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*********************************************** 
WATSON REAL ESTATE, LLC v. WOODLAND RIDGE,

LLC, ET AL.

(AC 40450)

Alvord, Moll and Bear, Js.

Syllabus

The plaintiff sought to recover damages from the defendants for, inter alia,

breach of contract. K, a member of the plaintiff, had purchased a lot in

a residential subdivision owned by the defendant W Co. In connection

therewith, the parties entered into an escrow agreement to cover the

costs of, inter alia, the paving of a common driveway to the subdivision.

Pursuant to the agreement, W Co. was required to complete the common

driveway to the point at which it became an individual driveway for

each lot, but was not to put the final layer of pavement on the common

driveway until construction of all four houses was complete, as indicated

by the issuance of a certificate of occupancy, or five years from the

date of the agreement, whichever occurred first. The agreement provided

a procedure by which the plaintiff could contract with a third party to

complete the work and seek reimbursement from the escrow funds if

W Co. failed to complete the work in a timely manner. After the construction of K’s home was completed, K contracted and paid a third party

to pave the portion of the common driveway that connected to K’s

individual driveway in order to obtain a certificate of occupancy, and

K also paid an unpaid bill incurred by an agent for W Co. related to an

easement map for the common driveway. Thereafter, W Co. contracted

to have a third party pave the final portion of the common driveway

but did not have a second final layer of pavement installed, which K

believed was required under the escrow agreement. The plaintiff never

submitted invoices to be reimbursed for the costs it expended in

extending the common driveway to the entrance of its property and

settling the invoice for the easement map, as required under the escrow

agreement, and it, thus, was never reimbursed for those expenditures.

The plaintiff subsequently brought this action, claiming, inter alia, that

W Co. breached the agreement by failing to install a second, final layer

of pavement over the common driveway. The trial court rendered judgment in favor of W Co. and determined that because there was no

meeting of the minds as to the specifics of the common driveway, the

plaintiff failed to sustain its burden in proving its breach of contract

claim. Thereafter, the court denied the plaintiff’s request for leave to

amend its revised complaint to add a new count of unjust enrichment,

and the plaintiff appealed to this court. Held:

1. The plaintiff could not prevail on its claim that the trial court improperly

failed to find that there was a meeting of the minds between the parties

as to the number of layers of pavement to be applied to the common

driveway, which was based on its claim that the trial court should have

drawn an adverse inference against W Co. for its failure to call a certain

witness to rebut certain parol evidence presented by the plaintiff; even

if the fact finder could properly draw an adverse inference from a party’s

failure to call an available witness, it is not required to do so, as the

drawing of an adverse inference is permissive rather than mandatory,

and, therefore, the trial court’s failure to draw such an inference in the

present case was not improper as a matter of law.

2. The plaintiff’s claim that the trial court improperly failed to find that W

Co. breached the escrow agreement by not reimbursing the plaintiff for

the costs it had incurred was not reviewable; although the plaintiff

correctly asserted that there was undisputed evidence presented at trial

establishing that the plaintiff had incurred costs to have the common

driveway extended and to settle the invoice for the easement map, the

plaintiff did not allege in the revised complaint or at trial that W Co.

was contractually required to reimburse the plaintiff for those costs,

and it, thus, could not now attempt to recover those sums on appeal

by refashioning its request for damages as an independent breach of

contract claim that was neither alleged in the complaint nor actually

litigated at trial.
3. The plaintiff could not prevail on its claim that the trial court improperly

denied its request for leave to amend its revised complaint to add a

claim of unjust enrichment related to W Co.’s failure to reimburse the

plaintiff for the costs of extending the common driveway and settling

the invoice for the easement map; although the record did not reflect

the court’s reasoning in denying the plaintiff’s request for leave to amend

its revised complaint, the court nevertheless acted within its discretion

in denying the request, as the plaintiff did not seek to amend the complaint until well after the trial had ended and almost four months after

the court had rendered its judgment.

Argued September 26, 2018—officially released January 22, 2019

Procedural History

Action to recover damages for, inter alia, alleged

breach of contract, brought to the Superior Court in

the judicial district of Hartford, where the defendant

Peter J. Alter filed a counterclaim and cross claim;

thereafter, the court, Elgo, J., granted the motion for

partial summary judgment filed by the named defendant

et al. and rendered judgment in part thereon; subsequently, the defendant Leonard Bourbeau was defaulted

for failure to plead; thereafter, the matter was tried to

the court, Dubay, J.; judgment in part for the named

defendant; subsequently, the court, Dubay, J., granted

the plaintiff’s motion to reargue, but denied the relief

requested therein, and sustained the named defendant’s

objection to the plaintiff’s request for leave to amend

the revised complaint, and the plaintiff appealed to this

court. Affirmed.

Jeffrey J. Mirman, for the appellant (plaintiff).

Frank A. Leone, for the appellee (named defendant).
Opinion

BEAR, J. This action arises out of an escrow

agreement entered into by the parties in conjunction

with the purchase of a lot in a residential subdivision

owned by the defendant Woodland Ridge, LLC.1 The

plaintiff, Watson Real Estate, LLC, appeals from the

judgment of the trial court, rendered following a bench

trial, in favor of the defendant on the plaintiff’s breach

of contract claim, as well as from the court’s subsequent

order denying the plaintiff’s request for leave to amend

its revised complaint.2 The plaintiff claims on appeal

that the court (1) improperly failed to find that there

was a meeting of the minds between the parties as to

the specifications of the common driveway that the

defendant was required, under the escrow agreement,

to install within the subdivision,3

(2) improperly failed

to find that the defendant breached the escrow

agreement by not reimbursing the plaintiff for costs it

incurred in relation to certain work that the defendant

was required under the agreement to complete, and (3)

abused its discretion in denying the plaintiff’s request

for leave to amend its revised complaint to conform to

the evidence adduced at trial. We affirm the judgment

of the trial court.

The following facts, which either were found by the

trial court or are undisputed in the record, and procedural history are relevant to this appeal. The defendant

was the owner and developer of a four lot residential

subdivision located on the westerly side of Woodland

Street in Glastonbury. The subdivision consists of two

front lots abutting Woodland Street (lots 1 and 2) and

two rear lots abutting the western boundaries of the

front lots (lots 3 and 4). A common driveway providing

ingress and egress to the subdivision runs west from

Woodland Street past the entrances to lots 1 and 2 and

terminates at the entrances to the rear lots.

In May, 2006, H. Kirk Watson, a member of the plaintiff,4 entered into an agreement with the defendant for

the purchase of lot 1. At the time of the execution of

the purchase agreement, the common driveway had

been paved only from Woodland Street to a point 118

feet before the entrance to lot 1; the remainder of the

driveway, including the portion passing along the

entrance to lot 1, remained unpaved. Consequently,

Watson, in his capacity as a member of the plaintiff,

entered into an agreement with the defendant and Attorney Peter J. Alter to create an escrow fund from a

portion of the defendant’s proceeds from the sale of lot

1 to assure the defendant’s completion of the common

driveway and certain other improvements and construction that remained to be completed (escrow

agreement). Under the escrow agreement, the defendant was to deposit with the escrow agent, Alter, the

sum of $51,000, which represented ‘‘a fair estimate of

the cost of completion of the [w]ork.’’
The particular items that remained to be completed

were set forth in a punch list that was attached to the

escrow agreement as exhibit A. Pursuant to exhibit A,

the defendant was required to ‘‘complete the common

driveway to the point at which it becomes an individual

driveway for each approved lot,’’ but the defendant was

not to ‘‘put the final course of bituminous pavement on

the common driveway until construction of all four

houses [was] complete (as indicated by the issuance

of a certificate of occupancy), or five (5) years from

the date of [the escrow agreement], whichever shall

first occur.’’ The stated rationale for this delay was to

‘‘avoid damage to the final pavement as may be caused

by heavy construction vehicles using the driveway during home construction.’’ As Watson later testified at

trial, at the time he executed the escrow agreement, he

believed that this language required the defendant to

initially extend the existing layer of pavement along the

remainder of the driveway and, then, at the appropriate

time, install a second layer of pavement over the entire

length of the driveway. Per exhibit A, the defendant

was also required to install a common electric power

service from which each lot could secure individual

service.

Because the parties recognized that the work needed

to be completed before the plaintiff could secure a

building permit and a certificate of occupancy, the

escrow agreement provided for a procedure by which

the plaintiff could contract with a third party to complete the work and seek reimbursement from Alter out

of the escrow funds if the defendant failed to complete

the work in a timely manner. Pursuant to this procedure,

the plaintiff was to give written notice to the defendant

that the plaintiff’s construction project required that

the work be completed within a reasonable time. If the

defendant subsequently failed to complete the work

within thirty days, the plaintiff was then authorized to

contract for the completion of the work, and, ‘‘upon

submission of an invoice or contract for performance

from a third party contractor, [Alter] shall advance the

funds from the escrow agreement to satisfy the invoice

or contract provisions.’’

Upon the closing of the transaction, Watson took title

to the property in the name of the plaintiff and began

developing the property. Between the time of closing

and the completion of the plaintiff’s house, no additional paving of the common driveway was done. Watson was told by the town, however, that in order to

obtain a certificate of occupancy, the paved portion of

the common driveway needed to be extended to the

entrance of the plaintiff’s property. Consequently, in

2008, Watson contracted with a third party to pave this

portion of the common driveway at a cost of $4914,

which Watson paid. The remainder of the driveway,

however, remained a dirt road. Watson also paid $530.70
to Megson & Heagle Civil Engineers & Land Surveyors,

LLC (Megson & Heagle), to satisfy an unpaid bill

incurred by Daniel Zak, an agent for the defendant, in

connection with the preparation of a Connecticut Light

and Power Company easement map (easement map)

for the common driveway.5

Between 2008 and 2011, no additional paving was

done on any portion of the common driveway. In September, 2011, Zak notified Alter that the defendant

intended to complete all of the remaining work required

under the escrow agreement. The defendant, thereafter,

engaged R & J Paving, LLC (R & J Paving), to pave

the final portion of the common driveway, from the

entrance of the plaintiff’s property to the entrances to

lots 3 and 4. The defendant did not, however, have a

second, final layer of pavement installed, which Watson

believed was required under the escrow agreement.

Upon receipt from Zak of the paving invoice, Alter

released $9000 to R & J Paving and divided the remainder of the escrow funds between Zak and Leonard Bourbeau, a member of the defendant. The plaintiff was

never reimbursed for the costs it expended in extending

the common driveway to the entrance to its property

and settling the invoice for the easement map. The

plaintiff, however, had not submitted invoices for these

expenditures to Alter as required under the escrow

agreement.

The plaintiff commenced the present action in March,

2013. In count two of the operative, revised complaint—

the only count at issue in this appeal6—the plaintiff

alleged, inter alia, that the defendant breached the

escrow agreement by improperly seeking the release

of escrow funds.7 The plaintiff further alleged that, as

a result, it sustained damages, including the costs to

complete the work that the defendant had failed to

perform.8 The matter was tried to the court on September 20 and 22, 2016.

At trial, the plaintiff appeared to abandon its claim

that the defendant improperly sought the release of the

escrow funds. The plaintiff, instead, proceeded under

a theory that the defendant breached the escrow

agreement by failing to install a second, final layer of

pavement over the common driveway.9 The principal

issue at trial was whether the defendant’s obligation

under the agreement to install a ‘‘final course of bituminous pavement’’ was intended to require the defendant

to apply two layers of pavement. On this issue the parties presented contradictory evidence.

In its case-in-chief, the plaintiff presented parol evidence that, according to the plaintiff, tended to show

that the parties had intended that the defendant be

required to install two layers of pavement. Specifically,

the plaintiff elicited the testimony of Watson, who testified that, prior to entering into the purchase agreement

for lot 1, he and Zak had discussed the issue of the
completion of the common driveway, and Zak had represented that there would be a ‘‘first paving and a second paving.’’ Watson testified that he understood Zak’s

comments to mean that there would first be an ‘‘initial

layer’’ of pavement sufficient for use during the construction of houses in the subdivision and that this

would eventually be followed by a ‘‘final layer’’ of pavement. According to Watson, the escrow agreement was

meant to memorialize this understanding.

As additional support for its position, the plaintiff

elicited the testimony of Kevin Burton, the owner of

one of the other lots in the subdivision, as well as the

testimony of Roger Tabshey, the co-owner of the paving

company with which the plaintiff had contracted to

extend the common driveway. Burton testified that he

purchased lot 2 from the defendant in late 2007 or early

2008 and that he likewise spoke with Zak prior to the

purchase. According to Burton, Zak had represented

that the entire common driveway would be completed

as part of the development and that the ‘‘finish point’’

would be the second coat of the driveway. Tabshey

testified that, in building a common driveway within a

subdivision, it is common practice to install an initial

layer of asphalt and then, after most of the home construction is complete, apply a second, final layer.

In its case-in-chief, the defendant adduced evidence

that, according to the defendant, tended to show that

the parties had intended for the defendant to install

only one layer of pavement. Specifically, the defendant

elicited testimony from Alter, who had represented the

defendant in connection with the sale of lot 1 and had

negotiated the terms of the escrow agreement with the

plaintiff’s attorney, Nicholas Paindiris. Alter testified

that he and Attorney Paindiris had arrived at the $51,000

figure, in part, from a written proposal from R & J

Paving to ‘‘extend [the] common driveway from [the]

existing pavement to [the] edge of [the driveway for]

[l]ot #4.’’ Alter further testified that he had faxed a copy

of this proposal to Attorney Paindiris before the escrow

agreement was executed. The defendant, therefore,

took the position in its posttrial brief that the parties

had anticipated only an extension of the common driveway and not a repaving of the entire driveway.

In addition to the contradictory evidence of the parties’ intent concerning the completion of the common

driveway, the parties also presented contradictory evidence as to which of the two versions of the escrow

agreement admitted at trial represented the complete

agreement. The two versions differ in several respects,

but the most important difference is that the defendant’s

version incorporates the R & J Paving proposal as an

attachment.10 Alter testified that the version of the

agreement submitted by the defendant represented the

full agreement. Watson, however, testified that the version of the agreement submitted by the plaintiff, which
contains no such attachment, was the version that he

had executed and represented the complete agreement.

In its memorandum of decision issued on January

10, 2017, the court found that the amount of the escrow

fund had been agreed on by the parties’ attorneys and

had been determined, in part, by the R & J Paving

proposal. The court did not, however, make a determination as to whether this proposal had, in fact, been

incorporated into the parties’ escrow agreement.

Rather, the court found that ‘‘[u]nless the R & J Paving

proposal was part of the [e]scrow [a]greement as

claimed by the [d]efendant, the [version of the] [e]scrow

[a]greement [that] the [p]laintiff claims was executed

by the parties does not contain any specifications

regarding the thickness of the paving or the number of

layers of bituminous pavement to be applied to the

[c]ommon [d]riveway to satisfy the [d]efendant’s obligations. The description of the work to be done by the

[d]efendant . . . can only be found in [exhibit A to the

agreement] which refers unfortunately and ambiguously to a ‘final course of bituminous pavement.’ ’’ Consequently, the court determined that it could not ‘‘find

that there was a meeting of the minds as to the specifics

of the common driveway’’ and concluded that the plaintiff had failed to sustain its burden of proving its breach

of contract claim. The court, therefore, rendered judgment in favor of the defendant on count two of the

plaintiff’s revised complaint.

On January 27, 2017, the plaintiff filed a motion to

reargue the court’s January 10, 2017 decision, contending that the court had failed to consider certain

evidence. Specifically, the plaintiff pointed to Watson

and Burton’s testimony regarding their conversations

with Zak, which, according to the plaintiff, was uncontroverted and established that the defendant had been

required under the escrow agreement to install a second

layer of pavement. The plaintiff requested that the court,

therefore, render judgment in its favor on all issues.

Alternatively, the plaintiff requested that the court at

least find ‘‘that the [d]efendant owes the [p]laintiff for

the costs [it] incurred . . . in installing a first course

. . . on the common driveway, and for the costs

incurred in connection with the [easement] map, and

enter judgment in favor of the [p]laintiff . . . .’’ The

court granted the plaintiff’s motion and heard additional

argument on May 1, 2017, but it ultimately denied the

relief requested.

At the May 1, 2017 hearing, the court agreed with the

plaintiff that the defendant had been required under

the escrow agreement to complete the common driveway and pay for the easement map and that the defendant had incurred costs with respect to these items.

Nevertheless, the court disagreed that the plaintiff was

entitled to recover these costs from the defendant as

part of its breach of contract claim, stating that the
plaintiff ‘‘was clearly entitled to that money on an extra

contractual basis, but I’m not allowed to award it when

it’s not [pleaded].’’ The court further noted, however,

that it had been ‘‘prepared to make a finding that there

was unjust enrichment to that extent.’’

Consequently, on that same date, the plaintiff filed a

request for leave to amend its revised complaint to add

a new count alleging unjust enrichment. The defendant

filed a written objection to this request the following

day, which the court sustained on May 15, 2017. This

appeal followed.

I

The plaintiff first claims that the court improperly

failed to find that there was a meeting of the minds

between the parties as to the number of layers of pavement to be applied to the common driveway. The plaintiff argues that the court ‘‘should have drawn an adverse

inference against the [defendant] for its failure to rebut

[the plaintiff’s parol] evidence . . . and should have

therefore determined that the parties’ [e]scrow

[a]greement required the [d]efendant to install a second,

final course over the entire length of the common driveway . . . .’’11 Specifically, the plaintiff points to the testimony of Watson and Burton regarding their

conversations with Zak and the testimony of Tabshey

regarding general practices in the paving industry. As

the plaintiff notes, none of this testimony was directly

controverted by the defendant at trial, despite Zak being

present throughout the trial. The plaintiff claims that

the court’s failure to draw an adverse inference in such

circumstances constituted an error of law. We disagree.

We begin by setting forth our standard of review.

Preliminarily, we note that the issue of whether the

parties’ minds had truly met, as required for the formation of an enforceable contract, is a question of fact

subject to the clearly erroneous standard of review. See

Murallo v. United Builders Supply Co., 182 Conn. App.

594, 600, 190 A.3d 969, cert. denied, 330 Conn. 913,

193 A.3d 49 (2018). In the present case, however, the

plaintiff does not argue that the underlying facts found

by the court fail to support its conclusion; nor does the

plaintiff assign as clear error any of the court’s factual

findings on this issue. Rather, the plaintiff limits its

claim on appeal to the narrow issue of whether the

court’s failure to draw an adverse inference was

improper as a matter of law. Consequently, our review

of this claim is plenary. See LM Ins. Corp. v. Connecticut Dismanteling, LLC, 172 Conn. App. 622, 643, 161

A.3d 562 (2017) (claim that court’s use of adverse inference constituted error of law was subject to plenary

review).

For decades, Connecticut recognized the ‘‘Secondino’’

12 or ‘‘missing witness’’ rule, which ‘‘sanctioned

a jury instruction that [t]he failure of a party to produce
as a witness one who [1] is available and [2] . . . naturally would be produced permits the inference that such

witness, if called, would have exposed facts unfavorable

to the party’s cause.’’ (Internal quotation marks omitted.) State v. Malave, 250 Conn. 722, 728–29, 737 A.2d

442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195,

145 L. Ed. 2d 1099 (2000). ‘‘That instruction . . . is

now, for various policy reasons, prohibited by statute in

civil cases; General Statutes § 52-216c; and by [Supreme

Court] precedent in criminal cases. . . . Despite the

statute and Malave, however, the substance of the ‘missing witness’ rule remains intact . . . . [A]lthough § 52-

216c and Malave restricted the means by which the

trier of fact is apprised of its ability to draw an adverse

inference, it is clear that it remains permitted to do so.’’

(Citation omitted; footnotes omitted.) In re Samantha

C., 268 Conn. 614, 637–38, 847 A.2d 883 (2004). This

inference, however, ‘‘is a permissive rather than a mandatory one—that is, one which the [trier of fact] at all

times is free to accept or to reject . . . .’’ State v. Taylor, 239 Conn. 481, 492, 687 A.2d 489 (1996), cert. denied,

521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).

In other words, even if the fact finder may properly

draw an adverse inference from a party’s failure to call

an available witness, it is certainly not required to do

so. Consequently, we cannot conclude that the trial

court’s failure to draw such inference in the present

case was improper as a matter of law.13 The plaintiff

does not otherwise challenge the court’s findings and

conclusions with respect to this issue.

II

The plaintiff next claims that the trial court improperly failed to find that the defendant breached the

escrow agreement by not reimbursing the plaintiff for

the costs it had incurred. As the plaintiff correctly

asserts, there was undisputed evidence presented at

trial establishing that the plaintiff had incurred costs

to have the common driveway extended and to settle

the invoice for the easement map. The plaintiff appears

to argue that, because these tasks were the responsibility of the defendant under the agreement, the defendant

was, therefore, contractually required to reimburse the

plaintiff for the costs it incurred in performing these

tasks itself. Because this claim was not alleged in the

revised complaint nor asserted at trial, we decline to

review it.

‘‘[T]he principle that a plaintiff may rely only upon

what [it] has alleged is basic. . . . It is fundamental in

our law that the right of a plaintiff to recover is limited

to the allegations of [its] complaint. . . . What is in

issue is determined by the pleadings and these must be

in writing. . . . Once the pleadings have been filed, the

evidence proffered must be relevant to the issues raised

therein.’’ (Internal quotation marks omitted.) Foncello

v. Amorossi, 284 Conn. 225, 233, 931 A.2d 924 (2007).
In other words, ‘‘[a] plaintiff may not allege one cause of

action and recover upon another.’’ (Internal quotation

marks omitted.) Alaimo v. Alaimo, 179 Conn. App. 769,

771, 181 A.3d 149 (2018). Indeed, ‘‘[a] judgment upon

an issue not pleaded would not merely be erroneous,

but it would be void.’’ (Internal quotation marks omitted.) Foncello v. Amorossi, supra, 233. Consequently,

our Supreme Court has stated that appellate courts

have ‘‘no authority to consider a claim on appeal that

was not alleged in the pleadings.’’ Id., 235; see also

Practice Book § 60-5 (‘‘[an appellate] court shall not be

bound to consider a claim unless it was distinctly raised

at the trial or arose subsequent to the trial’’); Saye v.

Howe, 92 Conn. App. 638, 642, 886 A.2d 1239 (2005)

(‘‘claims not presented to or addressed by the trial court

are not properly before us and, thus, not ordinarily

considered by this court’’).

In the revised complaint in the present case, the plaintiff alleged only that the defendant breached the escrow

agreement by improperly seeking the release of escrow

funds. See footnote 7 of this opinion. At trial, the plaintiff additionally claimed that the defendant breached

the agreement by failing to install a second, final layer

of pavement over the common driveway. Although this

additional claim was not pleaded in the complaint, it

was actually litigated at trial without objection from

the defendant and was, therefore, properly before the

court. See footnote 9 of this opinion. Conversely, at no

point during the trial did the plaintiff claim that the

defendant breached the escrow agreement by failing

to reimburse the plaintiff for the costs it incurred in

extending the common driveway and settling the

invoice for the easement map.14 Nor did the plaintiff

reference such a claim in its posttrial brief. In its posttrial brief, the plaintiff contended only that it was entitled to recover these sums as damages for the

defendant’s failure to install a second layer of pavement.

Because the trial court determined that the plaintiff had

failed to meet its burden of proving this claim, it did

not award the plaintiff any damages. The plaintiff cannot now attempt to recover these sums on appeal by

refashioning its request for damages as an independent

breach of contract claim that was neither alleged in the

complaint nor actually litigated at trial. We, therefore,

decline to review this claim. See Foncello v. Amorossi,

supra, 284 Conn. 235 (declining to review plaintiff’s

claims alleging invasion of privacy for giving unreasonable publicity to plaintiff’s private life where plaintiff

had failed to allege invasion of privacy on that ground

in his amended complaint).

III

Finally, the plaintiff claims that the trial court erred

in denying its request for leave to amend its revised

complaint to add a claim of unjust enrichment based

on the defendant’s failure to reimburse the plaintiff
for the costs of extending the common driveway and

settling the invoice for the easement map. The plaintiff

argues that it was an abuse of discretion for the court

to deny the plaintiff’s request where the court had previously recognized, at the hearing on the plaintiff’s

motion to reargue, that the plaintiff ‘‘was clearly entitled

to this money on an extra contractual basis.’’ We

disagree.

‘‘We review a trial court’s decision to deny a request to

amend a complaint for an abuse of discretion.’’ Motzer

v. Haberli, 300 Conn. 733, 747, 15 A.3d 1084 (2011).

‘‘The law is well-settled that belated amendments to

the pleadings rest in the sound discretion of the trial

court. . . . [Although] our courts have been liberal in

permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors

to be considered in passing on a motion to amend are

the length of the delay, fairness to the opposing parties

and the negligence, if any, of the party offering the

amendment. . . . The motion to amend is addressed

to the trial court’s discretion which may be exercised

to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. . . .

On rare occasions, this court has found an abuse of

discretion by the trial court in determining whether an

amendment should be permitted . . . but we have

never found an abuse of discretion in denying an

amendment on the eve of trial, long after the conclusion

of pretrial proceedings.’’ (Emphasis added; internal

quotation marks omitted.) Beckenstein EnterprisesPrestige Park, LLC v. Keller, 115 Conn. App. 680, 691,

974 A.2d 764, cert. denied, 293 Conn. 916, 979 A.2d

488 (2009).

Turning to the present case, we first note that the

record does not reflect the court’s reasoning in denying

the plaintiff’s request for leave to amend its revised

complaint. See Bayview Loan Servicing, LLC v. Park

City Sports, LLC, 180 Conn. App. 765, 781, 184 A.3d

1277 (‘‘[i]t is well established that the appellant bears

the burden of providing an appellate court with an adequate record for review’’ [internal quotation marks omitted]), cert. denied, 330 Conn. 901, 192 A.3d 426 (2018).

Nevertheless, we have no difficulty in concluding that

the court acted within its discretion in denying the

plaintiff’s request, as the plaintiff did not seek to amend

the complaint until May 1, 2017—well after the trial

had ended and almost four months after the court had

rendered its judgment. See Motzer v. Haberli, supra,

300 Conn. 747 (‘‘[b]ecause the plaintiff made the request

[for leave to amend his complaint] after the start of the

trial, we conclude that the trial court acted well within

its discretion in denying the plaintiff’s request’’). We,

therefore, reject this claim.

The judgment is affirmed.

In this opinion the other judges concurred.
1 Daniel Zak, Peter J. Alter, and Leonard Bourbeau were also named as

defendants in this action, but they are not participating in this appeal. We,

therefore, refer to Woodland Ridge, LLC, as the defendant.

2 The plaintiff had also appealed from the trial court’s rendition of summary

judgment in favor of Zak on all counts of the plaintiff’s operative, revised

complaint directed against him, but this court dismissed that portion of the

appeal as untimely.

3 The plaintiff also claims that the court improperly failed to find that the

defendant breached the escrow agreement by failing to complete the common driveway in accordance with the specifications called for in the

agreement. Because we conclude that the court did not err in failing to find

a meeting of the minds as to the specifics of the common driveway, we

necessarily reject this claim. See Tedesco v. Agolli, 182 Conn. App. 291, 307,

189 A.3d 672 (‘‘[i]n order for an enforceable contract to exist, the court

must find that the parties’ minds had truly met’’ [internal quotation marks

omitted]), cert. denied, 330 Conn. 905, 192 A.3d 427 (2018).

4 Watson testified at trial that the plaintiff was formed in order to purchase

the subject property, but there is nothing in the purchase agreement to

indicate that he was contracting in his capacity as a member of the plaintiff.

5 Megson & Heagle had originally invoiced Zak for $1752, but Watson

reached an agreement with Megson & Heagle, whereby he and Kevin Burton,

the owner of lot 2, would each pay one third of the billed amount, and

Megson & Heagle would write off the remaining third.

6 The plaintiff also brought a claim against the defendant for violation of

the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-

110a et seq. The trial court, Elgo, J., rendered summary judgment in favor

of the defendant on this claim. The plaintiff has not appealed from this

judgment.

7 More specifically, the plaintiff alleged that the defendant breached the

escrow agreement by ‘‘seeking to cause [Alter] to release the funds from

escrow while a dispute [was] pending, as set forth in [p]aragraph 12 [of

count 2 of the revised complaint], and regarding the [d]efendant’s failure

to complete the remaining construction and improvements, and before the

completion of the work . . . .’’ (Emphasis added.) When considered in

isolation, this allegation is arguably ambiguous as to whether the emphasized

language states a second specification of breach of contract. Indeed, in its

memorandum of decision, the trial court construed this claim as alleging

two breaches of the escrow agreement: (1) by improperly seeking the release

of the escrow funds; and (2) by failing to complete the common driveway

according to the parameters set forth in the agreement. A review of the

relevant procedural history, however, makes clear that the allegation, as

pleaded, contains only one specification of breach of contract.

Preliminarily, we note that ‘‘[t]he interpretation of pleadings presents a

question of law over which our review is plenary.’’ Landry v. Spitz, 102

Conn. App. 34, 41, 925 A.2d 334 (2007). In its original complaint, the plaintiff

alleged: ‘‘In seeking to cause [Alter] to release the funds from escrow while

a dispute is pending, and before the completion of the work [the defendant]

breached the escrow agreement.’’ It is clear from this language that the

plaintiff’s original claim asserted only one breach of the agreement. On May

28, 2013, the defendant requested that the plaintiff revise this allegation by

specifying ‘‘the particular dispute that was allegedly pending.’’ In response to

this request, the plaintiff added the phrase, ‘‘and regarding the [d]efendant’s

failure to complete the remaining construction and improvements.’’ It is,

therefore, clear that this additional language serves only to further qualify

the nature of the ‘‘dispute’’ referred to in the original complaint and was

not meant to add an additional specification of breach of contract.

8 The plaintiff also alleged in count two that the defendant breached the

purchase and sale agreement by failing to pave the common driveway in

accordance with the specifications called for in that agreement. The court

rendered judgment in the defendant’s favor on this claim, and the plaintiff

does not challenge it on appeal.

9 Although this claim was not pleaded in the revised complaint; see footnote 7 of this opinion; it was actually litigated at trial without objection

from the defendant. It was, therefore, proper for the court to adjudicate

this unpleaded claim. See Landry v. Spitz, supra, 102 Conn. App. 43–44 (‘‘in

the context of a postjudgment appeal, if a review of the record demonstrates

that an unpleaded cause of action actually was litigated at trial without

objection such that the opposing party cannot claim surprise or prejudice,

the judgment will not be disturbed on the basis of a pleading irregularity’’).

10 The two versions of the escrow agreement also differ in that the date of
execution on the first page of the plaintiff’s version is incomplete. Moreover,

whereas paragraph 11 of the plaintiff’s version identifies the buyer as ‘‘Watson Real Estate, LLC,’’ the defendant’s version identifies the buyer as ‘‘Dr.

H. Kirk Watson, Watson Real Estate, LLC.’’

11 The plaintiff also argues, in a conclusory fashion, that the court improperly failed to give any consideration to the plaintiff’s parol evidence. We

conclude that the plaintiff has not adequately briefed this argument. The

plaintiff has not cited any authority nor pointed to anything in the record

to support this contention but, rather, relies solely on the bare assertion in

its brief that the court ‘‘fail[ed] to consider parol evidence.’’ ‘‘It is well

established that [w]e are not obligated to consider issues that are not adequately briefed. . . . Whe[n] an issue is merely mentioned, but not briefed

beyond a bare assertion of the claim, it is deemed to have been waived.

. . . In addition, mere conclusory assertions regarding a claim, with no

mention of relevant authority and minimal or no citations from the record,

will not suffice.’’ (Internal quotation marks omitted.) Pacific Ins. Co., Ltd.

v. Champion Steel, LLC, 323 Conn. 254, 272 n.8, 146 A.3d 975 (2016). Consequently, we decline to address this argument.

It is difficult, in any event, for an appellant successfully to challenge a

fact finder’s consideration and weighing of evidence. ‘‘[T]he trier [of fact]

is bound to consider all the evidence which has been admitted, as far as

admissible, for all the purposes for which it was offered and claimed. . . .

[W]e are not justified in finding error upon pure assumptions as to what

the court may have done. . . . We cannot assume that the court’s conclusions were reached without due weight having been given to the evidence

presented and the facts found. . . . Unless the contrary appears, this court

will assume that the court acted properly. . . . [Thus, if] . . . [a] statement

[by the court may] suggest that the court did not consider [certain] testimony,

we . . . are entitled to presume that the trial court acted properly and

considered all the evidence.’’ (Citations omitted; internal quotation marks

omitted.) Moye v. Commissioner of Correction, 168 Conn. App. 207, 229–30,

145 A.3d 362 (2016), cert. denied, 324 Conn. 905, 153 A.3d 653 (2017).

12 See Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598

(1960), overruled in part by State v. Malave, 250 Conn. 722, 737 A.2d 442

(1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000).

13 Moreover, under the particular circumstances in the present case, it

would not have been reasonable for the court to draw an adverse inference

from the defendant’s failure to offer Zak as a witness because Zak was

equally available to both parties. Our Supreme Court has held on multiple

occasions that ‘‘[w]hen a witness is equally available to both parties no

inference unfavorable to either may be drawn.’’ (Internal quotation marks

omitted.) State v. Kish, 186 Conn. 757, 771, 443 A.2d 1274 (1982) (trial court

properly refused to instruct jury that it might draw adverse inference from

state’s failure to call victim’s husband as witness where victim’s husband

was equally available to both parties and was, in fact, in courtroom); State

v. Rosa, 170 Conn. 417, 431, 365 A.2d 1135 (same), cert. denied, 429 U.S.

845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976). Although the Supreme Court

subsequently stated, in dictum, that ‘‘as long as the Secondino adverse

inference instruction remains viable in Connecticut . . . the mere fact that

a witness is equally available to both parties does not preclude a trial court

from delivering a Secondino charge’’; (citations omitted) Hines v. Saint

Vincent’s Medical Center, 232 Conn. 632, 637 n.8, 657 A.2d 578 (1995); this

dictum is no longer persuasive in light of the court’s subsequent abandonment of the Secondino rule in State v. Malave, supra, 250 Conn. 728. Additionally, Justice Berdon, the author of the majority opinion in Hines, explicitly

disavowed this dictum the following year in his dissent in State v. Taylor,

239 Conn. 481, 509 n.4, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117

S. Ct. 2515, 138 L. Ed. 2d 1017 (1997) (Berdon, J., dissenting), wherein he

opined that, ‘‘[i]n cases in which a witness is equally available to both parties,

there is no logical basis for allowing an inference to be drawn from one

party’s failure to call that witness when the other party could have just as

easily called that same witness. This is especially so because we have

abandoned the voucher rule—that is, the common law rule that one could

not impeach the credibility of his own witness.’’ See also State v. Malave,

supra, 733 (‘‘In view of [the abandonment of the voucher rule] . . . [i]f a

witness is available, he is equally available to both sides. If a witness has

information favorable to one side, why shouldn’t that side call that witness

and bring out that information instead of relying on a negative inference

based on ignorance that such a witness might have some unspecified information that might be unfavorable to the other party?’’ [Citations omitted;
footnote omitted; internal quotation marks omitted.]).

In the present case, Zak was not only available for both parties to call

as a witness, but he was in fact called as a witness and examined by the

plaintiff. The plaintiff, however, did not seek to elicit any testimony from

Zak regarding his conversations with Watson and Burton. In such circumstances, it would have been unreasonable for the court to draw an adverse

inference against the defendant for failing to call Zak as a witness.

14 Indeed, as the plaintiff declares in its reply brief on appeal, ‘‘the entire

theory of the case . . . was that [the defendant] failed to apply a second

coat of pavement over the entire length of the common driveway.’’