author: PETERS, J.

text:
    JOSEPH GENERAL CONTRACTING, INC. v. JOHN COUTO ET AL. JOHN COUTO ET AL. v. LANDEL REALTY, LLC, ET AL.
    (AC 34100)
    (AC 34102)
    Gruendel, Sheldon and Peters, Js.

      Argued February 14
    officially released July 23, 2013

      Patrick J. Day, with whom was Thomas J. Lon-dregan, for the appellants (plaintiff in AC 34100 and defendants in AC 34102).

      John C. Zaccaro, Jr., for the appellees (defendants in AC 34100 and plaintiffs in AC 34102).
   Opinion

PETERS, J.

These appeals arise out of consolidated actions in which the trial court rendered judgments holding a builder personally hable for breach of a construction contract and tortious conduct. The dispositive issue is whether the homeowners proved that the builder, in his individual capacity, had incurred contractual obligations to them and was personally hable for the damages that they sustained as a result of the builder’s nonperformance. We affirm the judgments of the trial court.

On June 27, 2007, the plaintiff in AC 34100, Joseph General Contracting, Inc. (Joseph General), filed two separate complaints against the defendants in AC 34100, John Couto and Jane Couto. The first action contained five counts and raised claims of breach of contract, and the second action sought to foreclose a mechanic’s hen held by Joseph General on the Coutos’ property. The Coutos denied their liability and asserted various special defenses, including allegations that the owner and president of Joseph General, Anthony J. Silvestri, personally had induced them to enter into a contract through material misrepresentations, that its claims were barred by its own breach of contract and warranty, and that Joseph General had been fully paid for the work it completed in accordance with the contractual agreement.

The Coutos also filed a six count counterclaim against Joseph General, alleging violation of General Statutes § 47-200 et seq., the Common Interest Ownership Act, breach of contract, fraud, breach of implied warranty, trespass and violation of General Statutes § 42-110b et seq., the Connecticut Unfair Trade Practices Act (CUTPA). Subsequently, the Coutos, in AC 34102, commenced a separate action on February 6, 2009, against Silvestri, the sole owner and shareholder of Joseph General, and Landel Realty, LLC (Landel), of which Silvestri is also the sole owner. That action incorporated the allegations of the Coutos’ counterclaim, in addition to alleging intentional infliction of emotional distress and seeking declaratory relief pursuant to the Common Interest Ownership Act. A consolidated trial of the pending actions filed against the Coutos, Joseph General, Landel and Silvestri was held before the court on May 17 to 31, 2011.

After trial, the court rendered judgment in favor of Joseph General, Landel, and Silvestri as to the Coutos’ claims of fraud, violation of the Common Interest Ownership Act and intentional infliction of emotional distress. The court rendered judgment in favor of the Coutos as to all other counts, holding Joseph General, Landel and Silvestri each jointly and severally hable for breach of contract and implied warranty, trespass and violation of CUTPA, awarding a total of approximately $573,659 in damages. On appeal, Silvestri challenges the propriety of these adverse rulings with respect to his personal Lability.

In view of the evidence presented in the consolidated trial of these actions, the court reasonably could have found the following facts. In 2006, the Coutos entered into a written contract with Joseph General for the purchase and construction of a home and carriage house to be built on a piece of property in the Admiral Cove subdivision in Stonington (lot 5), for the price of $1,980,000. The carriage house was intended for use as a separate dwelling for the Coutos’ special needs daughter, a purpose of which Silvestri was aware. At the time the contract was signed, Silvestri assured the Coutos that if they did not like the home and the carriage house, they would not be obligated to buy lot 5 or the completed dwellings. Although the contract terms were vague, they specified that the new home was to be of like kind and quality, and built with the same materials as used in a model home also located in Admiral Cove, which previously had been constructed by Joseph General, Landel and Silvestri, collectively. The architect who designed the model house was also to design the two dwellings on lot 5 for the Coutos. Silvestri knew, however, that the zoning requirements regulating Admiral Cove contained a single-family dwelling restriction applicable to each of the lots in the development. At the time they signed the contract, the Coutos were unaware of this zoning restriction.

Although the original contract for the development of the new home and carriage house was executed between the Coutos and Joseph General, the parties also proceeded to negotiate additional oral agreements to supplement its terms. These subsequent modifications essentially replaced the prior written contract, and were negotiated individually with Silvestri. The trial court apparently found credible the testimony of the Coutos that, throughout the continued construction process, they were confused as to whom they were dealing with. The Coutos also entered into a written agreement to deliver funds to escrow in payment for a security card system, docking installation, docking permits and estate paving, as well as a second written contract relating to a construction loan obtained by the Coutos. Both of these agreements were signed by Silvestri, individually, and on behalf of Landel. In light of this evidence presented at trial, the trial court determined that a contract existed not only between Joseph General and the Coutos, but also between the Coutos, Landel and Silvestri.

The evidence at trial showed that, as the construction process continued, Silvestri had financial difficulties in performing his obligations. The Chelsea Groton Savings Bank declined to provide financing because the bank did not believe that extending further funds to Silvestri was prudent. Silvestri represented to the Coutos that the reason for the bank’s refusal to finance the project was that the Coutos were reserving their right to decline to buy the property until after the two buildings had been constructed. He misinformed the Coutos that, regardless of the express terms of their contract, they were likely to lose their deposits under the contract if they did not pay for the construction upfront. So threatened, the Coutos acquiesced and agreed to purchase lot 5 from Landel, giving up their contractual right to reject the construction development in its entirety if it was not completed to their satisfaction. The Coutos paid a total of $880,000 to purchase lot 5 from Landel and to have Silvestri and Joseph General complete the construction of their new home and carriage house. The Coutos also obtained a construction loan from the Chelsea Groton Savings Bank to help finance the construction. A new agreement incorporating these modifications was drafted by the Coutos and Joseph General, but was never signed by either party.

After the Coutos’ payment of the purchase price for lot 5 and the construction of the two contemplated dwellings, work pursuant to the contract began, but not without further setbacks. First, Silvestri informed the Coutos that the agreed upon architect was no longer available, and that he would have to substitute a different designer. The first design of the primary dwelling produced by the substitute architect was larger than the design previously agreed to, and Silvestri instructed him to reduce its size. As construction of the house progressed, however, it became clear that many of the rooms in the house would not be functional because necessary appliances such as toilets and sinks did not fit within the shrinking size of the house. The Coutos also had difficulty purchasing fixtures for the dwellings within the allowances set forth in the contract.

At this point, Silvestri, Joseph General and Landel had been compensated fully for their work performed to date. Nonetheless, Silvestri demanded another large progress payment, which, as the trial court found, the Coutos reasonably refused to pay until the issue with the allowances for fixtures had been resolved. After their refusal to remit another payment, Silvestri ceased construction of the dwellings and obtained a mechanic’s hen on lot 5. In addition, he covered and thereby prevented the Coutos from accessing the sewer line on their property.

Forced to complete the construction of their home through a new, substitute contractor, the Coutos discovered numerous other problems with poor workmanship, as weh as a large quantity of debris that had been buried under, and caused damage to, the portion of lot 5 designated for the construction of the carriage house. The new contractor also informed the Coutos about the single-family dwelling zoning restriction on the property. At that point, they applied for a zoning vari-anee to allow construction to continue on the carriage house, but their application was denied.

On appeal, Silvestri challenges the propriety of the trial court’s adverse factual findings. He maintains that these findings were clearly erroneous because (1) the evidence presented was insufficient to hold him personally liable for breach of contract and breach of implied warranty, (2) the court improperly found him individually liable for trespass without expressly finding that he personally had buried debris on the Coutos’ property and (3) the evidence did not support a finding that his behavior amounted to a personal violation of CUTPA. We are not persuaded.

We begin by setting forth the applicable standard of review. “In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. ... It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence.” (Citation omitted; internal quotation marks omitted.) Cadle Co. v. D’Addario, 268 Conn. 441, 462, 844 A.2d 836 (2004). “[F]actual findings of a trial court . . . are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses. ... 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. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 837, 784 A.2d 905, cert. denied, 258 Conn. 946-47, 788 A.2d 95, 96, 97 (2001).

I

Silvestri first claims that, because he was acting at all times as an authorized corporate officer of one of his two limited liability corporations, the court improperly imposed personal liability on him for breach of contract and breach of implied warranty. Silvestri further contends that because the trial court found in his favor as to the Coutos’ allegation of fraud, the Coutos were not entitled to pierce the corporate veil to hold him personally liable under the construction contract. We are not persuaded.

A

Contrary to Silvestri’s claim that the court improperly pierced the corporate veil in order to hold' him liable for breach of contract, the trial court expressly found it unnecessary to make such a determination. It relied instead on its finding that Silvestri had been a party to the agreement in his individual capacity and, therefore, had assumed personal responsibility for its performance. “It is well settled that the existence of a contract is a question of fact”; (Internal quotation marks omitted.) Stevenson Lumber Co.-Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 216, 932 A.2d 401 (2007); and we therefore review the court’s finding for clear error.

Silvestri contends that, in all his dealings with the Coutos, he consistently acted in his capacity as a corporate officer and, therefore, pursuant to General Statutes § 34-133 (a), is not individually liable for his corporations’ contracts. “[T]he language of § 34-133 (a) itself is favorable to common-law exceptions. According to that statute, a member or manager of a limited liability company is not liable, solely by reason of being a member or manager .... [Although being a member or manager does not impose liability, the statute’s use of the term solely opens the door to other types of liability, such as common-law liability. . . . Thus, the statute plainly provides that a limited liability company member cannot be held liable for the malfeasance of a limited liability company by virtue of his membership in the limited liability company alone; in other words, he must do more than merely be a member in order to be liable personally for an obligation'of the limited liability company. The statute thus does not preclude individual liability for members of a limited liability company if that liability is not based simply on the member’s affiliation with the company.” (Citation omitted; emphasis added; internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 136-37, 2 A.3d 859 (2010).

Although the trial court found Joseph General, Lan-del, and Silvestri jointly and severally liable for breaching their contractual obligations to the Coutos, the court had the authority, in light of the facts of record, to impose personal liability on Silvestri for reasons other than his membership in each of those corporations. Significantly, the court expressly found that “while the initial contract may well have been between the Coutos and Joseph General, subsequent developments without any signed agreements make it clear that, because of the individual failure to obtain financing on the part of Mr. Silvestri, the individual importuning by Mr. Silvestri, and the individual tortious conduct of Mr. Silvestri . . . the actions of the parties can only be construed as joint action by Mr. Silvestri, Joseph General and Landel, and therefore the court finds against those three parties on [the breach of contract] counts.”

The evidence of record supports the trial court’s findings. From the beginning of the contract negotiations, Silvestri was aware of the specific purpose for which the Coutos needed a carriage house on their property and represented to them that he could build such a separate dwelling. He did not inform the Coutos that adverse zoning regulations might impair his ability to construct the carriage house in accordance with the contract specifications.

Although the Coutos originally understood that their contract for construction was with Joseph General rather than with Silvestri individually, over time, Silv-estri’s conduct muddied the waters so that, over the course of performance, it became unclear to them with whom they were transacting business. Silvestri, in his personal capacity, pressured the Coutos to change the nature of the contract by paying for the development up front. Silvestri individually signed an escrow agreement with the Coutos for the purpose of estate paving, and obtained a permit for the dock at Admiral Cove in his own name. After Silvestri failed to obtain bank financing, requiring the Coutos to obtain a construction loan, they entered into yet another contract with Silvestri, individually, about the terms for payment of interest on the loan. Throughout these modifications of the original contract, Silvestri personally initiated the modifications in the contractual relationship between the parties. In light of these facts of record, the court found that the Coutos reasonably were entitled to infer from Silvestri’s conduct that he personally had become a party to the contract for the construction of their main house and carriage house.

Silvestri claims that the Coutos, nonetheless, should have recognized that he was always acting as an agent, and therefore for the benefit of Joseph General or Lan-del. In his view, because the Coutos were on notice of the existence of both of his two businesses, they could look only to these entities as the parties responsible for breach of contract.

“To avoid personal liability, it is the duty of an agent to disclose both the fact that he is acting in a representative capacity and the identity of his principal, since the party with whom he deals is not required to discover or to make inquiries to discover these facts.” New England Whalers Hockey Club v. Nair, 1 Conn. App. 680, 683, 474 A.2d 810 (1984). “The law is settled that where an agent contracts in his own name, without disclosing his representative capacity, the agent is personally liable on the contract.” Murphy v. Dell Corp., 184 Conn. 581, 582, 440 A.2d 223 (1981).

The court reasonably found that it was unclear to the Coutos which party was responsible for each term of the modified contract. Although Silvestri attempts to shift the burden of disproving an agency relationship to the Coutos, the burden to prove such a relationship lies on the party claiming the benefit of the relationship. See New England Whalers Hockey Club v. Nair, supra, 1 Conn. App. 683. The fact that the Coutos were aware of the existence of Landel and Joseph General does not satisfy this burden. Although, at the outset, Silvestri disclosed the identity of his principals, it was reasonable for the court to find that, thereafter, he did not clearly inform the Coutos that he continued, at all times, to be acting in a representative rather than in an individual capacity. In light of that finding, it was not clear error for the court to find that Silvestri was a party to the modified contract and hence personally liable for breach of contract.

B

Silvestri also challenges the propriety of the court’s finding that he is personally liable for breach of implied warranty. In his brief, however, he has failed to provide any analysis in support of his challenge to the court’s finding that he is individually liable for breach of implied warranty. “[W]e are not required to review claims that are inadequately briefed. . . . We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Paoletta v. Anchor Reef Club at Branford, LLC, 123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298 Conn. 931, 5 A.3d 491 (2010). Silvestri’s claim that he is not personally liable for breach of warranty, therefore, merits no further consideration.

II

Silvestri next claims that the court improperly held him personally liable for tortiously causing debris to be buried on lot 5, which was owned by the Coutos. Silvestri does not contend that his two companies, Joseph General and Landel, were improperly held liable for trespass. Rather, he again claims that he was at all times acting solely as an agent of his two corporations. Because, concededly, Silvestri did not personally bury the debris, he maintains that he cannot be held personally hable for the damage it caused to the Coutos’ property. We disagree.

“Because the issue of whether a corporate officer has committed or participated in the wrongful conduct of a corporation is a question of fact, it is subject to the clearly erroneous 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.) Cohen v. Roll-A-Cover, LLC, 131 Conn. App. 443, 467-68, 27 A.3d 1, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011).

In fight of the court’s finding that the contractual relationship between Silvestri and the Coutos had changed over time, it was reasonable for the court to find that, because of Silvestri’s conduct, it became unclear to the Coutos with whom they were dealing in regard to the various elements of the construction agreement. This uncertainty also supports the court’s finding in favor of the Coutos on this issue. Further, “[i]t is black letter law that an officer of a corporation who commits a tort is personally liable to the victim regardless of whether the corporation itself is liable.” Kilduff v. Adams, Inc., 219 Conn. 314, 331-32, 593 A.2d 478 (1991). Having found that Silvestri caused the debris to be placed on the Coutos’ property, the court specifically and properly held him personally responsible for his own tort, not the tortious conduct of his businesses.

“[A]n officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby.” Scribner v. O’Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975) (builder undertaking supervision of construction and present at construction site personally liable for negligence causing flooding of site). “Thus, a director or officer who commits the tort or who directs the tortious act done, or participates or operates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for the tort.” (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 142, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d. 664 (2006). General Statutes § 34-134 “evinces no legislative intent to eliminate the right to impose liability on a member or manager of a limited liability company who has engaged in or participated in the commission of tortious conduct. Rather, the statute merely codifies the well established principle that an officer of a corporation does not incur personal liability for its torts merely because of his official position.” (Internal quotation marks omitted.) Id., 145.

In Ventres, our Supreme Court affirmed the imposition of individual tort liability on a coiporate officer without piercing the corporate veil. In that case, the defendant, who was the sole member of the codefen-dant airport company, was held personally hable for trespass; id., 110-13; despite his claim that he acted solely as a corporate officer when he ordered that trees on a neighboring land trust be cleared. Id., 141. The court reasoned that, because there was ample evidence demonstrating that the defendant had ordered the clearing, he was liable for trespass, regardless of whether he was acting in his individual capacity or on behalf of the corporation. Id., 142-43.

Silvestri argues that Ventres does not govern this case because there was no evidence at trial demonstrating that he personally had ordered the debris to be buried under the carriage house foundation. This argument overlooks the court’s express finding that he personally caused a large amount of construction debris to be placed on the Coutos’ property and that the Coutos were damaged by that trespass.

The evidence of record supports the court’s findings. Jane Couto testified that Silvestri ceased work on the construction project in March, 2007. John Couto testified that the debris on lot 5 was discovered about a year after that time, in March, 2008, and was identified as originating from the foundation of the original carriage house constructed by Silvestri. He further testified that the parties had determined that the foundation was too small to accommodate the carriage house and that Silvestri, despite his promise to take remedial measures, had failed to complete them. Peter Giordano, the home builder hired by the Coutos after the relationship with Silvestri had come to an end, testified that during the continued construction of the carriage house, debris such as pipes, tires and large boulders had been discovered buried under its foundation. In the absence of evidence of any other intervening cause, the court logically inferred that the debris would not have been buried on lot 5 unless it had been placed there at Silvestri’s direction or through his negligence.

When reviewing a court’s conclusion for clear error, we may not disturb findings of fact if, on the basis of the evidence before the court and the reasonable inferences to be drawn from that evidence, the trier of fact reasonably could have found as it did. See Suresky v. Sweedler, 140 Conn. App. 800, 807, 60 A.3d 358 (2013). The trial court in the present case reasonably decided, on the basis of the testimony presented at trial and the reasonable inferences drawn therefrom, that Silvestri was personally responsible for the debris that damaged the Coutos’ property, notwithstanding the joint and several liability of his two businesses.

Ill

Finally, Silvestri claims that the court improperly held him personally liable for violations of CUTPA. He again argues that as a corporate officer, he is not personally hable for the actions of his businesses and, furthermore, that the factual foundation required to find a violation of CUTPA was lacking because the court failed to find him liable for fraud. We disagree.

For the reasons already discussed, the court did not pierce the corporate veil in finding that Silvestri had personally violated CUTPA, but rather held him liable for his actions as an individual. Specifically, the court found that Silvestri had violated CUTPA through his own actions, which the court described as “unscrupulous, oppressive, unfair and deceptive.” “It is weh settled that whether a defendant’s acts constitute . . . deceptive or unfair trade practices under CUTPA, is a question of fact for the trier, to which, on appellate review, we accord our customary deference. . . . [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Rana v. Terdjanian, 136 Conn. App. 99, 122, 46 A.3d 175, cert. denied, 305 Conn. 926, 47 A.3d 886 (2012).

In support of its determination that Silvestri violated CUTPA, the court cited, among other evidence, his failure to obtain financing and placement of responsibility for financing on the Coutos, the pressure he exerted on them to convince them to accept contract modifications, his demand for payment beyond what had been earned and his dumping of debris on their property. These findings, which we find to be supported in the record, justify a court’s determination of a personal violation of CUTPA, even without a finding of fraud. “Although CUTPA is primarily a statutory cause of action; see General Statutes § 42-110b; it equally is recognized that CUTPA claims may arise from underlying causes of action, such as contract violations or torts . . . .” Sturm v. Harb Development, LLC, supra, 298 Conn. 139.

“Our Supreme Court has affirmed the imposition of individual tort liability, without requiring the piercing of the corporate veil to hold a corporate officer personally hable for tortious conduct in which the officer directly participated, regardless of whether the statutory basis for the claim expressly allows liability'to be imposed on corporate officers.” (Emphasis in original; internal quotation marks omitted.) Cohen v. Roll-A-Cover, LLC, supra, 131 Conn. App. 469. Here, the court properly found that Silvestri personally engaged in tortious conduct directed at the Coutos. Accordingly, we conclude that the court’s finding that Silvestri was personally liable for his conduct under CUTPA was not clearly erroneous.

We commend the trial court for its meticulous assessment of the facts and the law of a complex commercial relationship between a professional builder and first time home buyers.

The judgments are affirmed.

In this opinion the other judges concurred.

       Because there are multiple parties in this appeal who are both plaintiffs and defendants, we refer to the parties by their names for the sake of clarity.

       Specifically, Joseph General’s complaint alleged breach of contract, unjust enrichment, breach of the covenant of good faith and fair dealing and asserted promissory estoppel against the Coutos.

       The Coutos subsequently substituted a bond held by Travelers Casualty and Surety Company of America (Travelers) in lieu of the mechanic’s lien, and the two actions were then consolidated. The court granted Joseph General leave to amend its complaint to include a fifth count against Travelers. Travelers, however, is not a party to the present appeal. Further, the defendant Stock Building, Inc., was named as a defendant subsequent encum-brancer in the mechanic’s lien action but was a nonappearing party at trial and is not a party to the present appeals.

       The Coutos filed a second amended complaint on February 4, 2010.

       The court previously had granted the Coutos’ motion to consolidate two additional actions concerning the construction site on October 2, 2009, which were also considered during the court trial but are not relevant to these appeals.

       The count for declaratory relief concerning the rights enjoyed by lots 1 and 5 of the Admiral Cove subdivision in Stonington was dismissed for lack of jurisdiction and for failure to add the necessary parties.

       During trial, the court delivered a partial judgment from the bench on May 31, 2011, in which it rendered the judgments described previously, but reserved judgment on the issue of Silvestri’s personal liability for breach of contract, requesting supplemental briefing by both parties on that issue. The parties failed to submit posttrial briefs, and in an October 26, 2011, written memorandum of decision, the court held Silvestri personally liable, in addition to Joseph General and Landel, for breaching his contractual obligations to the Coutos.

       Although Joseph General and Landel are referred to as appellants in these appeals, only Silvestri challenges the court’s judgment, and does so solely in his capacity as an individual. The Coutos have not appealed from the denial of their claims for intentional infliction of emotional distress or declaratory relief.

       The evidence in the record demonstrates that Silvestri believed he could build the two dwellings despite this zoning restriction by not installing a stove in the secondary dwelling to be built on lot 5. He did not, however, inform the Coutos that building the carriage house could present a zoning issue. The Coutos’ later application for a variance was denied.

       After oral argument in this court, counsel for SEvestri represented, for the first time, that the written construction contract contained a merger clause, an issue on which questions had been raised at oral argument. In light of a timely objection by counsel for the Coutos, we decline to consider this additional information in our review of the present appeals.

       General Statutes § 34-133 (a) provides: “Except as provided in subsection (b) of this section, a person who is a member or manager of a limited liability company is not liable, solely by reason of being a member or manager, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability of the limited liability company, whether arising in contract, tort or otherwise or for the acts or omissions of any other member, manager, agent or employee of the limited liability company.”

       Peter Giordano, the residential home builder hired by the Coutos to continue the development on lot 5 after Silvestri ceased construction, testified that he informed the Coutos that the carriage house could not be a legal second dwelling. He further testified that Mrs. Couto was surprised and upset upon learning of the zoning restriction on the property.

       General Statutes § 34-134 provides: “A member or manager of a limited liability company is not a proper party to a proceeding by or against a limited liability company solely by reason of being a member or manager of the limited liability company, except where the object of the proceeding is to enforce a member’s or manager’s right against or liability to the limited liability company or as otherwise provided in an operating agreement.”

       In holding him liable for trespass, the court also found that Silvestri “wilfully prevented the Coutos from accessing the sewer line, requiring the Coutos to obtain relief by suing to prevent [him] from continuing to block their access to the sewer line to which they were so clearly entitled.” Silvestri does not challenge this finding on appeal.

       General Statutes § 42-110b provides in relevant part: “(a) No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. ...”


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    JPMORGAN CHASE BANK, N.A. v. DONALD ELDON ET AL.
    (AC 33968)
    Lavine, Robinson and Harper, Js.

      Argued March 6
    officially released July 23, 2013

      Laura Pascóle Zaino, with whom was Brian D. Rich, for the appellant (plaintiff).

      Hanson Guest, with whom, on the brief, was Megan L. Piltz, for the appellee (named defendant).
   Opinion

ROBINSON, J.

The plaintiff, JPMorgan Chase Bank, N.A., appeals from the judgment of the trial court rendered in favor of the defendant Donald Eldon. On appeal, the plaintiff claims that the trial court abused its discretion by denying its motion to open the judgment, motion to reargue and motion for permission to amend its responses to the defendant’s request for admission because the denials were based on default admissions that were plainly false and because they represented a harsh, disproportionate discovery sanction. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. On April 12, 2010, the plaintiff initiated a foreclosure action for property located at 109 Godfrey Road in Weston that was owned by the defendant. The plaintiff alleged in its complaint that on March 22, 2006, the defendant had executed a mortgage and note in favor of Washington Mutual Bank, F.A. (Washington Mutual). It further alleged that Washington Mutual was subsequently acquired by the plaintiff by virtue of an acquisition on September 25, 2008, and that the plaintiff was the holder of the note and mortgage. The plaintiff alleged that the defendant was in default, that the plaintiff had elected to accelerate the balance due on the note and that the defendant had failed to cure the default. Accordingly, it sought to foreclose on the property.

The defendant filed an answer on October 12, 2010, and asserted as a special defense that, inter alia, the plaintiff was not the proper owner of the note and mortgage. On November 3, 2010, the defendant served the plaintiff with a request for admission, a request for interrogatories and a request for production. He additionally filed a notice of request for admission with the court that day. In response, the plaintiff filed a motion for protective order with respect to the requests for admission, interrogatories and production on November 17, 2010, which the court denied on November 29,2010. The plaintiffs motion to reargue the denial of its motion for protective order was denied on December 28, 2010.

On December 30, 2010, the defendant filed a motion to determine the sufficiency of admission, pursuant to Practice Book § 13-23, and a motion to compel (first motion to compel), pursuant to Practice Book §§ 13-7 and 13-10. The first motion to compel sought compliance with the defendant’s requests for admission, interrogatories and production, but relied on Practice Book §§ 13-7, 13-10 and 13-14, which only pertain to the requests for interrogatories and production. Prior to the court’s ruling on those motions, the plaintiff filed a second motion for protective order on January 6, 2011, which was essentially the same as the first motion for protective order.

On January 11,2011, the court denied the defendant’s motion to determine the sufficiency of admission and first motion to compel. As part of its order with respect to the motion to determine the sufficiency of admission, the court deemed the thirty day time period to respond to a request for admission as having commenced on December 28, 2010, the day the court denied the plaintiffs motion to reargue the denial of its first motion for protective order. On January 19, 2011, the court denied the plaintiffs second motion for protective order.

On February 9, 2011, the defendant filed a second motion to compel, which was essentially the same as the first motion to compel, and a motion for summary judgment as to liability only. The defendant sought summary judgment on the ground that, due to the plaintiffs failure to respond to the request for admission, the relevant admissions—that the plaintiff had no legal or equitable interest in the note and mortgage and that the note had been paid in full by a third party—were deemed admitted.

On February 18, 2011, the plaintiff filed its denials and objections to the defendant’s request for admission. It also filed an objection to the second motion to compel, stating that notice of the January 11, 2011 order was not sent until January 26, 2011, providing the plaintiff with fewer than three days to comply and arguing that, in the interest of fairness, the plaintiff should be allowed thirty days from the date that notice of the January 11, 2011 order was sent. On March 10, 2011, the plaintiff filed an objection to the defendant’s motion for summary judgment.

On March 14, 2011, the court granted the defendant’s second motion to compel, ordering compliance by May 1, 2011, and overruled the plaintiffs objection. The plaintiff filed a motion to reconsider the granting of the second motion to compel on March 22, 2011, which the court denied on March 23, 2011.

Thereafter on May 26, 2011, after hearing oral argument, the court granted the defendant’s motion for summary judgment. On August 1, 2011, the plaintiff filed a motion to open the summary judgment. It argued that the court should open the judgment on the basis of the equitable grounds of accident, mistake and confusion due to the court’s previous orders regarding discovery. Prior to the court’s ruling on its motion to open, the plaintiff filed a motion for permission to amend its responses to the request for admission. The court denied the motion to open on October 12, 2011.

On October 28, 2011, the plaintiff filed a motion to reargue and appealed the denial of its motion to open. After the court denied the motion to reargue on October 31,2011, the plaintiff filed an amended appeal, additionally appealing from the denial of the motion to reargue. The plaintiff filed a second amended appeal challenging the court’s denials of its motion to open, motion to reargue and motion for permission to amend its responses to the request for admission after the court denied the plaintiffs motion for permission to amend its responses to the request for admission.

On appeal, the plaintiff claims that the court abused its discretion in denying its motions to open and to reargue because its responses to the request for admission were timely based on the court’s March 14, 2011 order regarding the defendant’s second motion to compel and because notice of the original deadline to file its denials was issued two days before its expiration. Moreover, it maintains that the court abused its discretion in denying the plaintiff’s motion for permission to amend because the defendant would not have been prejudiced by the amendment, as he would have retained his ability to pursue his defenses, and because it would have corrected the erroneous judgment. Additionally, the plaintiff asserts that the court abused its discretion with regard to the three motions because the orders represent a harsh, disproportionate discovery sanction imposed in a foreclosure action. Alternatively, the plaintiff claims that the court committed plain error by allowing a judgment that is based on facts that are plainly false to stand. We are not persuaded.

I

We first address the plaintiff’s claim that the court’s denial of its motion to open the judgment was an abuse of discretion. The following additional procedural history is necessary for the resolution of this claim.

Prior to the court’s ruling on the defendant’s first motion to compel and motion to determine the sufficiency of admission, the plaintiff filed a second motion for protective order. The court denied the defendant’s first motion to compel and motion to determine the sufficiency of admission on January 11, 2011. It noted that pursuant to Practice Book § 13-23 (a), a requested admission is deemed admitted after thirty days if no response is given. The court also noted that on the date when the admission would have been deemed admitted, the plaintiff’s motion to reargue the order denying its motion for protective order was pending. The court stated that if it “were to rule that the matters in question were deemed to be admitted for failure to respond during that period, the plaintiff’s motion to reargue would have been preempted.” Recognizing that the court had the authority to shorten or lengthen the time to respond to a request for admission, the court concluded that “[u]nder the circumstances here presented the court orders, in the interest of fairness and facilitation of orderly procedure which avoids the preemption of a pending motion, that the thirty day deadline of Practice Book § 13-23 (a) is extended to the extent that it shall be deemed to commence on December 28, 2010, when the motion to reargue the denial of the plaintiffs motion for protective order was denied. Since thirty days from December 28, 2010, have not yet passed, the plaintiff is not at this time deemed to have admitted any matter of which an admission has been requested.” Accordingly, the plaintiffs responses to the request for admission were due no later than January 27, 2011. Notice of the court’s order was sent on January 26,2011. The court subsequently denied the plaintiffs second motion for protective order, on January 19,2011, stating that “[t]he plaintiff has failed to demonstrate the need for a protective order.” Notice of that order was sent on January 20, 2011.

Thirteen days after the plaintiffs responses were due and twenty-one days after the court’s denial of the plaintiffs second motion for protective order, on February 9, 2011, the defendant filed a second motion to compel that was substantially similar to the first motion to compel and a motion for summary judgment on the basis of the request for admission that was deemed admitted due to the passage of time without a response. On February 18, 2011, nine days after the defendant’s motion for summary judgment and motion to compel had been filed, and twenty-two days after the court’s deadline to file a response to the request for admission, the plaintiff filed its denials and objections to the request for admission. It also filed an objection to the second motion to compel that same day.

On March 10, 2011, the plaintiff filed an objection to the motion for summary judgment. In its objection, the plaintiff argued that it had complied with the court’s January 11, 2011 order because its responses to the request for admission were filed fewer than thirty days from its receipt of the January 11, 2011 order and less than thirty days from the denial of its second motion for protective order. On March 14, 2011, the court granted the defendant’s second motion to compel and ordered compliance by May 1, 2011.

On May 23, 2011, the court heard oral argument on the motion for summary judgment. Before the plaintiff began its argument, the court first established that the plaintiff had not attached any documentary evidence to its objection and that it had chosen not to present any evidence to rebut the admission. The plaintiff then argued that notice ofthe January 11,2011 order granting it an extension of time to file its responses to the request for admission was not sent until January 25,2011, which gave the plaintiff only two days to comply with the order. The plaintiff further argued that, in the interest of justice and as a court of equity, it should be allowed thirty days from the date that the order was issued to respond.

The court responded that “[w]hat is equitable and which would make your request in terms of equity resonate would be if I had something before me that said, look, don’t bind us to these admissions that were deemed to have been made by us because, in fact, we have evidence that will show that these admissions are not true, that, in fact, we have evidence of a good cause of action, that we have evidence that we did not receive these payments, that we have evidence that we were valid owners of this note when we commenced the action. All those things would, I think, allow the court in an equitable proceedings to say . . . [the plaintiff] should not be deprived of a valid cause of action because of all the technicalities involved in the situation . . . but you haven’t given me that. And I don’t see how in the absence of that I can invoke through the use of the court’s equitable powers granting you relief from the consequences of your untimely response to the request for admissions.”

In reply, the plaintiff stated that it did have evidence to support its position and requested an additional two weeks to file an amended objection. It also requested that the date for submission of its responses be thirty days from the denial of the plaintiffs second motion for protective order, which occurred on January 19, 2011. When questioned by the court, the plaintiff did admit, however, that no rule of practice or case law supported its position that a motion for protective order tolled the running of the thirty day deadline for responding to a request for admission. The court also elicited from the plaintiff that neither motion for protective order sought a thirty day extension to respond to the request for admission if the motions were denied, that the plaintiff did not file a motion for extension of time when it received the January 11, 2011 order on the motion to determine the sufficiency of admission, that it did not immediately file responses when it received the January 11,2011 order and that the plaintiff did not ask for permission from the court to entertain the late filing.

In rendering summary judgment in favor of the defendant, the court rejected the plaintiffs argument that its denials to the request for admission were timely “because of an implicit extension of thirty days which arises each time the plaintiff applied for a protective order pursuant to [Practice Book] § 13-6. The plaintiff offered no authority supporting this argument. The court finds the argument to be unconvincing.” Having concluded that the admissions stating that the plaintiff was not the holder of the mortgage and that the mortgage had been paid in full were deemed admitted, the court declined to exercise its equitable powers “to relieve the plaintiff of the consequences of its failure to file timely responses to the defendant’s requests for admissions” when the plaintiff had “failed to support [its] argument with affidavits or other documentary evidence supporting the fact that it was, in fact, the holder of the mortgage on the defendant’s property which had not been paid in full.” Accordingly, it concluded that the plaintiff had failed to demonstrate a genuine issue of material fact that it had a valid cause of action against the defendant.

More than two months after the summary judgment, on August 1, 2011, the plaintiff filed a motion to open the judgment. It argued that the summary judgment should be opened for two reasons. The plaintiff first claimed that its belief that it had thirty days from the denial of its second motion for protective order was not negligence, but a mistake or error “based upon the complexity of the discovery orders and confusion surrounding such.” The plaintiff also argued, for the first time, that because the defendant’s second motion to compel contemplated the request for admission as well as the other discovery requests, the court’s order mandating compliance by May 1, 2011, must have applied to the request for admission. Because the plaintiff had submitted its denials to the request for admission before the May 1, 2011 compliance date, the plaintiff contended that its submissions were timely.

In its October 12, 2011 order, the court denied the plaintiffs motion to open. In its memorandum of decision, the court recited the procedural history of the case, specifically noting that the defendant’s second motion to compel was addressed to the requests for interrogatories and production. The court then rejected the plaintiffs arguments, stating that the “arguments advanced by the plaintiff in support of [the ground of accident, mistake or confusion] are nothing more than a reassertion of the arguments advanced by the plaintiff (and rejected by the court) in its opposition to [the defendant’s] motion for summary judgment. Notably absent from that opposition and from this motion to open [the] judgment are any affidavits or documentary evidence demonstrating that [the] plaintiff has a valid cause of action.” The court concluded that there was no equitable basis to open the summary judgment rendered in favor of the defendant and, accordingly, denied the plaintiffs motion to open.

We begin with our standard of review. “The denial of a motion to open is an appealable final judgment. . . . Although a motion to open can be filed within four months of a judgment . . . the filing of such a motion does not extend the appeal period for challenging the merits of the underlying judgment unless filed within the [twenty day period provided by Practice Book § 63-1]. . . . When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment. . . . This is so because otherwise the same issues that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time to appeal.” (Citation omitted; internal quotation marks omitted.) Worth v. Korta, 132 Conn. App. 154, 158-59, 31 A.3d 804 (2011), cert. denied, 304 Conn. 905, 38 A.3d 1201 (2012).

“The principles that govern motions to open or set aside a civil judgment are well established. Within four months of the date of the original judgment, Practice Book [§ 17-4] vests discretion in the trial court to determine whether there is a good and compelling reason for its modification or vacation. . . .

“Because opening a judgment is a matter of discretion, the trial court [is] not required to open the judgment to consider a claim not previously raised. The exercise of equitable authority is vested in the discretion of the trial court and is subject only to limited review on appeal. . . . We do not undertake a plenary review of the merits of a decision of the trial court to grant or to deny a motion to open a judgment. The only issue on appeal is whether the trial court has acted unreasonably and in clear abuse of its discretion. . . . In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action.” (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Taper, 288 Conn. 69, 94-95, 952 A.2d 1 (2008).

In the present case, the plaintiff raised two arguments to the trial court, one that acknowledged an improper reading of the court’s January 11, 2011 order and one that raised a claim that the plaintiff had not raised to the court in its opposition to the motion for summary judgment, namely, that its responses were timely due to the court’s March 14, 2011 order regarding the defendant’s second motion to compel.

The plaintiff’s acknowledged erroneous interpretation of a court order is not a good and compelling reason to open the summary judgment, especially given the fact that the plaintiff had ample time and opportunity to rectify the problem. As the court noted during oral argument on the motion for summary judgment, the plaintiff did not ask for an extension of time to respond to the request for admission in the event that its motion for protective order was denied. It did not ask for an extension of time when it realized that notice of the court’s January 11, 2011 order was sent two days prior to the expiration of the new deadline set forth in the order. The plaintiff did not file its responses when it received the court’s January 11, 2011 order and did not ask for permission to file late responses when it did file its responses nearly a month after the imposed deadline. Moreover, as the court noted at oral argument on the motion for summary judgment and in its decisions on the motion for summary judgment and motion to open, the plaintiff failed to provide any evidence to the court that it did, in fact, have an interest in the note at the time that it commenced the action and that the debt was still outstanding. Accordingly, the court did not abuse its discretion in denying the motion to open on this ground.

As to the second ground, “the trial court [is] not required to open the judgment to consider a claim not previously raised.” (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, supra, 288 Conn. 94. Athhough the plaintiff argued in its motion to open that the March 14, 2011 order of compliance “must have applied” to the request for admission and that it had a good faith basis to believe that the responses were timely, the plaintiff did not file a supplemental objection to the motion for summary judgment nor did it make this argument during oral argument, more than two months after the order was issued. Thus, the court was not required to consider it. Moreover, the plaintiffs failure to appeal from the summary judgment or to file the motion to open within twenty days of the rendering of summary judgment precludes us from considering the merits of this argument. See Worth v. Korta, supra, 132 Conn. App. 158-59. Thus, we conclude that the court did not abuse its discretion in not opening the summary judgment.

II

We next address the plaintiffs claim that the court’s denial of its motion to reargue was an abuse of discretion. The following additional procedural history is necessary for the resolution of this claim.

On September 9, 2011, prior to the court’s ruling on its motion to open, the plaintiff filed a motion for permission to amend its responses to the request for admission. When the court denied the motion to open on October 12, 2011, it noted, in a footnote, that “[a]lso pending, although not presently before the court, is the plaintiffs motion to amend its answers to [the defendant’s] request for admissions. In light of the court’s ruling, that motion . . . would appear to be moot.”

On October 28, 2011, the plaintiff filed a motion to reargue the motion to open. For the first time, the plaintiff challenged the admissions related to whether the plaintiff had received payments from third parties and whether the note had been paid in full. It contended that the admissions were inadmissible hearsay and that there was no factual basis for the admissions. Also, for the first time, the plaintiff attached an affidavit as well as other documentary evidence that sought to establish its ownership of the note and mortgage and the continued indebtedness of the defendant. Additionally, it characterized the court’s denial of the motion to open as a sanction for violation of a discovery order that amounted to a complete forfeiture of the defendant’s indebtedness. The plaintiff then urged the court to impose a sanction proportionate to the violation based on the same arguments that it had made previously regarding the confusion in discovery orders by the court.

The plaintiff further argued that it should be allowed to amend its responses pursuant to Practice Book § 13-24. The plaintiff stated that it had provided evidence that contradicted the admission, namely, that the plaintiff was the holder of the note at the commencement of the foreclosure action, that the loan was in default and that the loan had not been paid off by a third party. It claimed that the defendant’s reliance on the admission should not be deemed reasonable because the denial of the admission was twenty-one days late and because the defendant could not provide any evidence that the loan was paid off or that the plaintiff was not the proper party to bring the action. Moreover, the plaintiff maintained that during the mediation program, the defendant had never claimed that the loan was paid off or that the plaintiff was not the proper party. Accordingly, the plaintiff asserted, the defendant could not show actual prejudice to his defense if the plaintiff were allowed to amend its responses to the request for admission.

The trial court denied the motion to reargue on October 31, 2011, and upon an order of articulation by this court, the trial court stated that “it denied the plaintiffs motion to reargue because it did not believe that the plaintiff set forth any new arguments that would lead the court to believe that it overlooked any controlling law or that the court misapprehended the relevant facts when ruling on the plaintiffs motion to open. See Practice Book [§] 11-12 and Opoku v. Grant, [63 Conn. App. 686, 692, 778 A.2d 981 (2001)]. The factual and legal basis for the court’s denial of the plaintiffs motion to open is fully set forth in the court’s memorandum of decision dated October 12, 2011. That memorandum of decision further explains the basis on which the court granted summary judgment in favor of the defendant.”

“The standard of review for a court’s denial of a motion to reargue is abuse of discretion. . . . When reviewing a decision for an abuse of discretion, every reasonable presumption should be given in favor of its correctness. ... As with any discretionary action of the trial court . . . the ultimate [question for appellate review] is whether the trial court could have reasonably concluded as it did. . . .

“[T]he purpose of a reargument is ... to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts. ... It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court. ... [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple . . . .” (Internal quotation marks omitted.) Fortin v. Hartford Underwriters Ins. Co., 139 Conn. App. 826, 843, 69 A.3d 247, cert. granted on other grounds, 308 Conn. 905, 61 A.3d 1048 (2013). “Newly discovered evidence may warrant reconsideration of a court’s decision. However, [f]or evidence to be newly discovered, it must be of such a nature that [it] could not have been earlier discovered by the exercise of due diligence.” (Internal quotation marks omitted.) Durkin Village Plainville, LLC v. Cunningham, 97 Conn. App. 640, 656, 905 A.2d 1256 (2006).

The plaintiffs submission of documentary evidence of its interest in the note and mortgage as well as the continued indebtedness of the defendant in support of its motion to reargue was not newly discovered evidence that would warrant reconsideration of the court’s decision to deny the motion to open. At oral argument on the defendant’s motion for summary judgment, the plaintiff indicated that it had evidence that it possessed the note and mortgage, that the note was in default and that the indebtedness remained. It chose not to produce that evidence, either at the summary judgment stage or in support of its motion to open the judgment. Because the plaintiff had established that the evidence was within its possession prior to filing the motion to reargue, the court properly did not consider it when deciding that motion.

The court also properly declined to consider the plaintiffs other arguments as they represented a “ ‘second bite at the apple.’ ” Fortin v. Hartford Underwriters Ins. Co., supra, 139 Conn. App. 843. The plaintiff cannot claim that the arguments were raised previously but were not addressed by the court on the motion to open. Nor did the arguments bring to the court’s attention some principle of law that had been overlooked or a misapprehension of the facts. Moreover, these additional arguments represent a collateral attack on the summary judgment that we already have determined is not permitted in this case. Accordingly, the court did not abuse its discretion in denying the plaintiffs motion to reargue.

Ill

Next, we address the plaintiffs claim that the court’s denial of its motion for permission to amend its responses to the request for admission was an abuse of discretion. The following procedural history is necessary to address this claim.

In its motion to amend, the plaintiff requested permission to remove any objections, to deem all requests denied, with the exception of number seventeen, and to allow such filing to be deemed timely. It argued that the amendment should be granted because there was no basis in fact to support a finding that the admissions were true based on the merits of the case and because the presentation of the merits of the case would be subserved by reliance on the untrue and inaccurate admissions. The plaintiff maintained that it was “able to offer evidence that clearly and conclusively contradicts the findings of the admissions .... If the [c]ourt allows this [ajmendment and allows the opening of the [s]ummary [judgment finding, [the] [p]laintiff is prepared to submit an [a]ffidavit showing that the [p]laintiff has standing in this action, the underlying loan is in default, the loan has not been paid off by the [defendant] or some other third party and that a substantial loan balance remains unpaid on this account.” The plaintiff further maintained that there was confusion “regarding notices and potentially conflicting court orders regarding discovery due dates in this matter” and that to “not allow the [p]laintiff this amendment would reward [the] [defendant's unreasonable reliance in order to glorify technical compliance with the rules of practice.”

The court subsequently denied the motion to open and determined that the motion to amend was moot. Nevertheless, the plaintiff reclaimed the motion to amend on November 16, 2011, and filed a request to argue the motion on November 22, 2011. Oral argument was heard on February 21, 2012.

At oral argument, the court first noted that the motion appeared to be late and represented a collateral attack on the court’s judgment. It also challenged the efficacy of granting the motion given that the case was pending on appeal in front of this court. The plaintiff argued that, given the different standard for deciding a motion to amend, the motion should be resolved for this court’s consideration of the issue. It also maintained that if the court granted the motion, the plaintiff would be able to seek to vacate the summary judgment. The court responded that it did not see how the interest of justice would be served by allowing the plaintiff to amend its responses more than a year after summary judgment had been rendered, especially considering the fact that the plaintiff did not act after the motion was granted. The court continued, stating: “[W]hy . . . should I allow at this late date the plaintiff to make this attack, which in effect is to reward [its] lack of diligence?” The plaintiff responded that in “somewhat analogous” cases, the court had allowed amendments after a long period of time. It also asserted that the original responses were less than a month late. Concluding that the fact that the attorney who had handled the motion for summary judgment was no longer employed by the law firm representing the plaintiff did not constitute good cause and that it still believed that the motion was moot, the court denied the motion.

Practice Book § 13-24 (a) provides in relevant part: “Any matter admitted under this section is conclusively established unless the judicial authority on motion permits withdrawal or amendment of the admission. The judicial authority may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the judicial authority that withdrawal or amendment will prejudice such party in maintaining his or her action or defense on the merits . . . .”

“A trial court has wide discretion in granting or denying amendments to the pleadings and only rarely will this court overturn the decision of the trial court. . . . To reverse a ruling of the trial court [denying] an amendment to the pleadings requires that the [plaintiff] make a clear showing of abuse of discretion. . . .

“In determining whether there has been an abuse of discretion, much depends on the circumstances of each case. ... In the final analysis, the court will allow an amendment unless it will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues, or if there has been negligence or laches attaching to the offering party.” (Citations omitted; internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 177-78, 783 A.2d 1226 (2001).

The court did not abuse its discretion in denying the motion to amend because at the time of the court’s decision, the merits of the case already had been decided. Summary judgment was rendered on May 25, 2011, and the plaintiff did not appeal that decision. Its motions to open and to reargue were denied on October 12,2011, and October 31,2011, respectively. By the time the court heard oral argument on the motion to amend, judgment in favor of the defendant had been in effect for nearly a year. Moreover, the court determined that granting the motion to amend would reward the plaintiff’s lack of diligence.

Because, in effect, the action was no longer pending before the trial court, the plaintiff’s reliance on Kelley v. Tomas, supra, 66 Conn. App. 146, is misplaced. In Kelley, the plaintiff requested an admission from the defendant. Id., 176. Due to personal problems, the defendant’s counsel was unable to file responses. Id. Because of the defendant’s failure to respond, the plaintiff deemed the request for admission admitted and moved for summary judgment. Id., 177. The defendant filed a motion for permission to amend its responses to the request for admission, which the court granted. Id., 177. The case went to trial. Id., 173. Unlike in Kelley where the merits of the action had not yet been adjudicated when the court granted the defendant’s motion to amend, in the present case a final judgment on the merits had been rendered by the time that the plaintiffs motion to amend had been filed and decided. Because the plaintiff has provided us with no case law that shows that a court’s denying a motion for permission to amend responses to a request for admission after judgment has been rendered is an abuse of discretion, and we can find none, we conclude that the court did not abuse its discretion in denying the plaintiffs motion for permission to amend its responses to the defendant’s request for admission.

IV

We next address the plaintiffs claim that the court abused its discretion by denying its three motions because the denials represented a harsh, disproportionate discovery sanction in a foreclosure action. It claims that because of the conflicting discovery deadlines, there is a question as to both the clarity of the discovery orders and whether there was a violation of a discovery order.

The plaintiff may be correct that the court imposed a harsh discovery sanction in the foreclosure action. That sanction, however, was imposed when the court granted the defendant’s motion for summary judgment, not when it denied the plaintiffs motions to open, to reargue and to amend. As we have noted previously, because the plaintiff failed to take an appeal from the granting of the motion for summary judgment or to move to open the judgment within twenty days of that decision, we do not engage in an analysis of the merits of that decision. If the plaintiff wanted to challenge the clarity of the court’s discovery orders, it should have done so at the summary judgment stage. Thus, we decline to review the plaintiffs claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       JPMorgan Chase Bank, N.A. i/lda Washington Mutual Bank, F.A., was also named as a defendant in the case because it held a subordinate lien on the property. As it is not a party to this appeal, Eldon will be referred to as the defendant.

       The plaintiff additionally argues that if its first argument is not preserved, the court committed plain error in denying its motions because the judgment is contrary to the record and forgives the indebtedness of the defendant in its entirety. Because the plaintiff both raised and properly preserved its claims, we decline to review the plaintiffs claim that the court committed plain error by rendering judgment in favor of the defendant. “[T]he plain error doctrine ... 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.) Crawford v. Commissioner of Correction, 294 Conn. 165, 204, 982 A.2d 620 (2009); see also State v. Mack, 129 Conn. App. 127, 132 and n.6, 19 A.3d 689 (declining to review under plain error doctrine where evidentiary claims properly were preserved), cert. denied, 302 Conn. 908, 23 A.3d 1245 (2011).

       Practice Book § 13-23 (b) provides in relevant part: “The party who has requested the admission may move to determine the sufficiency of the answer or objection. . . . If the judicial authority determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The judicial authority may, in lieu of these orders, determine that final disposition of the request be made at a designated time prior to trial.”

       The defendant filed a motion to compel on December 20,2010, on which no action was taken. Thus, for the purposes of this opinion, the December 30, 2010 motion to compel will be referred to as the first motion to compel.

       Practice Book §§ 13-7 and 13-10 refer to the procedures for answers to interrogatories and responses to requests for production, respectively.

       Practice Book § 13-14 (a) provides in relevant part: “If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production . . . the judicial authority may, on motion, make such order as the ends of justice require.”

       The plaintiff also argued that the court should not have granted summary judgment, but instead should have dismissed the action for lack of subject matter jurisdiction because the responses that were deemed admitted established that the plaintiff did not own the note at the time that the action was commenced and, therefore, did not have standing to bring the action. The court rejected the plaintiff’s argument as to this issue. The plaintiff does not claim error as to that ruling.

       The postcard notice sent to the parties shows an order date of January 25, 2011. According to the court file, however, notice of the order was sent on January 26, 2011.

       The defendant filed a motion to dismiss the portions of the plaintiffs appeal that challenged the court’s May 25, 2011 decision granting the defendant’s motion for summary judgment because the appeal had not been filed within twenty days of the rendering of summary judgment. This court granted the motion, stating: “The plaintiffs appeal is limited to the October 12, 2011 denial of the motion to open, the October 31, 2011 denial of the motion to reargue and the February 21,2012 denial of the ‘plaintiffs motion for permission pursuant to Practice Book § 13-24 (a) to amend plaintiffs February 18, 2011 responses to defendant’s request for admissions, dated November 3, 2010 and deem such request for admissions timely denied.’ ”

       In its motion to reargue the denial of its motion to open the summary judgment, the plaintiff apologized to the court for the status of the proceedings and noted in a footnote that the attorney who had been assigned the case and had argued against the motion for summary judgment was no longer employed by the law firm representing the plaintiff.

       The plaintiffs reliance, in its motion for permission to amend its responses, on the Superior Court cases that it cites fails for the same reason.

       “In order for a trial court’s order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met. First, the order to be complied with must be reasonably clear. . . . This requirement poses a legal question that we will review de novo. Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review. Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion. . . .
      “[T]he primary purpose of a sanction for violation of a discovery order is to ensure that the defendant’s rights are protected, not to exact punishment on the [plaintiff] for its allegedly improper conduct. . . . The determinative question for an appellate court is not whether it would have imposed a similar sanction but whether the trial court could reasonably conclude as it did given the facts presented. Never will the case on appeal look as it does to a [trial court] . . . faced with the need to impose reasonable bounds and order on discovery.” (Citations omitted; internal quotation marks omitted.) Usowski v. Jacobson, 267 Conn. 73, 85, 836 A.2d 1167 (2003).