text:
    SCOTT D. VAILLANCOURT v. VAHEEM LATIFI ET AL.
    (AC 23942)
    Dranginis, DiPentima and Hennessy, Js.

      Argued December 2, 2003 —
    officially released February 17, 2004

      Mark D. Malley, with whom, on the brief, was Stephen R. Turner, Jr., for the appellant (plaintiff).

      Rosemarie T. Weber, with whom were Mary Ambrogio Cashman and, on the brief, JoelM. Fain and Tracey M. Lane, for the appellee (defendant Waterbury Young Men’s Christian Association).
   Opinion

DRANGINIS, J.

The issue in this personal injury action is whether the organizer of a recreational athletic league is hable for the injuries a competitor sustains during the heat of the game. Under the facts alleged in the complaint, the organizer of the league is not responsible for the plaintiffs injuries, as nothing it did or did not do was the legal cause of those injuries. We therefore affirm the judgment of the trial court.

The plaintiff, Scott D. Vaillancourt, appeals from the judgment of the trial court rendered on the granting of the motion for summary judgment filed by the defendant Waterbury Young Men’s Christian Association (YMCA). On appeal, the plaintiff claims that it was improper for the court to conclude that the YMCA did not owe him a duty of care and that there were no genuine issues of material fact to be resolved at trial. He also claims that the court abused its discretion by denying his request to amend the complaint. We disagree.

The following procedural history is relevant to our resolution of the appeal. In July, 2000, the plaintiff commenced an action for injuries he allegedly sustained while he was playing softball in a league organized by the YMCA. The complaint sounded in five counts against three defendants, but only the fifth count is relevant to this appeal. The plaintiff alleged that in March, 1998, the YMCA solicited teams for its industrial softball league (league). Teams were required to register and to pay a fee to participate in the league. During a league game on July 15,1998, the plaintiff, the catcher for his team, was attempting to tag the defendant Vaheem Latifi, who was running to home plate from third base. Latifi ran into the plaintiff and caused him to fall to the ground. The plaintiff alleged that Latifi acted with intent and malice. As a result of the collision, the plaintiff suffered injuries, primarily a broken arm. The fifth count also alleged that in exchange for the fee paid by each team, the YMCA was obligated to provide competitors with facilities, organization and instruction “to run a safe league.”

In its answer, the YMCA denied, among other things, that it was obligated to provide a safe league and that it had been negligent. The YMCA thereafter filed a motion claiming that it was entitled to summary judgment as a matter of law because the umpire on the date of the game was an independent contractor, it did not owe the plaintiff a duty of care and nothing that it did or did not do was the legal cause of the plaintiff’s injuries. In granting the motion for summary judgment, the court concluded that there was no evidence before it regarding the scope of the duty, either direct or vicarious, that the YMCA owed the plaintiff or that it had breached its duty. We affirm the judgment of the trial court, albeit on different grounds, as we conclude that nothing the YMCA did or did not do was the legal cause of the plaintiffs injuries.

I

On appeal, the plaintiff claims that it was improper for the court to conclude that the YMCA did not owe him an independent or vicarious duty of care and that there were no genuine issues of material fact in that regard. As a matter of law, the YMCA did not owe the plaintiff a duty of care, as nothing alleged in the complaint was the legal cause of his injuries.

The standard of review for a challenge to the granting of a motion for summary judgment is well established. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 253, 811 A.2d 1266 (2002). “The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994).

“A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings.” (Citation omitted; emphasis added; internal quotation marks omitted.) Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn. App. 311, 315, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000). “The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.” (Internal quotation marks omitted.) Marchetti v. Ramirez, 40 Conn. App. 740, 747, 673 A.2d 567 (1996), aff'd, 240 Conn. 49, 688 A.2d 1325 (1997). The allegations contained in paragraph nine of count five of the complaint are those that are key to the motion for summary judgment.

The plaintiffs cause of action “invokes the well established proposition that a tortfeasor is liable for all damages proximately caused by its negligence.” First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 604, 724 A.2d 497 (1999). The elements of a negligence cause of action are duty, breach, proximate cause and injury. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).

“To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries. . . . [LJegal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct.” (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., 250 Conn. 14, 24-25, 734 A.2d 85 (1999).

“Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held hable for the consequences of their actions. . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant’s negligent conduct. ... In negligence cases such as the present one, in which a tortfeasor’s conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor’s duty to the plaintiff.” (Citations omitted.) First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., supra, 247 Conn. 604.

“Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.” (Citations omitted; internal quotation marks omitted.) Jaworski v. Kieman, 241 Conn. 399, 405, 696 A.2d 332 (1997).

“A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed. ... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world.” (Citations omitted; internal quotation marks omitted.) Id., 406.

Our Supreme Court has recognized that the very nature of athletic competition makes it reasonably foreseeable that competitors may be injured during the contest. Id., 407. “In athletic competitions, the object obviously is to win. In games, particularly those played by teams and involving some degree of physical contact, it is reasonable to assume that the competitive spirit of the participants will result in some rules violations and injuries. . . . Some injuries may result from such violations, but such violations are nonetheless an accepted part of any competition.” Id., 407-408.

The issue in Jaworski was the duty of care owed by one participant to another to prevent injuries from occurring during competition. Our Supreme Court appreciated the tension between promoting vigorous athletic competition and protecting competitors. As a matter of policy, it concluded that a balance between the two objectives can be achieved “by allowing a participant in an athletic contest to maintain an action against a coparticipant only for reckless or intentional conduct and not for merely negligent conduct.” Id., 409.

Although Jaworski concerned soccer players, it is equally foreseeable to us that injuries will occur to competitors in a game of softball. As a matter of public policy, we acknowledge the tension between promoting competition via athletic leagues and protecting competitors from injury. Here, we need not decide the type of action an injured athlete must allege to prevail against the organizer of an athletic league. Instead, we conclude that the plaintiff failed to allege material facts with respect to the mechanism of his injury that gave rise to a duty owed him by the YMCA. The negligent acts the plaintiff alleged were not the proximate cause of his injury.

The plaintiff alleged that in exchange for a fee, the YMCA owed competitors a duty to operate the league safely. According to the plaintiff, the YMCA breached that duty by failing to select, employ and train its umpires to protect and to prevent vicious attacks on competitors. The essence of the plaintiffs claim is that the umpire failed to prevent Latifi’s running into the plaintiff. That claim is predicated on the assumption that Latifi demonstrated unsportsmanlike behavior prior to the collision. The plaintiff concedes, however, that Latifi did nothing prior to the collision to alert anyone that he intended to cause the plaintiff harm or to otherwise require Latifi’s removal from the game. Individuals who serve as officials at athletic competitions are not clairvoyant, and we do not presume that they can foresee a malicious and intentional act of bad sportsmanship such as that alleged by the plaintiff. As a matter of law, the umpire’s failure to eject Latifi from the game prior to the time he ran into the plaintiff was not the proximate cause of the plaintiffs injuries.

In his brief and at oral argument, the plaintiff argued that the YMCA was responsible for his injuries because it did not ensure that the umpire informed the competitors of the rules of the league, particularly the rule that a runner coming to home plate must slide rather than knock down the catcher. Although the plaintiff did not allege that the YMCA was negligent in that manner, he made the argument at the hearing on the motion for summary judgment. The court informed the plaintiff that the argument was not relevant because the allegation was not in the complaint. We agree with the court; nonetheless, we will address the plaintiffs argument on appeal because the YMCA had an opportunity to address it and doing so will settle the issue at the heart of the request to amend. See part II.

The plaintiff contends that had the umpire ensured that everyone who participated in the game on July 15, 1998, knew of the slide rule, the plaintiff would not have been injured. We are not persuaded. Highly competitive members of athletic teams often take chances and risks that cause them to forget or to ignore the rules of the game. Their intent is to win, however, not to hurt other competitors. For that reason, an injured competitor must allege and prove recklessness against the competitor who causes an injury. See Jaworski v. Kieman, supra, 241 Conn. 409.

Furthermore, both this court and our Supreme Court have concluded that even when an actor has been warned or is aware of behavior that creates a risk of injury to others, the actor may fail to take heed. See Haesche v. Kissner, supra, 229 Conn. 222 (teenager whose parents forbid him to use BB gun shot friend in eye during game); Weigold v. Patel, 81 Conn. App. 347, 357, 840 A.2d 19 (2004) (woman who knew she fell asleep while operating motor vehicle continued to do so). We cannot speculate here about what might have happened if the umpire had informed Latifi of the slide rule. At oral argument, the plaintiff conceded that no one can guarantee that a competitor will abide by the rules of the game.

We conclude that the court properly granted the YMCA’s motion for summary judgment because the complaint failed to allege any acts or omissions of the YMCA that were the legal cause of the plaintiffs injuries. As a matter of law, therefore, the YMCA did not owe the plaintiff a duty of care.

II

The plaintiffs second claim is that the court abused its discretion by denying his request to file an amended complaint. See Isaac v. Truck Service, Inc., 52 Conn. App. 545, 548, 727 A.2d 755 (1999), aff'd, 253 Conn. 416, 752 A.2d 509 (2000). The plaintiff, however, has failed to provide an adequate record for our review, which is the appellant’s responsibility. See Practice Book § 61-10.

The following facts are relevant. On September 20, 2002, in response to the YMCA’s motion for summary judgment, the plaintiff simultaneously filed an objection to the motion for summary judgment and a request to amend his complaint. The YMCA filed an objection to the request to amend, arguing six reasons why it should be denied. The plaintiff filed a reply and reclaimed the request to amend to the short calendar. The court denied the plaintiffs request to amend on the papers without stating a reason. The plaintiff failed to seek an articulation. See Practice Book § 66-5. Consequently, we have no way of knowing why the court denied the plaintiffs request to amend and will not review the claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The three defendants were Latifi, Costco Wholesale Corporation and the YMCA. The YMCA is the only defendant that is a party to this appeal.

       The trial court found that the identity of the named defendant is Faheen Abdul-Lateef. In this opinion, we refer to him as Vaheem Latifi, as the name was spelled on the complaint and on the judgment file.

       The court concluded that the YMCA had failed to demonstrate that there was no genuine issue as to whether the umpire was its agent or an independent contractor. That factual issue, however, is not a material fact relevant to the motion for summary judgment.

       In ruling on a motion for summary judgment, the court is not to decide issues of fact; its function is to determine whether there are genuine issues of material fact. See Field v. Kearns, 43 Conn. App. 265, 270, 682 A.2d 148, cert. denied, 239 A.2d 942, 684 A.2d 711 (1996). In opposing a motion for summary judgment, a party is not required to present evidence necessary to prevail at trial, only evidence sufficient to raise issues of fact. We may affirm the judgment of the court on different grounds. See Kalas v. Cook, 70 Conn. App. 477, 485, 800 A.2d 553 (2002).

       In Jaworski v. Kiernan, supra, 241 Conn. 399, our Supreme Court cited the facts of Crawn v. Campo, 136 N.J. 494, 496, 643 A.2d 600 (1994). “[T]he [p]laintiff was playing catcher in a pickup softball game and was injured when [the] defendant, attempting to score from second base, either slid or ran into him at home plate.” (Internal quotation marks omitted.) Jaworski v. Kiernan, supra, 411.

       In resolving this appeal, we do not imply that under different factual allegations, the YMCA would not have owed league participants a duty of care.

       Paragraph nine of count five also alleged in relevant part that the YMCA was negligent in “failing to immediately remove . . . Latifi from the game when it was evident from his statements and actions immediately preceding the intentional, willful and malicious attack on the plaintiff . . . that . . . Latifi was a danger to other players . . . .” The plaintiff withdrew that allegation during oral argument in this court.

        The plaintiff also alleged that the YMCA was negligent because it failed to render proper first aid to him. That allegation was not addressed in the YMCA’s motion for summary judgment or in the parties’ appellate briefs. It is a matter of common knowledge that first aid is rendered after an injury is sustained. The complaint contains no factual allegations that the absence or manner of first aid administered to 1he plaintiff caused him any injury beyond that which he sustained when Latifi collided with him. The plaintiff, therefore, failed to allege an injury, which is an essential element of a negligence cause of action. See Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).

       We do not imply that Latifi acted with intent and malice when he collided with the plaintiff.

       The plaintiff sought to amend paragraph nine of count five to allege that the YMCA was negligent in that it failed to select, employ and train its umpires to protect and to prevent vicious attacks on players in the league and failed to apprise all participating teams of its rules and regulations. See part I.

       At oral argument, the plaintiff argued, on the basis of Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 804 A.2d 823 (2002), that the record is adequate for review. In Journal Publishing Co., the court filed a memorandum of decision, and the defendant filed a motion for articulation that was denied. Id., 687. Our Supreme Court concluded that the memorandum of decision was adequate for review because it stated the facts and law on which the trial court had relied. Id., 688. Here, there is not even a transcript for us to review.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MARK H. SWERDLOFF ET AL. v. JEFFREY RUBENSTEIN
    (AC 24033)
    Flynn, Bishop and McLachlan, Js.
    Argued November 18, 2003 —
    officially released February 17, 2004

      Jeffrey Rubenstein, pro se, the appellant (defendant).

      Mark H. Swerdloff, pro se, with whom, on the brief, was ReenP. Swerdloff, pro se, the appellees (plaintiffs).
   Opinion

PER CURIAM.

This appeal concerns an action for legal fees brought by the plaintiffs, Mark H. Swerdloff and Ileen P. Swerdloff, against the defendant, Jeffrey Rubenstein, their former client. The plaintiffs had been retained by the defendant to represent him in a tort action pursuant to a written fee agreement that provided, inter alia, that “[i]n the event that [the defendant] choose [s] to terminate this relationship prior to recovery by way of settlement or judgment then the Firm of Swerdloff & Swerdloff will be entitled to fees based upon quantum meruit which means that these fees will be based upon the value of their services. Included in a quantum meruit analysis is an analysis of the experience of the Firm in handling matters of this sort, complexity of the matter, and the time expended by members of the Firm.” The plaintiffs’ employment was terminated by the defendant prior to the conclusion of the matter for which they were retained, and the plaintiffs brought this lawsuit to recover in quantum meruit for the legal services they performed. The plaintiffs received a judgment from the trial court, in accordance with a fact finder’s decision, awarding damages in the amount of $11,000, from which the defendant now appeals. On appeal the defendant claims that the court (1) violated his constitutional rights by granting his then counsel’s motion to withdraw without a hearing, (2) abused its discretion in refusing to grant his motion for a continuance to obtain substitute counsel and (3) improperly determined that the defenses he raised to the quantum meruit claim were meritless. We affirm the judgment of the trial court.

The plaintiffs commenced this action on May 8, 2001, and the defendant initially appeared through counsel. The matter was scheduled for trial before a fact finder on October 7, 2002. On August 29, 2002, counsel for the defendant filed a motion to withdraw, which motion complied with Practice Book § 3-10 (b) provisions, and notified the defendant of his right to be heard on the motion and advised him as to how his rights could be exercised. The motion was heard by the court on September 30,2002, but the defendant neither appeared at the hearing nor interposed an objection to the motion. . That same day, the court granted the motion, but did not issue a memorandum of decision.

Following the conclusion of the October 7, 2002 fact-finding trial, the fact finder issued a memorandum recommending judgment for the plaintiffs. The defendant filed a pro se appearance and an objection to the decision, which was sustained by the court. A new fact finder’s trial was scheduled for December 16, 2002, and the defendant sought a continuance on the ground that he had obtained new counsel. That motion was denied by the court without a memorandum of decision. Although the defendant’s purported “new counsel,” attorney Michael R. Hasse, filed an affidavit, dated October 21, 2002, in connection with the defendant’s objection to the determinations of the first fact finder, he did not file an appearance. The second fact finder’s hearing proceeded on December 16, 2002, and a memorandum was filed on December 27,2002, recommending judgment for the plaintiffs in the amount of $11,000. The defendant objected, which objection was overruled, and the court subsequently rendered judgment in accordance with the findings of fact without issuing a memorandum of decision.

As to the defendant’s first claim that the court improperly failed to conduct an evidentiary hearing prior to the granting of his then counsel’s motion to withdraw, the court will not review the issue. The defendant neither interposed an objection to that motion to withdraw, nor did he appear to be heard. He instead raises the issue for the first time on appeal. “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Strouth v. Pools by Murphy & Sons, Inc., 79 Conn. App. 55, 62, 829 A.2d 102 (2003). The defendant had ample opportunity to raise his claim in the trial court, but failed to do so and for this court to now consider such claim would “amount to trial by ambuscade, unfair both to the trial court and to the opposing party.” (Internal quotation marks omitted.) State v. Westberry, 68 Conn. App. 622, 628 n.3, 792 A.2d 154, cert. denied, 260 Conn. 923, 797 A.2d 519 (2002). We therefore will not review the claim.

The defendant next claims that the court abused its discretion in refusing to grant him a continuance of the second trial before the fact finder. In this state, a motion for a continuance is addressed to the sound discretion of the court, and its ruling will not be overturned absent a showing of a clear abuse of discretion. See, e.g., State v. Spells, 76 Conn. App. 67, 75, 818 A.2d 808, cert. denied, 266 Conn. 901, 832 A.2d 67 (2003). In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. See Sheppard v. Sheppard, 80 Conn. App. 202, 206, 834 A.2d 730 (2003).

“It is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation . . . where the trial court has failed to state the basis of a decision . . . [or] to clarify the legal basis of a ruling . . . .” (Internal quotation marks omitted.) Id., 214. In this case, the defendant’s motion for a continuance was denied without a memorandum of decision, and the defendant did not request an articulation of the court’s reasoning, a procedure provided for by Practice Book § 66-5. Thus, because there is nothing before this court that would permit an analysis of the facts underlying the court’s ruling, there is an inadequate basis on which to review the defendant’s claim of abuse of discretion.

Last, the defendant claims that the court improperly determined that his defenses to the plaintiffs’ quantum meruit claim were without merit. The defendant asserts that the plaintiffs violated the Rules of Professional Conduct in that they (1) failed to prepare adequately for trial, (2) failed to keep him informed of the status of the case and (3) failed to notify him that the quantum meruit provision in the fee agreement incorporated a rate of $250 per hour for legal services.* We disagree.

“The factual findings of a [trial referee] on any issue are reversible only if they are clearly erroneous. . . . [A reviewing court] cannot retry the facts or pass upon the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) MacMillan v. Higgins, 76 Conn. App. 261, 268-69, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003). With respect to the first two claimed violations of the Rules of Professional Conduct, this court has reviewed the transcript and concludes, on the basis of the conflicting testimony that was offered, that there was sufficient evidence in the record to sustain the court’s conclusion that those assertions were without merit. With respect to the claim that a provision imposing the $250 per hour rate was not expressly set forth in the fee agreement, the agreement is sufficiently clear’ in setting forth the factors that would be considered under a quantum meruit analysis, and the defendant was free to inquire at the time he signed the retainer as to the hourly rate that would be charged. Furthermore, the court is presumed to know the reasonable value of legal services and may make such a determination. See Shapero v. Mercede, 262 Conn. 1, 9-10, 808 A.2d 666 (2002).

“It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . Where testimony is conflicting the trier may choose to believe one version over the other ... as the probative force of the evidence is for the trier to determine.” (Citation omitted; internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 327, 796 A.2d 516 (2002). There is sufficient evidence in the record to support the fact finder’s determinations and, thus, those findings are not clearly erroneous.

The judgment is affirmed.

       Further supporting our determination as to the inadequacy of the record are the peculiar circumstances surrounding the motion for a continuance. Although the motion was signed by the defendant as a pro se party, it was transmitted to the court by facsimile from the law offices of Hasse and Associates, and the record reflects that attorney Hasse was involved in the matter from as early as October, 2002, even though he never filed an appearance. Furthermore, even though both parties have stipulated that the motion was denied by the court, the order itself does not identify the judge who denied it, nor was the motion file stamped or docketed by the court.

       It is within the province of the court to consider matters of professional conduct in evaluating the evidence on the issue of damages in a claim for attorney’s fees on the basis of quantum meruit. See Marcus v. DuPerry, 25 Conn. App. 293, 298, 593 A.2d 163 (1991), rev’d in part on other grounds, 223 Conn. 484, 611 A.2d 859 (1992).


author: SCHALLER, J.

text:
    HUDSON UNITED BANK v. CINNAMON RIDGE CORPORATION ET AL.
    (AC 23096)
    Schaller, McLachlan and Peters, Js.

      Argued May 27, 2003 —
    officially released February 24, 2004

      Matthew B. Woods, for the appellant-appellee (plaintiff).

      James A. Lenes, for the appellees-appellants (defendants).
   Opinion

SCHALLER, J.

The plaintiff, Hudson United Bank (Hudson), appeals from the judgment of the trial court rendered on the jury’s verdict in favor of the defendant Cinnamon Ridge Corporation (Cinnamon) on count one of the complaint that sought payment on a note and on Cinnamon’s counterclaim that asserted that Hudson had breached the terms of a handwritten agreement and the covenant of good faith and fair dealing. Cinnamon cross appeals from the court’s declaratory judgment in favor of Hudson on count two of the complaint regarding the ownership of a portfolio of second mortgage loans. On appeal, Hudson claims that (1) the court improperly failed to set aside the verdict in favor of Cinnamon on count one of the complaint, (2) there was insufficient evidence to support the verdict on counts one and two of the counterclaim, and (3) the court improperly determined that Hudson’s breach of a handwritten agreement, coupled with its notification to certain subdivision homeowners that they were to pay their second mortgage loans to Hudson rather than to Cinnamon, excused Cinnamon’s liability on the note. On cross appeal, Cinnamon claims that the court improperly concluded that Hudson was the owner of the portfolio of second mortgage loans. We affirm the judgment of the trial court.

The following facts and procedural history are necessary to the proper resolution of these appeals. In 1988, Ralph R. Arganese formed Cinnamon for the purpose of purchasing unimproved land and building a subdivision of approximately fifty-six residential home sites in Torrington. Lafayette American Bank and Trust Company (Lafayette) loaned Cinnamon $3.5 million to purchase the property. Arganese personally guaranteed the loan. In 1992, Cinnamon borrowed an additional $600,000 from Lafayette to be used to construct the individual homes. Arganese personally guaranteed that loan as well. In addition to the mortgages for buying the land and for building the homes, Lafayette and Cinnamon also entered into an agreement under which a prospective home buyer would be able to purchase a home, essentially, without providing a down payment. According to the agreement, Lafayette would provide the purchaser with 90 percent of the financing and, in return, would retain a first purchase money mortgage on the property. Cinnamon would then provide the purchaser with the remaining 10 percent of the financing and retain a second purchase money mortgage on the property.

In 1996, approximately forty-one lots of the subdivision had been improved and sold. Lafayette obtained first mortgages on all forty-one lots, and Cinnamon obtained second mortgages on those same lots. Fifteen lots of the subdivision remained undeveloped and unsold. At that same time, however, the real estate market was in decline. In an effort to bring closure to the subdivision project, Arganese entered into discussions with Lafayette in an effort to restructure the loan in a manner that would allow Cinnamon to complete construction of the fifteen remaining lots while also meeting his obligation to repay the loans. Through their attorneys, Lafayette and Cinnamon worked out a loan restructuring plan under which Lafayette would loan Cinnamon an additional $400,000 while agreeing to a friendly foreclosure on the fifteen lots. In return, it was agreed that Cinnamon would receive the right of first refusal to purchase the foreclosed lots from Lafayette and an exclusive listing agreement. Cinnamon also agreed to secure the note with its portfolio of second mortgages on the forty-one lots.

On June 28, 1996, the parties met to close the deal. Present at the meeting were Arthur E. Miller, the attorney for Lafayette; Robert E. Monaco, the vice president in Lafayette’s lending office; Gregory J. Pepe, an attorney representing Cinnamon; Debra L. Arganese, who is Ralph Arganese’s daughter and an attorney representing Cinnamon; Gene Arganese, who is Ralph Arganese’s son; and Gloria P. Arganese, who is Ralph Arganese’s wife. During the closing, representatives from Hudson and Cinnamon signed a handwritten agreement that had been drafted during the closing by Pepe and Miller. That handwritten agreement provided Cinnamon with an exclusive listing agreement to sell the foreclosed property and a right of first refusal to purchase the foreclosed property. The ultimate purpose of that handwritten agreement, as alleged in Cinnamon’s special defenses, was to allow Cinnamon to “earn out” the moneys owed by Cinnamon under the note through real estate commissions or through profits realized through the resale of the foreclosed properties that Cinnamon chose to purchase from Hudson. The following day, Hudson acquired Lafayette, and Monaco was discharged from his corporate vice president position.

Cinnamon made interest payments on the $400,000 note and collected payments from the homeowners on the second mortgage loans for two years following the closing. In November, 1998, Hudson completed its friendly foreclosure on the fifteen lots. Hudson sold those lots between December, 1998, and March, 1999, to independent third parties without giving Cinnamon the exclusive listing rights or the right of first refusal. Consequently, Cinnamon stopped paying on the note. In July, 1999, Hudson directed deputy sheriffs in Torrington to hand deliver letters to the forty-one homeowners. In those letters, Hudson demanded that the homeowners pay Hudson the second mortgage loan installments.

Hudson commenced an action, by way of a two count complaint alleging that (1) Cinnamon had defaulted on the $400,000 note and failed to make installment payments of interest (count one), and (2) requesting the court to render a declaratory judgment with respect to the ownership of the second mortgages (count two). Cinnamon filed its special defenses and a counterclaim on March 13, 2002. The first special defense and the first count of the counterclaim alleged that Hudson had breached the terms of the handwritten agreement. The second special defense and the second count of the counterclaim alleged that Hudson had breached the covenant of good faith and fair dealing. The third special defense and the third count of the counterclaim alleged that Hudson had violated provisions of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

Following a jury trial, the jury returned a unanimous verdict in favor of Cinnamon on the first count of the complaint. With respect to the second count of the complaint, the court had indicated at the beginning of the trial that it would decide the declaratory judgment issue after the jury returned a verdict on the first count. The court did not decide the declaratory judgment issue after the verdict. On the counterclaim, the jury awarded Cinnamon $190,000 in damages.

On March 19, 2002, Hudson filed a motion to set aside the verdict on the ground that there was insufficient evidence to warrant the jury’s finding that Cinnamon was not liable to Hudson. The court denied the motion and, with respect to the second count of the complaint, declared that Hudson was the owner of the portfolio of second mortgages. Hudson appealed from the judgment rendered against it on the jury’s verdict as to the first count of the complaint and the counterclaim, and Cinnamon cross appealed from the judgment rendered against it on the declaratory judgment count of the complaint.

APPEAL

I

Hudson first claims that the court improperly failed to set aside the verdict in favor of Cinnamon on count one of the complaint. In support of that claim, Hudson argues that although the jury found that it had breached the implied covenant of good faith and fair dealing, the jury did not find that Hudson had violated CUTPA and, therefore, no basis existed for the jury to fail to return a verdict in favor of the plaintiff on count one of the complaint. In other words, the jury’s finding that Hudson had breached the covenant of good faith and fair dealing, alone, could not excuse Cinnamon’s default on the $400,000 note.* We disagree.

The following additional facts are necessary to the proper resolution of Hudson’s claim. In support of its verdict, the jury answered seven of the eight interrogatories that were submitted to it by the court. The jury’s answers on the interrogatories indicated that (1) Cinnamon was not liable to Hudson on the $400,000 note, (2) the handwritten agreement, drafted during the June 28, 1996 closing, was an enforceable contract, (3) Hudson breached that contract, (4) as a result of that breach, Hudson violated the implied covenant of good faith and fair dealing, (5) Hudson did not violate CUTPA and (6) Cinnamon was entitled to $190,000 in damages.

In its motion to set aside the verdict, Hudson argued that there was insufficient evidence to warrant the jury’s finding that Cinnamon was not liable to Hudson on the note. In its memorandum of decision on that motion, the court stated that the jury was entitled to find that the commercial revolving loan agreement, the note, the collateral security agreement and the handwritten agreement all were component parts of one larger agreement. The court stated that the jury was entitled to find that when Hudson exercised its rights under the collateral security agreement by requiring homeowners to pay it with respect to the second mortgage loans, Hudson acquired mortgages in excess of the value of the note. On the basis of that reasoning, the court concluded that the jury properly was entitled to find that Cinnamon was not liable to Hudson on the note.

“[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. ... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Internal quotation marks omitted.) Bolmer v. McKulsky, 74 Conn. App. 499, 510, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003).

We disagree with Hudson’s reasoning. The interrogatories agreed on by the parties implied that a finding of a breach of the implied covenant of good faith and fair dealing may excuse nonperformance on the $400,000 note. Interrogatory seven stated: “If the answer to interrogatory number 3 is yes, and if the answer to any interrogatory 4, 5, or 6 is yes, what [are] the total damages sustained by [Cinnamon] . . . ?” (Emphasis added.) See footnote 12. The jury responded in the affirmative to interrogatories three, four and five. The jury responded in the negative with respect to interrogatory six. Accordingly, the jury awarded $190,000 in response to interrogatory number seven.

It therefore is evident that the jury likely found damages on the breach of contract counterclaim totaling $190,000, but excused payment of the $400,000 note on the basis of its finding of the breach of the implied covenant of good faith and fair dealing. The very manner in which the parties drafted the interrogatories took into account that the jury could in fact award damages to Cinnamon on the counterclaim based on a finding either of the breach of the implied covenant of good faith and fair dealing or on a violation of CUTPA.

That is not the end of our inquiry. We must address, as suggested by Hudson’s argument, whether the jury’s finding that Hudson breached the implied covenant of good faith and fair dealing is legally inconsistent with its finding that Hudson did not commit a CUTPA violation.

“General Statutes § 42-110b (a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. [I]n 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 — whether, 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 businessmen] .... All three criteria do not need to be satisfied to support a finding of unfairness.” (Emphasis added; internal quotation marks omitted.) Calandro v. Allstate Ins. Co., 63 Conn. App. 602, 607-608, 778 A.2d 212 (2001). A violation of CUTPA, therefore, may be established by showing “either an actual deceptive practice ... or a practice amounting to a violation of public policy.” (Citation omitted.) Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 355, 525 A.2d 57, following remand, 205 Conn. 479, 533 A.2d 1211 (1987).

“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. . . . Moreover, [our Supreme Court] has set forth a three part test for satisfying the substantial injury criterion: [1] [the injury] must be substantial; [2] it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and [3] it must be an injury that consumers themselves could not reasonably have avoided.” (Internal quotation marks omitted.) Calandro v. Allstate Ins. Co., supra, 63 Conn. App. 608.

Applying that criteria to the facts in this case, the jury reasonably could have concluded that Cinnamon failed to prove that Hudson’s breach of the handwritten agreement resulted in a “substantial injury.” At trial, Cinnamon admitted that negotiations concerning the workout agreement took place over many weeks. During that time, the parties discussed the right of first refusal and the exclusive listing agreement. Neither party provided evidence showing that those terms were codified in writing prior to the June 28, 1996 closing. The jury therefore reasonably could have concluded that Hudson’s breach, on the basis of an allegation that the writing was not “formalized,” was something that Cinnamon could have reasonably avoided.

Additionally, Cinnamon specifically alleged in its special defenses that Hudson’s conduct was immoral, unethical, oppressive or unscrupulous. The jury could have reasonably concluded that Hudson’s breach of the handwritten agreement, which was drafted at the closing, did not rise to the level of a CUTPA violation. We have held that not every contractual breach rises to the level of a CUTPA violation. See Paulus v. LaSala, 56 Conn. App. 139, 153, 742 A.2d 379 (1999) (“[e]ven if, as the plaintiffs claim, the defendants breached a contract, such a breach is not sufficient to establish a CUTPA violation”), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000); Calandro v. Allstate Ins. Co., supra, 63 Conn. App. 617 (not every misrepresentation rises to level of CUTPA violation).

Because the jury reasonably could have concluded that Hudson breached the handwritten agreement, thereby violating the implied covenant of good faith and fair dealing, which was implicit within the overall agreement, without the breach rising to the level of a CUTPA violation, the court did not abuse its discretion when denying Hudson’s motion to set aside the verdict on the basis of that claim.

II

Hudson next claims that there was insufficient evidence to support the juiy’s verdict on the first two counts of the counterclaim, and, therefore, that the court improperly denied the motion to set aside the verdict. We disagree.

“We are disinclined to disturb jury verdicts, and we accord great deference to the vantage of the trial judge, who possesses a unique opportunity to evaluate the credibility of witnesses. . . . The concurrence of the judgments of the [trial] judge and the jury ... is a powerful argument for upholding the verdict. . . . Furthermore, it is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable infer-enees therefrom, supports the jury’s verdict. ... In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable. ... In other words, [i]f the jury could reasonably have reached its conclusion, the verdict must stand, even if this court disagrees with it.” (Internal quotation marks omitted.) Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 472-73, 806 A.2d 546, cert. denied, 262 Conn. 912, 810 A.2d 278 (2002).

A

Hudson first argues that there was insufficient evidence to support the verdict on the first count of Cinnamon’s counterclaim. We disagree.

The first count of the counterclaim alleged that Hudson had breached the terms of the handwritten agreement. For the jury to have concluded reasonably that Hudson breached the terms of the handwritten agreement, the jury must have concluded that Hudson was bound to the agreement. In support of its claim, Hudson argues that Monaco did not have authority to execute the handwritten agreement.

“The existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence.” (Internal quotation marks omitted.) John M. Glover Agency v. RDB Building, LLC, 60 Conn. App. 640, 643, 760 A.2d 980 (2000). In this case, the parties are not in dispute as to the terms of the contract, but instead question whether a contract existed on the basis of whether Monaco could legally bind Hudson to the terms of the handwritten agreement.

It is well settled that a corporation can act only through its agents. See Lieberman v. Reliable Refuse Co., 212 Conn. 661, 673, 563 A.2d 1013 (1989). Furthermore, “it is a general rule of agency law that the princi-pie in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal, and within the scope of the agent’s employment. ... An agent’s authority may be actual or apparent. . . . Actual authority exists when [an agent’s] action [is] expressly authorized by resolution of the board of directors . . . [is] impliedly authorized by the board of directors . . . or . . . although not authorized, [is] subsequently ratified by the board of directors. . . . Apparent authority is that semblance of authority that a principal, through its own acts or inadvertences, causes or allows third persons to believe the principal’s agent possesses.” (Citations omitted; internal quotation marks omitted.) Maharishi School of Vedic Sciences, Inc. (Connecticut) v. Connecticut Constitution Associates Ltd. Partnership, 260 Conn. 598, 606-607, 799 A.2d 1027 (2002).

“[A]pparent authority is to be determined, not by the agent’s own acts, but by the acts of the agent’s principal. . . . The issue of apparent authority is one of fact to be determined based on two criteria. . . . First, it must appear from the principal’s conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority. . . . Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent’s action.” (Internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 850-51, 817 A.2d 683 (2003).

In this case, Lafayette’s representative at the closing was Monaco, a corporate vice president. Generally, a corporate vice president does not have the inherent authority to bind the corporation to notes or to contracts. 1 J. Cox, T. Hazen & F. O’Neal, Corporations (1995) § 8.8, p. 8.22. “A vice president, however, is sometimes entrusted with management of the business or a particular part of it, and in such a case he or she may bind the corporation by a contract within the scope of express or apparent authority.” (Emphasis added.) Id.

The facts presented at trial reasonably could support the jury’s finding that Monaco had either implied actual authority or apparent authority to bind the corporation to the terms of the handwritten agreement. Although at no time did Monaco or Miller expressly state that Monaco had the authority to bind the bank to the handwritten agreement, their actions, in addition to Hudson’s actions, reasonably could have led Cinnamon to believe that Monaco had such authority.

The events leading to the closing shed light on the parties’ beliefs at the time that the handwritten agreement was signed. Both Ralph Arganese and Cinnamon had a long-standing business relationship with Lafayette. Hudson was planning to acquire Lafayette one day following the closing, on or about June 29, 1996, and premised that acquisition on the handling of the Cinnamon loans. Lafayette’s representatives during the closing, Miller and Monaco, indicated that the parties had to finish the workout agreement that same day. Consequently, the closing began at 2 p.m. and ended sometime later that night. Pepe testified that Monaco and Miller had negotiated the terms of the workout agreement with him for “months and months.” Pepe and Miller had agreed to resolve some of the outstanding issues with Monaco during the closing. Pepe had prior experience with workout officers from Lafayette, and his prior course of dealings with them indicated that they had a significant amount of discretion to make deals. Despite the importance of the closing, Lafayette sent Monaco to represent the bank at the closing.

Debra Arganese testified that at some time during the closing, she overheard Miller or Monaco announce that they had to leave the room to obtain authorization for Monaco to sign the handwritten agreement. She also testified that she saw Monaco in another room on a telephone talking to “someone” after he made that announcement, and that he then returned to the room and stated that everything would be signed and that everything would work.

Gene Arganese testified that Monaco had told him during the closing that he would leave the room to have the handwritten agreement “blessed” and that he would return. Upon returning to the room, Monaco stated that they were “all set.” Miller then responded that he wanted to add a paragraph to the end of the third page in the handwritten agreement. Miller testified that Monaco had authority on behalf of Lafayette to sign the handwritten agreement. At no time following those telephone conversations with the bank did the bank inform Monaco to terminate the closing.

Pepe, Ralph Arganese and Debra Arganese testified that at no time after Monaco signed the handwritten agreement did Monaco state that he needed additional authority from the bank to bind the bank to the handwritten agreement. Additionally, they testified that Monaco never told them that the handwritten agreement was subject to further bank approval. Hudson argues that language in the handwritten agreement indicating that the writing required further “formalization” was evidence that Monaco and Pepe had agreed that Monaco did not have authority or that additional bank approval was required. Pepe testified, however, that “formalization” referred to having the handwritten document later typed so that it would take on a more “formal” appearance. Hudson also argues that Cinnamon must have been on notice that Monaco did not have authority to bind the bank because Ralph Arganese had provided certificates of authorization enabling him to bind Cinnamon dming the workout and that Monaco did not provide such a certificate. Pepe testified that in his twenty years of involvement with numerous workout agreements, he had never seen such a certificate before.

On the basis of that evidence, the jury reasonably could have concluded that Lafayette had a vested interest in wanting to complete the closing on June 28,1996, had knowledge of the value of the transactions involved and had sent Monaco to represent its interests, with Miller, at the closing. In light of that situation, the jury reasonably could have concluded that Cinnamon and Ralph Arganese had had a good faith and reasonable belief that Monaco had either implied actual or apparent authority to bind Lafayette to the handwritten agreement.

B

Having determined that the jury reasonably could have concluded that Monaco had authority to execute the agreement, thereby binding Hudson, we can proceed to address Hudson’s argument that there was insufficient evidence to conclude that Hudson breached the implied covenant of good faith and fair dealing, as alleged in the second count of the counterclaim.

“Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement.” (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 564, 733 A.2d 197 (1999) (Callahan, C. J., dissenting). “Bad faith means more than mere negligence; it involves a dishonest purpose. . . . Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.” (Citation omitted; internal quotation marks omitted.) Cadle Co. v. Ginsberg, 70 Conn. App. 748, 768, 802 A.2d 137, cert. denied, 262 Conn. 905, 810 A.2d 271 (2002).

The jury heard testimony indicating that the handwritten agreement was a component integral to the completion of the overall workout loan restructuring. Cinnamon considered the handwritten agreement instrumental to the loan and the ultimate workout agreement because the handwritten agreement offered Cinnamon two methods to earn money that could ultimately be used to pay off the principal balance of the $400,000 note. The exclusive listing rights offered Cinnamon the chance to earn commissions. The right of first refusal offered Cinnamon the opportunity to purchase the foreclosed lots at a greatly reduced rate and then, later, resell them at a higher current market rate. Pepe and Gene Arganese testified that if Monaco had not agreed to sign the handwritten agreement, then Ralph Arganese would not have signed the $400,000 note or agreed to the friendly foreclosure with the collateral assignment of the portfolio of second mortgage loans.

Accordingly, if the jury determined that Hudson was bound to the terms in the handwritten agreement by Monaco under a theory of either implied actual authority or apparent authority and subsequently breached that agreement, it stands to reason that on the basis of that evidence, the jury reasonably could have concluded that Hudson had breached the implied covenant of good faith and fair dealing. The court did not therefore improperly decline to set aside the verdict on that claim.

Ill

Hudson’s final claim is that the court improperly determined that Hudson’s breach of the handwritten agreement, coupled with its notification to the subdivision homeowners that they were to pay their second mortgage loans to it rather than to Cinnamon, excused Cinnamon’s liability on the note. Specifically, Hudson argues that (1) paragraph twelve of the commercial revolving loan and security agreement provided Hudson license to seize the portfolio of second mortgage loans and also to recover the outstanding balance on the $400,000 note, and (2) because Cinnamon promised to pay $400,000, and not the “equivalency” of $400,000 in second mortgages, the court improperly permitted the second mortgages to satisfy the $400,000 debt. We are not persuaded.

The following additional facts are necessary to the proper resolution of Hudson’s claim. On December 29, 1998, Hudson sold four of the fifteen foreclosed lots to MTGLQ Investors for $69,487. Joseph Anania, Cinnamon’s certified real estate appraiser, testified at trial that he had appraised those same lots between December 12, 1998, and March 25, 1999, and valued four of the fifteen “vacant buildable sites” at $116,000. The remaining eleven lots were sold to a country club in Torrington on March 25,1999, for $165,000. Anania valued those eleven lots at $319,500. Therefore, Hudson sold the fifteen foreclosed lots for $234,487. By comparison, Anania valued those same lots at $435,500.

In January, 1999, after learning about the sales, Cinnamon stopped making payments on the note. In July, 1999, Hudson directed deputy sheriffs in Torrington to deliver letters to the homeowners who had given second mortgages to Cinnamon and requested that the homeowners begin making payments to Hudson directly. After making the demand, Hudson collected only $9200 over the course of two years on the portfolio of second mortgage loans. By comparison, Cinnamon had collected approximately $22,500 during the last six months that it controlled the portfolio of second mortgage loans. At trial, Cinnamon’s accountant, Daniel Fusco, discussed the write off detail report concerning the value of the second mortgage portfolio. During that testimony, he indicated that the portfolio was valued at $488,136.44 as of October 15, 1999.

Following the trial, on April 24, 2002, Cinnamon amended its answer to Hudson’s complaint by adding a fourth special defense to conform to the proof that was offered at trial. The fourth special defense alleged that because Hudson had breached the terms of the handwritten agreement and controlled the portfolio of second mortgage loans, and because the value of the portfolio of loans exceeded $400,000, Hudson had “received all to which it was entitled and [Cinnamon] was not obligated to repay the note.”

A

Hudson first argues that paragraph twelve of the commercial revolving loan and security agreement provided Hudson license to seize the portfolio of second mortgage loans and also to recover the outstanding balance on the $400,000 note on Cinnamon’s default. Cinnamon argues that such an interpretation would impermissibly allow Hudson to recover twice on the note.

Hudson specifically relies on the following language in paragraph twelve of the commercial revolving loan and security agreement to support its interpretation of the contract: “Upon or at any time after default in the payment of the Obligations . . . Lender may, at its option . . . without regard to the adequacy of the security for the Obligations . . . collect and receive all sums due under the Second Loan Documents . . . until all indebtedness secured hereby is paid in full .... Lender shall not be accountable for more money than it actually receives, nor shall it be liable for failure to collect any sums for any reason whatsoever. ...”

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct ....

“[T]he interpretation and construction of a written contract present only questions of law, within the province of the court ... so long as the contract is unambiguous and the intent of the parties can be determined from the agreement’s face .... A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings. . . . When the plain meaning and intent of the language is clear, a clause . . . cannot be enlarged by construction. There is no room for construction where the terms of a writing are clear and unambiguous, and it is to be given effect according to its language.” (Citations omitted; internal quotation marks omitted.) Gager v. Gager & Peterson, LLP, 76 Conn. App. 552, 556-57, 820 A.2d 1063 (2003).

The provision in question, paragraph twelve of the commercial revolving loan and security agreement, is too vague and ambiguous to be read in the manner offered by Hudson and to provide Hudson with the authorization to seize the portfolio in addition to recovering the unpaid balance of the note. The provision does not specify to whom the lender “shall not be accountable for more money than it actually receives . . . .” Primarily, the provision is silent as to Hudson’s authority with respect to the second mortgage loans when the default follows Hudson’s breach of the handwritten agreement, which, as previously stated, the jury and the court concluded comprised one agreement along with the note, the loan agreement and the collateral assignment of the mortgage loans. The provision does not indicate the type of liability from which the lender would be shielded. It also does not expressly state that Hudson may sue on the note while collecting on the second mortgage loans. Accordingly, that matter of contract interpretation involved a question of fact for the court. We will therefore review the claim under the clearly erroneous standard of review.

“A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... It is axiomatic that we defer to the trial court’s assessment of the credibility of witnesses and the weight to afford their testimony.” (Citations omitted; internal quotation marks omitted.) Montville v. Anton-ina, 77 Conn. App. 862, 869-70, 825 A.2d 230 (2003).

The undisputed value of the note was $400,000. The appraised value of the land was $435,500. Hudson’s breach of the handwritten agreement prevented Cinnamon from obtaining the $35,500 profit on the resale of the homes that would have resulted from the right of first refusal. The assessed value of the portfolio of second mortgage loans exceeded the note value by $88,136.44. Cinnamon lost the sales commissions associated with the sale of the fifteen lots. In the end, the jury decided in favor of Cinnamon for $190,000 in damages. On the basis of that evidence, it was not clearly erroneous for the court to have concluded that the parties intended to permit recovery on the note via the portfolio of second mortgage loans alone.

B

Hudson argues that because Cinnamon promised to pay $400,000, and not the “equivalency” of $400,000, in second mortgage loans, the court improperly permitted the second mortgages to satisfy the $400,000 debt. That amounts to a challenge concerning the “medium” of the payment.

Again, “[t]he interpretation and construction of a written contract present only questions of law, within the province of the court ... so long as the contract is unambiguous and the intent of the parties can be determined from the agreement’s face . . . .” Gager v. Gager & Peterson, LLP, supra, 76 Conn. App. 556-57. The commercial revolving note provided that Cinnamon promised to pay Lafayette the sum of $400,000. The language was not ambiguous, and Cinnamon clearly promised to pay Lafayette in “money.” Our standard of review, then, is plenary.

“The word ‘tender’ is generally defined as an unconditional offer of payment consisting in the actual production of a sum not less than the amount due on a specific debt or obligation. The only distinction between a tender and payment lies in the fact that a tender is not accepted, while a payment is. While tender does not discharge or satisfy a debt, payment does. Likewise, a refusal to accept money tendered does not operate as a discharge of a debt.” 60 Am. Jur. 2d, Payment § 4 (2003). The general rule concerning the requirement that payments be made in money provides “that both the payment of and tender of payment of a debt must be in money, unless the parties agree otherwise, or the obligee consents to accept some other medium of payment. If an obligation calls for a money discharge, then there cannot be payment except by paying the full amount called for in money, or the representative of money. Unless the parties so agree, a debtor has no right, except at his or her own peril, to substitute something in lieu of money as the medium of payment of a debt. . . .” Id., § 21; see also State v. Lex Associates, 248 Conn. 612, 629, 730 A.2d 38 (1999) (“[A] tender of payment is not the equivalent of payment itself. Refusal of a tender of payment, however, while it does not discharge a debt, discharges any further accrual of interest if the purchaser keeps the tender . . . .”).

Hudson relies on the holding of Bank Boston Conneclicut v. Platz, 41 Conn. Sup. 587, 596 A.2d 31 (1991), to argue that both tender and payment of the $400,000 had to be in money and not by application of the value of the portfolio of second mortgages to the debt. In Bank Boston Connecticut, the plaintiff bank foreclosed the defendants’ mortgage. The defendants raised a special defense alleging that because they had tendered to the plaintiff a quitclaim deed to the subject property, the deed served to discharge them from their debt. The trial court struck that special defense, concluding that although a foreclosure judgment may vest title in a plaintiff and a deficiency judgment may be calculated by offsetting the value of the property against the debt, those consequences do not constitute a plaintiffs consent to accept the property as the medium for payment of the debt.

It is apparent from the facts that Hudson consented to accept payment on the note in a medium other than cash. The commercial revolving note provided that Cinnamon promised to pay Lafayette the sum of $400,000. Although the note indicated a promise to pay Lafayette in “money,” this case is distinguishable from Bank Boston Connecticut because Hudson accepted the non-money payment. By agreeing to the terms of the commercial revolving note and accepting the collateral assignment of the portfolio of second mortgage loans as security for the debt, Hudson cannot now argue that it did not consent to accept payment in a medium other than money. Additionally, in Bank Boston Connecticut, the defendants tendered the payment, and the bank refused to accept that medium of payment. Here, Hudson itself, unilaterally, acted on the collateral and accepted it as payment.

We therefore conclude that Hudson’s acceptance of the second mortgage loans satisfied Cinnamon’s payment obligation under the note despite the medirán of payment.

CROSS APPEAL

IV

On cross appeal, Cinnamon claims that the court improperly concluded that Hudson was the owner of the second mortgage loans. We conclude that the record is inadequate for our review.

The following additional facts are necessary to the proper resolution of Cinnamon’s claim. With respect to the second count of the complaint, at the beginning of the trial, the court indicated that it would decide the declaratory judgment issue after the jury returned a verdict on the first count. Accordingly, following the jury trial, in its memorandum of decision concerning the motion to set aside the verdict, the court declared that Hudson was the owner of the portfolio of second mortgages. In its memorandum of decision, the court stated: “The second count of the complaint also seeks a declaratory judgment as to the ownership of the second mortgages. At the beginning of the trial, the court stated it would decide that question after the verdict was rendered. In accordance with the relief requested by [Hudson], the court hereby declares that [Hudson] is the owner of the second mortgages.”

“It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. . . . [A]n appellate tribunal cannot render a decision without first fully understanding the disposition being appealed. . . . Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Citations omitted; internal quotation marks omitted.) Gladstone, Schwartz, Baroff v. Hovhannissian, 53 Conn. App. 122, 127, 728 A.2d 1140 (1999). The parties dispute the underlying facts as to how both the jury and the court arrived at the conclusion that Hudson could retain the mortgages. Compare Ammirata v. Zoning Board of Appeals, 264 Conn. 737, 745-46, 826 A.2d 170 (2003) (where pertinent facts, procedural history not in dispute, record adequate for review).

Cinnamon failed to file a motion for an articulation of the court’s decision, and we are left with a decision that does not provide us any insight into its reasoning. Accordingly, we decline to review the claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also named as defendants were Ralph R. Arganese and Tredd Mortgage Company, which Arganese owns. Tredd Mortgage Company is the assignee of a portfolio of second mortgage loans from Cinnamon that are at issue in these appeals. Although all the defendants have cross appealed, for convenience, we refer in this opinion to Cinnamon as the defendant.

       Hudson United Bank is the successor in interest to the original lender, Lafayette American Bank and Trust Company, which was the successor in interest to Lafayette American Bank.

       The $600,000 loan was a revolving loan under which Cinnamon could draw down money from the original $600,000 loan amount and use it to build houses. Then, when the house was sold, the $600,000 loan would be paid down with the proceeds from the sale. That would enable Cinnamon to draw back up against the $600,000 loan.

       Cinnamon assigned those mortgages to Tredd Mortgage Company, which is owned by Ralph Arganese.

       In terms of that particular transaction, Gregory J. Pepe, Cinnamon’s attorney, testified that the phrase “friendly foreclosure” meant that Cinnamon “was not going to contest the foreclosure of the [unsold subject] lots and properties by the bank. That is, it would be fiiendly . . . [and] would not contest it. It would go according to the filings by [Hudson which] . . . would take title accordingly.”

       An exclusive listing agreement, or exclusive agency listing, is an agreement that provides that “the sale or lease of the property during the contractperiod, no matter bywhom negotiated, obligates the property owner to pay a commission to the listing broker.” Colliers, Dow & Condon, Inc. v. Schwartz, 77 Conn. App. 462, 473-74, 823 A.2d 438 (2003). Both Ralph Arganese and his son, Gene Arganese, were licensed real estate brokers.

       In those letters, Hudson indicated that Cinnamon was in default of its loan payments to Hudson and, as a result of a collateral assignment of mortgages, dated June 28, 1996, that Hudson owned the second mortgages encumbering the properties.

       In the second count of the complaint, Hudson alleged that Ralph Arganese and Tredd Mortgage Company, which he owns, may claim an interest in the second mortgages that were junior and subordinate to Hudson’s interests in the property.

       As a threshold matter, Cinnamon argues that the court should not have considered the plaintiffs motion to set aside the verdict because the plaintiff failed to file a motion for a directed verdict previously. Practice Book § 16-37 provides in relevant part that “[a]fter the acceptance of a verdict and within the time stated in Section 16-35 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his or her motion for a directed verdict . . . .” (Emphasis added.) That is, to file a motion to set aside the verdict, the defendant argues, the plaintiff should have first filed a motion for a directed verdict. See Salaman v. Waterbury, 246 Conn. 298, 311, 717 A.2d 161 (1998) (Katz, J., concurring) (“[i]t has long been the rule that ‘[a] motion for a directed verdict is a prerequisite to the filing of a motion to set aside the verdict’ ”); Bauer v. Pounds, 61 Conn. App. 29, 35, 762 A.2d 499 (2000). Our Supreme Court, however, has recognized that “a trial court has the inherent authority to set aside a verdict even where no motion to set aside the verdict has been filed.” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 49 n.44, 717 A.2d 77 (1998). It would, therefore, appear that the court had the inherent authority to set aside the verdict without the prior filing of a motion for a directed verdict.
      The exercise of such authority is appropriate where a party could not raise an issue in a motion for a directed verdict during trial because the issue did not arise until after the jury returned its verdict. See id. The trial court may, for example, set aside the verdict in the exercise of its inherent power when that verdict is inconsistent, as a matter of law, with the jury’s answers to interrogatories. See Belchak v. New York, N. H. & H. R. Co., 119 Conn. 630, 635-37, 179 A. 95 (1935). In the present case, Hudson essentially claims that the verdict in favor of Cinnamon on count one of the complaint should have been set aside because the jury’s answers to the interrogatories were inconsistent with its verdict. That is a claim that could not have been raised during the trial. Hence, it would appear that the court had the inherent authority to set aside the verdict without the prior filing of a motion for a directed verdict.
      Typically, a defendant seeks a directed verdict. In this case, Hudson, the plaintiff, was the moving party and would have to have filed a motion for a directed verdict. “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, [here, Cinnamon], the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.” (Internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 752, 660 A.2d 810 (1995). In light of the special defenses, it would have been improper for Hudson to have sought a directed verdict in this case because the jury could have reasonably reached one of many different conclusions other than the one that might have been raised in a motion for a directed verdict.

       In support of its argument, Hudson relies on the fact that Ralph Arganese “unequivocally testified that $400,000 principal of the note was never repaid and that interest which accrued after 1999 was not paid,” and that the jury did not make a finding of a CUTPA violation. That, Hudson argues, amounted to a judicial admission conclusive on the trier of fact. Hudson cites LaSalle National Bank v. Freshfield Meadows, LLC, 69 Conn. App. 824, 830, 798 A.2d 445 (2002), for that proposition of law. LaSalle National Bank is not, however, on point. In that case, we stated that although the trial court “did not expressly characterize [the] testimony as a judicial admission, it indicated that it regarded . . . [the] testimony as such by carefully distinguishing deposition testimony from the testimony given by [the witness] in the earlier proceeding.” Id. In this case, the court made no such determination. “Whether a party’s statement is a judicial admission or an evidentiary admission is a factual question for the trial court.” (Internal quotation marks omitted.) Harlan v. Norwalk Anesthesiology, P.C., 75 Conn. App. 600, 609, 816 A.2d 719, cert. denied, 264 Conn. 911, 826 A.2d 1155 (2003). Hudson provides no evidence that the court made such a finding, nor does it claim that it ever asked the court to make such a finding. Instead, Hudson simply presumes that because Ralph Arganese made the statement in court, it became a judicial admission automatically.

       Hudson’s attorney’s statements during appellate oral argument also help to define Hudson’s specific claim. Counsel stated: “I’m not challenging the jury’s verdict in the sense that it chose to believe one side as opposed to the other. I’m challenging the jury’s verdict, basically, on the sufficiency of the evidence standard that once you take CUTPA out of the case, that there was no basis on which the jury could fail to find that [Cinnamon] was liable on the $400,000 note. CUTPA, from the beginning, was the trump card. In the event that the jury answered the interrogatory dealing with CUTPA in the affirmative, which it did not, then I think that the court might have been justified, based upon a finding of CUTPA violations, of finding no liability on the note. The court’s discretionary powers under CUTPA are very broad.”

       The interrogatories stated: “1. Is [Cinnamon] liable to the plaintiff bank on the note . . .
      “2. If the answer to interrogatory number 1 is yes, what is the amount of damages the Bank is entitled to recover . . .
      “3. Do you find that the handwritten letter dated June 28, 1996 is an enforceable contract entered into by the Bank . . .
      “4. If the answer to interrogatory number 3 is yes, did the Bank breach the contract . . .
      “5. If the answer to interrogatory number 3 is yes, did the Bank violate the covenant of good faith and fair dealing . . .
      “6. If the answer to interrogatory number 3 is yes, did the Bank violate the Connecticut Unfair Trade Practices Act . . .
      “7. If the answer to interrogatory number 3 is yes, and if the answer to any interrogatory 4, 5, or 6 is yes, what [are] the total damages sustained by [Cinnamon] . . .
      “8. If the answer to interrogatories 1 and 3 is yes, please answer the following question: The Hudson United Bank shall recover $_dollar damages from [Cinnamon] . . . .”

       Cinnamon argues that the general verdict rule should apply and require the court to presume that the jury found every issue in its favor. Specifically, Cinnamon argues that the interrogatories pertained to the counterclaim only and not to the special defenses to the complaint, and, therefore, Cinnamon concludes that the jury must have found against Hudson on the complaint and in favor of Cinnamon on the three special defenses.
      “The so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jmy found every issue in favor of the prevailing party. . . . The rule applies whenever a verdict for one party could reasonably be rendered on one or more distinct causes of action ... or distinct defenses.” (Citations omitted; internal quotation marks omitted.) Sandow v. Eckstein, 67 Conn. App. 243, 248, 786 A.2d 1223 (2001), cert. denied, 259 Conn. 919, 791 A.2d 566 (2002). We disagree with Cinnamon’s argument because interrogatories three and four pertained to the first special defense and the first count of the counterclaim. Interrogatories three and five concerned the second special defense and the second count of the counterclaim. Finally, interrogatories three and six concerned the third special defense and the third count of the counterclaim.

       Paragraph twelve of the commercial revolving loan and security agreement states in relevant part: “Upon or at any time after default in payment of the Obligations or in the performance of any obligation, representation, covenant or agreement herein or in the Note or other instruments given by Borrower relating to or securing the Obligations, Lender may, at its option, without notice and without regard to the adequacy of the security for the Obligations, in person or by agent, with or without bringing any action, suit or proceeding (i) refuse to extend and further advances hereunder, and/ or (ii) collect and receive all sums due under the Second Loan Documents, including the past due, with full power to undertake from time to time all actions as it may deem proper and enforce, modify and compromise the collection of such sums, and do all things required of or permitted to Borrower under the Second Loan Documents and do any acts which Lender deems proper to protect the security hereof until all indebtedness secured hereby is paid in full, and in its own name sue or otherwise collect and receive all sums due under the Second Loan Documents, including the past due, and apply the same, less costs and expenses of collection, including court costs and reasonable attorneys’ fees, to the Obligations. Lender shall not be accountable for more money than it actually receives, nor shall it be liable for failure to collect any sums for any reason whatsoever. Borrower shall facilitate in all reasonable ways any action taken by Lender under this paragraph. ...”

       The term “obligations” is defined in paragraph 1 (f) in the commercial revolving loan and security agreement as meaning the commercial revolving loan.

       The term “second loan documents” is defined in paragraph 1 Q) in the commercial revolving loan and security agreement as the second mortgages and second notes.


author: LAVERY, C. J.

text:
    PETER BEBRY ET AL. v. JOSEPH ZANAUSKAS ET AL.
    (AC 23217)
    Lavery, C. J., and Dranginis and Hennessy, Js.

      Argued October 21, 2003 —
    officially released February 24, 2004

      Brenden P. Leydon, for the appellants (named plaintiff et al.).

      Gary W. Zanauskas, pro se, the appellee (defendant).

      Steven A. Ouellette, with whom, on the brief, was Brian S. Driscoll, for the appellees (defendant Charles Zanauskas et al.).
   Opinion

LAVERY, C. J.

This appeal arises from a motor vehicle accident involving an automobile operated by the defendant Joseph Zanauskas and an automobile in which the plaintiff Peter Bebry was a passenger. Bebry and his wife, the plaintiff Janet Bebry, appeal from the summary judgment rendered in favor of the defendants Charles Zanauskas, Lillian Zanauskas and Gary W. Zanauskas in an action to recover damages for personal injuries caused by Joseph Zanauskas.

The plaintiffs claim that the trial court improperly (1) held that the defendants did not owe a duty to the plaintiffs arising from the defendants’ ability to control Joseph Zanauskas’ behavior and their knowledge of his prior incidents of operating a motor vehicle while intoxicated, and (2) declined to treble the damages awarded to Janet Bebry, after a hearing in damages, pursuant to General Statutes § 14-295 on her loss of consortium claim. We affirm the judgment of the trial court.

The following undisputed fact is relevant to the plaintiffs’ appeal. Neither Charles Zanauskas nor Lillian Zanauskas nor Gary Zanauskas presently have legal custody of Joseph Zanauskas, nor during the period of time pertinent to this case have they ever had such custody. Additional relevant facts will be stated as necessary.

At the outset, we set forth our standard of review. We exercise plenary review over a trial court’s decision to grant a motion for summary judgment. Stokes v. Lyddy, 75 Conn. App. 252, 257, 815 A.2d 263 (2003). “The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment], . . . Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. See Practice Book [§ 17-46].” (Citations omitted; internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202-203, 663 A.2d 1001 (1995).

I

The plaintiffs claim that the court improperly held that the defendants did not owe them a duty arising from the defendants’ ability to control Joseph Zanauskas’ behavior and their knowledge of his prior incidents of driving while intoxicated. Specifically, the plaintiffs argue that the defendants are liable pursuant to the principle of law contained in 2 Restatement (Second), Torts § 319 (1965). For the defendants to be liable under § 319, they must have “taken charge” of Joseph Zanauskas. We are not persuaded.

In support of their motions for summary judgment, the defendants filed the affidavits of Charles Zanauskas, Gaiy Zanauskas and Joseph Zanauskas. Charles Zanauskas attested that he had never been appointed a guardian for Joseph Zanauskas, nor did he know of Joseph Zanauskas ever having a legal guardian. Likewise, Gary Zanauskas attested that he was not the legal guardian for Joseph Zanauskas and that he did not know of Joseph Zanauskas ever having a legal guardian. Joseph Zanauskas attested that he did not then nor had he ever had a legal guardian.

In response to the defendants’ affidavits, the plaintiffs filed the affidavit of Peter Bebry. The plaintiffs’ affidavit stated that Peter Bebry had spoken with Lillian Zanauskas, and that she had told him that she and her husband “had signed their son Joseph Zanauskas out of some sort of institution, which he was in as a result of three prior incidents of driving while intoxicated.” The plaintiffs argue that by having signed Joseph Zanauskas out of such an institution, Joseph Zanauskas’ parents “took charge” of him and incurred liability for his actions under § 319. We disagree.

We begin with the proposition that absent a special relationship of custody and control, there is no duty to protect a third person from the conduct of another at common law. Kaminski v. Fairfield, 216 Conn. 29, 33, 578 A.2d 1048 (1990). Likewise, “[a]t common law, the torts of children do not impose vicarious liability upon parents [as] parents, although parental liability may be created by statute ... or by independently negligent behavior on the part of parents.” (Citation omitted.) Id., 34. The plaintiffs, by way of exception to the common-law rule, cite 2 Restatement (Second), supra, § 319, in support of their claim against the defendants. See footnote 4. The plaintiffs’ reliance on § 319 is misplaced.

Our Supreme Court stated that § 319 imposes no duty to control the conduct of another in any relationships other than those involving professional custodians with special competence to control the behavior of those in their charge, including those relationships arising in institutions, and in other relationships involving legally designated custodians. See Kaminski v. Fairfield, supra, 216 Conn. 34-35. The court further remarked that “[a] familial relationship does not, per se, establish the capacity to control that § 319 envisages as a basis for liability.” Id., 36.

Absent evidence of the defendants having assumed guardianship or some other form of legal custody of Joseph Zanauskas, the defendants cannot be said to have incurred the requisite legal responsibility for Joseph Zanauskas that would give rise to a duty to third persons under § 319. Parents’ knowledge of their emancipated adult son’s record of driving while intoxicated alone is insufficient for them to incur a legal duty to control their son’s behavior for the benefit of third persons under § 319. Likewise, parents, by the mere act of signing their son out of an institution, do not incur the kind of liability contemplated under § 319.

We conclude that the court correctly decided as a matter of law that none of the defendants “took charge” of Joseph Zanauskas or otherwise owed a duty of care to the plaintiffs within the meaning of § 319. We agree with the court that there were no genuine issues of material fact in dispute and that the defendants were entitled to judgment as a matter of law.

II

The plaintiffs also claim that the court incorrectly declined to treble the damages awarded to Janet Bebry pursuant to § 14-295 for her loss of consortium claim.* ** The plaintiffs urge us to remand the matter to the trial court with direction to treble the damages award to Janet Bebry. We decline to do so.

In evaluating the plaintiffs’ claim, a threshold question we must address is whether a claim for loss of consortium falls within the meaning of “personal injury” under § 14-295. We conclude that it does.

“The term consortium is usually defined as encompassing the services of the [spouse], the financial support of the [spouse], and the variety of intangible relations which exist between spouses living together in marriage. . . . These intangible elements are generally described in terms of affection, society, companionship and sexual relations. . . . These intangibles have also been defined as the constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage.” (Citations omitted; internal quotation marks omitted.) Hopson v. St. Mary’s Hospital, 176 Conn. 485, 487, 408 A.2d 260 (1979). Our Supreme Court has concluded that loss of consortium constitutes a real injury and that each spouse has a claim for loss of consortium arising from personal injury to the other spouse caused by the negligence of a third person. Id., 492-93, 496; see Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 563-65, 562 A.2d 1100 (1989).

Our Supreme Court has determined that “[t]he term ‘personal injury’ is broad enough to encompass a claim for injury which is personal to the claimant, although flowing from the physical injury of another.” Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 313, 524 A.2d 641 (1987). “A cause of action for loss of consortium does not arise out of a bodily injury to the spouse suffering the loss of consortium; it arises out of the bodily injury to the spouse who can no longer perform the spousal functions.” Id., 312. Accordingly, we conclude that a spouse’s claim for loss of consortium arising from the physical injury of the other spouse by a third person is a “personal injury” within the meaning of § 14-295.

With that conclusion, we now address the plaintiffs’ claim that the court incorrectly failed to treble the damages awarded on the loss of consortium claim to Janet Bebry. We note that § 14-295 affords the plaintiffs no absolute right to enhanced damages, but leaves the question of whether double or treble damages are awarded to the discretion of the court. “Awards of double or treble damages under § 14-295 are not required simply because a defendant has been found to have violated one of the named statutes. Rather, such damages are assessed based on the degree of the defendant’s culpability.” Jack v. Scanlon, 4 Conn. App. 451, 455, 495 A.2d 1084, cert. dismissed, 197 Conn. 808, 499 A.2d 59 (1985). Thus, the only issue before us with respect to the plaintiffs’ claim for enhanced damages is whether the court abused its discretion.

The plaintiffs have presented us -with an inadequate record on which to determine whether the court abused its discretion. “It is well settled that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . The . . . failure to seek an articulation of the trial court’s decision to clarify the aforementioned issues and to preserve them properly for appeal leaves this court without the ability to engage in a meaningful review.” (Internal quotation marks omitted.) J.K. Scanlan Co. v. Construction Group, Inc., 80 Conn. App. 345, 352, 835 A.2d 79 (2003).

Our examination of the record discloses that although the plaintiffs, in an apparent effort to determine the reason the court did not treble the damages, filed a motion to reargue, the court did not state the legal premises on which it based its decision to deny that motion. The transcripts and the judgment file contain nothing to indicate why the court declined to double or treble the damages awarded on Janet Bebry’s loss of consortium claim. Absent a record showing such reasons, we are unable to review the plaintiffs’ claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The action was dismissed as to the plaintiff Timothy Materazzi, the driver of the vehicle in which Peter Bebry was riding. We therefore refer in this opinion to the Bebiys as the plaintiffs.

       On August 14, 2002, the trial court rendered summary judgment in favor of Charles Zanauskas and Lillian Zanauskas, the parents of Joseph Zanauskas, and in favor of Gary W. Zanauskas, the brother of Joseph Zanauskas. At a hearing in damages on May 13, 2002, the court rendered judgment in favor of the plaintiffs against the defendants Joseph Zanauskas and David Choy. This appeal concerns only the summary judgment defendants, Charles Zanauskas, Lillian Zanauskas and Gary Zanauskas, and we refer to them in this opinion as the defendants.

       The plaintiffs also claimed in their appellate brief that there were genuine issues of material fact concerning the identity and ownership of the automobile driven by Joseph Zanauskas and where Joseph Zanauskas lived at the time of the motor vehicle accident with the plaintiffs. Those facts were material, however, only to the plaintiffs’ claims under the family car doctrine embodied in General Statutes § 52-182 and as to the presumption of agency in General Statutes § 52-183. The plaintiffs conceded at oral argument that the defendants were not liable under the family car doctrine and that the presumption of agency was inapplicable, and that they had so stipulated pursuant to the motions for summary judgment. We give no further attention to that claim.

       Section 319 of the Restatement (Second) of Torts provides: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”

       Although not mentioned in either side’s briefs, we note that Lillian Zanauskas’ alleged statement could be construed as hearsay that could be admissible as a statement by a party opponent under Connecticut Code of Evidence § 8-3 (1). We need not decide that question, however, because whether the parents of Joseph Zanauskas signed him out of an institution was not a material fact on which a determination of liability would rest under 2 Restatement (Second), supra, § 319.

       We further note that any factual dispute over where an emancipated adult child lived at the time he caused injury to a third party is immaterial without evidence demonstrating the existence of a custodial relationship between parents and child within the meaning of 2 Restatement (Second), supra, § 319.

       General Statutes § 14-295 provides: “In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property.”