author: GRUENDEL, J.

text:
    DIRIENZO MECHANICAL CONTRACTORS, INC. v. SALCE CONTRACTING ASSOCIATES, INC., ET AL.
    (AC 29960)
    Bishop, Gruendel and Beach, Js.

      Argued January 21
    officially released June 29, 2010

      Paul A. Sobel, with whom was Matthew M. Horowitz, for the appellants (defendants).

      Katherine L. Matthews, with whom, on the brief, was R. Bradley Wolfe, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendants, Salce Contracting Associates, Inc. (Salce), and its surety, United States Fidelity & Guaranty Company (surety), appeal from the judgment of the trial court rendered in favor of the plaintiff, DiRienzo Mechanical Contractors, Inc. (DiRienzo). On appeal, the defendants claim that the court erred in (1) failing to apply certain provisions of the contract, (2) finding that (a) DiRienzo was due $60,500 in retainage and (b) DiRienzo was due $68,228.80 for its change order concerning duct work and piping for the air conditioning system and (3) making certain findings concerning the installation of air conditioning units, namely, (a) finding Salce responsible for one half of the problems resulting from the installation of those units, (b) awarding DiRienzo $25,630.72 for the purchase of additional materials and labor to complete the installation of those units and (c) failing to award Salce any of the $125,737 it sought for delay costs it allegedly incurred due to DiRienzo’s improper installation of those units. We affirm in part and reverse in part the judgment of the trial court.

The following facts are necessary to our resolution of the defendants’ appeal. DiRienzo and Salce entered into a contract, dated February 11, 2004. DiRienzo assumed the role of subcontractor and Salce of general contractor for the construction of a private commercial project consisting of thirty beachside condominium units in West Haven, to be known as Oceanside Condominiums. The contract, which was drafted by Salce, provided that DiRienzo was to perform the plumbing, heating, air conditioning and fire protection work. DiRienzo was to receive $605,000 for its work. The contract set July 15, 2003, as the date that work was to commence and September 15, 2004, as the date upon which the project was to be substantially completed.

On April 4, 2005, DiRienzo submitted to Salce a final payment application in which it stated that its work was 100 percent complete, and in which it claimed an unpaid balance of $94,081. When Salce refused to pay, DiRienzo filed a four count amended complaint against Salce and the surety. The complaint included claims against Salce for breach of contract, unjust enrichment and violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. The complaint also included a payment bond claim against the surety in which DiRienzo sought compensation for additional change orders, none of which appeared on the final payment application in which DiRienzo claimed its work was 100 percent complete. Salce and the surety raised special defenses alleging (1) the existence of a contractual limitations of action provision in the contract, (2) that DiRienzo had failed to perform as required by the contract and (3) that DiRienzo’s deficient performance resulted in a loss to Salce. In addition, Salce filed a counterclaim for damage it alleged to have incurred as a result of DiRienzo’s failure to perform. The court ruled in favor of DiRienzo for Salce’s breach of contract and on the payment bond claim against the surety, and ruled against DiRienzo on its other claims. The court further ruled in favor of Salce on its counterclaim in the amount of $50,187.33 and credited it with that amount when awarding DiRienzo $454,631.67. Thereafter, the court acknowledged mathematical errors in the amount awarded to DiRienzo and modified that amount to $408,584.11. From that judgment, the defendants appeal.

I

The defendants first claim that the court erred in failing to apply certain provisions of the contract. Specifically, they contend that the court failed to apply (1) paragraph 40, a contractual statute of limitations provision, (2) paragraph 14, limiting subcontractor compensation for change order prices not agreed to in advance to DiRienzo’s actual cost plus 10 percent for profit and overhead combined, and (3) paragraphs 1, 5 and 43, each providing that DiRienzo be responsible for both the design and construction of the systems it was to install. We address each claim in turn.

A

The defendants first argue that the court failed to apply paragraph 40 of the contract. We disagree.

The following facts are relevant to our discussion. At trial, the defendants referred to paragraph 40 to raise as a special defense “contractual statute of limitations.” Paragraph 40 provides: “In the event Subcontractor desires to give any Notice of Claim to Contractor, the Notice of Claim must be given sooner than five business days before Contractor is required to make any ‘Pass Through Claim’ under the General Contract. A ‘Pass Through Claim’ for the purposes of the preceding sentence is defined as a claim made or which may be made by Contractor under the General by which Contractor may pass through to Owner all or any part of the claim of Subcontractor such that any additional compensation or damages sought by Subcontractor from Contractor may be procured all or in part by Contractor from Owner. Notwithstanding any longer limitation period which may exist in the General Contract for Pass Through Claim, no Notice of Claim by Subcontractor against Contractor shall be valid unless it is given within 60 days after the occurrence of the event giving rise to the Notice of Claim. Subcontractor shall not be entitled to any relief or maintain any claim or cause of action against Contractor without first giving Contractor a Notice of Claim in accordance with the provisions of this Subcontract, and no Notice of Claim shall be valid unless given in accordance with this subcontract.”

The court ruled against the defendants on this special defense. It stated: “The first special defense . . . entitled ‘contractual statute of limitations,’ argues that paragraph 40 of the contract . . . provides for an outside limit of sixty days from the time the event occurs that gives rise to the claim, within which the subcontractor [must] present a claim to the general contractor. The court finds that said limitation period of sixty days for notice does not apply to any payment due DiRienzo from Salce for any work requested or authorized by Salce. As to such work, Salce would have, of necessity, had notice. Similarly, any such work, if not required by the contract and performed by [DiRienzo] after consultation with [Salce] and permission to proceed, would not require subsequent notice other than billing in order for [DiRienzo] to be entitled to seek payment. Any defense available to [Salce] would be limited to proof that [DiRienzo] negligently performed the work in question and therefore was not entitled to payment.” (Citation omitted.)

On appeal, the defendants assert that the court erred in failing to apply paragraph 40, thereby denying them an opportunity to assess potential liability, investigate whether certain work was truly beyond the scope of the contract and, if beyond the scope of the contract, decide whether to proceed with such work. The defendants first contend that the court improperly concluded that they had waived the notice requirement under paragraph 40. Specifically, they aver that because waiver is a defense that must be pleaded and DiRienzo failed to plead waiver, the court erred in charging Salce with having waived paragraph 40. See Jo-Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn. App. 179, 198, 880 A.2d 945 (2005) (waiver as special defense must be specifically pleaded). The defendants also contend that the court misinterpreted paragraph 40. Specifically, they posit that requesting that work be done is a separate matter from whether the work is covered under the fixed price contract. We are not persuaded.

We first address the defendants’ contention that the court improperly concluded that the defendants’ knowledge of work being performed was sufficient to constitute a waiver of the notice requirement under paragraph 40. Preliminarily, we consider whether there is an adequate record for review. After carefully examining the court’s memorandum of decision, we are unable to conclude that it made any finding as to whether the defendants waived the notice requirement under paragraph 40. As a general matter, it is incumbent on the appellant to provide an adequate record for review. See Practice Book § 61-10; Gladstone, Schwartz, Baroff & Blum v. Hovhannissian, 53 Conn. App. 122, 127, 728 A.2d 1140 (1999). “To the extent that the court’s decision is ambiguous ... it was [the appellant’s] responsibility to seek to have it clarified.” Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn. App. 509, 534, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009). “[W]e will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Nicefaro v. New Haven, 116 Conn. App. 610, 617, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009). The defendants did not seek an articulation, as permitted by Practice Book § 66-5. Nor did they seek clarification of this matter in their motion to reargue, filed January 2,2008. Accordingly, we are unable to review the defendants’ claim concerning waiver because the record is inadequate.

We next consider the defendants’ contention that the court misinterpreted paragraph 40 by failing to distinguish between requesting that work be done and whether the work is covered under the contract. Initially, we set forth our standard of review. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 495, 746 A.2d 1277 (2000). Here, there is definitive contract language. Accordingly, our review is plenary.

“A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction.” (Internal quotation marks omitted.) Office of Labor Relations v. New England Health Care Employees Union, District 1199, AFL-CIO, 28, 8 Conn. 223, 231, 951 A.2d 1249 (2008). “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) HLO Land Ownership Associates Ltd. Partnership v. Hartford, 248 Conn. 350, 357, 727 A.2d 1260 (1999). “In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.” (Internal quotation marks omitted.) Wolosoff v. Wolosoff 91 Conn. App. 374, 381, 880 A.2d 977 (2005). When construing the contract, we are mindful that “[t]he contract must be viewed in its entirety, with each provision read in light of the other provisions . . . and every provision must be given effect if it is possible to do so.” (Internal quotation marks omitted.) Cantonbury Heights Condominium Assn., Inc. v. Local Land Development, LLC, 273 Conn. 724, 735, 873 A.2d 898 (2005).

It is undisputed that the contract clearly recognizes the possibility of work being performed outside of its scope. Paragraph 14 provides in relevant part: “It is acknowledged that the Owner and/or Contractor may require changes in Subcontractor’s work . . . .” Paragraph 40 unambiguously sets forth notice of claim requirements for change orders. It provides in part: “[N]o Notice of Claim [for change order] by Subcontractor against Contractor shall be valid unless it is given within 60 days after the occurrence of the event giving rise to the Notice of Claim.” It also is undisputed that Salce drafted the contract. Salce, therefore, reasonably should have known what work was and was not included as part of the contract.

Furthermore, in ruling that DiRienzo was to be compensated for certain change orders, the court stated: “[A]ny such work, if not required by the contract and performed by [DiRienzo] after consultation with [Salce] and permission to proceed, would not require subsequent notice other than billing in order for [DiRienzo] to be entitled to seek payment.” Implicit in that statement is the court’s finding that change orders for which it awarded compensation to DiRienzo were (1) not required by the contract, (2) the subject of discussion between DiRienzo and Salce and (3) permitted by Salce. We agree with the court that Salce would have had notice of a claim upon receipt of the bill from DiRienzo for work that Salce knew to be outside the scope of the contract and for which Salce granted DiRienzo permission to proceed.

B

The defendants also argue that the court failed to apply paragraph 14 of the contract. We disagree.

The following additional facts are relevant to our discussion. Paragraph 14, entitled “Contractor May Require Changes in Subcontractor’s Work,” provides in relevant part: “It is acknowledged that the Owner and/ or Contractor may require changes in Subcontractor’s Work .... It is agreed that the price from Subcontractor to Contractor shall not exceed Subcontractor’s actual costs for labor and materials plus overhead and profit in the amount set forth in the General Contract, and if there is no amount set forth in the General Contract, then Subcontractor’s overhead and profit shall be allowed in the total amount of 10% of Subcontractor’s actual costs. ... In the event Contractor and Subcontractor are unable to agree in advance on any terms of a change, Contractor may order the Subcontractor to perform the change, with the cost to be based on the method for calculating the cost of additions and deletions set forth in this paragraph above, and with a reasonable adjustment to be made to Substantial Completion Date for Subcontractor’s Work, based upon the nature of the change. In the event Subcontractor is hired to perform any Subcontractor’s Work on a cost of labor and/or materials plus overhead/profit basis . . . Subcontractor shall submit field tickets to Contractor’s superintendent or project manager. The field tickets shall be prepared by Subcontractor and itemize the labor and materials performed and incorporated in Subcontractor’s Work during the course of each day that labor has been performed and/or materials incorporated.”

On appeal, the defendants argue that the court failed to apply paragraph 14 of the contract. They first contend that in finding compensation due DiRienzo, the court relied on testimony of “estimated” cost, as opposed to “actual” cost required by paragraph 14. They further note that DiRienzo failed to submit field tickets in accordance with paragraph 14. The defendants also contend that the court awarded overhead, profit and sales tax in a manner inconsistent with paragraph 14. Specifically, they aver that in response to the court’s award for overhead, profit and sales tax, DiRienzo conceded that the court erred in marking up its costs by an additional 10 percent.

We are unable to review the defendants’ claim that the court failed to apply paragraph 14 requiring change order costs to be based on actual costs due to an inadequate record. “It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. . . . [A]n appellate tribunal cannot render a decision without first fully understanding the disposition being appealed. . . . Our role is not to guess at possibilities, but to review claims based on a complete factual record .... Without the necessary factual and legal conclusions . . . any decision made by us respecting [the appellants’ claims] would be entirely speculative.” (Internal quotation marks omitted.) Cianbro Corp. v. National Eastern Corp., 102 Conn. App. 61, 71-72, 924 A.2d 160 (2007). “To the extent that the court’s decision is ambiguous ... it was [the appellants’] responsibility to seek to have it clarified.” Centimark Corp. v. Village Manor Associates Ltd. Partnership, supra, 113 Conn. App. 534. Absent an articulation, we assume that the court acted properly. See Nicefaro v. New Haven, supra, 116 Conn. App. 617. Nowhere in the court’s memorandum of decision did the court expressly find that the cost for a change order was based on either actual cost or estimated cost. Rather, the court repeatedly found several of DiRienzo’s change order costs to be “fair and reasonable . . . .” Nor did the court express any finding as to whether DiRienzo submitted field tickets to Salce for change order work. Although the defendants obj ected to the testimony of Mario DiRienzo, chief executive officer of DiRienzo, on the ground that he was testifying as to estimated costs for change orders, as opposed to actual cost, they failed to seek an articulation on both that matter and the court’s finding with regard to field tickets. It also is notable that the defendants failed to address in their motion to reargue whether the record was adequate for reviewing the matters on which they now complain. We, therefore, are unable to review the defendants’ claim because they have provided an inadequate record.

We also are unable to review the defendants’ claim concerning overhead, profit and sales tax due to an inadequate record. Although the court granted the defendants’ motion to reargue insofar as necessary to correct mathematical errors, nowhere in the court’s corrected memorandum of decision, filed May 6, 2008, does the court ever address overhead, profit or sales tax. More significantly, although the defendants raised the issue of overhead, profit and sales tax in their motion to reargue, they failed to request an articulation on such following the court’s issuance of its memorandum of decision and, thus, have not satisfied their burden of providing an adequate record for review. See Boczer v. Sella, 113 Conn. App. 339, 346, 966 A.2d 326 (2009). Accordingly, we decline to review this claim.

c

The defendants finally argue that the court failed to apply paragraphs 1, 5 and 43 of the contract. We disagree.

The following additional facts are relevant to our discussion. Paragraph 1 provides in relevant part: “Subcontractor is being hired by Contractor to perform work (‘Subcontractor’s Work’) as part of a project (the ‘Project’) being undertaken by Contractor. ‘Subcontractor’s Work’ is defined as follows:

“Provide all necessary and required Labor, Material, Equipment and other Facilities proper to, or incidental to the Design and Build of all Fire Protection, Plumbing, Heating Ventilating and Air Conditioning Systems with the Associated and Related Firestopping & Access Panels for the Construction of Oceanside Condominiums

Paragraph 5 provides in relevant part: “Contractor shall pay Subcontractor the Subcontract Price, which is: $(605,000.00).” It also provides: “Exclusions include: painting, patching, drilling, cutting, excavation, backfill, concrete, asbestos removal, and temperature control wiring, and all work related to the pool; also excluded are all temporary electric, temporary heat, temporary cooling, temporary ventilation, and temporary plumbing.”

Paragraph 43 provides in relevant part: “Design Build Services Provided By The Subcontractor. The project consists of the total design by the Subcontractor for all work to be performed by the Subcontractor all as stipulated and described in this agreement and construction for which the Contractor is responsible under a separate agreement with the Owner.”

The defendants contend that paragraphs 1, 5 and 43 make clear that the contract was a design and build contract, pursuant to which DiRienzo was to be responsible for all design related defects. Because the costs for repair were DiRienzo’s responsibility, the defendants argue that such costs cannot form the basis for change orders. Therefore, they argue that the court improperly awarded DiRienzo compensation for work that was DiRienzo’s responsibility all along. Such work, the defendants assert, included installing sprinkler heads on balconies, hooking up dishwashers, installing gas pressure regulators, replacing elevator shaft vent parts, raising sprinkler heads in second and third floor units, raising water and vent lines in second and third floor units, replacing duct work in all units; redoing floor openings and piping for toilets, installing outside water faucets and reinstalling certain parts of the air conditioning units.

Initially, we set forth our standard of review. “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 .... As a reviewing court [w]e must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude. . . . The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact. ... 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.” (Internal quotation marks omitted.) 73-75 Main Avenue, LLC v. PP Door Enterprise, Inc., 120 Conn. App. 150, 158-59, 991 A.2d 650 (2010).

On our review of the record, we conclude that there is ample evidence to support the court’s determination that the aforementioned change orders were outside the scope of the contract. Significantly, the court heard testimony from Mario DiRienzo, chief executive officer of DiRienzo, that those change orders were not DiRienzo’s responsibility under the contract. We must defer to the court’s assessment of the evidence before it. See State v. Jones, 113 Conn. App. 250, 261 n.6, 966 A.2d 277 (“[T]he determination of a witness’ credibility is the special function of the trial court. [A reviewing] court cannot sift and weigh evidence.” [Internal quotation marks omitted.]), cert. denied, 292 Conn. 901, 971 A.2d 40 (2009). Accordingly, the court’s findings were not clearly erroneous.

II

The defendants next claim that the court erred in finding that DiRienzo was due (1) $60,500 in retainage and (2) $68,228.80 for its change order concerning duct work and piping for the air conditioning system. We address each in turn.

We begin by setting forth our standard of review. “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 . . . .” (Internal quotation marks omitted.) 73-75 Main Avenue, LLC v. PP Door Enterprise, Inc., supra, 120 Conn. App. 158.

A

The defendants first argue that the court erred in finding that retainage was due as a separate component of damages over and above the contract balance. We agree.

The court found the following with regard to retainage. “Paragraph 22 of said contract calls for a retainage in payment to the subcontractor for work performed in the amount of 10 percent. The testimony reflected that Salce had retained 10 percent of the contract price agreed to for DiRienzo. Said retainage is ‘normally released at the end of the contract.’ . . . The evidence, however, has disclosed that the retainage in this case has not been released to the plaintiff to date. [General Statutes §] 42-158k provides that ‘No construction contract may provide for any retainage in an amount that exceeds seven and one-half percent of the estimated amount of a progress payment for the [life of the] construction project.’ Clearly, the 10 percent retainage in the instant contract violates this statute. This illegal retainage figure of 10 percent translates into a retainage of $60,500, which [Salce] has wrongfully withheld since November 7, 2005, the approximate date of completion of construction.” (Citation omitted.)

On appeal, the defendants argue that the court erred in finding that retainage was due as a separate component of damages over and above the contract balance. Specifically, they allege that the court did not consider the 10 percent retainage to be part of the contract price. DiRienzo concedes that the court’s decision was clearly erroneous in this regard. Accordingly, we reverse the court’s award of $60,500 in retainage to DiRienzo.

B

The defendants also argue that the court erred in finding Salce responsible for $68,228.80 of the $122,567.82 that DiRienzo claimed it was due for its change order concerning duct work and piping for the air conditioning system. We disagree.

The court found the following facts, which are relevant to our discussion. “Exhibit W is a change order concerning the relocation of the entire [air conditioning] system throughout the building. This change order, according to DiRienzo, was required because of [Salce’s] refusal to perform steel [perforations] in the structural steel beams to accommodate a four inch PVC pipe for the venting of hot water heaters. Without the PVC pipe being able to penetrate the steel, insufficient space existed for the pipe above the ceiling along with the requisite duct work. . . . [D]ue to the minimal space for pipes and heat and air conditioning ducts, [perforations] were provided for and required to accommodate the flue vent pipes and PVC pipes along with ducts between the ceiling heights and beams. DiRienzo discovered that said [perforations] were never made in the beams by Salce or the structural steel contractor, requiring DiRienzo to change the duct size after the ducts had been ordered, received and partially installed. . . .

“The court finds that Salce either had actual notice of the need for perforations as a result of the request for same from DiRienzo or constructive notice as a result of the mechanical plans prepared by Innovative Engineering and bearing the name of John Cruet, Jr. Architect and Planner. The court finds it difficult to believe that the general contractor would not have knowledge of mechanical plans prepared by engineers and bearing the imprimatur of the project architect. Therefore, it is reasonable to charge the defendant with knowledge that the plans called for [perforations] of four inches and three inches in the beams in order to accommodate both pipes and ducts in the limited space between the ceiling and the beam.” (Citation omitted; internal quotation marks omitted.)

The court also found credible the testimony of DiRienzo’s duct work foreman, Richard Ferrucci. Fer-rucci testified that the original order of duct work was for one floor only and that 75 percent of it was useable. Ultimately, the court found that “the need for said work was occasioned by the lack of perforations in the structural steel and that the reasonable charge for the work represented in exhibit W [was] $53,639 together with 10 percent overhead and 10 percent profit totaling $727.80 plus 6 percent state tax of $3862 for a total of $68,228.80.”

On appeal, the defendants argue that the court erred in finding Salce responsible for $68,228.60 of the $122,567.82 that DiRienzo claimed it was due for relocating the air conditioning system. Specifically, they contend that the weight of the evidence does not support the court’s finding. More specifically, they assert that the court had before it evidence that the additional duct work and piping that DiRienzo performed was a result of its own design errors and that it was physically impossible for the vent piping in the end units to have been affected by a lack of perforations in the corridor beams. Again, we note that “it is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony.” (Internal quotation marks omitted.) Stein v. Tong, 117 Conn. App. 19, 24, 979 A.2d 494 (2009). In the present case, Mario DiRienzo testified that his company had to replace all of the duct work because Salce had failed to perforate the beams, as DiRienzo had requested and expected. Mario DiRienzo also testified that without the perforations in the beams, all of the pipes had to be relocated because they did not fit. In addition to that testimony, the court also found credible the testimony of Ferrucci that the original order of duct work was for one floor only and that 75 percent of it was useable. We conclude that the court’s finding was not clearly erroneous.

Ill

The defendants finally claim that the court erred in certain findings relating to the installation of air conditioner units. Specifically, they contend that the weight of the evidence makes clear that the court erred in (1) finding Salce to be responsible for one half of the costs for problems resulting from the air conditioner units, (2) awarding DiRienzo $25,630.72 for the purchase of additional materials and labor to install those units and (3) failing to award Salce any of the $125,737, which it sought for costs it allegedly incurred due to DiRienzo’s mistakes in the installation of those units. We disagree.

The following facts are relevant to our discussion. DiRienzo submitted a change order for the purchase of additional materials and labor concerning the installation of air conditioning units. Salce also sought to recover for repair costs resulting from the problems with the installation of the air conditioning units. The court found the following: “[The] plaintiffs exhibit AA is a change order concerning the air conditioner units to be installed on the exterior wall between the exterior and interior of the residential units. As these air conditioning units were to be installed on the balconies of the residential units, it was necessary to cut holes in the exterior of the building through which the air conditioners would protrude. The evidence is uncontroverted that . . . Salce’s men cut the holes. . . . The evidence requires the court to conclude that these holes were too big for the units. . . . The court finds that installation of air conditioning units was part of DiRienzo’s responsibility under the contract .... [T]he court . . . finds that both parties should share the responsibility for the problems that developed with these units. Salce is responsible for the size of the holes placed to accommodate these units. The fact that their holes were too large forced DiRienzo to deviate from original plans in order to install said units, and it is evident that water problems resulted for the residents of these condominium units as a result of the original installation.” (Citations omitted; internal quotation marks omitted.)

The defendants first claim that the weight of the evidence before the court was contrary to its finding that Salce was responsible for one half of the cost for the problems that developed with the air conditioning units. Specifically, they posit that the court erred in awarding Salce only half the amount it sought to recover to correct DiRienzo’s errors in installing the air conditioner units. As we already have noted throughout this opinion, it is the exclusive province of the trial court to assess the evidence before it. Desai v. Desai, 119 Conn. App. 224, 236, 987 A.2d 362 (2010). As a reviewing court, we are unable to retry facts. See Malmberg v. Lopez, 208 Conn. 675, 679, 546 A.2d 264 (1988). Here, the court had before it evidence that DiRienzo was responsible for installing the air conditioning units under the contract. The court also had before it evidence that Salce improperly cut holes in the balconies causing DiRienzo to incur additional costs of both materials and labor to complete the installation. We, therefore, conclude that the court’s finding that both parties should share responsibility for the problems that arose from the air conditioning units was not clearly erroneous.

Related to the defendants’ claim is DiRienzo’s concession that the court should have awarded Salce one half of its claimed cost to repair damaged Sheetrock, in light of its finding that both parties must share the cost for problems arising from the air conditioning units. Accordingly, the amount awarded to DiRienzo should be reduced by $1750.

The defendants next claim that the court erred in awarding DiRienzo $25,630.72 of the $39,352 that it sought for the purchase of additional materials and labor for the installation of the air conditioner units. Again, there is sufficient evidence in the record to support the court’s finding that DiRienzo be awarded $25,630.72. Specifically, exhibit AA is a change order DiRienzo submitted that details the additional costs for materials and labor it incurred through the installation of the air conditioning units. Furthermore, Mario DiRienzo testified as to these additional costs for materials and labor. The court’s award was not clearly erroneous.

Finally, the defendants assert that the court erred in failing to award delay costs to Salce due to DiRienzo’s mistakes in the installation of the air conditioner units. In determining that Salce should not be awarded delay costs, the court thoroughly examined the evidence before it. Specifically, the court examined the daily construction reports kept by Salce and noted that although the reports began on January 1, 2004, they first referred to an alleged delay caused by DiRienzo on November 22, 2004. The reports further noted the occurrence of delays before November 22,2004, caused by other subcontractors. The court concluded: “A close examination by the court of [the daily construction reports], records of day by day construction work, fail to show that DiRienzo deserves to be singled out from a number of fellow subcontractors, all of whom may be responsible for minor slowdowns in the construction process. . . . [T]he evidence [also] discloses that there was a several week delay in starting construction, and it is common knowledge that a late start delays arrival at the finish line.” One final time, we remind the defendants that as a reviewing court, we are unable to sift and weigh evidence. IN Energy Solutions, Inc. v. Realgy, LLC, 114 Conn. App. 262, 275, 969 A.2d 807 (2009).

The judgment is reversed only as to the award of damages and the case is remanded with direction to reduce the judgment by $62,250 and to render judgment in favor of the plaintiff accordingly. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The amount awarded to the plaintiff from the jointly liable defendants consisted of valid change orders less valid charge backs, and retention of recovery on which interest would run at 6percentper annum from November 7, 2005, until payment in full of the amount the court awarded, together with the costs of suit per statute.

       At trial, the defendants objected to Mario DiRienzo, chief executive officer of DiRienzo, testifying as to estimated costs of change orders, as opposed to actual costs. Their counsel stated: “I don’t think that Mr. DiRienzo should be allowed to testify to things that axe outside the scope of the complaint or based upon an expert’s personal estimation of what the value is.” He again objected: “And the second ground of my objection is the evidence of an expert opinion on how much any of the items is worth because there is nothing that was actually bought or done. They are estimates. There has been no disclosure of expert by the plaintiff as to the value based upon the estimates.” The court overruled those objections.

       In response to the defendants’ motion to reargue, DiRienzo conceded that the court improperly had marked up its costs by an additional 10 percent and that sales tax should not have been assessed against labor.

       In their motion to reargue, the defendants asserted that there were mathematical errors in the court’s decision and that the court failed to address certain aspects of the contract. The court granted the motion only insofar as the correction of any mathematical errors.


source: Caselaw Access Project

author: DiPENTIMA, J.

license: Public Domain

text:
    MAUREEN NOONAN v. PAUL NOONAN
    (AC 30729)
    DiPentima, Robinson and Hennessy, Js.

      Argued March 16
    officially released June 29, 2010

      Richard C. Stewarl, for the appellant (plaintiff).

      David P. Ball, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

DiPENTIMA, J.

In this dissolution of marriage action, the plaintiff, Maureen Noonan, appeals from the judgment of the trial court. On appeal, the plaintiff claims that the court improperly (1) failed to give proper effect to the pendente lite orders concerning her relocation to Farmington with the parties’ two minor children, Mackenzie and Devan, (2) failed to apply the provisions of General Statutes § 46b-56d to the issue of the relocation of the children back to Ridgefield, (3) made certain findings that have no reasonable bases in fact so that it rendered its custody and visitation orders without giving proper effect to certain behavior of the defendant, Paul Noonan, and (4) issued punitive financial orders to force the plaintiff to relocate. We affirm the judgment of the trial court.

The court found the following facts. The parties were married on August 21,1999, in Cooperstown, New York. At the time of the dissolution action, the parties were residing in Ridgefield. They have two minor children, bom November 18, 2002, and September 7, 2004. Their second child, Devan, was diagnosed at the age of eighteen months with Velo-Cardio-Facial Syndrome (VCFS), a chromosome abnormality. The parties’ marriage has broken down irretrievably.

The defendant holds bachelor of science and juris doctor degrees. He is employed in a management position with General Electric, located in Ossining, New York, and earns $2692 per week. The plaintiff holds a bachelor of arts degree in elementary education and a master’s degree in reading from Western Connecticut State University. Before the parties’ children were bom, she was employed for ten years as an elementary school teacher in the private sector. She is not certified to teach in Connecticut. Since the parties’ children were bom, the plaintiff has not worked outside the home in any full-time capacity. The plaintiff has worked sporadically part-time, as a tutor and as a cafeteria aide in the school that the children attended in Ridgefield.

The plaintiff filed this dissolution action on April 9, 2007. On May 21,2007, the court, Axelrod, J., granted the plaintiffs motions for custody and exclusive possession and established a comprehensive visitation schedule. On April 16, 2008, the defendant filed a motion seeking to enjoin the plaintiff from moving with the children from Ridgefield to Farmington and requested that the court require that the children reside in Ridgefield during the pendency of the action. At that time, the defendant continued to reside in Ridgefield. On May 12,2008, the court, Lavery, J., denied the defendant’s motion and ordered that the plaintiff was free to move to the Farmington area, where several members of her family reside. The court found this move to be in the best interests of the children. The plaintiff subsequently moved with the children to Farmington. Starting on December 1, 2008, the plaintiff began work tutoring students, ten hours per week for the Farmington school system, earning $20.03 per hour.

On January 9, 2009, after a trial, the court, Calmar, J., rendered judgment dissolving the parties’ marriage. The court ordered, among other things, that the parties would have joint legal custody of their children and that, in absence of an agreement between the parties, the final decision-making authority regarding the children would be with the defendant. The court determined that the move to Farmington was not in the children’s best interests and that it was necessary for the children to live in the Ridgefield area. The court ordered that “[t]he children shall reside primarily with [the defendant] and [the plaintiff] shall have parenting time every other weekend .... The plaintiff may also elect midweek . . . access in Ridgefield upon twenty-four hours notice to the defendant . . . provided that the children attend their scheduled activities, complete their homework and are returned to the defendant’s residence by 8:00 p.m.” The court further ordered, however, that “[i]f the plaintiff . . . resumes residence in the greater Ridgefield area within thirty days of this judgment, the children shall thereafter reside primarily with [the plaintiff] and the defendant . . . will have parenting time on alternate weekends .... The defendant . . . will have parenting time two afternoons each week with the children from 5:30 until 8:00 p.m., which days will be Tuesday and Thursday, unless the parties agree otherwise in writing [that is] signed by both parents.” The plaintiff appealed from the judgment. Additional facts will be set forth as necessaiy.

The plaintiffs claims primarily are premised on her assertion that the court abused its discretion in its factual findings regarding the best interests of the children, including custody, relocation and child support matters. Our standard of review regarding custody issues arising within a dissolution of marriage action is well settled. “Our standard of review of a trial court’s decision regarding custody, visitation and relocation orders is one of abuse of discretion. . . . [I]n a dissolution proceeding the trial court’s decision on the matter of custody is committed to the exercise of its sound discretion and its decision cannot be overridden unless an abuse of that discretion is clear. . . . The controlling principle in a determination respecting custody is that the court shall be guided by the best interests of the child. ... In determining what is in the best interests of the child, the court is vested with a broad discretion. . . . [T]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and ... we are not privileged to usurp that authority or to substitute ourselves for the trial court. ... A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference. . . .

“The trial court has the opportunity to view the parties first hand and is therefore in the best position to assess the circumstances surrounding a dissolution action, in which such personal factors as the demeanor and attitude of the parties are so significant. . . . [E]very reasonable presumption should be given in favor of the correctness of [the trial court’s] action. . . . We are limited in our review to determining whether the trial court abused its broad discretion to award custody based upon the best interests of the child as reasonably supported by the evidence.” (Citations omitted; internal quotation marks omitted.) Ford v. Ford, 68 Conn. App. 173, 187-88, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002).

General Statutes § 46b-56 (c) directs the court, when making any order regarding the custody, care, education, visitation and support of children, to “consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of [sixteen enumerated] factors. . . . The court is not required to assign any weight to any of the factors that it considers.”

We address each of the plaintiffs claims in turn.

I

The plaintiff first claims that the court improperly failed to give proper effect to the pendente lite orders concerning her relocation with the parties’ two minor children. More specifically, she claims that the court abused its discretion by not treating the prior custody orders of the court as res judicata on the issue of whether residing in Ridgefield or Farmington was in the best interests of the children. We decline to review this claim.

A review of the record reveals that the plaintiff did not raise a claim of res judicata regarding the pendente lite custody orders before the trial court. She neither pleaded it as a special defense, nor argued it at trial. “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . . [S]ee . . . Practice Book § 60-5 (court not bound to consider claim unless it was distinctly raised at the trial). . . . [T]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Citations omitted; internal quotation marks omitted.) Labow v. Labow, 115 Conn. App. 419, 425-26, 973 A.2d 127 (2009), cert. denied, 295 Conn. 912, 990 A.2d 344 (2010). Further, Practice Book § 10-50 provides in relevant part that “res judicata must be specially pleaded . . . .” “The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed . . . .” (Internal quotation marks omitted.) Martino v. Scalzo, 113 Conn. App. 240, 245, 967 A.2d 339, cert. denied, 293 Conn. 904, 976 A.2d 705 (2009). The plaintiff, therefore, may not raise this argument for the first time on appeal. Accordingly, we decline to review the plaintiffs claim that the court improperly did not treat the pendente lite custody orders as res judicata.

II

Next, the plaintiff claims that the court improperly failed to apply the provisions of § 46b-56d to the issue of the relocation of the children back to Ridgefield. More specifically, she claims that the court acted improperly by neglecting to consider the elements set forth in § 46b-56d in its memorandum of decision. We do not agree.

“In 2006, the legislature enacted Public Acts 2006, No. 06-168, codified as § 46b-56d, which sets out the analysis a court is to apply when deciding a postjudgment motion to relocate with a couple’s minor child. Section 46b-56d adopted the shift in the burden of proof to the relocating parent set forth in Ireland v. Ireland, 246 Conn. 413, 425, 717 A.2d 676 (1998), and expanded the best interest of the child standard adopted through case law by providing specific factors that the court is to consider.” (Emphasis added.) Taylor v. Taylor, 119 Conn. App. 817, 821-22, 990 A.2d 882 (2010). The judgment at issue in this case, however, is not a postjudgment motion.

In a recent case, Lederle v. Spivey, 113 Conn. App. 177, 965 A.2d 621, cert. denied, 291 Conn. 916, 970 A.2d 728 (2009), this court stated that “[p]rior to Ireland v. Ireland, [supra, 246 Conn. 413], the courts [used] the best interest of the child standard, as set forth in § 46b-56 (b), in deciding relocation issues. Section 46b-56 (b) provides in relevant part: In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child .... In Ford [v. Ford, supra, 68 Conn. App. 173], we recognized that the interests present in a postjudgment proceeding to modify custody are not the same as those present during a trial for the dissolution of a marriage. Id., 179-81. We therefore concluded that the scheme in Ireland, and the additional [factors under Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996)] [did] not pertain to relocation issues that arise at the initial judgment for the dissolution of marriage. Rather . . . Ireland is limited to postjudgment relocation cases. . . . [B]ecause the Ireland court did not expand its holding to affect all relocation matters, relocation issues that arise at the initial judgment for the dissolution of marriage continue to be governed by the standard of the best interest of the child as set forth in § 46b-56. While the Ireland factors may be considered as best interest factors and give guidance to the trial court, they are not mandatory or exclusive in the judgment context.” (Citation omitted; internal quotation marks omitted.) Lederle v. Spivey, supra, 186-87. The court further noted, in a footnote, that “[t]he enactment of General Statutes § 46b-56d clearly changed the analysis and the burden allocation in postjudgment relocation cases, but there is no indication that the legislature intended it to apply to relocation matters resolved at the time of the initial judgment for the dissolution of a marriage.” Id., 187 n.ll.

The court made factual findings that directly address factors illustrating the best interests of the children. In its detailed memorandum of decision, the court found that “[t]he relocation [to Farmington, pursuant to the pendente lite order] has not benefited the children. As a result of the distance between their parents’ homes, the children spend an inordinate amount of time commuting in automobiles. . . . This is a stimulus deprived environment and an unnecessary and untenable situation.” The court also found that “[t]he plaintiffs assertion that she is supportive of a meaningful relationship between the defendant and their daughters is not sincere. After May, 2007, when she was granted sole legal custody of the children, she acted unilaterally, where the children were concerned, without notice to the defendant and out of a sense of entitlement. This conduct was not in her children’s best interests. She did not respect her children’s father enough to discuss her plan with him: the defendant learned of the plaintiffs plans to move to Farmington with his daughters from family services, not from her. Most telling, after the move to Farmington, the plaintiff unilaterally decided to switch the pediatrician for the parties’ daughters to her brother-in-law, without any input or notice to the [defendant].”

There is sufficient evidence in the record to support the court’s findings of fact and determination of the issue of relocation. Further, the court was not required to consider the elements set forth in § 46b-56d in its judgment of dissolution. We, therefore, cannot conclude that the court abused its discretion in finding that it was in the best interests of the children to relocate to Ridgefield.

Ill

Next, the plaintiff claims that the court improperly made certain findings that have no reasonable basis in fact and rendered its custody and visitation orders without giving proper effect to certain behavior of the defendant. We do not agree.

A

The plaintiff claims that the court’s findings that the relocation to Farmington was unnecessary and not for a proper purpose, and that there is no foundation for the plaintiff’s position that the defendant could not be trusted to make responsible and appropriate decisions regarding the children have no reasonable bases in fact. Specifically, the plaintiff refers to other findings of fact and uncontested evidence that she claims are inconsistent with these findings. For example, the plaintiff cites the court’s statement that the defendant had been “confrontational and verbally abusive, self-centered and disrespectful of [the plaintiff] ... in front of the children.” Additionally, she refers to the defendant’s arrest for reckless endangerment of a police officer and his “toxic anger.”

The plaintiff testified at length about, among other things, her reasons for relocating to Farmington during the pendency of the action. The plaintiff and the defendant both testified about the ramifications of the plaintiff’s relocation to Farmington with the children since the relocation, and about their potential plans for the children’s educational, medical and daily care in the future. Both parties also testified regarding the plaintiff’s behavior toward the defendant since the move to Farmington, including occasions when the plaintiff did not allow the defendant to exercise court-ordered visitation with the children. The parties each testified about the difficulty of communicating with each other but indicated that they are committed to improve their communication for the sake of their children.

In its memorandum of decision, the court discussed the defendant’s history of behavior in detail and concluded that “[t]he defendant, having successfully resumed psychotherapy, is reflective of his past behavior. ... He has made dramatic improvements in his behavior since the end of July, 2008.” It further found that the plaintiff did not consider the negative consequences that resulted from her move to Farmington. Finally, the court found that “[t]he parties, when they are not in the presence of each other, are loving with their children. Individually, they are capable of responsible and meaningful decisions concerning the most important issues in the lives of their daughters.” In short, the record reveals sufficient evidence to support these findings of the court.

B

The plaintiff refers to specific evidence in support of her contention that the court rendered its custody and visitation orders without giving proper effect to the defendant’s behavior. Specifically, she claims that the court ignored evidence of “ ‘confrontational, verbally abusive . . . and disrespectful [behavior toward the plaintiff] ... in front of the children,’ ” the defendant’s arrest on charges of reckless endangerment of a police officer following a custody exchange, the defendant’s “ ‘toxic’ anger,” an incident in which the defendant left the older child, Mackenzie, alone in the car in the dark and an occasion where the defendant medicated the younger child, Devan, with a penicillin based medication, even though she had a known allergy to penicillin. The plaintiff, however, does not address all of the other evidence that was presented at trial, including the specific factual findings of the court that the defendant took responsibility for past behavior, his commitment to improving his mental health condition, his actions taken in furtherance of this commitment and his interest in joint custody of the two minor children.

The defendant testified at trial that, despite the fact that he had not been consistent with therapy in the past, he was now “100 percent committed” to continuing therapy and taking his medication. He also stated that “my behavior today is . . . much more calm and relaxed, much more in control. [I] have been able to act in a way that was more consistent with the way that I was told was appropriate.”

The court did not ignore evidence of the defendant’s past behavior but, instead, found that “[the defendant] has made dramatic improvements in his behavior since the end of July, 2008. In the words of the guardian ad litem, he has gone from being ‘demanding, rude, irate and abusive’ to ‘pleasant, reasonable, polite, thoughtful and child focused.’He has become . . . a better parent over the course of the separation. The defendant has expressed a strong commitment at trial to continue his medication and therapy and has agreed to authorize his therapist to communicate with the guardian ad litem concerning his ongoing treatment.”

“Once again, this court is compelled to state, what has become a tired refrain, we do not retry the facts or evaluate the credibility of witnesses.” (Internal quotation marks omitted.) Taylor v. Taylor, supra, 119 Conn. App. 825. The record reflects evidentiary support for the court’s factual findings regarding the behavior of the parents and the best interests of the children. We conclude, therefore, that the court did not abuse its discretion in making its factual findings.

IV

Finally, the plaintiff claims that the court improperly issued punitive financial orders to force her to relocate. Specifically, the plaintiff claims that the court’s financial orders were designed to punish her if she chose to exercise her right to remain in Farmington. We do not agree.

The following facts are relevant to the resolution of this claim. In its memorandum of decision, the court ordered that if the plaintiff returned to the greater Ridgefield area, which would allow her to retain custody of the children, she would receive $377 per week in child support and $500 per week in alimony. If the plaintiff remained in Farmington, which would result in the children being transferred to the custody of the defendant, she would receive $150 per week in alimony and have to pay the defendant child support of $38 per week.

The lone case that the plaintiff cites in her argument that the financial orders are punitive is Szegda v. Szegda, 97 Conn. App. 426, 904 A.2d 1266, cert. denied, 280 Conn. 932, 909 A.2d 959 (2006), which states, in relevant part, that “[a]limony is not designed to punish, but to ensure that the former spouse receives adequate support.” (Internal quotation marks omitted.) Id., 432. The court specifically laid out the reasoning behind its alimony and child support awards. The court stated, in regard to the financial orders, that “if the plaintiff does not return to the Ridgefield area with the children, she will have a greater opportunity to focus on the resumption of her career on a full-time basis” and, if she does relocate to the Ridgefield area, “[her] opportunities to resume full-time employment in the private secondary school system will be limited in part because of the extra attention required to attend to the needs of the youngest child.” A review of the record reflects that the court’s determination is supported by the evidence. The intent of the court’s financial orders was not designed to punish the plaintiff or to force her to relocate but, instead, was based on realistic considerations of her financial situation. Therefore, we conclude that the court did not abuse its discretion in its financial orders of alimony and child support.

The judgment is affirmed.

In this opinion the other judges concurred.

      VCPS can affect each child differently, but in Devan’s case, she has only one kidney and exhibited a congenital heart condition that has required an operation. She suffers from low muscle tone, tires easily and has some cognitive delay. She requires special education support, including speech, language and physical therapy.

       The plaintiff asserts that the order of the court, Ascelrod, J., dated May 21,2007, was an order granting the plaintiff sole custody. The court, Calmar, J., found, however, that “[a]lthough the court indicated it was considering the plaintiff’s motion for sole custody, coded 102.1, [as well as] part of the defendant’s motion, coded 103, seeking an order of joint custody, the plaintiff represented on the record that she was ‘not really contesting joint custody, we’re really contesting how the visitation . . . [is] going to work in the house for the best interests [of the children] .... [W]e’re not really arguing that—that we shouldn’t have joint custody.’ ”

       General Statutes § 46b-56d provides: “(a) In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocation would have a significant impact on an existing parenting plan, the relocating parent shall bear the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child.
      “(b) In determining whether to approve the relocation of the child under subsection (a) of this section, the court shall consider, but such consideration shall not be limited to: (1) Each parent’s reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child’s future contact with the nonrelocating parent; (4) the degree to which the relocating parent’s and the child’s life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements.”

       Although § 46b-56d (a) removed the burden shifting scheme set out in Ireland, the Ireland factors essentially were codified by § 46b-56d (b).

       The court found that “[t]he plaintiff, in no small part because of the defendant’s roguish behavior, was empowered during the pendente lite period to determine when her children would see [the defendant]. This court finds that no good has come of this. She has not used her authority wisely. Despite the challenges that confronted them as a result of their parents’ turbulent marriage and Devan’s medical issues, the children were thriving in the Ridgefield school system and enjoying excellent care from their local pediatrician. Nevertheless, the plaintiff, without any notice to the defendant, moved their daughters to a community more than two hours away from his place of employment and changed their medical care. The plaintiff failed to even consider the negative ramifications that could have resulted from the move to Farmington. The move was unnecessary and not for a legitimate purpose. The plaintiffs anger over the defendant’s behavior caused her to act in a manner detrimental to the emotional health, security and stability of her children. The manner in which the plaintiff has exercised her sole decision-making authority, while the marital dissolution has been pending, has adversely affected the defendant’s relationship with his children. The move to Farmington has made midweek parenting time and participation in weekend activities extremely difficult; the burden caused [to] the children by the plaintiffs relocation is unnecessary and unproductive commuting.”


text:
    C & H ASSOCIATES LIMITED PARTNERSHIP v. TOWN OF STRATFORD ET AL.
    (AC 30215)
    Flynn, C. J., and Gruendel and Sullivan, Js

      Argued January 20
    officially released June 29, 2010

      Jan A. Marcus, for the appellant (plaintiff).

      Warren L. Holcomb, for the appellees (defendants).

      Adam J. Cohen filed a brief for the Connecticut Tax Collectors’ Association, Inc., as amicus curiae.

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

GRUENDEL, J.

The plaintiff, C & H Associates Limited Partnership, appeals from the judgment of the trial court granting the motion to set aside the verdict filed by the defendants, the town of Stratford, Lisa Biagiare-lli, the town tax assessor, and David L. Valente, the town tax collector, and directing a verdict in their favor on all counts of the plaintiffs complaint. On appeal, the plaintiff claims that the court improperly granted that motion. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiff’s appeal. In 1986, the plaintiff purchased two apartment buildings in Strat-ford, one located at 556 Hollister Street and the other at 446 Hollister Street. The plaintiff then converted the apartment units within those buildings into condominium units and renamed the properties Cedar Heights Condominiums. There were a total of sixty-six condominium units, including fifty-four one bedroom, four two bedroom and eight studio units. In 1988, the plaintiff sold twenty-eight units. In 1989, the real estate market worsened, and despite reducing prices and offering incentives, the plaintiff sold only fifteen or sixteen units. The market further worsened in the 1990s. Between 1993 and 2000, the plaintiff sold only one unit.

In 1991, Stratford conducted a townwide revaluation of real property, pursuant to General Statutes § 12-62, on which taxes were to be based. It had been Stratford’s policy to assign all like units the same value. It also had been Stratford’s policy to first value one bedrooms and then base the value of studios at 82 percent and two bedrooms at 125 percent of the value of one bedrooms. As part of the 1991 revaluation, Valente assigned all one bedrooms in the Cedar Heights Condominiums a value of $62,000 and all studios there avalué of $51,000. Those values were reflected in the grand list year of 1991. The plaintiff appealed from that valuation to the Stratford board of assessment appeals (board), contending that they were too high. The board decided to maintain the values assigned by Valente.

Valente assigned the same values to the same units for the grand list years of 1992 and 1993. The plaintiff appealed only the 1993 values to the board, again contending that they were too high. At that time, the plaintiff owned thirty-eight of the sixty-six emits at Cedar Heights Condominiums. The board again decided to maintain the values assigned by Valente. Following the board’s decision, the plaintiff appealed to the Superior Court. To prevent Stratford from bringing an enforcement action to collect delinquent taxes during the appeal, the plaintiff paid 75 percent of the taxes due for the 1993 grand list on units it owned that were at issue in the appeal, pursuant to General Statutes § 12-117a. Biagiarelli, in turn, recorded certificates of continuing lien on each of those units to secure the payment of taxes in excess of the 75 percent already paid by the plaintiff, and added the statutorily set recording fee of $24 to each of those units, pursuant to General Statutes §§ 7-34a, 12-175 and 12-176. The plaintiff did not pay any taxes for the 1994 grand list because it expected the court to reduce the value of its one bedrooms to approximately $30,000, in which case it would have received a credit for oveipaying taxes. Because the plaintiff had failed to pay its taxes, Biagiarelli recorded certificates of continuing lien on every unit the plaintiff owned for the 1994 grand list year and each year thereafter until it became current on its payments after 2001.

As the appeal was ongoing, Valente, in light of the worsening real estate market, reduced the value of one bedrooms from $62,000 to $49,000 and studios from $51,000 to $40,000 for the 1994 grand fist. Then, on October 7, 1998, the court, Gormley, J., found that “the appraisal value of each of [thirty-eight] bedroom condominiums as set forth in counts [one] through [thirty-eight] to be $45,000.” As such, the court found that the plaintiff had overpaid its taxes for the 1993 grand list year and was later given a credit by Stratford. In applying the court’s decision, Valente reduced the assessed value of one bedrooms but raised that of studios owned by the plaintiff so that both were valued at $45,000. This marked the first time that Stratford intentionally had assigned one bedrooms and studios the same value. Notably, the plaintiff did not appeal from the court’s decision. Despite the plaintiff’s having received a credit for its overpayment of taxes, Biagiare-lli refused to waive the $24 lien release fee charged to the plaintiff. Biagiarelli testified that she had a statutory obligation to charge for the release of the hen fees regardless of the outcome of the plaintiffs appeal.

For the 1998 grand list, Valente assigned reduced values to the twenty-eight units that were not at issue in the appeal in accordance with the 1994 grand list— $49,000 for one bedrooms and $40,000 for studios. In 1999, the plaintiff appealed to the board from the valuations on the 1998 grand list, seeking a court order that (1) one bedrooms it had acquired during the 1993 appeal be valued the same as the thirty-four one bedrooms valued at $45,000 by the court; (2) the four studios it owned subject to the court appeal and the three units it had acquired during the appeal be assessed at 82 percent of the value of one bedrooms; (3) one bedrooms not owned by the plaintiff be adjusted so all one bedrooms were valued the same; and (4) the value of all units in the Cedar Heights Condominiums be further reduced in light of the worsening real estate market. The board denied the plaintiffs requests and instead raised the value of the three studios it had acquired during the appeal to $45,000.

In 2001, the plaintiff filed a complaint against Strat-ford, Valente and Biagiarelli in which it alleged, inter alia, that the defendants’ respective actions in valuing and taxing its units, as well as refusing to waive the hen release fee charges, violated its right to equal protection under both the federal and state constitutions. The defendants raised as special defenses qualified immunity and failure to state a claim on which relief can be granted. A trial followed, at the conclusion of which the jury returned a general verdict against all three defendants. Thereafter, the defendants filed a motion to set aside the verdict and for a directed verdict in their favor on all counts. Following oral argument on July 2,2008, the court, Hon. Edward F. Stodolink, judge trial referee, granted those motions and rendered judgment in favor of the defendants. From that judgment, the plaintiff appeals.

As an initial matter, we set forth the applicable standard of review and legal principles that guide our analysis. “Our standard for reviewing a challenge to a directed verdict is well settled. Generally, litigants have a constitutional right to have factual issues resolved by the jury. . . . Directed verdicts [therefore] are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion. . . . We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. ... A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Internal quotation marks omitted.) Beckenstein Enterprises-Prestige Park, LLC v. Keller, 115 Conn. App. 680, 693, 974 A.2d 764, cert. denied, 293 Conn. 916, 979 A.2d 488 (2009).

“The [e]qual [protection [c]lause requires that the government treat all similarly situated people alike. . . . Although the prototypical equal protection claim involves discrimination against people based on their membership in a vulnerable class . . . the equal protection guarantee also extends to individuals who allege no specific class membership but are nonetheless subjected to invidious discrimination at the hands of government officials. . . . The [United States] Supreme Court [has] affirmed the validity of such class of one claims where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” (Internal quotation marks omitted.) Fillion v. Hannon, 106 Conn. App. 745, 756, 943 A.2d 528 (2008); see also Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000); Kelo v. New London, 268 Conn. 1, 107, 843 A.2d 500 (2004), aff'd, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005).

In granting the defendants’ motion for a directed verdict, the court found that there was no evidence before the jury of individuals similarly situated to the plaintiff. It stated: “We heard much about the fact that the plaintiffs units were being, shall we say, affected in various ways, but there was no indication that the other units somehow were similarly situated but were treated differently because once the appeals were brought on the units that were owned by the plaintiff, I would think almost as a matter of law the other units would not be comparators.” The court added: “And I think that one of the requirements to show lack of equal protection is that somehow other people were not being hen—a lien fee was not being charged, and I don’t think there was any evidence in the case that that was true, not even a surmise, although in argument possibly, but not in evidence. . . . There just was no evidence other than saying these individuals were somehow discriminating against the plaintiff, but there was no evidence of anyone else being not discriminated against so-to-speak.”

On appeal, the plaintiff claims that the court improperly granted the defendants’ motion to set aside the verdict and directed a verdict in their favor. Specifically, it contends that the evidence adduced at trial showed that the actions of certain Stratford officials resulted in the disparate treatment of the plaintiff as compared to other owners of units in the Cedar Heights Condominiums and other condominium owners in Stratford. On our review of the record, we agree with the court that the plaintiff failed to produce any evidence from which the jury could have compared the treatment that the plaintiff had received to that of others similarly situated, as is required in order to prevail on an equal protection claim. We therefore conclude that the court properly granted the defendants’ motion for a directed verdict. Accordingly, the plaintiffs claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       Thirty-four units were one bedroom and four were studios.

       The statutes require the imposition of fees totaling $24 to prepare, to record and to release each lien. See General Statutes §§ 12-176 ($4 to the tax collector) and 7-34a ($20 to the town clerk).

       Although the plaintiffs complaint contained additional allegations, at trial, it proceeded only on its equal protection claims. Because the plaintiff has undertaken no independent analysis of its state constitutional claim, we address only its claim under the federal constitution. See State v. Johnson, 288 Conn. 236, 244 n.14, 951 A.2d 1257 (2008).

       The jury awarded $0 in compensatory damages and $15,700 in punitive damages against Biagiarelli, $0 in compensatory damages and $10,400 in punitive damages against Valente, and $75,000 in compensatory damages and $150,000 in punitive damages against Stratford.

       Because we conclude that the court properly determined that the plaintiff had failed to produce any evidence from which the jury could compare the treatment it received to others similarly situated, we need not consider the plaintiff’s equal protection claim any further.

       Our conclusion that the court properly directed a verdict in the defendants’ favor also leads us to conclude that the court properly set aside the verdict, which the plaintiff also challenges on appeal.


author: ROBINSON, J.

text:
    PRACHI NARAYAN v. LALIT NARAYAN
    (AC 30700)
    DiPentima, Harper and Robinson, Js

      Argued March 18
    officially released June 29, 2010

      John C. Heffeman, with whom was J. Colin Heffer-nan, for the appellant (defendant).

      Samuel V. Schoonmaker TV, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ROBINSON, J.

The defendant, Lalit Narayan, appeals from the judgment of the trial court dissolving his marriage and denying his motion to dismiss the dissolution action filed by the plaintiff, Prachi Narayan, for insufficient service and lack of personal jurisdiction. On appeal, the defendant claims that (1) the court erred in denying his motion to dismiss due to insufficient service of process, and (2) the court’s award of alimony and child support in the dissolution action are void because the court lacked jurisdiction over him. In light of a recently adopted rule of practice, we vacate the judgment of the trial court.

The following facts and procedural history are necessary for the resolution of the defendant’s appeal. The parties were married on December 9, 1999, in India, and have two minor children of the marriage. On June 7, 2007, the plaintiff commenced a dissolution of marriage action, docket number FA-07-4011965-S (dissolution action). In addition to a dissolution of the marriage, she sought custody of the children, alimony, spousal support, transfer of assets and legal fees. Despite repeated attempts by state marshals, the defendant was never served process.

The commissioner of social services (commissioner), pursuant to General Statutes §§ 17b-745, 46b-215 and 46b-172, filed a support petition against the defendant in July, 2007 (support action), which was assigned the same docket number as the dissolution action. The petition sought financial and medical support for the parties’ children, as well as reimbursement to the state for disbursements made to the plaintiff. The defendant was served process for the support action on August 20, 2007, when the petition, order and summons were delivered to his employer, Tudor Investments.

On October 22, 2007, during a proceeding in the support action, counsel for the defendant filed an appearance with the court, and the family support magistrate, John P. McCarthy, continued the support action until a later date. The appearance lists the docket number for the case for which counsel was appearing as “FA-07-4011965-S.”

The plaintiff filed motions for alimony and child support on December 3, 2007. At this time, the plaintiff also moved the court to enter an order finding that the defendant had waived service on the basis of the appearance filed by counsel in the support action. The court, on December 18, 2007, dismissed the dissolution action for failure to prosecute. The plaintiff filed a motion to set aside the dismissal on February 13, 2008. On March 14, 2008, the defendant filed a motion to dismiss the dissolution action for lack of personal jurisdiction and insufficiency of service of process. The court granted the plaintiffs motion to set aside the dismissal and denied the defendant’s motion to dismiss on June 6, 2008. The defendant thereafter filed a motion to reconsider, which the court denied on August 27, 2008, reasoning that “the defendant failed to move for dismissal within thirty days of appearing as required by [Practice Book § 10-30]. An appearance cures any claimed defect of service.”

Counsel for the defendant filed a motion to withdraw as counsel on September 4, 2008, arguing that he had appeared in the dissolution action only for the purpose of filing the motion to dismiss, which was denied, and “the [defendant's appearance prior to the filing of the motion to dismiss was filed in the [fjamily [s]upport [magistrate’s [c]ourt in open court with no knowledge that both case[s] contain the same docket number.” The court granted counsel’s motion to withdraw on October 20, 2008. On October 17, 2008, the self-represented defendant filed a “special demurrer and motion to dismiss” on grounds of insufficient service of process and lack of jurisdiction. The motion was returned, unconsidered by the court, because the defendant had not filed an appearance in the case.

A trial in the dissolution action occurred on November 21, 2008. The self-represented defendant was not present, and the plaintiff represented that the defendant had filed an appearance in the matter. The court found that the defendant “apparently has intentionally avoided appearing in this court either personally or through counsel . . . ,” After the plaintiff testified and presented evidence regarding the defendant’s income, the court found that the defendant was “mainly responsible” for the breakdown of the marriage and granted the dissolution, awarding the plaintiff alimony and child support. This appeal followed.

I

The defendant claims that the court erred in denying his motion to dismiss due to insufficient service of process and lack of personal jurisdiction. Specifically, he argues that (1) the court improperly found that he had waived his jurisdictional objections pursuant to Practice Book § 10-32 and (2) his appearance before the family support magistrate in the support action did not constitute a general appearance before the Superior Court in the dissolution action because the dissolution action and the support actions were separate and distinct legal proceedings. In light of the newly adopted rule of practice, Practice Book § 25A-2, we agree with the defendant that his October 22,2007 appearance was filed for the support action only, and he cannot be found to have waived his claim of insufficient service of process.

Before we review the defendant’s claim, we must first articulate the relevant standard of review. “A motion to dismiss properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court. ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Emphasis in original; internal quotation marks omitted.) LaBow v. LaBow, 85 Conn. App. 746, 752, 858 A.2d 882 (2004), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005). “[0]ur review of the court’s ultimate legal conclusion and resulting [determination] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) Tayco Corp. v. Planning & Zoning Commission, 294 Conn. 673, 679, 986 A.2d 290 (2010).

Following oral argument before this court, the judges of the Superior Court adopted a new rule of practice addressing appearances in title IV-D support actions. Practice Book § 25A-2 (f) provides: “All appearances entered on behalf of parties for matters involving Title IV-D child support matters shall be deemed to be for those matters only.” It is without question that this new rule speaks directly to the situation at issue in this case. Thus, we must consider whether this new rule applies retroactively to the present case.

“It is generally presumed that legislation is intended to operate prospectively [e]xcept as to amending statutes that are procedural in their impact .... Procedural statutes and rules of practice ordinarily apply retroactively to all actions whether pending or not at the time the statute [or rule] became effective, in the absence of any expressed intent to the contrary. . . . We have noted, however, that a procedural statute will not be applied retroactively if considerations of good sense and justice dictate that it not be so applied.” (Citations omitted; internal quotation marks omitted.) Mulrooney v. Wambolt, 215 Conn. 211, 216-17, 575 A.2d 996 (1990). “Procedural statutes have been traditionally viewed as affecting remedies, not substantive rights, and therefore leave the preexisting scheme intact. . . . [Although we have presumed that procedural or remedial statutes are intended to apply retroactively absent a clear expression of legislative intent to the contrary ... a statute which, in form, provides but a change in remedy but actually brings about changes in substantive rights is not subject to retroactive application. . . . While there is no precise definition of either [substantive or procedural law], it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress.” (Citations omitted; internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 620-21, 872 A.2d 408 (2005). Because Practice Book § 25A-2 is procedural in nature and merely serves to inform our interpretation of the defendant’s October 22, 2007 appearance without affecting the substantive rights of the parties, it is applicable to the present case.

Both sides agree that the defendant filed his October 22, 2007 appearance prior to a hearing before the family support magistrate in the support action. This being the case, Practice Book § 25A-2 (f) clearly states that the appearance “shall be deemed to be for [the support action] only.” The court’s ruling in the defendant’s motion for reconsideration of the motion to dismiss, which was that “the defendant failed to move for dismissal within thirty days of appearing,” operates under the assumption that the October 22, 2007 appearance was entered for the dissolution action as well as the support action. On the basis of the record before us, there is no evidence of the defendant’s having filed an appearance in the dissolution action. The thirty day time period, pursuant to Practice Book § 10-30, in which the defendant could file his motion to dismiss, did not begin to run on October 22,2007. Accordingly, the rationale underlying the court’s denial of the defendant’s motion to dismiss is no longer sound.

In the alternative, as we noted previously, the parties are in agreement that the defendant filed an appearance on March 12, 2008, for the purposes of filing his March 14, 2008 motion to dismiss. This appearance is not in the record before us. If we assume arguendo that the defendant filed an appearance on March 12, 2008, his March 14,2008 motion to dismiss was filed timely pursuant to Practice Book § 10-30. We are unable to conclude that the defendant waived his right to bring a motion to dismiss on the basis of insufficiency of service and lack of personal jurisdiction.

II

The defendant claims that the court’s award of alimony and child support in the dissolution action is void because the court lacked jurisdiction over him. Because the defendant was never served, and there is no record of his having submitted to the jurisdiction of the court in the dissolution action, we agree.

We begin by setting forth our standard of review. “A challenge to the jurisdiction of the court presents a question of law. . . . Our review of the court’s legal conclusion is, therefore, plenary.” (Internal quotation marks omitted.) Bove v. Bove, 93 Conn. App. 76, 81, 888 A.2d 123, cert. denied, 277 Conn. 919, 895 A.2d 788 (2006).

“In ordinary usage of the term, [a summons is the] original process upon a proper service of which an action is commenced and the defendant therein named brought within the jurisdiction of the court .... A writ of summons is a statutory prerequisite to the commencement of a civil action . . . [and] an essential element to the validity of the jurisdiction of the court.” (Citations omitted; internal quotation marks omitted.) Stewart-Brownstein v. Casey, 53 Conn. App. 84, 87-88, 728 A.2d 1130 (1999).

“The jurisdiction of the trial court is limited to those parties expressly named in the action coming before it. . . . Until one is given notice of the actions or proceedings against him and is thereby given opportunity to appear and be heard, the court has no jurisdiction to proceed to judgment either for or against him even though it may have jurisdiction of the subject matter. One who is not served with process does not have the status of a party to the proceeding. ... A court has no jurisdiction over persons who have not been made parties to the action before it. . . . [S]ervice of process on a party in accordance with the statutory requirements is a prerequisite to a court’s exercise of in perso-nam jurisdiction over that party. . . . [N]o principle is more universal than that the judgment of a court without jurisdiction is a nullity. . . . Such a judgment, whenever and wherever declared upon as a source of right, may always be challenged. ... If a court has never acquired jurisdiction over a defendant . . . any judgment ultimately entered is void and subject to vacation or collateral attack.” (Citations omitted; internal quotation marks omitted.) Bicio v. Brewer, 92 Conn. App. 158, 165-67, 884 A.2d 12 (2005).

General Statutes § 46b-46 governs a court’s jurisdiction over nonresident parties in actions for alimony and support. It provides: “(a) On a complaint for dissolution, annulment, legal separation or custody, if the defendant resides out of or is absent from the state or the whereabouts of the defendant are unknown to the plaintiff, any judge or clerk of the Supreme Court or of the Superior Court may make such order of notice as such judge or clerk deems reasonable. After notice has been given and proved to the court, the court may hear the complaint if it finds that the defendant has actually received notice that the complaint is pending. If it does not appear that the defendant has had such notice, the court may hear the case, or, if it sees cause, order such further notice to be given as it deems reasonable and continue the complaint until the order is complied with. Nothing in this section shall be construed to affect the jurisdictional requirements of chapter 815p in a complaint for custody.

“(b) The court may exercise personal jurisdiction over the nonresident party as to all matters concerning temporary or permanent alimony or support of children, only if: (1) The nonresident party has received actual notice under subsection (a) of this section; and (2) the party requesting alimony meets the residency requirement of section 46b-44.” General Statutes § 46b-46. At trial, the plaintiff represented that the defendant had filed an appearance in the dissolution action, and the court apparently accepted this representation. The record before us contains no such appearance, and the court failed to make a finding pursuant to § 46b-46 (a) that the defendant had actual notice of the case. The court, therefore, did not have jurisdiction to hear the case, as the defendant was never served process in the dissolution action, nor did the court make the requisite findings of fact to support an exercise of jurisdiction over the defendant. This being the case, the court’s decision to grant the dissolution and award the plaintiff alimony and child support is void.

The judgment is vacated and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       Following oral argument before this court, the parties brought to our attention the applicable revisions to the rules of practice, Practice Book § 25A-2, which became effective April 15, 2010.

       Marshals attempted to serve the defendant at his place of business, by mail to multiple addresses in White Plains, New York, and also at a courthouse in Houston, Texas. All attempts were unsuccessful.

       It is apparently the practice of the Stamford-Norwalk judicial district to assign the same docket number to dissolution and support actions of the type involved in this case.

       General Statutes § 52-57 (f) provides in relevant part: “When the other methods of service of process provided under this section or otherwise provided by law cannot be effected, in actions concerning the establishment, enforcement or modification of child support orders other than actions for dissolution of marriage . . . service of process may be made upon a party to the action by one of the following methods, provided proof of receipt of such process by such party is presented to the court in accordance with rules promulgated by the judges of the Superior Court . . .

        “(2) When a party to an action under this subsection is employed by an employer with fifteen or more employees, by personal service upon an official of the employer designated as an agent to accept service of process in actions brought under this subsection. Every employer with fifteen or more employees doing business in this state shall designate an official to accept service of process for employees who are parties to such actions. The person so served shall promptly deliver such process to the employee.”

       Both parties represent that the defendant filed a separate appearance in the dissolution action at this time for the purpose of filing the motion to dismiss only. This appearance is not included in the court file.

       We were unable to locate such an appearance in the court file.

       The court made no explicit findings as to its jurisdiction over the defendant.

       The family support magistrate, Linda T. Whibey, dismissed the support action on November 24, 2008.

       Practice Book § 10-32 provides in relevant part: “Any claim of . . . insufficiency of process ... is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30.” Practice Book § 10-30 provides in relevant part: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . .”

       The defendant argues that the court committed plain error. “[T]he plain error doctrine, which is now codified at Practice Book § 60-5 ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy.” (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 521-22, 923 A.2d 638 (2007). The claim properly was preserved, so we need not engage in plain error analysis.