Tyler v. Tyler ( 2016 )

******************************************************
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.
******************************************************
JAY M. TYLER v. THOMAS J. TYLER ET AL.
(AC 37297)
Beach, Sheldon and Harper, Js.
Argued October 21, 2015—officially released March 8, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Radcliffe, J. [order after remand].)
Jay M. Tyler, self-represented, the appellant
(plaintiff).
Bruce D. Tyler, self-represented, the appellant
(defendant and cross complaint plaintiff).
Kathleen Eldergill, for the appellee (defendant Rich-
ard Tatoian).
Opinion
SHELDON, J. This case arises out of a dispute
between two brothers, plaintiffs Jay Tyler and Bruce
Tyler,1 and the attorney who served as trustee of their
deceased mother’s trust, defendant Richard Tatoian,2
concerning Tatoian’s alleged mismanagement of the
trust and breaches of duties he allegedly owed, as
trustee, to the plaintiffs, as trust beneficiaries. The case
is back before us following our dismissal, for lack of
a final judgment, of the plaintiffs’ initial appeal from
the trial court’s rendering of partial summary judgment
in favor of Tatoian on some but not all of the plaintiffs’
claims against him. See Tyler v. Tyler, 151 Conn. App.
98, 93 A.3d 1179 (2014). After the plaintiffs filed their
initial appeal, but before we dismissed that appeal, a
jury trial was held in the Bridgeport Superior Court on
the plaintiffs’ claims against Tatoian on which summary
judgment had not been rendered. The result of that trial
was a general verdict in favor of Tatoian, which was
returned by the jury on October 24, 2013. No appeal or
amended appeal was ever taken from the judgment
rendered in favor of Tatoian upon the jury’s verdict.
After the dismissal of the plaintiffs’ initial appeal,
when this case was remanded to the trial court for
further proceedings on Jay Tyler’s reinstated claims
against other defendants, the plaintiffs argued that a
trial was also necessary on certain other claims against
Tatoian that had not been resolved, either by summary
judgment or by the jury’s general verdict. Such unre-
solved claims, the plaintiffs argued, were: (1) Jay Tyler’s
claim that Tatoian had negligently failed to provide him
with accountings of his mother’s trust while his mother
was still alive; and (2) both plaintiffs’ related claims that
Tatoian’s failure to furnish them with trust accountings
during their mother’s lifetime had prevented them from
exercising their right to seek an order from the Probate
Court under General Statutes § 45a-204 compelling
Tatoian, as trustee, not to keep the trust’s assets
invested in the same securities received by him.
Tatoian disagreed that any of the plaintiffs’ claims
against him were still pending in the trial court after
their initial appeal was dismissed. He argued, to the
contrary, that all such claims had either been tried to
verdict before the jury or abandoned by the plaintiffs,
either by not raising and requesting instructions on
them in the trial court or by not appealing from the
judgment rendered upon the jury’s verdict on a claim
of error arising from the trial court’s failure or refusal
to give such instructions as requested. The trial court,
Radcliffe, J., agreed with Tatoian that none of the plain-
tiffs’ claims against him were still pending in the trial
court after the dismissal of their initial appeal. It ruled,
more specifically, that ‘‘all claims as to Richard Tatoian
have been resolved based on the jury verdict rendered
[October 24, 2013] and the granting of partial sum-
mary judgment.’’
In this appeal, the plaintiffs claim error in the trial
court’s determination that none of their claims against
Tatoian were still pending in the trial court after our
dismissal of their initial appeal. Here, as before the trial
court, Tatoian disputes the plaintiffs’ claim.3 We agree
with Tatoian, and thus affirm the judgment of the
trial court.
We set forth the following relevant facts in our deci-
sion dismissing the plaintiffs’ initial appeal with respect
to Tatoian. ‘‘Ruth Tyler [executed an irrevocable trust]
on October 8, 2004, for the benefit of her sons, John
Tyler, Bruce Tyler, Thomas Tyler, Russell Tyler and Jay
Tyler. The trust named Tatoian as trustee and provided
for the termination of the trust upon Ruth Tyler’s death,
with the assets of the trust remaining after payment of
various expenses to be distributed to her five sons in
substantially equal shares. The trust specified, by refer-
ence to Ruth Tyler’s will, that the shares allotted to the
plaintiffs be reduced in accordance with the debt owed
by each to Ruth Tyler. On April 1, 2010, Ruth Tyler died.
Due to the value of the trust’s assets and the amount
of debt owed, Jay Tyler was not entitled to receive any
money from the trust.’’4 Tyler v. Tyler, supra, 151 Conn.
App. 100–101.
Litigation over Ruth Tyler’s estate began when Jay
Tyler filed a complaint on January 28, 2011, in which
he made several claims against all of his brothers and
Tatoian. After several rounds of pleading, the operative
pleadings in the case were Jay Tyler’s third amended
complaint dated June 20, 2012 (complaint), and Bruce
Tyler’s fourth amended cross complaint against Tatoian
dated April 4, 2012 (cross complaint). The following
claims were set forth in those pleadings. In the first
count of the complaint, Jay Tyler sought to modify the
trust, claiming that Thomas Tyler had exerted undue
influence upon Ruth Tyler in relation to the trust and
had conspired together with John Tyler, Russell Tyler
and Tatoian to keep Ruth Tyler’s trust and will a secret
from him. In the second count of the complaint, Jay
Tyler also sought to modify the trust based upon allega-
tions that the defendants’ actions against him had
wrongfully deprived him of his share of the trust estate.
In the third count of the complaint, Jay Tyler alleged
negligence against Tatoian for failing to furnish him
with accountings of the trust while his mother was still
alive, and thereby preventing him from discovering the
undue influence that had been exerted upon his mother
in relation to the trust. In the fourth count of the com-
plaint and the first count of the cross complaint, both
plaintiffs alleged that Tatoian had failed to act as a
prudent investor of the trust’s assets, in violation of
General Statutes § 45a-541b.5 In the fifth count of the
complaint and second count of the cross complaint,
both plaintiffs alleged that Tatoian had failed to diver-
sify the trust’s assets, in violation of General Statutes
§ 45a-541c.6 In the sixth count of the complaint and
the third count of the cross complaint, both plaintiffs
alleged that Tatoian’s failure to furnish them with trust
accountings during their mother’s lifetime had pre-
vented them from exercising their right to seek an order
from the Probate Court under § 45a-2047 compelling
Tatoian, as trustee, not to keep the trust’s assets
invested in the same securities received by him. Finally,
in the seventh count of the complaint and the fourth
count of the cross complaint, both plaintiffs alleged
that Tatoian had breached his duty to the trust, and
to them as trust beneficiaries, by failing to hold the
investment advisor liable for losses allegedly resulting
from the advisor’s advice not to diversify the trust’s
assets.
On April 15, 2013, the defendants filed a joint motion
for summary judgment as to all counts of the complaint
and the cross complaint. In a memorandum of decision
dated August 22, 2013, the court, Sommer, J., initially
granted summary judgment in favor of the defendants
on all counts except for count seven of the complaint
and count four of the cross complaint, in which the
plaintiffs sought damages from Tatoian for failing to
hold the investment advisor liable for losses allegedly
resulting from the advisor’s advice not to diversify the
trust’s assets.
After the trial court issued its summary judgment
decision on August 22, 2013, both plaintiffs and Tatoian
filed separate motions to reargue. In a memorandum
of decision issued on September 19, 2013, the court
denied all three motions to reargue in all respects but
one, reversing its decision only as to its prior determina-
tion that Tatoian, as trustee, owed no duty to the plain-
tiffs, as remainder beneficiaries of their mother’s trust,
to provide them with accountings of the trust before
their mother’s death. Although that determination had
been the basis upon which the court initially granted
summary judgment in favor of Tatoian on counts three
and six of the complaint and count three of the cross
complaint (accounting claims),8 the court reversed its
decision only on the ‘‘issue’’ of Tatoian’s alleged duty
to provide trust accountings to the plaintiffs, without
expressly referencing or reversing its summary judg-
ment rulings on those counts. The court explained its
reargument ruling as follows: ‘‘The court concludes that
based on the evidence presented, (1) the subject trust
provision is unclear,9 (2) there is no statement in the
law that remainder beneficiaries do not have a right to
annual accountings from the trustee, and (3) remainder
beneficiaries do have a right to petition the Probate
Court for accountings. These findings raise issues of
fact which require further evidence and are therefore
appropriate for submission to the trier of fact.
‘‘Based on the above analysis, the court therefore
vacates its order granting summary judgment as to the
sole issue of the trustee’s obligation to provide trust
accounting to the remainder beneficiaries. Although the
court is aware of the rule that a motion to reargue
may not be used as a second bite of the apple, the
circumstances of this case merit the court’s consider-
ation. . . .
‘‘For the reasons stated above, the court denies the
motions to reargue, except as to the sole issue of
whether the trustee was obliged under § 8 (h) of the
trust to provide annual accounting to the remainderman
beneficiaries of the trust. Having considered the written
arguments of the parties and determining that there is
nothing further which requires submission to the court,
the court reverses its prior decision granting summary
judgment on this sole issue.’’ (Footnote added.) None
of the parties moved for clarification or articulation by
the trial court with respect to the court’s decision on
the motions to reargue.
On October 3, 2013, the plaintiffs timely appealed to
this court, within twenty days of the trial court’s deci-
sion on the motions to reargue, from its previous deci-
sion on the defendants’ motion for summary judgment.
Since the plaintiffs initially claimed no error as to the
court’s decision on their motion to reargue, the only
issues listed in their preliminary statement of issues
concerned the court’s initial summary judgment
decision.10
Before the plaintiffs filed their opening brief in the
initial appeal, their remaining claims against Tatoian
on which summary judgment had not been rendered
were brought to trial. On October 8, 2013, before the
start of trial, Tatoian filed a pretrial memorandum in
which he asserted that the only claims then pending
against him in the trial court were those in which the
plaintiffs were seeking damages for his failure to hold
the investment advisor liable for losses allegedly
resulting from following the advisor’s advice not to
diversify the trust’s assets, as pleaded in the seventh
count of the complaint and the fourth count of the
cross complaint. Although the record before us does not
reveal if the plaintiffs ever responded to the defendant’s
assertion by claiming that they had other claims pending
against Tatoian in other counts of their complaint and/
or cross complaint, it does reveal that on the day after
Tatoian filed his pretrial memorandum, the plaintiffs
filed a preliminary request to charge in which they asked
that the jury be instructed to make a finding on the one
issue as to which the court had reversed its decision on
reargument with respect to its initial summary judgment
decision, to wit: whether the defendant was required
to give them accountings of their mother’s trust prior
to her death. Because the plaintiffs have not provided
us with a transcript of the jury trial, we cannot deter-
mine, on this record, whether or for what stated pur-
pose, if any, the requested instruction or any other
instruction on that issue was ever given. On October
24, 2013, the jury ultimately returned a general verdict
in favor of Tatoian,11 after which no new appeal was
ever taken and no amended appeal under Practice Book
§ 61-912 was ever filed.
On November 18, 2013, several weeks after the jury
returned its general verdict in favor of Tatoian, the
plaintiffs filed the opening brief in their initial appeal.
In that brief, the plaintiffs argued for the first time,
without previously amending their appeal form or their
preliminary statement of issues,13 that the trial court
erred in deciding their motions to reargue. They
claimed, in particular, that ‘‘the trial court’s reversal of
its decision with regard to the rights of trust beneficiar-
ies to receive accountings from the trustee require[d]
a reversal of its decision with regard to the plaintiff
Jay M. Tyler’s sixth count and cross plaintiff Bruce D.
Tyler’s third count based on their rights to accountings
from the trustee . . . .’’ The plaintiffs thereby argued
that the trial court erred by not expressly ruling, in its
decision on their motions to reargue, that they were
entitled not only to a jury determination on the issue
of whether Tatoian had a duty to provide them with
trust accountings before their mother died, but to a full
trial on all claims presented in the complaint and the
cross complaint that were based materially upon Tatoi-
an’s alleged breach of that duty to provide trust
accountings.
In his answering brief, Tatoian did not respond
directly to the plaintiffs’ argument that the trial court’s
reversal of its initial summary judgment ruling on the
issue of his alleged duty to provide them with trust
accountings during their mother’s lifetime entitled them
to a full trial on all claims that were based materially
upon his alleged breach of that duty. Instead, addressing
only the merits of those related claims for damages, he
argued that ‘‘the trial court’s ruling that the beneficiaries
had a right to receive accountings during the settlor’s
lifetime does not affect its ruling on the plaintiffs’ claims
regarding the right to seek a court order.’’14
Oral argument on the plaintiffs’ initial appeal was
held on March 5, 2014. During argument, we raised sua
sponte the issue of whether there was a final judgment
as to Tatoian. The following day, we invited the parties
to submit supplemental briefs on that issue, which we
described as ‘‘whether the ruling from which the plain-
tiffs appeal constitutes a final judgment for the purposes
of determining the subject matter jurisdiction of this
court.’’15 Tyler v. Tyler, supra, 151 Conn. App. 102, 103
n.6. On June 17, 2014, after the plaintiffs had filed their
supplemental brief,16 we issued our final decision on
the plaintiffs’ initial appeal.
In that decision, we first dismissed the appeal as to
Tatoian for lack of subject matter jurisdiction because
the challenged summary judgment ruling in his favor
did not finally dispose of all of the plaintiffs’ claims
against him, and thus was not a final judgment. Id.,
103–104. In that same decision, we also found error in
the trial court’s rendering of summary judgment in favor
of the defendants on Jay Tyler’s claim seeking to modify
the trust on the ground of undue influence, concluding
that there was a genuine issue of material fact as to
whether Thomas Tyler had exerted undue influence
upon his mother in relation to the trust. Id., 108. Accord-
ingly, we set aside the summary judgment rendered in
favor of the defendants on that claim and remanded
this case to the trial court ‘‘for further proceedings
consistent with this opinion.’’17 Id., 109.
After we issued our decision in Tyler, the parties
returned to the trial court for a status conference on
October 1, 2014. At that conference, in a lengthy collo-
quy with the trial court, Radcliffe, J., the plaintiffs
argued that further proceedings were necessary both
on Jay Tyler’s remanded claim to modify the trust on
the ground of undue influence and on both plaintiffs’
claims for damages against Tatoian on the basis of his
failure to provide them with trust accountings during
their mother’s lifetime. The latter claims, they con-
tended, had not been tried when their other claims as
to which summary judgment had not been rendered
were brought to trial. Such claims, they argued, could
not have been tried at that time because their initial
appeal from the trial court’s summary judgment ruling
on those claims, as revised by its later ruling on their
motion to reargue, was still pending before this court.
The plaintiffs finally argued that the continuing pen-
dency in the trial court of at least some of their claims
against Tatoian had been confirmed by this court’s dis-
missal of their initial appeal for lack of a final judgment,
which assertedly was based upon our conclusion that
one or more unresolved claims were still pending in
the trial court at the time of dismissal, long after the
conclusion of the intervening jury trial.
Tatoian did not disagree with the plaintiffs that their
claims for damages that were based upon his failure
to provide them with trust accountings during their
mother’s lifetime had not been tried to verdict in the
October, 2013 jury trial. He argued, however, that the
plaintiffs bore full responsibility for that result because
they had abandoned those claims. Tatoian claimed,
more particularly, that the trial court’s decision on the
motion to reargue had left open a single factual issue—
whether, as trustee of the plaintiffs’ mother’s trust, he
owed a duty to the plaintiffs, as remainder beneficiaries
of the trust, to provide them with trust accountings
while their mother was still alive. That issue, he noted,
was pleaded not only in the plaintiffs’ accounting
claims, upon which the jury was not instructed, but in
their investment advisor claims, upon which it undeni-
ably was instructed. If, then, he argued, the plaintiffs
believed at the time of trial, as they now contend, that
the trial court’s reargument ruling should have resulted
in the vacation of its initial decision granting summary
judgment to Tatoian on all counts of their complaint
and cross complaint that were based upon his alleged
breach of that duty, it was incumbent upon them to
ask that the jury be instructed on those claims at trial
and, if dissatisfied with the court’s instructions as given,
to claim error in those instructions in a subsequent
appeal to this court. If the plaintiffs failed to follow up
on their preliminary request to charge, either by not
insisting that the jury be instructed in accordance with
it or by failing to appeal from the trial court’s failure or
refusal to so instruct as requested therein, the plaintiffs
must be found to have abandoned those claims at or
shortly after trial. Here, then, he concluded, since the
plaintiffs did not appeal from the judgment rendered
upon the jury’s verdict against them, they must be found
to have abandoned their accountings claims. Therefore,
he concluded, no such claims were still pending against
him in the trial court following our dismissal of the
plaintiffs’ initial appeal.
The trial court agreed with Tatoian that none of the
plaintiffs’ claims against him were still pending in the
trial court when this case was remanded for further
proceedings after our dismissal of the initial appeal. In
reaching that conclusion, the court reasoned as follows.
First, because the trial court never ordered bifurcation
of the trial, all of the plaintiffs’ pending claims against
Tatoian18 were presumptively contested in that trial.
Second, because the jury returned a general verdict for
Tatoian, all such pending claims were presumptively
decided in his favor at trial. Since the plaintiffs provided
no transcript of the jury trial to the trial court to support
their contention that the accountings claims had not in
fact been tried to verdict before the jury, the trial court
concluded that they had failed to overcome the pre-
sumption arising from the general verdict that all of
the plaintiffs’ remaining claims had been resolved in
Tatoian’s favor by that verdict. The court therefore con-
cluded that the plaintiffs had no claims pending against
Tatoian in the trial court after our dismissal of their
initial appeal.
Finally, addressing the plaintiffs’ claim that this
court’s dismissal of their initial appeal was based upon
our determination that the plaintiffs still had claims
pending against Tatoian in the trial court at the time
of dismissal, the court rejected that claim summarily.
Under our law, the court concluded, the time for
determining if a judgment is a final judgment for pur-
poses of appeal is when the appeal is filed, not the later
time when it is finally dismissed. The trial court issued
an order declaring that ‘‘all claims as to Richard Tatoian
have been resolved based on the jury verdict rendered
[October 24, 2013] and the granting of partial summary
judgment.’’19 The plaintiffs now appeal from that order.
In challenging the trial court’s determination that all
of their claims against Tatoian were finally resolved by
summary judgment or by the jury’s verdict at trial, the
plaintiffs insist, as they did before the trial court: (1)
that their claims for damages that were based upon
Tatoian’s failure to provide them with trust accountings
during their mother’s lifetime were not tried to verdict
before the jury,20 and thus were still pending in the trial
court, unresolved and awaiting trial, when their initial
appeal was dismissed; and (2) that we confirmed this
conclusion by dismissing their initial appeal for lack of
a final judgment because the basis for our dismissal
was the continuing pendency in the trial court, long
after the end of trial, of at least one of their claims
against Tatoian. Tatoian rejects both of the plaintiffs’
arguments, contending here, as he did before the trial
court, that on this record, all of the plaintiffs’ claims
against him upon which summary judgment was not
previously rendered were either tried to verdict before
the jury or abandoned by the plaintiffs, and thus finally
resolved, by the time the initial appeal against him was
dismissed. We agree with Tatoian, and thus affirm the
determination of the trial court that no such claims
were still pending against him in the trial court following
the dismissal when the case was remanded for further
proceedings on other claims.
I
Whether the trial court correctly determined that
none of the plaintiffs’ claims against Tatoian were still
pending in the trial court after our dismissal of their
initial appeal is a mixed question of law and fact. ‘‘Ques-
tions of law and mixed questions of law and fact receive
plenary review.’’ (Internal quotation marks omitted.)
Correia v. Rowland, 263 Conn. 453, 462, 820 A.2d 1009
(2003); see also Solek v. Commissioner of Correction,
107 Conn. App. 473, 479, 946 A.2d 239, cert. denied, 289
Conn. 902, 957 A.2d 873 (2008). We conclude that all of
the plaintiffs’ claims against Tatoian on which summary
judgment was not rendered before trial were finally
resolved by the end of trial, although not necessarily,
as the trial court ruled, by the jury’s general verdict in
his favor.
As the trial court observed, no order was ever issued
that the trial be bifurcated. Therefore, the court was
correct in concluding that the jury’s general verdict for
Tatoian presumptively resolved all of plaintiffs’ pending
claims against him in his favor, if and to the extent that
the jury was instructed on those claims. Curry v. Burns,
225 Conn. 782, 786, 626 A.2d 719 (1993) (‘‘[t]he 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 jury found every issue in favor of the prevailing
party’’ [internal quotation marks omitted]). Among the
claims then pending before the trial court were the
plaintiffs’ claims that Tatoian breached his duty to pro-
vide them with accountings of their mother’s trust
before she died, and their related claims for damages
based upon Tatoian’s alleged breach of that duty. All
of these claims were still pending in the trial court at
the time of the jury trial because, when the court
reversed its prior decision that Tatoian owed the plain-
tiffs no such duty, finding instead that there was a
genuine issue of material fact as to the existence of such
a duty on which a factual determination was required, it
restored that issue to the list of claims and issues that
remained to be tried in this case. Logically, if the exis-
tence of such a duty remained an open issue to be tried
for any purpose, it remained an open issue to be tried
for all purposes for which it was pleaded, including the
merits of every claim against Tatoian that was based
materially upon his breach of that alleged duty.
If, then, the plaintiffs sought to prosecute any such
claim to verdict at trial, and the trial court instructed
the jury on it, the jury’s general verdict for Tatoian
would presumptively have resolved that claim in Tatoi-
an’s favor. If, by contrast, the jury was not instructed
on any such pending claim at trial, either because the
plaintiffs did not request that the jury be so instructed
or because the trial court failed or refused to give such
instructions despite the plaintiffs’ request that it do so,
then that claim would not have been resolved by the
jury’s general verdict. Because, in the absence of a trial
transcript, we cannot determine whether or not such
jury instructions were actually given in this case, we
cannot agree with the trial court’s presumptive finding
that all of the plaintiffs’ pending claims against Tatoian
on which summary judgment was not previously ren-
dered were finally resolved in his favor by the jury’s
general verdict at trial.
Notwithstanding our disagreement with the trial
court as to its interpretation of the jury’s general verdict
for Tatoian, we agree with the court’s ultimate determi-
nation that none of the plaintiffs’ claims against Tatoian
were still pending in the trial court when the case was
remanded for further proceedings after we dismissed
their initial appeal. In reaching this conclusion, we agree
with Tatoian’s argument that, even in the absence of a
trial transcript, we can clearly tell from the plaintiffs’
failure to appeal from the judgment rendered upon the
jury’s general verdict that none of their claims against
him were still pending after the initial appeal was dis-
missed. Our reasons for this conclusion are as follows.
First, if and to the extent that the jury was actually
instructed on the plaintiffs’ pending claims, then such
claims were no longer pending in the trial court after
trial because they all had been resolved in Tatoian’s
favor by the jury’s general verdict. By not appealing
from that judgment, the plaintiffs would have accepted
the finality of the jury’s determinations with respect to
all such instructed-upon claims.
Second, if any pending claims were not prosecuted
to verdict at trial because the plaintiffs did not seek to
prove them or to have the jury instructed upon them
at trial, then by so failing to prosecute them, they must
be deemed to have abandoned such claims, and thus
to have forfeited their right to prosecute them further.
See Connecticut Light & Power Co. v. Dept. of Public
Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003)
(‘‘We repeatedly have stated that [w]e are not required
to review issues that have been improperly presented
to this court through an inadequate brief. . . . Analy-
sis, rather than mere abstract assertion, is required in
order to avoid abandoning an issue by failure to brief
the issue properly. . . . Where a claim is asserted in
the statement of issues but thereafter receives only
cursory attention in the brief without substantive dis-
cussion or citation of authorities, it is deemed to be
abandoned. . . . These same principles apply to
claims raised in the trial court.’’ [Citation omitted;
emphasis added; internal quotation marks omitted.]).
Once a claim is abandoned, it is no longer pending
before the court. We also note that the plaintiffs cannot
claim that they were obstructed in any way from raising
and prosecuting their accounting claims at trial because
of the pendency of their initial appeal. The initial appeal,
as framed by the plaintiffs throughout the trial, had no
bearing on the accounting claims because the plaintiffs’
initial appeal was limited in scope to other claims, as
disclosed by their appeal form and their preliminary
statement of issues. It was not until after the trial was
completed, when they filed their opening brief with this
court, that the plaintiffs first raised any claim of error
as to any of their accounting claims against Tatoian.
Until that time, they gave no notice that the appeal
would raise any such claim, for the claim was based
upon the trial court’s ruling on their motions to reargue,
which had not been mentioned in their appeal form or
their preliminary statement of issues.
Third and finally, if the plaintiffs requested that the
jury be instructed on certain pending claims but the
trial court failed or refused to give such instructions,
then Tatoian is correct in arguing that they could and
should have appealed from the judgment rendered
against them upon the jury’s general verdict, claiming
error in the court’s failure or refusal to instruct the jury
as requested. The plaintiffs’ failure to appeal from the
judgment on the basis of such instructional error consti-
tuted an abandonment of all claims as to which the
court refused to instruct the jury as requested just as
surely as if the plaintiffs had not sought instruction on
them at all. Abandoned claims, to reiterate, are no
longer pending and cannot be further prosecuted once
they have been abandoned.
In this case, the plaintiffs failed to appeal on any
basis from the judgment rendered against them in the
trial court upon the jury’s general verdict. The plaintiffs’
failure to appeal gives clear evidence that all of their
claims against Tatoian were either raised, instructed
upon and tried to verdict before the jury or abandoned,
either by failing to raise and request instructions on
them at trial or by not appealing from the trial court’s
failure or refusal to instruct on them despite their
request. In each such scenario, the plaintiffs’ failure
to appeal from the judgment rendered upon the jury’s
verdict established that all of their claims on which
summary judgment was not rendered were finally
resolved at or shortly after trial, either by the jury’s
general verdict or by the plaintiffs’ abandonment of
them. Accordingly, we agree with the trial court that
no such claims were still pending against Tatoian in
the trial court when the case was remanded for further
proceedings on other claims after our dismissal of the
plaintiffs’ initial appeal.
II
Having concluded that no claims against Tatoian
were pending by the end of the appeal period following
trial, we next address the plaintiffs’ argument that our
decision in Tyler necessarily requires the opposite con-
clusion. The plaintiffs argue that we decided in Tyler
that one or more counts against Tatoian were still pend-
ing in the trial court after that court partially reversed
its summary judgment decision as to the accounting
issue and the jury returned its verdict. In particular,
the plaintiffs direct our attention to the following two
statements in Tyler: ‘‘[T]he court’s [August 22, 2013
summary judgment] ruling disposed of only a portion
of the plaintiffs’ counts asserted against Tatoian’’; Tyler
v. Tyler, supra, 151 Conn. App. 104; and ‘‘[c]ertain
counts against Tatoian have since been resolved at
trial.’’ Id., 104 n.7. The plaintiffs interpret these state-
ments to mean that this court concluded that certain
counts remained pending against Tatoian at the time
we dismissed the appeal, which occurred after the
trial concluded.
The plaintiffs’ claim is based on a fundamental misun-
derstanding of our basic procedure. ‘‘It is axiomatic
that the jurisdiction of this court is restricted to appeals
from judgments that are final. General Statutes §§ 51-
197a and 52-263; Practice Book § 61-1 . . . .’’ (Citation
omitted.) Parrotta v. Parrotta, 119 Conn. App. 472, 475,
988 A.2d 383 (2010). The plaintiffs misunderstand the
correct measuring point for determining if the judgment
appealed from is final. In Tyler, we concluded that the
August 22, 2013 summary judgment ruling, from which
the plaintiffs appealed, was not a final judgment as
to Tatoian at the time the appeal therefrom was filed
because it did not dispose of all of the counts then
pending against him. We did not conclude that there
was no final judgment as to Tatoian at the later time
when we finally dismissed the appeal, because the mea-
suring point for determining if an appeal is from a final
judgment is when the appeal is filed. See McKeon v.
Lennon, 131 Conn. App. 585, 611, 27 A.3d 436 (dismiss-
ing appeal of order for attorney’s fees for lack of final
judgment because amount of attorney’s fees had not
been conclusively determined at time appeal filed), cert.
denied, 303 Conn. 901, 31 A.3d 1178 (2011).
Final judgment as to Tatoian did not enter until after
the jury returned its verdict; however, the plaintiffs
never amended their initial appeal to challenge that
verdict pursuant to Practice Book § 61-9. The plaintiffs
might have been confused because this verdict was
returned before we heard oral arguments and issued
our decision in the initial appeal. However, there was
no final judgment as to Tatoian at the relevant time,
when the plaintiffs filed that appeal. Accordingly, Judge
Radcliffe correctly interpreted our decision in Tyler,
which was not based upon, and signified nothing as to,
the continuing pendency of claims against Tatoian at
the time of its issuance.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Bruce Tyler was named as a defendant in the complaint; however, he
also filed a cross complaint, initially against his brothers, John Tyler, Thomas
Tyler, and Russell Tyler, but which was later amended to include claims
against only Richard Tatoian. For clarity, we will refer to Bruce Tyler and
Jay Tyler collectively as the plaintiffs and by name when referencing
them individually.
2
Tatoian is the only defendant as to whom the plaintiffs appeal. Jay Tyler
had also asserted claims against his brothers, John Tyler, Thomas Tyler,
Bruce Tyler, and Russell Tyler, but withdrew his claims against them on
January 21, 2015. In addition, Bruce Tyler had cited as parties Richard
Mapplethorpe and Citigroup Global Markets, Inc., the financial advisors for
the trust; however, the court dismissed the claims against them for lack of
standing. For clarity, we will refer to Tatoian individually by name. Any
references to the defendants in the underlying case include John Tyler,
Thomas Tyler, Russell Tyler and Tatoian, but not Bruce Tyler. See footnote
1 of this opinion.
3
Tatoian makes a claim in his brief that the plaintiffs’ appeal is frivolous
and requests attorney’s fees under Practice Book § 85-2. We decline to decide
this issue because Tatoian failed to make his request in a separate motion.
See Practice Book § 85-3; Hernandez v. Dawson, 109 Conn. App. 639, 643–44,
953 A.2d 664 (2008).
4
‘‘Under Ruth Tyler’s previous will, each brother’s share was to be calcu-
lated on the basis of his net worth, where the brother with the lowest net
worth would receive payment until his net worth was equal to the net worth
of the brother with the next lowest net worth, and so on. If this distribution
scheme had been in effect at the time of Ruth Tyler’s death, Jay Tyler
allegedly would have received the lion’s share of the estate.’’ Tyler v. Tyler,
supra, 151 Conn. App. 101 n.2.
5
General Statutes § 45a-541b provides: ‘‘(a) A trustee shall invest and
manage trust assets as a prudent investor would, by considering the pur-
poses, terms, distribution requirements and other circumstances of the trust.
In satisfying this standard, the trustee shall exercise reasonable care, skill
and caution.
‘‘(b) A trustee’s investment and management decisions respecting individ-
ual assets shall be evaluated not in isolation, but in the context of the trust
portfolio as a whole and as a part of an overall investment strategy having
risk and return objectives reasonably suited to the trust.
‘‘(c) Among circumstances that a trustee shall consider in investing and
managing trust assets are such of the following as are relevant to the trust
or its beneficiaries: (1) General economic conditions; (2) the possible effect
of inflation or deflation; (3) the expected tax consequences of investment
decisions, strategies and distributions; (4) the role that each investment or
course of action plays within the overall trust portfolio, which may include
financial assets, interests in closely held enterprises, tangible and intangible
personal property and real property; (5) the expected total return from
income and the appreciation of capital; (6) related trusts and other income
and resources of the beneficiaries; (7) needs for liquidity, for regularity of
income and for preservation or appreciation of capital; (8) an asset’s special
relationship or special value, if any, to the purposes of the trust or to one
or more of the beneficiaries; (9) the size of the portfolio; and (10) the nature
and estimated duration of the trust.
‘‘(d) A trustee shall take reasonable steps to verify facts relevant to the
investment and management of trust assets.
‘‘(e) Subject to the standard of sections 45a-541 to 45a-541l, inclusive, a
trustee may invest in any kind of property or type of investment.
‘‘(f) A trustee who has special skills or expertise, or is named trustee in
reliance upon the trustee’s representation that the trustee has special skills
or expertise, has a duty to use those special skills or expertise.’’
6
Although these counts cite § 45a-541b, they quote § 45a-541c, which
provides: ‘‘A trustee shall diversify the investments of the trust unless the
trustee reasonably determines that, because of special circumstances, the
purposes of the trust are better served without diversifying.’’
7
General Statutes § 45a-204 provides: ‘‘Trust funds received by executors,
trustees, guardians or conservators may be kept invested in the securities
received by them, unless it is otherwise ordered by the Court of Probate
or unless the instrument under which such trust was created directs that
a change of investments shall be made, and the fiduciaries thereof shall not
be liable for any loss that may occur by depreciation of such securities.’’
8
The court found as follows in its initial decision partially granting sum-
mary judgment on August 22, 2013: ‘‘[T]he court finds that Tatoian was not
required to furnish accountings to anyone other than Ruth Tyler prior to
Ruth Tyler’s death. The trust states that beneficiaries entitled to receive
income are also entitled to twice yearly accountings. It also states that the
Tyler brothers are entitled to receive income from the trust only upon Ruth
Tyler’s death. The plaintiff was not entitled to any accountings because his
loans from Ruth Tyler exceeded his share of the trust; therefore, he was
never entitled to receive income. The cross plaintiff was only entitled to
accountings after Ruth Tyler’s death. Therefore, the motion for summary
judgment should be granted as to the third count of the complaint, alleging
negligent failure to furnish accountings, and the sixth count of the complaint
and third count of the cross complaint alleging deprivation of the right to
seek a court order under § 45a-204 because there were no accountings prior
to Ruth Tyler’s death.’’
9
The disputed provision of the trust, § 8 (h), provides: ‘‘The Trustee shall
render an account at least once each twelve months to each adult beneficiary
and to the natural or legal guardians, if any, of each minor or otherwise
legally disabled beneficiary then receiving or entitled to receive income
hereunder.’’ Tatoian argues that this provision means that he was only
required to provide an accounting to those beneficiaries who were ‘‘then
receiving or entitled to receive income . . . .’’ Because Ruth Tyler was the
only income beneficiary during her lifetime, the plaintiffs were not entitled
to an accounting while she was alive. The plaintiffs argue, on the other
hand, that Tatoian was required to provide a yearly accounting to all benefici-
aries, and that the phrase ‘‘then receiving or entitled to receive income’’
only modified ‘‘natural or legal guardians . . . of each minor or otherwise
legally disabled beneficiary,’’ and thus, they were entitled to an accounting
on a yearly basis regardless of whether they were ‘‘then receiving or entitled
to receive income . . . .’’
10
The plaintiffs filed a preliminary statement of issues on October 10,
2013, which was returned to the plaintiffs pursuant to Practice Book § 62-
7. The plaintiffs refiled an identical preliminary statement of issues on
November 18, 2013, which read as follows: ‘‘The appellants state that they
expect the issues on appeal will be: 1. Did the trial court err in its reliance
on General Statutes § 45a-204? 2. Did the trial court err in shifting the burden
of proof to the plaintiff and cross plaintiff? 3. Did the trial court err in
deciding that there was no genuine issue of material fact with regard to
‘undue influence’ as opposed to limiting its role to that of determining
whether a genuine issue exists? 4. Did the trial court misconstrue various
facts?’’
We note that although § 45a-204 was essential to count six of the complaint
and count three of the cross complaint, the court’s decision granting sum-
mary judgment on the counts alleging violation of the prudent investor
rule and failure to diversify the trust assets was based upon the court’s
interpretation that § 45a-204 allowed Tatoian to keep the trust funds invested
in the securities received by him, unless otherwise ordered by the Probate
Court or mandated by the language of the trust.
11
The judgment in this case reflects that counts three and six of the
complaint and count three of the cross complaint were resolved by summary
judgment: ‘‘The matter thence came to August 22, 2013, when the court
(Sommer, J.) granted the defendants’ Thomas J. Tyler, Russell J. Tyler, John
E. Tyler, and Richard Tatoian’s motion for summary judgment as to counts
3, 4, 5 and 6 of the third amended complaint and as to counts 1, 2 and 3 of
the fourth amended cross complaint. The matter thence came to the present
time when the parties appeared and were at issue on the remaining counts,
as on file and when all the evidence having been submitted, the court
thereupon committed the action to the jury, which returned its verdict as
follows: defendant’s verdict. In this case, the jury unanimously finds the
issues for the defendant, Richard Tatoian, as against the plaintiffs . . . Jay
M. Tyler [and] (cross plaintiff) Bruce Tyler.’’
12
Practice Book § 61-9 provides: ‘‘Should the trial court, subsequent to
the filing of a pending appeal, make a decision that the appellant desires
to have reviewed, the appellant shall file an amended appeal within twenty
days from the issuance of notice of the decision as provided for in Section
63-1.
‘‘The amended appeal shall be filed in the trial court in the same manner
as an original appeal pursuant to Section 63-3. No additional fee is required
to be paid upon the filing of an amended appeal.
‘‘Within ten days of filing the amended appeal, the appellant shall file
with the appellate clerk an original and one copy of either a certificate
stating that there are no changes to the Section 63-4 papers filed with the
original appeal or any amendments to those papers. Any other party may
file an original and one copy of responsive Section 63-4 papers within twenty
days of the filing of the certificate or the amendments.
‘‘If the original appeal is dismissed for lack of jurisdiction, the amended
appeal shall remain pending if it was filed from a judgment or order from
which an original appeal properly could have been filed.
‘‘After disposition of an appeal where no amended appeals related to that
appeal are pending, a subsequent appeal shall be filed as a new appeal. If
the amended appeal is filed after the filing of the appellant’s brief but before
the filing of the appellee’s brief, the appellant may move for leave to file a
supplemental brief. If the amended appeal is filed after the filing of the
appellee’s brief, either party may move for such leave. In any event, the
court may order that an amended appeal be briefed or heard separately
from the original appeal.
‘‘If the appellant files a subsequent appeal from a trial court decision in
a case, where there is a pending appeal, the subsequent appeal shall be
treated as an amended appeal, and there shall be no refund of the fees paid.’’
13
Practice Book § 63-4 (b) provides in relevant part: ‘‘Except as otherwise
provided, a party may as of right file amendments to the preliminary state-
ment of issues or the designation of the pleadings in the trial court case
file at any time until that party’s brief is filed. . . .’’
14
Tatoian further argued in his brief that the language of the trust did not
require him to provide trust accountings to the plaintiffs during their moth-
er’s lifetime, but even if it did, that the terms of the trust would have imposed
liability upon him only if he had acted in bad faith. Moreover, he argued,
even if the plaintiffs had received trust accountings during their mother’s
lifetime and petitioned the Probate Court for an order to diversify the trust’s
assets, the Probate Court would not likely have granted such a petition and
overridden the terms of the trust and his discretionary decision as trustee
without a showing of bad faith. Finally, he argued that since he had ‘‘kept
invested the securities received by him as the trust corpus, he [was] not
liable with respect [to] any losses as a result of the assets’ decrease in
value,’’ pursuant to § 45a-204. (Internal quotation marks omitted.)
15
The issue of final judgment was first ‘‘raised by Tatoian in a motion to
dismiss filed in this court pursuant to Practice Book § 61-4 (a) [on October
7, 2013]. He later withdrew the motion in the interests of bringing this matter
to conclusion.’’ (Internal quotation marks omitted.) Tyler v. Tyler, supra,
151 Conn. App. 102 n.5. We nevertheless dismissed the initial appeal as to
Tatoian because ‘‘[n]either the parties nor the trial court . . . can confer
jurisdiction upon [an appellate] court . . . .’’ (Citation omitted; internal
quotation marks omitted.) Id.
16
Tatoian did not submit a supplemental brief.
17
Jay Tyler withdrew his complaint against all of his brothers on January
21, 2015, and, thus, he has abandoned his claims seeking to modify the trust
and alleging undue influence.
18
Under General Statutes § 52-205 and Practice Book § 15-1, the trial court
has the discretion to try one or more issue before the other issues.
19
The plaintiffs filed a motion for articulation with respect to this decision,
to which the court responded by signing the transcript of the October 1,
2014 hearing.
20
In support of this argument, the plaintiffs urge us to consider that their
trust accountings could not have been resolved at trial because the pleadings
had not been closed. Specifically, the plaintiffs assert that Bruce Tyler never
replied to Tatoian’s ninth, eleventh, and fifteenth special defenses, and that
these defenses were never withdrawn as to counts 1, 2 and 3 of the cross
complaint. Accordingly, the plaintiffs argue, the court was in error when it
assumed that all of those counts were disposed of at trial or by summary
judgment. Tatoian replies that counts 1, 2 and 3 of the cross complaint did
not proceed to trial, and, thus, that the pleadings were closed as to all counts
proceeding to trial.