author: SCHALLER, J.

text:
    ENFIELD PIZZA PALACE, INC., ET AL. v. INSURANCE COMPANY OF GREATER NEW YORK
    (AC 19268)
    Lavery, Schaller and Spear, Js.

      Argued February 22
    officially released July 25, 2000

      F. Timothy McNamara, for the appellants (plaintiffs).

      Gerald P. Dwyer, for the appellee (defendant).

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

   Opinion

SCHALLER, J.

The plaintiffs appeal from the judgment rendered in favor of the defendant, Insurance Company of Greater New York, in this declaratory judgment action concerning a dispute about the defendant’s duty to defend and indemnify the plaintiffs in an action filed against the plaintiffs. The trial court held that, under the terms of a commercial general liability policy issued by the defendant, the plaintiffs failed to show that they were entitled to a declaratory judgment requiring the defendant to defend and indemnify them. On appeal, the plaintiffs claim that the court improperly concluded that the provisions in the insurance policy were in conflict and that a reasonable resolution of the terms established that the defendant was not required to defend and indemnify the plaintiffs to the full extent of the general liability coverage. We affirm the judgment of the trial court.

The following facts and procedural history provide the necessary background to the disposition of this appeal. The defendant issued the plaintiffs a comprehensive commercial policy that provides general liability, property, crime and automobile coverage. All of the parts, declarations and endorsements of the insurance policy were negotiated and submitted to the plaintiffs as a single document. The policy provides general liability coverage of $1 million.

Under a provision in the policy entitled, “Commercial General Liability Coverage Form,” coverage is excluded for bodily injury or damages for which the insured may be held liable by reason of “(1) Causing or contributing to the intoxication of any person; (2) The furnishing of alcoholic beverages to a person under the legal drinking age or under the influence of alcohol; or (3) Any statute, ordinance or regulation relating to the sale, gift, distribution or use of alcoholic beverage.”

The insurance policy also contains a number of other provisions that are relevant to this appeal. The provision entitled, “Liquor Liability Coverage Form” provides coverage for damages for liability imposed on the insured by reason of the “selling, serving or furnishing of any alcoholic beverage.” That provision states that the insurer shall defend any action seeking those damages, but that the amount the insurer will pay for damages is limited as set forth in the policy. An endorsement entitled “Connecticut Changes—Liquor Liability” limits liquor liability coverage to $20,000 for each person and $50,000 for each common cause. Finally, an endorsement changing the policy concerning liquor liability provides that the exclusion under the general liability coverage part for alcohol related injuries “does not apply.”

During the policy period, Mary H. McGloin was allegedly struck by an automobile driven by Alvard Reyes. Reyes was a minor who allegedly had become intoxicated before the accident at a tavern owned by the plaintiffs. The administrator of McGloin’s estate brought an action against the plaintiffs that is pending in the Superior Court. In the present case, the defendant alleged in a special defense that its liability limit under the policy is $20,000, and that it would pay the plaintiffs this amount and provide them with a defense under the provisions of the policy covering liquor liability.

The plaintiffs brought this declaratory judgment action seeking a judgment requiring the defendant fully to defend the plaintiffs in the McGloin action and to provide indemnity for damages for the full amount of $1 million under the general liability coverage provision of the insurance policy.

In its memorandum of decision, the court concluded that the policy provisions covering general liability and liquor liability were not ambiguous, but that they conflicted. The court concluded: “In the instant case the most reasonable interpretation of the subject policy that reconciles apparently conflicting provisions is that the Connecticut liquor liability coverage of $20,000-$50,000 limits applies to alcohol related injuries and the one million dollar general liability coverage applies to all other types of losses. This interpretation is consistent with the explanation [the] defendant gives in its brief that the alcohol exclusion was eliminated in the general Lability coverage so as not to conflict with the Connecticut liquor liability endorsement, which clearly applies to alcohol related injuries.” Accordingly, the court concluded that the plaintiffs had failed to show that they were entitled to a declaratory judgment.

The plaintiffs claim that the court improperly concluded that the plain meaning of the terms of the insurance policy did not require the defendant to defend and indemnify them to the full extent of the commercial general liability coverage. We are not persuaded.

“ ‘[A]n insurer’s duty to defend ... is determined by reference to the allegations contained in the [injured party’s] complaint.’ Flint v. Universal Machine Co., [238 Conn. 637, 646, 679 A.2d 929 (1996)]. The ‘duty to defend an insured arises if the complaint states a cause of action which appears on its face to be within the terms of the policy coverage.’ . . . Hogle v. Hogle, 167 Conn. 572, 576, 356 A.2d 172 (1975). Because ‘[t]he duty to defend has a broader aspect than the duty to indemnify and does not depend on whether the injured party will prevail against the insured’; Missionaries of the Co. of Mary, Inc. v. Aetna Casualty & Surety Co., 155 Conn. 104, 110, 230 A.2d 21 (1967); ‘[i]f an allegation of the complaint falls even possibly within the coverage, then the insurance company must defend the insured.’ . . . West Haven v. Commercial Union Ins. Co., 894 F.2d 540, 544 (2d Cir. 1990), quoting West Haven v. Liberty Mutual Ins. Co., 639 F. Sup. 1012, 1017 (D. Conn. 1986).” Imperial Casualty & Indemnity Co. v. State, 246 Conn. 313, 323-24, 714 A.2d 1230 (1998).

In this case, the defendant’s duty to defend or indemnify the plaintiffs in the McGloin action depends on the interaction of four separate provisions in the policy: (1) the provision governing general liability coverage; (2) the provision governing liquor liability coverage; (3) the endorsement setting the limits of liquor liability coverage to $20,000 and $50,000; and (4) the endorsement stating that the exclusion for general liability coverage of bodily injury for alcohol related injuries does not apply. We must therefore examine the policy to determine whether it requires the defendant to defend and indemnify the plaintiffs for the injuries for which the underlying tort claims in the McGloin action were based.

“ ‘Unlike certain other contracts . . . where . . . the intent of the parties and thus the meaning of the contract is a factual question subject to limited appellate review . . . construction of a contract of insurance presents a question of law . . . which this court reviews de novo.’. . . Flint v. Universal Machine Co., supra, 238 Conn. 642. ‘An insurance policy is to be inteipreted by the same general rules that govern the construction of any written contract and enforced in accordance with the real intent of the parties as expressed in the language employed in the policy. Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990). The determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. . . . O’Brien v. United States Fidelity & Guaranty Co., 235 Conn. 837, 842, 669 A.2d 1221 (1996). It is axiomatic that a contract of insurance must be viewed in its entirety, and the intent of the parties for entering it derived from the four comers of the policy. Flint v. Universal Machine Co., supra, 643. The policy words must be accorded their natural and ordinary meaning . . . [and] any ambiguity in the terms of an insurance policy must be constmed in favor of the insured because the insurance company drafted the policy. . . . Hansen v. Ohio Casualty Ins. Co., 239 Conn. 537, 542-43, 687 A.2d 1262 (1996).’ . . . Imperial Casualty & Indemnity Co. v. State, supra, 246 Conn. 324-25.” Edelman v. Pacific Employers Ins. Co., 53 Conn. App. 54, 59-60, 728 A.2d 531, cert. denied, 249 Conn. 918, 733 A.2d 229 (1999).

The plaintiffs do not argue that any individual provision of the insurance policy is ambiguous. Instead, they contend that the interaction of the four provisions negates any exclusion to general liability coverage for claims involving alcohol related injuries, thus requiring the defendant to defend and indemnify all claims, including those involving alcohol related injuries, to the full extent of the $1 million coverage. In the alternative, the plaintiffs argue that construing the four provisions together results in an ambiguity as to the extent of the general liability coverage, and that this must be resolved to the benefit of the plaintiff insureds. “A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” (Internal quotation marks omitted.) Schultz v. Hartford, Fire Ins. Co., supra, 213 Conn. 703. Reading the four separate provisions in their entirety and in the context of the policy as a whole, we conclude, as a matter of law, that the clauses are sufficiently clear. We agree, therefore, with the trial court that the policy exclusion for liquor liability coverage is clear and unambiguous, and the issue is one of a potential conflict between the provisions.

“We are reluctant to conclude that a contractual provision ‘constitutes a meaningless gesture by the parties. ’ . . . The rules of construction ‘dictate giving effect to all the provisions of a contract, construing it as a whole and reconciling its clauses. . . . Where two clauses which are apparently inconsistent may be reconciled by a reasonable construction, that construction must be given, because it cannot be assumed that the parties intended to insert inconsistent and repugnant provisions.’ ” (Citation omitted.) Dainty Rubbish Service, Inc. v. Beacon Hill Assn., Inc., 32 Conn. App. 530, 534, 630 A.2d 115 (1993).

“When the plain meaning and intent of the language is clear, a clause . . . cannot be enlarged by construction. There is no room for construction where the terms of a writing are plain and unambiguous, and it is to be given effect according to its language. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 232, 654 A.2d 342 (1995).” (Internal quotation marks omitted.) Warner Associates v. Logan, 50 Conn. App. 90, 95-96, 718 A.2d 48 (1998). Moreover, “[t]he individual clauses of a contract . . . cannot be construed by taking them out of context and giving them an interpretation apart from the contract of which they are a part.” Levine v. Advest, Inc., 244 Conn. 732, 753, 714 A.2d 649 (1998).

There is no question that the express terms of the policy are not ambiguous. The four provisions of the insurance policy must be given effect according to their ordinary meaning and may be reconciled by reasonable construction. The provision governing general liability coverage affords the plaintiffs coverage of up to $1 million. The exclusion under that section for bodily injury or damages resulting from alcohol related occurrences, however, precludes any coverage under that section. The effect of the endorsement providing that that exclusion “does not apply” to the liquor liability provisions and of the provision modifying the limits for liquor liability coverage are the principal source of dispute. The plaintiffs claimed before the trial court that the effect of that endorsement was to remove the exclusion of coverage for damages for alcohol related incidents from the section governing general liability coverage, thereby entitling them to the full extent of the general liability coverage. The court concluded that “[i]f it were to adopt the interpretation of the policy advanced by the [plaintiffs], the Connecticut liquor endorsement setting the limits of $20,000 and $50,000 coverage for alcohol caused accidents would be rendered meaningless.” Further, the court concluded that the provision hmiting coverage for alcohol related injuries to $20,000 and $50,000, as a specific clause, governed over the general liability provision covering all liability and that it should be construed as modifying the general clause. Finally, the court found that the policy was susceptible to a reasonable construction, namely, that “the Connecticut liquor liability coverage of $20,000-$50,000 limits applies to alcohol related injuries and the one million dollar general liability coverage applies to all other types of losses.” We agree with the court’s rationale.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Enfield Pizza Palace, Inc., Demetrios Balis doing business as Pizza Palace Restaurant and Demetrios Balis individually.


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. FRANCIS PRESSLEY
    (AC 18104)
    Landau, Schaller and Mihalakos, J.
    Argued May 4
    officially released July 25, 2000

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Nicholas J. Bove, Jr., assistant state’s attorney, for the appellant (state).
   Opinion

LANDAU, J.

The defendant, Francis Pressley, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32 and committing him to the custody of the commissioner of correction for a period of two and one-half years. On appeal, the defendant claims that during sentencing, the court improperly failed to allow him the right of allo-cution.

Certain facts adduced at the probation hearing are relevant to this appeal. On January 14, 1994, the defendant pleaded guilty and was convicted of failure to appear in the first degree in violation of General Statutes § 53a-172 and larceny in the sixth degree in violation of General Statutes § 53a-125b. The court, Devlin, J., imposed sentences of two and one-half years incarceration, execution suspended, and three years of probation, and three months incarceration, execution suspended, and one year of probation, respectively. On July 5, 1996, the court, McKeever, J., found that the defendant was in violation of his probation and ordered the same sentences, but extended the length of probation to five years and imposed conditions of probation. On October 15,1997, the court, McKeever, J., once again found the defendant in violation of his probation. The court ordered the defendant to serve the full term of his original sentence. The defendant appealed from the October 15, 1997 judgment.

In his limited appeal, the defendant claims that the court improperly failed to provide him with the opportunity to address the court in the dispositional phase of the violation of probation hearing. Although he concedes that he never asked to speak to the court, he asks us to review the matter as we did in State v. Johnson, 50 Conn. App. 46, 717 A.2d 786, cert. denied, 247 Conn. 923, 722 A.2d 811 (1998), and remand the case to the trial court for another dispositional phase of the probation revocation proceeding. Initially, the state maintains that because the defendant has served his entire sentence and has been released, he is no longer under the jurisdiction of the court and the case must be dismissed as moot. We dismiss the appeal on the basis of mootness.

When a party challenges the jurisdiction of this court, we must first address that issue. See State v. Mack, 55 Conn. App. 232, 235, 738 A.2d 733 (1999). In his supplemental brief, the defendant agrees that State v. Collic, 55 Conn. App. 196, 738 A.2d 1133 (1999), “does not foreclose [the Appellate Court] from dismissing this appeal as moot and concedes that unless other grounds dictate against it, dismissal of [his] appeal appears warranted on the state of [the] record.” He nonetheless asks that we consider two facts in deciding whether the appeal should be dismissed. First, the defendant argues, but for the extended delay by the trial court in preparing its memorandum of decision, the Appellate Court could have rendered a decision before he completed his sentence. And second, he continues, if the state had conceded that State v. Johnson, supra, 50 Conn. App. 46, controlled, the case could have been returned to the trial court for additional proceedings.

We need spend little time on the arguments put forth by the defendant. With respect to the delay in the trial court’s issuing a memorandum of decision, the appellant is responsible for providing this court with an adequate record. Practice Book § 61-10. The defendant possibly could have avoided this situation by bringing the situation to the attention of the Appellate Court by asking us to exercise our supervisory powers; see Practice Book § 60-2; to order the trial court to provide the memorandum of decision in a timely fashion.

As to his argument concerning Johnson, “[the defendant’s] last point is perfectly new, and it is so startling that [we] do not apprehend it will ever become old.” Whitaker v. Wisbey, 12 C.B. 44, 58, 138 Eng. Rep. 817 (C.P. 1852). The defendant, himself, “does not contest the bona fides of [the state’s] contesting this issue. Even in the supplemental brief, [the state] continues to argue that Johnson is not controlling here.” The defendant argues, however, that if the state, contrary to its convictions, would have agreed that Johnson controls, the defendant would not have been in the position of having his appeal heard after he served his sentence. The refutation of the defendant’s argument requires nothing more than its restatement. Neither of the facts to which the defendant points affects the mootness of his appeal.

“When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot. ... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Citation omitted; internal quotation marks omitted.) State v. Bostwick, 251 Conn. 117, 118-19, 740 A.2d 381 (1999). In the present appeal, the defendant does not contest that the court found that he violated the terms of his probation. He has served his entire sentence. There is, therefore, no practical relief that this court can provide him, and the appeal is moot.

The appeal is dismissed.

In this opinion the other judges concurred.

       The defendant also is known as Frank Preston.

       At the time of the hearing, State v. Strickland, 243 Conn. 339, 703 A.2d 109 (1997), had not yet been decided. In Strickland, our Supreme Court held that the right to allocution applies to the dispositional phase of a violation of probation hearing. Id., 354.

       The mootness question was raised for the first time during oral argument before this court. To allow the parlies to address the question of the collateral consequences of potential mootness, we ordered supplemental briefs on that issue. The defendant declined 1o address the issue of collateral consequences in his supplemental brief.

       The defendant filed a notice that the memorandum of decision had not been filed on July 24,1988, but no motions seeking assistance from this court.


author: PER CURIAM.

text:
    SANDRA DORFMAN v. FIRST CHOICE CONSTRUCTION CORPORATION
    (AC 19165)
    Lavery, C. J., and Spear and Hennessy, Js.
    Argued March 20
    officially released July 25, 2000

      Robert L. Trowbridge, for the appellant (plaintiff).

      Christopher G. Winans, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff in this construction contract dispute appeals from the judgment granting the defendant’s motion to confirm an arbitration award rendered in favor of the defendant. The plaintiff, Sandra Dorfman, claims that the trial court improperly confirmed the award because (1) the arbitrator violated the very contractual provision from which he derived his authority, (2) the arbitrator acted outside the scope of his authority by failing to follow a mandatory provision of the contract regarding termination of the construction contract and (3) the arbitrator acted in manifest disregard of the law. We affirm the judgment of the trial court.

This case arose out of a dispute between the plaintiff owner and the defendant construction company wherein each alleged breaches of a construction contract. The contract, which contained an arbitration clause, provided for the defendant to perform extensive work at the home of the plaintiff in Washington, Connecticut.

It is the appellant’s burden to provide a record that is adequate for review on appeal. Kirei v. Hadley, 47 Conn. App. 451, 458, 705 A.2d 205 (1998). The court did not file a memorandum of decision or a signed transcript of an oral decision. The plaintiff filed a motion for articulation, which the trial court denied. The plaintiff did not thereafter file a motion for review of the denial of her motion for articulation. Practice Book § 66-7 provides in relevant part: “Any party aggrieved by the action of the trial judge as regards . . . articulation . . . may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the [appellate] court . . . .” The record here contains the arbitrator’s award and the court’s order that simply confirms the award. Nowhere in this record can we find the basis for the actions of the arbitrator or the trial court.

The judgment is affirmed.

       Some record of the actions of the arbitrator would be required for us to consider the plaintiffs claim that the arbitrator acted in manifest disregard of the law.


text:
    ANTONIO BENNINGS v. DEPARTMENT OF CORRECTION ET AL.
    (AC 18894)
    Lavery, C. J., and Spear and Dupont, Js.
    Argued March 29
    officially released July 25, 2000

      Antonio Bennings, pro se, the appellant (plaintiff).

      Maria C. Rodriguez and Michael J. Lanoue, assistant attorneys general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Over-end, assistant attorney general, for the appellees (defendants).
   Opinion

PER CURIAM.

The pro se plaintiff, Antonio Bennings, appeals from the judgment dismissing his action that alleged wrongful discharge, breach of contract and breach of contractual good faith. The plaintiff claims that the trial court improperly dismissed his complaint because (1) the named defendant, the department of correction, wrongfully discharged him from his position as a correction officer, (2) he properly completed the background form that the named defendant required for him to maintain his employment, (3) the named defendant received the completed background check and falsely denied such receipt and (4) the named defendant did not make it clear that failure to sign the additional background form would result in discipline or termination. The complaint was dismissed because the state did not consent to the suit and was, therefore, immune from suit on the basis of the doctrine of sovereign immunity. We affirm the judgment of the trial court.

The plaintiff, who is not a lawyer, has submitted a brief that is simply a compilation of documents from prior proceedings before the department of labor, employment security appeals division, and correspondence between the plaintiff’s then counsel and the named defendant. Although we “recognize that it is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party”; (emphasis in original) Rosato v. Rosato, 53 Conn. App. 387, 390, 731 A.2d 323 (1999); “the statutes and rules of practice cannot be ignored completely.” Id. Because the plaintiffs claims are inadequately briefed, we cannot review them. “We are not required to review issues that have been improperly presented to this court through an inadequate brief.” Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997).

The judgment is affirmed.

       The other defendants in this action are the department of labor, Bennett Pudlin, Mark Manning and Robert Carbone.


author: MIHALAKOS, J.

text:
    JOHN W. LAWSON v. AETNA LIFE INSURANCE COMPANY
    (AC 19265)
    Lavery, C. J., and Mihalakos and Peters, Js.

      Argued May 8—officially
    released July 25, 2000

      Linda Clough, with whom, on the brief, was Lawrence H. Dickson, for the appellant (plaintiff).

      Charles F. Corcoran III, with whom, on the brief, were Howard K. Levine and Joshua L. Milrad, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, John W. Lawson,

appeals from the judgment rendered following a jury verdict in favor of the defendant, Aetna Life Insurance Company, on a claim of a breach of an implied contract of employment. On appeal, the plaintiff claims that the trial court (1) improperly charged the jury on his claim for lost wages as to the legal effect of his seeking self-employment following his termination by the defendant, (2) improperly granted the defendant’s multiple motions to strike certain language from the plaintiffs original and amended complaints after determining that a claim of a breach of the implied covenant of good faith and fair dealing was barred by the statute of limitations, and (3) abused its discretion in denying the plaintiffs request for a jury interrogatory on a damages calculation, which request was made after the jury began its deliberations. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On November 9, 1990, the plaintiff commenced an action in the United States District Court for the District of Connecticut in a three count complaint alleging (1) a violation of the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., (2) breach of contract and (3) a theory of promissory estoppel. On April 6, 1992, the defendant filed a motion for summary judgment as to all three counts. The federal district court granted the defendant’s motion for summary judgment, dismissed the plaintiffs statutory claim alleging a violation of the ADEA and declined to assert supplemental jurisdiction over the plaintiffs state law claims.

On November 18,1994, the plaintiff refiled his action in the Superior Court for the judicial district of Hartford at New Britain. This new complaint did not allege a violation of the ADEA, but it did allege the plaintiffs prior claims of breach of contract and promissory estop-pel. The plaintiff also set forth a new claim asserting that the defendant had breached the implied covenant of good faith and fair dealing. The defendant filed a motion to strike the claim of breach of the implied covenant of good faith and fair dealing on the ground that the statute of limitations on that claim had run. On February 28, 1995, the court granted the motion to strike that claim. On March 14,1995, the plaintiff filed an amended complaint. The defendant subsequently filed a motion to strike, which motion was granted by the court.

On November 3, 1995, the plaintiff filed yet another amended complaint, again alleging a cause of action for a breach of the implied covenant of good faith and fair dealing using slightly different language. On October 31, 1996, the defendant again moved to strike the portion of the amended complaint alleging a breach of the implied covenant of good faith and fair dealing, which motion was granted by the court on November 25,1996. On December 9,1996, the plaintiff filed another amended complaint stating essentially the same language as the previous one. For a fourth time, the defendant moved to strike the complaint and, on March 25, 1997, the court granted the defendant’s motion to strike without opinion. The plaintiff then filed the amended complaint presently before us.

The plaintiffs claims of breach of implied contract and promissory estoppel were then tried to the jury on June 3, 1998. On June 10, 1998, the plaintiff offered interrogatories for submission to the jury that were rejected by the court. On June 11, 1998, after the jury had commenced its deliberations, the plaintiff took exception to the court’s ruling on his request for interrogatories and again attempted to submit interrogatories concerning the calculation of damages, which request was rejected by the court. On June 12, 1998, the jury returned a general verdict in favor of the defendant. On June 22, 1998, the plaintiff filed a motion for a new trial that was denied by the court. This appeal followed.

I

The plaintiff first claims that the court improperly charged the jury on his claim for lost wages as to the legal effect of the plaintiffs seeking self-employment after being terminated by the defendant. We do not agree.

Before we address the merits of the plaintiffs claim, we must first address whether the general verdict rule applies and precludes our review. “Under the general verdict rule, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. . . . The rule rests on the policy of the conservation of judicial resources, at both the appellate and trial levels. . . . Gajewski v. Pavelo, 229 Conn. 829, 836, 643 A.2d 1276 (1994).

“On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated. Declining in such a case to afford appellate scrutiny of the appellant’s claims is consistent with the general principle of appellate jurisprudence that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated. . . .

“In the trial court, the rule relieves the judicial system from the necessity of affording a second trial if the result of the first trial potentially did not depend upon the trial errors claimed by the appellant. Thus, unless an appellant can provide a record to indicate that the result the appellant wishes to reverse derives from the trial errors claimed, rather than from the other, independent issues at trial, there is no reason to spend the judicial resources to provide a second trial. . . .

“Therefore, the general verdict rule is a rule of appellate jurisprudence designed to further the general principle that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated. ... A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. . . .

“This court has held that the general verdict rule applies to the following five situations: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case maybe; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded. . . . Because [this] action falls under the fourth situation, the general verdict rule would have been applicable to the plaintiffs’ appeal from that judgment to prevent an appellate court from disturbing a verdict that may have been reached under a cloud of error, but is nonetheless valid because the juiy may have taken an untainted route in reaching its verdict.” (Citations omitted; internal quotation marks omitted.) Dowling v. Finley Associates, Inc., 248 Conn. 364, 371-72, 727 A.2d 1245 (1999).

The present case falls under the fourth situation. We presume that the jury found in favor of the defendant on the plaintiffs complaint seeking lost wages and on the defendant’s special defense that the plaintiff failed to mitigate his damages. Even if the plaintiff were to prevail on his claim of instructional error related to the mitigation issue, the verdict against him on the complaint would remain unchallenged, and the general verdict rule therefore precludes our review of his claim.

II

The plaintiff next claims that the court improperly granted the defendant’s multiple motions to strike certain language from the plaintiffs initial and amended complaints. We disagree.

“After a trial court has sustained a motion to strike a complaint or a portion of the complaint, the plaintiff has two options.” P & L Properties, Inc. v. Schnip Development Corp., 35 Conn. App. 46, 49, 643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994). The plaintiff may either “amend his pleading, or he may stand on his original pleading, allow judgment to be rendered against him, and appeal the sustaining of the [motion to strike]. . . . The choices are mutually exclusive. The filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original pleading. . . . When a [motion to strike] is sustained and the pleading to which it was directed is amended, that amendment acts to remove the original pleading and the [motion to strike] thereto from the case. The filing of the amended pleading is a withdrawal of the original pleading. . . . Royce v. Westport, 183 Conn. 177, 178-79, 439 A.2d 298 (1981).” (Internal quotation marks omitted.) P&L Properties, Inc. v. Schnip Development Corp., supra, 49.

Here, the decision of the trial court is not reviewable because the plaintiff, by filing amended pleadings, waived the opportunity to raise his right to appeal the granting of the various motions to strike. We therefore decline to address the merits of this issue.

Ill

The plaintiffs final claim is that the court abused its discretion in denying the plaintiffs request for a jury interrogatory on a damages calculation, which request was made after the jury began its deliberations. We do not agree.

Practice Book § 16-22 requires that “[w]iitten requests to charge the jury and written requests for jury interrogatories must be filed with the clerk before the beginning of arguments or at such an earlier time as the judicial authority directs, and the clerk shall file them and forthwith hand one copy to the judicial authority and one to opposing counsel. ...” Practice Book § 16-18 provides in relevant part that “[t]he judicial authority may submit to the jury written interrogatories for tibe purpose of explaining or limiting a general verdict, which shall be answered and delivered to the clerk as a part of the verdict. ...”

Here, the plaintiff first submitted interrogatories that framed improperly the issue of damages and then, after the jury started deliberating, made an oral request to submit an interrogatory. As a result, the court was within its discretion in denying his request because the plaintiff failed to comply with the rules of practice in a timely manner.

The judgment is affirmed.

In this opinion the other judges concurred.

       In this case, the plaintiff submitted interrogatories that stated improperly the issue of damages and, after the jury started deliberating, made an oral request to submit an unprepared • interrogatory. Practice Book § 16-22 requires that “[w]ritten requests to charge the jury and written requests for jury interrogatories must be filed with the clerk before the beginning of arguments or at such an earlier time as the judicial authority directs, and the clerk shall file them and forthwith hand one copy to the judicial authority and one to opposing counsel. . . .” (Emphasis added.) The court, therefore, properly denied the plaintiffs request for interrogatories.


text:
    DAP FINANCIAL MANAGEMENT COMPANY v. MORFAM ELECTRIC, INC., ET AL.
    (AC 18956)
    Foti, Landau and Spear, Js.
    Argued February 14
    officially released July 25, 2000

      John S. Haverstock, for the appellant (plaintiff).

      David S. Doyle, for the appellees (defendants).
   Opinion

LANDAU, J.

The issue in this appeal arises from a settlement agreement (settlement) reached by the parties, through counsel, in an action on a note brought by the plaintiff, DAP Financial Management Co., against the defendants, Mor-Fam Electric, Inc., Bruce V. Morris, Bruce L. Morris and Richard W. Robinson. On appeal, the plaintiff claims that the trial court improperly concluded that there was a binding agreement between the parties by finding that (1) counsel had agreed to the settlement and (2) counsel for the plaintiff had authority to settle the case. We affirm the judgment of the trial court.

The following facts, as found by the trial court, are relevant to the disposition of this appeal. The plaintiff commenced this action in early 1996, and the matter was scheduled to be tried on November 26, 1997. Approximately one week before trial, counsel for the parties engaged in settlement negotiations. The defendants offered $20,000 in full and final settlement of all claims against them. Before agreeing to accept that sum, the plaintiff wanted to review certain financial information from the defendants. Robinson was unable to sign the financial affidavits because he was hospitalized. The defendants’ trial counsel, however, was able to obtain financial information about Robinson from counsel who represented Robinson in other matters and forwarded it to the plaintiffs counsel.

The defendants’ counsel wrote to the plaintiffs counsel iterating the defendants’ $20,000 settlement offer, subject to the plaintiffs review of the forwarded financial information. Defense counsel asked the plaintiffs counsel to telephone him “if this is not our agreement.” Defense counsel suggested that because Robinson was hospitalized, it might be difficult for the defendants to make timely payment. The plaintiffs counsel responded that the plaintiff had accepted the offer and confirmed his oral representation by facsimile dated November 25, 1997. In his facsimile, the plaintiffs counsel stated that the plaintiff would agree to exchange settlement documents and moneys after the holidays. The plaintiffs counsel informed the court that the matter had settled.

Before the settlement documents and moneys could be exchanged, however, Robinson died. The plaintiffs counsel then informed the defendants’ counsel that as a result of Robinson’s death, the settlement was no longer acceptable to the plaintiff because the homestead exemption that was applicable to Robinson was not available to Robinson’s estate. On March 11, 1998, the defendants moved to enforce the settlement under the authority of Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 626 A.2d 729 (1993).

The court held a hearing on the defendants’ motion and received posttrial briefs. The court found that the settlement “of $20,000 was not conditioned on the receipt of signed financials,” that the plaintiffs counsel had authority to enter into the settlement, and that “the settlement agreement itself is clear and unambiguous.”

“Generally, [a] trial court has the inherent power to enforce summarily a settlement agreement as a matter of law [only] when the terms of the agreement are clear and unambiguous; [id., 811]; and when the parties do not dispute the terms of the agreement. Id., 812. Ballard v. Asset Recovery Management Co., 39 Conn. App. 805, 808, 667 A.2d 1298 (1995), cert. denied, 236 Conn. 906, 670 A.2d 1306 (1996). Here, because the plaintiff challenges the trial court’s legal conclusion that the settlement agreement was summarily enforceable, we must determine whether that conclusion is legally and logically correct and whether [it finds] support in the facts set out in the memorandum of decision .... Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256, 524 A.2d 610 (1987).” (Internal quotation marks omitted.) Thomsen v. Aqua Massage International, Inc., 51 Conn. App. 201, 204, 721 A.2d 137 (1998), cert. denied, 248 Conn. 902, 732 A.2d 178 (1999).

I

Before we address the merits of the appeal, we must address the defendant’s claim that the court lacked subject matter jurisdiction. See Marine Midland Bank v. Ahern, 51 Conn. App. 790, 797, 724 A.2d 537 (1999), appeal dismissed, 252 Conn. 151, 745 A.2d 189 (2000). We conclude that the claim does not implicate jurisdiction, but rather presents a question of whether the court abused its discretion.

The following facts are relevant to the claim of subject matter jurisdiction. The defendants’ motion to enforce the agreement appeared on the April 6, 1998 short calendar and was granted by the court, O’Keefe, J., although the parties intended that the motion be marked off on that day. The parties agreed that they would reargue the matter. The plaintiff, however, did not file a motion to reargue until June 1, 1998. The defendants objected to reargument, claiming that the plaintiff had to file its request within twenty days of the original judgment or file an appeal. The court, Siíbert, J., granted the motion to reconsider, concluding that the defendants should not benefit from a mutual mistake of all concerned and that the court has inherent authority over its judgments.

“Our courts have the inherent authority to open, correct and modify judgments, but this authority is restricted by statute and the rules of practice. Batory v. Bajor, 22 Conn. App. 4, 8, 575 A.2d 1042, cert. denied, 215 Conn. 812, 576 A.2d 541 (1990).” Connecticut National Bank v. Oxenhandler, 30 Conn. App. 541, 546, 621 A.2d 300, cert. denied,.225 Conn. 924, 625 A.2d 822 (1993). For a court to open or set aside a judgment, a motion to open or a motion to set aside must be filed within four months of the date judgment is rendered. Practice Book § 17-4. “Where the motion is timely, our review is limited to whether the court has acted unreasonably or in abuse of its discretion. Pump Services Corporation v. Roberts, 19 Conn. App. 213, 215, 561 A.2d 464 (1989). Batory v. Bajor, supra [8].” (Internal quotation marks omitted.) Connecticut National Bank v. Oxenhandler, supra, 546.

Here, although the plaintiff entitled its pleading a motion to reargue rather than a motion to set aside the judgment, the parties had agreed to reargue the defendants’ motion to enforce the settlement, and the plaintiffs motion was filed within four months of the court’s having rendered judgment. The court, therefore, did not abuse its discretion in granting the motion to reargue.

II

The plaintiff first challenges the court’s legal conclusion that the settlement was clear and unambiguous on its face and, therefore, summarily enforceable. We are not persuaded.

The court’s memorandum of decision shows that the court based its conclusion on documentary evidence and the testimony of two attorneys. The plaintiff argues that not only must the terms of the settlement be clear and unambiguous, but also that the parties must agree on the terms of the agreement. We have no quarrel with that proposition. See Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., supra, 225 Conn. 812. To support its contention that the parties dispute the terms of the settlement, the plaintiff points to the fact that the court heard several hours of conflicting testimony regarding the terms of the settlement. The argument is flawed. The plaintiff seeks to establish that there was no agreement at the time of trial. The test of disputation, however, must be applied to the parties at the time they entered into the alleged settlement. To hold otherwise would prevent any motion to enforce a settlement from ever being granted.

What the plaintiff really seeks is to have us believe his witnesses rather than the witnesses proffered by the defendants. While we realize that the plaintiff now regrets having agreed to the settlement in light of the fact that a deeper pocket in the form of Robinson’s estate would now be available for future settlement discussions or trial, for us to entertain the plaintiffs invitation would be to abandon a cardinal rule of the appellate process: An appellate court will not delve into the credibility of witnesses, as that issue is within the province of the trial court. Peters v. Pearl, 37 Conn. App. 153, 156, 655 A.2d 262, cert. denied, 233 Conn. 908, 658 A.2d 980 (1995). We are bound by the court’s finding that no dispute existed between the parties at the time their counsel reached a settlement. See Munroe v. Emhart Corp., 46 Conn. App. 37, 42, 699 A.2d 213, cert. denied, 243 Conn. 926, 701 A.2d 658 (1997). We conclude, therefore, that the court’s determination is legally and logically correct, and is supported by the facts found.

Ill

In a second attempt to challenge the judgment, the plaintiff claims that the court improperly honored the credibility of the defendants’ witnesses rather than those of the plaintiff on the issue of whether the plaintiffs counsel had the authority to settle the case. We disagree.

“This court does not retry the case or evaluate the credibility of the witnesses. State v. Taylor, 23 Conn. App. 426, 429, 580 A.2d 1004 (1990). Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the [trial court] if there is sufficient evidence to support the [trial court’s judgment]. . . . State v. Mejia, [233 Conn. 215, 224, 658 A.2d 571 (1995)].” (Internal quotation marks omitted.) State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). In this case, the court made findings related to credibility, which we will not disturb.

The judgment is affirmed.

In this opinion the other judges concurred.

       The corporate defendant was the maker of the note; the individual defendants were the guarantors. Only Robinson was in a position to settle the claim.

       At oral argument, the question arose whether the judgment of the court was a final judgment. We are satisfied that an appealable judgment exists. Initially, we wondered whether the verified financial data provision in the court’s memorandum of decision somehow rendered the judgment nonfinal. The judgment is appealable because the provision is not a condition on the court’s judgment but, rather, is a term of the original settlement agreement, which the court is enforcing. The order does not contemplate that the parties will return to court for any further proceedings. The order meets the requirements of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983) (order or action terminates separate and distinct proceeding or so concludes rights of parties that further proceedings cannot affect them).

       The court understood this to mean, given the time of year, that the exchange could take place after the Christmas and New Year holidays.

       The plaintiff had placed a Ken on Robinson’s home. The homestead exemption is an apparent reference to General Statutes §§ 52-352a and 52-352b.

       Counsel who represented the plaintiff during the litigation, including the settlement negotiations, did not represent the plaintiff foUowing its rejection of the settlement.

       The court wrote: “[Richard Hepburn, a yjce president of the plaintiff,] testified that [the plaintiffs counsel] had no authority to propose or agree to the $20,000 settlement. He claimed (incredibly, in this court’s view) that he had no knowledge of the $20,000 proposal, and that he never would have agreed to it. [The plaintiffs counsel], however, testified that he believed that he was authorized to enter into the settlement agreement previously outlined, and this court finds his testimony altogether credible. It was [the plainiiffs counsel] who contacted the court and asked that the case be placed on the settled but not withdrawn list. Surely, he would not have done so had he not believed that he was authorized to settle this case and that he had indeed done so, with only the exchange of documents and moneys needing to be accomplished before the case would formally be withdrawn.”

       Practice Book § 17-4 (a) provides: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court.”


text:
    DONALD L. FRANCO v. EAST SHORE DEVELOPMENT, INC., ET AL. EAST SHORE DEVELOPMENT, INC. v. DONALD L. FRANCO
    (AC 19208)
    (AC 19305)
    (AC 19567)
    Schaller, Hennessy and Zarella, Js.
    Argued April 5
    officially released July 25, 2000

      Louis R. Pepe, with whom were Jennifer A. Oso-wiecki, and, on the brief, Joseph P. Yamin, for the appellants (defendants in the first case, plaintiff in the second case).

      Kenneth A. Votre, with whom, was Tara J. Galbo, for the appellee (plaintiff in the first case, defendant in the second case).
   Opinion

SCHALLER, J.

East Shore Development, Inc. (East Shore), a defendant in the first case and the plaintiff in the second case, and Peter Santino and Herman Dostie, defendants in the first case, appeal from the trial court’s judgments in favor of Donald L. Franco, the plaintiff in the first case and the defendant in the second case, granting his application to confirm an arbitration award in the first case and denying East Shore’s application to vacate the arbitration award in the second case. East Shore, Santino and Dostie claim that the court improperly denied East Shore’s application to vacate the arbitration award because the arbitrators, in determining the price of shares that Franco had the option to purchase pursuant to an agreement between the parties, improperly (1) used appraisal values as of a date different from that expressly required by the agreement and (2) failed to use alternate valuation procedures as expressly provided by the agreement. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. On September 24, 1992, Santino and Dostie collectively owned 100 percent of the stock in East Shore, the corporate owner of a certificate of need to construct a 120 bed nursing facility in the town of East Haven. On September 24, 1992, Santino and Dostie, individually and on behalf of East Shore, entered into a written option agreement (agreement) with Franco, granting him the option to purchase 80 percent of the shares of the East Shore stock. Section three of the agreement provides in relevant part: “The purchase price for the Optioned Shares shall be calculated at the time Franco exercises the Option to Purchase and shall be determined in accordance with the following formula: The Fair Market Value (as hereinafter defined) x 80% = The purchase price. . . . ‘Fair Market Value’ shall mean: (i) the fair market value of the Facility and the land upon which it is located ... as determined by the Appraiser (as hereinafter defined) in accordance with the guidelines for appraisals established by the Department of Housing and Urban Development (‘HUD’); less (ii) . . . indebtedness .... ‘Appraiser’ shall mean: (A) an appraiser mutually selected by Franco and the Shareholders; or (B) if Franco and the Shareholders do not agree . . . upon an appraiser . . . then Fl anco and the Shareholders shall each have the right to designate an appraiser .... If such two appraisers . . . shall have made their determinations and if the difference between the amounts so determined shall not exceed ten percent (10%) of the lesser of such amounts, then the appraisal shall be the average of the sum of the amounts so determined. If said difference is greater than ten percent (10%) of the lesser of such amounts, then such two appraisers shall . . . appoint a third (3rd) appraiser . . . but if such appraisers fail to do so, then either party may request the American Arbitration Association ... to appoint [an] appraiser and both parties shall be bound by any appointment so made .... Any such third appraiser shall be instructed to determine the fair market value of the Premises .... All three appraisals shall then be averaged and the result shall be deemed to be the ‘Appraisal.’

“Notwithstanding Section 20 of this Agreement, the foregoing provisions for determination of the Fair Market Value of the Premises by appraisal shall be specifically enforceable and any such determination hereunder shall be final and binding upon the parties. . . .

“The foregoing notwithstanding, if the Appraisal is less than $10,250,000, the Corporation shall have the right to either (i) offer to sell to Franco at the Purchase Price as determined herein using the Appraisal ... or (ii) offer to sell to Franco at the Purchase Price as determined herein using the sum of $10,250,000 as the Appraisal in which instance Franco shall have the right to terminate the Option Agreement . . . .”

Section twenty of the agreement, entitled “Arbitration,” provides in relevant part: “Any disagreement between the parties with respect to the interpretation or application of the obligations of the parties (including without limitation, the determination of the Purchase Price) shall be determined by arbitration . . . which arbitration shall be binding on the parties hereto. Such arbitration shall be conducted upon the request of either Franco or the Shareholders, before three (3) arbitrators designated by the American Arbitration Association and in accordance with the rules of such Association. The arbitrators designated and acting under this Agreement shall make their award in strict conformity with such rules.”

East Shore constructed the nursing facility and Franco thereafter gave notice of his intent to exercise his option on May 7, 1997. Because the parties could not agree on a single appraiser, they retained separate appraisers to determine the fair market value of the facility and the land. The two appraisers’ valuations differed by more than 10 percent, and, thus, pursuant to the agreement, Franco demanded arbitration and sought specific performance. In March, 1998, the arbitrators issued an interim award appointing a third appraiser. The interim award further provided that all appraisers were to conduct appraisals using a valuation date of May 8, 1997, “based upon the real estate value of the land as improved by the existing 120 bed facility, using the HUD guidelines introduced into evidence.” The appraisers submitted their appraisals and the arbitrators issued their final award in August, 1998.

The final award determined the purchase price to be $10,250,000, less certain corporate debts to be calculated on the closing date, and set a closing date of August 31, 1998. On August 17, 1998, Franco filed an application with the trial court to confirm the award pursuant to General Statutes § 52-417. On September 4, 1998, East Shore filed an application to vacate the award pursuant to General Statutes § 52-418. In its application, East Shore argued, inter alia, that the arbitrators “exceeded their powers, or so imperfectly executed them, such that a mutual, final and definite award upon the subject matter submitted was not made, in that the arbitrators manifestly disregarded the applicable and governing law with respect to the determination of the fair market value of the real property in question.” In a memorandum of decision dated December 23,1998, the trial court granted Franco’s application to confirm the arbitration award and denied East Shore’s application to vacate the award. These appeals followed and were later consolidated by this court.

I

East Shore, Santino and Dostie claim first that in determining the purchase price, the arbitrators used appraisal values as of a date different from that expressly required by the agreement, that such usage was inconsistent with the arbitrators’ own rulings, that such usage was an imperfect execution of their powers and, therefore, that the trial court improperly denied East Shore’s application to vacate the award.

East Shore did not make this claim to the trial court. Accordingly, we limit our scope of review to plain error. “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.....” Practice Book § 60-5.

The agreement provides that the purchase price of the shares subject to the option “shall be calculated at the time Franco exercises the Option to Purchase” and that the formula for the purchase price shall be the fair market value multiplied by 80 percent. Fair market value, in turn, shall be determined by subtracting the corporate indebtedness from the fair market value of the facility and the land. The crux of the claim of East Shore, Santino and Dostie is that the arbitrators improperly decided that the fair market value was to be determined using the appraised values of the facility and the land as of May 8,1997, and that the corporate indebtedness to be subtracted therefrom was to be calculated on the date of the closing, August 31, 1998. They argue that using different times for each of the respective variables in the agreement’s purchase price formula is an internal inconsistency that renders the award fatally flawed.

“To prevail under the plain error doctrine, [a party] must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the proceedings. . . . Furthermore, even if the error is so apparent and review is afforded, the [party] cannot prevail on the basis of an error that lacks constitutional dimension unless [the party] demonstrates that it likely affected the result of the trial.” (Internal quotation marks omitted.) Thomsen v. Aqua Massage International, Inc., 51 Conn. App. 201, 208-209, 721 A.2d 137 (1998), cert. denied, 248 Conn. 902, 732 A.2d 178 (1999).

East Shore, Santino and Dostie argue that the claimed error is clear, that it requires reversal to avoid manifest injustice and that it likely affected the result of the trial. As to their third assertion, they attempt to show that if the arbitrators had used a common date for the variables, the amount of the purchase price would have been different. Under the plain error doctrine, however, the issue is whether the trial court likely would have granted rather than denied East Shore’s application to vacate the award had it been aware of the alleged calculation error. We conclude that the court likely would not have reached a different result.

“The authority of an arbitrator to adjudicate the controversy is limited only if the agreement contains express language restricting the breadth of issues, reserving explicit rights, or conditioning the award on court review. In the absence of any such qualifications, an agreement is unrestricted.” (Internal quotation marks omitted.) South Windsor v. South Windsor Police Union Local 1480, 57 Conn. App. 490, 497, 750 A.2d 465 (2000). It is undisputed in this case that the agreement is unrestricted.

“When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission. Hartford v. Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989); New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415-16, 544 A.2d 186 (1988). Because we favor arbitration as a means of settling private disputes, we undertake judicial review of arbitration awards in a manner designed to minimize interference with an efficient and economical system of alternative dispute resolution. Middletown v. Police Local, No. 1361, 187 Conn. 228, 230, 445 A.2d 322 (1982); State v. Connecticut Employees Union Independent, 184 Conn. 578, 579, 440 A.2d 229 (1981). Garrity v. McCaskey, 223 Conn. 1,4-5, 612 A.2d 742 (1992). Where the submission does not otherwise state, the arbitrators are empowered to decide factual and legal questions and an award cannot be vacated on the grounds that the construction placed upon the facts or the interpretation of the agreement by the arbitrators was erroneous. Courts will not review the evidence nor, where the submission is unrestricted, will they review the arbitrators’ decision of the legal questions involved. . . . Caldor, Inc. v. Thornton, 191 Conn. 336, 340-41, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985).

“One of the principal reasons for this deference is that the scope of our review is expressly limited by § 52-418; Metropolitan District Commission v. AFSCME, Council 4, Local 184, 237 Conn. 114, 118, 676 A.2d 825 (1996); and, sometimes, by the terms of the parties’ agreement. Garrity v. McCaskey, supra, 223 Conn. 5 .... [Our Supreme Court] has stated on numerous occasions that arbitration is a creature of contract. See, e.g., American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 185, 530 A.2d 171 (1987); O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987); Board of Education v. AFSCME, Council 4, Local 287, 195 Conn. 266, 269, 487 A.2d 553 (1985). Therefore, it is the arbitrator’s judgment that was bargained for and contracted for by the parties, and we do not substitute our own judgment merely because our interpretation of the agreement or contract at issue might differ from that of the arbitrator.

“These well established principles governing consensual arbitration are subject to certain exceptions. Even in the case of an unrestricted submission, [our Supreme Court has], however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute; Caldor, Inc. v. Thornton, [supra, 191 Conn. 344]; (2) the award violates clear public policy; Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 339, 555 A.2d 406 (1989); or (3) the award contravenes one or more of the statutory proscriptions of § 52-418. . . . Garrity v. McCaskey, supra, 223 Conn. 6.” (Internal quotation marks omitted.) Stratford v. International Assn. of Firefighters, AFL-CIO, Local 998, 248 Conn. 108, 115-16, 728 A.2d 1063 (1999). Neither of the first two exceptions apply in the present case. Therefore, we determine only whether the trial court likely would have concluded that the arbitrators’ use of two different times in their calculations violates § 52-418. The record does not support plain error based on either § 52-418 (a) (1), (2) or (3).

“General Statutes § 52-418 (a) provides in relevant part that ‘[u]pon the application of any party to an arbitration, the superior court. . . shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.’ In deciding whether the arbitrator has exceeded his power under § 52-418 (a) (4), we compare the award with the submission to determine if the award and the submission conform. See New Haven v. AFSCME, Council 15, Local 530, [supra, 208 Conn. 415]; Hartford v. Local 760, 6 Conn. App. 11, 13, 502 A.2d 429 (1986). . . . ‘The burden of demonstrating the nonconformity of the award to the submission is on the party seeking to vacate the award.’ . . . Every reasonable presumption will be made in order to sustain an award.” (Citations omitted.) Fraulo v. Gabelli, 37 Conn. App. 708, 716-17, 657 A.2d 704 (1995), cert. denied, 239 Conn. 947, 686 A.2d 125 (1996).

Comparing the submission to the decision of the arbitrators, we conclude that the arbitrators’ decision conforms to the broad, unrestricted submission. East Shore, Santino and Dostie essentially offer a different interpretation of the contract. “[A] mere difference of opinion as to the construction of the contract does not establish that the arbitrators exceeded their authority.” AFSCME, Council 4, Local 1522, AFL-CIO v. Bridgeport, 53 Conn. App. 702, 706, 734 A.2d 1007 (1999). Therefore, we cannot say that it is likely that the trial court would have granted East Shore’s application to vacate the arbitrators’ award. Accordingly, the claim fails under the plain error doctrine.

II

East Shore, Santino and Dostie also claim that the arbitrators improperly failed to use alternate valuation procedures as expressly required by the agreement when the application of the HUD guidelines produced an obvious and inequitable result. They claim that such failure was an imperfect execution of the arbitrators’ powers and, therefore, that the trial court improperly denied East Shore’s application to vacate the arbitration award. This claim is without merit.

East Shore raised this claim in its application to vacate the award. The court found that (1) the parties had agreed to the utilization of the HUD guidelines and (2) the arbitrators had before them an analysis from at least one of the appraisers that utilized an alternate valuation system from the HUD guidelines.

The agreement provides that the fair market value of the facility and the land it is located on shall be valued “in accordance with the guidelines for appraisals established by the Department of Housing and Urban Development . . . .” East Shore, Santino and Dostie now argue that the arbitrators imperfectly executed their powers by doing exactly what they bar gained for in the option agreement. They rely on the following language from the agreement to support their contention that the agreement expressly provides for the use of an alternate valuation procedure: “All fees, costs and expenses of or related to all of the appraisers described above or in connection with any alternate valuation procedure agreed to [by] both parties shall be paid one-half (1/2) by the Shareholders and one-half (1/2) by Franco.” (Emphasis added.) There is no indication that the parties here agreed to any method of valuation other than the HUD guidelines, and East Shore, Santino and Dostie cannot be heard to complain that the resulting valuation is not to their liking.

The submission in this case was unrestricted. The arbitrators’ use of valuations based on HUD guidelines as called for by the agreement did not provide the trial court with any basis to vacate the award pursuant to § 52-418. Therefore, the court’s denial of East Shore’s application to vacate the arbitration award was proper.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       See footnote 1.

       As previously stated, Franco requested the arbitrators to award specific performance of the agreement, which encompasses the calculation of the purchase price.

       Franco argues that because Santino and Dostie were not parties to East Shore’s application to vacate the award, they are bound by the trial court’s judgment regardless of whether East Shore is successful on appeal. In light of our conclusion that the court properly denied East Shore’s application to vacate, we do not address this claim.


text:
    TEAM RENTAL GROUP, INC. v. ITT HARTFORD GROUP, INC., ET AL.
    (AC 19206)
    Lavery, C. J., and Spear and Cretella, Js.
    Argued March 28
    officially released August 1, 2000

      Brendan T. Canty, with whom, on the brief, was Seth J. Antin, for the appellant (plaintiff).

      Andrew J. O’Keefe, with whom were, Joseph M. Busker, Jr., and, on the brief, Peter K. O’Keefe, for the appellees (defendants).
   PER CURIAM.

In this action, the plaintiff, Team Rental Group, Inc., a car rental company, seeks to recover damages from the defendant insurance carriers of Felix Velez, to whom a vehicle had been rented. The vehicle sustained damage when it was involved in an accident while being operated without permission by the grandson of Velez. The defendants allege that the policy of Velez does not afford coverage under the facts here and that they have no liability to the plaintiff. The trial court agreed and rendered a summary judgment for the defendants.

In its thorough analysis of the facts and applicable law, the trial court found that coverage was excluded under the provisions of the policy for damages to a nonowned vehicle rented to Velez for his sole use that was operated by his grandson with no reasonable belief that he was entitled to do so.

The court also examined and rejected the claim of the plaintiff that Velez was covered under that portion of the policy relating to damage to his own auto. We agree.

Our examination of the record and briefs, together with oral argument of the parties, persuades us that the judgment of the trial court should be affirmed. The memorandum of decision of the trial court is detailed, thoughtful and comprehensive. Its analysis is consistent with our applicable law and precedents, and we therefore adopt the court’s well reasoned decision. See Team Rental Group, Inc. v. ITT Hartford Group, Inc., 46 Conn. Sup. 480, 755 A.2d 382 (1998). It would serve no useful purpose to repeat the discussion contained therein. See Keyes v. Pennsylvania General Accident Ins. Co., 45 Conn. App. 140, 142, 695 A.2d 548 (1997); McCommic v. Commissioner of Correction, 44 Conn. App. 470, 471, 689 A.2d 526 (1997).

The judgment is affirmed.

       The other defendant in this action is the Hartford Insurance Company of the Midwest, Inc.