Jalbert v. Mulligan ( 2014 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
BRUCE K. JALBERT ET AL. v. LAWRENCE R.
MULLIGAN ET AL.
(AC 35824)
Keller, Mullins and Schaller, Js.
Argued May 21—officially released September 23, 2014
(Appeal from Superior Court, judicial district of
Waterbury, Shapiro, J.)
Lawrence R. Mulligan, self-represented, with whom
appeared Paul E. Pollock and Dov Braunstein, for the
appellant (named defendant).
Benjamin M. Wattenmaker, with whom, on the brief,
was John M. Wolfson, for the appellees (plaintiffs).
Opinion
KELLER, J. The defendant, Lawrence R. Mulligan,
appeals from the judgment, rendered after a court trial,
in favor of the plaintiffs, Bruce K. Jalbert and Pamela
D. Jalbert.1 On appeal, he challenges as clearly errone-
ous the trial court’s findings as to (1) the assumption
of a defense by Chicago Title Insurance Company (Chi-
cago Title), (2) the barter agreement between the par-
ties, and (3) his retention of $135,000 for legal fees
allegedly incurred. He further claims that (4) the barter
agreement between the parties is unenforceable, (5) a
pleading deficiency bars recovery under the Connecti-
cut Unfair Trade Practices Act, General Statutes § 42-
110a et seq. (CUTPA), and (6) the court’s erroneous
findings of fact ‘‘result in clearly erroneous judgments
against’’ him. We affirm the judgment of the trial court.
The following relevant findings of fact are set forth
in the court’s detailed memorandum of decision. ‘‘The
[plaintiffs] are husband and wife. Pamela Jalbert did
not graduate from high school and received a [general
equivalency diploma]. Bruce Jalbert is a carpenter. The
defendant acted as the plaintiffs’ attorney between 1995
and 2008, [working on matters that included] real estate
transactions. He represented them when they pur-
chased their home at 35 Tolstoy Lane in Southbury for
$295,000 in 2004. On the defendant’s recommendation,
they purchased title insurance from [Chicago Title]. The
defendant also handled Bruce Jalbert’s father’s estate,
including probate work and real estate transactions.
‘‘The defendant was a close personal friend of the
[plaintiffs]. He testified that he and his wife and the
[plaintiffs] ‘were about as close as you would deem
family.’ . . . During a ten year period, they had dinner
together, socialized at one another’s homes, and trav-
eled together. When they purchased their home in 2004,
the [plaintiffs] were aware that a neighboring owner,
Jean Elin, of 39 Tolstoy Lane, had an easement for a
right-of-way over their land. . . . Pamela Jalbert
described it as a passway to a summer cottage, to be
used for three weeks to three months out of the year,
which was not to be widened or maintained. In 2005,
after friends of the [plaintiffs] learned of an issue con-
cerning rights to use Tolstoy Lane and, as a result,
decided not to purchase 39 Tolstoy Lane, the [plaintiffs]
asked the defendant to represent them concerning the
easement issue.
‘‘To compensate the defendant for his legal services,
the [plaintiffs] and the defendant agreed to a barter
system, contingent on whether Chicago Title provided
representation to the [plaintiffs]. They agreed that if
Chicago Title did not provide representation, the parties
would exchange Bruce Jalbert’s construction work for
the defendant’s legal services. If Chicago Title did pro-
vide representation, then the defendant would pay for
Bruce Jalbert’s work. This agreement was not put in
writing.
‘‘Between 2005 and 2007, Bruce Jalbert worked on
several renovation projects for the defendant, at proper-
ties located in Connecticut, New York and Rhode Island.
The undisputed value thereof was $84,750. . . .
‘‘Elin sold 39 Tolstoy Lane to Warren Enterprises, LLC
(Warren Enterprises), in May, 2006. Warren Enterprises
sued the [plaintiffs] in November, 2006, seeking access
to Tolstoy Lane over the plaintiffs’ property (Warren
Enterprises litigation). . . . After receiving the suit
papers, the defendant contacted Chicago Title and then
told Pamela Jalbert that Chicago Title’s claims represen-
tative informed [him] that Chicago Title was not going
to provide representation for the [plaintiffs]. As a result,
Mrs. Jalbert asked the defendant to represent them. He
represented them at court appearances in December,
2006, and February, 2007.
‘‘After the second appearance in February, 2007, the
defendant informed the plaintiffs that Chicago Title had
hired Attorney Neil Marcus of the law firm of Cohen &
Wolf, P.C., ‘to help him.’ . . . In fact, by letter dated
March 8, 2007 . . . Chicago Title informed the defen-
dant that it had retained Marcus to defend the [plain-
tiffs], and that it would not be responsible for any fees
or expenses of any other counsel. Marcus filed an
appearance for the [plaintiffs] in the Warren Enterprises
litigation, in lieu of the defendant, in March, 2007, to
defend the [plaintiffs] against all counts of the com-
plaint in that matter. . . . The defendant did not pro-
vide Chicago Title’s letter to the [plaintiffs], and they
saw it only after the Warren Enterprises litigation was
settled in April, 2008, and after they had commenced
suit against the defendant in this matter.
‘‘In May, 2007, the defendant asked the plaintiffs for
$85,000 from Bruce Jalbert’s father’s trust (the trust),
in order to show Chicago Title that the plaintiffs had
paid the defendant for his work. According to the defen-
dant, he could not show Chicago Title that he had been
paid by Bruce Jalbert’s work.2 The defendant agreed to
hold the $85,000 in an escrow account, to be returned to
the trust after the settlement of the Warren Enterprises
litigation. . . . [T]he trust provided the $85,000, which
the [plaintiffs] provided to the defendant by personal
check. . . . The defendant did not return these funds.
‘‘Prior to Marcus’ appearance, the defendant filed no
pleadings in the Warren Enterprises litigation. Marcus
filed pleadings after he appeared. Marcus then worked
with opposing counsel, who also had been retained by
a title insurance company, to settle the Warren Enter-
prises litigation. No depositions were taken and no
motion practice occurred. As part of the settlement,
Warren Enterprises received a parcel on the north side
of the [plaintiffs’] property for use as a driveway, and
the [plaintiffs] received a parcel as a buffer zone so
that their neighbors could not build near the [plaintiffs’]
house. Also, $50,000 each was paid by Chicago Title
and First American Title Insurance Company, Warren
Enterprises’ title company. [A total of $100,000 in settle-
ment funds was] deposited in the defendant’s client
funds account. . . . [T]he defendant [retained] $50,000
from the settlement.’’ (Citations omitted; footnote
added.)
Approximately two weeks after the Warren Enter-
prises litigation settled, Pamela Jalbert asked the defen-
dant to return the $85,000 from the escrow account.
The defendant refused to do so, and this civil action
ensued. The operative complaint, the plaintiffs’ Decem-
ber 11, 2012 fourth revised complaint, contains five
counts alleging conversion, statutory theft in violation
of General Statutes § 52-564, violation of CUTPA, fraud
and larceny by false pretenses. In their prayer for relief,
the plaintiffs requested, inter alia, monetary damages,
treble damages pursuant to the statutory theft count,
prejudgment interest, costs and reasonable attorney’s
fees. The matter was tried before the court over the
course of two days in March, 2013, during which all
parties testified.
In its memorandum of decision, the court began its
discussion by observing that ‘‘[t]he resolution of this
matter involves the court’s assessments of credibility
and the fiduciary nature of the attorney-client relation-
ship.’’ Throughout its decision, the court expressly cred-
ited the testimony of the plaintiffs. By contrast, the
court did not find the defendant’s testimony to be credi-
ble, detailing numerous assertions and explanations
that the court found to be unpersuasive or lacking in
credibility. The court ultimately ruled in favor of the
plaintiffs on all but the fraud count, concluding in rele-
vant part that ‘‘[t]he evidence is . . . clear and convinc-
ing that the defendant intentionally and wrongfully took
and withheld $135,000 from the plaintiffs. The defen-
dant intentionally misled them concerning the $85,000
payment from the trust. The defendant intentionally
misled the plaintiffs into believing that his services were
needed to defend them in the Warren Enterprises litiga-
tion, and that he was entitled to be paid therefor, caus-
ing them also to agree that he would receive $50,000
from the settlement. He intentionally deprived them of
those funds as well.’’ The court further found that ‘‘[t]he
evidence before the court shows that the plaintiffs, who
were not as well educated as the defendant, an attorney,
were misled by the defendant, who, at the time of the
events at issue, was their friend, attorney and fiduciary.
It is evident that he misled them to believe that Chicago
Title was not providing a defense and that he had
expended vast hours on their behalf in their defense
. . . . The defendant never paid for Bruce Jalbert’s con-
struction services. As a result, the plaintiffs suffered an
additional ascertainable loss of $84,750. . . . This con-
duct . . . was unfair, immoral, unethical, oppressive,
and unscrupulous.’’ (Citation omitted.)
The court awarded the plaintiffs a total of $746,821.11
in damages, which included treble damages on the stat-
utory theft count pursuant to § 52-564, treble prejudg-
ment interest pursuant to General Statutes §§ 37-3a and
52-564, and CUTPA damages. The court further deter-
mined that an award of attorney’s fees was warranted
in light of the CUTPA violation, and thus granted the
plaintiffs a period of fifteen days in which to file an
affidavit of attorney’s fees and expenses. From that
judgment, the defendant appealed to this court.3
On appeal, the defendant primarily challenges vari-
ous factual findings rendered by the court. The standard
of review governing such claims is well established.
‘‘[I]t is axiomatic that [t]he trial court’s [factual] findings
are binding upon [an appellate] court unless they are
clearly erroneous in light of the evidence and the plead-
ings in the record as a whole. . . . We cannot retry the
facts or pass on 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.) Greco v. Greco, 275
Conn. 348, 359, 880 A.2d 872 (2005). With that standard
in mind, we turn to the defendant’s claims.
I
The defendant challenges as clearly erroneous cer-
tain findings pertaining to Chicago Title’s assumption
of a defense on behalf of the plaintiffs in the Warren
Enterprises litigation. Specifically, the defendant claims
that the court erroneously found that he deceived the
plaintiffs into believing that Chicago Title had declined
to furnish such a defense, particularly when, he alleges,
Marcus advised them to the contrary. For two distinct
reasons, his claims fail.
First, our appellate courts repeatedly have recog-
nized that ‘‘[w]e are not required to review claims that
are inadequately briefed. . . . We consistently have
held that [a]nalysis, rather than mere abstract assertion,
is required in order to avoid abandoning an issue by
failure to brief the issue properly. . . . [F]or this court
judiciously and efficiently to consider claims of error
raised on appeal . . . the parties must clearly and fully
set forth their arguments in their briefs. We do not
reverse the judgment of a trial court on the basis of
challenges to its rulings that have not been adequately
briefed. . . . The parties may not merely cite a legal
principle without analyzing the relationship between
the facts of the case and the law cited. . . . Where the
parties cite no law and provide no analysis of their
claims, we do not review such claims.’’ (Internal quota-
tion marks omitted.) Russell v. Russell, 91 Conn. App.
619, 634–35, 882 A.2d 98, cert. denied, 276 Conn. 924,
925, 888 A.2d 92 (2005). The defendant’s appellate brief
fails to cite to any legal authority in regard to these
claims. Rather, his brief consists entirely of bald asser-
tions unaccompanied by substantive analysis thereof.
As a result, the defendant has not adequately briefed
those issues.
Second, even assuming the claims were adequately
briefed, the record before us contains ample evidence
substantiating the court’s findings. At trial, Pamela Jalb-
ert was asked whether the plaintiffs were notified that
Chicago Title had agreed to represent them in the War-
ren Enterprises litigation. She testified that shortly after
she was served with legal process in the Warren Enter-
prises litigation, the defendant informed her that he had
contacted Chicago Title and that Chicago Title
responded that ‘‘they weren’t going to represent us.’’4
Later in her testimony, the following colloquy ensued:
‘‘[The Plaintiffs’ Counsel]: . . . [D]id you know that
in March of 2007 [the defendant] had received . . . a
letter from Chicago Title that said that Chicago Title
was hiring [the law firm of] Cohen & Wolf to defend you?
‘‘[Pamela Jalbert]: No. [The defendant] kept telling
us that our title company was not representing us. . . .
‘‘[The Plaintiffs’ Counsel]: . . . [W]hat was your
understanding regarding Chicago Title’s part of this
case?
‘‘[Pamela Jalbert]: That they were not representing
us. That they had hired Neil Marcus to help [the defen-
dant] and that the title company was not representing
us. I did not find out that they were representing us
until after we sued [the defendant], after we started
this lawsuit. Then, subsequently, when he turned over
his files, we found out that . . . they were representing
us. But [the defendant] kept telling us from day one up
until the end, even when we settled, he kept telling us
the title company wasn’t representing us [and that] [w]e
need to sue them for failure to represent.’’
In addition, the March 8, 2007 letter from Chicago
Title to the defendant, in which it formally notified the
defendant that it would be providing a defense on behalf
of the plaintiffs, was admitted into evidence at trial.
Pamela Jalbert testified that the defendant never
showed her and her husband that letter or conveyed
its substance to them. She further testified that ‘‘if we
had known that Chicago Title was representing us from
day one, we would have had no reason to hire [the
defendant]. There would have been no barter
agreement, there wouldn’t have been any exchange of
money because Chicago Title would have been repre-
senting us, so we would have had representation. There
would have been no need for any of it. . . . [W]e
wouldn’t have had to have [the defendant] as our
attorney.’’
‘‘It is well established that [i]n a case tried before a
court, the trial judge is the sole arbiter of the credibility
of the witnesses and the weight to be given specific
testimony.’’ (Internal quotation marks omitted.) United
Technologies Corp. v. East Windsor, 262 Conn. 11, 26,
807 A.2d 955 (2002). As trier of fact, the court was ‘‘free
to accept or reject, in whole or in part, the testimony
offered by either party.’’ (Internal quotation marks omit-
ted.) DiVito v. DiVito, 77 Conn. App. 124, 138, 822 A.2d
294, cert. denied, 264 Conn. 921, 828 A.2d 617 (2003).
The court thus was entitled to credit the aforemen-
tioned testimony of Pamela Jalbert.
The record also contains evidence belying the defen-
dant’s assertion that ‘‘all the evidence commands the
conclusion’’ that Marcus had advised the plaintiffs that
Chicago Title was providing a defense on their behalf
in lieu of the defendant. The court thoughtfully consid-
ered, and rejected, this argument, finding it unpersua-
sive. We concur. Marcus testified that, after filing an
appearance on behalf of the plaintiffs, the defendant
‘‘requested that I communicate with the [plaintiffs]
through him, and that . . . if we needed to meet with
the [plaintiffs], he would set up the appointment, he
would attend any of our meetings. Essentially, he was
asking that he be the filter between the [plaintiffs] and
me.’’ Pamela Jalbert similarly testified that, after
informing the plaintiffs that Marcus had been retained
to ‘‘help him’’ with their defense, the defendant ‘‘told
us not to speak with’’ Marcus. As a result, the vast
majority of communications between Marcus and the
plaintiffs ‘‘went through’’ the defendant. Marcus further
testified that ‘‘[a]s we were reaching the final throes of
the settlement agreement, it became apparent to me
that the communications were not working because I
was getting a response allegedly from the [plaintiffs],
which was coming through [the defendant], that didn’t
make sense . . . because it was not, in my opinion at
the time, in the [plaintiffs’] best interest . . . . [A]t
some point I realized that I had to talk directly to the
[plaintiffs], and that was my eye-opener, that I realized
that the communications weren’t working . . . . I
spoke to them directly . . . and at that point I realized
that they had been somewhat confused. They really, at
that point, felt that [the defendant] was representing
them . . . .’’ Marcus’ testimony substantiates the
court’s finding that the plaintiffs were not aware that
Chicago Title had assumed their defense in lieu of the
defendant. We thus cannot say that the court’s finding
was clearly erroneous.5
II
The defendant also contests the court’s findings with
respect to the barter agreement between the parties. In
its memorandum of decision, the court found in relevant
part: ‘‘The defendant acknowledges that he had a barter
agreement with Bruce Jalbert. . . . However, he dis-
agrees with the plaintiffs’ contentions as to its terms
and whether it continued until the settlement of the
Warren Enterprises litigation. Under the barter
agreement, the defendant agreed to pay for Bruce Jalb-
ert’s construction services if Chicago Title provided a
defense to the Jalberts. . . . [T]he defendant misled
the plaintiffs so that they were not aware that Marcus
was defending them on behalf of Chicago Title. The
court credits the plaintiffs’ contentions that the barter
agreement involved an exchange of services based on
hours expended, without, as contended by the defen-
dant, adjustment by an hourly rate differential which
recognized that the defendant’s hourly rates were con-
siderably higher than Bruce Jalbert’s hourly rates. This
was an arrangement between close friends, where the
defendant previously had represented the plaintiffs in
the purchase of their home, when they obtained the
title insurance recommended by the defendant.’’ (Cita-
tions omitted.)
The record before us contains evidence substantiat-
ing those findings. In particular, Pamela Jalbert testified
at trial that her husband ‘‘was already working for [the
defendant] at his Meadow Road house in Woodbury.
And [the defendant] was in our kitchen and he said, I
came up with an idea, let’s—since you’re already work-
ing for me, Bruce, why don’t we work out a barter
system. That if the title company represents you, all
right. Then if [the title company] does not represent
you, we’ll do service for service, legal work for carpen-
try work. If they do represent you, then Bruce would
get paid, [the defendant] would pay Bruce for all the
work that he did. So, that was the barter agreement
that they came up with.’’ Bruce Jalbert similarly testified
at trial that he never provided any estimates to the
defendant for the various work he performed at the
defendant’s properties ‘‘[b]ecause of the nature of our
barter agreement, it was strictly a service for service
deal. There was never any question about whose service
was worth more or whose was worth less. It was, I do
this for you, you do this for me.’’
The gist of the defendant’s claim is that he offered
evidence that conflicted with that offered by the plain-
tiffs, which the court should have credited.6 His argu-
ment reflects a fundamental misunderstanding of the
applicable standard by which we review his claim.
Under the clearly erroneous standard of review, an
appellate tribunal does not weigh the quantum of evi-
dence submitted; it simply inquires as to whether there
is any evidence in the record to support a given finding,
or whether the tribunal otherwise is definitely and
firmly convinced that a mistake has been made. See
Getty Petroleum Marketing, Inc. v. Ahmad, 253 Conn.
806, 811, 757 A.2d 494 (2000).
At its essence, the defendant’s claim asks this court
to engage in an independent review of the credibility
of the respective parties. That we cannot do. ‘‘[I]t is
well established that the evaluation of a witness’ testi-
mony and credibility are wholly within the province of
the trier of fact. . . . Credibility must be assessed . . .
not by reading the cold printed record, but by observing
firsthand the witness’ conduct, demeanor and attitude.
. . . An appellate court must defer to the trier of fact’s
assessment of credibility because [i]t is the [fact finder]
. . . [who has] an opportunity to observe the demeanor
of the witnesses and the parties; thus [the fact finder]
is best able to judge the credibility of the witnesses
and to draw necessary inferences therefrom.’’ (Citation
omitted; internal quotation marks omitted.) Schoenborn
v. Schoenborn, 144 Conn. App. 846, 851, 74 A.3d 482(2013). For that reason, ‘‘[i]In reviewing factual findings,
[w]e do not examine the record to determine whether
the [court] could have reached a conclusion other than
the one reached. . . . Instead, we make every reason-
able presumption . . . in favor of the trial court’s rul-
ing.’’ (Internal quotation marks omitted.) Murtha v.
Hartford, 303 Conn. 1, 13, 35 A.3d 177 (2011).
Although the defendant offered conflicting documen-
tary and testimonial evidence at trial, the memorandum
of decision plainly indicates that the court rejected that
evidence and instead chose to credit that presented by
the plaintiffs. Such is the exclusive prerogative of the
trier of fact, with which this court will not interfere on
appeal. See Ravetto v. Triton Thalassic Technologies,
Inc., 285 Conn. 716, 728, 941 A.2d 309 (2008) (appellate
court must defer to trier of fact’s assessment of credibil-
ity); Klein v. Chatfield, 166 Conn. 76, 80, 347 A.2d 58(1974) (‘‘trier is privileged to adopt whatever testimony
it reasonably believes to be credible’’); Talton v. War-
den, 33 Conn. App. 171, 179, 634 A.2d 912 (1993) (‘‘[w]e
cannot . . . pass on the credibility of a witness’’), aff’d,
231 Conn. 274, 648 A.2d 876 (1994). Because there is
supporting evidence in the record and we are not con-
vinced that a mistake was made, the court’s findings
with respect to the barter agreement between the par-
ties are not clearly erroneous.
III
The defendant also challenges the court’s findings
with respect to his retention of $135,000 for legal ser-
vices he allegedly provided the plaintiffs in the Warren
Enterprises litigation. In its memorandum of decision,
the court found, inter alia, that (1) the barter agreement
‘‘involved an exchange of services based on hours
expended, without . . . adjustment by an hourly rate
differential’’; (2) under the barter agreement, the defen-
dant would be compensated for his work in the Warren
Enterprises litigation, by way of construction services,
only if Chicago Title declined to provide a defense to the
plaintiffs; and (3) ‘‘the defendant converted the $85,000
which he [obtained] from the trust [and] also converted
the $50,000 [he retained] from the Warren Enterprises
litigation settlement.’’ We already have concluded in
part II of this opinion that the court’s findings with
respect to the barter agreement are not clearly errone-
ous. As a result, given Chicago Title’s representation
of the plaintiffs in the Warren Enterprises litigation,
the court reasonably found that the defendant was not
entitled to any compensation thereunder.7
The defendant nonetheless maintains that the court
improperly found that he was not entitled to any com-
pensation for work performed prior to Chicago Title’s
assumption of a defense. Apart from the terms of the
barter agreement, we note that the court also concluded
that the defendant failed to provide credible evidence
to establish that he was, in fact, entitled to such compen-
sation. The court found the defendant’s testimonial and
documentary evidence regarding his legal fees to be
wholly lacking in credibility. As it stated: ‘‘The defen-
dant’s credibility, including his statements made in doc-
uments related to billing, is undermined by his
acknowledged backdating of a retainer agreement with
the [plaintiffs]. In his testimony, the defendant stated
that he prepared a retainer agreement for the [plaintiffs]
to sign in March, 2007 . . . but dated it February, 2005,
more than two years earlier. . . . He stated that he
did so ‘[b]ecause I felt it would be helpful to have a
memorialization of our agreement in the beginning of
the file for purposes of our ultimate claim against Chi-
cago Title.’ . . . Although the document states that
Bruce Jalbert signed it in February, 2005, the defendant
testified that Bruce Jalbert signed it in March, 2007.
. . . The defendant also testified that, at the time he
wrote this letter, he knew that Chicago Title had pro-
vided a defense for the [plaintiffs]. . . . The letter
stated, in its first sentence, ‘Chicago Title may not pro-
vide you with a defense against the claims brought by
Jean Elin to cross your property.’ This letter also does
not mention the barter agreement which was in effect
when the defendant wrote it. . . . According to the
defendant, he drafted the letter in March, 2007, to be
correct as of February, 2005. His fabrication of the
document undermines the defendant’s credibility.
‘‘Other examples of misleading documents created
by the defendant also undermine his credibility and his
arguments about being entitled to be paid for legal
services. He prepared a letter addressed to the [plain-
tiffs], dated May 30, 2007, in which he stated that he
‘and his paralegal combined have in excess of 460 hours
at our regular rate per hour for my time and $55 dollars
per hour for my paralegal’s time resulting in a total
more than $140,000 for my time and about $25,000 for
paralegal time and expenses to date.’ . . . In the next
paragraph, the defendant stated that he and the [plain-
tiffs] had ‘come to a resolution for a flat fee of $130,000
for all legal fees to date, and $25,000 for paralegal fees
and expenses.’ The last sentence of this letter states, ‘I
look forward to receiving your first payment in this
regard.’ At trial, the defendant testified that his paralegal
on the case was Pamela Jalbert. . . . Thus, the letter
was a bill to the [plaintiffs], which included charging
them for Pamela Jalbert’s own work. In contradiction
to his own letter, the defendant testified that ‘[i]t was
not my intention that the [plaintiffs] would be paying
my legal fees out-of-pocket at any time.’ . . . The court
does not credit the statement in the letter or the defen-
dant’s trial testimony that an agreement was reached
for payment to the defendant of a flat fee.
‘‘The misleading statements in his May 30, 2007 letter
were followed five days later by the defendant’s June
4, 2007 letter and statement of account to the [plaintiffs]
for professional services from February 19, 2005, to
February 12, 2007. . . . In the June 4, 2007 letter, the
defendant stated, incredibly, that he reduced the total
time reflected since the fees were escalating ‘at a very
rapid pace.’ The statement again billed for paralegal
time. In contrast to the May 30, 2007 letter, which billed
for in excess of 460 hours of attorney and paralegal
time, the June 4, 2007 statement billed for 877.75 hours
of the defendant’s time, an increase of over 410 hours.
The defendant stated that he did not have contempora-
neous time records to support either amount; instead,
he leafed through the file and came up with a number.
. . . The defendant’s testimony that both numbers
were ‘reasonably accurate’ . . . lacks credibility. Simi-
larly lacking in credibility is the sheer amount of the
bill, $209,445.97.’’ (Citations omitted; emphasis
omitted.)
In his reply brief, the defendant alleges that ‘‘all fees
billed by and earned by him were earned prior to Chi-
cago [Title] assuming [the] plaintiffs’ defense, and no
fees were billed nor any received after [it] assumed
[that] defense in March, 2007 . . . .’’ (Citations omit-
ted; emphasis omitted.) The court nevertheless found
that ‘‘[t]he evidence . . . does not establish that the
defendant provided legal services in connection with
the Warren Enterprises litigation which were worth
[the] payment of $85,000 [made by the plaintiffs from
the trust]. The defendant did not engage in discovery,
such as taking or defending depositions, or prepare
witnesses, or prepare for trial, or represent the [plain-
tiffs] at trial. By comparison, Marcus, who represented
the [plaintiffs] in the Warren Enterprises litigation for
about one year, billed approximately $10,800 for his
services. . . . The defendant’s claimed legal work was
unsupported by contemporaneous time records, and he
acknowledged that it included an inordinate amount of
time reviewing deeds. . . . The court is unpersuaded
by his assertions about the value of and the extent of
the legal work he claims to have performed.’’8 (Citation
omitted.) Those factual findings all are supported by
the record before us. As such, they are not clearly
erroneous.
IV
Despite the fact that none of the causes of action
contained in the plaintiffs’ complaint sound in breach
of contract, the defendant contends that the barter
agreement is unenforceable because (1) ‘‘no consider-
ation was given by [the plaintiffs] to [the] defendant’’
and (2) its terms were not definite and certain. That
claim requires little discussion, as the defendant did not
preserve it before the trial court. Our rules of practice
require a party, as a prerequisite to appellate review,
to distinctly raise its claim before the trial court. See
Practice Book § 5-2 (‘‘[a]ny party intending to raise any
question of law which may be the subject of an appeal
must . . . state the question distinctly to the judicial
authority’’); see also Practice Book § 60-5 (‘‘[t]he court
shall not be bound to consider a claim unless it was
distinctly raised at the trial or arose subsequent to the
trial’’). ‘‘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.’’ (Inter-
nal quotation marks omitted.) McGuire v. McGuire, 102
Conn. App. 79, 87, 924 A.2d 886 (2007). To review a
claim advanced for the first time on appeal and not
raised before the trial court amounts to a trial by ambus-
cade of the trial judge. Liberty Mutual Ins. Co. v. Lone
Star Industries, Inc., 290 Conn. 767, 798, 967 A.2d 1(2009). We therefore decline to afford review of this
unpreserved contention.
V
As best we can comprehend, the defendant also
argues that the court improperly found a CUTPA viola-
tion stemming from his failure to pay for the construc-
tion services that Bruce Jalbert had rendered on his
properties. Amidst a sea of abstract assertion set forth
in part II of his appellate brief—which is titled, ‘‘The
Trial Court Made Clearly Erroneous Findings that the
Assumption of Defense by Chicago Was Relevant to
Defendant’s Receipt of Fees and that Plaintiff Was Not
Aware of its Assumption’’—comes a mere sentence
regarding an alleged CUTPA pleading deficiency. The
brief states: ‘‘Since even if the court had been correct
[in awarding CUTPA damages], no such judgment could
enter as there was no allegation or claim for carpentry
fees set forth in the plaintiffs’ complaint, the estimate
[of construction costs] went unchallenged.’’
To the extent that the defendant submits that this
sentence sets forth a distinct ground of appeal, it is the
quintessence of inadequacy. The statement of issues
makes no mention of that claim. The brief does not
contain a separate heading regarding this point of con-
tention, nor does it identify the applicable standard of
review, in contravention of the mandates of Practice
Book § 67-4 (d). Further, the brief cites no legal author-
ity to support the allegation contained therein.
‘‘In Connecticut, our appellate courts do not presume
error on the part of the trial court.’’ Brett Stone Paint-
ing & Maintenance, LLC v. New England Bank, 143
Conn. App. 671, 681, 72 A.3d 1121 (2013). Rather, the
burden rests with the appellant to demonstrate revers-
ible error. Brookfield v. Candlewood Shores Estates,
Inc., 201 Conn. 1, 7, 513 A.2d 1218 (1986) (‘‘[t]he burden
is on the appellant to prove harmful error’’); Harlow v.
Stickels, 151 Conn. App. 204, 210, A.3d (2014)
(‘‘[a]n appellant bears the burden to show that there was
error from which she appeals’’). Such bald assertion as
that set forth in the sentence previously quoted,
divorced from any meaningful analysis or compliance
with the strictures of our rules of practice, does not
satisfy that burden.
VI
As a final matter, the defendant claims that the court’s
erroneous findings of fact ‘‘result in clearly erroneous
judgments against’’ him. Once again, the defendant has
failed to furnish a discussion of any legal authority
whatsoever in support of his claim, which consists
entirely of abstract assertion. His brief contains no
application of facts to the elements of the various
causes of action on which the court ruled in favor of
the plaintiffs. See Grasso v. Connecticut Hospice, Inc.,
138 Conn. App. 759, 769, 54 A.3d 221 (2012). ‘‘We do
not reverse the judgment of a trial court on the basis
of challenges to its rulings that have not been adequately
briefed. . . . [A]ssignments of error which are merely
mentioned but not briefed beyond a statement of the
claim will be deemed abandoned and will not be
reviewed by this court.’’ (Internal quotation marks omit-
ted.) Paoletta v. Anchor Reef Club at Branford, LLC,
123 Conn. App. 402, 406, 1 A.3d 1238, cert. denied, 298
Conn. 931, 5 A.3d 491 (2010). To the extent that the
concluding portion of the defendant’s appellate brief
may be construed as anything but a summation of his
prior points of contention, they do not merit further
review.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the operative complaint also named Renee T. Mulligan and
Bastille Estates, LLC, as defendants, the plaintiffs withdrew their action
with respect to those parties. Accordingly, we refer to Lawrence R. Mulligan
as the defendant in this appeal.
Additionally, we note that, at oral argument, the defendant introduced
himself as a self-represented party. The record nevertheless contains appear-
ances on his behalf by the firms of Bai, Pollock, Blueweiss & Mulcahey,
P.C., and Slavin, Stauffacher & Scott, LLC. The record reveals that approxi-
mately six months after this appeal was commenced, the defendant filed
an appearance herein. That appearance states that it is in addition to an
appearance already on file.
The record further indicates that although his counsel filed an appellate
brief on his behalf on December 19, 2013, the defendant filed a motion for
permission to file a substitute appellate brief on December 30, 2013. This
court granted that motion and the defendant thereafter filed a substitute
appellate brief. That brief, as well as the reply brief filed by the defendant,
is signed by the defendant alone.
2
We reiterate that the court specifically found that the undisputed value
of the construction work performed by Bruce Jalbert on the defendant’s
properties was $84,750.
3
Following the commencement of this appeal, the plaintiffs filed a motion
for attorney’s fees accompanied by a detailed affidavit thereof, as well as
a motion for additur seeking an award of offer of compromise interest
pursuant to General Statutes § 52-192a. After a hearing, the court on August
29, 2013, granted both motions and modified its judgment to reflect a total
amount of $821,664.92 in damages and $125,000 in attorney’s fees awarded
to the plaintiffs. The defendant did not amend his appeal to challenge any
aspect of that modified award. In this appeal, the defendant likewise does
not contest the court’s calculation of damages in any manner.
4
The defendant testified at trial that he learned that Chicago Title had
hired counsel to represent the plaintiffs ‘‘[i]n September or October, 2006.’’
The Warren Enterprises litigation commenced in November, 2006.
5
We likewise disagree with the defendant that the issue of whether Chi-
cago Title would defend the plaintiffs in the Warren Enterprises litigation
was irrelevant to the court’s consideration of his receipt of legal fees. The
court specifically found that the plaintiffs had asked him to represent them
in the Warren Enterprises litigation as a direct result of his false representa-
tion that a claims representative of Chicago Title had informed him that
Chicago Title would not provide a defense on their behalf. That finding is
supported by the record before us. As Pamela Jalbert testified at trial, ‘‘if
we had known that Chicago Title was representing us from day one, we
would have had no reason to hire [the defendant]. . . . [W]e wouldn’t have
had to have [the defendant] as our attorney.’’ In addition, the court found that
when Marcus commenced his representation of the plaintiffs, the defendant
falsely advised them that Chicago Title had hired Marcus ‘‘to help him.’’
That representation by the defendant is contrary to the undisputed evidence
that Marcus had filed an appearance on their behalf in lieu of the defendant
and that Chicago Title’s March 8, 2007 letter to the defendant specifically
apprised the defendant that ‘‘[p]ursuant to the terms and conditions of the
policy . . . we have retained Neil Marcus, Esq. of the law firm of Cohen &
Wolf, P.C., to defend the interest of the [plaintiffs] with respect to the
challenge to title as insured. We will not be responsible for any fees or
expenses of any other counsel. Neil Marcus, Esq. is primarily responsible
for handling the matter . . . .’’ In light of the foregoing, we conclude that
the court properly considered Chicago Title’s assumption of a defense in
evaluating the propriety of the defendant’s receipt of legal fees in the pre-
sent case.
6
In his reply brief, the defendant acknowledges the central tenets of the
clearly erroneous standard of review, noting that findings of fact ‘‘must
stand if, on the basis of the evidence before the court and the reasonable
inferences to be drawn from that evidence, a trier of fact reasonably could
have found as it did.’’ (Internal quotation marks omitted.) The defendant
then submits: ‘‘The reverse is also true. If the trier of fact could not have
found as he did because the weight of the evidence prohibiting the conclusion
is so great as to alert the appellate court [that] an error has occurred, the
finding must be reversed.’’ He provides no authority for his novel assertion
that application of the clearly erroneous standard compels consideration of
‘‘the weight of the evidence,’’ nor can we uncover any under Connecticut law.
7
Indeed, the defendant in his reply brief acknowledges that this court’s
resolution of the barter agreement issue ‘‘will determine the result of this
appeal.’’
8
As but one example, we note that the defendant testified at trial that he
spent 312 hours reviewing deeds on behalf of the plaintiffs in 2005—the
year before Warren Enterprises filed suit against the plaintiffs. The defendant
further testified that he spent 758 hours reviewing deeds on behalf of the
plaintiffs in 2006.