text:
    ROBERT RAFALKO v. UNIVERSITY OF NEW HAVEN ET AL.
    (AC 31580)
    DiPentima, C. J., and Gruendel and Pellegrino, Js.

      Argued December 9, 2010
    officially released May 24, 2011

      Robert J. Rafalko, pro se, the appellant (plaintiff).

      Howard Fetner, with whom, on the brief, was Felix J. Springer, for the appellees (defendants).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Robert Rafalko, appeals from the summary judgment rendered in favor of the defendants, the University of New Haven (university) and Joel Marks, a professor at the university. On appeal, the plaintiff claims that the court improperly rendered summary judgment in favor of the defendants with respect to his four count complaint. We disagree and, accordingly, affirm the judgment of the trial court.

The court set forth the following facts and procedural history in its memorandum of decision. On November 14, 2005, the plaintiff filed a complaint alleging breach of contract, breach of the covenant of good faith and fair dealing and negligent misrepresentation against the university. The remaining count, alleging defamation, was directed at both defendants. The denial of the plaintiffs application for tenure was the origin of this action.

In his complaint, the plaintiff alleged that, in the spring of 1997, he was offered a position as an associate professor in the department of visual and performing arts and philosophy at the university. This appointment commenced in the fall of 1997 and ended in the spring of 1998. During this time, the plaintiff received both the 1976 faculty handbook (handbook) and the 1990 bylaws pertaining to the tenure and promotion committee, and the procedures and criteria for tenure and promotion (bylaws). The bylaws set forth five criteria for tenure and promotion at the university: teaching experience, education, scholarly activity, teaching ability and university service.

In the spring of 1998, the plaintiff received an annual review and his appointment at the university was renewed for an additional year. At the end of the 1998-1999 academic year, the plaintiff again received an annual review and an additional one year appointment to the university. In 1999, 2000, 2001, 2002 and 2003, the plaintiff did not receive an annual review but received one year appointments.

In the fall of 2002, the plaintiff submitted his application for tenure in accordance with the bylaws. On January 17, 2003, the plaintiff received a letter from the chairman of the tenure and promotion committee informing him that he did not receive the required six votes necessary to be awarded tenure. The plaintiff appealed this decision pursuant to the university’s procedure. Ultimately that appeal was denied. He then initated the present action.

On December, 22, 2008, the defendants filed a motion for summary judgment pursuant to Practice Book § 17-44 et seq. The plaintiff filed a memorandum of law in opposition. The court filed its memorandum of decision granting the motion for summary judgment on September 25, 2009.

With respect to the breach of contract count, the court concluded that there were no facts in the record that the university did not follow its own procedures for tenure and promotion. Turning to the breach of the covenant of good faith and fair dealing count, the court noted that there were no facts to demonstrate that the decision to deny the plaintiffs tenure application was taken in bad faith. Regarding the negligent misrepresentation count, the court determined that no misrepresentations were made to the plaintiff and the criteria for the evaluation of tenure applications was always available. Last, with respect to the defamation count, the court noted that only the letter written by Marks to the tenure and promotion committee was cited by the plaintiff as defamatory. In this letter, Marks, as the chairperson of the plaintiffs department, evaluated the plaintiffs candidacy for tenure, ultimately recommending against tenure. The court concluded: “The letter was only provided to the tenure review committee in their assessment of the application for promotion by the plaintiff. Mr. Marks is entitled to his opinion about whether the plaintiffs work was impressive. To deem such an opinion as defamatory would have the court cross the bounds of academic freedoms that are protected under the first amendment [to] the [federal] constitution.” Accordingly, the court rendered summary judgment in favor of the defendants with respect to all counts. This appeal followed.

As a preliminary matter, we set forth certain legal principles relevant to our discussion. Our Supreme Court has stated: “A court must be careful not to substitute its judgment improperly for the academic judgment of the school. A university’s prerogative to determine for itself on academic grounds who may teach is an important part of our long tradition of academic freedom. . . . This academic freedom is rooted in the first amendment. . . . First amendment protection of academic freedom prevents courts from substituting their judgment for the judgment of the school. In other words, courts should not become Super-Tenure Review Committeefs].” (Citations omitted; internal quotation marks omitted.) Craine v. Trinity College, 259 Conn. 625, 646, 791 A.2d 518 (2002); see also Neiman v. Yale University, 270 Conn. 244, 256, 851 A.2d 1165 (2004). It is clear, however, that the principle of academic freedom does not preclude a court from vindicating the contractual rights of an individual denied tenure in breach of an employment contract. Craine v. Trinity College, supra, 654-55.

We now set forth our standard of review. “Pursuant to Practice Book § 17-49, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such questions of law are subject to plenary appellate review. ... In deciding whether the trial court properly determined that there was no genuine issue of material fact, we review the evidence in the light most favorable to the nonmoving party.” (Citation omitted; internal quotation marks omitted.) Faigel v. Fairfield University, 75 Conn. App. 37, 39-40, 815 A.2d 140 (2003).

“Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue .... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . . .” (Internal quotation marks omitted.) Hodgate v. Ferraro, 123 Conn. App. 443, 459, 3 A.3d 92 (2010). This court has stated: “It is frequently stated in Connecticut’s case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . [T]ypically [demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.” (Internal quotation marks omitted.) Shukis v. Board of Education, 122 Conn. App. 555, 565, 1 A.3d 137. (2010).

As to his claim of breach of contract, the plaintiff argues that the handbook requires that tenure track candidates be given annual reviews by the department chairperson to assist the candidate in obtaining tenure. Our Supreme Court has recognized that “[a] faculty manual that sets forth terms of employment may be considered a binding employment contract.” Craine v. Trinity College, supra, 259 Conn. 655; see also Daley v. Wesleyan University, 63 Conn. App. 119, 120, 772 A.2d 725, cert. denied, 256 Conn. 930, 776 A.2d 1145 (2001). Section 5.6 of the handbook states that each department is expected to develop its own procedures, criteria and guidelines for the evaluation of faculty. In appendix II of the handbook, it is noted that an annual meeting between the faculty member and his or her chairperson “will be held.” This section further states that the faculty member “is expected to have a significant role in the determination of appropriate goals and their attainment.”

In the present case, the plaintiff alleged that he did not have an annual review in 1999, 2000, 2001, 2002 and 2003. Along with their motion for summary judgment, the defendants submitted evidence in the form of the plaintiffs deposition testimony that the plaintiff failed to timely prepare a self-evaluation, which was a preliminary step to the annual review process. Further, the plaintiff acknowledged that he knew of the need to publish in scholarly journals in order to earn tenure at the university.

As we have stated, summary judgment is appropriate when there is no genuine issue of material fact. A material fact is one that will make a difference in the case. Fiorelli v. Gorsky, 120 Conn. App. 298, 305, 991 A.2d 1105, cert. denied, 298 Conn. 933 10 A.3d 517 (2010). The issue in the present case is whether the university breached its contract with the plaintiff. The undisputed facts show that the plaintiffs failure to publish an adequate number of scholarly works while employed at the university provided a basis for denying tenure. Further, the plaintiff was aware of the publication requirement for purposes of achieving tenure. The issue of a lack of an annual hearing is not a material fact because the evidence unequivocally shows that the plaintiff knew of the publication requirement and that the annual reviews would not have provided him with any additional information in this regard. Additionally, the plaintiff failed to initiate the annual review process. We conclude, therefore, that the court properly granted the motion for summary judgment with respect to count one of the complaint.

Next, we address the plaintiffs claim of breach of the covenant of good faith and fair dealing. “ [I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship. ... In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party’s discretionary application or interpretation of a contract term. . . .

“To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiffs right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith. . . . Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. . . . Bad faith means more than mere negligence; it involves a dishonest purpose.” (Citations omitted; internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432-33, 849 A.2d 382 (2004).

In his brief, the plaintiff has failed to point to any evidence of bad faith by the university. His argument primarily relates to his claim that the court improperly rendered summary judgment on his breach, of contract count. As we have already concluded that the court’s decision with respect to that count was proper and because the plaintiff has failed to demonstrate any evidence of bad faith, we conclude that the court properly granted summary judgment with respect to the second count.

We next address the plaintiffs claim of negligent misrepresentation. Our Supreme Court “has long recognized liability for negligent misrepresentation. . . . The governing principles [of negligent misrepresentation] are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977): One who, in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 14344, 2 A.3d 859 (2010); see also M. Taylor & D. Krisch, Encyclopedia of Connecticut Causes of Action (2009) p. 46.

The plaintiff argues that the university misrepresented that he would receive an annual review. We note that a justifiable reliance on such a misrepresentation is necessary to succeed on this cause of action. See Citino v. Redevelopment Agency, 51 Conn. App. 262, 275, 721 A.2d 1197 (1998), overruled in part on other grounds by Kaczynski v. Kaczynski, 294 Conn. 121, 130 n.10, 981 A.2d 1068 (2009); see also Burnham v. Karl & Gelb, P.C., 50 Conn. App. 385, 390, 717 A.2d 811 (1998). In the present case, the evidence demonstrates that the plaintiff did not rely on annual reviews for information relating to the tenure process. Instead, he acknowledged that he was aware of the criteria of tenure evaluations, especially the publication requirement. The lack of annual review, therefore, was not a material fact in this case. The absence of any dispute regarding the plaintiffs lack of reliance on the annual review with respect to his knowledge of the tenure process supports the trial court’s granting of summary judgment with respect to the third count.

Last, we address the plaintiffs defamation count. The plaintiff argues that Marks’ letter to the tenure and promotion committee constituted a defamatory statement. “A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him .... To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiff’s reputation suffered injury as a result of the statement.” (Citation omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004); see also M. Taylor & D. Krisch, supra, p. 14. For a claim of defamation to be actionable, the statement must be false and truth is an affirmative defense. Cweklinsky v. Mobil Chemical Co., supra, 228.

The plaintiffs brief contains many assertions regarding Marks’ letter that lack evidentiary support. For example, he argues that Marks’ letter was fourteen pages, single spaced, and “common sense dictates that the length of such a letter signals intense emotions on the part of the letter writer.” He claims that this type of letter is typically only one or two pages long. Additionally, he makes reference to “numerous falsehoods” but, for the most part, fails to identify precisely what he refers to. Last, there are several vague and unidentified references to “evidence” that would refute the decision of the trial court. We decline to consider these statements found in the plaintiffs brief, simply noting that “ [speculation and conjecture have no place in appellate review.” Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005).

The trial court concluded that, in the letter, Marks opined that the scholarly work of the plaintiff was not that impressive. The court continued: “To deem such an opinion as defamatory would have the court cross the bounds of academic freedoms that are protected under the first amendment.” In Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 795-96, 734 A.2d 112 (1999), our Supreme Court stated: “To be actionable, the statement in question must convey an objective fact, as generally, a defendant cannot be held liable for expressing a mere opinion. See Mr. Chow of New York v. Ste. Jour Azur S.A., 759 F.2d 219, 230 (2d Cir. 1985) (no liability where restaurant review conveyed author’s opinion rather than literal fact); Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir. 1977) (‘[a] writer cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it may be’).” We conclude, therefore, that the court properly determined that the letter written by Marks was not actionable under the tort of defamation. Accordingly, the court properly granted summary judgment with respect to the fourth count.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff was represented by counsel at trial and has represented himself with respect to this appeal. The defendants argued that the plaintiff abandoned all his claims on appeal as a result of an inadequate brief. We acknowledge that the plaintiffs appellate brief comes precariously close to that point. “Although we are mindful of our policy to be solicitous of pro se litigants . . . such policy is applicable only when it does not interfere with the rights of other parties. Although our courts allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law. . . . As this court recently noted, [f]or justice to be done . . . any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can we disregard completely our rules of practice.” (Citations omitted; internal quotation marks omitted.) Shah v. Administrator, Unemployment Compensation Act, 114 Conn. App. 170, 177, 968 A.2d 971 (2009).
      The plaintiffs brief contains minimal citations to and analysis of the relevant case law. See generally Bushy v. Forster, 50 Conn. App. 233, 236, 718 A.2d 968, cert. denied, 247 Conn. 944, 723 A.2d 321 (1998). We take this opportunity to stress the importance of complying with our rules and note the severe consequences that may affect a party who elects to ignore them.

       This letter informed the plaintiff that members of the committee cast negative votes because of, among other things, inadequate research and insufficient scholarship.

       We note that our rationale is slightly different than that of the trial court. “[I]t is axiomatic that [w]e may affirm a proper result of the trial court for a different reason.” (Internal quotation marks omitted.) Gaffey v. Gaffey, 91 Conn. App. 801, 805 n.1, 882 A.2d 715, cert. denied, 276 Conn. 932, 890 A.2d 572 (2005).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE CHRISTOPHER C.

    (AC 32776)
    Bishop, Beach and Pellegrino, Js.
    Argued April 27
    officially released May 24, 2011

      Christopher C., pro se, the appellant (respondent father).

      Jessica Torres, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

      Michael P. Maggiacomo, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

PER CURIAM.

The respondent father appeals from the judgment of the trial court denying the motion for permanent guardianship of the minor child, filed by the intervening paternal grandmother, and the court’s commitment of the minor child to the custody of the commissioner of the department of children and families (commissioner). On appeal, the respondent claims that the court improperly denied the grandmother’s motion for guardianship and that he was denied the effective assistance of counsel in the proceedings below. We affirm the judgment of the trial court.

The following factual and procedural history is relevant to the issues on appeal. Prior to the commissioner’s involvement, the minor child had been residing with his mother and his mother’s boyfriend. As a result of unexplained but highly suspicious injuries to the minor child, the commissioner filed a neglect petition. At trial, the mother entered a plea of nolo contendere as to the allegations of neglect, and the respondent, as a noncustodial parent, remained silent. The court adjudicated the minor child as neglected on the basis of its finding that he was being permitted to live under conditions, circumstances or associations injurious to his well-being. Due to the respondent’s criminal history, specifically, convictions for sexual offenses, the court determined that he was not an appropriate caretaker for the child. In the dispositional phase of the hearing, the respondent’s mother sought guardianship of her grandchild and the respondent joined in his mother’s request for guardianship. The court denied the grandmother’s motion, finding that she did not believe “in the culpability of her son ... in regard to his sexual offenses against minors ... his incarceration, his registry on the sex offender registry and his probationary status.” The court concluded: “This undercuts her ability to safely parent her grandson in that her loyalty to her son may jeopardize the well-being of her grandson.” The court committed the child to the custody of the commissioner. This appeal followed.

The respondent claims that the court improperly determined that the grandmother was not a suitable caretaker for the minor child. Specifically, he contends that there was no “non-opinionated basis” for the court’s denial of the grandmother’s motion for guardianship. We are unpersuaded.

“When considering a challenge to the sufficiency of the evidence, the function of an appellate court is to review the findings of the trial court, not to retry the case. . . . [W]e 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. . . . We also must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment. . . . [W]e give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses . . . .” (Internal quotation marks omitted.) In re Kamari C-L., 122 Conn. App. 815, 824, 2 A.3d 13 (2010).

Contrary to the respondent’s assertions, the record amply supports the court’s conclusions regarding guardianship of the minor child. The court based its determination of the grandmother’s unsuitability on the fact that she did not believe in her son’s culpability for his prior criminal convictions and the attendant risk to the child of being placed in her care. When questioned about the respondent’s history of sexual offenses, the grandmother either expressed unawareness of his conduct or deflected the blame to the victims of her son’s conduct. This testimony alone justifies the court’s understandable concern for the well-being of the minor child in the grandmother’s household. The respondent’s claim is, therefore, without merit.

The respondent also claims that he was denied the effective assistance of counsel at the neglect proceeding. “In determining whether counsel has been ineffective in a termination [or neglect] proceeding, we have enunciated the following standard: The range of competence . . . requires not errorless counsel, and not counsel judged ineffective by hindsight, but counsel whose performance is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in [that particular area of the] law. . . . The respondent must prove that [counsel’s performance] fell below this standard of competency and also that the lack of competency contributed to the termination of parental rights. ... A showing of incompetency without a showing of resulting prejudice . . . does not amount to ineffective assistance of counsel.” (Citations omitted; internal quotation marks omitted.) In re Matthew S., 60 Conn. App. 127, 131-32, 758 A.2d 459 (2000). In making such a claim, it is the responsibility of the respondent to create an adequate record pointing to the alleged ineffectiveness and any prejudice the respondent claims resulted from that ineffectiveness. See In re Amanda A., 58 Conn. App. 451, 460-61, 755 A.2d 243 (2000).

The respondent argues that his attorney failed to cross-examine witnesses aggressively, that she did not contact fifty-five witnesses he had identified to her and that his attorney prevented him from testifying. The respondent also alleges that his attorney should have subpoenaed certain Probate Court records. On the basis of our review, we conclude that the respondent’s claims of his counsel’s inadequacy are not supported by the record. Additionally, in light of the ample evidence regarding the grandmother’s unsuitability to care for the minor child as noted herein, we conclude that the respondent has failed to meet his burden of proving that any alleged inadequacy of trial counsel affected the outcome of the neglect proceedings.

The judgment is affirmed.

       Because the mother is not a party to this appeal, we refer to the father as the respondent.


author: BEACH, J.

text:
    ANTONIO COLON v. STATE OF CONNECTICUT, JUDICIAL BRANCH
    (AC 31702)
    Gruendel, Beach and Peters, Js.

      Argued December 2, 2010
    officially released May 31, 2011

      Jeffrey T. Schuyler, for the appellant (plaintiff).

      Nancy A. Brouillet, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Richard Blumenthal, former attorney general, and Margaret Q. Chappie, assistant attorney general, for the appellee (defendant).
   Opinion

BEACH, J.

The plaintiff, Antonio Colon, appeals from the judgment of dismissal rendered by the trial court following its granting of the motion filed by the defendant, the state of Connecticut, judicial branch, to dismiss the plaintiffs complaint for failure to follow certain pleading requirements. We conclude that the defects raised in the motion to dismiss were circumstantial rather than substantive and, as such, the motion was improperly granted. Accordingly, we reverse the judgment of the trial court.

In February, 2006, the plaintiff, whose employment with the defendant had been terminated, filed a complaint alleging wrongful discharge in violation of General Statutes § 31-290a (count one), negligent infliction of emotional distress (count two), intentional infliction of emotional distress (count three), breach of implied contract (count four) and violation of the covenant of good faith and fair dealing (count five). The complaint contained, on a separate page, a statement of the amount in demand. The defendant filed a motion to dismiss counts two through five, inclusive, on the grounds of failure to state a claim upon which relief may be granted and failure to exhaust administrative remedies. The court, Tanzer, J., granted the motion.

The defendant filed a request to revise the first count of the complaint, which was the only remaining count. The plaintiff did not file an objection or a revised complaint. When the plaintiffs counsel failed to appear at a case evaluation conference which the court, Bryant, J., had scheduled, the court dismissed the action. The plaintiff filed a motion to open the judgment, which the court granted.

In November, 2006, the plaintiff filed a document entitled “revised complaint.” The defendant filed a motion in which it requested a judgment of nonsuit for failure to prosecute because the plaintiff had failed to file a proper revised complaint and had ignored the court’s order dismissing counts two through five. In the motion, the defendant also sought sanctions on the ground that the “revised complaint” had not been filed in accordance with the applicable rules of practice.

In December, 2006, the plaintiff filed a “corrected revised complaint.” The complaint contained an ad damnum clause that was not on a separate page. The demand for relief did not specify an amount sought. The defendant filed a motion to dismiss the operative complaint on the grounds that its contents failed to comply with either Practice Book § 10-20 or General Statutes § 52-91 because the demand for relief failed to specify the amount sought and the ad damnum clause was not on a separate page. The plaintiff filed an objection.

On October 5, 2009, the court, Aurigemma, J., held a hearing on the motion to dismiss. On the same date, the court rendered a judgment of dismissal for the plaintiffs failure to comply with Practice Book § 10-20 and § 52-91 due to the fact that the operative complaint did not state an amount in demand and the claim for relief was not stated on a separate page. The plaintiff filed a motion for reconsideration of the court’s granting of the defendant’s motion to dismiss, which motion the court denied. The defendant filed a motion for judgment of dismissal, which was rendered by the court, Prescott, J., to whatever extent that judgment had not previously been rendered on October 5,2009. This appeal followed.

Following oral argument before this court, we issued an order sua sponte allowing the parties to submit simultaneous supplemental briefs addressing the following question: “Does the issue of whether a demand for relief in a complaint is inadequate because it fails to specify the amount sought and the ad damnum is not on a separate page present a question of jurisdiction, such that it is properly raised and decided by means of a motion to dismiss?” The parties thereafter filed supplemental briefs.

After reviewing the file, we conclude that the case ought not to have been dismissed without affording the plaintiff the opportunity to correct the defect. Consequently, we reverse the judgment of the trial court, without reaching the other issues raised on appeal.

“Defective pleadings are broken down into two categories: circumstantial defects, which are subject to correction under [General Statutes] § 52-123, and substantive defects, which are not.” State v. Gillespie, 92 Conn. App. 143, 149, 884 A.2d 419 (2005). Both ornease law and our legislature have expressed clear policy reasons for eschewing dismissals on technical or circumstantial grounds. Section 52-123 provides: “No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.” “Our Supreme Court has explained that ... § 52-123 replaces the common law rule that deprived courts of subject matter jurisdiction whenever there was a misnomer ... in an original writ, summons, or complaint. . . . When a misnomer does not result in prejudice to a party, the defect in the writ is circumstantial error.” (Internal quotation marks omitted.) Rock Rimmon Grange # 142, Inc. v. The Bible Speaks Ministries, Inc., 92 Conn. App. 410, 414, 885 A.2d 768 (2005). “It is not the policy of our courts to inteipret rules and statutes in so strict a manner as to deny a litigant the pursuit of its complaint for mere circumstantial defects. . . . Indeed, § 52-123 of the General Statutes protects against just such consequences, by providing that no proceeding shall be abated for circumstantial errors so long as there is sufficient notice to the parties. ... It is our expressed policy preference to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. . . . The design of the rules of practice is both to facilitate business and to advance justice; they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice. . . . Our practice does not favor the termination of proceedings without a determination of the merits of the controversy where that can be brought about with due regard to necessary rules of procedure.” (Citation omitted; internal quotation marks omitted.) Boyles v. Preston, 68 Conn. App. 596, 603, 792 A.2d 878, cert. denied, 261 Conn. 901, 802 A.2d 853 (2002). “In determining whether a defect is merely circumstantial and not substantive, courts have considered, inter alia, whether the defendant had actual notice of the institution of an action and whether the defendant was in any way misled to its prejudice.” Bayer v. Showmotion, Inc., 292 Conn. 381, 391, 973 A.2d 1229 (2009).

The deficiencies in this complaint are not properly addressed by dismissing the complaint, with the concomitant inability to correct the defect, at least in the same action. In its motion to dismiss, which the court granted, the defendant claimed that the operative complaint faded to comply with the pleading requirements of Practice Book § 10-20 and § 52-91 by failing to specify an amount in demand and by failing to place the ad damnum clause on a separate page. The court erred in granting the relief of dismissing the case, leaving no opportunity to correct the defects.

The defects here are not jurisdictional in nature. An amount in demand is no longer necessary for determining a court’s jurisdiction. See, e.g., Public Acts 1976, P.A. 76-436, §§ 1, 681 (abolishing Court of Common Pleas). The amount in demand, however, must be specified for purposes of determining the proper filing fee and court entry fee. See General Statutes §§ 52-257 and 52-259. Although the defects in the pleadings in this case are at odds with the rules of practice, the rules of practice do not ordinarily define subject matter jurisdiction. See State v. Carey, 222 Conn. 299, 307, 610 A.2d 1147 (1992). Rather than jurisdictional, the defects are technical or circumstantial and do not warrant dismissal of the action. Although the case is not binding, we note that HOCAP Corp. v. Planning & Zoning Commission, Superior Court, judicial district of Fairfield, Docket No. CV-07-4020726-S (September 12,2007), contained facts similar to those in the present case. In that case, the defendant filed a motion to dismiss the plaintiffs complaint on the ground that the plaintiff had failed to place its prayer for relief on a separate page. The court denied the motion, reasoning that the circumstantial defect did not prejudice the defendant. See also Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 29-30, 929 A.2d 729 (trial court denied motion requesting dismissal of case because plaintiffs amended complaint did not comply with pleading requirements of § 52-91 and Practice Book § 10-20), cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).

In its supplemental brief, the defendant argues that because, as a branch of government, it is an agent of the state, and because the doctrine of sovereign immunity is a basis for granting a motion to dismiss, a motion to dismiss is the proper procedural vehicle by which to challenge the complaint. The defendant argues that while § 31-290a implies a waiver of sovereign immunity, the waiver extends only to the relief and damages enumerated in § 31-290a (b) (1). The defendant argues that, as a result, compliance with the mandatory statutory and rules of practice requirements for the contents of the complaint was jurisdictional. We do not agree. The plaintiffs complaint was within the court’s subject matter jurisdiction. Although the defendant is an agent of the state, it is not immune from suit under § 31-290a. The defendant’s status as an agent of the state does not cause technical or circumstantial defects—in this case, the plaintiffs failure to specify an amount in demand and failure to place the ad damnum clause on a separate page—to become jurisdictional

We conclude that termination of the plaintiffs case is not a proper remedy for his failure to specify an amount in demand or failure to place the ad damnum clause on a separate page. The court erroneously granted the defendant’s motion to dismiss.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       On appeal, the plaintiff claims that the court erred in (1) applying Practice Book § 10-20 and General Statutes § 52-91 too broadly, (2) ignoring his request for leave to amend, (3) granting the defendant’s motion for judgment of dismissal and (4) refusing to consider the issues raised in his motion for reconsideration.

       General Statutes § 31-290a provides in relevant part: “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.
      “(b) Any employee who is so discharged or discriminated against may ... (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge. The court may also award punitive damages. Any employee who prevails in such a civil action shall be awarded reasonable attorney’s fees and costs to be taxed by the court . . . .”

       Practice Book § 10-20 provides in relevant part: “The first pleading on the part of the plaintiff shall be known as the complaint. It shall contain ... on a separate page of the complaint, a demand for relief which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall include the information required by General Statutes § 52-91.”

       General Statutes § 52-91 provides in relevant part: “The first pleading on the part of the plaintiff shall be known as the complaint and shall contain ... on a separate page of the complaint, a demand for the relief, which shall be a statement of the remedy or remedies sought. When money damages are sought in the demand for relief, the demand for relief shall set forth: (1) That the amount, legal interest or property in demand is fifteen thousand dollars or more, exclusive of interest and costs; or (2) that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs; or (3) that the amount, legal interest or property in demand is less than two thousand five hundred dollars, exclusive of interest and costs. In addition, in a contract action in which only money damages are sought and in which the amount, legal interest or property in demand is less than fifteen thousand dollars, exclusive of interest and costs, the demand for relief shall also set forth whether or not the remedy sought is based upon an express or implied promise to pay a definite sum.”

       In Ms memorandum of law in support of Ms motion in opposition to the defendant’s motion to dismiss in the trial court, the plaintiff requested, inter alia, that the “court not countenance form over substance and uphold the legal sufficiency of [the] plaintiffs corrected revised complaint, or in the alternative, grant him leave to file an amended revised complaint.” In granting the motion to dismiss, the court cited the plaintiffs failure to comply with Practice Book § 10-20 and § 52-91. Although the primary argument in the plaintiffs brief to this court seems to be that Practice Book § 10-20 and § 52-91 do not apply to subsequent pleadings such as a revised complaint, the plaintiff also argues that the court erred in granting the motion to dismiss on the basis of a perceived defect in the pleadings and that the count should have, at least alternatively, granted him leave to amend Ms complaint. The plaintiff, therefore, generally raised, although not with much analysis, the important issue on wMch we now decide the case. We invited the parties to submit supplemental briefs to give them the opportumty to provide a greater level of analysis.

       Some background concerning the history of the statement of the demand for relief is helpful. “At the same time that the legislature adopted a uniform court system, vesting in the Superior Court the power to entertain all actions except those in which the Probate Court had original jurisdiction; General Statutes § 51-164s; it also enacted No. 77-497 of the 1977 Public Acts, which amended General Statutes (Rev. to-1977) § 52-91 and thereby eliminated the ad damnum requirement because it was no longer needed as a basis for limiting a particular court’s jurisdiction in rendering a judgment. ... In 1982, the legislature created fact-finding and arbitration programs in civil litigation; Public Acts 1982, No. 82-441; and in 1983, the legislature again amended General Statutes (Rev. to 1983) § 52-91 to require a plaintiff to attach to the complaint a demand for relief in order to assist our trial courts in identifying cases that were eligible for the newly enacted fact-finding and arbitration programs. Public Acts 1983, No. 83-144 (P.A. 83-144). Unlike the previous ad damnum requirement, however, the statement contemplated by the amended § 52-91 does not require the plaintiff to state the exact amount being sought. To comply with the amended statute, a plaintiff need only state which of the three categories applies to the case: less than $2500; $2500 or more, but less than $15,000; or $15,000 or more. . . . These categories correspond to the eligibility requirements for the fact-finding and arbitration programs that had been created by legislation prior to P.A. 83-144.. See General Statutes §§ 52-549n and 52-549u. Thereafter, the rules of practice were amended to reflect those statutory changes.” (Citations omitted.) Southington ’84 Associates v. Silver Dollar Stores, Inc., 237 Conn. 758, 762-66, 678 A.2d 968 (1996).

       The defendant has mentioned disciplinary rationales in its arguments. The court quite clearly, however, granted the motion to dismiss on the ground asserted in the motion: noncompliance with Practice Book § 10-20 and § 52-91.


author: DiPENTIMA, C. J.

text:
    GAIL THORSEN v. DURKIN DEVELOPMENT, LLC, ET AL.
    (AC 31454)
    DiPentima, C. J., and Bear and Schaller, Js.

      Argued November 16, 2010
    officially released May 31, 2011

      John A. Barbieri, with whom, on the brief, was Claudia R. Barbieri, for the appellants (named defendant et al.).

      Cheryl E. Heffeman, for the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

The defendants Durkin Development, LLC (Durkin Development), and Durkin Construction, LLC (Durkin Construction), appeal from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Gail Thorsen. On appeal, the defendants argue that (1) the court improperly denied the defendants’ challenge of a prospective juror for cause, (2) the award of compensatory damages against Durkin Construction was unreasonable, excessive and not supported by the evidence, (3) the award of punitive damages against each defendant was unreasonable, excessive and not supported by the evidence, (4) the award of attorney’s fees against each defendant was unreasonable, excessive and not supported by the evidence, and (5) the court improperly denied the defendants’ motions to set aside the verdict and for remittitur. We disagree with the defendants and, accordingly, affirm the judgment of the trial court.

On September 2, 2005, the plaintiff entered into a contract with Durkin Development for the purchase of land and construction of a single-family residence at 29 Hamilton Avenue in Southington. Durkin Construction was the general contractor for the property. The closing took place on November 10, 2005. Commencing in December, 2005, the plaintiff began complaining of defects in the construction, specifically, with water in the basement. The plaintiff eventually took action to correct the water problem on her own. The plaintiff thereafter commenced the present action against the defendants.

The operative complaint contained four counts. The first count, against Durkin Development, alleged breach of contract based on, inter alia, the failure to construct and deliver the property in the condition represented and provided for in the contract. The second count, against Durkin Development, alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq. The third count, against Durkin Development, Durkin Construction and Debbieann Durkin, the managing member and. principal of Durkin Development and Durkin Construction, alleged fraud and civil conspiracy. The fourth count, against Durkin Construction, alleged a violation of CUTPA. The matter was tried to a jury, which found in favor of the plaintiff on counts one, two and four. With regard to the third count, the jury found in favor of the plaintiff only as to the claims asserted against Durkin Development. The court denied the motions filed by Durkin Development and Durkin Construction to set aside the verdict and for remittitur as to the award of punitive damages and attorney’s fees. The defendants then filed the present appeal.

I

The defendants first claim that the court improperly denied their challenge for cause of a prospective juror whom they claim was biased in favor of the plaintiff. We disagree.

During jury selection, the defendants reported to the court that they had used all of their peremptory challenges and wanted to challenge a certain prospective juror for cause. The basis of this claim was that the prospective juror was the plaintiff in a personal injury action and “seem[ed] very plaintiff oriented.” The court questioned the prospective juror and, thereafter, denied the request that she be excused for cause. The defendants argue on appeal that the court did not go far enough in questioning the prospective juror and that the juror’s statements were not definite, firm and convincing.

“The determination as to a potential juror’s impartiality, in which demeanor plays an important part, is particularly within the province of the trial judge and the trial judge has broad discretion in deciding whether to excuse a juror for cause.” Johnson v. New Britain Hospital, 203 Conn. 570, 584, 525 A.2d 1319 (1987). “In challenging the competency of this juror to sit on the panel, the [defendants] had the burden of raising [their] claim of actual bias from the realm of speculation to the realm of fact. ... In proving actual juror bias, the party challenging for cause must also show that the juror’s state of mind is fixed and settled and not a mere impression.” (Citations omitted; internal quotation marks omitted.) Id., 582.

On the basis of our review of the record, we conclude that the court properly determined that the defendants had failed to satisfy their burden of establishing actual bias on the part of the potential juror. In response to questioning from the court, the juror stated that she would consider all of the evidence in the case, would not side with the plaintiff just because she was a plaintiff and agreed that the plaintiff could not be awarded any damages unless the plaintiff proved that the defendants did something wrong. She further indicated that she would not be uncomfortable sitting on the case and following the court’s instructions. We conclude, therefore, that the court did not abuse its discretion in denying the defendants’ challenge for cause of the prospective juror.

II

The defendants next argue that the award of compensatory damages against Durkin Construction was unreasonable and excessive and not supported by the evidence. Specifically, the defendants contend that the award of $30,221.43 in compensatory damages improperly included upgrades from the original contract. The plaintiff counters that the award of compensatory damages was supported by the evidence.

In reviewing this claim, we note that “the amount of an award [of damages] is a matter peculiarly within the province of the trier of facts. . . . [T]he court should not interfere with the jury’s determination except when the verdict is plainly excessive or exorbitant. . . . The ultimate test which must be applied to the verdict by the trial court is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption.” (Internal quotation marks omitted.) Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 661-62, 935 A.2d 1004 (2007).

Count four of the plaintiffs complaint alleged a violation of CUTPA and was directed against Durkin Construction. Specifically, this count alleged that Durkin Construction was not a party to the contract between the plaintiff and Durkin Development, and that Durkin Construction’s actions in failing to obtain a contract with the plaintiff constituted an unfair trade practice, resulting in damages to the plaintiff. This count further alleged violations of the New Home Construction Contractors Act; General Statutes § 20-417a. The jury found in favor of the plaintiff on this count and awarded $30,221.43 in compensatory damages. The defendants do not challenge the finding in favor of the plaintiff as to this count; rather, they claim that in arriving at the damages awarded, the jury improperly included upgrades, improvements and repairs. We disagree.

It is undisputed that the main issue between the parties involved the water seeping into the plaintiffs basement. Both sides presented testimony regarding possible alternatives to remedy the situation. Jeff Durkin, a member of Durkin Development and Durkin Construction, testified that he advised the plaintiff of the defendants’ plan to remedy the problem, which involved blocking off the footing drain pipe. He testified that this solution would cost significantly less than the plaintiffs proposed solution and would work better than what the plaintiff proposed to do. The plaintiff eventually hired Marek Brothers Construction Company, Inc. (Marek), to perform excavation work to remedy the problem. This work involved attaching the footing drains to the storm drain. The cost of this work was $11,550.

In addition to the invoice from Marek, the court admitted into evidence several invoices and receipts for work performed and proposals for work to be performed in the future to remedy the problem. These invoices included the cost for a sump pump, grass seed and sprinklers necessary to establish a new lawn, and materials to repair a closet when the racks in it fell from the wall. The defendants did not object to the admission of these invoices. The proposals included the cost of the roof repair, repair of the hatchway or Bilco doors, cleaning of the ductwork, removal and replacement of the waste pipe in the basement, and the continued resolution of the water problem in the basement. The defendants did not object to the admission of this evidence. The plaintiff testified that she was seeking, by way of damages, the money that she had spent on the house as well as the money that she continues to spend to repair the problems, and that this was reflected in the estimates and invoices submitted into evidence.

On the basis of our review of the record, we conclude that the award of compensatory damages against Durkin Construction was not plainly excessive or exorbitant and was reasonably supported by the evidence.

Ill

The defendants next contend that the award of punitive damages against both of them was not supported by the evidence and was unreasonable and excessive. Specifically, the defendants argue that the punitive damages awarded against them had no relation to the award of compensatory damages and that the punitive damages were awarded to punish them.

“A court may exercise its discretion to award punitive damages to a party who has suffered any ascertainable loss pursuant to CUTPA. See General Statutes § 42-1 lOg (a). In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights. . . . Accordingly, when the trial court finds that the defendant has acted recklessly, [a]warding punitive damages and attorney’s fees under CUTPA is discretionary . . . and the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) Votto v. American Car Rental, Inc., 273 Conn. 478, 485-86, 871 A.2d 981 (2005).

The court in the present case specifically instructed the jury with regard to the punitive damages that may be awarded under the CUTPA and fraud counts. With regard to CUTPA, the court charged that the amount of punitive damages, if any, was for the jury to determine but that the amount must be reasonable. The defendants did not submit a proposed jury charge regarding punitive damages, nor did they object to the court’s charge on punitive damages. During deliberations, the jury inquired whether there were any limits on the amount of punitive damages that may be awarded against the defendants. The court, after consultation with counsel, charged that there were no limits, but that the amount must be reasonable. The defendants conceded at oral argument that the jury verdict forms and jury charge were proper and were not being challenged on appeal. “Unless there is evidence to the contrary, the jury is presumed to follow the court’s instructions.” Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 37, 761 A.2d 1268 (2000). On the basis of our review of the record and under these circumstances, we cannot conclude that the award of punitive damages against the defendants was unreasonable and excessive.

rv

The defendants next argue that the award of $30,000 in attorney’s fees against Durkin Development and $15,000 in attorney’s fees against Durkin Construction based on a CUTPA violation was not supported by the evidence and was unreasonable and excessive. We disagree.

General Statutes § 42-1 lOg (d) provides in relevant part that “[i]n any action brought by a person [pursuant to CUTPA], the court may award . . . costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. . . .” “[A]n award of attorney’s fees is not a matter of right. Whether any award is to be made and the amount thereof he within the discretion of the trial court, which is in the best position to evaluate the particular circumstances of a case.” (Internal quotation marks omitted.) Heller v. D. W. Fish Realty Co., 93 Conn. App. 727, 734-35, 890 A.2d 113 (2006). “Additionally the amount of attorney’s fees that the trial court may award is based on the work reasonably performed by an attorney and not on the amount of recovery.” (internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 795, 720 A.2d 242 (1998).

In the present case, the plaintiffs contingency fee arrangement with her attorney was admitted into evidence without objection. The defendants did not submit a request to charge the jury with regard to attorney’s fees, nor did the defendants object when the court charged that the jury could award whatever reasonable amount it determined would fully and fairly compensate the plaintiffs counsel for fees and expenses incurred. During deliberations, the jury inquired whether, if it awarded attorney’s fees, the plaintiffs attorney would still get a percentage of other money awarded. The court, with the agreement of counsel, charged that any arrangement in that regard was between the plaintiff and her attorney and was not a subject for the court or jury. On the basis of our review of the record, and under these circumstances, we cannot say that the award of attorney’s fees to the plaintiff was unreasonable and excessive.

V

The defendants next argue that the court improperly denied their motions to set aside the verdict and for remittitur. As to the motions to set aside, the defendants contend that the verdicts were influenced by partiality and mistake, and that the jury did not fully understand the jury charge or ignored it. As to the motion for remittitur, the defendants rely primarily on their earlier arguments regarding the award of punitive damages and attorney’s fees. We decline to review these claims.

On July 16, 2009, following the entry of the verdicts for the plaintiff, each defendant filed a motion to set aside and for remittitur. The plaintiff objected to these motions. On August 5, 2009, the court sustained the plaintiffs objections and denied the motions. In so ruling, the court did not set forth the basis for its decisions. Although the defendants filed a motion for articulation with the trial court regarding the denial of the motions to set aside and for remittitur prior to appeal, they did not file a motion for articulation pursuant to Practice Book § 66-5. See footnote 2 of this opinion.

“It is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record [when] the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Internal quotation marks omitted.) Zahringer v. Zahringer, 124 Conn. App. 672, 681, 6 A.3d 141 (2010). Because the defendants have failed to provide an adequate record for review, we decline to review the defendants’ claim that the court improperly denied their motions to set aside the verdict and for remittitur.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as a defendant was Debbieann Durkin, the managing member and principal of Durkin Development and Durkin Construction. Because she has not appealed, we refer in this opinion to Durkin Development and Durkin Construction as the defendants.

       The defendants also claim that the court improperly denied their motion for articulation, which was filed with the trial court on August 19, 2009, prior to the commencement of this appeal. “Th[e] language of Practice Book § 66-5 makes clear that the motions for articulation under that section may be filed only after the filing of an appeal.” (Internal quotation marks omitted.) Swanson v. Groton, 116 Conn. App. 849, 865, 977 A.2d 738 (2009). hx Swanson, the plaintiff filed a motion for articulation directly with the trial court prior to filing her appeal. This court stated in that case that “ [t] o obtain review by this court, she would had to have filed another motion for articulation, this one pursuant to Practice Book § 66-5, after having filed her appeal. . . . Additionally, she would have had to have filed a motion for review pursuant to Practice Book § 66-7 if the trial court, again, denied the motion for articulation. This she did not do, and, accordingly, we are unable to review her claim.” (Citation omitted.) Id., 866. For the same reason, we are unable to review the defendants’ claim in the present appeal.

       On September 2, 2005, the date of the contract, Durkin Development did not own the subject property. It was owned by Durkin Construction. By corporate resolution dated November 10, 2005, Durkin Construction authorized Debbieann Durkin, the managing member of Durkin Construction, to sell the property. By warranty deed dated November 10,2005, Durkin Construction deeded the property to Durkin Development

       The jury returned a verdict in favor of Durkin as to count three.

       The court’s voir dire of the juror included the following:
      “The Court: Okay. And are you comfortable with the idea that unless the plaintiff proves that somehow the defendants] did something that was wrong concerning the construction or whatever the claims in the case are, that the plaintiff can’t be awarded any money?
      “The Witness: Right.
      “The Court: I mean, she can’t just come in and say whatever she wants to say—•
      “The Witness: Right.
      “The Court:—you’d have to find that the defendants] in this case really didn’t do what [they were] supposed to do under the contract or whatever—
      “The Witness: Right.
      “The Court:—in order for the plaintiff to be awarded any money from the jury. That seem fair to you?
      “The Witness: Well, yeah, that’s the same situation I’m in, too, so.
      “The Court: Okay. So, you would be able to follow instructions—
      “The Witness: Yeah.
      “The Court:—about that?
      “The Witness: Uh-hum.
      “The Court: And not just award the plaintiff money because, well, she did have water, but we can’t really tell if it’s the defendants’—
      “The Witness: Right.
      “The Court:—fault or not?
      “The Witness: Right.
      “The Court: Okay. That’s, you’re comfortable with that as well?
      “The Witness: Yeah, that’s fine.
      “The Court: Is there any reason that you think you wouldbe uncomfortable sitting on this jury or not be able to follow the court’s instructions?
      “The Witness: No, because it’s not, I mean if it, like, I told them if it had to do with something with personal injury—
      “The Court: That would—
      “The Witness:—I really want to stay away from it. But since it has absolutely nothing to do with that—

        “The Court: Okay.
      “The Witness:—it doesn’t bother me at ail.”

       Citing Santopietro v. New Haven, 239 Conn. 207, 211, 682 A.2d 106 (1996), the plaintiff contends that because the defendants filed motions to set aside the verdict and for remittitur only as to the award of punitive damages and attorney’s fees but not as to the award of compensatory damages, the plain error standard of review should be applied to this claim. We note, however, that the Santopietro court explicitly left open the question of whether a motion to set aside the verdict “is essential to full appellate review of a claim of insufficiency of the evidence . . . .” Id., 213 n.9. Here, regardless of which review is afforded by this court, we conclude that the award of compensatory damages was supported by the evidence.

       The initial estimate submitted by Marek was for $9370. This amount subsequently was increased due to extra yards of fill and processed stone for the driveway.

       The jury awarded punitive damages against Durkin Development on count two (CUTPA) in the amount of $133,000 and count three (fraud) in the amount of $14,000. The jury awarded punitive damages against Durkin Construction on count four (CUTPA) in the amount of $133,000.

       As stated in part II of this opinion, the jury awarded $30,221.43 in compensatory damages against Durkin Construction. The jury also awarded $1 in compensatory damages against Durkin Development.

       With regard to CUTPA, the court charged as follows: “The plaintiff is entitled to damage for the ascertainable loss that you find she has suffered. In addition to damages to compensate the plaintiff for any loss you find, you may also award punitive damages and attorney’s fees to the plaintiff .... You can award either, both, or neither. The purpose of punitive damages is not to compensate the plaintiff but to punish the defendants] and deter such conduct in the future. You are not required to award punitive damages, but you may award them in addition to damages for the plaintiffs ascertainable loss. If you determine that there was malice or improper purpose or ury'ustifiable motive or intent or that the defendants] acted in bad faith or wantonly, the amount of any punitive damages is for you to determine, but the amount must be reasonable.”
      With regard to fraud, the court instructed that the measure of damages is limited to attorney’s fees.

       The court charged as follows: “Thank you, ladies and gentlemen. I have two questions from you, and I prepared in consultation with counsel to answer them. The first question: are there limits for the punitive damages on an LLC, and, if so, what are the limits of Durkin Construction, LLC, and Durkin Development, LLC. And it’s signed by your foreperson. The answer is, there are no limits, but the amount must be reasonable, so that’s the answer to the first question.”

       Additionally, no interrogatories were submitted to the jury.

       With regard to parts III and IV of this opinion, we note that the jury in this case awarded punitive damages and attorney’s fees to the plaintiff. General Statutes § 42-110g (g) provides in relevant part, however, that “[i]n any action brought by a person under this section there shall be a right to a jury trial except with respect to the award of punitive damages under subsection (a) of this section or the award of costs [and] reasonable attorneys’fees (Emphasis added.) See also Perkins v. Colonial Cemeteries, Inc., 53 Conn. App. 646, 648-49, 734 A.2d 1010 (1999) (“[u]nder CUTPA, once there is a finding of liability by the jury, the trial court may then, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper” [internal quotation marks omitted]); Gill v. Petrazzuoli Bros., Inc., 10 Conn. App. 22, 35, 521 A.2d 212 (1987) (“[w]e hold, on the basis of the statutory language and legislative history of General Statutes § 42-110g [d], and the policy underlying CUTPA, that the court rather than the jury determines an award of attorney’s fees”).
      This issue was not raised or briefed by the parties on appeal, nor does it appear to have been raised in the trial court. “We long have held that, in the absence of a question relating to subject matter jurisdiction, the Appellate Court may not reach out and decide a case before it on a basis that the parties never have raised or briefed. ... To do otherwise would deprive the parties of an opportunity to present arguments regarding those issues.” (Internal quotation marks omitted.) Sequenzia v. Guerrieri Masonry, Inc., 298 Conn. 816, 821, 9 A.3d 322 (2010). “An unmentioned claim is, by definition, inadequately briefed, and one that is generally . . . considered abandoned.” (Internal quotation marks omitted.) State v. Saucier, 283 Conn. 207, 223, 926 A.2d 633 (2007). Under these circumstances, we decline to address this issue as we deem it to be abandoned.

       The court charged the jury as follows: “In addition to punitive damages, you may award fees and expenses from the defendants] to compensate the plaintiff for the fees and expenses payable to her counsel. You have evidence of the plaintiffs compensation agreement with her lawyer, but you are not bound by that and may award whatever reasonable amount you determine would fully and fairly compensate the plaintiffs counsel for the fees and expenses incurred in representing the plaintiff. I do not believe there’s any independent evidence of expenses, only of the attorney’s fee.”

       The court charged as follows: “The second question, if we award lawyer fees, does the lawyer still get a percentage of the other awarded money (punitive, question mark, damage-cost, question mark)? And the answer is that if you determine an award of attorney fees, you determine the award of the attorney fees, and any arrangement as to that is between the plaintiff and her attorney and not a subject for the court or the jury. So, you decide on the basis of the evidence that you have and the law that I’ve given to you, and whatever arrangements the plaintiff and her attorney make as to that are not a subject for you or me. All right. Fair enough? Counsel, further questions, comments?
      “[The Defendants’ Counsel]: No, Your Honor.
      “[The Plaintiffs Counsel]: No, Your Honor.”

       See footnote 13 of this opinion.