Watson Real Estate, LLC v. Woodland Ridge, LLC

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WATSON REAL ESTATE, LLC v. WOODLAND RIDGE,
LLC, ET AL.
(AC 40450)
Alvord, Moll and Bear, Js.
Syllabus
The plaintiff sought to recover damages from the defendants for, inter alia,
breach of contract. K, a member of the plaintiff, had purchased a lot in
a residential subdivision owned by the defendant W Co. In connection
therewith, the parties entered into an escrow agreement to cover the
costs of, inter alia, the paving of a common driveway to the subdivision.
Pursuant to the agreement, W Co. was required to complete the common
driveway to the point at which it became an individual driveway for
each lot, but was not to put the final layer of pavement on the common
driveway until construction of all four houses was complete, as indicated
by the issuance of a certificate of occupancy, or five years from the
date of the agreement, whichever occurred first. The agreement provided
a procedure by which the plaintiff could contract with a third party to
complete the work and seek reimbursement from the escrow funds if
W Co. failed to complete the work in a timely manner. After the construc-
tion of K’s home was completed, K contracted and paid a third party
to pave the portion of the common driveway that connected to K’s
individual driveway in order to obtain a certificate of occupancy, and
K also paid an unpaid bill incurred by an agent for W Co. related to an
easement map for the common driveway. Thereafter, W Co. contracted
to have a third party pave the final portion of the common driveway
but did not have a second final layer of pavement installed, which K
believed was required under the escrow agreement. The plaintiff never
submitted invoices to be reimbursed for the costs it expended in
extending the common driveway to the entrance of its property and
settling the invoice for the easement map, as required under the escrow
agreement, and it, thus, was never reimbursed for those expenditures.
The plaintiff subsequently brought this action, claiming, inter alia, that
W Co. breached the agreement by failing to install a second, final layer
of pavement over the common driveway. The trial court rendered judg-
ment in favor of W Co. and determined that because there was no
meeting of the minds as to the specifics of the common driveway, the
plaintiff failed to sustain its burden in proving its breach of contract
claim. Thereafter, the court denied the plaintiff’s request for leave to
amend its revised complaint to add a new count of unjust enrichment,
and the plaintiff appealed to this court. Held:
1. The plaintiff could not prevail on its claim that the trial court improperly
failed to find that there was a meeting of the minds between the parties
as to the number of layers of pavement to be applied to the common
driveway, which was based on its claim that the trial court should have
drawn an adverse inference against W Co. for its failure to call a certain
witness to rebut certain parol evidence presented by the plaintiff; even
if the fact finder could properly draw an adverse inference from a party’s
failure to call an available witness, it is not required to do so, as the
drawing of an adverse inference is permissive rather than mandatory,
and, therefore, the trial court’s failure to draw such an inference in the
present case was not improper as a matter of law.
2. The plaintiff’s claim that the trial court improperly failed to find that W
Co. breached the escrow agreement by not reimbursing the plaintiff for
the costs it had incurred was not reviewable; although the plaintiff
correctly asserted that there was undisputed evidence presented at trial
establishing that the plaintiff had incurred costs to have the common
driveway extended and to settle the invoice for the easement map, the
plaintiff did not allege in the revised complaint or at trial that W Co.
was contractually required to reimburse the plaintiff for those costs,
and it, thus, could not now attempt to recover those sums on appeal
by refashioning its request for damages as an independent breach of
contract claim that was neither alleged in the complaint nor actually
litigated at trial.
3. The plaintiff could not prevail on its claim that the trial court improperly
denied its request for leave to amend its revised complaint to add a
claim of unjust enrichment related to W Co.’s failure to reimburse the
plaintiff for the costs of extending the common driveway and settling
the invoice for the easement map; although the record did not reflect
the court’s reasoning in denying the plaintiff’s request for leave to amend
its revised complaint, the court nevertheless acted within its discretion
in denying the request, as the plaintiff did not seek to amend the com-
plaint until well after the trial had ended and almost four months after
the court had rendered its judgment.
Argued September 26, 2018—officially released January 22, 2019
Procedural History
Action to recover damages for, inter alia, alleged
breach of contract, brought to the Superior Court in
the judicial district of Hartford, where the defendant
Peter J. Alter filed a counterclaim and cross claim;
thereafter, the court, Elgo, J., granted the motion for
partial summary judgment filed by the named defendant
et al. and rendered judgment in part thereon; subse-
quently, the defendant Leonard Bourbeau was defaulted
for failure to plead; thereafter, the matter was tried to
the court, Dubay, J.; judgment in part for the named
defendant; subsequently, the court, Dubay, J., granted
the plaintiff’s motion to reargue, but denied the relief
requested therein, and sustained the named defendant’s
objection to the plaintiff’s request for leave to amend
the revised complaint, and the plaintiff appealed to this
court. Affirmed.
Jeffrey J. Mirman, for the appellant (plaintiff).
Frank A. Leone, for the appellee (named defendant).
Opinion
BEAR, J. This action arises out of an escrow
agreement entered into by the parties in conjunction
with the purchase of a lot in a residential subdivision
owned by the defendant Woodland Ridge, LLC.1 The
plaintiff, Watson Real Estate, LLC, appeals from the
judgment of the trial court, rendered following a bench
trial, in favor of the defendant on the plaintiff’s breach
of contract claim, as well as from the court’s subsequent
order denying the plaintiff’s request for leave to amend
its revised complaint.2 The plaintiff claims on appeal
that the court (1) improperly failed to find that there
was a meeting of the minds between the parties as to
the specifications of the common driveway that the
defendant was required, under the escrow agreement,
to install within the subdivision,3 (2) improperly failed
to find that the defendant breached the escrow
agreement by not reimbursing the plaintiff for costs it
incurred in relation to certain work that the defendant
was required under the agreement to complete, and (3)
abused its discretion in denying the plaintiff’s request
for leave to amend its revised complaint to conform to
the evidence adduced at trial. We affirm the judgment
of the trial court.
The following facts, which either were found by the
trial court or are undisputed in the record, and proce-
dural history are relevant to this appeal. The defendant
was the owner and developer of a four lot residential
subdivision located on the westerly side of Woodland
Street in Glastonbury. The subdivision consists of two
front lots abutting Woodland Street (lots 1 and 2) and
two rear lots abutting the western boundaries of the
front lots (lots 3 and 4). A common driveway providing
ingress and egress to the subdivision runs west from
Woodland Street past the entrances to lots 1 and 2 and
terminates at the entrances to the rear lots.
In May, 2006, H. Kirk Watson, a member of the plain-
tiff,4 entered into an agreement with the defendant for
the purchase of lot 1. At the time of the execution of
the purchase agreement, the common driveway had
been paved only from Woodland Street to a point 118
feet before the entrance to lot 1; the remainder of the
driveway, including the portion passing along the
entrance to lot 1, remained unpaved. Consequently,
Watson, in his capacity as a member of the plaintiff,
entered into an agreement with the defendant and Attor-
ney Peter J. Alter to create an escrow fund from a
portion of the defendant’s proceeds from the sale of lot
1 to assure the defendant’s completion of the common
driveway and certain other improvements and construc-
tion that remained to be completed (escrow
agreement). Under the escrow agreement, the defen-
dant was to deposit with the escrow agent, Alter, the
sum of $51,000, which represented ‘‘a fair estimate of
the cost of completion of the [w]ork.’’
The particular items that remained to be completed
were set forth in a punch list that was attached to the
escrow agreement as exhibit A. Pursuant to exhibit A,
the defendant was required to ‘‘complete the common
driveway to the point at which it becomes an individual
driveway for each approved lot,’’ but the defendant was
not to ‘‘put the final course of bituminous pavement on
the common driveway until construction of all four
houses [was] complete (as indicated by the issuance
of a certificate of occupancy), or five (5) years from
the date of [the escrow agreement], whichever shall
first occur.’’ The stated rationale for this delay was to
‘‘avoid damage to the final pavement as may be caused
by heavy construction vehicles using the driveway dur-
ing home construction.’’ As Watson later testified at
trial, at the time he executed the escrow agreement, he
believed that this language required the defendant to
initially extend the existing layer of pavement along the
remainder of the driveway and, then, at the appropriate
time, install a second layer of pavement over the entire
length of the driveway. Per exhibit A, the defendant
was also required to install a common electric power
service from which each lot could secure individual
service.
Because the parties recognized that the work needed
to be completed before the plaintiff could secure a
building permit and a certificate of occupancy, the
escrow agreement provided for a procedure by which
the plaintiff could contract with a third party to com-
plete the work and seek reimbursement from Alter out
of the escrow funds if the defendant failed to complete
the work in a timely manner. Pursuant to this procedure,
the plaintiff was to give written notice to the defendant
that the plaintiff’s construction project required that
the work be completed within a reasonable time. If the
defendant subsequently failed to complete the work
within thirty days, the plaintiff was then authorized to
contract for the completion of the work, and, ‘‘upon
submission of an invoice or contract for performance
from a third party contractor, [Alter] shall advance the
funds from the escrow agreement to satisfy the invoice
or contract provisions.’’
Upon the closing of the transaction, Watson took title
to the property in the name of the plaintiff and began
developing the property. Between the time of closing
and the completion of the plaintiff’s house, no addi-
tional paving of the common driveway was done. Wat-
son was told by the town, however, that in order to
obtain a certificate of occupancy, the paved portion of
the common driveway needed to be extended to the
entrance of the plaintiff’s property. Consequently, in
2008, Watson contracted with a third party to pave this
portion of the common driveway at a cost of $4914,
which Watson paid. The remainder of the driveway,
however, remained a dirt road. Watson also paid $530.70
to Megson & Heagle Civil Engineers & Land Surveyors,
LLC (Megson & Heagle), to satisfy an unpaid bill
incurred by Daniel Zak, an agent for the defendant, in
connection with the preparation of a Connecticut Light
and Power Company easement map (easement map)
for the common driveway.5
Between 2008 and 2011, no additional paving was
done on any portion of the common driveway. In Sep-
tember, 2011, Zak notified Alter that the defendant
intended to complete all of the remaining work required
under the escrow agreement. The defendant, thereafter,
engaged R & J Paving, LLC (R & J Paving), to pave
the final portion of the common driveway, from the
entrance of the plaintiff’s property to the entrances to
lots 3 and 4. The defendant did not, however, have a
second, final layer of pavement installed, which Watson
believed was required under the escrow agreement.
Upon receipt from Zak of the paving invoice, Alter
released $9000 to R & J Paving and divided the remain-
der of the escrow funds between Zak and Leonard Bour-
beau, a member of the defendant. The plaintiff was
never reimbursed for the costs it expended in extending
the common driveway to the entrance to its property
and settling the invoice for the easement map. The
plaintiff, however, had not submitted invoices for these
expenditures to Alter as required under the escrow
agreement.
The plaintiff commenced the present action in March,
2013. In count two of the operative, revised complaint—
the only count at issue in this appeal6—the plaintiff
alleged, inter alia, that the defendant breached the
escrow agreement by improperly seeking the release
of escrow funds.7 The plaintiff further alleged that, as
a result, it sustained damages, including the costs to
complete the work that the defendant had failed to
perform.8 The matter was tried to the court on Septem-
ber 20 and 22, 2016.
At trial, the plaintiff appeared to abandon its claim
that the defendant improperly sought the release of the
escrow funds. The plaintiff, instead, proceeded under
a theory that the defendant breached the escrow
agreement by failing to install a second, final layer of
pavement over the common driveway.9 The principal
issue at trial was whether the defendant’s obligation
under the agreement to install a ‘‘final course of bitumi-
nous pavement’’ was intended to require the defendant
to apply two layers of pavement. On this issue the par-
ties presented contradictory evidence.
In its case-in-chief, the plaintiff presented parol evi-
dence that, according to the plaintiff, tended to show
that the parties had intended that the defendant be
required to install two layers of pavement. Specifically,
the plaintiff elicited the testimony of Watson, who testi-
fied that, prior to entering into the purchase agreement
for lot 1, he and Zak had discussed the issue of the
completion of the common driveway, and Zak had rep-
resented that there would be a ‘‘first paving and a sec-
ond paving.’’ Watson testified that he understood Zak’s
comments to mean that there would first be an ‘‘initial
layer’’ of pavement sufficient for use during the con-
struction of houses in the subdivision and that this
would eventually be followed by a ‘‘final layer’’ of pave-
ment. According to Watson, the escrow agreement was
meant to memorialize this understanding.
As additional support for its position, the plaintiff
elicited the testimony of Kevin Burton, the owner of
one of the other lots in the subdivision, as well as the
testimony of Roger Tabshey, the co-owner of the paving
company with which the plaintiff had contracted to
extend the common driveway. Burton testified that he
purchased lot 2 from the defendant in late 2007 or early
2008 and that he likewise spoke with Zak prior to the
purchase. According to Burton, Zak had represented
that the entire common driveway would be completed
as part of the development and that the ‘‘finish point’’
would be the second coat of the driveway. Tabshey
testified that, in building a common driveway within a
subdivision, it is common practice to install an initial
layer of asphalt and then, after most of the home con-
struction is complete, apply a second, final layer.
In its case-in-chief, the defendant adduced evidence
that, according to the defendant, tended to show that
the parties had intended for the defendant to install
only one layer of pavement. Specifically, the defendant
elicited testimony from Alter, who had represented the
defendant in connection with the sale of lot 1 and had
negotiated the terms of the escrow agreement with the
plaintiff’s attorney, Nicholas Paindiris. Alter testified
that he and Attorney Paindiris had arrived at the $51,000
figure, in part, from a written proposal from R & J
Paving to ‘‘extend [the] common driveway from [the]
existing pavement to [the] edge of [the driveway for]
[l]ot #4.’’ Alter further testified that he had faxed a copy
of this proposal to Attorney Paindiris before the escrow
agreement was executed. The defendant, therefore,
took the position in its posttrial brief that the parties
had anticipated only an extension of the common drive-
way and not a repaving of the entire driveway.
In addition to the contradictory evidence of the par-
ties’ intent concerning the completion of the common
driveway, the parties also presented contradictory evi-
dence as to which of the two versions of the escrow
agreement admitted at trial represented the complete
agreement. The two versions differ in several respects,
but the most important difference is that the defendant’s
version incorporates the R & J Paving proposal as an
attachment.10 Alter testified that the version of the
agreement submitted by the defendant represented the
full agreement. Watson, however, testified that the ver-
sion of the agreement submitted by the plaintiff, which
contains no such attachment, was the version that he
had executed and represented the complete agreement.
In its memorandum of decision issued on January
10, 2017, the court found that the amount of the escrow
fund had been agreed on by the parties’ attorneys and
had been determined, in part, by the R & J Paving
proposal. The court did not, however, make a determi-
nation as to whether this proposal had, in fact, been
incorporated into the parties’ escrow agreement.
Rather, the court found that ‘‘[u]nless the R & J Paving
proposal was part of the [e]scrow [a]greement as
claimed by the [d]efendant, the [version of the] [e]scrow
[a]greement [that] the [p]laintiff claims was executed
by the parties does not contain any specifications
regarding the thickness of the paving or the number of
layers of bituminous pavement to be applied to the
[c]ommon [d]riveway to satisfy the [d]efendant’s obliga-
tions. The description of the work to be done by the
[d]efendant . . . can only be found in [exhibit A to the
agreement] which refers unfortunately and ambigu-
ously to a ‘final course of bituminous pavement.’ ’’ Con-
sequently, the court determined that it could not ‘‘find
that there was a meeting of the minds as to the specifics
of the common driveway’’ and concluded that the plain-
tiff had failed to sustain its burden of proving its breach
of contract claim. The court, therefore, rendered judg-
ment in favor of the defendant on count two of the
plaintiff’s revised complaint.
On January 27, 2017, the plaintiff filed a motion to
reargue the court’s January 10, 2017 decision, con-
tending that the court had failed to consider certain
evidence. Specifically, the plaintiff pointed to Watson
and Burton’s testimony regarding their conversations
with Zak, which, according to the plaintiff, was uncon-
troverted and established that the defendant had been
required under the escrow agreement to install a second
layer of pavement. The plaintiff requested that the court,
therefore, render judgment in its favor on all issues.
Alternatively, the plaintiff requested that the court at
least find ‘‘that the [d]efendant owes the [p]laintiff for
the costs [it] incurred . . . in installing a first course
. . . on the common driveway, and for the costs
incurred in connection with the [easement] map, and
enter judgment in favor of the [p]laintiff . . . .’’ The
court granted the plaintiff’s motion and heard additional
argument on May 1, 2017, but it ultimately denied the
relief requested.
At the May 1, 2017 hearing, the court agreed with the
plaintiff that the defendant had been required under
the escrow agreement to complete the common drive-
way and pay for the easement map and that the defen-
dant had incurred costs with respect to these items.
Nevertheless, the court disagreed that the plaintiff was
entitled to recover these costs from the defendant as
part of its breach of contract claim, stating that the
plaintiff ‘‘was clearly entitled to that money on an extra
contractual basis, but I’m not allowed to award it when
it’s not [pleaded].’’ The court further noted, however,
that it had been ‘‘prepared to make a finding that there
was unjust enrichment to that extent.’’
Consequently, on that same date, the plaintiff filed a
request for leave to amend its revised complaint to add
a new count alleging unjust enrichment. The defendant
filed a written objection to this request the following
day, which the court sustained on May 15, 2017. This
appeal followed.
I
The plaintiff first claims that the court improperly
failed to find that there was a meeting of the minds
between the parties as to the number of layers of pave-
ment to be applied to the common driveway. The plain-
tiff argues that the court ‘‘should have drawn an adverse
inference against the [defendant] for its failure to rebut
[the plaintiff’s parol] evidence . . . and should have
therefore determined that the parties’ [e]scrow
[a]greement required the [d]efendant to install a second,
final course over the entire length of the common drive-
way . . . .’’11 Specifically, the plaintiff points to the tes-
timony of Watson and Burton regarding their
conversations with Zak and the testimony of Tabshey
regarding general practices in the paving industry. As
the plaintiff notes, none of this testimony was directly
controverted by the defendant at trial, despite Zak being
present throughout the trial. The plaintiff claims that
the court’s failure to draw an adverse inference in such
circumstances constituted an error of law. We disagree.
We begin by setting forth our standard of review.
Preliminarily, we note that the issue of whether the
parties’ minds had truly met, as required for the forma-
tion of an enforceable contract, is a question of fact
subject to the clearly erroneous standard of review. See
Murallo v. United Builders Supply Co., 182 Conn. App.
594, 600, 190 A.3d 969, cert. denied, 330 Conn. 913,
193 A.3d 49 (2018). In the present case, however, the
plaintiff does not argue that the underlying facts found
by the court fail to support its conclusion; nor does the
plaintiff assign as clear error any of the court’s factual
findings on this issue. Rather, the plaintiff limits its
claim on appeal to the narrow issue of whether the
court’s failure to draw an adverse inference was
improper as a matter of law. Consequently, our review
of this claim is plenary. See LM Ins. Corp. v. Connecti-
cut Dismanteling, LLC, 172 Conn. App. 622, 643, 161
A.3d 562 (2017) (claim that court’s use of adverse infer-
ence constituted error of law was subject to plenary
review).
For decades, Connecticut recognized the ‘‘Sec-
ondino’’12 or ‘‘missing witness’’ rule, which ‘‘sanctioned
a jury instruction that [t]he failure of a party to produce
as a witness one who [1] is available and [2] . . . natu-
rally would be produced permits the inference that such
witness, if called, would have exposed facts unfavorable
to the party’s cause.’’ (Internal quotation marks omit-
ted.) State v. Malave, 250 Conn. 722, 728–29, 737 A.2d
442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195,
145 L. Ed. 2d 1099 (2000). ‘‘That instruction . . . is
now, for various policy reasons, prohibited by statute in
civil cases; General Statutes § 52-216c; and by [Supreme
Court] precedent in criminal cases. . . . Despite the
statute and Malave, however, the substance of the ‘miss-
ing witness’ rule remains intact . . . . [A]lthough § 52-
216c and Malave restricted the means by which the
trier of fact is apprised of its ability to draw an adverse
inference, it is clear that it remains permitted to do so.’’
(Citation omitted; footnotes omitted.) In re Samantha
C., 268 Conn. 614, 637–38, 847 A.2d 883 (2004). This
inference, however, ‘‘is a permissive rather than a man-
datory one—that is, one which the [trier of fact] at all
times is free to accept or to reject . . . .’’ State v. Tay-
lor, 239 Conn. 481, 492, 687 A.2d 489 (1996), cert. denied,
521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).
In other words, even if the fact finder may properly
draw an adverse inference from a party’s failure to call
an available witness, it is certainly not required to do
so. Consequently, we cannot conclude that the trial
court’s failure to draw such inference in the present
case was improper as a matter of law.13 The plaintiff
does not otherwise challenge the court’s findings and
conclusions with respect to this issue.
II
The plaintiff next claims that the trial court improp-
erly failed to find that the defendant breached the
escrow agreement by not reimbursing the plaintiff for
the costs it had incurred. As the plaintiff correctly
asserts, there was undisputed evidence presented at
trial establishing that the plaintiff had incurred costs
to have the common driveway extended and to settle
the invoice for the easement map. The plaintiff appears
to argue that, because these tasks were the responsibil-
ity of the defendant under the agreement, the defendant
was, therefore, contractually required to reimburse the
plaintiff for the costs it incurred in performing these
tasks itself. Because this claim was not alleged in the
revised complaint nor asserted at trial, we decline to
review it.
‘‘[T]he principle that a plaintiff may rely only upon
what [it] has alleged is basic. . . . It is fundamental in
our law that the right of a plaintiff to recover is limited
to the allegations of [its] complaint. . . . What is in
issue is determined by the pleadings and these must be
in writing. . . . Once the pleadings have been filed, the
evidence proffered must be relevant to the issues raised
therein.’’ (Internal quotation marks omitted.) Foncello
v. Amorossi, 284 Conn. 225, 233, 931 A.2d 924 (2007).
In other words, ‘‘[a] plaintiff may not allege one cause of
action and recover upon another.’’ (Internal quotation
marks omitted.) Alaimo v. Alaimo, 179 Conn. App. 769,
771, 181 A.3d 149 (2018). Indeed, ‘‘[a] judgment upon
an issue not pleaded would not merely be erroneous,
but it would be void.’’ (Internal quotation marks omit-
ted.) Foncello v. Amorossi, supra, 233. Consequently,
our Supreme Court has stated that appellate courts
have ‘‘no authority to consider a claim on appeal that
was not alleged in the pleadings.’’ Id., 235; see also
Practice Book § 60-5 (‘‘[an appellate] court shall not be
bound to consider a claim unless it was distinctly raised
at the trial or arose subsequent to the trial’’); Saye v.
Howe, 92 Conn. App. 638, 642, 886 A.2d 1239 (2005)
(‘‘claims not presented to or addressed by the trial court
are not properly before us and, thus, not ordinarily
considered by this court’’).
In the revised complaint in the present case, the plain-
tiff alleged only that the defendant breached the escrow
agreement by improperly seeking the release of escrow
funds. See footnote 7 of this opinion. At trial, the plain-
tiff additionally claimed that the defendant breached
the agreement by failing to install a second, final layer
of pavement over the common driveway. Although this
additional claim was not pleaded in the complaint, it
was actually litigated at trial without objection from
the defendant and was, therefore, properly before the
court. See footnote 9 of this opinion. Conversely, at no
point during the trial did the plaintiff claim that the
defendant breached the escrow agreement by failing
to reimburse the plaintiff for the costs it incurred in
extending the common driveway and settling the
invoice for the easement map.14 Nor did the plaintiff
reference such a claim in its posttrial brief. In its post-
trial brief, the plaintiff contended only that it was enti-
tled to recover these sums as damages for the
defendant’s failure to install a second layer of pavement.
Because the trial court determined that the plaintiff had
failed to meet its burden of proving this claim, it did
not award the plaintiff any damages. The plaintiff can-
not now attempt to recover these sums on appeal by
refashioning its request for damages as an independent
breach of contract claim that was neither alleged in the
complaint nor actually litigated at trial. We, therefore,
decline to review this claim. See Foncello v. Amorossi,
supra, 284 Conn. 235 (declining to review plaintiff’s
claims alleging invasion of privacy for giving unreason-
able publicity to plaintiff’s private life where plaintiff
had failed to allege invasion of privacy on that ground
in his amended complaint).
III
Finally, the plaintiff claims that the trial court erred
in denying its request for leave to amend its revised
complaint to add a claim of unjust enrichment based
on the defendant’s failure to reimburse the plaintiff
for the costs of extending the common driveway and
settling the invoice for the easement map. The plaintiff
argues that it was an abuse of discretion for the court
to deny the plaintiff’s request where the court had pre-
viously recognized, at the hearing on the plaintiff’s
motion to reargue, that the plaintiff ‘‘was clearly entitled
to this money on an extra contractual basis.’’ We
disagree.
‘‘We review a trial court’s decision to deny a request to
amend a complaint for an abuse of discretion.’’ Motzer
v. Haberli, 300 Conn. 733, 747, 15 A.3d 1084 (2011).
‘‘The law is well-settled that belated amendments to
the pleadings rest in the sound discretion of the trial
court. . . . [Although] our courts have been liberal in
permitting amendments . . . this liberality has limita-
tions. Amendments should be made seasonably. Factors
to be considered in passing on a motion to amend are
the length of the delay, fairness to the opposing parties
and the negligence, if any, of the party offering the
amendment. . . . The motion to amend is addressed
to the trial court’s discretion which may be exercised
to restrain the amendment of pleadings so far as neces-
sary to prevent unreasonable delay of the trial. . . .
On rare occasions, this court has found an abuse of
discretion by the trial court in determining whether an
amendment should be permitted . . . but we have
never found an abuse of discretion in denying an
amendment on the eve of trial, long after the conclusion
of pretrial proceedings.’’ (Emphasis added; internal
quotation marks omitted.) Beckenstein Enterprises-
Prestige Park, LLC v. Keller, 115 Conn. App. 680, 691,
974 A.2d 764, cert. denied, 293 Conn. 916, 979 A.2d
488 (2009).
Turning to the present case, we first note that the
record does not reflect the court’s reasoning in denying
the plaintiff’s request for leave to amend its revised
complaint. See Bayview Loan Servicing, LLC v. Park
City Sports, LLC, 180 Conn. App. 765, 781, 184 A.3d
1277 (‘‘[i]t is well established that the appellant bears
the burden of providing an appellate court with an ade-
quate record for review’’ [internal quotation marks omit-
ted]), cert. denied, 330 Conn. 901, 192 A.3d 426 (2018).
Nevertheless, we have no difficulty in concluding that
the court acted within its discretion in denying the
plaintiff’s request, as the plaintiff did not seek to amend
the complaint until May 1, 2017—well after the trial
had ended and almost four months after the court had
rendered its judgment. See Motzer v. Haberli, supra,
300 Conn. 747 (‘‘[b]ecause the plaintiff made the request
[for leave to amend his complaint] after the start of the
trial, we conclude that the trial court acted well within
its discretion in denying the plaintiff’s request’’). We,
therefore, reject this claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Daniel Zak, Peter J. Alter, and Leonard Bourbeau were also named as
defendants in this action, but they are not participating in this appeal. We,
therefore, refer to Woodland Ridge, LLC, as the defendant.
2
The plaintiff had also appealed from the trial court’s rendition of summary
judgment in favor of Zak on all counts of the plaintiff’s operative, revised
complaint directed against him, but this court dismissed that portion of the
appeal as untimely.
3
The plaintiff also claims that the court improperly failed to find that the
defendant breached the escrow agreement by failing to complete the com-
mon driveway in accordance with the specifications called for in the
agreement. Because we conclude that the court did not err in failing to find
a meeting of the minds as to the specifics of the common driveway, we
necessarily reject this claim. See Tedesco v. Agolli, 182 Conn. App. 291, 307,
189 A.3d 672 (‘‘[i]n order for an enforceable contract to exist, the court
must find that the parties’ minds had truly met’’ [internal quotation marks
omitted]), cert. denied, 330 Conn. 905, 192 A.3d 427 (2018).
4
Watson testified at trial that the plaintiff was formed in order to purchase
the subject property, but there is nothing in the purchase agreement to
indicate that he was contracting in his capacity as a member of the plaintiff.
5
Megson & Heagle had originally invoiced Zak for $1752, but Watson
reached an agreement with Megson & Heagle, whereby he and Kevin Burton,
the owner of lot 2, would each pay one third of the billed amount, and
Megson & Heagle would write off the remaining third.
6
The plaintiff also brought a claim against the defendant for violation of
the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq. The trial court, Elgo, J., rendered summary judgment in favor
of the defendant on this claim. The plaintiff has not appealed from this
judgment.
7
More specifically, the plaintiff alleged that the defendant breached the
escrow agreement by ‘‘seeking to cause [Alter] to release the funds from
escrow while a dispute [was] pending, as set forth in [p]aragraph 12 [of
count 2 of the revised complaint], and regarding the [d]efendant’s failure
to complete the remaining construction and improvements, and before the
completion of the work . . . .’’ (Emphasis added.) When considered in
isolation, this allegation is arguably ambiguous as to whether the emphasized
language states a second specification of breach of contract. Indeed, in its
memorandum of decision, the trial court construed this claim as alleging
two breaches of the escrow agreement: (1) by improperly seeking the release
of the escrow funds; and (2) by failing to complete the common driveway
according to the parameters set forth in the agreement. A review of the
relevant procedural history, however, makes clear that the allegation, as
pleaded, contains only one specification of breach of contract.
Preliminarily, we note that ‘‘[t]he interpretation of pleadings presents a
question of law over which our review is plenary.’’ Landry v. Spitz, 102
Conn. App. 34, 41, 925 A.2d 334 (2007). In its original complaint, the plaintiff
alleged: ‘‘In seeking to cause [Alter] to release the funds from escrow while
a dispute is pending, and before the completion of the work [the defendant]
breached the escrow agreement.’’ It is clear from this language that the
plaintiff’s original claim asserted only one breach of the agreement. On May
28, 2013, the defendant requested that the plaintiff revise this allegation by
specifying ‘‘the particular dispute that was allegedly pending.’’ In response to
this request, the plaintiff added the phrase, ‘‘and regarding the [d]efendant’s
failure to complete the remaining construction and improvements.’’ It is,
therefore, clear that this additional language serves only to further qualify
the nature of the ‘‘dispute’’ referred to in the original complaint and was
not meant to add an additional specification of breach of contract.
8
The plaintiff also alleged in count two that the defendant breached the
purchase and sale agreement by failing to pave the common driveway in
accordance with the specifications called for in that agreement. The court
rendered judgment in the defendant’s favor on this claim, and the plaintiff
does not challenge it on appeal.
9
Although this claim was not pleaded in the revised complaint; see foot-
note 7 of this opinion; it was actually litigated at trial without objection
from the defendant. It was, therefore, proper for the court to adjudicate
this unpleaded claim. See Landry v. Spitz, supra, 102 Conn. App. 43–44 (‘‘in
the context of a postjudgment appeal, if a review of the record demonstrates
that an unpleaded cause of action actually was litigated at trial without
objection such that the opposing party cannot claim surprise or prejudice,
the judgment will not be disturbed on the basis of a pleading irregularity’’).
10
The two versions of the escrow agreement also differ in that the date of
execution on the first page of the plaintiff’s version is incomplete. Moreover,
whereas paragraph 11 of the plaintiff’s version identifies the buyer as ‘‘Wat-
son Real Estate, LLC,’’ the defendant’s version identifies the buyer as ‘‘Dr.
H. Kirk Watson, Watson Real Estate, LLC.’’
11
The plaintiff also argues, in a conclusory fashion, that the court improp-
erly failed to give any consideration to the plaintiff’s parol evidence. We
conclude that the plaintiff has not adequately briefed this argument. The
plaintiff has not cited any authority nor pointed to anything in the record
to support this contention but, rather, relies solely on the bare assertion in
its brief that the court ‘‘fail[ed] to consider parol evidence.’’ ‘‘It is well
established that [w]e are not obligated to consider issues that are not ade-
quately briefed. . . . Whe[n] an issue is merely mentioned, but not briefed
beyond a bare assertion of the claim, it is deemed to have been waived.
. . . In addition, mere conclusory assertions regarding a claim, with no
mention of relevant authority and minimal or no citations from the record,
will not suffice.’’ (Internal quotation marks omitted.) Pacific Ins. Co., Ltd.
v. Champion Steel, LLC, 323 Conn. 254, 272 n.8, 146 A.3d 975 (2016). Conse-
quently, we decline to address this argument.
It is difficult, in any event, for an appellant successfully to challenge a
fact finder’s consideration and weighing of evidence. ‘‘[T]he trier [of fact]
is bound to consider all the evidence which has been admitted, as far as
admissible, for all the purposes for which it was offered and claimed. . . .
[W]e are not justified in finding error upon pure assumptions as to what
the court may have done. . . . We cannot assume that the court’s conclu-
sions were reached without due weight having been given to the evidence
presented and the facts found. . . . Unless the contrary appears, this court
will assume that the court acted properly. . . . [Thus, if] . . . [a] statement
[by the court may] suggest that the court did not consider [certain] testimony,
we . . . are entitled to presume that the trial court acted properly and
considered all the evidence.’’ (Citations omitted; internal quotation marks
omitted.) Moye v. Commissioner of Correction, 168 Conn. App. 207, 229–30,
145 A.3d 362 (2016), cert. denied, 324 Conn. 905, 153 A.3d 653 (2017).
12
See Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598
(1960), overruled in part by State v. Malave, 250 Conn. 722, 737 A.2d 442
(1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000).
13
Moreover, under the particular circumstances in the present case, it
would not have been reasonable for the court to draw an adverse inference
from the defendant’s failure to offer Zak as a witness because Zak was
equally available to both parties. Our Supreme Court has held on multiple
occasions that ‘‘[w]hen a witness is equally available to both parties no
inference unfavorable to either may be drawn.’’ (Internal quotation marks
omitted.) State v. Kish, 186 Conn. 757, 771, 443 A.2d 1274 (1982) (trial court
properly refused to instruct jury that it might draw adverse inference from
state’s failure to call victim’s husband as witness where victim’s husband
was equally available to both parties and was, in fact, in courtroom); State
v. Rosa, 170 Conn. 417, 431, 365 A.2d 1135 (same), cert. denied, 429 U.S.
845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976). Although the Supreme Court
subsequently stated, in dictum, that ‘‘as long as the Secondino adverse
inference instruction remains viable in Connecticut . . . the mere fact that
a witness is equally available to both parties does not preclude a trial court
from delivering a Secondino charge’’; (citations omitted) Hines v. Saint
Vincent’s Medical Center, 232 Conn. 632, 637 n.8, 657 A.2d 578 (1995); this
dictum is no longer persuasive in light of the court’s subsequent abandon-
ment of the Secondino rule in State v. Malave, supra, 250 Conn. 728. Addition-
ally, Justice Berdon, the author of the majority opinion in Hines, explicitly
disavowed this dictum the following year in his dissent in State v. Taylor,
239 Conn. 481, 509 n.4, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117
S. Ct. 2515, 138 L. Ed. 2d 1017 (1997) (Berdon, J., dissenting), wherein he
opined that, ‘‘[i]n cases in which a witness is equally available to both parties,
there is no logical basis for allowing an inference to be drawn from one
party’s failure to call that witness when the other party could have just as
easily called that same witness. This is especially so because we have
abandoned the voucher rule—that is, the common law rule that one could
not impeach the credibility of his own witness.’’ See also State v. Malave,
supra, 733 (‘‘In view of [the abandonment of the voucher rule] . . . [i]f a
witness is available, he is equally available to both sides. If a witness has
information favorable to one side, why shouldn’t that side call that witness
and bring out that information instead of relying on a negative inference
based on ignorance that such a witness might have some unspecified infor-
mation that might be unfavorable to the other party?’’ [Citations omitted;
footnote omitted; internal quotation marks omitted.]).
In the present case, Zak was not only available for both parties to call
as a witness, but he was in fact called as a witness and examined by the
plaintiff. The plaintiff, however, did not seek to elicit any testimony from
Zak regarding his conversations with Watson and Burton. In such circum-
stances, it would have been unreasonable for the court to draw an adverse
inference against the defendant for failing to call Zak as a witness.
14
Indeed, as the plaintiff declares in its reply brief on appeal, ‘‘the entire
theory of the case . . . was that [the defendant] failed to apply a second
coat of pavement over the entire length of the common driveway.’’