchesi v. Board of Selectmen, 309 Conn. 608, 616, 72 A.3d 394 (2013). The common understanding of decriminalized, when applied to the facts of this case, does not provide a conclusive meaning. See, e.g., Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993) (to decriminalize is “to remove or reduce the criminal classification or status of; esp : to repeal a strict ban on while keeping under some form of regulation”); but see Black’s Law Dictionary (9th Ed. 2009) (decriminalization is “[t]he legislative act or process of legalizing an illegal act”). Depending on the dictionary, the defendant and the state find support for their respective interpretations of decriminalized. Thus, in ordinary usage, decriminalized, as applied to the facts of this case, can refer to either complete legalization, as the state advocates, or to the reclassification of a crime to a violation, as the defendant urges.

Continuing our textual analysis, we look to find meaning in the relationship of § 54-142d to other statutes. We note, preliminarily, that our case law in this area reveals that the meaning of a term or phrase may be discerned by looking to other statutes both within, and outside, the specific chapter of the General Statutes at issue. In Marchesi v. Board of Selectmen, supra, 309 Conn. 617-18, our Supreme Court arrived at the meaning of the language in General Statutes § 13a-40 by considering, in part, relevant statutes outside of the specific chapter in question, specifically General Statutes §§ 8-8 (k) and 4-183 (i). Again, in McCoy v. Commissioner of Public Safety, supra, 300 Conn. 156-56, the Supreme Court considered, inter alia, General Statutes § 53a-24 (a) in its determination of whether the legislature intended a violation of General Statutes § 14-227ato be a crime. Similarly, in State v. Boswell, 142 Conn. App. 21, 30-31, 33, 62 A.3d 1158 (2013), this court arrived at the meaning of the word “offense” in § 54-142d by looking outside that particular chapter of the General Statutes to the definition of offense in § 53a-24 (a). The analytical process in Boswell is particularly instructive because it is factually very similar to this case. In Boswell, not only was § 54-142dthe subject of interpretation but the invocation of the statute was the result of a legislative amendment to the sexual assault statutes. Id., 23.

Guided by this precedent, and principally Boswell, we proceed to determine the definition of “decriminalized” as used in § 54-142d. Citing the plain meaning rule, the defendant claims that an offense that is no longer a crime is decriminalized for purposes of § 54-142d. Much of the defendant’s analysis is focused on the legislative history of P.A. 11-71. The state, on the other hand, refutes the relevancy of the legislative intent behind P.A. 11-71 to this appeal and contends that the meaning of “decriminalized” is properly understood by examining the statutory definition of “offense” in § 53a-24 (a). Specifically, the state claims that the statutory definition of offense in § 53a-24 (a), which refers to either a crime or a violation, should be imported and given the same meaning in § 54-142d. In doing so, the state contends, the phrase “offense has been decriminalized” in § 54-142d can only be construed to mean legalization. We are persuaded by the state’s argument.

Preliminarily, we note two well settled rules of statutory construction. The first is that “the legislature is presumed ... to know the state of existing relevant law when it enacts a statute . . . .” (Internal quotation marks omitted.) State v. Fernando A., supra, 294 Conn. 19. The second is that “ [w]e presume that the legislature did not intend to enact meaningless provisions. . . . [Statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant . . . .” (Internal quotation marks omitted.) Marchesi v. Board of Selectmen, supra, 309 Conn. 615. Applying these two rules, we arrive at a plain and unambiguous meaning of the term decriminalized as applied to the facts of this case.

Under the first rule of construction, we presume that the legislature was aware of the definition of offense in § 53a-24 (a) when it used the same term in § 54-142d, because § 54-142d was enacted after § 53a-24. See, e.g., McCoy v. Commissioner of Public Safety, supra, 300 Conn. 154-55. Indeed, in State v. Boswell, supra, 142 Conn. App. 30-31, this court concluded that “offense” in § 54-142d should be given the same meaning as “offense” in § 53a-24 (a). As we did in Boswell, we import the definition of offense from § 53a-24 (a) to our textual analysis of § 54-142d. In so doing, and mindful of the second rule of construction that no clause, sentence or word shall be superfluous, void or insignificant, we conclude that the defendant’s interpretation of decriminalized becomes unreasonable.

The text of § 54-142d makes clear that the destruction of records is appropriate “[w]henever any person has been convicted of an offense . . . and such offense has been decriminalized . . . .” (Emphasis added.) If, as the defendant contends, the word decriminalized referred to the change from a crime to a violation, the word offense in § 54-142d would be superfluous and meaningless. Because offense in § 54-142d must be read to encompass either a crime or a violation, half of its meaning would be lost by adopting the defendant’s interpretation of decriminalized because a violation would never be able to be decriminalized. The acceptance of the defendant’s interpretation, therefore, would violate the second rule of statutory construction, namely, that the legislature does not intend to enact meaningless words or provisions. See, e.g., Housatonic Railroad Co. v. Commissioner of Revenue Services, 301 Conn. 268, 303-304, 21 A.3d 759 (2011) (rejecting interpretation of General Statutes §§ 12-33 and 12-597 on basis of this rule of construction); see also State v. LaFleur, supra, 307 Conn. 133 (rejecting interpretation of General Statutes § 53a-3 [7] that rendered words meaningless and redundant). Accordingly, the meaning of the term decriminalized, as applied to the facts of this case, must be interpreted to mean legalization in order to be read in conjunction with, and give full meaning to, the term offense.

We conclude, therefore, that the meaning of the term decriminalized, as ascertained from the text of § 54-142d and its relationship to other statutes, is plain and unambiguous. Thus, there is no basis to turn to extratex-tual sources, including the legislative history, for further consideration. See General Statutes § l-2z; see, e.g., Felician Sisters of St. Francis of Connecticut, Inc. v. Historic District Commission, 284 Conn. 838, 847-51, 937 A.2d 39 (2008). We further conclude that the term decriminalized in § 54-142d, when read in context and applied to the facts of this case, means legalization. Consequently, the court did not err in denying the defendant’s petitions for destruction of records.

II

The defendant next claims that the court erred in denying his motions to dismiss. As to the motions to dismiss his violation of probation proceedings, the defendant argues that “the State should not have been permitted to prosecute [the defendant] for violating the probation of a conviction that should rightfully be erased.” As to the motion to dismiss his charges of possession of a controlled substance in violation of General Statutes (Rev. to 2011) § 21a-279 (c) and use of drug paraphernalia in violation of General Statutes (Rev. to 2011) § 21a-267 (a), the defendant argues that the savings statutes; see General Statutes §§ 1-1 (t) and 54-194; “cannot attach to conduct that is no longer considered a crime.”

We first turn to the defendant’s argument regarding his motions to dismiss his violation of probation proceedings. As we concluded in part I of this opinion, the defendant’s convictions should not have been erased under § 54-142d. Accordingly, the defendant’s sentences of probation continue to be enforceable. We conclude therefore that the court did not err in denying the defendant’s motions to dismiss his violation of probation proceedings.

We next turn to the claim that the court erred in denying the defendant’s motion to dismiss the March, 2011 charges of possession and use of drug paraphernalia. Relying on State v. Graham, supra, 56 Conn. App. 507, the court found that the savings statutes applied to the defendant’s conduct and concluded that “the defendant may appropriately be prosecuted and punished under the version of General Statutes § 21a-279 (c) that was in effect at the time of the alleged offense.” We agree.

Generally, “a defendant is prosecuted and sentenced under the statutes in effect at the time the defendant commits the offense. The legislature has enacted savings statutes as reflected in General Statutes § 54-194, which provides that [t]he repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect; and in General Statutes § 1-1 (t), which provides that [t]he repeal of an act shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, or prosecution, or proceeding pending at the time of the repeal, for an offense committed, or for the recovery of a penalty or forfeiture incurred under the act repealed.” (Internal quotation marks omitted.) Davis v. Commissioner of Correction, 133 Conn. App. 458, 465, 37 A.3d 758 (2012). “Our courts have repeatedly held that these savings statutes preserve all prior offenses and liability therefor so that when a crime is committed and the statute violated is later amended or repealed, defendants remain liable under the revision of the statute existing at the time of the commission of the crime.” State v. Graham, supra, 56 Conn. App. 511.

There is no express language in P.A. 11-71 or any indication in the legislative history that the legislature clearly and unequivocally intended P.A. 11-71 to apply retroactively. See Mead v. Commissioner of Correction, 282 Conn. 317, 325, 920 A.2d 301 (2007) (presumption of prospective effect of statute only overcome by clear and unequivocal expression of retrospective effect). Instead, P.A. 11-71 expressly provides an effective date of July 1, 2011. For these reasons, the savings statutes apply, and the law in effect at the time of the defendant’s offense, General Statutes (Rev. to 2011) § 21a-279 (c), controls. See, e.g., State v. Graham, supra, 56 Conn. App. 511-12. Accordingly, we conclude that the court did not err in denying the defendant’s motion to dismiss the March, 2011 charges.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-142d provides in relevant part: “Whenever any person has been convicted of an offense in any court in this state and such offense has been decriminalized subsequent to the date of such conviction, such person may file a petition . . . for an order of erasure, and the Superior Court or records center of the Judicial Department shall direct all police and court records and records of the state’s or prosecuting attorney pertaining to such case to be physically destroyed.”

       General Statutes (Rev. to 2009) § 21a-279 (c) provides: “Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marijuana or who possesses or has under his control less than form ounces of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollars or be imprisoned not more than five years, or be both fined and imprisoned.”

       The language in the 2009 and 2011 statutory revisions of § 21a-279 (c) is identical. See footnote 2 of this opinion.

       General Statutes (Rev. to 2011) § 21a-267 (a) provides: “No person shall use or possess with intent to use drug paraphernalia, as defined in subdivision (20) of section 21a-240, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal, or to ingest, inhale or otherwise introduce into the human body, any controlled substance, as defined in subdivision (9) of section 21a-240. Any person who violates any provision of this subsection shall be guilty of a class C misdemeanor.”

       The pleas were entered in two separate matters, Criminal Docket Nos. CR-09-0095007-S and CR-09-0095107-S.

       See Criminal Docket No. CR-11-0098784-S.

       General Statutes § 1-1 (t) provides: “The repeal of an act shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, or prosecution, or proceeding pending at the time of the repeal, for an offense committed, or for the recovery of a penalty or forfeiture incurred under the act repealed.”

       General Statutes § 54-194 provides: “The repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect.”

       “[I]n State v. Daley, 29 Conn. 272, 277 (1860), our Supreme Court held that a defendant could not be prosecuted if the criminal statute had been amended after the crime and the legislature failed to enact any ‘savings clause’ governing prior offenses. The legislature’s response has been the enactment of savings statutes as reflected in General Statutes § 54-194 . . . and in General Statutes § 1-1 (t) . . . .” State v. Graham, supra, 56 Conn. App. 510-11.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       The count alleging use of drug paraphernalia in Criminal Docket No. CR-11-0098784-S was nolled.

       General Statutes § 53a-24 (a) provides: “The term ‘offense’ means any crime or violation which constitutes a breach of any law of this state or any other state, federal law or local law or ordinance of apolitical subdivision of this state, for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. The term ‘crime’ comprises felonies and misdemeanors. Every offense which is not a ‘crime’ is a ‘violation’. Conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense.”

       We note that during oral argument before this court, the defendant conceded that the definition in § 53a-24 (a) should, in fact, be adopted in § 54-142d.

       General Statutes (Rev. to 2011) § 21a-279 (c) was in effect in March, 2011. Its language is identical to the 2009 statutory revision. See footnote 2 of this opinion.


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    JUDE D. LOISELLE v. BROWNING AND BROWNING REAL ESTATE, LLC, ET AL.
    (AC 34780)
    Gruendel, Robinson and Pellegrino, Js.

      Argued September 18—
    officially released December 24, 2013

      Michael J. Rose, for the appellant (plaintiff).

      Mark R. Cramer, for the appellee (named defendant et al.).
   Opinion

PELLEGRINO, J.

The plaintiff, Jude Loiselle, appeals from the judgment of the trial court rendered in favor of the defendants, Browning & Browning Real Estate, LLC (Browning), Mary Beth Malin, and Raymond Pre-ece. On appeal, the plaintiff claims the trial court erred in (1) improperly admitting into evidence a portion of Malin’s testimony at trial; (2) failing to find that Malin intended to interfere with the plaintiffs contractual relations; and (3) failing to address whether the conduct of the defendants violated public policy pursuant to General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA). We affirm the judgment of the trial court.

The court found the following facts. The plaintiffs action arises out of the sale of residential real estate in Thompson, Connecticut (property). In December, 2009, after the property had been foreclosed, GMAC ResCap (GMAC) listed the property for sale with Browning for $144,900. The relevant terms of the listing agreement, entered into by Browning and GMAC on March 9,2010, were: (1) all offers must be in writing and signed; (2) offers must be mailed to a certain address or faxed; (3) Browning must notify GMAC before mailing or faxing an offer; and (4) back-up offers are “encouraged” on all properties already under contract.

The listing agreement between Browning and GMAC was based on a form contract that had been drafted eight years earlier in 2002. The terms of the listing agreement, however, had not been updated to reflect the technological developments in the field. The listing agreement did not account for the fact that, in 2005, GMAC began to require that their real estate agents use the Equator system, a computer interface where the listing agents and GMAC electronically exchange information regarding the property. Using the Equator system to communicate offers was inconsistent with the express terms of the listing agreement requiring that offers be mailed or faxed. Despite the language of the listing agreement, GMAC preferred to conduct business electronically using the Equator system.

Malin, an employee at Browning, was the listing agent for the property. GMAC regularly had reduced the purchase price of the property to no avail. Three prospective buyers previously had backed out of purchasing the property, one due to an unsatisfactory inspection. On the morning of April 21, 2010, however, Malin received two offers for the property, one from the plaintiff and one from The Cabrera Group, LLC (Cabrera).

In April, 2010, the plaintiff saw the property and was interested in buying it. On the morning of April 21,2010, JoAnn Hall, the plaintiffs real estate agent, submitted an offer on his behalf to Malin. The plaintiffs offer was for $94,900 with a $1000 deposit, contingent on satisfactory well and sewage inspections. The plaintiffs father had provided Hall with a check for the down payment, a letter stating he was giving his son cash to purchase the property, and a copy of an investment account statement reflecting a $12 million balance. Hall conveyed the offer to Malin.

On that same morning, April 21, 2010, Cabrera also made an offer to purchase the property. Cabrera was in the business of buying homes at favorable prices, renovating them, and then reselling them for a profit. Cabrera had been represented by Preece, also an agent at Browning, for nine years and together they had closed approximately fifteen real estate transactions. Preece would notify Cabrera of new listings, recommend specific properties, and place bids on behalf of Cabrera with little prior discussion. Preece had been monitoring the property in question for Cabrera. On April 7, 2010, Cabrera and GMAC began negotiating the pinchase of the property through Preece and Malin. On the morning of April 21, 2010, Preece gave Malin a written purchase and sale agreement for the property, offering to pay $90,000 with a $3000 deposit and no contingencies.

Malin submitted both Cabrera’s offer and the plaintiffs offer to GMAC using the Equator system on the morning of April 21, 2010. Neither potential buyer knew of the other’s offer. With respect to the Cabrera bid, Malin noted in the Equator system, “No inspections. Taking the property AS IS.” Malin also commented on the plaintiffs bid that he was “performing home inspections. I am very concerned with the results with what we know. Very concerned with home inspections and repairs.” Malin, on behalf of GMAC, then sent an e-mail to Hall stating, “[GMAC] countered with that they want a [$3000 earnest money deposit]. Everything else is fine for them. Let me know. I also left you a message at our office.” The plaintiff responded with a counteroffer for the same price, but the additional deposit of $2000 would be provided only upon acceptance. Malin did not accept or reject this counteroffer, but responded that GMAC needed proof of funds.

On the evening of April 21, 2010, Malin checked the status of the outstanding offers on the property and found GMAC had accepted the Cabrera offer. Malin notified Hall by e-mail that the plaintiffs offer had been rejected and that GMAC had accepted an offer from another bidder. On April 22, 2010, Hall saw the e-mail and replied: “[The plaintiff] agreed to the [counteroffer]. How can the seller accept another offer and not give my buyer notice to make highest and best?” Malin relayed a message to the plaintiff, explaining that GMAC had considered the Cabrera offer to be “a stronger cash offer ready to close asap without inspections.” The plaintiff refused to abandon his effort to purchase the property and attempted to submit another offer through Malin. The Equator system, however, would not allow Malin to enter any other offers. Malin wrote back to Hall and explained, “I am not able to present [your offer] as the seller has accepted another offer. [0]nce an offer is accepted the [Equator] system locks me out.” After closing, Cabrera spent between $6000 and $8000 on repairs and improvements before reselling the property for $149,000.

The plaintiff commenced the present action on June 2, 2010, and proceeded to trial against the defendants. The plaintiff alleged Malin committed tortious interference with contractual relations ánd negligent misrepresentation, and sought to hold Browning vicariously hable as Malin’s employer. The plaintiff also alleged that the defendants had “conspired to thwart” the plaintiffs real estate transaction in violation of CUTPA. In its memorandum of decision, the trial court found in favor of the defendants on all claims. This appeal followed. Additional facts will be set forth as needed.

I

The plaintiff claims the court erroneously admitted a portion of Malin’s testimony regarding the Equator computer system. Specifically, the plaintiff argues this testimony violates the parol evidence rule and should have been excluded because it conflicts with the provisions of the fisting agreement. The plaintiff also argues that Malin should not have been allowed to testify as to what the Equator program “required” because this testimony constitutes hearsay. We conclude that the testimony was properly admitted.

A

Before we reach the merits of the arguments raised in the plaintiffs brief, we consider the more fundamental legal question: whether a third party, not a beneficiary of the contract or a party to the contract, can question the terms of the contract by invoking the parol evidence rule. While the plaintiff argues in his brief that the parol evidence rule should exclude evidence of a change in the contract, he ignored the fundamental question as to whether a nonparty could invoke this rule. The defendants raised this issue in their brief, but the plaintiff failed to address it and did not file a reply brief. At oral argument before this court, however, the plaintiff argued there is “no case [law]” that prohibits a third party from invoking the parol evidence rule when a party to the contract testifies as to a change in the terms of the contract. The issue we now address is whether a third party, who is a stranger to a contract, can invoke the parol evidence rule when a party to the contract testifies as to a change in the terms of the contract.

“As we have so often noted, the parol evidence rale is not a rule of evidence, but a substantive rule of contract law.” (Internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 779, 663 A.2d 122 (1995). “Because the parol evidence rule is not an exclusionary rule of evidence, however, but a rule of substantive contract law . . . the [plaintiffs] claim involves a question of law to which we afford plenary review.” (Internal quotation marks omitted.) Alstom Power, Inc. v. Balcke-Durr, Inc., 269 Conn. 599, 609, 849 A.2d 804 (2004).

Generally, the parol evidence rule prevents parties from using extrinsic evidence to vary or contradict the unambiguous terms of an integrated contract. Id., 609-610. When deciding whether the parol evidence rule operates to prevent the trier of fact from considering certain evidence to interpret the contract, “[t]he fundamental question is . . . the intent of the parties.” Harris v. Clinton, 142 Conn. 204, 210, 112 A.2d 885 (1955). We use the parties’ intent to guide us in order to ensure “parties [continue] to enter into contractual agreements with the confidence that they subsequently will not find themselves legally bound to unknown or unanticipated obligations.” Grigerik v. Sharpe, 247 Conn. 293, 311, 721 A.2d 526 (1998). This advances the “policy of certainty in enforcing contracts. That is, each party to a contract is entitled to know the scope of his or her obligations thereunder [including] . . . the range of potential third persons who may enforce the terms of the contract.” (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 261-62, 765 A.2d 505 (2001).

Parol evidence generally cannot be admitted to interpret or contradict the terms of an unambiguous contract that contains a merger clause. Tallmadge Bros. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 502-503, 746 A.2d 1277 (2000). A merger clause manifests the parties’ “inten[t] to make [the contract] the repository of their final understanding” and enforce it as such. Harris v. Clinton, supra, 142 Conn. 211. A merger clause is not evidence, however, of the parties’ intent with respect to the rights of a third party to use extrinsic evidence to vary a contract’s express terms. Our Supreme Court’s discussion in Gazo v. Stamford, supra, 255 Conn. 261, regarding the rights of third party beneficiaries, is instructive: “The law regarding the creation of contract rights in third parties in Connecticut ... is well settled. . . . [T]he ultimate test to be applied ... is whether the intent of the parties to the contract was that the promisor should assume a direct obligation to the third party .... [T]he only way a contract could create [such] a direct obligation . . . [would be] because the parties to the contract so intended.” (Citations omitted; internal quotation marks omitted.) “It is well settled that one who [is] neither a party to a contract or a contemplated beneficiary thereof cannot sue to enforce the promise of the contract . . . .” (Internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 718, 629 A.2d 333 (1993).

A third party, therefore, cannot enforce the obligations imposed by a merger clause, including the parol evidence rule, on a contracting party without first demonstrating that the contracting parties intended for those obligations to run to the third party. See Gazo v. Stamford, supra, 255 Conn. 261. To allow third parties to use the parol evidence rule freely, absent evidence of the contracting parties’ intent, would inhibit contracting parties from “knowing the scope of his or her obligations [under the contract], includ[ing] the range of third parties who may enforce the terms of the contract.” Id., 261-62.

Other related case law provides further support for the proposition that third parties cannot invoke the parol evidence rule. Our Supreme Court acknowledged the inherent inequity in allowing third parties to benefit from the parol evidence rule, and carved out a limited exception to allow the introduction of extrinsic evidence to interpret the terms of a general release from liability. Sims v. Honda Motor Co., 225 Conn. 401, 416, 623 A.2d 995 (1993). In doing so, the court noted: “[0]ther jurisdictions have held that the parol evidence rule does not bar extrinsic evidence of the parties’ intent if it is a stranger to the contract who seeks to prevent the introduction of extrinsic evidence. . . . These courts take an unsympathetic position toward parties who seek to take gratuitous advantage of an agreement when they are not parties to the agreement.” (Citations omitted; internal quotation marks omitted.) Id.; see also 11 R. Lord, Williston on Contracts (4th Ed. 1999) § 33:9, pp. 594-97 (weight of authority prohibits strangers from invoking parol evidence rule). Furthermore, a third party is not bound by the parol evidence rule; see Crowley v. Pendleton, 46 Conn. 62, 64 (1878); and, accordingly, should also not be allowed to use the rule to its advantage. In order to protect the policy of certainty in enforcing contracts, and following the guidance of our Supreme Court, we hold a third party cannot invoke the parol evidence rule against a contracting party.

The plaintiff, as a stranger to the listing agreement, cannot invoice the parol evidence rule to prevent Malin from testifying regarding the Equator system. We acknowledge that the use of the Equator system was not included in the written listing agreement. We are guided by the intent of the contracting parties, however, and there was no evidence whatsoever that Browning and GMAC intended that any third party stranger could invoke the parol evidence rule. In fact, there was evidence to the contrary that the parties to the contract had agreed to use the Equator system. Despite the fact that Malin’s testimony may not have been in accord with the terms of the listing agreement, the trial court did not err in concluding the parol evidence rule was not pertinent, as the plaintiff had no right to invoke it.

B

The plaintiff also argues that the court erred in allowing Malin to testify that she was required to use the Equator system to communicate with GMAC. He argues this testimony constituted hearsay because “[Malin] was clearly testifying based on what someone allegedly told her to do.” We find no error.

The following additional facts are relevant to this claim. The plaintiff called Malin as a witness and questioned her about the Equator system, among other things. During Malin’s cross-examination, the defendants asked: “[0]nce GMAC required you to use the Equator system you were required to notify the seller of all offers through the Equator system, not by telephone, correct?” The court sustained the plaintiffs objection on hearsay grounds, reasoning the defendants were “asking what GMAC requires [Malin] to do.” The defendants modified the question to the court’s satisfaction, asking, “Once GMAC required you to use the Equator system that system required you to notify the seller of all offers through the Equator system, not by telephone, correct?” The plaintiffs subsequent objections were overruled because the court found the question was not soliciting hearsay—Malin was being asked to “describ[e] how the equipment works, how the software works” and not testifying as to what GMAC told her. Malin responded, “Correct,” to these cross-examination questions.

Our Supreme Court has recently reaffirmed the standard of review for claims regarding hearsay. “To the extent [that] a trial court’s admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review.” State v. Miguel C., 305 Conn. 562, 571, 46 A.3d 126 (2012).

“ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to prove the truth of the matter asserted.” Conn. Code Evid. § 8-1 (3). Subject to certain exceptions, hearsay is inadmissible. See Conn. Code Evid. § 8-2. A “statement” is defined as “an oral or written assertion or . . . nonverbal conduct of a person, if it is intended by the person as an assertion.” Conn. Code Evid. § 8-1 (1). There are “certain circumstances when, although the witness did not repeat the statements of another person, his or her testimony presented to the jury, by implication, the substance of another person’s statements.” State v. Jones, 44 Conn. App. 476, 486, 691 A.2d 14, cert. denied, 241 Conn. 901, 693 A.2d 304 (1997). Under these circumstances, a witness has “implied” an out-of-court statement of another by testifying to the witness’ own verbal or nonverbal response to an identifiable conversation. See, e.g., State v. Robinson, 213 Conn. 243, 257-59, 567 A.2d 243 (1989) (witness’ testimony she was concerned for victim after phone call constituted hearsay), overruled on other grounds by State v. Colon, 257 Conn. 587, 600-601, 778 A.2d 875 (2001).

In the present case, the plaintiff has failed to explain how Malm’s responses constitute or imply an out-of-court statement was made by GMAC. The defendants did not ask Malin what GMAC said, and did not solicit testimony that could have implied what GMAC said during an identifiable conversation. The defendants asked Malin how the Equator system affected her communications with GMAC—whether she used the Equator system exclusively or used other means as well. The plaintiff has not shown that the defendants asked about the substance of Malin’s communications with GMAC, or that they solicited a response implying as much. The plaintiff cannot demonstrate what out-of-court statement Malin testified to, and therefore the court did not err in concluding this portion of Malin’s testimony was not hearsay. We conclude Malin’s testimony was properly admitted.

II

The plaintiff challenges the trial court’s factual findings with respect to the claim of tortious interference with contractual relations. Specifically, the plaintiff argues that the court erred with respect to the tortious interference with contractual relations claim in finding: (1) Malin did not intend to interfere with the plaintiff’s contractual relations; (2) the alleged interference was not tortious; and (3) the plaintiff did not suffer an actual loss. We conclude that these findings were not clearly erroneous.

The court’s determinations regarding Malin’s intent, whether Malin tortiously interfered with the plaintiffs contract, and the issue of damages are all findings of fact. Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988); see Quimby v. Kimberly Clark Corp., 28 Conn. App. 660, 667-68, 613 A.2d 838 (1992). “Because this claim challenges the accuracy of the court’s factual findings, our review is limited to the clearly erroneous standard. In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... On appeal, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... [A] finding of fact must stand if, on the basis of the evidence before the court and the reasonable inferences to be drawn from that evidence, a trier of fact reasonably could have found as it did.” (Citations omitted; internal quotation marks omitted.) D'Appollonio v. Griffo-Brandao, 138 Conn. App. 304, 318, 53 A.3d 1013 (2012).

“A claim for tortious interference with contractual relations requires the plaintiff to establish (1) the existence of a contractual or beneficial relationship, (2) the defendants’ knowledge of that relationship, (3) the defendants’ intent to interfere with the relationship, (4) the interference was tortious, and (5) a loss suffered by the plaintiff was caused by the tortious conduct.” (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 212-13, 757 A.2d 1059 (2000). The plaintiff must satisfy his burden of proving each and every element of the claim. See id., 213. “[N]ot every act that disturbs a contract or business expectancy is actionable. . . . [A]n action for intentional interference with [contractual] relations . . . requires the plaintiff to plead and prove at least some improper motives or improper means. ... [A] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself.” (Internal quotation marks omitted.) Metcoff v. Lebovics, 123 Conn. App. 512, 520, 2 A.3d 942 (2010).

We conclude there is support in the record for the trial court’s factual finding that there was no tortious interference with the plaintiffs contractual relations. The record shows that Malin satisfied her obligation as the seller’s agent when she conveyed her reservations regarding the plaintiffs offer as a result of the inspection contingency. This is sufficient support for the court’s finding that Malin’s actions were not improper or wrongful. See id., 520-21. Even though Malin did not follow the telephone and fax procedures detailed in the listing agreement, this also was entirely proper, as the testimony demonstrated that all agents used the Equator system to communicate offers. The court did not err in concluding the plaintiff did not satisfy his burden of showing Malin improperly interfered with the bidding process, which was fatal to his claim of tortious interference with contractual relations.

Ill

With respect to the CUTPA claim, the plaintiff argues the “court never addressed the essential element of the CUTPA claim—whether there was a violation of public policy.” The plaintiff also claims that “there is a clear violation of public policy, supporting the CUTPA claim.” We conclude the court considered whether there was a violation of public policy, and did not err in finding none.

The plaintiff asserts it was plain error for the court not to address the public policy element of his CUTPA claim. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Santopietro v. New Haven, 239 Conn. 207, 216, 682 A.2d 106 (1996). In order to succeed on a CUTPA claim, the plaintiff must prove the defendant’s conduct “offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is at least within the penumbra of some common law, statutory, or other established concept of unfairness.” (Internal quotation marks omitted.) American Car Rental, Inc. v. Commissioner of Consumer Protection, 273 Conn. 296, 305-306, 869 A.2d 1198 (2005).

With respect to the claim here, the court recounted that “whether a practice is unfair depends upon the finding of a violation of an identifiable public policy,” and concluded “[t]he plaintiff failed to prove any law or public policy violations . . . .” The court reasoned that Malin gave “fair and accurate” evaluations of the competing offers, required similar information from both buyers, did not violate any disclosure requirements regarding the fact that both agents worked at Browning, and that the plaintiff failed to show Malin deviated from the “customary and normal” practices in the industry. The court recognized the public policy requirement of CUTPA, and addressed it accordingly.

The plaintiff also argues the facts here demonstrate a violation of public policy pursuant to CUTPA. Whether a practice is unfair and thus violates CUTPA is an issue of fact and is subject to the clearly erroneous standard of review. Tarka v. Filipovic, 46 Conn. App. 46, 55, 694 A.2d 824, cert. denied, 242 Conn. 903, 697 A.2d 363 (1997); see also Naples v. Keystone Building & Development Corp., 295 Conn. 214, 228, 990 A.2d 326 (2010). The court found there was no CUTPA violation because Malin evaluated the competing bids appropriately, treated the plaintiff and Cabrera equally, and that any deviations from the listing agreement “violated no state laws or [any of] the plaintiffs rights.” In light of the foregoing, it was reasonable for the court to find there was no violation of public policy for purposes of CUTPA. We conclude the trial court did not err in its disposition of the CUTPA claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       U.S. Bank, N.A, Theresa E. Browning, the Cabrera Group, LLC, and David Cabrera also were defendants before the trial court but are not parties to this appeal. We refer in this opinion to Browning, Malin, and Preece collectively as the defendants

       GMAC was the servicing agent for U.S. Bank, N.A., the bank that had foreclosed the property. GMAC was named as seller in the listing agreement.

       For some unknown reason, when Hall provided Malin with the plaintiffs initial offer, the father’s investment account statement was never received. In response to Malin’s request, Hall resubmitted the statement.

       We note that, contrary to Hall’s statement, the plaintiff did not accept GMAC’s counteroffer. Although the terms of the plaintiff’s response were the same as GMAC’s counteroffer—a purchase price of $94,900 with a $3000 deposit—the plaintiff’s counteroffer made $2000 of the deposit contingent on GMAC’s acceptance. The plaintiff therefore had not accepted the counteroffer because his acceptance was conditional. See Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970) (“[t]he acceptance of the offer must, however, be explicit, full and unconditional”).

       Although the plaintiff did not brief this issue, he had an opportunity to present arguments in a reply brief but did not, and therefore the issue is properly before this court. Cf. Haynes v. Middletown, 306 Conn. 471, 473-74, 50 A.3d 880 (2012).

       The plaintiff does not claim to be a third party beneficiary of the listing agreement.

       We note that, in this case, there was no evidence that the listing agreement was ambiguous. Absent this finding, not even the parties to the contract could have claimed the parol evidence rule prevented evidence of a deviation from the terms, let alone a nonparty and total stranger to the listing agreement. See Schilberg Integrated Materials Corp. v. Continental Casualty Co., 263 Conn. 245, 277, 819 A.2d 773 (2003).

       After the initial objection, which was sustained, the plaintiff objected two additional times to the question as rephrased.

       We agree with the defendants that the plaintiff mischaracteiizes the nature of Malm’s testimony. The plaintiffs brief reads: “Malin testified that ‘someone’ told her that she had to use the Equator system . . . .” (Emphasis omitted.) The plaintiff does not refer us to anywhere in the record where Malin stated she was told to use the Equator system.

       Alternatively, we note that there was no error because it was not clearly erroneous for the court to find Malin did not intend to improperly interfere with the contractual relationship or that the plaintiff failed to prove he suffered any damages, which were also essential elements of this claim.

       Because we conclude there was no error with respect to the tortious interference claim, we do not need to address the plaintiffs proposition, based on Sportsmen’s Boating Corp. v. Hensley, 192 Conn. 747, 756-57, 474 A.2d 780 (1984), that “proof of the elements of a common law tortious interference claim must lead to a finding of a violation of CUTPA as long as there has also been a violation of public policy.”