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JAY M. TYLER v. THOMAS J. TYLER ET AL.

(AC 37297)

Beach, Sheldon and Harper, Js.

Argued October 21, 2015—officially released March 8, 2016

(Appeal from Superior Court, judicial district of

Fairfield, Radcliffe, J. [order after remand].)

Jay M. Tyler, self-represented, the appellant

(plaintiff).

Bruce D. Tyler, self-represented, the appellant

(defendant and cross complaint plaintiff).

Kathleen Eldergill, for the appellee (defendant Richard Tatoian).
Opinion

SHELDON, J. This case arises out of a dispute

between two brothers, plaintiffs Jay Tyler and Bruce

Tyler,1 and the attorney who served as trustee of their

deceased mother’s trust, defendant Richard Tatoian,2

concerning Tatoian’s alleged mismanagement of the

trust and breaches of duties he allegedly owed, as

trustee, to the plaintiffs, as trust beneficiaries. The case

is back before us following our dismissal, for lack of

a final judgment, of the plaintiffs’ initial appeal from

the trial court’s rendering of partial summary judgment

in favor of Tatoian on some but not all of the plaintiffs’

claims against him. See Tyler v. Tyler, 151 Conn. App.

98, 93 A.3d 1179 (2014). After the plaintiffs filed their

initial appeal, but before we dismissed that appeal, a

jury trial was held in the Bridgeport Superior Court on

the plaintiffs’ claims against Tatoian on which summary

judgment had not been rendered. The result of that trial

was a general verdict in favor of Tatoian, which was

returned by the jury on October 24, 2013. No appeal or

amended appeal was ever taken from the judgment

rendered in favor of Tatoian upon the jury’s verdict.

After the dismissal of the plaintiffs’ initial appeal,

when this case was remanded to the trial court for

further proceedings on Jay Tyler’s reinstated claims

against other defendants, the plaintiffs argued that a

trial was also necessary on certain other claims against

Tatoian that had not been resolved, either by summary

judgment or by the jury’s general verdict. Such unresolved claims, the plaintiffs argued, were:(1) Jay Tyler’s

claim that Tatoian had negligently failed to provide him

with accountings of his mother’s trust while his mother

was still alive; and (2) both plaintiffs’related claims that

Tatoian’s failure to furnish them with trust accountings

during their mother’s lifetime had prevented them from

exercising their right to seek an order from the Probate

Court under General Statutes § 45a-204 compelling

Tatoian, as trustee, not to keep the trust’s assets

invested in the same securities received by him.

Tatoian disagreed that any of the plaintiffs’ claims

against him were still pending in the trial court after

their initial appeal was dismissed. He argued, to the

contrary, that all such claims had either been tried to

verdict before the jury or abandoned by the plaintiffs,

either by not raising and requesting instructions on

them in the trial court or by not appealing from the

judgment rendered upon the jury’s verdict on a claim

of error arising from the trial court’s failure or refusal

to give such instructions as requested. The trial court,

Radcliffe, J., agreed with Tatoian that none of the plaintiffs’ claims against him were still pending in the trial

court after the dismissal of their initial appeal. It ruled,

more specifically, that ‘‘all claims as to Richard Tatoian

have been resolved based on the jury verdict rendered

[October 24, 2013] and the granting of partial sum-
mary judgment.’’

In this appeal, the plaintiffs claim error in the trial

court’s determination that none of their claims against

Tatoian were still pending in the trial court after our

dismissal of their initial appeal. Here, as before the trial

court, Tatoian disputes the plaintiffs’ claim.3 We agree

with Tatoian, and thus affirm the judgment of the

trial court.

We set forth the following relevant facts in our decision dismissing the plaintiffs’ initial appeal with respect

to Tatoian. ‘‘Ruth Tyler [executed an irrevocable trust]

on October 8, 2004, for the benefit of her sons, John

Tyler, Bruce Tyler, Thomas Tyler, Russell Tyler and Jay

Tyler. The trust named Tatoian as trustee and provided

for the termination of the trust upon Ruth Tyler’s death,

with the assets of the trust remaining after payment of

various expenses to be distributed to her five sons in

substantially equal shares. The trust specified, by reference to Ruth Tyler’s will, that the shares allotted to the

plaintiffs be reduced in accordance with the debt owed

by each to Ruth Tyler. On April 1, 2010, Ruth Tyler died.

Due to the value of the trust’s assets and the amount

of debt owed, Jay Tyler was not entitled to receive any

money from the trust.’’4 Tyler v. Tyler, supra, 151 Conn.

App. 100–101.

Litigation over Ruth Tyler’s estate began when Jay

Tyler filed a complaint on January 28, 2011, in which

he made several claims against all of his brothers and

Tatoian. After several rounds of pleading, the operative

pleadings in the case were Jay Tyler’s third amended

complaint dated June 20, 2012 (complaint), and Bruce

Tyler’s fourth amended cross complaint against Tatoian

dated April 4, 2012 (cross complaint). The following

claims were set forth in those pleadings. In the first

count of the complaint, Jay Tyler sought to modify the

trust, claiming that Thomas Tyler had exerted undue

influence upon Ruth Tyler in relation to the trust and

had conspired together with John Tyler, Russell Tyler

and Tatoian to keep Ruth Tyler’s trust and will a secret

from him. In the second count of the complaint, Jay

Tyler also sought to modify the trust based upon allegations that the defendants’ actions against him had

wrongfully deprived him of his share of the trust estate.

In the third count of the complaint, Jay Tyler alleged

negligence against Tatoian for failing to furnish him

with accountings of the trust while his mother was still

alive, and thereby preventing him from discovering the

undue influence that had been exerted upon his mother

in relation to the trust. In the fourth count of the complaint and the first count of the cross complaint, both

plaintiffs alleged that Tatoian had failed to act as a

prudent investor of the trust’s assets, in violation of

General Statutes § 45a-541b.5

In the fifth count of the

complaint and second count of the cross complaint,

both plaintiffs alleged that Tatoian had failed to diver-
sify the trust’s assets, in violation of General Statutes

§ 45a-541c.6

In the sixth count of the complaint and

the third count of the cross complaint, both plaintiffs

alleged that Tatoian’s failure to furnish them with trust

accountings during their mother’s lifetime had prevented them from exercising theirright to seek an order

from the Probate Court under § 45a-2047 compelling

Tatoian, as trustee, not to keep the trust’s assets

invested in the same securities received by him. Finally,

in the seventh count of the complaint and the fourth

count of the cross complaint, both plaintiffs alleged

that Tatoian had breached his duty to the trust, and

to them as trust beneficiaries, by failing to hold the

investment advisor liable for losses allegedly resulting

from the advisor’s advice not to diversify the trust’s

assets.

On April 15, 2013, the defendants filed a joint motion

for summary judgment as to all counts of the complaint

and the cross complaint. In a memorandum of decision

dated August 22, 2013, the court, Sommer, J., initially

granted summary judgment in favor of the defendants

on all counts except for count seven of the complaint

and count four of the cross complaint, in which the

plaintiffs sought damages from Tatoian for failing to

hold the investment advisor liable for losses allegedly

resulting from the advisor’s advice not to diversify the

trust’s assets.

After the trial court issued its summary judgment

decision on August 22, 2013, both plaintiffs and Tatoian

filed separate motions to reargue. In a memorandum

of decision issued on September 19, 2013, the court

denied all three motions to reargue in all respects but

one,reversing its decision only as to its prior determination that Tatoian, as trustee, owed no duty to the plaintiffs, as remainder beneficiaries of their mother’s trust,

to provide them with accountings of the trust before

their mother’s death. Although that determination had

been the basis upon which the court initially granted

summary judgment in favor of Tatoian on counts three

and six of the complaint and count three of the cross

complaint (accounting claims),8

the court reversed its

decision only on the ‘‘issue’’ of Tatoian’s alleged duty

to provide trust accountings to the plaintiffs, without

expressly referencing or reversing its summary judgment rulings on those counts. The court explained its

reargumentruling as follows: ‘‘The court concludes that

based on the evidence presented, (1) the subject trust

provision is unclear,9

(2) there is no statement in the

law that remainder beneficiaries do not have a right to

annual accountings from the trustee, and (3) remainder

beneficiaries do have a right to petition the Probate

Court for accountings. These findings raise issues of

fact which require further evidence and are therefore

appropriate for submission to the trier of fact.

‘‘Based on the above analysis, the court therefore
vacates its order granting summary judgment as to the

sole issue of the trustee’s obligation to provide trust

accounting to the remainder beneficiaries. Although the

court is aware of the rule that a motion to reargue

may not be used as a second bite of the apple, the

circumstances of this case merit the court’s consideration. . . .

‘‘For the reasons stated above, the court denies the

motions to reargue, except as to the sole issue of

whether the trustee was obliged under § 8 (h) of the

trust to provide annual accounting to the remainderman

beneficiaries of the trust. Having considered the written

arguments of the parties and determining that there is

nothing further which requires submission to the court,

the court reverses its prior decision granting summary

judgment on this sole issue.’’ (Footnote added.) None

of the parties moved for clarification or articulation by

the trial court with respect to the court’s decision on

the motions to reargue.

On October 3, 2013, the plaintiffs timely appealed to

this court, within twenty days of the trial court’s decision on the motions to reargue, from its previous decision on the defendants’ motion for summary judgment.

Since the plaintiffs initially claimed no error as to the

court’s decision on their motion to reargue, the only

issues listed in their preliminary statement of issues

concerned the court’s initial summary judgment

decision.10

Before the plaintiffs filed their opening brief in the

initial appeal, their remaining claims against Tatoian

on which summary judgment had not been rendered

were brought to trial. On October 8, 2013, before the

start of trial, Tatoian filed a pretrial memorandum in

which he asserted that the only claims then pending

against him in the trial court were those in which the

plaintiffs were seeking damages for his failure to hold

the investment advisor liable for losses allegedly

resulting from following the advisor’s advice not to

diversify the trust’s assets, as pleaded in the seventh

count of the complaint and the fourth count of the

cross complaint. Although the record before us does not

reveal if the plaintiffs ever responded to the defendant’s

assertion by claiming thatthey had other claims pending

against Tatoian in other counts of their complaint and/

or cross complaint, it does reveal that on the day after

Tatoian filed his pretrial memorandum, the plaintiffs

filed a preliminary requestto charge in which they asked

that the jury be instructed to make a finding on the one

issue as to which the court had reversed its decision on

reargument with respectto its initial summary judgment

decision, to wit: whether the defendant was required

to give them accountings of their mother’s trust prior

to her death. Because the plaintiffs have not provided

us with a transcript of the jury trial, we cannot determine, on this record, whether or for what stated pur-
pose, if any, the requested instruction or any other

instruction on that issue was ever given. On October

24, 2013, the jury ultimately returned a general verdict

in favor of Tatoian,11 after which no new appeal was

evertaken and no amended appeal under Practice Book

§ 61-912 was ever filed.

On November 18, 2013, several weeks after the jury

returned its general verdict in favor of Tatoian, the

plaintiffs filed the opening brief in their initial appeal.

In that brief, the plaintiffs argued for the first time,

without previously amending their appeal form or their

preliminary statement of issues,13 that the trial court

erred in deciding their motions to reargue. They

claimed, in particular, that ‘‘the trial court’s reversal of

its decision with regard to the rights of trust beneficiaries to receive accountings from the trustee require[d]

a reversal of its decision with regard to the plaintiff

Jay M. Tyler’s sixth count and cross plaintiff Bruce D.

Tyler’s third count based on their rights to accountings

from the trustee . . . .’’ The plaintiffs thereby argued

that the trial court erred by not expressly ruling, in its

decision on their motions to reargue, that they were

entitled not only to a jury determination on the issue

of whether Tatoian had a duty to provide them with

trust accountings before their mother died, but to a full

trial on all claims presented in the complaint and the

cross complaint that were based materially upon Tatoian’s alleged breach of that duty to provide trust

accountings.

In his answering brief, Tatoian did not respond

directly to the plaintiffs’ argument that the trial court’s

reversal of its initial summary judgment ruling on the

issue of his alleged duty to provide them with trust

accountings during their mother’s lifetime entitled them

to a full trial on all claims that were based materially

upon his alleged breach of that duty. Instead, addressing

only the merits of those related claims for damages, he

argued that ‘‘the trial court’s ruling that the beneficiaries

had a right to receive accountings during the settlor’s

lifetime does not affect its ruling on the plaintiffs’ claims

regarding the right to seek a court order.’’14

Oral argument on the plaintiffs’ initial appeal was

held on March 5, 2014. During argument, we raised sua

sponte the issue of whether there was a final judgment

as to Tatoian. The following day, we invited the parties

to submit supplemental briefs on that issue, which we

described as ‘‘whether the ruling from which the plaintiffs appeal constitutes a final judgmentforthe purposes

of determining the subject matter jurisdiction of this

court.’’15 Tyler v. Tyler, supra, 151 Conn. App. 102, 103

n.6. On June 17, 2014, after the plaintiffs had filed their

supplemental brief,16 we issued our final decision on

the plaintiffs’ initial appeal.

In that decision, we first dismissed the appeal as to

Tatoian for lack of subject matter jurisdiction because
the challenged summary judgment ruling in his favor

did not finally dispose of all of the plaintiffs’ claims

against him, and thus was not a final judgment. Id.,

103–104. In that same decision, we also found error in

the trial court’s rendering of summary judgment in favor

of the defendants on Jay Tyler’s claim seeking to modify

the trust on the ground of undue influence, concluding

that there was a genuine issue of material fact as to

whether Thomas Tyler had exerted undue influence

upon his motherin relation to the trust. Id., 108. Accordingly, we set aside the summary judgment rendered in

favor of the defendants on that claim and remanded

this case to the trial court ‘‘for further proceedings

consistent with this opinion.’’17 Id., 109.

After we issued our decision in Tyler, the parties

returned to the trial court for a status conference on

October 1, 2014. At that conference, in a lengthy colloquy with the trial court, Radcliffe, J., the plaintiffs

argued that further proceedings were necessary both

on Jay Tyler’s remanded claim to modify the trust on

the ground of undue influence and on both plaintiffs’

claims for damages against Tatoian on the basis of his

failure to provide them with trust accountings during

their mother’s lifetime. The latter claims, they contended, had not been tried when their other claims as

to which summary judgment had not been rendered

were brought to trial. Such claims, they argued, could

not have been tried at that time because their initial

appeal from the trial court’s summary judgment ruling

on those claims, as revised by its later ruling on their

motion to reargue, was still pending before this court.

The plaintiffs finally argued that the continuing pendency in the trial court of at least some of their claims

against Tatoian had been confirmed by this court’s dismissal of their initial appeal for lack of a final judgment,

which assertedly was based upon our conclusion that

one or more unresolved claims were still pending in

the trial court at the time of dismissal, long after the

conclusion of the intervening jury trial.

Tatoian did not disagree with the plaintiffs that their

claims for damages that were based upon his failure

to provide them with trust accountings during their

mother’s lifetime had not been tried to verdict in the

October, 2013 jury trial. He argued, however, that the

plaintiffs bore full responsibility for that result because

they had abandoned those claims. Tatoian claimed,

more particularly, that the trial court’s decision on the

motion to reargue had left open a single factual issue—

whether, as trustee of the plaintiffs’ mother’s trust, he

owed a duty to the plaintiffs, as remainder beneficiaries

of the trust, to provide them with trust accountings

while their mother was still alive. That issue, he noted,

was pleaded not only in the plaintiffs’ accounting

claims, upon which the jury was not instructed, but in

their investment advisor claims, upon which it undeniably was instructed. If, then, he argued, the plaintiffs
believed at the time of trial, as they now contend, that

the trial court’s reargument ruling should have resulted

in the vacation of its initial decision granting summary

judgment to Tatoian on all counts of their complaint

and cross complaint that were based upon his alleged

breach of that duty, it was incumbent upon them to

ask that the jury be instructed on those claims at trial

and, if dissatisfied with the court’s instructions as given,

to claim error in those instructions in a subsequent

appeal to this court. If the plaintiffs failed to follow up

on their preliminary request to charge, either by not

insisting that the jury be instructed in accordance with

it or by failing to appeal from the trial court’s failure or

refusal to so instruct as requested therein, the plaintiffs

must be found to have abandoned those claims at or

shortly after trial. Here, then, he concluded, since the

plaintiffs did not appeal from the judgment rendered

upon the jury’s verdict against them, they must be found

to have abandoned their accountings claims. Therefore,

he concluded, no such claims were still pending against

him in the trial court following our dismissal of the

plaintiffs’ initial appeal.

The trial court agreed with Tatoian that none of the

plaintiffs’ claims against him were still pending in the

trial court when this case was remanded for further

proceedings after our dismissal of the initial appeal. In

reaching that conclusion, the courtreasoned as follows.

First, because the trial court never ordered bifurcation

of the trial, all of the plaintiffs’ pending claims against

Tatoian18 were presumptively contested in that trial.

Second, because the jury returned a general verdict for

Tatoian, all such pending claims were presumptively

decided in his favor at trial. Since the plaintiffs provided

no transcript of the jury trial to the trial court to support

their contention that the accountings claims had not in

fact been tried to verdict before the jury, the trial court

concluded that they had failed to overcome the presumption arising from the general verdict that all of

the plaintiffs’ remaining claims had been resolved in

Tatoian’s favor by that verdict. The court therefore concluded that the plaintiffs had no claims pending against

Tatoian in the trial court after our dismissal of their

initial appeal.

Finally, addressing the plaintiffs’ claim that this

court’s dismissal of their initial appeal was based upon

our determination that the plaintiffs still had claims

pending against Tatoian in the trial court at the time

of dismissal, the court rejected that claim summarily.

Under our law, the court concluded, the time for

determining if a judgment is a final judgment for purposes of appeal is when the appeal is filed, not the later

time when it is finally dismissed. The trial court issued

an order declaring that ‘‘all claims as to Richard Tatoian

have been resolved based on the jury verdict rendered

[October 24, 2013] and the granting of partial summary

judgment.’’19 The plaintiffs now appeal from that order.
In challenging the trial court’s determination that all

of their claims against Tatoian were finally resolved by

summary judgment or by the jury’s verdict at trial, the

plaintiffs insist, as they did before the trial court: (1)

that their claims for damages that were based upon

Tatoian’s failure to provide them with trust accountings

during their mother’s lifetime were not tried to verdict

before the jury,20 and thus were still pending in the trial

court, unresolved and awaiting trial, when their initial

appeal was dismissed; and (2) that we confirmed this

conclusion by dismissing their initial appeal for lack of

a final judgment because the basis for our dismissal

was the continuing pendency in the trial court, long

after the end of trial, of at least one of their claims

against Tatoian. Tatoian rejects both of the plaintiffs’

arguments, contending here, as he did before the trial

court, that on this record, all of the plaintiffs’ claims

against him upon which summary judgment was not

previously rendered were either tried to verdict before

the jury or abandoned by the plaintiffs, and thus finally

resolved, by the time the initial appeal against him was

dismissed. We agree with Tatoian, and thus affirm the

determination of the trial court that no such claims

were still pending against him in the trial courtfollowing

the dismissal when the case was remanded for further

proceedings on other claims.

I

Whether the trial court correctly determined that

none of the plaintiffs’ claims against Tatoian were still

pending in the trial court after our dismissal of their

initial appeal is a mixed question of law and fact. ‘‘Questions of law and mixed questions of law and fact receive

plenary review.’’ (Internal quotation marks omitted.)

Correia v. Rowland, 263 Conn. 453, 462, 820 A.2d 1009

(2003); see also Solek v. Commissioner of Correction,

107 Conn. App. 473, 479, 946 A.2d 239, cert. denied, 289

Conn. 902, 957 A.2d 873 (2008). We conclude that all of

the plaintiffs’ claims against Tatoian on which summary

judgment was not rendered before trial were finally

resolved by the end of trial, although not necessarily,

as the trial court ruled, by the jury’s general verdict in

his favor.

As the trial court observed, no order was ever issued

that the trial be bifurcated. Therefore, the court was

correct in concluding that the jury’s general verdict for

Tatoian presumptively resolved all of plaintiffs’ pending

claims against him in his favor, if and to the extent that

the jury was instructed on those claims. Curry v. Burns,

225 Conn. 782, 786, 626 A.2d 719 (1993) (‘‘[t]he so-called

general verdict rule provides that, if a jury renders a

general verdict for one party, and no party requests

interrogatories, an appellate court will presume that

the jury found every issue in favor of the prevailing

party’’ [internal quotation marks omitted]). Among the

claims then pending before the trial court were the
plaintiffs’ claims that Tatoian breached his duty to provide them with accountings of their mother’s trust

before she died, and their related claims for damages

based upon Tatoian’s alleged breach of that duty. All

of these claims were still pending in the trial court at

the time of the jury trial because, when the court

reversed its prior decision that Tatoian owed the plaintiffs no such duty, finding instead that there was a

genuine issue of material fact as to the existence of such

a duty on which a factual determination was required, it

restored that issue to the list of claims and issues that

remained to be tried in this case. Logically, if the existence of such a duty remained an open issue to be tried

for any purpose, it remained an open issue to be tried

for all purposes for which it was pleaded, including the

merits of every claim against Tatoian that was based

materially upon his breach of that alleged duty.

If, then, the plaintiffs sought to prosecute any such

claim to verdict at trial, and the trial court instructed

the jury on it, the jury’s general verdict for Tatoian

would presumptively have resolved that claim in Tatoian’s favor. If, by contrast, the jury was not instructed

on any such pending claim at trial, either because the

plaintiffs did not request that the jury be so instructed

or because the trial court failed or refused to give such

instructions despite the plaintiffs’ request that it do so,

then that claim would not have been resolved by the

jury’s general verdict. Because, in the absence of a trial

transcript, we cannot determine whether or not such

jury instructions were actually given in this case, we

cannot agree with the trial court’s presumptive finding

that all of the plaintiffs’ pending claims against Tatoian

on which summary judgment was not previously rendered were finally resolved in his favor by the jury’s

general verdict at trial.

Notwithstanding our disagreement with the trial

court as to its interpretation of the jury’s general verdict

for Tatoian, we agree with the court’s ultimate determination that none of the plaintiffs’ claims against Tatoian

were still pending in the trial court when the case was

remanded for further proceedings after we dismissed

theirinitial appeal. In reaching this conclusion, we agree

with Tatoian’s argument that, even in the absence of a

trial transcript, we can clearly tell from the plaintiffs’

failure to appeal from the judgment rendered upon the

jury’s general verdict that none of their claims against

him were still pending after the initial appeal was dismissed. Our reasons for this conclusion are as follows.

First, if and to the extent that the jury was actually

instructed on the plaintiffs’ pending claims, then such

claims were no longer pending in the trial court after

trial because they all had been resolved in Tatoian’s

favor by the jury’s general verdict. By not appealing

from that judgment, the plaintiffs would have accepted

the finality of the jury’s determinations with respect to
all such instructed-upon claims.

Second, if any pending claims were not prosecuted

to verdict at trial because the plaintiffs did not seek to

prove them or to have the jury instructed upon them

at trial, then by so failing to prosecute them, they must

be deemed to have abandoned such claims, and thus

to have forfeited their right to prosecute them further.

See Connecticut Light & Power Co. v. Dept. of Public

Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003)

(‘‘We repeatedly have stated that [w]e are not required

to review issues that have been improperly presented

to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in

order to avoid abandoning an issue by failure to brief

the issue properly. . . . Where a claim is asserted in

the statement of issues but thereafter receives only

cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be

abandoned. . . . These same principles apply to

claims raised in the trial court.’’ [Citation omitted;

emphasis added; internal quotation marks omitted.]).

Once a claim is abandoned, it is no longer pending

before the court. We also note that the plaintiffs cannot

claim that they were obstructed in any way from raising

and prosecuting their accounting claims at trial because

of the pendency of theirinitial appeal. The initial appeal,

as framed by the plaintiffs throughout the trial, had no

bearing on the accounting claims because the plaintiffs’

initial appeal was limited in scope to other claims, as

disclosed by their appeal form and their preliminary

statement of issues. It was not until after the trial was

completed, when they filed their opening brief with this

court, that the plaintiffs first raised any claim of error

as to any of their accounting claims against Tatoian.

Until that time, they gave no notice that the appeal

would raise any such claim, for the claim was based

upon the trial court’s ruling on their motions to reargue,

which had not been mentioned in their appeal form or

their preliminary statement of issues.

Third and finally, if the plaintiffs requested that the

jury be instructed on certain pending claims but the

trial court failed or refused to give such instructions,

then Tatoian is correct in arguing that they could and

should have appealed from the judgment rendered

against them upon the jury’s general verdict, claiming

error in the court’s failure or refusal to instruct the jury

as requested. The plaintiffs’ failure to appeal from the

judgment on the basis of such instructional error constituted an abandonment of all claims as to which the

court refused to instruct the jury as requested just as

surely as if the plaintiffs had not sought instruction on

them at all. Abandoned claims, to reiterate, are no

longer pending and cannot be further prosecuted once

they have been abandoned.

In this case, the plaintiffs failed to appeal on any
basis from the judgment rendered against them in the

trial court upon the jury’s general verdict. The plaintiffs’

failure to appeal gives clear evidence that all of their

claims against Tatoian were either raised, instructed

upon and tried to verdict before the jury or abandoned,

either by failing to raise and request instructions on

them at trial or by not appealing from the trial court’s

failure or refusal to instruct on them despite their

request. In each such scenario, the plaintiffs’ failure

to appeal from the judgment rendered upon the jury’s

verdict established that all of their claims on which

summary judgment was not rendered were finally

resolved at or shortly after trial, either by the jury’s

general verdict or by the plaintiffs’ abandonment of

them. Accordingly, we agree with the trial court that

no such claims were still pending against Tatoian in

the trial court when the case was remanded for further

proceedings on other claims after our dismissal of the

plaintiffs’ initial appeal.

II

Having concluded that no claims against Tatoian

were pending by the end of the appeal period following

trial, we next address the plaintiffs’ argument that our

decision in Tyler necessarily requires the opposite conclusion. The plaintiffs argue that we decided in Tyler

that one or more counts against Tatoian were still pending in the trial court after that court partially reversed

its summary judgment decision as to the accounting

issue and the jury returned its verdict. In particular,

the plaintiffs direct our attention to the following two

statements in Tyler: ‘‘[T]he court’s [August 22, 2013

summary judgment] ruling disposed of only a portion

of the plaintiffs’ counts asserted against Tatoian’’; Tyler

v. Tyler, supra, 151 Conn. App. 104; and ‘‘[c]ertain

counts against Tatoian have since been resolved at

trial.’’ Id., 104 n.7. The plaintiffs interpret these statements to mean that this court concluded that certain

counts remained pending against Tatoian at the time

we dismissed the appeal, which occurred after the

trial concluded.

The plaintiffs’ claim is based on a fundamental misunderstanding of our basic procedure. ‘‘It is axiomatic

that the jurisdiction of this court is restricted to appeals

from judgments that are final. General Statutes §§ 51-

197a and 52-263; Practice Book § 61-1 . . . .’’ (Citation

omitted.) Parrotta v. Parrotta, 119 Conn. App. 472, 475,

988 A.2d 383 (2010). The plaintiffs misunderstand the

correct measuring point for determining if the judgment

appealed from is final. In Tyler, we concluded that the

August 22, 2013 summary judgment ruling, from which

the plaintiffs appealed, was not a final judgment as

to Tatoian at the time the appeal therefrom was filed

because it did not dispose of all of the counts then

pending against him. We did not conclude that there

was no final judgment as to Tatoian at the later time
when we finally dismissed the appeal, because the measuring point for determining if an appeal is from a final

judgment is when the appeal is filed. See McKeon v.

Lennon, 131 Conn. App. 585, 611, 27 A.3d 436 (dismissing appeal of order for attorney’s fees for lack of final

judgment because amount of attorney’s fees had not

been conclusively determined at time appeal filed), cert.

denied, 303 Conn. 901, 31 A.3d 1178 (2011).

Final judgment as to Tatoian did not enter until after

the jury returned its verdict; however, the plaintiffs

never amended their initial appeal to challenge that

verdict pursuant to Practice Book § 61-9. The plaintiffs

might have been confused because this verdict was

returned before we heard oral arguments and issued

our decision in the initial appeal. However, there was

no final judgment as to Tatoian at the relevant time,

when the plaintiffs filed that appeal. Accordingly, Judge

Radcliffe correctly interpreted our decision in Tyler,

which was not based upon, and signified nothing as to,

the continuing pendency of claims against Tatoian at

the time of its issuance.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Bruce Tyler was named as a defendant in the complaint; however, he

also filed a cross complaint, initially against his brothers, John Tyler, Thomas

Tyler, and Russell Tyler, but which was later amended to include claims

against only Richard Tatoian. For clarity, we will refer to Bruce Tyler and

Jay Tyler collectively as the plaintiffs and by name when referencing

them individually.

2 Tatoian is the only defendant as to whom the plaintiffs appeal. Jay Tyler

had also asserted claims against his brothers, John Tyler, Thomas Tyler,

Bruce Tyler, and Russell Tyler, but withdrew his claims against them on

January 21, 2015. In addition, Bruce Tyler had cited as parties Richard

Mapplethorpe and Citigroup Global Markets, Inc., the financial advisors for

the trust; however, the court dismissed the claims against them for lack of

standing. For clarity, we will refer to Tatoian individually by name. Any

references to the defendants in the underlying case include John Tyler,

Thomas Tyler, Russell Tyler and Tatoian, but not Bruce Tyler. See footnote

1 of this opinion.

3 Tatoian makes a claim in his brief that the plaintiffs’ appeal is frivolous

and requests attorney’s fees under Practice Book § 85-2. We decline to decide

this issue because Tatoian failed to make his request in a separate motion.

See Practice Book § 85-3; Hernandez v. Dawson, 109 Conn. App. 639, 643–44,

953 A.2d 664 (2008).

4

‘‘Under Ruth Tyler’s previous will, each brother’s share was to be calculated on the basis of his net worth, where the brother with the lowest net

worth would receive payment until his net worth was equal to the net worth

of the brother with the next lowest net worth, and so on. If this distribution

scheme had been in effect at the time of Ruth Tyler’s death, Jay Tyler

allegedly would have received the lion’s share of the estate.’’ Tyler v. Tyler,

supra, 151 Conn. App. 101 n.2.

5 General Statutes § 45a-541b provides: ‘‘(a) A trustee shall invest and

manage trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements and other circumstances of the trust.

In satisfying this standard, the trustee shall exercise reasonable care, skill

and caution.

‘‘(b) A trustee’s investment and management decisions respecting individual assets shall be evaluated not in isolation, but in the context of the trust

portfolio as a whole and as a part of an overall investment strategy having

risk and return objectives reasonably suited to the trust.

‘‘(c) Among circumstances that a trustee shall consider in investing and

managing trust assets are such of the following as are relevant to the trust

or its beneficiaries: (1) General economic conditions; (2) the possible effect
of inflation or deflation; (3) the expected tax consequences of investment

decisions, strategies and distributions; (4) the role that each investment or

course of action plays within the overall trust portfolio, which may include

financial assets, interests in closely held enterprises, tangible and intangible

personal property and real property; (5) the expected total return from

income and the appreciation of capital; (6) related trusts and other income

and resources of the beneficiaries; (7) needs for liquidity, for regularity of

income and for preservation or appreciation of capital; (8) an asset’s special

relationship or special value, if any, to the purposes of the trust or to one

or more of the beneficiaries; (9) the size of the portfolio; and (10) the nature

and estimated duration of the trust.

‘‘(d) A trustee shall take reasonable steps to verify facts relevant to the

investment and management of trust assets.

‘‘(e) Subject to the standard of sections 45a-541 to 45a-541l, inclusive, a

trustee may invest in any kind of property or type of investment.

‘‘(f) A trustee who has special skills or expertise, or is named trustee in

reliance upon the trustee’s representation that the trustee has special skills

or expertise, has a duty to use those special skills or expertise.’’

6 Although these counts cite § 45a-541b, they quote § 45a-541c, which

provides: ‘‘A trustee shall diversify the investments of the trust unless the

trustee reasonably determines that, because of special circumstances, the

purposes of the trust are better served without diversifying.’’

7 General Statutes § 45a-204 provides: ‘‘Trust funds received by executors,

trustees, guardians or conservators may be kept invested in the securities

received by them, unless it is otherwise ordered by the Court of Probate

or unless the instrument under which such trust was created directs that

a change of investments shall be made, and the fiduciaries thereof shall not

be liable for any loss that may occur by depreciation of such securities.’’

8 The court found as follows in its initial decision partially granting summary judgment on August 22, 2013: ‘‘[T]he court finds that Tatoian was not

required to furnish accountings to anyone other than Ruth Tyler prior to

Ruth Tyler’s death. The trust states that beneficiaries entitled to receive

income are also entitled to twice yearly accountings. It also states that the

Tyler brothers are entitled to receive income from the trust only upon Ruth

Tyler’s death. The plaintiff was not entitled to any accountings because his

loans from Ruth Tyler exceeded his share of the trust; therefore, he was

never entitled to receive income. The cross plaintiff was only entitled to

accountings after Ruth Tyler’s death. Therefore, the motion for summary

judgment should be granted as to the third count of the complaint, alleging

negligent failure to furnish accountings, and the sixth count of the complaint

and third count of the cross complaint alleging deprivation of the right to

seek a court order under § 45a-204 because there were no accountings prior

to Ruth Tyler’s death.’’

9 The disputed provision of the trust, § 8 (h), provides: ‘‘The Trustee shall

render an account at least once each twelve months to each adult beneficiary

and to the natural or legal guardians, if any, of each minor or otherwise

legally disabled beneficiary then receiving or entitled to receive income

hereunder.’’ Tatoian argues that this provision means that he was only

required to provide an accounting to those beneficiaries who were ‘‘then

receiving or entitled to receive income . . . .’’ Because Ruth Tyler was the

only income beneficiary during her lifetime, the plaintiffs were not entitled

to an accounting while she was alive. The plaintiffs argue, on the other

hand, that Tatoian was required to provide a yearly accounting to all beneficiaries, and that the phrase ‘‘then receiving or entitled to receive income’’

only modified ‘‘natural or legal guardians . . . of each minor or otherwise

legally disabled beneficiary,’’ and thus, they were entitled to an accounting

on a yearly basis regardless of whether they were ‘‘then receiving or entitled

to receive income . . . .’’

10 The plaintiffs filed a preliminary statement of issues on October 10,

2013, which was returned to the plaintiffs pursuant to Practice Book § 62-

7. The plaintiffs refiled an identical preliminary statement of issues on

November 18, 2013, which read as follows: ‘‘The appellants state that they

expect the issues on appeal will be: 1. Did the trial court err in its reliance

on General Statutes § 45a-204? 2. Did the trial court err in shifting the burden

of proof to the plaintiff and cross plaintiff? 3. Did the trial court err in

deciding that there was no genuine issue of material fact with regard to

‘undue influence’ as opposed to limiting its role to that of determining

whether a genuine issue exists? 4. Did the trial court misconstrue various

facts?’’

We note that although § 45a-204 was essential to count six of the complaint
and count three of the cross complaint, the court’s decision granting summary judgment on the counts alleging violation of the prudent investor

rule and failure to diversify the trust assets was based upon the court’s

interpretation that § 45a-204 allowed Tatoian to keep the trust funds invested

in the securities received by him, unless otherwise ordered by the Probate

Court or mandated by the language of the trust.

11 The judgment in this case reflects that counts three and six of the

complaint and count three of the cross complaint were resolved by summary

judgment: ‘‘The matter thence came to August 22, 2013, when the court

(Sommer, J.) granted the defendants’ Thomas J. Tyler, Russell J. Tyler, John

E. Tyler, and Richard Tatoian’s motion for summary judgment as to counts

3, 4, 5 and 6 of the third amended complaint and as to counts 1, 2 and 3 of

the fourth amended cross complaint. The matter thence came to the present

time when the parties appeared and were at issue on the remaining counts,

as on file and when all the evidence having been submitted, the court

thereupon committed the action to the jury, which returned its verdict as

follows: defendant’s verdict. In this case, the jury unanimously finds the

issues for the defendant, Richard Tatoian, as against the plaintiffs . . . Jay

M. Tyler [and] (cross plaintiff) Bruce Tyler.’’

12 Practice Book § 61-9 provides: ‘‘Should the trial court, subsequent to

the filing of a pending appeal, make a decision that the appellant desires

to have reviewed, the appellant shall file an amended appeal within twenty

days from the issuance of notice of the decision as provided for in Section

63-1.

‘‘The amended appeal shall be filed in the trial court in the same manner

as an original appeal pursuant to Section 63-3. No additional fee is required

to be paid upon the filing of an amended appeal.

‘‘Within ten days of filing the amended appeal, the appellant shall file

with the appellate clerk an original and one copy of either a certificate

stating that there are no changes to the Section 63-4 papers filed with the

original appeal or any amendments to those papers. Any other party may

file an original and one copy of responsive Section 63-4 papers within twenty

days of the filing of the certificate or the amendments.

‘‘If the original appeal is dismissed for lack of jurisdiction, the amended

appeal shall remain pending if it was filed from a judgment or order from

which an original appeal properly could have been filed.

‘‘After disposition of an appeal where no amended appeals related to that

appeal are pending, a subsequent appeal shall be filed as a new appeal. If

the amended appeal is filed after the filing of the appellant’s brief but before

the filing of the appellee’s brief, the appellant may move for leave to file a

supplemental brief. If the amended appeal is filed after the filing of the

appellee’s brief, either party may move for such leave. In any event, the

court may order that an amended appeal be briefed or heard separately

from the original appeal.

‘‘If the appellant files a subsequent appeal from a trial court decision in

a case, where there is a pending appeal, the subsequent appeal shall be

treated as an amended appeal, and there shall be no refund of the fees paid.’’

13 Practice Book § 63-4 (b) provides in relevant part: ‘‘Except as otherwise

provided, a party may as of right file amendments to the preliminary statement of issues or the designation of the pleadings in the trial court case

file at any time until that party’s brief is filed. . . .’’

14 Tatoian further argued in his brief that the language of the trust did not

require him to provide trust accountings to the plaintiffs during their mother’s lifetime, but even if it did, that the terms of the trust would have imposed

liability upon him only if he had acted in bad faith. Moreover, he argued,

even if the plaintiffs had received trust accountings during their mother’s

lifetime and petitioned the Probate Court for an order to diversify the trust’s

assets, the Probate Court would not likely have granted such a petition and

overridden the terms of the trust and his discretionary decision as trustee

without a showing of bad faith. Finally, he argued that since he had ‘‘kept

invested the securities received by him as the trust corpus, he [was] not

liable with respect [to] any losses as a result of the assets’ decrease in

value,’’ pursuant to § 45a-204. (Internal quotation marks omitted.)

15 The issue of final judgment was first ‘‘raised by Tatoian in a motion to

dismiss filed in this court pursuant to Practice Book § 61-4 (a) [on October

7, 2013]. He later withdrew the motion in the interests of bringing this matter

to conclusion.’’ (Internal quotation marks omitted.) Tyler v. Tyler, supra,

151 Conn. App. 102 n.5. We nevertheless dismissed the initial appeal as to

Tatoian because ‘‘[n]either the parties nor the trial court . . . can confer

jurisdiction upon [an appellate] court . . . .’’ (Citation omitted; internal

quotation marks omitted.) Id.

16 Tatoian did not submit a supplemental brief.
17 Jay Tyler withdrew his complaint against all of his brothers on January

21, 2015, and, thus, he has abandoned his claims seeking to modify the trust

and alleging undue influence.

18 Under General Statutes § 52-205 and Practice Book § 15-1, the trial court

has the discretion to try one or more issue before the other issues.

19 The plaintiffs filed a motion for articulation with respect to this decision,

to which the court responded by signing the transcript of the October 1,

2014 hearing.

20 In support of this argument, the plaintiffs urge us to consider that their

trust accountings could not have been resolved at trial because the pleadings

had not been closed. Specifically, the plaintiffs assert that Bruce Tyler never

replied to Tatoian’s ninth, eleventh, and fifteenth special defenses, and that

these defenses were never withdrawn as to counts 1, 2 and 3 of the cross

complaint. Accordingly, the plaintiffs argue, the court was in error when it

assumed that all of those counts were disposed of at trial or by summary

judgment. Tatoian replies that counts 1, 2 and 3 of the cross complaint did

not proceed to trial, and, thus, that the pleadings were closed as to all counts

proceeding to trial.