source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    ROBERT J. ROSSMAN v. PATRICIA MORASCO ET AL.
    (AC 27290)
    (AC 27970)
    (AC 28442)
    Bishop, Beach and Robinson, Js.

      Argued February 5
    officially released June 23, 2009

      Paul A. Sobel, for the appellant in AC 27290 and AC 27970 and the appellee in AC 28442 (plaintiff).

      Michael S. Lynch, for the appellees in AC 27290 and AC 27970 (named defendant et al.) and for the appellant in AC 28442 (defendant Guardian Alarm Services, Inc.).
   Opinion

BEACH, J.

These are consolidated appeals. The plaintiff, Robert J. Rossman, brought an action arising from a business dispute with the defendants Guardian Alarm Services, Inc. (Guardian Alarm), Tracy Emro, Jerome Terracino and Thomas Terracino and Patricia A. Morasco, Jerome Terracino’s son and wife, respectively. Guardian Alarm brought a counterclaim against the plaintiff. The jury found in favor of the plaintiff on his claim that Jerome Terracino had breached his fiduciary duty to him but found that the breach did not proximately cause any damages. The jury found the plaintiff liable on the counts of Guardian Alarm’s counterclaim alleging unjust enrichment, tortious interference and a violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA). InAC 27290 andAC 27970, the plaintiff claims that the trial court abused its discretion by (1) denying his motion to set aside the verdict, (2) denying his motion for judgment notwithstanding the verdict, (3) denying his motion in limine and (4) granting Guardian Alarm’s motions for punitive damages and for attorney’s fees on its counterclaim alleging a violation of CUTPA. In AC 28442, Guardian Alarm claims that the court improperly denied its posttrial motion for a constructive trust. We affirm the judgment of the trial court.

The following facts, as reasonably could have been found by the jury, and procedural history are relevant to our resolution of these consolidated appeals. This action arose out of a business dispute between the plaintiff and his uncle, Jerome Terracino. They owned Guardian Systems, Inc. (Guardian Systems), a company that sold and serviced security systems. The plaintiff owned a 25 percent interest in Guardian Systems, and Jerome Terracino owned a 75 percent interest. By the end of 1996, the plaintiff and Jerome Terracino disagreed about the way in which Guardian Systems should be run, and there was considerable friction between them. The plaintiff formed his own company in April, 1997; this company changed its name to United Alarm Services, Inc. (United Alarm), in September, 1997. In March, 1997, Jerome Terracino removed the plaintiff as an officer and director of Guardian Systems, though the plaintiff remained a 25 percent shareholder. Emro, Jerome Terracino and Thomas Terracino became the officers and directors of Guardian Systems. Jerome Terracino was the president.

On August 29, 1997, Jerome Terracino held an emergency corporate meeting. He had notified Thomas Terracino, Emro and Morasco, but not the plaintiff, of this meeting. At that meeting, the sale of all Guardian Systems’ assets to Guardian Alarm was proposed and ultimately approved. Guardian Systems retained a 25 percent ownership in Guardian Alarm, and the other 75 percent was owned by Morasco, who, in exchange, was to contribute $5000 in cash and was to be obligated to loan additional moneys. Before the end of 1997, the plaintiff decided not to wait any longer to settle his differences with Jerome Terracino and began to escalate his efforts to solicit customers to switch accounts from Guardian Alarm to United Alarm.

In March, 2000, the plaintiff brought a multiple count complaint against the defendants. In December, 2004, the plaintiff filed a second amended complaint in which he alleged breach of fiduciary duty, theft, conversion, unjust enrichment and a violation of CUTPA as to all defendants. The defendants subsequently filed amotion to strike, which the court granted as to the counts alleging theft and conversion. On May 25, 2000, the defendants filed a counterclaim against the plaintiff. The counts ultimately submitted to the jury, all alleged by Guardian Alarm only, were claims of tortious interference, a violation of CUTPA and unjust enrichment.

Following trial, the jury answered interrogatories and returned a verdict. The jury found in favor of all the defendants on the plaintiffs claims of unjust enrichment and violation of CUTPA, and found in favor of Thomas Terracino and Ernro on the plaintiffs claims of breach of fiduciary duty. It found in favor of Morasco, Guardian Alarm, Thomas Terracino and Emro on the plaintiffs claims of “substantial assistance or encouragement to [Jerome Terracino] in the breach of [his] fiduciary dut[y].” The jury found in favor of the plaintiff only as to the claim that Jerome Terracino had breached his fiduciary duty to the plaintiff, but the jury found that the breach did not proximately cause the plaintiff any damages. With respect to Guardian Alarm’s counterclaim, the jury found the plaintiff liable on all three counts and awarded total damages of $125,000.

In August, 2005, the plaintiff filed a motion to set aside the verdict and a motion for judgment notwithstanding the verdict. The court denied both motions. Pursuant to General Statutes §§ 42-110b et seq. and 42-1 lOg (d), respectively, of CUTPA, Guardian Alarm subsequently filed a motion for punitive damages in the amount of $150,000 and motion for an award of attorney’s fees in the amount of $84,887. The court granted the motions and awarded $25,000 in punitive damages and $42,539.18 in attorney’s fees and costs.

The count of Guardian Alarm’s counterclaim that alleged a constructive trust was left to the court’s determination. In October, 2005, following trial, Guardian Alarm filed a motion for an order imposing a constructive trust. Guardian Alarm sought resolution of the count of its counterclaim alleging a constructive trust. It requested the court to impose on the plaintiff and United Alarm a constructive trust over the alarm monitoring accounts then with the plaintiff and United Alarm but which had previously been accounts of Guardian Alarm. The court denied Guardian Alarm’s motion.

These appeals followed. Additional facts will be set forth as necessary.

I

AC 27290, AC 27970

A

The plaintiff first claims that the court abused its discretion in denying his motion to set aside the verdict. The plaintiff argues that it was inconsistent for the jury to have found that Jerome Terracino breached his fiduciary duty to the plaintiff but that Thomas Terracino and Emro did not. The jury found in favor of the plaintiff on his breach of fiduciary duty claim against Jerome Terracino but awarded zero damages. The plaintiff also argues that the jury could not reasonably have found that Jerome Terracino’s conduct did not cause the plaintiff any damages. We disagree.

We begin by setting forth our standard of review. “The standard of review governing our review of a trial court’s denial of a motion to set aside the verdict is well settled. The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence. . . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the juiy might reasonably reach [its] conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles .... Ultimately, [t]he decision to set aside a verdict entails the exercise of a broad legal discretion . . . that, in the absence of clear abuse, we shall not disturb.” (Internal quotation marks omitted.) Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 32-33, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007).

It was not inconsistent for the jury to have found that Jerome Terracino breached his fiduciary duty but that Thomas Terracino and Emro did not breach theirs. During deliberations, the jury asked the court for clarification on the question of whether Guardian Systems was legally obligated to notify the plaintiff, as a minority shareholder, of the August 29, 1997 meeting. In response, the court instructed that a sale of assets that leaves a corporation without significant continuing business activity requires the approval of the majority of shareholders, and, if such approval is to be sought at a meeting, the corporation shall notify each shareholder. On the basis of this additional instruction, and the evidence presented at trial, the jury could have concluded that Jerome Terracino, the president of Guardian Systems, assumed responsibility for the notification and actually did the notifying. He had an obligation to notify the plaintiff of the August 29,1997 meeting at which the sale of all of Guardian Systems assets to Guardian Alarm was proposed and ultimately approved. The evidence presented at trial revealed that on the morning of August 29, 1997, Jerome Terracino called an emergency corporate meeting and notified Thomas Terracino, Emro and Morasco of this meeting but did not notify the plaintiff of the meeting. The jury, therefore, reasonably could have found that Thomas Terracino and Emro did not violate any duties they owed to the plaintiff in connection with the August 29, 1997 transaction but that Jerome Terracino breached his fiduciary duty by not notifying the plaintiff of the meeting.

The plaintiff also argues that the jury could not reasonably have found that Jerome Terracino’s conduct did not cause the plaintiff any damages. On the basis of our review of the record, we conclude that the jury reasonably could have found that Jerome Terracino’s breach of fiduciary duty did not cause the plaintiff any damages. The jury could have determined that Jerome Terracino’s failure to give the plaintiff notice of the meeting did not cause the plaintiff any damages because Jerome Terracino owned 75 percent of Guardian Systems and could have approved the sale of the assets without the plaintiffs consent.

For the foregoing reasons, we conclude that it was within the discretion of the court to deny the plaintiffs motion to set aside the verdict.

B

The plaintiff next claims that the court abused its discretion in denying his motion for judgment notwithstanding the verdict. We disagree.

“[0]ur review of a trial court’s refusal to direct a verdict or to render a judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial . . . giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.” (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 50, 873 A.2d 929 ( 2005).

1

The plaintiff first claims that the court abused its discretion in denying his motion for judgment notwithstanding the verdict on the count of Guardian Alarm’s counterclaim alleging tortious interference. He claims there was insufficient evidence to support the jury’s conclusion. We disagree.

“[Our Supreme Court] has long recognized a cause of action for tortious interference with contract rights. . . . The essential elements of such a claim include, of course, the existence of a contractual or beneficial relationship and that the defendants), knowing of that relationship, intentionally sought to interfere with it; and, as a result, the plaintiff claimed to have suffered actual loss. . . . [F]or a plaintiff successfully to prosecute such an action it must prove that the defendant’s conduct was in fact tortious. This element may be satisfied by proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously.” (Internal quotation marks omitted.) Appleton v. Board of Education, 53 Conn. App. 252, 267, 730 A.2d 88 (1999), rev’d in part on other grounds, 254 Conn. 205, 757 A.2d 1059 (2000).

At trial, Guardian Alarm was the only remaining counterclaim plaintiff. The court instructed the jury that it could consider the plaintiffs actions that occurred only on or after August 29, 1997, because Guardian Alarm had no business, no contracts and no assets prior to that date. The plaintiff argues that there was no evidence from which the jury could have determined that any of the plaintiffs allegedly improper conduct took place on or after August 29,1997. We disagree because there was evidence from which the jury could have determined that the tortious conduct by the plaintiff occurred on or after August 29, 1997.

At issue were the plaintiffs actions in soliciting and inducing customers to switch to United Alarm. The jury reasonably could have determined that the plaintiff engaged in such conduct after August 29, 1997, and with respect to customers of Guardian Alarm. Jerome Terracino testified that Guardian Systems had no sales and had no business after August 29, 1997. The jury could have determined from the testimony of Jerome Terracino and the plaintiff that the accounts that the plaintiff solicited after August 29, 1997, were accounts of Guardian Alarm customers. The plaintiff testified that he took only a “couple” of accounts before August, 1997, but that by “the end of 1997,” he began to escalate his efforts to solicit and to switch customers’ accounts to United Alarm, the plaintiffs company. When questioned further as to when he started to switch accounts, the plaintiff testified that he did so when United Alarm was formed. Although there was conflicting testimony concerning when United Alarm was formed, Dana Klesh, an officer and the treasurer of United Alarm, testified that the company was formed around September, 1997. “[I]t is axiomatic that evidentiary inconsistencies are for the jury to resolve, and it is within the province of the jury to believe all or only part of a witness’ testimony.” (Internal quotation marks omitted.) Stewart v. Cendant Mobility Services Corp., 267 Conn. 96, 114-15, 837 A.2d 736 (2003), citing State v. Meehan, 260 Conn. 372, 381, 796 A.2d 1191 (2002).

Accordingly, the jury reasonably could have found that after August 29, 1997, the plaintiff, using information on his home computer regarding Guardian Alarm’s customers, approached Guardian Alarm customers and solicited them to switch to United Alarm by, among other things, offering them reduced rates and telling them of nonexistent security issues regarding an alleged security risk posed by a convicted felon who had been employed by Guardian Alarm despite the employee’s never having constituted such a security risk. Additionally, that employee had left Guardian Systems sometime before the August 29, 1997 transfer.

The plaintiff also argues that there was no evidence that he made false statements to Guardian Alarm customers or that such allegedly false statements induced them to switch their contracts from Guardian Alarm to United Alarm. We disagree. The plaintiff testified that he did whatever he needed to do to get accounts. He testified that he told several customers about a convicted felon whom Jerome Terracino put on the payroll at Guardian Systems; he told them that employment of a felon in the alarm business was a potential security risk. Jerome Terracino testified that the employee in question never constituted a security breach. The jury could have inferred that the plaintiff in fact did not think that there was a significant security risk from his testimony that he took no action to switch over the accounts of his relatives for approximately one year after he became aware of the alleged security breach.

Thus, when viewing the evidence and all inferences that may be drawn from it in a light most favorable to the prevailing party, we conclude that the jury reasonably could have found that the plaintiffs actions on or after August 29, 1997, constituted tortious interference with the contractual relationships between Guardian Alarm and its customers.

2

The plaintiff next claims that the court abused its discretion in denying his motion for judgment notwithstanding the verdict with respect to the jury’s verdict in favor of Guardian Alarm on the count of its counterclaim alleging a violation of CUTPA. The plaintiff argues that given the law and “the lack of evidence regarding any specific and particular misconduct on the part of [the plaintiff] or damage to Guardian Alarm, the jury could not have reasonably found that [his] conduct violated CUTPA.” We disagree.

“It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]. . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” (Internal quotation marks omitted.) Seligson v. Brower, 109 Conn. App. 749, 756, 952 A.2d 1274 (2008).

As examined in more detail with respect to the plaintiffs claim regarding tortious interference; see part IB 1; the jury reasonably could have determined that the plaintiff did whatever he needed to do to get accounts for United Alarm, which included, inter alia, using confidential information concerning customer accounts to solicit customers to switch to United Alarm and telling them about nonexistent security issues. From this evidence, the jury reasonably could have found that the plaintiff violated CUTPA.

3

The plaintiff next claims that the court abused its discretion in denying his motion for judgment notwithstanding the verdict as to the count of Guardian Alarm’s counterclaim alleging unjust enrichment. He claims that there was insufficient evidence to support the jury’s conclusion. We disagree.

The elements of unjust enrichment are well established. Plaintiffs seeking recovery for unjust enrichment must prove “(1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).

The plaintiff argues that Guardian Alarm failed to prove that he received any benefit as a result of any of his alleged misconduct or that Guardian Alarm was injured as a result of his alleged misconduct. There was evidence, as mentioned previously, from which the jury reasonably could have determined that the plaintiff benefited unfairly as a result of his solicitation of Guardian Alarm’s customers to switch to United Alarm and that Guardian Alarm was injured as a result. The evidence need not be repeated here.

4

The plaintiff next takes issue with the jury’s award of damages on the defendant’s counterclaim. We will address the plaintiffs arguments in turn.

The plaintiff first argues that the court abused its discretion in denying his motion for judgment notwithstanding the verdict as to the $125,000 total damages award on Guardian Alarm’s counterclaim because the evidence did not afford a sufficient basis for the jury to estimate the amount of damages with reasonable certainty. The plaintiff argues that no evidence was presented at trial that any particular Guardian Alarm account, as opposed to a Guardian Systems account, switched to United Alarm because of his actions. We disagree.

“It is axiomatic that the burden of proving damages is on the party claiming them. . . . When damages are claimed, they are an essential element of the plaintiffs proof and must be proved with reasonable certainty. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.” (Citations omitted; internal quotation marks omitted.) Stamford Landing Condominium Assn., Inc. v. Lerman, 109 Conn. App. 261, 272, 951 A.2d 642, cert. denied, 289 Conn. 938, 958 A.2d 1246 (2008).

There was evidence at trial that the value of each account at Guardian Alarm was $1000. Emro testified that between 1997 and the time of trial, 229 customers of Guardian Systems and Guardian Alarm switched to United Alarm. The plaintiff testified that between 130 and 150 customers that “Guardian” had as of January 1, 1997, were, at the time of trial, customers of United Alarm. The evidence presented was not specific as to the number of customers that switched to United Alarm because of the plaintiffs wrongful actions. From the plaintiffs testimony, however, the jury reasonably could have inferred that many of the switches resulted from the plaintiffs actions. The plaintiff testified that he did whatever he needed to do to get accounts for his company. He solicited Guardian Alarm’s customers to switch to United Alarm. The plaintiff argues that there was no evidence that any particular account or group of accounts was a Guardian Alarm account, as distinguished from a Guardian Systems account, and, without such evidence, the amount of damages cannot be ascertained. Although there is some vagueness in the evidence with respect to this, the jury could have determined from the testimony of Jerome Terracino and the plaintiff that the accounts the plaintiff took after August 29,1997, were accounts of Guardian Alarm customers. Jerome Terracino testified that Guardian Systems had no sales and had, in fact, not done anything since August 29, 1997. The plaintiff testified that he took only a “couple” of accounts before August, 1997, but that, by “the end of 1997,” he decided not to wait any longer to settle his differences with Jerome Terracino and began to escalate his efforts to solicit and to switch customer accounts to United Alarm. On the basis of the evidence before it and with the understanding that “the likely amount of damages need not be determined with mathematical precision”; (internal quotation marks omitted) Kosiorek v. Smigelski, 112 Conn. App. 315, 323, 962 A.2d 880, cert. denied, 291 Conn. 903, 967 A.2d 113 (2009); the jury reasonably could have found that the total award of damages on the defendant’s counterclaim was $125,000.

The plaintiff next argues that the jury misapplied the law in finding different amounts of damages on different counts of the defendant’s counterclaim. The jury interrogatories and verdict form stated that Guardian Alarm was awarded $25,000 on its count of tortious interference, $25,000 on its count of unjust enrichment and $75,000 on its count of a violation of CUTPA. He asserts that damages as to each alleged count logically would be the same, that is, lost revenue to Guardian Alarm and, therefore, as a matter of law, separate amounts of damages for each count of the counterclaim cannot be determined. He argues that the fact that the jury found differing amounts of damages sustained by Guardian Alarm on each count is a clear indication that the jury’s findings as to damages were based on pure speculation and conjecture. We disagree.

The court instructed the jury that because the parties had more than one claim for damages arising out of the same set of facts, the actual damages may overlap. As the court aptly noted, because the factual allegations underlying the three claims were very similar, a reasonable jury might have made any number of allocations. As we previously have concluded, the jury reasonably could have found that the total award of damages on the defendant’s counterclaim was $125,000. The fact that the jury divided that total amount among the counts of the counterclaim so that they added up to $125,000 does not demonstrate that the jury resorted to speculation or conjecture. “The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury.” (Internal quotation marks omitted.) Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 639, 854 A.2d 1066 (2004). “Judgment notwithstanding the verdict should be granted only if we find that the jurors could not reasonably and legally have reached the conclusion that they did reach.” (Internal quotation marks omitted.) Fileccia v. Nationwide Property & Casualty Ins. Co., 92 Conn. App. 481, 493, 886 A.2d 461 (2005), cert. denied, 277 Conn. 907, 894 A.2d 987 (2006). On the facts of this case, we cannot say that the court abused its discretion in denying the plaintiffs motion for judgment notwithstanding the verdict as to the total damages award on Guardian Alarm’s counterclaim.

For the foregoing reasons, we conclude that it was within the discretion of the court to deny the plaintiffs motion for judgment notwithstanding the verdict.

C

The plaintiff next claims that the court improperly denied his motion in limine to preclude the admission of evidence on Guardian Alarm’s counterclaim that he “did anything improper with regard to Guardian Alarm ... for any conduct that predate[d] May 10, 1999.” The plaintiff argues that liability pursuant to Guardian Alarm’s revised counterclaim filed May 10, 2002, is limited by General Statutes § 52-577 to any wrongful conduct that occurred on or after May 10,1999, three years prior to Guardian Alarm’s filing of the revised counterclaim against him. We disagree.

The following additional facts are relevant to our resolution of the plaintiffs claim. The defendants first filed a counterclaim on May 25, 2000. The plaintiff filed a motion in limine, which, in relevant part, sought to preclude Guardian Alarm from introducing evidence of any conduct that predated May 10, 1999, to prove its counterclaim. The plaintiff reasoned that § 52-577 applied to allegations in the May 10, 2002 revised counterclaim and barred the introduction of such evidence. The court summarily denied the plaintiffs motion as to this request. During trial, the plaintiff made a motion to reargue this portion of his motion in limine. The court heard argument on the motion and denied the requested relief.

We first set forth our standard of review. “[T]he motion in limine . . . has generally been used in Connecticut courts to invoke a trial judge’s inherent discretionary powers to control proceedings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 128, 956 A.2d 1145 (2008). In this case, however, the plaintiffs motion in limine sought to preclude evidence on the basis of the statute of limitations. “Whether a party’s claim is barred by the statute of limitations is a question of law that requires our plenary review.” Bellemare v. Wachovia Mortgage Corp., 94 Conn. App. 593, 605, 894 A.2d 335 (2006), aff'd, 284 Conn. 193, 931 A.2d 916 (2007). Thus, our review of the court’s application of the statute of limitations is plenary.

The plaintiff relied on § 52-577 for his statute of limitations defense to Guardian Alarm’s counterclaim. The court did not abuse its discretion in denying the plaintiffs motion in limine to preclude the admission of evidence predating May 10, 1999, with respect to the count of Guardian Alarm’s counterclaim alleging tortious interference with contractual relations. That count is governed by the three year limitations period of § 52-577. See Collum v. Chapin, 40 Conn. App. 449, 671 A.2d 1329 (1996) (applying § 52-577 to tortious interference with contractual relations). Both the original and the revised counterclaim alleged tortious interference. The tortious interference count in the May 25, 2000 counterclaim alleged that the plaintiff tortiously interfered with contractual relations between “Guardian” and its customers when he used confidential information obtained from “Guardian” to contact and to persuade customers to switch to a company controlled by the plaintiff by telling them, inter alia, of a nonexistent security breach. That count also alleged that the plaintiff tortiously interfered with the contractual relations between “Guardian” and its employees when he coerced employees to leave “Guardian.” The May 10, 2002 counterclaim again alleged that the plaintiff tortiously interfered with contractual relations when he persuaded customers to switch to his company because, inter alia, of a nonexistent security breach, and when he coerced employees to leave, but this time the allegations were made with respect to “Guardian Alarm.” The tortious interference count of the May 25, 2000 counterclaim focused on the plaintiffs actions “since February 1997.” The May 10, 2002 counterclaim narrowed the scope of the plaintiffs alleged tortious interference to those actions that occurred after August 29, 1997, the date on which the sale of assets from Guardian Systems to Guardian Alarm was approved.

The question then becomes whether this change from “Guardian” to “Guardian Alarm” corrects a misnomer or substitutes a new party. “An amended complaint, if permitted, relates back to and is treated as filed at the time of the original complaint unless it alleges a new cause of action. . . . While an amendment that corrects a minor defect relates back to the date of the original complaint, one stating a separate cause of action is barred by the statute of limitations. Further, if the amendment is deemed to be a substitution or entire change of a party, it will not be permitted. . . . If the amendment does not affect the identity of the party sought to be described in the complaint, but merely corrects the description of that party, the amendment will be allowed. . . . The test applied in order to determine whether an amendment is correcting a misnomer as opposed to substituting a new party or claim requires consideration of the following: (1) whether the [opposing party] had notice of institution of the action; (2) whether the [opposing party] knew he was a proper party; and (3) whether the [opposing party] was prejudiced or misled in any way.” (Citations omitted; internal quotation marks omitted.) Kaye v. Manchester, 20 Conn. App. 439,444,568 A.2d 459 (1990).

This test is sufficiently satisfied. The plaintiff clearly had notice that a counterclaim alleging tortious interference was being alleged against him. The plaintiff was not prejudiced because the basis for the claim was not new. It was clear from the context that the term “Guardian” as used in the May 25, 2000 counterclaim referred to the same “Guardian” that was referenced in the complaint. The plaintiff alleged in his complaint that Guardian Systems had used the name Guardian Alarm, Guardian Alarm Services and variants thereof, and that on August 29, 1997, Guardian Systems sold its assets to Guardian Alarm. The May 25, 2000 counterclaim, then, implicitly refers to Guardian Systems and its successor(s). The May 10, 2002 counterclaim refers only to the successor Guardian Alarm. The count of the revised counterclaim alleging tortious interference does not allege a new cause of action and merely corrects a misnomer. Accordingly, that count of the May 10, 2002 counterclaim relates back to the May 25, 2000 counterclaim. The court instructed the jury that as to Guardian Alarm’s counterclaim, it could consider only the plaintiffs actions that occurred on or after August 29, 1997, the date of Guardian Alarm’s inception. Such actions necessarily would have occurred within three years of May 25, 2000.

The court did not abuse its discretion in denying the plaintiffs motion in limine to preclude the admission of evidence predating May 10, 1999, with respect to the count of Guardian Alarm’s counterclaim alleging unjust enrichment. “A right of recovery under the doctrine of unjust enrichment is essentially equitable . . . .” (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, supra, 278 Conn. 573. “[I]n an equitable proceeding, a court may provide a remedy even though the governing statute of limitations has expired, just as it has discretion to dismiss for laches an action initiated within the period of the statute. . . . Although courts in equitable proceedings often look by analogy to the statute of limitations to determine whether, in the interests of justice, a particular action should be heard, they are by no means obliged to adhere to those time limitations.” (Citations omitted.) Dunham v. Dunham, 204 Conn. 303, 326-27, 528 A.2d 1123 (1987), overruled in part on other grounds by Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996). The court, exercising its equitable powers, was not bound to apply § 52-577 to the unjust enrichment count. See id.

For the foregoing reasons, the court did not abuse its discretion in denying the plaintiffs motion in limine.

D

Following trial, Guardian Alarm moved for punitive damages and for an award of attorney’s fees, pursuant to §§ 42-110b et seq. and 42-110g (d), respectively, of CUTPA. The court granted the motions and awarded $25,000 in punitive damages and $42,539.18 in attorney’s fees and costs. The plaintiff claims that the court abused its discretion in granting Guardian Alarm’s motions for punitive damages and for attorney’s fees. We disagree.

“CUTPA allows for the recovery of punitive damages; see General Statutes § 42-1 lOg (a); and attorney’s fees. See General Statutes § 42-110g (d).” Stearns & Wheeler v. Kowalsky Bros., 289 Conn. 1, 9 n.12, 955 A.2d 538 (2008). “Awarding punitive damages and attorney’s fees under CUTPA is discretionary; General Statutes § 42-llOg (a) and (d) . . . 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.” (Internal quotation marks omitted.) Nielsen v. Wisniewski, 32 Conn. App. 133,138, 628 A.2d 25 (1993).

1

We first address the plaintiffs claim that the court abused its discretion in granting Guardian Alarm’s motion for punitive damages under CUTPA. He argues that the evidence presented did not reveal a reckless indifference on his part to the rights of Guardian Alarm and that there was no evidence that his conduct was wanton. We disagree.

“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. ... In fact, the flavor of the basic requirement to justify an award of punitive damages is described in terms of wanton and malicious injury, evil motive and violence.” (Citation omitted.) Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933 (1983).

The court did not abuse its discretion in granting Guardian Alarm’s motion for punitive damages. The court reasonably could have found that the evidence revealed a reckless indifference on the part of the plaintiff to the rights of Guardian Alarm or an intentional and wanton violation of those rights. There was evidence from which the court reasonably could have found that the plaintiff induced customers of Guardian Alarm to switch their contracts to United Alarm. The plaintiff testified that he did whatever he needed to do to get accounts. He further testified that he had information regarding most of Guardian Alarm’s customers on his home computer and could remotely access customer accounts. Using that information, he approached Guardian Alarm customers and solicited them to switch to United Alarm. He offered Guardian Alarm customers reduced rates to switch. He testified that he took only a “couple” of accounts before August 1997, but that by “the end of 1997,” he decided not to wait any longer to settle his differences with Jerome Terracino, and he began to escalate his efforts to solicit and to switch customers accounts from Guardian Alarm to United Alarm. There also was evidence from which the court could have found that the plaintiff told customers about nonexistent security issues. From this evidence, the court reasonably could have determined that an award of punitive damages was proper.

2

The plaintiff next claims that the court abused its discretion in awarding Guardian Alarm attorney’s fees under CUTPA. We disagree.

As noted, “[a]warding . . . 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.) Nielsen v. Wisniewski, supra, 32 Conn. App. 138. There being no indication of either in this case, we conclude that it was within the discretion of the court to grant Guardian Alarm’s motion.

II

AC 28442

In its appeal, Guardian Alarm claims that the court improperly denied its motion for a constructive trust. We disagree.

In October, 2005, following trial, Guardian Alarm filed a motion for an order imposing a constructive trust. Guardian Alarm sought to have the court impose on the plaintiff and United Alarm a constructive trust over those alarm monitoring accounts that were under the control of the plaintiff and United Alarm but were formerly accounts of Guardian Alarm. The court denied the motion. It reasoned, inter alia, that it lacked personal jurisdiction to impose a constructive trust. It reasoned that United Alarm had not been made a party to the action, and, accordingly, it lacked jurisdiction to impose a constructive trust over assets that were in the legal name of United Alarm.

“A court’s determination of whether to impose a constructive trust must stand unless it is clearly erroneous or involves an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) Garrigus v. Viarengo, 112 Conn. App. 655, 671-72, 963 A.2d 1065 (2009). “A challenge to the jurisdiction of the court presents a question of law. . . . Our review of the court’s legal conclusion is, therefore, plenary. . . . [T]he Superior Court . . . may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court’s exercise of personal jurisdiction.” (Internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn. App. 697, 713, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).

Guardian Alarm argues that the court improperly determined that it lacked personal jurisdiction over United Alarm. It argues that the court has jurisdiction over United Alarm because it has jurisdiction over the plaintiff, who is a party to the action, who had control over the accounts maintained by United Alarm and, as its president, was capable of doing whatever was necessary to return the wrongfully taken property to Guardian Alarm. We are not persuaded. United Alarm is not a party to the action, and the court has no jurisdiction to render a judgment against a person or entity that is not before it. It is axiomatic that a court does not have personal jurisdiction over a nonparty. “If a court lacks jurisdiction over a person [or entity], the court has no authority to award a judgment against that person [or entity].” Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 196, 629 A.2d 1116 (1993).

The judgment is affirmed.

In this opinion the other judges concurred.

       The counts remaining after the pleading process also included a corporate derivative claim and a constructive trust claim. The court treated the coiporate derivative claim and the tortious interference claim as composing one count. The jury interrogatories listed tortious interference, violation of CUTPA and unjust enrichment. The remedy of constructive trust was reserved for consideration by the court. See footnote 2.

       There was some question as to whether the constructive trust count had been withdrawn before the case was submitted to the jury. In its supplemental memorandum of law in support of its motion for an order imposing a constructive trust, Guardian Alarm argued that the count had not been withdrawn, but instead was to be decided by the court, if necessary, pending the jury’s decision on the issues submitted to it. In its memorandum of decision on postverdict issues, the court determined that the constructive trust count was left to tire court’s determination.

       The plaintiff claims that the court abused its discretion in denying his motion to set aside the verdict in several ways. Among these are the plaintiffs assertions that the jury could not reasonably have found that (1) Thomas Terracino, Emro, Morasco and Guardian Alarm did not aid and abet Jerome Terracino in his breach of fiduciary duty by providing substantial assistance and encouragement to him, (2) Morasco was not unjustly enriched by the August 29,1997 asset transfer and (3) the defendants’ conduct in connection with the August 29, 1997 asset transfer did not violate CUTPA. The court, however, did not address these issues in its ruling on the plaintiffs motion to set aside the verdict, and the plaintiff did not move for articulation on these issues. See Practice Book § 66-5. Therefore, there is no record from which this court may address this argument. See Celentano v. Oaks Condominium Assn., 265 Conn. 579, 589 n.9, 830 A.2d 164 (2003) (“[b]ecause our review is limited to matters in the record, we will not address issues not decided by the trial court” [internal quotation marks omitted]).

       We further note that the alleged inconsistency is factual in nature. “[A] factually inconsistent verdict will not be overturned on appeal. . . . The law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise. . . . [I]nconsistency of the verdicts is immaterial.” (Internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 242, 745 A.2d 800 (2000).

       The court instructed as follows: “[A] sale, lease, exchange, or other disposition of assets requires approval of the corporation’s shareholders if any such disposition would leave the corporation without significant continuing business activity. ... [A] disposition that requires approval of the shareholders . . . shall be initialed by a resolution of the board of directors authorizing the disposition. After adoption of such a resolution the board of directors shall submit the proposed disposition to the shareholders for their approval. . . . [I]f disposition is required to be approved by the shareholders . . . and if the approval is to be given at a meeting, the corporation shall notify each shareholder, whether or not entitled to vote, of the meeting of shareholders at which the disposition is to be submitted for approval. . . . [T\he disposition to be authorized must be approved by a majority of all the votes entitled to be cast on the disposition . . . .” (Emphasis added.)

       Even if the jury were to have found that Thomas Terracino and Emro had breached a fiduciary duty, it is unlikely that the plaintiff would have suffered any harm as a result in that the jury found that no damages were caused by Jerome Terracino’s breach.

       The return of a plaintiffs verdict established a technical legal injury that entitled the plaintiff to at least nominal damages. Hughes v. Lamay, 89 Conn. App. 378, 386 n.7, 873 A.2d 1055, cert. denied, 275 Conn. 922, 883 A.2d 1244 (2005). “[T]his court as a general rule [however] will not reverse and grant a new trial for a mere failure to award nominal damages. ” (Internal quotation marks omitted.) Id.

       The court further reminded the jury that Guardian Systems was not a party to this case and was not pursuing any claims.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       In this counterclaim, the defendants alleged breach of fiduciary duty, theft, constructive trust, tortious interference, breach of fiduciary duty regarding the promissory note and a violation of CUTPA. Thereafter, on November 28, 2001, the defendants filed an amended counterclaim alleging breach of fiduciary duty, constructive trust, tortious interference, breach of fiduciary duty regarding the promissory note, a violation of CUTPA and unjust enrichment. The plaintiff filed a motion to strike the amended counterclaim, which was granted by the court as to all counts except as to the count alleging breach of fiduciary duty regarding the promissory note.
      The defendants thereafter filed a revised counterclaim on May 10, 2002. That counterclaim alleged breach of fiduciary duty, corporate derivative claim, constructive trust, tortious interference, breach of fiduciary duty regarding the promissory note, violation of CUTPA and upjust enrichment. The plaintiff subsequently filed a motion to strike all counts except the count alleging breach of fiduciary duty regarding the promissory note and also filed a motion for partial summary judgment as to the count alleging breach of fiduciary duly regarding the promissory note. On August 15, 2003, the court granted the plaintiffs motion to strike as to the count alleging breach of fiduciary duty. Jerome Terracino and Guardian Alarm brought the counts of the counterclaim alleging violation of CUTPA and upjust enrichment. The court struck both of those counts as to Jerome Terracino. The court dismissed the count alleging breach of fiduciary duty regarding the promissory note. The remaining counts submitted to the jury, all alleged by Guardian Alarm, were tortious interference, a violation of CUTPA and upjust enrichment.

       Our Supreme Court in Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 800, 945 A.2d 955 (2008), left unanswered the question of whether to review the question of whether amendments to a pleading relate back for purposes of the statute of limitations under an abuse of discretion or de novo standard of review. We need not resolve the issue because the plaintiff cannot prevail even under de novo review. See id.

       The court was free not to apply § 52-577, the only statute of limitations cited in the motion in limine, to the admission of evidence relating to the CUTPA count because § 42-110g (f) governs such claims. At any rate, like the tortious interference count, the CUTPA count in the May 10,2002 counterclaim relates back to the May 25, 2000 counterclaim, and the applicable statute of limitations is also three years.

       Additionally, to the extent that General Statutes § 52-577 could be deemed to apply by analogy, the unjust enrichment count is not barred by the statute of limitations under the relation back doctrine. This count specifically incorporated the same factual allegations as stated in the counts of the May 10, 2002 counterclaim alleging tortious interference and breach of fiduciary duty, both of which were alleged in the May 25, 2000 counterclaim, i.e., that the plaintiff used confidential information to contact and to persuade customers to switch to United Alarm. The allegations of unjust enrichment did not inject “different sets of circumstances and depend on different facts . . . but rather amplified and expanded upon the previous allegations by setting forth alternate theories of liability.” (Citations omitted; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 549, 590 A.2d 914 (1991).

       The additional reasons given by the court for denying Guardian Alarm’s motion for a constructive trust were that (1) Guardian Alarm did not prove that a confidential relationship between the plaintiff and Guardian Alarm existed and (2) imposing a constructive trust would permit Guardian Alarm to receive double recovery. Guardian Alarm also claims that these conclusions of the court are improper. We need not address these additional claims because we conclude that the court did not abuse its discretion in denying the motion for a constructive trust on the ground that it lacked personal jurisdiction over United Alarm.


author: PETERS, J.

text:
    ROBERT UTZLER v. JOHN A. BRACA, JR., ET AL.
    (AC 29923)
    (AC 30224)
    Gruendel, Lavine and Peters, Js.

      Argued March 11
    officially released June 23, 2009

      Michael J. Leventhal, for the appellant-appellee in AC 29923 and the appellee in AC 30224 (plaintiff).

      John A. Braca, Jr., pro se, the appellee-appellant in AC 29923 (named defendant).

      Glenn T. Terk, for the appellee in AC 29923 (defendant Patricia Braca) and the appellants in AC 30224 (defendant Patricia Braca et al.).
   Opinion

PETERS, J.

This case concerns numerous claims arising out of a contract between an investor and a builder for the construction and sale of a luxury home in West-port. The investor has filed a multicount complaint for the return of his investment and for monetary damages because, although the home belatedly has been completed, bank foreclosures have left the property financially “under water.” The trial court found the builder to be personally liable even though he had conducted his business through a number of corporate identities. The court, however, ruled against the investor in his claim of unjust enrichment against the builder’s wife. In the principal appeal, the investor challenges the judgment in favor of the wife, and the builder cross appeals from the judgment in favor of the investor. In the second appeal, the builder and his wife contest the continuing validity of two prejudgment attachments of their properties. We affirm the judgment in the principal appeal, and correlatively affirm the judgment denying the discharge of the prejudgment attachment of the builder’s property and set aside the second judgment denying the discharge of the prejudgment attachment of the property of his wife.

In an eight count second amended complaint filed August 28,2007, the plaintiff, Robert Utzler, alleged that the defendant John A. Braca, Jr., was liable to him for breach of contract, breach of fiduciary duty, fraud, intentional misrepresentation, breach of the implied covenant of good faith and fair dealing, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and statutory theft. The plaintiff also alleged that the defendant Patricia Braca, the wife of John A. Braca, Jr., was liable to him for statutory theft and unjust enrichment. After a trial to the court, the court concluded that the plaintiff had proven all of his claims against the defendant except breach of the covenant of good faith and fair dealing and statutory theft but that the plaintiff had not proven either of his claims against Patricia Braca. In AC 29923, the plaintiff appeals from the court’s judgment denying his claim for unjust enrichment against Patricia Braca, and the defendant cross appeals from the court’s adverse judgment against him. In AC 30224, the parties contest the continuing validity of the prejudgment attachments of the properties of the defendant and of Patricia Braca.

The underlying facts are established by the court’s careful and detailed memorandum of decision. On August 25, 2003, the plaintiff entered into a contract with Homes of Fairfield County, LLC (Fairfield, LLC), a company controlled by the defendant, to invest in the building of a luxury home at 2 Moss Ledge Road in Westport (Moss Ledge). In return for the plaintiffs investment of $500,000, the defendant agreed that, when the house was sold, he would repay the plaintiffs investment and also pay him 25 percent of the net profit. The contract specified that the moneys contributed by the plaintiff were to be used solely for this project, and that the defendant was responsible for obtaining construction financing and for building the home. Ridge-field Bank subsequently provided mortgage financing in the amount of $2,075,000.

To induce the plaintiff to agree to the investment contract, the defendant knowingly misrepresented his financial circumstances to the plaintiff. He told the plaintiff that he had made $520,000 on a prior project at Woody Lane in Westport (Woody Lane) when, in fact, he had sold that property for a loss or for a relatively small profit. The plaintiff relied on this misrepresentation to his detriment.

Although the defendant nominally conducted his construction business through a number of business entities, each of these companies was in fact his alter ego. He wholly dominated the finances, policies and business practices of each of them. He operated these businesses without observing any corporate formalities. He used them as conduits to receive funds that were then diverted, at his sole discretion, to further his own business and personal purposes. The court therefore held the defendant personally liable for the conduct of both Fairfield, LLC, with whom the plaintiff nominally entered into the investment contract, and Homes of Westport, LLC (Westport, LLC), which the defendant nominally selected to construct Moss Ledge. Finally, the court also held that the defendant’s personal liability was not affected by his creation of The Braca Family Trust, LLC (Trust, LLC), which he had designated to receive the proceeds of this project. Each of these entities was the defendant’s alter ego, both under the “identity rule”; SFA Folio Collections, Inc. v. Bannon, 217 Conn. 220, 229-30, 585 A.2d 666, cert. denied, 501 U.S. 1223, 111 S. Ct. 2839, 115 L. Ed. 2d 1008 (1991); and under the “instrumentality rule.” Season-All Industries, Inc. v. R. J. Grosso, Inc., 213 Conn. 486, 490, 569 A.2d 32 (1990).

Throughout their joint venture, the defendant treated the plaintiffs investment as if it were his personal fund available for his own business and personal needs. Despite an express provision in the investment contract that the plaintiffs investment was to be used solely for the Moss Ledge project, the defendant immediately used approximately $60,000 of the funds contributed by the plaintiff to close out his costs on the unrelated earlier project at Woody Lane. He regularly deposited funds that he had received from the plaintiff, and from the two construction mortgages for Moss Ledge, into a commingled bank account on which he drew to satisfy debts unrelated to the project and to pay personal expenses. Before completing Moss Ledge, the defendant diverted building resources to another project, a new residence for himself and his wife at Grays Farm Road in Westport (Grays Farm), and placed a third mortgage in the amount of $900,000 on Moss Ledge solely to benefit his and his wife’s personal interest in Grays Farm. Further facts will be discussed as they relate to the specific claims raised in the parties’ appeals.

We first address the claims arising out of the direct appeal and cross appeal in AC 29923, in which we affirm the judgment of the court. We then address the claims arising out of the two prejudgment remedy orders in AC 30224, in which we set aside the judgment denying the discharge of the prejudgment attachment of the property of Patricia Braca, and affirm the second judgment denying the discharge of the prejudgment attachment of the property of the defendant and of his alter ego business entities.

I

AC 29923

THE PLAINTIFF’S APPEAL

The eighth count of the plaintiffs complaint alleged that Patricia Braca had been unjustly enriched in the amount of $257,508 by payments from a Westport, LLC, bank account in 2003 that derived entirely from the plaintiffs investment. The plaintiff maintains that the court improperly found that he had failed to prove this claim. We do not agree.

Under well established Connecticut law, “[pjlaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment. . . . Furthermore, the determinations of whether a particular failure to pay was unjust and whether the defendant was benefited are essentially factual findings for the trial court that are subject only to a limited scope of review on appeal. . . . Those findings must stand, therefore, unless they are clearly erroneous or involve an abuse of discretion. . . . This limited scope of review is consistent with the general proposition that equitable determinations that depend on the balancing of many factors are committed to the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994).

The court based its ruling against the plaintiff on the following findings of fact: “It is undisputed that at the time [the plaintiff] invested his funds into Fairfield, LLC, Westport, LLC, had a relatively small balance in its checking account. [The defendant] transferred [the plaintiffs] investment funds into Westport, LLC’s, account along with the construction financing funds from Ridgefield Bank. It is further undisputed that the defendant commingled funds between the two accounts. As admitted by [the plaintiff] in his trial brief, ‘[the defendant’s] chosen method of handling project expenses was quite unorthodox . . . needlessly commingling the funds and making it impossible to unravel all the transactions.’ In this regard, [the plaintiff] failed to prove that any funds received by Patricia Braca from Fairfield, LLC, or Westport, LLC, were part of [the plaintiffs] investment funds. Despite a significant amount of trial time spent by the parties on the money trail, including numerous charts, the court could make no reasonable findings or conclusions relating to the flow of the funds or [the plaintiffs] claims concerning them. [The plaintiff] chose not to present expert testimony, in the form of a forensic accountant or otherwise, to further support his claims concerning [the defendant’s] use of the project funds.

“While the absence of such evidence was not necessarily fatal to his claims, the state of the evidence concerning [the defendant’s] use of the funds, including payments made to Patricia [Braca], remained mired in the mud. In view of the foregoing, [the plaintiff] has failed to prove the elements of his unjust enrichment claim against Patricia [Braca].”

The plaintiff maintains that the court’s adverse finding was clearly erroneous for three reasons. First, he argues that the court improperly required him to present expert testimony by a forensic accountant to prove his claim of unjust enrichment. Second, he maintains that undisputed evidence of record clearly established the merits of his claim. Third, he contends that, in light of the egregious harm that he suffered as a result of the defendant’s fraudulent misconduct, which led to the loss of his equity in the project, the court improperly required him to prove directly that the funds he invested in the project had been diverted to Patricia Braca. We are not persuaded.

The plaintiffs first contention warrants little discussion because it distorts the court’s holding. Although the court opined that expert evidence would have strengthened the plaintiffs argument, it went on to state that “the absence of such evidence was not necessarily fatal” to the plaintiffs case. (Emphasis added.) The plaintiffs pursuit of this argument can only cast doubt on the strength of his appeal.

The plaintiffs second contention is that the court’s finding is inconsistent with undisputed evidence of record. In particular, the plaintiff takes issue with the court’s finding that a Westport, LLC, bank account from which Patricia Braca received payments of $33,200 between August 26 and December 30, 2003, was financed by the construction mortgage as well as by the plaintiffs investment. According to the plaintiff, one of his exhibits at trial demonstrates that proceeds from the mortgage were not deposited in the Westport, LLC, account until December 30, 2003. Significantly, the plaintiff did not call this apparent discrepancy to the attention of the trial court, either in a motion to reargue or in a motion for articulation. See Practice Book §§ 61-10 (appellant must provide adequate record for review) and 66-5 (discussing motion for rectification or articulation of trial court decision).

The possibility that the court misstated a subsidiary fact does not, however, establish that the court’s ultimate finding was clearly erroneous. Patricia Braca reminds us that the court expressly found that, after the closing on the earlier project at Woody Lane, the Westport, LLC, bank account had a balance of $33,824.20. That amount might have covered her withdrawals. Furthermore, the court also cited, with apparent approval, Patricia Braca’s testimony that in August, 2003, she had access to $75,000 from the proceeds of the sale of her mother’s house. She represented that she had contributed these funds to Westport, LLC.

It was the plaintiffs burden to establish that Patricia Braca had been unjustly enriched. To the extent that the court’s findings were inconsistent, it was the plaintiffs responsibility to seek an articulation from the court. We cannot find facts. Weil v. Miller, 185 Conn. 495, 502, 441 A.2d 142 (1981). “In the absence of a motion for articulation, we read an ambiguous trial record to support, rather than to undermine, the judgment.” St. John Urban Development Corp. v. Chisholm, 111 Conn. App. 649, 653, 960 A.2d 1080 (2008). The plaintiff has therefore failed to establish that the trial court’s finding that he had not proven Patricia Braca’s unjust enrichment was clearly erroneous.

The plaintiffs remaining contention is that “it was not necessary for [him] to forensically trace every dollar wrongfully taken by Patricia Braca, nor should he be required to do so in order to recover against her for the unjustified receipt of his investment and for eroding the equity in the project.” In support of this contention, the plaintiff recites evidence, which Patricia Braca does not dispute, that the defendant egregiously misused the plaintiffs investment. In effect, the plaintiff maintains that the severe losses that he incurred as a result of the defendant’s misconduct should excuse him from having to prove that his funds were diverted to Patricia Braca. The plaintiff has, however, cited no authority for the proposition that the law presumes that one spouse has been unjustly enriched by the other spouse’s misappropriation of a third person’s property. Indeed, enactment of chapter 114 of the Public Acts of 1877, p. 211 (now General Statutes § 46b-36) entitled “An Act in Alteration of the Act concerning Domestic Relations,” but commonly called the Married Women’s Act, makes such an argument untenable. Pursuant to that statute, a wife is liable “for her debts but not for the debts of the husband . . . .” Mathewson v. Mathewson, 79 Conn. 23, 33, 63 A. 285 (1906) (reciting history of “the radical change in public policy introduced by the reform Act of 1877”).

In sum, we affirm the judgment of the court on the plaintiffs appeal. On the record before us, the plaintiff has not persuaded us that he established that Patricia Braca was unjustly enriched by the funds that he had invested with the defendant. “The trial court’s findings of fact are entitled to great deference and will be overturned only upon a showing that they were clearly erroneous.” State v. Bletsch, 281 Conn. 5, 19, 912 A.2d 992 (2007). The plaintiff has not made such a showing in this case.

II

THE DEFENDANT’S CROSS APPEAL

The court found that the plaintiff had proven five of his claims against the defendant: breach of contract, breach of fiduciary duty, fraud, intentional misrepresentation and violation of CUTPA. The court awarded him compensatory damages of $500,000 as well as punitive damages and attorney’s fees of $140,000. In each of the four counts of his pro se cross appeal, the defendant contests the validity of the factual findings of the court in support of each of its conclusions and asks that we adopt the facts as he has portrayed them and “not as how they were decided” by the court. This we decline to do.

We note at the outset that the court expressly ruled on the defendant’s credibility with respect to the findings he disputes on cross appeal: “[The defendant] was the first witness called by the plaintiff and was on the [witness] stand for multiple days. Consequently, the court had an opportunity to judge over a significant period of time [the defendant’s] credibility based upon his demeanor, physical manifestations, responses to questions and memory. Based on this opportunity, the court concludes that [the defendant] was not credible concerning issues material to this action. Moreover, the court concludes . . . that [the defendant] intentionally and consistently misrepresented material facts throughout the course of his testimony. Therefore, the court wholly rejects his testimony on the facts material to its decision in this case with the exception of the basic material facts that are largely undisputed.”

The court’s assessment that the defendant was not credible was particularly significant for its findings in this case because, as the court observed, the financial statements and other documentary evidence that the defendant presented at trial were riddled with unexplained omissions: “Inexplicably, or perhaps tellingly, [the defendant], an experienced builder, never had Fair-field, LLC, sign a general contractor’s agreement with Westport, LLC, containing terms such as the base contract price, change orders, retainage and payment terms. Further, [the defendant] never required any laborers, vendors or material suppliers to provide any invoices, tickets or mechanic’s hen waivers in order to be paid for their work on, or supplies provided to, the [Moss Ledge] project.” The court’s finding of the defendant’s lack of credibility informs, with particular force, our review of all of his claims on cross appeal because each raises questions of fact that were peculiarly within the authority of the trial court to decide— an authority to which we must defer. See Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985).

A

In the first count of his cross appeal, the defendant does not dispute the existence or terms of the investment contract. Rather, he challenges the validity of the court’s finding that he breached that contract because (1) he was not a party to the contract, (2) he was not a member of the defendant Fairfield, LLC, which was a party to the contract, and (3) the contract remains open because it provided that no payment was due the plaintiff until the Moss Ledge property was sold. We are not persuaded.

As a preliminary matter, we note that “[w]hether there was a breach of contract is ordinarily a question of fact. . . . We review the court’s findings of fact under the clearly erroneous standard.” (Internal quotation marks omitted.) Seligson v. Brower, 109 Conn. App. 749, 753, 952 A.2d 1274 (2008). “A court’s disregard of an entity’s structure is commonly known as ‘piercing the corporate veil.’ ” Litchfield Asset Management Corp. v. Howell, 70 Conn. App. 133, 148 n.10, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). Whether the corporate veil should be pierced also presents a question of fact, which we review under the clearly erroneous standard. Connecticut Light & Power Co. v. Westview Carlton Group, LLC, 108 Conn. App. 633, 640, 950 A.2d 522 (2008).

The court found that the defendant used Fairfield, LLC, Westport, LLC, and the Trust, LLC, as his alter egos to collect and divert funds for his business and personal purposes. For example, he took funds invested by the plaintiff in Fairfield, LLC, and transferred them to Westport, LLC, “to pay debts arising from [the defendant’s] prior project, Woody Lane, and to pay personal expenses.” This violated paragraph fifteen of the contract restricting the use of the plaintiffs funds to Moss Ledge. He wholly dominated the finances, policies and business practices of these entities and “wrongfully, fraudulently, dishonestly and unjustly use[d] the funds in violation of [the plaintiffs] legal rights under the agreement.” Notably, he used his control of Fairfield, LLC, to saddle Moss Ledge with a blanket third mortgage of $900,000, the proceeds of which he used solely to finance a new residence for himself and Patricia Braca. Because this third mortgage wrongfully siphoned off the remaining equity in Moss Ledge, the court found credible the plaintiffs claim that he would lose his entire investment even if the property were sold for the full asking price. Consequently, the defendant also violated paragraph fourteen of the contract guaranteeing the plaintiff that his investment would be repaid.

“In the usual veil piercing case, a court is asked to disregard a corporate entity so as to make available the personal assets of its owners to satisfy a liability of the entity.” Litchfield Asset Management Corp. v. Howell, supra, 70 Conn. App. 149. “[I]n Connecticut a court will disregard the corporate structure and pierce the corporate veil only under exceptional circumstances, for example, where the corporation is a mere shell, serving no legitimate purpose, and used primarily as an intermediary to perpetuate fraud or promote injustice.” (Internal quotation marks omitted.) SFA Folio Collections, Inc. v. Bannon, supra, 217 Conn. 230. A court may properly disregard a corporate entity that satisfied the elements of either the “instrumentality rule” or the “identity rule.” Litchfield Asset Management Corp. v. Howell, supra, 148 n.11.

“Under the instrumentality rule, a shareholder, director, or officer of a corporate entity can be held personally liable for corporate actions that, in economic reality, are those of the individual. . . . We have consistently held that the instrumentality rule requires proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiffs legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.” (Citation omitted; internal quotation marks omitted.) Season-All Industries, Inc. v. R. J. Grosso, Inc., supra, 213 Conn. 490.

We are persuaded that the record amply supports the court’s findings that (1) the defendant’s wrongful diversions of funds from Moss Ledge and Fairfield, LLC, to further his personal purposes violated the investment contract, (2) this breach of contract proximately caused a loss of the plaintiffs investment even though Moss Ledge has not been sold and (3) the defendant may be held personally liable to the plaintiff for damages under the instrumentality rule for “piercing the corporate veil.”

B

The defendant does not dispute that he owed a fiduciary duty to the plaintiff. He so testified, and the court so held, as a matter of law. His second claim on cross appeal is that the court improperly found, as a matter of fact, that he had breached that duty because he (1) could account for all funds expended on Moss Ledge, (2) put his personal funds into Moss Ledge and (3) declined to pay himself $132,000 that he was owed under the contract for work on Moss Ledge. We are not persuaded.

Our task in reviewing a finding of breach of fiduciary duty is to determine whether the court’s finding that the defendant had not “proved fair dealing by clear and convincing evidence”; Spector v. Konover, 57 Conn. App. 121, 127, 747 A.2d 39, cert. denied, 254 Conn. 913, 759 A.2d 507 (2000); was clearly erroneous. We address the defendant’s claim mindful of this standard.

As the court observed, many of the facts of record that proved the defendant’s breach of contract also proved that he breached his fiduciary duty to the plaintiff: his diversion of the plaintiffs investment in Fair-field, LLC, to pay his debts from a previous project and his personal expenses; his encumbrance of Moss Ledge with a third mortgage that depleted that property of all equity solely to benefit himself and Patricia Braca; and his failure to make payment on the Moss Ledge mortgages that resulted in foreclosures and rendered Fair-field, LLC, unable to fulfill its contractual obligations to the plaintiff. In addition, the court cited the defendant’s hiring of his relatively inexperienced son as the Realtor for the project. The court found that this conduct by the defendant was “patently unfair, intentionally dishonest and involved a pattern of self-dealing and conflicts” toward the plaintiff.

The law on the obligations of a fiduciary is well settled. “A fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other. . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him. . . . Once a fiduciary relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary. . . . Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof . . . by clear and convincing evidence . . . .” (Citations omitted; internal quotation marks omitted.) Dunham v. Dunham, 204 Conn. 303, 322-23, 528 A.2d 1123 (1987), overruled in part on other grounds by Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996).

We are persuaded that the extensive trial record of the defendant’s self-dealing and conflicts of interest supports the court’s finding that the defendant had not met his burden of showing that he had dealt fairly with the plaintiff. Accordingly, the court properly found that the defendant breached his fiduciary duty to the plaintiff.

C

The defendant’s third claim is that the court improperly found that he fraudulently and intentionally misrepresented a $520,000 profit on the Woody Lane project to induce the plaintiff to invest in Moss Ledge because “there is no basis for this claim or decision . . . .’’He maintains that the court ignored the chronology of the alleged misrepresentations to the plaintiff and improperly found the testimony of other witnesses, notably his former accountants, to be more credible than his own.

Our review of this claim is governed by the well established principle that “[i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony and, therefore, is free to accept or reject, in whole or in part, the testimony offered by either party.” (Internal quotation marks omitted.) DiVito v. DiVito, 77 Conn. App. 124, 138, 822 A.2d 294, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003). Simply put, “[i]t is not for this court to pass on the credibility of a witness.” State v. Ouellette, 110 Conn. App. 401, 417, 955 A.2d 582, cert. granted on other grounds, 289 Conn. 951, 961 A.2d 417 (2008).

The court found that “Kyle Lucke was the lead accountant for the Woody Lane project and reported on the file to [Norm] Grill. Lucke testified, contrary to [the defendant], that he never discussed any profit figures with [the defendant] during the summer of 2003, and, he would not have, under any circumstances, given [the defendant] a verbal profit estimate relating to Woody Lane. The court credits the testimonies of Grill and Lucke in this regard, and discredits [the defendant’s] testimony and evidence on this issue. The court finds the profit figure provided by [the defendant] to [the plaintiff] to be one created by him without any reasonable basis in fact. [The defendant] purposely provided [the plaintiff] -with that baseless figure to entice him into investing in the development of the Moss Ledge property.”

The defendant attempts to dispute these findings by attacking the credibility of his former accountants, whose testimony did not corroborate his allegation that they, and not he, were responsible for the false $520,000 profit figure on Woody Lane. Because this court does not pass on the credibility of witnesses, we cannot say that the court improperly found that the defendant had committed fraud and intentional misrepresentation.

D

Finally, the defendant claims that the court improperly found that he had violated CUTPA because (1) the court “ignored the terms” of the investment contract, (2) he had “done nothing outside the limits” of the contract, (3) he was not a party to that agreement, which was contracted solely between the plaintiff and Fairfield, LLC, a company which the defendant does not own, and (4) the plaintiff violated the contract. We are not persuaded.

“Whether a practice is unfair and thus violates CUTPA is an issue of fact. . . . The facts found must be viewed within the context of the totality of circumstances which are uniquely available to the trial court.” (Internal quotation marks omitted.) De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 434, 849 A.2d 382 (2004).

After citing its extended discussion of the defendant’s acts of deception and malfeasance in parts II and III C of its memorandum of decision, the court found that “[t]he totality of the evidence manifests that [the defendant’s] conduct as a real estate developer and contractor in dealing with [the plaintiff] concerning the project was unfair and deceptive within the purview of [CUTPA]. As discussed, [the defendant] made a material intentional misrepresentation of fact to [the plaintiff] concerning his financial success on his Woody Lane project to induce [the plaintiff] to invest a large sum of money with him in the Moss Ledge project. [The defendant] viewed [the plaintiffs] funds as part of the cash flow of the project to be used at his sole discretion to pay expenses relating to the project, to Woody Lane and to himself personally. The unethical and unscrupulous nature of his dealings with [the plaintiff] is demonstrated by the fact that [the defendant] never discussed his wrongful use of the funds with [the plaintiff]. His actions have caused [the plaintiff] substantial injury.”

Our jurisprudence regarding CUTPA is well settled. It “applies only to acts in the conduct of any trade or commerce.” (Internal quotation marks omitted.) Stearns & Wheeler, LLC v. Kowalsky Bros., Inc., 289 Conn. 1, 11 n.13, 955 A.2d 538 (2008); see also General Statutes § 42-110b (a). Its purpose “is to protect the public from unfair practices in the conduct of any trade or commerce . . . .” Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 380, 880 A.2d 138 (2005). “[A] violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy.” (Internal quotation marks omitted.) Glazer v. Dress Barn, Inc., 274 Conn. 33, 82-83, 873 A.2d 929 (2005).

“A court may exercise its discretion to award punitive damages to a party who has suffered any ascertainable loss pursuant to CUTPA .... 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.” (Citations omitted; internal quotation marks omitted.) Votto v. American Car Rental, Inc., 273 Conn. 478, 485-86, 871 A.2d 981 (2005).

The court’s careful consideration of the evidence at trial and its numerous findings that the defendant’s “unethical and unscrupulous” and “unfair and deceptive acts and practices” caused an ascertainable loss to the plaintiff support its conclusion that the defendant not only violated CUTPA, but did so in a manner that merited awarding punitive damages and attorney’s fees to the plaintiff. Accordingly, the court did nothing improper in so holding.

Ill

AC 30224

Prior to commencing an action against them, the plaintiff filed an application for a prejudgment remedy against property owned by the defendant, by three of his business entities and by Patricia Braca. On August 10, 2006, the plaintiff obtained one attachment on the Grays Farm property owned by the defendant through Westport, LLC. On May 7, 2007, the plaintiff secured a second attachment of properties owned by the defendant in his own name, properties the defendant owned through Westport, LLC, Fairfield, LLC, the Trust, LLC, and real property in Easton owned by Patricia Braca. In two posttrial motions, the defendant (through Westport, LLC) and Patricia Braca each moved unsuccessfully to discharge these attachments. In AC 30224, they ask that we reverse the two judgments of the court denying the discharge. As a corollary to our decision in AC 29923 affirming the judgment, we set aside the judgment denying the discharge of the prejudgment attachment of the property of Patricia Braca and affirm the judgment denying the discharge of the prejudgment attachment of the property of the defendant and of his alter ego business entities.

In AC 29923, the judgment is affirmed. In AC 30224, the judgment of the trial court denying the discharge of the prejudgment attachment of the property of John Braca is affirmed. Also in AC 30224, the judgment denying the discharge of the prejudgment attachment of the property of Patricia Braca is reversed, and the case is remanded to the trial court with instruction to discharge the attachment.

In this opinion the other judges concurred.

       In addition to John A. Braca, Jr., and Patricia Braca, the plaintiff named Homes of Fairfield County, LLC, Homes of Westport, LLC, and The Braca Family Trust, LLC, as defendants. Because we affirm the court’s judgment that all of these business entities were the alter egos of John A. Braca, Jr., we refer to him inthesingularasthe defendant and to Patricia Braca by name.

       Paragraph fifteen of the investment contract provides: “The funds provided by [the plaintiff] or the Construction Lender shall be used only for the Project. Any use of such funds for any other purpose whatsoever shall constitute a default hereunder on the part of [the defendant].”

       The plaintiff has not appealed from the court’s judgment on his claims of breach of the covenant of good faith and fair dealing and statutory theft.

       Because the plaintiff, although represented at trial, appeared pro se on appeal, we “exhibit some degree of leniency” in reading his appellate brief. Hartford National Bank & Trust Co. v. DiFazio, 177 Conn. 34, 39 n.2, 411 A.2d 8 (1979).

       Having determined that the court properly held the defendant liable under the instrumentality rule, we need not address the court’s alternate finding under the identity rule. See Litchfield Asset Management Corp. v. Howell, supra, 70 Conn. App. 148 n.11.

       The defendant does not dispute that he was engaged in trade or commerce with the plaintiff.


author: LAVINE, J.

text:
    JACK ROSENBLIT ET AL. v. RICHARD B. LASCHEVER
    (AC 29584)
    Harper, Lavine and Beach, Js.

      Argued March 17
    officially released June 23, 2009

      Richard B. Laschever, pro se, the appellant (defendant).

      Donald E. Weisman, for the appellee (substitute plaintiff).
   Opinion

LAVINE, J.

The defendant, Richard B. Laschever, appeals from the judgment of the trial court rendered following its granting of the motion for judgment filed by the substitute plaintiff Mark S. Rosenblit. The plaintiffs motion asked the court to enter a judgment in the amount of $15,000 in his favor on the basis of a settlement agreement between the parties. The defendant argues on appeal that the court improperly concluded that the agreement entered into by the parties was a binding settlement agreement. We affirm the judgment of the trial court.

These are the relevant facts and procedural history. In 2005, Jack Rosenblit and Francis Cosgrove filed this action against the defendant, who was then a practicing attorney. In their complaint, they alleged legal malpractice, breach of contract and fraudulent concealment of a cause of action in violation of General Statutes § 52-595.

On September 12, 2006, at a pretrial hearing before the court, Bryant, J., the defendant entered into an agreement and stipulation to settle the action with respect to Jack Rosenblit’s estate only. On appeal, the defendant did not submit a copy of the agreement or a transcript from the September 12, 2006 hearing. He filed a statement on January 29, 2008, indicating that no transcript was necessary for this appeal. We therefore refer to the facts as set forth in a September 19, 2008 articulation of the decision of the court, Elgo, J., to grant the plaintiffs motion for judgment. The defendant does not seem to dispute those facts.

At the September 12, 2006 hearing, the defendant agreed to pay the estate of Jack Rosenblit a sum of $15,000 on or before September 15,2007. The agreement provided that the amount would increase to $25,000 thereafter and that failure to comply would result in the court’s rendering judgment against the defendant. The defendant answered affirmatively to the questions posed by Judge Bryant as to whether he had an adequate opportunity to consider the terms of the agreement with Jack Rosenblit’s attorney, whether he was satisfied with those terms and whether he had considered all the circumstances surrounding his decision and believed that entering into the agreement was in his interest. The defendant also stated that he had nothing further to ask the court with respect to any terms of the agreement.

The defendant did not enter into a similar agreement with Cosgrove on September 12, 2006, or at any time thereafter, and the dispute between them proceeded to trial. At the commencement of the trial, on October 31, 2006, the court, Wiese, J., stated that it was its understanding that “what remains of [the] case is a cause of action brought by Cosgrove versus [the defendant]” because the matter had been resolved as to the plaintiff. The plaintiffs counsel agreed and the defendant made no objection. On March 1, 2007, Judge Wiese found that Cosgrove failed to sustain his burden of proof and rendered judgment in the defendant’s favor.

On September 5, 2007, the defendant filed a motion to set aside the September 12, 2006 agreement and stipulation. He argued that he was under extreme stress at the time he entered into the agreement, that the stress had caused him to retire from legal practice and that when he entered into the agreement, he had assumed that “he would be able to make an accommodation with [Cosgrove].” The defendant further argued that because the court had rendered judgment on the merits in his favor after the trial and the plaintiff did not appeal from it, the defendant was not liable to the plaintiff. Judge Elgo denied the defendant’s motion on October 22, 2007.

On October 31, 2007, the plaintiff filed a motion for judgment, stating that the defendant had not paid the amount agreed to and asked the court to render judgment in the amount of $15,000. The defendant filed an objection, setting forth the same arguments as in his September 5, 2007 motion to set aside the agreement. Judge Elgo granted the plaintiffs motion and rendered judgment in the plaintiffs favor.

On May 9, 2008, the defendant filed a motion for articulation. On September 17, 2008, the court filed an articulation of both its decision denying the defendant’s motion to set aside the agreement on October 22, 2007, and its decision granting the plaintiff’s motion for judgment on January 7, 2008. The court relied on its power to enforce a settlement agreement where the terms of the agreement are clear and unambiguous. The court stated that it had reviewed the transcript from the September 12, 2006 hearing and found that the defendant had agreed to pay the estate of Jack Rosenblit a sum of $15,000 on or before September 15,2007, that thereafter that amount would increase to $25,000 and that the failure to comply would result in the court’s rendering judgment against the defendant. The court quoted the exchange between the defendant and Judge Bryant and stated that it did not find any evidence that the defendant had been confused by the terms of the agreement. The court further concluded that the defendant did not dispute the terms to which he had agreed or claim that there was a misunderstanding or fraud. The court also noted that, at the beginning of the trial against Cosgrove, the defendant did not object when Judge Wiese noted that the matter had been resolved as to the plaintiff. The defendant filed the present appeal from the court’s January 7, 2008 judgment on January 29, 2008.

The defendant’s sole claim on appeal is that the court improperly concluded that the September 12, 2006 agreement and stipulation was a binding settlement agreement. His argument seems to be that the agreement should be set aside because, contrary to the court’s finding, there was a misunderstanding between the parties in that the defendant’s mistaken assumption that he would not be forced to proceed to trial against Cosgrove influenced his entering into the agreement with Jack Rosenblit’s estate. The only evidence the defendant refers to is Cosgrove’s absence at the trial, although Cosgrove’s attorney was present, and the fact that Cosgrove’s attorney told the defendant on the day before the trial that Cosgrove would not proceed to trial.

We first set forth our standard of review. “Agreements that end lawsuits are contracts, sometimes enforceable in a subsequent suit, but in many situations enforceable by entry of a judgment in the original suit. A court’s authority to enforce a settlement by entiy of judgment in the underlying action is especially clear where the settlement is reported to the court during the course of a trial or other significant courtroom proceedings. . . . When parties agree to settle a case, they are effectively contracting for the right to avoid a trial.” (Citations omitted; internal quotation marks omitted.) Audubon Parking Associates Ltd. Partnership v. Barclay & Stubbs, Inc., 225 Conn. 804, 811-12, 626 A.2d 729 (1993).

“The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence. ... To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties.” (Internal quotation marks omitted.) Biller Associates v. Peterken, 58 Conn. App. 8, 12, 751 A.2d 836 (2000), rev’d in part on other grounds, 269 Conn. 716, 849 A.2d 847 (2004). “In order for an enforceable contract to exist, the court must find that the parties’ minds had truly met. ... If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make.” (Internal quotation marks omitted.) Electrical Wholesalers, Inc. v. M.J.B. Corp., 99 Conn. App. 294, 302, 912 A.2d 1117 (2007).

“Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Biller Associates v. Peterken, supra, 58 Conn. App. 12.

Evidence that the defendant discussed a settlement with Cosgrove or that Cosgrove considered such a settlement does not cause us to question the court’s finding that the parties’ minds met on September 12, 2006. The court considered the exchange between the defendant and Judge Bryant on September 12, 2006, in which the defendant stated that he understood the terms of the agreement and was satisfied with them. The court also considered the fact that the defendant did not object when Judge Wiese remarked on October 31, 2006, that the matter was settled as to the plaintiff. On the basis of that evidence, the court found that the defendant entered into an agreement with the plaintiff and that the terms of that agreement were clear and unambiguous.

The defendant does not refer to any evidence that the possibility of an agreement between him and Cos-grove was discussed or negotiated on September 12, 2006, that it was included in the parties’ agreement or that the agreement between the parties was conditioned on the defendant’s potential settlement with Cosgrove. His belief that the agreement with the estate of Jack Rosenblit would end Cosgrove’s action, therefore, is a purely subjective consideration that is not relevant to the court’s finding of an enforceable contract. “ ‘In the formation of contracts ... it was long ago settled that secret, subjective intent is immaterial, so that mutual assent is to be judged only by overt acts and words rather than by the hidden, subjective or secret intention of the parties.’ 1 S. Williston, Contracts (4th Ed. Lord 2007) §4.1, pp. 322-25.” Ravenswood Construction, LLC v. F. L. Merritt, Inc., 105 Conn. App. 7, 12, 936 A.2d 679 (2007). We therefore conclude that the court’s finding that the parties entered into an enforceable contract was not clearly erroneous and that the court properly granted the plaintiffs motion for judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       On September 12, 2006, the attorney for the plaintiff Jack Rosenblit filed a suggestion of death, indicating that Jack Rosenblit had died and that no one had yet been appointed as an executor of his estate. On September 29, 2006, Jack Rosenblit’s attorney filed a motion to substitute Mark S. Rosenblit, Jack Rosenblit’s son and the executor of his estate, as a plaintiff, and the motion was granted on October 31, 2006. Francis Cosgrove was also a plaintiff in this action but is not a party to this appeal. We therefore refer in this opinion to the substitute plaintiff, Mark Rosenblit, as the plaintiff.

       Judge Elgo indicated in a handwritten note on her order granting the plaintiffs motion for judgment on January 7, 2008, that the agreement was placed on the record before her.

       We note that the September 12,2006 agreement stated that the defendant must pay $15,000 to the plaintiff on or before September 15, 2007, and that that amount would increase to $25,000 after September 15, 2007. In his motion for judgment, filed on October 31, 2007, the plaintiff asked the court to “enter a judgment of $15,000” in his favor. In his appellate brief, the plaintiff is asking us to affirm the court’s decision but remand the matter to the trial court with direction to order the defendant to pay $25,000 to the plaintiff. At the oral argument, the plaintiff admitted that he erroneously requested the court to render judgment in the amount of $15,000. The proper course for the plaintiff to challenge the amount in the court’s order granting his motion for judgment was to file a cross appeal from the court’s judgment; see Practice Book § 61-8; which was not done. Consequently, we do not disturb the court’s order.

       The defendant additionally claims in his reply brief that the September 12, 2006 agreement is unenforceable because Jack Rosenblit died in August, 2006, and the motion to substitute a plaintiff was not granted until October 31, 2006. The defendant relies on the notion that the offeree’s power of acceptance is terminated when the offeror or the offeree dies. See 1 Restatement (Second), Contracts § 48 (1981).
      Although we note that the court found that the defendant entered into an agreement with Jack Rosenblit’s estate, we do not address this claim because it was raised for the first time in the defendant’s appellate reply brief. The defendant did not raise this issue when he entered into the agreement on September 12, 2006. He also failed to raise it when he filed his motion to set aside the agreement, his objection to the plaintiffs motion for judgment and his motion for articulation. The defendant’s failure to raise the issue at trial deprived the trial corut of the opportunity to address it. “[T]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Baker v. Cordisco, 37 Conn. App. 515, 525, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995).

       We note here that the court, in its articulation, found that the defendant did not claim that there was a misunderstanding or fraud. We nevertheless review the defendant’s claim because he appears to have raised the issue in his objection to the motion for judgment.