author: ROBINSON, J. BERDON, J.,

text:
    STATE OF CONNECTICUT v. COREY MAPP
    (AC 29483)
    Harper, Robinson and Berdon, Js.

      Argued May 20
    officially released December 22, 2009

      Anthony E. Parent, special public defender, for the appellant (defendant).

      Eric M. Fizur, certified legal intern, with whom were Michele C. Lukban, senior assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, and Marc G. Ramia, assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Corey Mapp, appeals from the judgment of the trial court finding him in violation of his probation and revoking probation pursuant to General Statutes (Rev. to 2005) § 53a-32. On appeal, the defendant claims that the court (1) improperly found that there was sufficient evidence before it to establish, by a preponderance of the evidence, that he violated the terms of his probation by possessing a firearm and (2) abused its discretion in revoking his probation and sentencing him when it found that the rehabilitative aspects of his probation were no longer being met. We dismiss the appeal as it relates to whether the defendant violated the terms of his probation and otherwise affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On March 28, 2002, in accordance with General Statutes (Rev. to 2001) § 54-76b, the defendant pleaded guilty, as a youthful offender, to the charge of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (4) and 53a-48. Pursuant to General Statutes (Rev. to 2001) § 54-76b, the court sentenced the defendant to a term of ten years imprisonment, execution suspended after four years, followed by three years of probation. On November 23, 2005, the defendant was released from prison and began serving his probationary term. Upon his release from prison, the defendant signed a form listing his conditions of probation, which included not only general conditions, but also special conditions that he obtain a high school diploma or pass the General Education Development examination, otherwise known as the GED test, and verily that he was working thirty-five hours per week, consisting of school, work or community service. At no point did the defendant ever provide the court with verification that he had complied with any of the three special conditions of his probation.

While on probation, on July 19,2006, the police found a stolen gun in a vehicle that the defendant was driving. Also as a result of that incident, the defendant was charged with (1) repeatedly failing to report to his probation officer in violation of § 53a-32; (2) operating a motor vehicle on a public highway while his right to operate was under suspension in violation of General Statutes § 14-215; (3) carrying a pistol on his person without a permit to do so in violation of General Statutes § 29-35; (4) having a pistol in a motor vehicle without a permit in violation of General Statutes § 29-38; (5) possessing, obtaining and withholding a stolen firearm in violation of General Statutes § 53a-212; and (6) interfering with a police officer or officers acting in the performance of the officers’ duties by obstructing, resisting, hindering and endangering the officers in violation of General Statutes (Rev. to 2005) § 53a-167a, as amended by Public Acts 2005, No. 05-180, § 6. As a result of these charges, an arrest warrant was also issued against the defendant for violation of probation pursuant to § 53a-32.

At the conclusion of an evidentiary hearing on September 12, 2007, the court found the defendant to be in violation of his probation, revoked his probationary status and ordered him to serve the suspended portion of his original sentence, which amounted to five and one-half years of incarceration. On the strength of the evidence adduced at that time, the court concluded that (1) the defendant had been in possession of a firearm, which violated the terms of his probation; (2) the defendant had failed to provide any verification of his compliance with the special conditions of his probation, which also violated the terms of his probation; and (3) the combination of possessing a firearm and failing to meet the special conditions of his probation demonstrated that the rehabilitative and beneficial aspects of probation were not being met. Shortly thereafter, roughly two months prior to the filing of this appeal, the defendant pleaded guilty to illegal possession of a weapon in a motor vehicle, in violation of § 29-38, and was sentenced to two years of incarceration. The conduct underlying that criminal conviction was the same conduct underlying his violation of probation. The twenty day window to file a timely appeal from this conviction has elapsed, and the defendant has not appealed.

I

The defendant first claims that the court improperly found that there was sufficient evidence before it to establish, by a preponderance of the evidence, that he violated the terms of his probation by possessing a firearm. Before we address the merits of the defendant’s claim, we must address the state’s contention that this issue is moot.

“Mootness implicates a court’s subject matter jurisdiction and, therefore, presents a question of law over which we exercise plenary review. . . . For a case to be justiciable, it is required, among other things, that there be an actual controversy between or among the parties to the dispute .... [T]he requirement of an actual controversy ... is premised upon the notion that courts are called upon to determine existing controversies, and thus may not be used as a vehicle to obtain advisory judicial opinions on points of law. . . . Moreover, [a]n actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal. . . . 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.” (Citations omitted; internal quotation marks omitted.) State v. T.D., 286 Conn. 353, 361, 944 A.2d 288 (2008).

The state contends that because the conduct underlying the defendant’s guilty plea and conviction of illegal possession of a firearm forms the basis of the probation violation, and the defendant has not pursued a timely appeal from that judgment of conviction, an appeal challenging the court’s reliance on that conduct in finding a violation of his probation is rendered moot. The state claims that because of the guilty plea and conviction, no live controversy concerning the defendant’s conduct exists. We agree.

In State v. Singleton, 274 Conn. 426, 439, 876 A.2d 1 (2005), our Supreme Court held that “[w]here, subsequent to a finding of violation of probation, a defendant is criminally convicted for the same conduct underlying the violation of probation, his appeal from that judgment of violation of probation is rendered moot because there is no longer any five controversy about whether he engaged in the conduct for which his probation was violated.”

Similarly, in State v. T.D., supra, 286 Conn. 366-67, our Supreme Court held that “[i]f a defendant has been convicted of criminal conduct, following either a guilty plea, Alford plea or a jury trial, and the defendant does not challenge that conviction by timely appealing it, then the conviction conclusively establishes that the defendant engaged in that criminal conduct. An appeal challenging a finding of violation of probation based on that conduct is, therefore, moot. When, however, the defendant has pursued a timely appeal from a conviction for criminal conduct and that appeal remains unresolved, there exists alive controversy over whether the defendant engaged in the criminal conduct, and an appeal challenging a violation of probation stemming from that conduct is not moot.”

In the present case, the defendant pleaded guilty to and was convicted of a crime involving the same conduct for which his probation was revoked. The twenty day window to file an appeal from that judgment of conviction has elapsed, and the defendant has not appealed. On the basis of Singleton and T.D., we conclude that there is no live controversy concerning the conduct underlying the defendant’s violation of probation. Therefore, the defendant’s claim that the evidence was insufficient to support the court’s finding that he violated the terms of his probation by possessing a firearm has become moot.

II

Although the defendant’s first claim is moot, we must nevertheless address the defendant’s claim that the court abused its discretion in revoking his probation and ordering him to serve the remainder of his original sentence. See State v. Preston, 286 Conn. 367, 381-82, 944 A.2d 276 (2008) (“when the defendant has raised a claim that the trial court abused its discretion in rendering its judgment during the dispositional phase, practical relief is available even when there is no live controversy as to whether the defendant committed the underlying offense and, therefore, the claim is not moot”). We conclude that the court did not abuse its discretion.

The defendant argues that the court relied on his unsupported gun possession charge when it concluded that the beneficial aspects of his probation were no longer being served and revoked his probation. The defendant also argues that the court had evidence that he made efforts to further his education, secure employment and that, prior to the July 19, 2006 incident, his probation officer never had a reason to warn him of a violation of probation.

“If a violation [of probation] is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served.” (Internal quotation marks omitted.) State v. Ellis T., 92 Conn. App. 247, 250, 884 A.2d 437 (2005). “On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion. . . . In determining whether to revoke probation, the trial court shall consider the beneficial purposes of probation, namely rehabilitation of the offender and the protection of society. . . . The important interests in the probationer’s liberty and rehabilitation must be balanced, however, against the need to protect the public.” (Internal quotation marks omitted.) State v. Hedge, 89 Conn. App. 348, 351, 873 A.2d 254, cert. denied, 274 Conn. 917, 879 A.2d 894 (2005).

In this case, the court found the defendant to have violated his probation both by being in possession of a firearm and by failing to verify his compliance with the special conditions of his probation, which required him to spend thirty-five hours a week engaged in work, school or community service. In evaluating whether the rehabilitative and beneficial aspects of probation were being served, the court considered evidence of the defendant’s probation record, the underlying crime for which he was serving probation, the nature of the incident that led to the revocation of probation hearing and the defendant’s criminal history while on probation. The court concluded that the rehabilitative and the beneficial aspects of probation were not being met because (1) the defendant was found in possession of a firearm, (2) there was no verification that he satisfied the special conditions of his probation and (3) the court found credible the testimony of the defendant’s probation officer that the defendant was not committed to improving his life.

On the basis of the whole record, the court properly considered whether the beneficial aspects of probation were being seived and, therefore, did not abuse its discretion by revoking the defendant’s probation and reinstating the remainder of the defendant’s original sentence.

The appeal is dismissed as moot only as to the claim that there was insufficient evidence to establish that the defendant violated his probation by possessing a firearm. The judgment is affirmed in all other respects.

In this opinion HARPER, J., concurred.

BERDON, J.,

dissenting. On the basis of the majority’s recitation of the fact that the defendant, Corey Mapp, pleaded guilty to illegal possession of a weapon in a motor vehicle in violation of General Statutes § 29-38, for which he received a two year sentence of imprisonment, I would have joined the majority in affirming the judgment of the trial court.

It has been called to our attention, however, by a report of the staff attorney that a habeas action is pending on the defendant’s behalf. Because that habeas action, among other matters, challenges the validity of the defendant’s guilty plea with respect to the possession of the weapon, I address the issue with reservation.

Moreover, in this appeal, neither defense counsel nor the state’s attorney discussed this pending habeas appeal in their briefs or at their oral argument. Under these circumstances, I would order the parties to file supplemental briefs with respect to the effect of the pending habeas action.

Accordingly, I must respectfully dissent.

       General Statutes (Rev. to 2005) § 53a-32 provides in relevant part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. Any such warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court.
      . . . Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant’s probation or conditional discharge, shall be advised by the court that such defendant has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in such defendant’s own behalf.
      “(b) If such violation is established, the court may ... (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. Any such lesser sentence may include a term of imprisonment, all or a portion of which may be suspended entirely or after a period set by the court, followed by a period of probation with such conditions as the court may establish. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”
      We note that § 53a-32 was revised in 2008. See Public Acts 2008, No. 08-102, § 7. Those amendments, however, are not relevant to this appeal. Therefore, all references to § 53a-32 hereafter are to the 2005 revision.

       See Practice Book (2007) § 63-1 (b) and (c).

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Under Alford, “a criminal defendant is not required to admit Ms guilt . . . but consents to bemg punished as if he were guilty to avoid the risk of proceeding to trial. ... A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a gmlty plea nevertheless.” (Internal quotation marks omitted.) State v. Fowlkes, 283 Conn. 735, 736 n.1, 930 A.2d 644 (2007).

       To the extent that the defendant challenges the validity of his guilty plea, we decline to address his claim because the guilty plea cannot be challenged in this forum. State v. Sinyleton, supra, 274 Conn. 426.

       See State v. Quinones, 92 Conn. App. 389, 391, 885 A.2d 227 (2005) (violation of any one condition of probation would suffice to serve as basis for revoking defendant’s probation), cert. denied, 277 Conn. 904, 891 A.2d 4 (2006); see also State v. Payne, 88 Conn. App. 656, 660, 870 A.2d 1159, cert. denied, 274 Conn. 903, 876 A.2d 13 (2005).


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    MIECZYSLAW KARWOWSKI ET AL. v. ANDREW FARDY ET AL.
    (AC 30220)
    Flynn, C. J., and Harper and Mihalakos, Js.
    Argued October 26
    officially released December 22, 2009

      Donald J. O’Brien, for the appellant (named plaintiff).

      Gerald P. Dwyer, Jr., with whom was Christopher R. Perry, for the appellees (defendants).
   Opinion

FLYNN, C. J.

The plaintiff Mieczyslaw Karwowski appeals from the summary judgment rendered by the trial court in favor of the defendants Andrew Fardy and Travelers Indemnity Company (Travelers) in this malicious prosecution case. On appeal, the plaintiff claims that the court improperly granted the defendants’ motion for summary judgment, failing to view the evidence in the light most favorable to him as the nonmoving party and improperly ruling that there were no material facts in dispute. We affirm the judgment of the trial court.

Jadwiga Karwowski, the wife of the plaintiff, owned a building located at 73-75 Broad Street in New Britain. The building housed a bar, called the Copper Penny, and twelve rental apartments. On three separate dates in 1994, September 26, October 9 and October 20, fires broke out in the building in several different areas. Investigators from Travelers, the insurer of the building, and the authorities concluded that arson was the cause of the fires on all three dates; this conclusion is not contested by the plaintiff. Fardy, one of the investigators from Travelers, worked closely with the New Britain police department and the arson unit of the state police in investigating these fires. Pursuant to General Statutes § 38a-318, on November 10, 1994, the office of the fire marshal of New Britain (fire marshal) sent a letter to Fardy requesting all records from Travelers related to the fires. Travelers sent approximately 10,000 pages to the fire marshal in response to the letter. Among the reports subsequently turned over to the authorities was an unsigned and undated document known as the “motive document,” which had been prepared for Travelers by an outside attorney working on Travelers’ behalf and which detailed possible motives that the plaintiff might have had for starting the fires. This document likely was prepared approximately ten months after the fires. The New Britain police department prepared a forty-four page arrest warrant application for the plaintiffs arrest, in part using information contained in the motive document. After reviewing the warrant application, a judge of the Superior Court found probable cause to arrest the plaintiff on charges of arson in the first degree and issued a warrant for his arrest, which was successfully executed in December, 1995.

Travelers then brought a civil case against the plaintiff and Jadwiga Karwowski, alleging in relevant part that the plaintiff tortiously had interfered with the insurance contract issued by Travelers by intentionally causing the building fires. The jury found in favor of Travelers as against the plaintiff and awarded Travelers $133,847.94. The jury, however, also found that Jadwiga Karwowski had not been involved in the fires, which meant that Travelers was required to pay her insurance claim. Travelers appealed from that judgment, but, during the appeal process, it reached a settlement with the Kaxwowskis, agreeing to pay to Jadwiga Karwowski $500,000 and agreeing to the opening and vacating of the judgment against the plaintiff. On March 8, 2000, the court approved the settlement, and Travelers withdrew the action against the plaintiff, and the judgment against the plaintiff was vacated.

Shortly thereafter, on August 16, 2000, the criminal charges against the plaintiff were nolled and ultimately dismissed. On July 18, 2003, the plaintiff filed the present action against the defendants, alleging malicious prosecution, and the defendants set forth several special defenses, including a defense that their communications with the authorities were privileged. On July 25, 2008, the court granted the defendants’ motion for summary judgment, concluding that the plaintiff had offered no evidence of malice or lack of probable cause and that the defendants’ special defense of privilege was applicable pursuant to § 38a-318 (c). The plaintiff now appeals from the summary judgment rendered by the court. Additional facts will be set forth as necessary.

Initially, we set forth our standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Zulick v. Patrons Mutual Ins. Co., 287 Conn. 367, 372, 949 A.2d 1084 (2008).

“[A] party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [T]ypically, [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred. . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief. . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.” (Internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 111 Conn. App. 588, 594, 960 A.2d 1071 (2008).

When reviewing the trial court’s decision to grant a motion for summary judgment, “we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Zulick v. Patrons Mutual Ins. Co., supra, 287 Conn. 372.

On appeal, the plaintiff claims that the court acted improperly in granting the defendants’ motion for summary judgment when it failed to view the evidence in the light most favorable to the nonmoving party and incorrectly found that there were no material facts in dispute. He argues that one particular document, the motive document, which was turned over to the authorities by Travelers, contained “omissions and inaccura-c[ies],” which the defendants knew would be used by the police to secure the arrest of the plaintiff. Specifically, the plaintiff argues that “at the time of the . . . attomey[’s] writing of the [m]otive [d]ocument, the defendants were aware that the document would be used to establish motive for the arrest of the Kar-wowskis for arson . . . .” The plaintiff contends that the turning over of this document to the authorities demonstrated malice on the part of the defendants and that malice negates any protection afforded under § 38a-318 (c). We are not persuaded by the plaintiffs arguments.

We begin our analysis by setting forth the legal principles regarding the tort of malicious prosecution. “The interest in freedom from unjustifiable litigation is protected by actions for malicious prosecution and abuse of process. ... In malicious prosecution cases . . . the emphasis is upon the misuse of criminal . . . action as a means for causing harm. . . . The law supports the use of litigation as a social means for resolving disputes, and it encourages honest citizens to bring criminals to justice. Consequently the accuser must be given a large degree of freedom to make mistakes and misjudgments without being subject to liability. On the other hand, no one should be permitted to subject a fellow citizen to prosecution for an improper purpose and without an honest belief that the accused may be found guilty. . . . Indeed, our Supreme Court expressly has recognized that the law governing malicious prosecution seeks to accommodate two competing and ultimately irreconcilable interests. It acknowledges that a person wrongly charged with criminal conduct has an important stake in his bodily freedom and his reputation, but that the community as a whole has an even more important stake in encouraging private citizens to assist public officers in the enforcement of the criminal law.” (Citation omitted; internal quotation marks omitted.) Giannamore v. Shevchuk, 108 Conn. App. 303, 309-10, 947 A.2d 1012 (2008).

To establish the tort of malicious prosecution, a plaintiff must prove: “(1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff; (2) the criminal proceedings have terminated in favor of the plaintiff; (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice.” (Internal quotation marks omitted.) Id., 310. If aplaintiff is unable to prove any element, his claim, necessarily, fails.

In this case, the court found that the plaintiff had failed to rebut the defendants’ proof, submitted with their motion for summaiy judgment, that they had not acted without probable cause and that they had not acted with malice in turning over the motive document to the authorities. The court further found that because there was no evidence on which a fact finder rationally could find that the defendants had acted with malice, the protection afforded pursuant to § 38a-318 was applicable to provide them immunity from the plaintiffs claim of malicious prosecution. The plaintiff challenges each of these conclusions on appeal, focusing primarily on the malice element, likely because it would remove the immunity protections of § 38a-318 (c) afforded to insurance companies.

The defendants argue that the court properly concluded that the plaintiff had not rebutted their proof that the four elements of the malicious prosecution claim could not be proven by the plaintiff. They further argue that summary judgment especially was appropriate in this case because they were required by operation of law to turn over the motive document to the authorities and, therefore, are immune from a claim of malicious prosecution absent some proof of maliciousness or fraud, of which there is none. See General Statutes § 38a-318 (c). They also point out that the plaintiff does not contend that the allegations in the motive documents are false but, merely, that he believes the document is incomplete or misleading. We agree with the defendants.

Because § 38a-318 (c) provides immunity to an insurer that turns over information in response to a letter issued by the authorities except when there is fraud or malice on the part of the insurer, and malice also is one element of the malicious prosecution cause of action, we will focus our analysis on whether the plaintiff demonstrated the existence of an issue of disputed material fact by rebutting the defendants’ proof that they had no malicious intent in turning over the motive document to the authorities but, merely, were complying with the law. See Gianetti v. Health Net of Connecticut, Inc., 116 Conn. App. 459, 469, 976 A.2d 23 (2009) (in opposing motion for summary judgment, plaintiff must present concrete evidence demonstrating existence of disputed material fact, absence of responsive evidentiary facts or substantial evidence outside of pleadings to rebut defendant’s proof is fatal to plaintiff).

Section 38a-318 (b) requires an insurance company that suspects that a fire was caused by incendiary means to turn over “all relevant material acquired during its investigation of the fire loss . . . .” Section 38a-318 (a) permits any authorized agency to request in writing that an insurance company turn over “information relative to any investigation [the insurance company] has made concerning a loss or potential loss due to fire of suspicious or incendiary origin . . . .” Section 38a-318 (c) provides that the insurance company or a person acting on its behalf, shall not “be hable for damages in a civil action . . . for any oral or written statement made or any other action taken that is necessary to supply information requested pursuant to this section, unless there is fraud, actual malice or conduct relating to the release of such information which constitutes a criminal act.”

In this case, there is no dispute that the fires at issue were suspicious in nature and intentionally set. Accordingly, pursuant to § 38a-318 (b), the defendants were required to turn over all relevant material acquired during their investigation. Additionally, the fire marshal sent a letter requesting the release of all relevant information from the defendants pursuant to § 38a-318 (a). Clearly, the defendants had a statutory duty to turn over all relevant documents related to these fires. The record reveals that they turned over approximately 10,000 pages of material.

Although the plaintiff contends that the motive document should not have been turned over because it did not exist at the time the fire marshal requested the documents, but may have been created approximately ten months later, we can discern nothing in the statute that would limit the required disclosure to documents created within a certain time period or to those documents in existence only at the time the request was made. Furthermore, we think such a limitation would be incongruous in light of the purpose of the statute, which is to require insurance companies to share with the authorities all relevant information connected to suspicious fires. Furthermore, to remove the protections of the statute from the defendants, the plaintiff would need to provide something more than a bare allegation that the release of the motive document was malicious.

The defendants hired an outside attorney to provide advice on the insurance claim filed by Jadwiga Karwow-ski and to help them prepare for a trial related to the insurance coverage. In response, that attorney prepared a document, the motive document, as “a summation of [his] investigation with regard to motive [for setting the fires].” This document was presented to the defendants, who, in turn, forwarded it to the authorities as part of the required § 38a-318 disclosure. The plaintiff makes no claim that the document contained false information; rather, he complains that the document is incomplete and that he does not agree with the economic analysis and conclusions reached by the investigating attorney. Further, he complains that the police used much of this document in their warrant application and that this document provided the only information on motive in the arrest warrant application. However, the defendants cannot be held responsible for the manner in which the police drafted the warrant application for the plaintiffs arrest. There is no evidence that the defendants drafted the application or that they somehow directed the police investigation or stopped the police from developing their own theories as to motive. Here, the defendants were required, pursuant to § 38a-318 (a) to turn over “information relative to any investigation it has made concerning a loss . . . due to fire of a suspicious or incendiary origin”; and, pursuant to § 38a-318 (b) of that statute, to turn over “all relevant material acquired during its investigation of the fire loss . . . .” We conclude that the motive document, which undeniably was a document developed as “a summation of [an attorney’s] investigation with regard to motive,” reasonably was included by the defendants as part of the necessary disclosure under § 38a-318. The record reveals nothing that could be considered malicious in the disclosure of this document. Accordingly, the protections afforded a complying insurance company under § 38a-318 (c) apply in this case to bar the plaintiffs claim of malicious prosecution.

The judgment is affirmed.

In this opinion the other judges concurred.

       Jadwiga Karwowski also was a plaintiff before the trial court. Before the entry of judgment, however, she withdrew her claims, leaving Mieczyslaw Karwowski as the sole plaintiff. We therefore refer to Mieczyslaw Karwowski as the plaintiff in this opinion.

       General Statutes § 38a-318 provides: “(a) Any authorized agency may in writing request any insurance company to release information relative to any investigation it has made concerning a loss or potential loss due to fire of suspicious or incendiary origin which shall include but not be limited to: (1) An insurance policy relative to such loss, (2) policy premium records, (3) history of previous claims, and (4) other relevant material relating to such loss or potential loss.
      “(b) If any insurance company has reason to suspect that a fire loss to its insured’s real or personal property was caused by incendiary means, the company shall furnish any authorized agency with all relevant material acquired during its investigation of the fire loss, cooperate with and take such action as may be requested of it by the authorized agency and permit any person ordered by a court to inspect any of its records pertaining to the policy and the loss. Such insurance company may request any authorized agency to release information relative to any investigation it has made concerning any such fire loss of suspicious or incendiary origin.
      “(c) No insurance company, authorized agency or person who furnished information on behalf of such company or agency, shall be liable for damages in a civil action or subject to criminal prosecution for any oral or written statement made or any other action taken that is necessary to supply information requested pursuant to this section, unless there is fraud, actual malice or conduct relating to the release of such information which constitutes a criminal act.
      “(d) Except as provided in subsection (h) of this section, any authorized agency receiving any information furnished pursuant to this section shall hold the information in confidence until such time as its release is required pursuant to a criminal or civil proceeding.
      “(e) Any authorized agency personnel may be required to testily as to any information in the agency’s possession regarding the fire loss of real or personal property in any civil action in which any person seeks recovery under a policy against an insurance company for the fire loss.
      “(f) For the purposes of this section, ‘authorized agency’ means: (1) The State Fire Marshal or the local fire marshal when authorized or charged with the investigation of fires at the place where the fire actually took place; and (2) the Insurance Commissioner.
      “(g) For the purposes of this section, ‘insurance company’ shall include organizations issuing insurance policies in this state pursuant to the provisions of section 38a-328.
      “(h) Any authorized agency provided with information pursuant to subsec-

        tion (a) or (b) of this section, may, in furtherance of its own purposes, release any information in its possession to any other authorized agency.
      “(i) The provisions of this section shall apply to fire losses occurring on or after October 1, 1979.”
      In 2004, subsection (f) was amended. That change is not relevant to the present appeal. For simplicity, all references to § 38a-318 are to the current revision.

       The plaintiff does not allege that the defendants acted fraudulently.

       The document was not dated.


author: PETERS, J.

text:
    WILLIAM MASSEY ET AL. v. TOWN OF BRANFORD ET AL.
    (AC 28593)
    DiPentima, Lavine and Peters, Js.

      Argued September 22
    officially released December 22, 2009

      Dawn Massey, pro se, and William Massey, pro se, the appellants (plaintiffs).

      William H. Clendenen, Jr., with whom were Irving H. Perlmutter and Maura Mastrony, and, on the brief, Kevin C. Shea, for the appellees (named defendant et al.).

       This case was originally decided on June 16, 2009, by a different panel of this court. See Massey v. Branford, 115 Conn. App. 153, 971 A.2d 838 (2009). Thereafter, on July 2, 2009, this court granted the plaintiffs’ motion for reconsideration and vacated that decision. Accordingly, this opinion supersedes the prior decision in all respects.

   Opinion

PETERS, J.

“A trial court has the inherent power to enforce summarily a settlement agreement as a matter of law when the terms of the agreement are clear and unambiguous. ” Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 811, 626 A.2d 729 (1993). The principal issue in this appeal is whether a settlement agreement is summarily enforceable if, although clear and unambiguous on its face, it was allegedly incomplete because it did not provide for the exchange of mutual releases. Because we agree with the trial court’s enforcement of the settlement agreement and disagree with the plaintiffs’ remaining claims, we affirm the judgment in favor of the defendants.

On May 13, 2004, the plaintiffs, William Massey and Dawn Massey, filed a three count complaint against the defendants, the town of Branford, and two town officials, Barbara Neal and Michael Milici, to challenge, on statutory and constitutional grounds, the tax assessment of their real property at 225 Stony Creek Road in Branford. The case was transferred to the complex litigation docket, first in New Haven and then in Waterbury.

On July 3, 2006, after extensive discoveiy and on the eve of trial, which was scheduled for July 10, 2006, the parties drew up a handwritten document entitled “settlement.” On July 5, 2006, the plaintiffs notified the court of the agreement. Subsequently, on July 14, 2006, the defendants moved the court to enforce the agreement. After a hearing held on July 31, 2006, the court granted the defendants’ motion.

On January 10, 2007, and again on January 22, 2007, the plaintiffs moved to disqualify the trial court, alleging judicial bias in the court’s management decisions and in its rulings that were adverse to the plaintiffs. The court denied those motions. Thereafter, it rendered a judgment in favor of the defendants in accordance with the settlement.

The plaintiffs have appealed, challenging the court’s granting of the defendants’ motion to enforce the settlement agreement and its denial of their motion to rear-gue, motion to open and to set aside the judgment, motion for disqualification of the trial court and claim for a trial by jury. We affirm the judgment of the court.

I

The trial court’s memorandum of decision granting the defendants’ motion to enforce the settlement agreement states the following undisputed findings of fact. “The trial of this case was set for July 10, 2006. Pursuant to a trial management order the parties were set to meet to go over exhibits. Such a meeting was set for July 3, 2006. At that meeting, Dawn Massey, [defendants’] attorney Shelly Marcus and [defendants’] attorney Daniel C. DeMarchant . . . met and entered into a written agreement. As a part of the process in arriving at the agreement, Dawn Massey conferred with her husband, William Massey, and gained his approval for the settlement agreement terms, as long as it ended all of the litigation. The defendants’ counsel had gained authority for the terms of the settlement agreement from conferences prior to the meeting with the towm assessor, Barbara Neal, and during the meeting with the town’s first selectman. The settlement agreement was initialed by page and signed after it was read aloud at the July 3, 2006 meeting.

“On July 5, 2006, the plaintiffs, in a written pleading entitled ‘Updated Case Status Report’ notified the court that the parties had come to a settlement agreement. The pleading detailed the specifics of the agreement as it was stated in the written document signed by the parties. The report went on to [state] that the parties were dealing -with ‘paperwork necessary to formalize their settlement agreement.’ Ironically, the plaintiffs in their report sought the court to ‘retain jurisdiction over this matter until the defendants have fully complied with all terms set forth in the settlement agreement.’

“The parties proceeded to work on and [to] prepare releases to be signed by both sides, though the provision of releases was not a part of the written settlement agreement. The parties hit a roadblock when the plaintiffs sought a release from Trista Clyne, a nonparty witness, and she declined to provide one. The plaintiffs have an apprehension that, without that release, they are exposed to the possibility . . . Clyne could initiate a lawsuit against them for a perceived civil wrong emanating from oral or written statements made by the plaintiffs in the course of this litigation. The defendants take the position that this release is not necessary to the completion of the settlement agreement.”

The court granted the defendants’ motion to enforce the settlement agreement. It rejected the plaintiffs’ claim that the agreement was incomplete because it failed to include a provision for releases and did not contain a merger clause. Acknowledging that the key consideration in determining whether to enforce a settlement agreement is the intention of the parties, the court found each provision of the agreement, and the agreement as a whole, to be clear and unambiguous. It relied on the fact that the written agreement specifically addressed the valuation of the property, the changes to be made to the plaintiffs’ field card and the defendants’ undertaking to pay the plaintiffs’ costs and to repay tax overpayments plus interest at a specified rate.

Addressing the plaintiffs’ claim with respect to releases, the court concluded that the agreement was not rendered ambiguous or incomplete by its failure to include language mandating releases between the parties. The court further noted that, even if the agreement had contemplated releases, it could not in any case have bound Clyne to its terms because Clyne was not a party to the litigation. The court thus concluded that the fact that “the parties attempted later, after the execution of the agreement, to accommodate each [other] in the execution and exchange of releases does not mean they were an integral part of the agreement. They are settlement documents that are typically incidental between parties once a settlement is reached.”

The plaintiffs’ principal argument on appeal renews their claim that, without a provision for releases, the settlement agreement was unenforceable because it was incomplete. Secondarily, the plaintiffs argue that the agreement was unenforceable because it did not include a merger clause.

“[A] trial court may summarily enforce a settlement agreement within the framework of the original lawsuit as a matter of law when the parties do not dispute the terms of the agreement.” Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn. 812. As such, the court’s decision is subject to plenary review on appeal.

A

“Contract language is unambiguous when it has a definite and precise meaning . . . concerning which there is no reasonable basis for a difference of opinion .... The proper inquiry focuses on whether the agreement on its face is reasonably susceptible of more than one interpretation. ... It must be noted, however, that the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous. ... 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.” (Citations omitted; internal quotation marks omitted.) Isham v. Isham, 292 Conn. 170, 181-82, 972 A.2d 228 (2009). “[W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . The court’s determination as to whether a contract is ambiguous is a question of law; our standard of review, therefore, is de novo.” (Internal quotation marks omitted.) Amica Mutual Ins. Co. v. Welch Enterprises, Inc., 114 Conn. App. 290, 294, 970 A.2d 730 (2009).

On its face, the settlement agreement at issue here provides no support for the plaintiffs’ contention that it was ambiguous because it was incomplete. The plaintiffs do not contend that any of the wording in the agreement is latently ambiguous. See Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 782, 653 A.2d 122 (1995) (“[l]atent ambiguity arises from extraneous or collateral facts which make the meaning of a written instrument uncertain although the language thereof be clear and unambiguous” [internal quotation marks omitted]). Furthermore, the plaintiffs do not assert that, antecedent to the parties’ execution of the settlement agreement, the parties orally had agreed to the exchange of signed releases. Cf. O’Keefe v. Bassett, 132 Conn. 659, 662, 46 A.2d 847 (1946) (“an incomplete memorandum of the oral agreement previously made . . . would not preclude proof of that agreement”).

The plaintiffs nonetheless maintain that the settlement agreement was not an enforceable contract because the parties did not have an “identical understanding” of the terms of the contract. They cite Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58 (1974), in which the issue was whether the trial court therein properly had found a contractual obligation to have been conditional on the timely payment of a stipulated deposit. Affirming the judgment that there was no binding contract, our Supreme Court held: “A contract is not made so long as, in the contemplation of the parties, something remains to be done to establish the contractual relation. The law does not . . . regard an arrangement as completed which the parties regard as incomplete. ... In construing the agreement . . . the decisive question is the intent of the parties as expressed. . . . The intention is to be determined from the language used, the circumstances, the motives of the parties and the purposes which they sought to accomplish.” (Citations omitted.) Id. The decision of the trial court in this case, however, contrary to that of the court in Klein, was that “the intent of the parties as expressed” was to enter into a binding settlement. Klein, therefore, does not advance the plaintiffs’ case.

The plaintiffs also argue that, under Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, supra, 225 Conn. 804, and Kostak v. Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV-86-0043374-S (June 26, 2006), the fact that the parties dispute the terms of the agreement renders the agreement ambiguous and unenforceable. In Kostak, after the parties had entered into a written settlement agreement containing specific terms, the plaintiff requested enforcement of an additional term outside of the agreement, which the defendants disputed. Without discussing the written terms of the agreement, the court declined to enforce this disputed additional term. That holding does not shed light on the propriety of the plaintiffs’ claim in the present case that the written agreement to which they subscribed became nugatory because of a clause that it did not contain. Indeed, the plaintiffs’ position is similar to that of the plaintiff in Kostak, who could not prevail in his attempt to enforce a term extraneous to the written agreement.

On the contrary, we agree with the court and the defendants that the plaintiffs’ proposed reading of the settlement agreement is inconsistent with its terms. Clyne was never a party to the litigation, and the plaintiffs do not contend that the parties ever contemplated making Clyne a party to the settlement negotiations. As a nonparty, Clyne was not bound by the terms of the settlement. It follows, as the court held, that, even if the settlement agreement had contemplated releases, it could not in any case have bound Clyne, a nonparty, to its terms.

B

The plaintiffs’ alternate contention that the settlement agreement was incomplete because it failed to contain a merger clause betrays a misunderstanding of the role that such a clause plays in the interpretation of contracts. A contract that contains such a clause manifests the parties’ intent to prohibit a court from considering extrinsic evidence to determine whether a contract is a full integration of the parties’ intention. Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 503-504, 746 A.2d 1277 (2000). The plaintiffs have cited no authority, and we know of none, that holds that the absence of a merger clause is evidence that a contract is incomplete or ambiguous. Indeed, in the present case, the court permitted the plaintiffs to present extrinsic evidence in support of their interpretation of the settlement agreement. After giving plenary consideration to the plaintiffs’ claims, the court had the authority to determine that the July 3,2006 written agreement manifested the intent of the parties to end the litigation and, therefore, to render judgment in accordance with the agreement.

C

Finally, the plaintiffs argue that because the defendants drafted the agreement, any dispute over its terms should be construed against them. The plaintiffs are correct that, if a contract’s terms are ambiguous, such contractual ambiguity is resolved against the drafter. See, e.g., Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 13-14, 938 A.2d 576 (2008) (“Where the language is unambiguous, we must give the contract effect according to its terms. . . . Where the language is ambiguous, however, we must construe those ambiguities against the drafter.” [Internal quotation marks omitted.]). The essential predicate for the applicability of this principle is the existence of an ambiguity in the contract. The plaintiffs have not, however, identified any ambiguity in the actual terms of the settlement agreement to which they agreed. As we already have discussed, we are not persuaded by their contention that the absence of provisions for releases is the functional equivalent of an ambiguity in the text itself.

In sum, for all the reasons detailed herein, we conclude that the court properly enforced the settlement agreement according to its terms. On its face, the agreement was unambiguous and complete. It was not made ambiguous by the absence of a provision for releases or by the absence of a merger clause.

II

The plaintiffs second argument for reversal challenges the court’s decisions not to disqualify itself, despite what they maintain was manifest perceived and actual bias throughout the course of the litigation. The standard of review for our consideration of a court’s decision not to disqualify itself is abuse of discretion. State v. Tunick, 109 Conn. App. 611, 613, 952 A.2d 103, cert. granted on other grounds, 289 Conn. 943, 959 A.2d 1011 (2008). We are unpersuaded by the plaintiffs’ claims of abuse of discretion.

A

On January 10, 2007, the plaintiffs filed their first motion for disqualification of judicial authority, arguing that several procedural irregularities showed that the court manifested actual bias against them. In that motion, the plaintiffs primarily addressed intermediate case management decisions and record-keeping concerns that, in their view, were evidence of judicial bias. After oral arguments on the motion, the court denied the motion, stating: “The court does not believe, I do not believe that I have intentionally created any harm. I don’t believe, unintentionally, I have created harm in the big picture. I know reasonable minds will disagree on the enforcement of the settlement agreement. That is what the appeal is for.” Responding to the plaintiffs’ procedural concerns, the court acknowledged difficulties with respect to record keeping and stated that a new case flow coordinator would be hired to assist the complex litigation docket in this respect. The court also observed that she played no direct role in the record keeping and filing of pleadings. The court further acknowledged that a trial management order may have “created ... [a] time line problem” for the plaintiffs but explained the necessity for such orders on the eve of trial.

On January 22, 2007, the plaintiffs filed a second motion for disqualification of judicial authority, alleging additional procedural irregularities and accusing the court of showing bias in favor of the defendants in ruling in their favor on several occasions. On January 30, 2007, the court denied the second motion, stating:

“This court, the undersigned, harbors no prejudice or bias against the plaintiff and rejects those claims stated herein. The court has endeavored to conscientiously provide all parties in this case unbiased and fair hearing, and then to rule consistent with the law and facts found.”

This second motion for disqualification focused on the substance of an adverse ruling made at the January 10, 2007 hearing. The plaintiffs argued that the court improperly had denied them the opportunity to present expert evidence on the record concerning the valuation of their real property.

“[A]dverse rulings do not themselves constitute evidence of bias. . . . Obviously, if a ruling against a party could be used as an indicia of bias, at least half of the time, every court would be guilty of being biased against one of two parties. Moreover, the fact that a trial court rules adversely to a litigant, even if some of these rulings were determined on appeal to have been erroneous, [still] does not demonstrate personal bias.” (Citation omitted; internal quotation marks omitted.) Peatie v. Wal-Mart Stores, Inc., 112 Conn. App. 8, 26, 961 A.2d 1016 (2009).

In both motions, the plaintiffs relied on procedural and case management decisions and attempted to rear-gue the merits of an adverse ruling as support for their theory that the court is biased. The fact that the plaintiffs disagree with the substance of these decisions does not make the decisions evidence of bias. Indeed, the court showed the utmost tolerance and respect for the plaintiffs at the January 10, 2007 hearing and fully addressed the allegations of bias made by them concerning record keeping and case management. We conclude, therefore, that the court did not abuse its discretion in denying the plaintiffs’ motions for disqualification.

B

In their appeal, the plaintiffs for the first time allege that the court should have disqualified itself in light of the court’s disclosure, on September 29, 2005, that two members of the judge’s family had, in the past, been involved with litigation against an entity represented by one of the law firms that represented the defendants in the present case. Several additional procedural and case management issues that allegedly are probative of judicial improprieties also are raised for the first time on appeal.

“We [do] not ordinarily review on appeal a claim that a trial judge should have disqualified [herself] . . . when no such request was made during the trial. . . . Even where a proper ground for disqualification exists, it must be asserted seasonably or it will be deemed to have been waived.” (Citation omitted.) Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). Because, however, an accusation of judicial bias “implicates basic concepts of fair trial,” we have sometimes “[invoked] our authority in the interests of justice to review ‘plain error’ not properly preserved in the trial court.” Id. Yet, “[t]his court often has noted that it is not appropriate to engage in a level of review that is not requested. . . . When the parties have neither briefed nor argued plain error ... we will not afford such review.” (Internal quotation marks omitted.) State v. Marsala, 93 Conn. App. 582, 590, 889 A.2d 943, cert. denied, 278 Conn. 902, 986 A.2d 105 (2006).

The plaintiffs only inferentially have requested plain error review, by citing Cameron in their reply brief and mentioning “Golding or plain error review” at oral argument. Even if these references may be construed as a request for plain error review, the plaintiffs’ briefs and arguments do not provide an adequate basis for us to review their claim. See Knapp v. Knapp, 270 Conn. 815, 823 n.8, 856 A.2d 358 (2004) (“We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” [Internal quotation marks omitted.]).

Ill

The plaintiffs next challenge the court’s granting of the defendants’ motion to strike their jury claim. The plaintiffs argue that their claim under General Statutes § 12-121f raises questions of fact properly determined by a jury. They further argue that actions to invalidate a grand list were available at common law and were historically tried by juries, citing Thames Mfg. Co. v. Lathrop, 7 Conn. 550 (1829).

General Statutes § 52-215 provides in relevant part that “civil actions involving such an issue of fact as, prior to January 1, 1880, would not present a question properly cognizable in equity” may be tried as jury cases at the request of either party. In the present case, however, there are no facts to be tried by a jury. The plaintiffs’ underlying tax claims were settled, the settlement agreement was enforced by the court and we now uphold that decision. Even if we agreed with the plaintiffs that they would have been entitled to a trial by jury on their § 12-12 If claim, we can afford them no practical relief. See, e.g., State v. McElveen, 117 Conn. App. 486, 489-90, 979 A.2d 604 (2009) (“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” [internal quotation marks omitted]).

IV

The plaintiffs finally challenge the court’s denial of their motions to reargue and to open and to set aside the judgment. “At the outset, we note that in reviewing a court’s ruling on a motion to open, reargue, vacate or reconsider, we ask only whether the court acted unreasonably or in clear abuse of its discretion. . . . When reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness.” (Citations omitted; internal quotation marks omitted.) Valentine v. LaBow, 95 Conn. App. 436, 451, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).

On November 6, 2006, the plaintiffs filed a motion to reargue, which the court denied on November 28, 2006. At trial, the plaintiffs had argued in their motion that the court improperly had failed to consider several cases submitted with their posttrial brief, and, on appeal, they claim that the motion to reargue was denied improperly because the court had prejudged the motion to enforce the settlement agreement. Even if the plaintiffs are correct in their assertion that the court decided the motion to enforce the settlement agreement prior to its receipt of their posttrial brief, they cite no authority for the conclusion that denying the subsequently filed motion to reargue was an abuse of the court’s discretion. Because we concur in the court’s enforcement of the settlement agreement, we find no impropriety in the court’s denial of the motion to reargue. See id., 452-53.

On February 5, 2007, the plaintiffs filed a motion to open and to set aside the judgment, which the court summarily denied on February 7, 2007. The plaintiffs argued that the defendants and their counsel peipe-trated a fraud on the court, and that the plaintiffs’ due process rights had been violated. On appeal, the plaintiffs have failed to brief this issue adequately, and we, therefore, decline to address it. Similarly, the plaintiffs have failed to brief their claims that the court improperly abstained from ruling on their motion to reargue and for reconsideration and their preappeal motions. Knapp v. Knapp, supra, 270 Conn. 823 n.8.

In sum, in light of the unconditional settlement agreement between the parties, the plaintiffs are barred from further pursuit of their tax claims against the defendants in any forum. Furthermore, their disagreement with the court’s management of this litigation does not establish their claim of judicial bias on the part of the court.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs also claim, in their appellate brief, that the settlement agreement was obtained fraudulently. Because they fail to brief this issue and provide no analysis in its support, we decline to review it. Knapp v. Knapp, 270 Conn. 815, 823 n.8, 856 A.2d 358 (2004).

       For a case illustrating an unresolved dispute about the terms of the settlement agreement see Amica Mutual Ins. Co.v. Welch Enterprises, Inc., supra, 114 Conn. App. 290.

       We cannot address the merits of this claim, because that issue is not before us in the present appeal.

       We note that, in response to the plaintiffs appellate motion for rectification, the trial court addressed the concerns about the involvement of her family with the defendants’ counsel. The fact that the court addressed these issues following the plaintiffs’ appeal does not cure the failure to raise these issues at trial.

       See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).


author: GRUENDEL, J.

text:
    KENNETH R. JAY v. A & A VENTURES, LLC
    (AC 30461)
    DiPentima, Gruendel and Alvord, Js.

      Argued October 20
    officially released December 22, 2009

      Richard D. Carella, with whom was John H. Hagel, Jr., for the appellant (defendant).

      William Howard, with whom was David J. Tycz, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendant, A & A Ventures, LLC, appeals from the judgment, rendered after a court trial, in favor of the plaintiff, Kenneth R. Jay. The defendant challenges as clearly erroneous the trial court’s findings that (1) an agreement to refund certain escrowed moneys existed between the parties, (2) the defendant was unjustly enriched at the plaintiffs expense and (3) the defendant was unjustly enriched in the amount of $38,400. We affirm the judgment of the trial court.

In its memorandum of decision, the court found the following facts. The plaintiff “[brought] this action to recover an amount of money which he claims that the defendant ... is holding in escrow to apply to the purchase of real estate known as 15-R Haddam Quarter Road in Durham [property]. The court has reviewed the testimony presented during the trial, assessed the credibility of the witnesses and has reviewed the documentary evidence. From the testimonial evidence and the exhibits, the court finds the facts which are hereinafter articulated.

“[The plaintiff] and Randy Whitehouse each own a landscaping business. In August, 1998, they met with Charles Arrigoni, the managing member of [the defendant], and his brother, Thomas [Arrigoni], and discussed the rental of [the property], for their landscaping businesses. The [property] is owned by the defendant and consists of a large yard, two cold storage bays, with access to a small office area, and a bathroom. [The plaintiff] entered into an oral agreement [agreement] with [the defendant] to rent the [property] for their landscaping businesses for a period of five years, starting January 1,1999, and ending on December 31, 2004. [The plaintiff] then installed a wood stove in the storage bays. In addition, Charles Arrigoni agreed that [the plaintiff] would have an option to purchase the property for $208,000. The agreement was memorialized in part on the yellow sheet of legal sized paper [which was introduced into evidence as the plaintiffs exhibit one], prepared by Charles Arrigoni. The plaintiff and the defendant further agreed verbally that a portion of each monthly rental payment would be held in escrow, for application to the purchase price, [as evidenced in line sixteen of the plaintiffs exhibit two], which shows the escrow amounts . . . provided that the escrow amount would be returned to him if the purchase were not consummated.”

The plaintiffs complaint alleged causes of action for breach of contract, conversion and unjust enrichment. In its memorandum of decision, the court concluded that the plaintiffs breach of contract claim could not be maintained, concluding that the agreement memorialized on the yellow sheet of legal sized paper failed to satisfy the statute of frauds. We concur with that assessment.

The court then focused its attention on the plaintiffs unjust enrichment claim. The court noted that paragraph six of the plaintiffs complaint stated that “[t]he parties agreed that the defendant would hold all payments made in anticipation of the purchase of the property in escrow or trust until the [plaintiffs purchase of the property at the end of five (5) years’ occupancy.” Because the defendant admitted that paragraph in its answer, the court concluded that the defendant was bound by that judicial admission. On its review of the evidence presented and “considered in the context of judging the testimony of the witnesses,” the court found that “the plaintiff has established that [the defendant] unjustly is holding a benefit as a result of the oral agreement to set a portion of the monthly rent into an escrow account and to return it if the purchase of the [property] is not accomplished.” The court further found that the defendant was unjustly enriched in the amount of $38,400. The court rendered judgment accordingly, and this appeal followed.

I

The defendant concedes that an agreement existed between the parties regarding the lease of the property, which contained an option to purchase the property at the conclusion thereof. The defendant further is bound by its judicial admission that “[t]he parties agreed that the defendant would hold all payments made in anticipation of the purchase of the property in escrow or trust until the plaintiffs purchase of the property at the end of five (5) years’ occupancy.” On appeal, the defendant claims that the court err oneously found that an agreement to refund the escrowed moneys in the event that the plaintiff did not purchase the property existed between the parties. We disagree.

“The law governing [our] limited appellate review is clear. 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. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption ... in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 558-59, 893 A.2d 389 (2006).

The court had before it evidence that, in December, 1998, the parties reached an agreement regarding the lease of the property for a period of five years. The plaintiff testified that, at the December, 1998 meeting at Thomas Arrigoni’s residence on Brick Lane in Durham, Charles Arrigoni and Thomas Arrigoni presented a handwritten agreement prepared by Charles Arrigoni on a yellow sheet of legal sized paper that, inter alia, specified the monthly charge per year and stated that “at the end of five years [an] option to buy at $208,000, provided all rent has been paid promptly [and] in full.” That document was introduced into evidence. The plaintiff testified that the Arrigoni brothers explained that each monthly charge contained a rental and escrow component. As he stated:

“[The Plaintiff]: [W]hat I understood was, it started out the $3000 per month for year one would be $2500 for rent, $500 every month would go toward the down payment of the building, and the second year, each month $2500 would go to rent and that down payment would increase by $100 to $600 a month. The third year, $2500 a month would go for rent, and the payment would increase to $700 a month going toward the down payment. The fourth year, $2500 a month and $800 would go toward the down payment.

“The Court: Now, that’s written out on the [yellow sheet of legal sized] paper here?
“[The Plaintiff]: No, it’s not, Your Honor.
“The Court: Okay.
“[The Plaintiff]: But that’s the way it was explained to me how that would work and at the end of the fifth year, $2500 a month would be rent and $900 a month would be going toward the down payment, which should have calculated out the difference between the $250,000 [property value] and the $208,000 [purchase price] was the money that I had paid above and beyond the rent as ... a down payment toward the purchase of the property.”

In addition, the plaintiff introduced into evidence twenty cashed checks he had written that were payable to the defendant, which all noted “rent and escrow” in the lower left comer. The plaintiff also introduced into evidence a handwritten document prepared by Charles Arrigoni in 2003. That document detailed the plaintiffs monthly payments over a five year span from 1999 to 2003. At the end of each year’s entries, two numbers are listed. The first is the total payment figure. Directly underneath that figure lies a second, lesser figure representing the escrow amount attributed to the potential purchase of the property. In total, the document reflects that the plaintiff paid $188,400 over the five year period, of which $38,400 constituted escrow payments. At trial, Charles Arrigoni confirmed that those figures represented the total payments made by the plaintiff and the escrowed portions thereof. The plaintiff offered similar testimony on that point.

Thus, the court had before it competent evidence that the plaintiff made $38,400 in escrow payments over the course of the lease of the property. Although the defendant contends that there is no evidence in the record to support the court’s finding that it agreed to refund those escrowed funds in the event that the plaintiff did not purchase the property, the record belies that claim. At trial, the plaintiff was specifically asked how he arrived at the understanding that his escrow funds would be refunded if he elected not to purchase the property. He testified: “I asked [Charles Arrigoni and Thomas Arrigoni] point blank. I said, if I couldn’t buy this building, if I wasn’t financially able, or I didn’t want to buy this building for any number of reasons, would I get my money back, and they said yes . . . .” When asked what would have happened if the defendant had informed him that the escrowed funds were not refundable, the plaintiff replied that “[t]he deal would have been done. ... I would have walked out. . . . If I knew I could never get my money back, then I would have got up and looked for another place immediately.” In response to the court’s question as to whether it was Charles Arrigoni and Thomas Arrigoni “who said you would get your money back,” the plaintiff testified that he could not recall precisely which brother so stated. The court later inquired “regarding the statement made by one of the Amgonis that they would return your escrow . . . when was that made?” The plaintiff testified that the statement was made at the December, 1998 meeting at Thomas Arrigoni’s Brick Lane residence. That evidence supports the court’s finding that an agreement existed between the parties to refund the escrowed moneys in the event that the plaintiff did not purchase the property.

It is true that Charles Arrigoni offered conflicting testimony at trial. The court, as trier of fact and, hence, sole arbiter of credibility, was “free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) DiVito v. DiVito, 77 Conn. App. 124, 138, 822 A.2d 294, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003). Notably, the court emphasized in its memorandum of decision that its factual findings derived in part from its assessment of the credibility of the witnesses. The court similarly reached its ultimate determination that the defendant had been unjustly enriched by its refusal to return the escrow payments by considering the evidence before it “in the context of judging the testimony of the witnesses . . . .” Although the defendant offered conflicting testimony, the memorandum of decision plainly indicates that the court credited the plaintiffs testimony and rejected that of the defendant’s sole witness, Charles Arrigoni. Such is the exclusive prerogative of the trier of fact, with which this court will not interfere on appeal. See Ravetto v. Triton Thalassic Technologies, Inc., 285 Conn. 716, 728, 941 A.2d 309 (2008) (appellate court must defer to trier of fact’s assessment of credibility); Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58 (1974) (“trier is privileged to adopt whatever testimony it reasonably believes to be credible”); Talton v. Warden, 33 Conn. App. 171, 179, 634 A.2d 912 (1993) (“[w]e cannot . . . pass on the credibility of a witness”), aff'd, 231 Conn. 274, 648 A.2d 876 (1994). Because there is supporting evidence in the record, we conclude that the finding that an agreement existed to refund the escrowed moneys in the event that the plaintiff did not purchase the property was not clearly erroneous.

II

The defendant next claims that the court erroneously found that it was unjustly enriched at the plaintiffs expense. That argument is unavailing.

Certain well established principles guide our analysis of the defendant’s claim. “[Wjherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract, restitution of the value of what has been given must be allowed. . . . Under such circumstances, the basis of the plaintiffs recovery is the unjust enrichment of the defendant. ... A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessary in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Citations omitted; internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 451-52, 970 A.2d 592 (2009).

“[E]quitable remedies are not bound by formula but are molded to the needs of justice.” Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 54, 492 A.2d 223 (1985). Our Supreme Court has described unjust enrichment as a very broad and flexible equitable doctrine. Gagne v. Vaccaro, 255 Conn. 390, 409, 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). That doctrine is “based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated. . . . The question is: Did [the party liable], to the detriment of someone else, obtain something of value to which [the party hable] was not entitled?” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 452. Review of atrial court’s resolution of that question “is deferential. The court’s determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings . . . that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) Id. With those principles in mind, we turn to the defendant’s claim.

The defendant maintains that the court erroneously found that it had been unjustly enriched by the retention of the escrow payments made by the plaintiff. That claim is predicated entirely on the defendant’s allegation that the record contains no evidence that an agreement to refund the escrowed moneys in the event that the plaintiff did not purchase the property existed between the parties. We already have rejected that contention in part I. The defendant also argues that “the parties’ own testimony was that they treated all of the payments as rent and never treated any of the money as being held in escrow.” That statement confounds the defendant’s judicial admission, by which it is bound in this proceeding, that “[t]he parties agreed that the defendant would hold all payments made in anticipation of the purchase of the property in escrow or trust until the plaintiffs purchase of the property at the end of five (5) years’ occupancy.”

In the present case, the court found that the defendant benefited to the plaintiffs detriment by its unjust retention of his escrow payments after he elected not to purchase the property. We agree. On the record before us, we conclude that the court’s finding that the defendant was unjustly enriched was not clearly erroneous.

Ill

The defendant’s final claim is that the court erroneously calculated the amount by which the defendant was unjustly enriched. “[T]he trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous. . . . 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 factual finding may be rejected by this court only if it is clearly erroneous. ... A finding is clearly erroneous 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.” (Citations omitted; internal quotation marks omitted.) Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 68-69, 717 A.2d 724 (1998).

At trial, Charles Arrigoni testified that the plaintiffs exhibit two was his handwritten document detailing the “actual payments” made by the plaintiff from 1999 to 2003. He further confirmed that the figures contained on line sixteen therein documented the escrowed portions of the payments made by the plaintiff. That escrow portion totaled $38,400, the same figure contained in the plaintiffs August 10,2004 letter formally demanding the “return of all escrowed funds,” which was introduced into evidence as the plaintiffs exhibit ten, as well as the same amount alleged to have been wrongfully withheld by the defendant in the plaintiffs complaint. In addition, the plaintiff testified that the figures contained in exhibit two set forth the amounts that he actually had paid to the defendant. On that evidence, we cannot say that the court’s calculation of damages was clearly erroneous.

The defendant also argues, for the first time on appeal, that the award of damages amounts to a windfall to the plaintiff in light of his relationship with Whitehouse. See footnote 1. He argues that, because Whitehouse allegedly paid the plaintiff half of each monthly charge under the lease agreement, the court “awarded [the plaintiff] double the amount he actually contributed.” The defendant failed to raise that claim at trial, in its November 5, 2007 posttrial memorandum of law or in its subsequent March 19, 2008 motion to reargue and for reconsideration. Furthermore, the defendant did not request an articulation of the court’s damages award. See Practice Book § 66-5. To review a claim advanced for the first time on appeal and not raised before the trial court amounts to a trial by ambuscade of the trial judge. Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 798, 967 A.2d 1 (2009). We therefore decline to afford review on this unpreserved ground.

The court’s calculation of the amount by which the defendant was unjustly enriched finds support in the record before us. Thus, that finding was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Whitehouse is not aparty to this action. The precise relationship between the plaintiff and Whitehouse is unclear from the record before us. The plaintiff and Whitehouse together occupied the property during the period at issue in this appeal. At trial, the plaintiff described Whitehouse as an “associate” with whom he had “a gentleman’s agreement” to “share everything on a fifty-fifty basis. We would share the outside and the inside space and share the costs.” At the same time, it is undisputed that the plaintiff alone entered into the agreement at issue in this case with Charles Arrigoni and Thomas Arrigoni at a December, 1998 meeting at Thomas Arrigoni’s residence on Brick Lane in Durham. It also is not disputed that it was the plaintiff who made all payments to the defendant pursuant to that agreement. Because neither party raised any issue at trial as to Whitehouse’s proper role in the present dispute, we, like the trial court, do not consider that issue in resolving the present matter. We further do not express any opinion as to any possible claim Whitehouse may have against the plaintiff pertaining to their gentleman’s agreement.

       At the time that the parties entered into the agreement in 1998, Charles Arrigoni and Thomas Arrigoni owned the property. Charles Arrigoni and Thomas Arrigoni subsequently formed the defendant limited liability company and conveyed the property to that entity. The defendant sold the property to a third party, Segue to Segway, LLC, on June 29, 2007, for $325,000.

       The plaintiffs exhibit one, which is a yellow sheet of legal sized paper on which Charles Arrigoni memorialized certain terms of the lease agreement, is titled “Agreement to Rent Property for a Period of [Five] Years [January 1, 1999, through December 31, 2004].” Obviously, that time period contains six years, rather than five, a distinction unnoticed by the parties or the court. The parties nevertheless have agreed throughout the proceedings that the lease agreement was for a term of five years beginning in January, 1999.

       Although the court’s memorandum of decision does not address the plaintiffs second cause of action, which alleged conversion, the judgment file indicates that “[t]he court, having heard the parties, finds the allegations in the third [unjust enrichment] count only of the plaintiffs complaint to be true . ...” In this appeal, neither party raises any claim pertaining thereto. Similarly, no claim is raised regarding the defendant’s counterclaim, on which the court found in favor of the plaintiff.

       Charles Arrigoni at trial averred that the escrow amount was a nonrefundable credit. As he explained to the court:
      “The Court: And . . . the balance [of each monthly payment] would be what?
      “[The Witness]: Well, that was all — it was all rent. We handled it all as rent. That’s it. It was all rent; however, we would give him a credit of this amount toward . . . the purchase of the building. . . . [I]f he purchased the building, we had a price of $250,000 set on the price. If he purchased the building at the end of the period of five years, because we had taken all this money in as rent . . . we would give him this amount of money as credit toward the $250,000, and the sale of the building would be less.
      “The Court: Okay.
      “[The Witness]: Less that figure.
      “The Court: Okay. And if he didn’t buy it?
      “[The Witness]: We were going to keep the money. It was rent. We paid rent on it. We put it all in as rent in our business. ... It made no sense to us to give the money back . . . toward anything if he wasn’t going to buy it. We, you know, we—
      “The Court: Did you tell him—
      “[The Witness]: — needed the money to do what we had to do with—
      “The Court: Did you tell him that during the meeting?
      “[The Witness]: Definitely so, sir.
      “The Court: What did you tell him?
      “[The Witness]: I told him that these credits would be- only good if he purchased the property, period. We weren’t going to give him all that money back for nothing. For what? Unless he — we would just lower the down payment on a building ifhe purchased the building. That was our agreement.”