Gleason v. Durden ( 2022 )

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JOHN GLEASON v. MARCELLA DURDEN ET AL.
(AC 43738)
Bright, C. J., and Prescott and Alexander, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, his siblings,
M, H and C, and his brother-in-law A, for, inter alia, unjust enrichment
and breach of contract. The plaintiff alleged that the parties entered
into a family cooperative agreement following the death of his mother
in 1973. Under that agreement, the plaintiff would use his discretion
over the assets that he and C had inherited from their mother to cooper-
ate with M and H, who had been disinherited, in order to bring the family
closer together. The assets included properties located at Haverhill Road
and Partridge Lane in Trumbull. After their mother’s death, M and A
moved into Haverhill Road with C, who could not live alone, while the
plaintiff went away to college. Over the course of several decades, the
parties continued to assist each other financially and otherwise. In 2005,
the plaintiff sold Haverhill Road to M and A for $183,100, which was
$250,000 less than the fair market value of the property, to help finance
a project at Partridge Lane. The parties allegedly had decided to build
a house on the Partridge Lane property as the first step in their overall
family plan to develop their various properties. In his second amended
complaint, the plaintiff alleged, inter alia, that M and A owed him the
$250,000 difference between the sale price and the fair market value of
Haverhill Road, on the basis of the family cooperative agreement, under
the theories of breach of contract and unjust enrichment. The trial court
rejected the plaintiff’s breach of contract claim, concluding that the
plaintiff had failed to prove the existence of the family cooperative
agreement. The court found for the plaintiff and C on the plaintiff’s
unjust enrichment claim against M and A, concluding that the sale of
Haverhill Road for less than fair market value was part of a separate
family agreement to develop property in Newtown that the parties had
inherited from an uncle. The court concluded that the $250,000 that the
plaintiff and C had lost on the sale of Haverhill Road had unjustly
enriched M and A. The trial court rejected the plaintiff’s remaining
claims. Thereafter, M and A appealed to this court and the plaintiff cross
appealed from the trial court’s judgment. Held:
1. The trial court erred in rendering judgment for the plaintiff and C on the
plaintiff’s unjust enrichment claim, the court’s conclusion having been
based on a wholly unalleged agreement between the parties: although
the trial court concluded that the plaintiff was entitled to recover on
his unjust enrichment claim because the transfer of the Haverhill Road
property was part of a separate family agreement to develop and sell
the Newtown property, the plaintiff’s complaint never mentioned any
agreement linking the sale of Haverhill Road to the development of the
Newtown property, and, in fact, it did not contain a single reference to
the Newtown property; moreover, the manner in which the plaintiff
pursued his unjust enrichment claim at trial and the evidence he pre-
sented in support of that claim did not overcome the deficiency in his
pleading to provide M and A with sufficient notice of the basis of the
court’s award, as the plaintiff presented no evidence that he, M, and A
had a separate understanding or expectation regarding Haverhill Road
and the Newtown property that was not a part of the overall family
cooperative agreement that the court found had not been proved; further-
more, this court’s review of the plaintiff’s posttrial briefs filed with the
trial court reflect that the plaintiff never relied on a separate Haverhill
Road/Newtown property agreement or understanding in support of his
unjust enrichment claim and, instead, argued that any agreement regard-
ing the Newtown property was part and parcel of the family cooperative
agreement; accordingly, there was no basis to conclude that the 2005
contract regarding the sale of Haverhill Road did not fully address the
transfer of that property to M and A.
2. The plaintiff’s claim that the trial court erred in not finding that a confiden-
tial relationship existed between the parties, and that the defendants
breached their obligations created by that relationship, was not review-
able, the plaintiff having failed to brief the claim adequately: the plaintiff’s
brief before this court was confusing, repetitive, and disorganized, and
provided minimal relevant citation to the record, almost no citation to
applicable legal authorities, and no meaningful analysis for his claim.
Argued October 20, 2021—officially released March 29, 2022
Procedural History
Action to recover damages for, inter alia, unjust
enrichment, and for other relief, brought to the Superior
Court in the judicial district of Fairfield and tried to
the court, Hon. Michael Hartmere, judge trial referee;
judgment in part for the plaintiff, from which the defen-
dants appealed and the plaintiff cross appealed.
Reversed in part; judgment directed.
Sabato P. Fiano, with whom was Marisa R. Pulla,
for the appellants-cross appellees (defendant Marcella
Durden et al.).
John Gleason, self-represented, the appellee-cross
appellant (plaintiff).
Opinion
BRIGHT, C. J. This case arises out of a dispute
between siblings over the disposition of various parcels
of real property they acquired from their mother and
an uncle. The defendants, Marcella Durden and her
husband, Andrew Durden, appeal from the judgment
of the trial court finding in favor of the plaintiff, John
Gleason, Marcella’s brother, on his unjust enrichment
claim as to a property the defendants acquired from
the plaintiff and another brother, Charles Gleason.1 Spe-
cifically, the defendants claim that the court erred in
rendering judgment for the plaintiff on his unjust enrich-
ment claim because (1) the claim was time barred, (2)
the court expressly found that the defendants never
engaged in unjust or inequitable conduct, and (3) the
agreement upon which the court based its judgment
was not sufficiently definitive to support a claim of
unjust enrichment and was never alleged in the plain-
tiff’s complaint as a basis for recovery. The defendants
further claim that the court erred in rendering judgment
for Charles on the plaintiff’s unjust enrichment claim
because Charles was never an adverse party to the
defendants and never asserted such a claim against
them. With respect to the defendants’ appeal, we
reverse the judgment of the court.
The plaintiff cross appeals from the judgment of the
court rendered in favor of the defendants on the plain-
tiff’s remaining claims. Although the plaintiff’s claim on
his cross appeal is not entirely clear, he essentially
argues that the court should have found that the defen-
dants breached their obligations created by a ‘‘confiden-
tial relationship’’ that existed between the parties,
awarded him additional damages arising from that
breach, and ordered an accounting between the parties.
As to the plaintiff’s cross appeal, we affirm the court’s
judgment.
The following facts, as found by the trial court, and
procedural history are relevant to our resolution of
this appeal. Stephanie Gleason was the mother of the
plaintiff, Charles Gleason, Marcella Durden, and How-
ard Gleason. During her lifetime, Stephanie owned six
parcels of real estate: (1) 22 Haverhill Road in Trumbull
(Haverhill Road), (2) 21 Reading Road in Trumbull
(Reading Road), (3) 52 Partridge Lane in Trumbull (Par-
tridge Lane), (4) 15 Clifton Place in Bridgeport, (5) 15
Dayton Road in Bridgeport, and (6) 7000 Bear Claw
Loop in New Port Richey, Florida.2 From 1971 until her
death, Stephanie resided with the plaintiff and Charles
at Haverhill Road.3 On March 14, 1973, Stephanie passed
away. Prior to her death, Stephanie quitclaimed all of
her properties, except Partridge Lane, to the plaintiff
and Charles in equal shares. After her death, the Par-
tridge Lane property was administered through her
estate and transferred to the plaintiff, Howard, and
Charles, pursuant to the terms of her will. Stephanie
entirely disinherited Marcella from her estate. Never-
theless, her children had always had a close relationship
and, following Stephanie’s death, helped each other
with a variety of personal and financial matters although
‘‘there was no written or oral agreement among them
as to how all of the benefits received and advances
made to each other were to be reconciled.’’
Shortly after Stephanie died, the plaintiff moved out
of Haverhill Road to attend college at the University of
Connecticut in Storrs. Consequently, the defendants
moved into Haverhill Road with Charles.4 From 1973
until 1985, the defendants and their children resided at
Haverhill Road with Charles. In 1985, Charles, finding
Haverhill Road too crowded and noisy, moved to a
nearby apartment where he lived with a roommate
before later moving into a condominium with his part-
ner. The defendants and their children continued living
at Haverhill Road. From April, 1973, to June, 2005,
although the defendants were not the owners of Haver-
hill Road, they did not pay rent to the plaintiff and
Charles for the use of the property. They did, however,
pay the outstanding mortgage until it was paid in full
in 1992, and paid all real estate taxes, insurance, and
maintenance costs associated with the property. The
defendants’ occupancy of Haverhill Road also benefit-
ted Marcella’s siblings because they lived for a time
with Charles, who could not live alone.
In 1988, the plaintiff facilitated the purchase of a
condominium for Charles and made all mortgage, real
estate tax, insurance and condominium association pay-
ments related to the condominium from August, 1989,
to November, 2017. Marcella contributed $18,000
toward the purchase of the condominium and made
credit card payments for Charles and paid for his health
insurance from 1990 to 1993 after Charles was laid off
from his job.
In 1989, an uncle of the four siblings passed away,
leaving the plaintiff, Marcella, Charles, Howard, and
one cousin property at 10 and 15 Old Town Road in
Newtown (Newtown property). That property con-
sisted of approximately thirty-five to forty acres with
two rental units that the defendants agreed to manage.
After inheriting the Newtown property, members of the
family met with attorneys, engineers, surveyors, and
consultants to discuss how they could further develop
the property. As of 2016, however, almost nothing had
been done to develop it.
From 1973 to 2007, the plaintiff mostly remained out
of state, first in Boston and then in Rome, New York. In
the mid-2000s, the plaintiff, the defendants, and Howard
decided to build a house on the Partridge Lane property
‘‘as the first step in a family plan to develop the New-
town property.’’ The plan was that the defendants’ son,
Daniel, would design and customize the house and even-
tually purchase it. Although the house was built to Dan-
iel’s specifications, he did not purchase it. Instead, the
plaintiff and his wife moved into the new residence at
Partridge Lane and lived there from January, 2007, to
January, 2016.
To help finance the Partridge Lane project, the plain-
tiff offered to sell Haverhill Road to the defendants for
$183,100. That sale price was $250,000 less than the fair
market value of the property, which had been appraised
for $433,100 in 2005. At trial, the plaintiff testified that
he came up with the $183,100 sale price entirely on his
own and that the price was ‘‘a back of the envelope
calculation’’ as to how much the defendants could
afford. It was uncontested by the parties that the defen-
dants did not request, negotiate, or induce that sale
price. In 2005, the parties finalized the transfer of Haver-
hill Road for the agreed upon price of $183,100.5
In 2011, while residing at Partridge Lane, the plaintiff
ran into financial difficulties, and the defendants began
loaning him money. In November, 2012, the defendants
requested an acknowledgement of the total amount that
the plaintiff had received from them. The plaintiff pro-
vided a signed debt acknowledgement form in the
amount of $126,000, payable on demand. The plaintiff
also promised to repay the defendants in full after he
sold Partridge Lane. Thereafter, the defendants contin-
ued loaning the plaintiff money, eventually providing
him with a total sum of $202,690. Partridge Lane sold
in January, 2016, but the plaintiff did not repay the
defendants at that time.
On January 20, 2016, a family meeting took place. At
the meeting, the defendants demanded that the plaintiff
repay the $202,690 they had loaned him. Howard, who
also had loaned the plaintiff money for the Partridge
Lane project, also demanded that his loan be repaid.
The plaintiff responded to the defendants’ request by
demanding that the defendants pay him the $250,000
that they still purportedly owed from their purchase of
Haverhill Road. The plaintiff responded to Howard’s
request by demanding that Howard repay him for the
fair market value of Reading Road, which the plaintiff
had transferred to Howard decades earlier. The defen-
dants and Howard refused to make any payments to the
plaintiff, and then commenced separate legal actions
against him.
On February 2, 2017, the defendants instituted a law-
suit by way of a six count complaint against the plaintiff
and his wife, alleging breach of contract, unjust enrich-
ment, tortious interference, and three counts of fraudu-
lent transfer. Howard, also on February 2, 2017, simi-
larly seeking repayment of amounts he claimed were
owed to him, instituted a separate lawsuit against the
plaintiff and his wife, alleging the same claims. The
plaintiff filed separate answers and special defenses in
both actions.
On July 13, 2017, the plaintiff commenced the under-
lying action against the defendants and Howard, and
later cited in Charles as an additional party. The opera-
tive second amended complaint included ten counts:
(1) breach of contract, (2) unjust enrichment, (3) con-
structive trust/confidential relationship, (4) breach of
fiduciary duty, (5) fraudulent misrepresentation, (6)
constructive trust/fraud, (7) promissory estoppel, (8)
conversion, (9) equitable accounting, and (10) negligent
infliction of emotional distress. Counts one through
eight and count ten of the second amended complaint
were directed at the defendants and Howard, whereas
count nine sought an ‘‘equitable accounting of all
accounts between the parties,’’ presumably including
Charles. Furthermore, the counts of the plaintiff’s com-
plaint directed at the defendants and Howard also
alleged that they breached various duties and obliga-
tions to Charles, even though Charles had been named
only as a defendant in the action and the plaintiff’s
prayer for relief did not seek any relief on behalf of
Charles. Central to all of the plaintiff’s claims against the
defendants and Howard were the following allegations:
(1) following Stephanie’s death, the plaintiff called a
family meeting at which he told the defendants and
Howard that, although almost all of Stephanie’s assets
had been bequeathed to him and Charles, ‘‘he would
use some discretion over use of the assets . . . pro-
vided that everyone follows [Stephanie’s] ultimate
instruction which was that the assets would provide
[the plaintiff] and Charles with lifelong financial stabil-
ity and support, thereby creating by oral agreement a
confidential fiduciary relationship on the defendants
[and Howard] to [the plaintiff] and Charles’’;
(2) during the family meeting, the plaintiff stated that
he was willing to use his discretion over the assets
to bring the family closer together ‘‘with the express
understanding and agreement’’ that any cooperative use
of the assets ‘‘was subject to [the plaintiff] and Charles’
paramount right to assets as they deemed necessary to
ensure for their lifelong financial stability and support’’;
(3) in reliance on this understanding, the plaintiff and
Charles transferred, for less than fair market value,
Haverhill Road to the defendants and Reading Road to
Howard; and
(4) despite accepting these properties pursuant to
the understanding that they were required to participate
in other family transactions as requested by the plaintiff,
the defendants and Howard failed to meet their obliga-
tions, including returning to the plaintiff and Charles
Haverhill Road and Reading Road or failing to pay the
full value for said properties when demanded to do so.
The defendants and Howard filed answers denying
these allegations and asserting several special
defenses.6 All three lawsuits were consolidated for trial.
During October and November, 2018, the trial court
held a six day bench trial. Thereafter, the court issued
its memorandum of decision. In the defendants’ action
against the plaintiff, the court rendered judgment for the
defendants in the amount of $202,690 on their breach
of contract claim, after finding that the plaintiff violated
his agreement to repay the money that the defendants
had loaned him. The court found for the plaintiff on
the remaining five counts of the defendants’ complaint.
In Howard’s action, the court rendered judgment for
the plaintiff on all counts. Finally, in the plaintiff’s action
against the defendants, Howard, and Charles, the court
rendered judgment for the plaintiff and Charles in the
amount of $250,000 on the plaintiff’s unjust enrichment
claim against the defendants. Specifically, the court
found that the plaintiff and Charles had ‘‘conferred a
benefit of $250,000 on [the defendants] by the sale of
their Haverhill Road property for far less than the mar-
ket value to their detriment.’’ The court further found
that the sale of Haverhill Road to the defendants ‘‘was
part of the family agreement to develop the Newtown
property . . . .’’
As to its judgment in favor of Charles and against
the defendants, despite the fact that he had asserted
no claims against the defendants, the court explained:
‘‘Charles Gleason was made a party defendant to this
action by [the plaintiff] pursuant to [General Statutes
§§] 52-101 and 52-102, so that his rights could be adjudi-
cated. After he failed to appear and failed to plead to
the complaint, a motion for default as to Charles was
granted. After the trial had begun [however], Charles
did file an appearance and an answer to the complaint
with the help of Daniel Durden, [the defendants’] son.
Also, Charles was called as a witness and testified dur-
ing the trial. Unjust enrichment means that it is contrary
to equity and good conscience for the defendants to
retain a benefit that has come to them at the expense
of the plaintiff. Unjust enrichment, consistent with the
principles of equity, is a broad and flexible remedy.
. . . This court will determine the rights of Charles in
this matter.
‘‘When a court has assumed equitable jurisdiction
over a matter, the doctrine of retaining jurisdiction in
order to completely adjust the controversy extends to
the granting of relief to a defendant or between codefen-
dants. On this ground [a] defendant may have relief to
which he shows himself entitled against [a] plaintiff,
although he does not ask for it, and even in some cases
where [a] plaintiff has failed to make out his own case.
. . . This court does have jurisdiction in this equitable
matter to grant relief to Charles . . . .’’ (Citations omit-
ted; internal quotation marks omitted.)
As to the remaining nine counts, the court rendered
judgment for the defendants. The court also rendered
judgment for Howard on all ten counts of the plaintiff’s
complaint.
The defendants appealed. Thereafter, the plaintiff
filed a cross appeal.7 Additional facts and procedural
history will be set forth below as necessary.
I
The defendants claim that the court improperly con-
cluded that the plaintiff and Charles were entitled to
unjust enrichment damages from the defendants with
respect to their purchase of Haverhill Road because (1)
the plaintiff’s unjust enrichment action was untimely,
(2) although the defendants were enriched by the pur-
chase, the enrichment was not unjust, (3) the agreement
upon which the court based its judgment was not a
definitive agreement and was never alleged in the plain-
tiff’s complaint as a basis for recovery, and (4) with
respect to Charles, that he was never an adverse party
to the defendants, had asserted no claims against the
defendants, and thus could not be awarded damages
by the court. We conclude that the defendants’ third
claim is dispositive and are persuaded that the court
erred when it rendered judgment for the plaintiff and
Charles on the unjust enrichment claim.8
We first set forth the standard of review and applica-
ble law. Determining whether the equitable doctrine of
unjust enrichment applies in a given case ‘‘requires a
factual examination of the particular circumstances and
conduct of the parties. . . . The factual findings of a
trial court must stand, therefore, unless they are clearly
erroneous or involve an abuse of discretion. . . . When
a trial court’s legal conclusions are challenged, how-
ever, our review is plenary and we must decide whether
its conclusions are legally and logically correct and
find support in the facts that appear in the record.’’
(Citations omitted; internal quotation marks omitted.)
David M. Somers & Associates, P.C. v. Busch, 283 Conn.
396, 407, 927 A.2d 832 (2007).
The doctrine of unjust enrichment ‘‘is based upon
the principle that one should not be permitted unjustly
to enrich himself at the expense of another but should
be required to make restitution of or for property
received, retained or appropriated.’’ (Internal quotation
marks omitted.) Gibson v. Jefferson Woods Commu-
nity, Inc., 206 Conn. App. 303, 314, 260 A.3d 1244, cert.
denied, 339 Conn. 911, 261 A.3d 747 (2021). ‘‘A right of
recovery under the doctrine of unjust enrichment is
essentially equitable, its basis being that in a given situa-
tion it is contrary to equity and good conscience for
one to retain a benefit which has come to him at the
expense of another. . . . With no other test than what,
under a given set of circumstances, is just or unjust,
equitable or inequitable, conscionable or unconsciona-
ble, it becomes necessary in any case where the benefit
of the doctrine is claimed, to examine the circum-
stances and the conduct of the parties and apply this
standard. . . . Unjust enrichment is, consistent with
the principles of equity, a broad and flexible remedy.’’
(Internal quotation marks omitted.) Hospital of Central
Connecticut v. Neurosurgical Associates, P.C., 139
Conn. App. 778, 784, 57 A.3d 794 (2012).
Unjust enrichment is a ‘‘noncontractual means of
recovery in restitution.’’ (Emphasis added; internal quo-
tation marks omitted.) Professional Electrical Contrac-
tors of Connecticut, Inc. v. Stamford Hospital, 196
Conn. App. 430, 438, 230 A.3d 773 (2020); see also Hospi-
tal of Central Connecticut v. Neurosurgical Associates,
P.C., supra, 139 Conn. App. 784 (‘‘[u]njust enrichment
applies wherever justice requires compensation to be
given for property or services rendered . . . and no
remedy is available by an action on the contract’’
(emphasis added)). In other words, unjust enrichment is
not available as a remedy when there is a valid contract
between the parties and that contract addresses the
matter at issue in the unjust enrichment action. See
Connecticut Light & Power Co. v. Proctor, 158 Conn.
App. 248, 251 n.7, 118 A.3d 702 (2015) (‘‘[a] court . . .
cannot grant relief on a theory of unjust enrichment
unless the court first finds that there was no contract
between the parties’’), aff’d, 324 Conn. 245, 152 A.3d
470 (2016). ‘‘Nevertheless, when an express contract
does not fully address a subject, a court of equity may
impose a remedy to further the ends of justice.’’
(Emphasis added; internal quotation marks omitted.)
New Hartford v. Connecticut Resources Recovery
Authority, 291 Conn. 433, 455, 970 A.2d 592 (2009).
The plaintiff’s unjust enrichment claim against the
defendants concerns solely the sale of Haverhill Road.
It is undisputed, however, that the plaintiff and the
defendants had a valid oral agreement as to the transfer
of that property. Consistent with their testimony at trial,
both parties acknowledged during oral argument before
this court that they had agreed that the plaintiff would
sell the property to the defendants for $183,100, even
though its fair market value was $433,100. The parties’
agreement to transfer Haverhill Road was, undeniably, a
contract; see Boland v. Catalano, 202 Conn. 333, 338–39,
521 A.2d 142 (1987) (‘‘[a] contract is a promise or a set
of promises for the breach of which the law gives a
remedy, or the performance of which the law in some
way recognizes as a duty’’ (internal quotation marks
omitted)); and that contract addressed the obligations
of the parties with regard to the sale. Accordingly,
because there was a contract between the plaintiff and
the defendants regarding the sale of Haverhill Road,
the doctrine of unjust enrichment does not apply unless
the contract did not fully address the subject at issue.
See New Hartford v. Connecticut Resources Recovery
Authority, supra, 291 Conn. 455–56.
On appeal, the plaintiff does not claim that there was
not a valid agreement as to the sale of Haverhill Road.
Instead, the plaintiff argues that the agreement for the
sale of Haverhill Road for $183,100 did not fully address
the subject at issue because there was a collateral agree-
ment in place that further addressed the defendants’
payment obligations for the property. According to the
plaintiff, the parties had a separate agreement concern-
ing the development of the Newtown property and,
under that agreement, the defendants were required to
pay the $250,000 difference between the sale price and
the fair market value of Haverhill Road after the New-
town property had been developed and sold. The court
found that this separate agreement existed, and, on that
basis, concluded that the sale of Haverhill Road was
part of the family agreement to develop the Newtown
property and, as such, that the $250,000 that the plaintiff
and Charles had lost on the sale of Haverhill Road had
unjustly enriched the defendants.
The defendants claim that, in relying on the purported
separate agreement regarding Haverhill Road and the
Newtown property, the court ‘‘adopted an unalleged,
narrower subsection of [the family cooperative agree-
ment] which was no more definitive in its essential
terms than the alleged ‘family cooperative agreement’
that the trial court rejected.’’ They note that ‘‘[c]onspic-
uously absent from all three [versions of the plain-
tiff’s] complaints is any mention whatsoever of
the Newtown property.’’ (Emphasis in original.) The
defendants further argue that the plaintiff presented no
evidence as to the terms of this separate agreement or
that the defendants in any way breached it. In sum, the
defendants claim that the court improperly based its
unjust enrichment judgment in favor of the plaintiff
and Charles on an unpleaded and unproven agreement.
We agree.
‘‘It is fundamental in our law that the right of a plain-
tiff to recover is limited to the allegations of [his] com-
plaint.’’ (Internal quotation marks omitted.) Cellu Tis-
sue Corp. v. Blake Equipment Co., 41 Conn. App. 413,
417, 676 A.2d 405 (1996). ‘‘The purpose of the complaint
is to limit the issues to be decided at the trial of a case
and is calculated to prevent surprise. . . . A complaint
should fairly put the defendant on notice of the claims
against him. . . . Thus, a plaintiff during trial cannot
vary the factual aspect of his case in such a way that
it alters the basic nature of the cause of action alleged
in his complaint. . . . In other words, [a] plaintiff may
not allege one cause of action and recover upon
another. . . .
‘‘The modern trend, which is followed in Connecticut,
is to construe pleadings broadly and realistically, rather
than narrowly and technically. . . . Although essential
allegations may not be supplied by conjecture or remote
implication . . . the complaint must be read in its
entirety in such a way as to give effect to the pleading
with reference to the general theory upon which it pro-
ceeded, and do substantial justice between the parties.
. . . As long as the pleadings provide sufficient notice
of the facts claimed and the issues to be tried and do
not surprise or prejudice the opposing party, we will
not conclude that the complaint is insufficient to allow
recovery. . . . Whether a complaint gives sufficient
notice is determined in each case with reference to the
character of the wrong complained of and the underly-
ing purpose of the rule which is to prevent surprise upon
the defendant.’’ (Citations omitted; internal quotation
marks omitted.) Oxford House at Yale v. Gilligan, 125
Conn. App. 464, 469–70, 10 A.3d 52 (2010). ‘‘The interpre-
tation 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 addition, ‘‘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. . . . In that cir-
cumstance, provided the plaintiff has produced suffi-
cient evidence to prove the elements of his unpleaded
claim, the defendant will be deemed to have waived
any defects in notice.’’ (Citation omitted.) Id., 43–44.
Put another way, a court may not render a judgment
for a plaintiff on a theory that is neither pleaded nor
pursued by the plaintiff at trial.
In determining whether the court’s unjust enrichment
judgment was based on a claim that the plaintiff did not
plead or pursue at trial, we begin with the allegations
of the operative complaint. Count two of the plaintiff’s
second amended complaint, which sets forth the plain-
tiff’s unjust enrichment claim, incorporates by refer-
ence paragraphs 1 through 22 of count one, which sets
forth the plaintiff’s breach of contract claim. Relevant
to his unjust enrichment claim, the plaintiff alleged:
‘‘10. On March 17, 1973, the day of his mother’s
funeral, [the plaintiff] called a family meeting (the ‘Fam-
ily Meeting’) attended by Charles and the defendants
at which time [the plaintiff] confirmed what everyone
at the meeting had been told numerous times by [Steph-
anie]: that due to the animosity between [Stephanie]
and the defendants that they had been disinherited from
[Stephanie’s] estate and that [the plaintiff] and . . .
Charles were the sole beneficiaries.
‘‘11. During the aforementioned Family Meeting, [the
plaintiff] further advised that [Stephanie] had instructed
him on numerous occasions prior to her death that the
assets of her estate which would be bequeathed to him
and Charles were to be utilized to provide for their
lifelong financial stability and support, and [the plain-
tiff] agreed to comply with her wishes.
‘‘12. During the aforementioned Family Meeting, [the
plaintiff] further advised that he would use some discre-
tion over use of the assets of [Stephanie’s] estate; pro-
vided that everyone follow her ultimate instruction
which was that the assets would provide [the plaintiff]
and Charles with lifelong financial stability and support,
thereby creating by oral agreement a confidential fidu-
ciary relationship on the defendants to [the plaintiff]
and Charles.
‘‘13. During the aforementioned Family Meeting, [the
plaintiff] indicated that he was willing to use discretion
to cooperate with his disinherited siblings in order to
bring the family closer together and with the express
understanding and agreement by and between [the
plaintiff] and Charles and the defendants that any such
cooperative arrangements would at all times be subject
to [the plaintiff] and Charles’ paramount right to assets
as they deemed necessary to ensure for their lifelong
financial stability and support (hereinafter referred to
as the ‘Family Cooperative Agreement’).
‘‘14. Among the assets of [Stephanie’s] estate were
real property located at . . . Reading Road . . . and
. . . Haverhill Road . . . .’’
The incorporated paragraphs of count one also
alleged that, ‘‘[i]n reliance on the Family Cooperative
Agreement,’’ the plaintiff and Charles were, in relevant
part, induced by the defendants to engage in two trans-
actions, which the complaint describes as part of the
‘‘Family Cooperative Transactions’’: (1) granting the
defendants ‘‘the right to occupy Haverhill Road for mini-
mal and inadequate consideration in light of the fair
market value of said right’’ and (2) conveying Haverhill
Road to the defendants again for minimal and inade-
quate consideration in light of the property’s fair market
value. Further, the complaint alleged that despite these
transactions, the defendants had failed to pay (1) the
fair market value of their occupancy of Haverhill Road
prior to the conveyance of that property to them and
(2) the fair market value of the Haverhill Road property.
Other than incorporating the allegations from count
one, in count two the plaintiff alleged only that he and
Charles ‘‘conferred significant benefits upon the defen-
dants pursuant to the Family Cooperative Transac-
tions,’’ the defendants did not pay for those benefits
and were unjustly enriched to the detriment of the plain-
tiff and Charles, and the plaintiff claimed money dam-
ages.
The court, in rejecting the plaintiff’s breach of con-
tract claim in count one, concluded that the plaintiff had
failed to prove the existence of the Family Cooperative
Agreement on which both that claim and the unjust
enrichment claim were based. In particular, the court
held that ‘‘the alleged ‘family cooperative agreement’
which frequently was characterized by ‘we’ll figure it
out later’ was not definite and certain as to its essential
terms and requirements of the parties. Although both
Marcella and [the plaintiff] kept fairly extensive
records, the plaintiff did not prove that there was one
overall ‘family cooperative agreement’ which encom-
passed all of the family transactions or interactions,
e.g., rent or equivalent value to be paid at some future
time by Marcella and Andrew for living at 22 [Haverhill]
Road with Charles, or fair market value for occupancy
rights to be paid by Howard for living at Reading Road.’’
Nevertheless, as noted previously in this opinion, the
court, in rendering judgment on count two, concluded
that the plaintiff and Charles were entitled to recover
on the unjust enrichment claim because the transfer of
Haverhill Road was part of a separate family agreement
to develop and sell the Newtown property. The problem
with such a conclusion is that the complaint never men-
tioned any agreement linking the sale of Haverhill Road
to the defendants to the development of the Newtown
property. In fact, the complaint does not contain a single
reference to the Newtown property. Consequently, on
the basis of our thorough review of the operative com-
plaint, we agree with the defendants that the court’s
judgment in favor of the plaintiff on count two was
based on a wholly unalleged agreement.
We next turn to the manner in which the plaintiff
pursued his unjust enrichment claim at trial and the
evidence he presented in support of that claim to deter-
mine whether the defendants had sufficient notice of
the basis of the court’s award and whether the plaintiff,
through his presentation of his unjust enrichment claim,
overcame the deficiency in his pleading. Although the
plaintiff testified at trial that the $250,000 difference
between what the defendants paid for Haverhill Road
and its fair market value ‘‘was to be resolved once the
development of Newtown took place,’’ he repeatedly
testified that this anticipated reckoning was part of the
overall family agreement ‘‘to figure it out later.’’
Furthermore, the plaintiff testified that the develop-
ment of the Newtown property would trigger a reconcil-
iation of all obligations the siblings had to each other
in what he described as ‘‘the grand accounting of who
owes who for what that we had established since the
beginning,’’ including his claim that Howard owed him
money from the transfer of Reading Road, his claim
that the defendants owed him and Charles rent for
Haverhill Road, and the defendants’ claim that the plain-
tiff owed them money. He also testified that the agree-
ment that is the basis for his claim had been in place
between the parties for at least forty-five years, which
would predate by thirty years the defendants’ purchase
of Haverhill Road. Consequently, the plaintiff’s testi-
mony could be referring only to the alleged Family
Cooperative Agreement and not a separate Haverhill
Road/Newtown property agreement or understanding.
Overall, the plaintiff presented no evidence that he and
the defendants had a separate understanding or expec-
tation regarding Haverhill Road and the Newtown prop-
erty that was not part of the overall ‘‘we’ll figure it out
later’’ Family Cooperative Agreement that the court
found had not been proved.
In addition, we agree with the defendants that the
plaintiff failed to present evidence of the specific terms
of any such agreement. In particular, he provided no
evidence of any understanding among the parties of
what would constitute the completion of the develop-
ment of the Newtown property necessary to trigger ‘‘the
grand accounting.’’ Nor did the plaintiff present any
evidence of how the defendants acted inconsistently
with any plan to develop the Newtown property, which
is still to be developed.
Finally, our review of the plaintiff’s posttrial briefs
filed in the court reflect that the plaintiff never relied
on a separate Haverhill Road/Newtown property agree-
ment or understanding in support of his unjust enrich-
ment claim. In his initial posttrial brief, the plaintiff
based his unjust enrichment claim on the ‘‘long-term
family agreement.’’ Consistent with his testimony, the
plaintiff argued that this family agreement was entered
into shortly after Stephanie’s death in 1973. Other than
arguing that, as part of the long-term family agreement,
the plaintiff sold Haverhill Road to the defendants and
Reading Road to Howard for less than their fair market
values to raise money to develop Partridge Lane, which
was to be sold to develop the Newtown property, the
plaintiff’s initial posttrial brief makes little or no refer-
ence to the Newtown property. It does not suggest that
there was a separate understanding that the defendants
would pay the plaintiff and Charles an additional
$250,000 upon the development of the Newtown prop-
erty, describe what constituted completion of such
development, or claim that the defendants have refused
to participate in such development.
Similarly, in his posttrial reply brief, the plaintiff
argued that his unjust enrichment claim was based on
the family’s decades old agreement to ‘‘figure it out
later.’’ The plaintiff also argued that the development
of the Newtown property was part of this decades old
agreement and the ‘‘overall family plan to develop prop-
erties.’’ The brief does not discuss a separate Haverhill
Road/Newtown property agreement as found by the
court. Instead, the plaintiff argued: ‘‘The second
amended complaint discusses the transactions of the
family as a whole, not exclusively in regards to the
properties inherited by [the plaintiff] and Charles from
their mother Stephanie. All parties since 1970 were well
aware of their likely inheritance of the Newtown prop-
erty. At the time of discovery, and in depositions, and
throughout these proceedings, the Newtown [property
was] exhaustively discussed and vast evidence has been
accepted by the court as to this issue.’’
Thus, the plaintiff argued that any agreement regard-
ing the Newtown property was part and parcel of the
agreement alleged in count one of his complaint, which
the court found had not been proven. The plaintiff sim-
ply never pleaded, presented evidence of, or argued to
the court that he was entitled to succeed on his unjust
enrichment claim based on a separate amorphous
agreement or understanding linking payment of addi-
tional money to him and Charles for the purchase of
Haverhill Road to the undefined ‘‘development’’ of the
Newtown property.
Given how the plaintiff pleaded and litigated his
claims, we conclude that it was improper for the court
to hold that the plaintiff had failed to prove the agree-
ment that was the basis of his unjust enrichment claim
and then rely on a purported separate agreement that
was never alleged, never proven, and never argued
when it rendered judgment for the plaintiff. Without the
purported agreement regarding the Newtown property,
and the court having rejected the plaintiff’s claim of a
family cooperative agreement to ‘‘figure it out later,’’
there is no basis to conclude that the 2005 agreement
regarding the sale of Haverhill Road did not fully
address the transfer of that property to the defendants.
Consequently, the plaintiff cannot prevail on his unjust
enrichment claim and the court erred when it rendered
judgment for the plaintiff on the second count of his
second amended complaint.9
II
As best we can divine, after a thorough review of the
cross appeal, it appears that the plaintiff raises a single
claim: that the court erred in not finding that a confiden-
tial relationship existed between the parties. As part of
that overarching claim, the plaintiff also argues that the
court erred in rendering judgment for Howard10 and in
not ordering an equitable accounting. We conclude that
this claim is inadequately briefed and, thus, decline to
address it.11
‘‘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. . . . [When] 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. . . . For a reviewing court to judiciously
and efficiently . . . consider claims of error raised on
appeal . . . the parties must clearly and fully set forth
their arguments in their briefs. . . . In addition, brief-
ing is inadequate when it is not only short, but confus-
ing, repetitive, and disorganized. . . .
‘‘We are mindful that [i]t is the established policy of
the Connecticut courts to be solicitous of [self-repre-
sented] litigants and when it does not interfere with the
rights of other parties to construe the rules of practice
liberally in favor of the [self-represented] party. . . .
Nonetheless, [a]lthough we allow [self-represented] liti-
gants some latitude, the right of self-representation pro-
vides no attendant license not to comply with relevant
rules of procedural and substantive law.’’ (Citations
omitted; internal quotation marks omitted.) Burton v.
Dept. of Environmental Protection, 337 Conn. 781, 803–
804, 256 A.3d 655 (2021).
For his single claim on his cross appeal, the plaintiff
provides minimal relevant citation to the record and
almost no citation to applicable legal authorities. See
id., 804 (brief containing only minimal citation to record
was inadequate); see also Mattie & O’Brien Con-
tracting Co. v. Rizzo Construction Pool Co., 128 Conn.
App. 537, 544, 17 A.3d 1083 (brief containing minimal
citation to legal authority was inadequate), cert. denied,
302 Conn. 906, 23 A.3d 1247 (2011). Further, the plaintiff
provides no meaningful analysis for his claim. See
MacDermid, Inc. v. Leonetti, 328 Conn. 726, 748, 183
A.3d 611 (2018) (actual analysis, not just mere abstract
assertions, is required for briefing to be adequate). Last,
the plaintiff’s briefing is confusing, repetitive, and disor-
ganized. See State v. Buhl, 321 Conn. 688, 722–23, 138
A.3d 868 (2016) (no abuse of discretion in declining to
review defendant’s claims when briefing was repetitive
and confusing). Accordingly, his claim is inadequately
briefed, and we decline to review it.
The judgment is reversed with respect to the unjust
enrichment claim in count two rendered in favor of the
plaintiff and Charles Gleason, and the case is remanded
with direction to render judgment for the defendants
on that count; the judgment is affirmed in all other
respects.
In this opinion the other judges concurred.
1
Two other parties, Charles Gleason and Howard Gleason, were named
as defendants in the plaintiff’s second amended complaint. Neither Charles
nor Howard, however, participated in this appeal. Accordingly, hereinafter,
all references to the defendants are to Marcella Durden and Andrew Durden.
2
Of these six properties, only Haverhill Road and Bear Claw Loop had
dwellings. The other properties were all vacant lots.
3
Howard and Marcella also previously lived with their mother at Haverhill
Road, but moved into their own homes in 1970 and 1971, respectively.
4
As all the parties so testified, Charles suffers from certain significant
mental and/or physical conditions and is unable to live on his own.
5
According to Marcella’s testimony, the $250,000 difference between the
fair market value and the sale price was a gift from the plaintiff. The plaintiff,
however, testified that under the terms of a family cooperative agreement
that dated back to Stephanie’s death, the defendants were required to pay
the remaining $250,000 after the Newtown property had been developed. It
appears that the court did not credit the testimony of either the plaintiff or
Marcella. The court found that the $250,000 that the plaintiff and Charles
‘‘lost’’ on the sale of Haverhill Road to the defendants ‘‘was not a gift.’’ The
court also found that the plaintiff had failed to prove that there was a
separate ‘‘overall ‘family cooperative agreement’ which encompassed all of
the family transactions or interactions, e.g., rent or equivalent value to be
paid at some future time by [the defendants] for living at 22 [Haverhill]
Road with Charles . . . .’’
6
Prior to the start of the trial, Charles had not filed an appearance or an
answer. Accordingly, the plaintiff moved that a default judgment be entered
against Charles, and the court granted that motion. Subsequently, after trial
had commenced, he belatedly filed an appearance and an answer. It appears,
however, that the court never vacated the default judgment against Charles.
7
The only judgment on appeal before this court is the judgment in the
plaintiff’s action against the defendants. Howard appealed from the judgment
in his case against the plaintiff, but that appeal was dismissed by this
court for lack of a final judgment. The defendants also appealed from the
judgments rendered for the plaintiff in their action against the plaintiff, and
the plaintiff cross appealed from the judgment against him in that action,
but we also dismissed both the appeal and the cross appeal in that matter
for lack of a final judgment. Last, the plaintiff appealed from the judgment
rendered for the defendants in their action against him, but we dismissed
that appeal after the plaintiff failed to timely file the required documents.
8
Because we agree with the defendants’ third claim and resolve this appeal
on those grounds, we need not reach their other claims.
9
As noted previously in this opinion, the court also rendered judgment
for Charles on count two of the plaintiff’s second amended complaint. Our
conclusion that the plaintiff cannot succeed on his unjust enrichment claim,
applies with equal, if not more, force to the court’s judgment in favor of
Charles. Charles made no claim based on the purported agreement regarding
Haverhill Road and the Newtown property. Thus, the deficiencies that under-
mine the court’s judgment in favor of the plaintiff also undermine the court’s
judgment as to Charles. Furthermore, Charles was not an adverse party to
the defendants, given that he never made any claims against or requested
any relief from the defendants. A court cannot award damages to someone
who is not seeking them. We recognize that in Giulietti v. Giulietti, 65
Conn. App. 813, 784 A.2d 905, cert. denied, 258 Conn. 946, 788 A.2d 95(2001), and cert. denied, 258 Conn. 947, 788 A.2d 95 (2001), and cert. denied
sub nom. Vernon Village, Inc. v. Giulietti, 258 Conn. 947, 788 A.2d 97 (2001),
and cert. denied sub nom. Giulietti v. Vernon Village, Inc., 258 Conn. 947,
788 A.2d 96 (2001), on which the trial court relied, this court held that,
under the doctrine of retaining jurisdiction, ‘‘[a] defendant may have relief
to which he shows himself entitled against [a] plaintiff, although he does
not ask for it, and even in some cases where [a] plaintiff has failed to make
out his own case.’’ (Internal quotation marks omitted.) Id., 858. In Giulietti,
the named defendant who was granted relief by the court ‘‘made it clear
that although she was named as a defendant, her interests in the matter
were aligned with those of the plaintiffs,’’ not the defendants. Id., 857–58.
In the present case, Charles never said that he was seeking relief at all or
that his interests in the action were more aligned with the interests of the
plaintiff. To the contrary, Charles largely declined to participate in the
underlying litigation at all. Accordingly, there was no actual controversy to
adjudicate between Charles and the defendants, and the court thus erred
in awarding Charles damages on the plaintiff’s unjust enrichment claim for
that reason as well. See Board of Education v. Naugatuck, 257 Conn. 409,
416, 778 A.2d 862 (2001) (actual controversy must exist at all times for
justiciability of claim).
10
The defendants contend that the plaintiff should not be allowed to assert
claims of error against Howard in his cross appeal because Howard did not
participate in this appeal. We disagree. In Wickes Mfg. Co. v. Currier Electric
Co., 25 Conn. App. 751, 754 n.3, 596 A.2d 1331 (1991), this court held that
a plaintiff may properly cross appeal as to a defendant who did not appeal:
‘‘Where only one judgment exists from which an appeal could be taken, a
cross appeal may properly be filed by an aggrieved appellee. This rationale
also applies when a defendant appeals and a plaintiff cross appeals as to
defendants who did not appeal . . . .’’ Accordingly, the plaintiff is permitted
to challenge through his cross appeal the judgment rendered in favor of
Howard, even though Howard did not participate in the appeal. That being
said, for reasons explained herein, we decline to reach the merits of the
plaintiff’s argument that the trial court erred in rendering judgment for How-
ard.
11
The plaintiff also argues in his cross appeal that the defendants failed
to comply with Practice Book § 62-7 (b) (1) because they never certified
that a copy of their briefs and other appellate papers were delivered to
Charles. We conclude that this issue is moot and, thus, unreviewable. On
May 10, 2021, the plaintiff filed a motion for sanctions before this court,
arguing that the defendants had repeatedly failed to certify delivery of their
briefs and appellate filings to Charles. This court denied that motion, but
ordered the defendants to certify that ‘‘a copy of the defendants’ briefs and
other appellate papers have been delivered to’’ Charles. On June 17, 2021,
in accordance with that order, the defendants’ counsel certified that the
required documents had been delivered to Charles. The defendants’ counsel
also provided this court with a FedEx proof of delivery record for the
delivery of those documents. Accordingly, this issue has been resolved and
is thus moot. See Curley v. Kaiser, 112 Conn. App. 213, 229, 962 A.2d 167(2009) (claim is moot when issue before court has been resolved).
We further note that, to the extent the plaintiff, as a self-represented
party, seeks to represent Charles in his cross appeal, such representation
is not allowed. Because the plaintiff is not an attorney, he cannot appear
on behalf of Charles. See Collard & Roe, P.C. v. Klein, 87 Conn. App. 337,
343–44 n.3, 865 A.2d 500 (‘‘[a] pro se party may not appear on behalf of
another pro se party’’), cert. denied, 274 Conn. 904, 876 A.2d 13 (2005).
Moreover, contrary to the plaintiff’s argument, this court’s precedent in
Giulietti v. Giulietti, 65 Conn. App. 813, 784 A.2d 905, cert. denied, 258
Conn. 946, 788 A.2d 95 (2001), and cert. denied, 258 Conn. 947, 788 A.2d 95(2001), and cert. denied sub nom. Vernon Village, Inc. v. Giulietti, 258
Conn. 947, 788 A.2d 97 (2001), and cert. denied sub nom. Giulietti v. Vernon
Village, Inc., 258 Conn. 947, 788 A.2d 96 (2001), does not give the plaintiff
a right to assert Charles’ legal rights in this action. Thus, the claims pertaining
to Charles that were raised by the plaintiff on appeal are unreviewable by
this court.