Capone v. Nizzardo

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BRIDJAY CAPONE ET AL. v. MICHELE
NIZZARDO ET AL.
(AC 42867)
Alexander, Suarez and DiPentima, Js.

Syllabus

The plaintiff sought equitable distribution of certain real property containing
residential and equestrian buildings that she and the defendant owned
as tenants in common and payment of just compensation for her undi-
vided 25 percent minimal interest in the property. The parties entered
into an oral stipulation before the trial court but were unable to agree
on the fair market value of the property. Both parties presented expert
testimony to the court from real estate appraisers. The court agreed
with the defendant’s expert appraiser, determined the fair market value
to be $1,110,000 and issued certain orders regarding payment to the
plaintiff for her undivided minimal interest. Thereafter, the plaintiff
appealed to this court, claiming that the trial court committed plain
error and made clearly erroneous findings of fact in regard to the highest
and best use of the property. Held:
1. The plaintiff could not prevail on her claim that the trial court committed
plain error when it determined the highest and best use of the property
without reviewing applicable zoning regulations because she did not
meet either prong of the plain error doctrine: the plaintiff failed to
demonstrate that the trial court made a plain and obvious error that
affected the fairness and integrity of and public confidence in the judicial
proceedings, as the parties stipulated that the plaintiff had only a minimal
interest in the property and that a partition in kind or by sale would
not better serve their interests, the hearing before the court was for the
sole purpose of having it determine the fair market value of the property,
no evidence was submitted to the court regarding the possibility of
obtaining any zoning variance and the court did not conclude that the
current use of the property would not be permitted to continue, such
that the court’s determination of the highest and best use and fair market
value of the property did not require the review of applicable zoning
regulations; moreover, the plaintiff did not establish that the failure to
grant relief would have resulted in a manifest injustice.
2. The trial court’s determination that the highest and best use of the prop-
erty, a residential use augmented by a supporting equestrian facility that
had limited commercial viability, was not clearly erroneous: the court
considered the testimony and written reports of both the plaintiff’s and
the defendant’s appraisers, and concluded that the comparable sales
offered by the defendant’s appraiser were more similar to the subject
property in size and location than those offered by the plaintiff’s
appraiser; moreover, the value determined by the plaintiff’s appraiser
was based in part on a price per horse stall method that included twenty-
three stalls, but the evidence at trial supported the court’s finding that
only thirteen or fourteen stalls on the property were potentially func-
tional; furthermore, the only evidence of income generated from the
property was from residential rent and rent for two horse stalls, and
the court considered the testimony from a witness offered by the defen-
dant that the marketing of the property as a commercial equestrian
facility was not successful.
Argued April 13—officially released August 10, 2021

Procedural History

Action, inter alia, seeking the equitable distribution
of property, and for other relief, brought to the Superior
Court in the judicial district of Stamford-Norwalk,
where the defendant Bongiorno Children Red Barn,
LLC, was cited in as an additional party; thereafter, the
matter was withdrawn as to the named defendant et
al.; subsequently, the matter was tried to the court,
Hon. Kevin Tierney, judge trial referee; judgment for
the defendant Bongiorno Children Red Barn, LLC, from
which the plaintiff appealed to this court. Affirmed.
Danielle J. B. Edwards, with whom, on the brief,
was Peter V. Lathouris, for the appellant (plaintiff).
Mark F. Katz, for the appellee (defendant Bongiorno
Children Red Barn, LLC).
Opinion

ALEXANDER, J. The plaintiff Bridjay Capone appeals
from the judgment of the trial court ordering the defen-
dant Bongiorno Children Red Barn, LLC, to pay her
$277,500 in just compensation for her 25 percent inter-
est in the property owned by the parties.1 Specifically,
the plaintiff challenges the court’s determination that
the fair market value of the property is $1,110,000. On
appeal, the plaintiff claims that the court (1) committed
plain error when it determined the highest and best
use of the property without considering the applicable
zoning regulations, (2) made clearly erroneous factual
findings in determining the highest and best use of the
property, and (3) due to these errors, the court abused
its discretion in determining the value of the property.
We disagree with the plaintiff’s claims2 and, accordingly,
affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to the disposition of this appeal. On January 17,
2017, the plaintiff filed a two count complaint seeking,
inter alia, partition of real property located on Bangall
Road in Stamford (property), owned by the plaintiff
and the defendant as tenants in common. On August 7,
2018, the parties entered into an oral stipulation before
the court. In that stipulation, the parties agreed, inter
alia, that (1) the plaintiff is the owner of a 25 percent
minimal interest in the property,3 (2) a partition by sale
or in kind would not promote the best interests of the
parties, and (3) if the parties were unable to agree on
the fair market value of the property, the court would
decide the fair market value of the property and thereby
determine the purchase price that the defendant would
pay to the plaintiff in consideration for her delivery of
a quitclaim deed. Thereafter, the plaintiff filed her third
amended complaint, comprised of one count seeking
equitable distribution of the property and payment of
just compensation for her undivided 25 percent minimal
interest in the property. A trial was held on February
20 and 21, 2019.
As a result of the parties’ stipulation, the plaintiff and
the defendant presented evidence to the court for it to
make a determination of the fair market value of the
property. It is undisputed that the property is comprised
of two parcels. Parcel one is 3.32 acres and parcel two
is 1.04 acres. On the basis of the evidence before it, the
court found that parcel one contains a single-family
house, an indoor arena/riding ring, a two-story apart-
ment/office building that includes two three room apart-
ments, a thirteen or fourteen stall horse barn, and an
eight or nine stall horse barn. The single-family house
and two apartments are rented to tenants. Two stalls
in the thirteen or fourteen stall horse barn are rented
to tenants. None of the horse stalls in the eight or nine
stall barn is in use. The court further found that parcel
two is located directly across from parcel one on the
other side of Bangall Road, and that it contains two
equestrian riding rings, an outdoor storage facility, and
a parking lot.
Each party presented expert testimony from a real
estate appraiser. The plaintiff’s expert, Eric Michel,
opined in his appraisal report that the highest and best
use of the property is as ‘‘an equestrian facility as it
is currently improved.’’4 Michel appraised the value of
parcels one and two together, and testified that the fair
market value of the property was $3,000,000. In arriving
at this value, Michel utilized both the cost approach5
and the sales comparison approach6 to determine the
value of the property, and then reconciled those two
figures. Using the cost approach, he determined that
the value of the land unimproved was $1,525,000 and
the value of the improvements less depreciation was
$1,099,296, for a total rounded value of $2,625,000. Using
the sales comparison approach, Michel compared the
property to five other recently sold properties and made
adjustments to determine the value of the property.
Only one of his comparable properties was located in
Fairfield County, where the property is located, and the
remaining four were located in the state of New York.
The properties ranged from 15.82 acres to 286.23 acres
in size and each of the properties had equestrian facili-
ties. The nature of some of the improvements differed
from those on the property, such that one of the compa-
rable properties had a twenty stall barn with a veteri-
nary room, viewing room, tack room, indoor and out-
door riding areas, breeding stalls, and wash stalls, and
another had direct riding trail access and bordered a
large preservation area. Michel used a price per stall
figure in comparing the property and the comparable
properties, determining that the property had twenty-
three stalls and the adjusted price per stall was $139,130,
for a total rounded value of $3,200,000. He testified that
the property is commercial because ‘‘historically it had
been operated as a commercial operation and its physi-
cal characteristics show that it still has the ability to
operate that way.’’ When asked how much research he
had done into the historical operation of a commercial
equestrian facility at the property, he replied, ‘‘[n]one.’’
Further, Michel’s report described the property’s condi-
tion and quality as ‘‘average’’ and ‘‘poor to average.’’
The defendant’s expert, Adam Hardej, opined that
the highest and best use of the property is continuation
of its current use as ‘‘residential/office/equestrian’’
property. Hardej appraised the value of the parcels sep-
arately, and testified that the fair market value of parcel
one was $865,000 and parcel two was $245,000, for a
total fair market value of $1,110,000. Like Michel, Hardej
used both the cost approach and the sales comparison
approach. Under the cost approach, he determined the
value of the land on parcel one to be $370,000, and the
value of improvements less depreciation to be $491,902,
for a total rounded value for parcel one of $860,000.
Under the sales comparison approach, Hardej com-
pared the property to six recent land sales. Each compa-
rable property was located in Fairfield County and the
size of the properties ranged from 1.12 acres to 10.89
acres. Four of Hardej’s comparable properties were
rated residential/equestrian, and two had no equestrian
component. Under the sales comparison approach, he
determined that after adjustments the value of parcel
one was $870,000. Hardej testified that ‘‘there hasn’t
been any viable equestrian facility, going concern opera-
tion on the subject property, for as long as anybody
can remember. And when I say that, I’ve heard people
say ten plus years . . . .’’ In his appraisal report, he
described the improvements on the property as in ‘‘aver-
age’’ condition. Further, Hardej testified that the small
barn on the property containing nine horse stalls was ‘‘in
a dilapidated condition’’ and was ‘‘beyond its economic
life’’ and therefore had no contributory value to the
property. He stated that these nine stalls are ‘‘absolutely
nonoperational . . . .’’
The defendant also presented testimony from Frank
Bongiorno, who is a manager and member of the defen-
dant. He testified that there are thirteen stalls in the
big barn and nine stalls in the small barn. Bongiorno
explained that the stalls in the small barn are not usable
because they are ‘‘crumbling and falling apart. The roof
itself is shot. The stalls–in between–the partitions in
between are shot.’’ Further, he testified that his sister
has advertisements out to attract boarders but that they
‘‘haven’t been very successful, no one will come in’’
due to the ‘‘dilapidated condition, the size of the stalls.’’
The court issued a memorandum of decision on April
17, 2019. The court determined that the highest and
best use of the property is ‘‘continuation as a residential
use augmented by a supporting equestrian facility that
has limited commercial viability.’’ The court further
described the property as a ‘‘residential use with some
older equestrian facilities as additional improvements
to the residential status.’’ Although each appraiser used
both the cost method and the sales comparison method,
the court ultimately credited the sales comparison
approach used by Hardej. It found that Michel’s compa-
rable properties involved much larger parcels of land
than the property, and that these land sales did not
support Michel’s opinion of value. The court found Har-
dej’s sales comparables to be closer in location and
size to the property, and the sale price of these lots
revealed that the immediate neighborhood of the prop-
erty was not likely to support Michel’s opinion of value.
The court determined the value of parcels one and two
together, not as separate lots, and concluded that the
fair market value of the property was $1,110,000. The
court ordered the defendant to pay the plaintiff
$277,500, representing the plaintiff’s 25 percent interest.
The plaintiff filed an appeal from that decision.
Thereafter, the plaintiff filed a motion for articulation
of the court’s decision. In its articulation dated February
4, 2020, the court stated that it had considered both
appraisers’ reports in determining the fair market value
of the property, gave greater weight to the sales compar-
ison method used by both appraisers, and did not give
weight to the ‘‘ ‘site as though vacant’ ’’ method used
by the plaintiff’s real estate appraiser. Further, the court
considered the relevant comparable sales used by the
parties’ appraisers and the testimony from Bongiorno
regarding the marketing of the property.
I
The plaintiff first claims that the court committed
plain error when it determined the highest and best
use, and ultimately the fair market value of the property,
without reviewing applicable zoning regulations. We
disagree.
The following additional information is relevant to
our resolution of this issue. The court found, and each
appraiser’s report stated, that both parcels of land are in
the RA-2 zone, which is Stamford’s two acre residential
zone. No expert testimony was presented to the court
concerning the possibility of obtaining a variance or
zoning permission for the use of a one acre parcel in
a two acre zone, so the court did not consider parcel
two to be a separate buildable lot. Further, the court
determined that the use of the property as an equestrian
facility appeared to comply with the zoning regulations
as a nonconforming use, and no additional evidence of
the Stamford zoning regulations concerning horses and
equestrian facilities was presented to the court.
The plaintiff did not argue before the court that a
review of zoning regulations was necessary to deter-
mine the highest and best use or fair market value of
the property, and neither party introduced any zoning
regulations at trial. In her brief, the plaintiff admits that
‘‘the trial court did not receive, review, or rely upon
any of the applicable zoning regulations. Neither of
the appraisal reports submitted by the parties’ experts
include the applicable zoning regulations . . . .’’
(Emphasis omitted.) However, on appeal, the plaintiff
asserts that the trial court’s failure to consider the zon-
ing regulations, sua sponte, should be reviewed under
the plain error doctrine.
‘‘[The plain error] doctrine, codified at Practice Book
§ 60-5, is an extraordinary remedy used by appellate
courts to rectify errors committed at trial that, although
unpreserved, are of such monumental proportion that
they threaten to erode our system of justice and work
a serious and manifest injustice on the aggrieved party.
[T]he plain error doctrine . . . is not . . . a rule of
reviewability. It is a rule of reversibility. That is, it is a
doctrine that this court invokes in order to rectify a
trial court ruling that, although either not properly pre-
served or never raised at all in the trial court, nonethe-
less requires reversal of the trial court’s judgment, for
reasons of policy. . . . In addition, the plain error doc-
trine is reserved for truly extraordinary situations [in
which] the existence of the error is so obvious that it
affects the fairness and integrity of and public confi-
dence in the judicial proceedings. . . . Plain error is a
doctrine that should be invoked sparingly. . . .
Implicit in this very demanding standard is the notion
. . . that invocation of the plain error doctrine is
reserved for occasions requiring the reversal of the
judgment under review. . . . [Thus, an appellant] can-
not prevail under [the plain error doctrine] . . . unless
[she] demonstrates that the claimed error is both so
clear and so harmful that a failure to reverse the judg-
ment would result in manifest injustice. . . .
‘‘[Our Supreme Court has] clarified the two step
framework under which we review claims of plain error.
First, we must determine whether the trial court in fact
committed an error and, if it did, whether that error
was indeed plain in the sense that it is patent [or] readily
discernable on the face of a factually adequate record,
[and] also . . . obvious in the sense of not debatable.
. . . [T]his inquiry entails a relatively high standard,
under which it is not enough for the [plaintiff] simply
to demonstrate that [her] position is correct. Rather,
[to prevail] the party [claiming] plain error [reversal]
must demonstrate that the claimed impropriety was
so clear, obvious and indisputable as to warrant the
extraordinary remedy of reversal. . . .
‘‘In addition, although a clear and obvious mistake
on the part of the trial court is a prerequisite for reversal
under the plain error doctrine, such a finding is not,
without more, sufficient to warrant the application of
the doctrine. Because [a] party cannot prevail under
plain error unless it has demonstrated that the failure
to grant relief will result in manifest injustice . . .
under the second prong of the analysis we must deter-
mine whether the consequences of the error are so
grievous as to be fundamentally unfair or manifestly
unjust. . . . Only if both prongs of the analysis are
satisfied can the appealing party obtain relief.’’ (Internal
quotation marks omitted.) DeChellis v. DeChellis, 190
Conn. App. 853, 864–66, 213 A.3d 1, cert. denied, 333
Conn. 913, 215 A.3d 1210 (2019).
In the present case, the plaintiff has failed to demon-
strate that the court made a plain and obvious error by
determining the highest and best use or fair market
value of the property without consulting the zoning
regulations. The plaintiff has cited no authority that
places a duty on the trial court to consult zoning regula-
tions prior to determining the highest and best use of
real property when zoning regulations are not provided
to the court by the parties and are not required for
the court’s findings. Instead, she argues that ‘‘[i]t was
incumbent upon the court to require their submission
by counsel or obtain them independently.’’ In support
thereof, the plaintiff cites to Delfino v. Vealencis, 181
Conn. 533, 436 A.2d 27 (1980).
The plaintiff’s reliance on Delfino is misplaced. In
that case, the trial court granted the plaintiffs a partition
by sale of property owned by the plaintiffs and the
defendant as tenants in common. Id., 534. In Delfino, the
defendant claimed that the trial court had improperly
determined that a partition by sale, as opposed to a
partition in kind, best promoted the rights of the parties.
Id., 538. The court’s conclusion that a partition in kind
was not in the best interests of the parties was based,
in part, on its findings that operation of the defendant’s
garbage removal business on the property would make
it difficult for the plaintiffs to obtain approval for a
subdivision on their part of the property and that the
defendant’s use of the property for such a business
violated existing zoning regulations, making it unlikely
that the defendant would be able to continue her busi-
ness in the future. Id., 539–40. On appeal, our Supreme
Court determined that the trial court’s inferences were
unfounded, as neither party had submitted the applica-
ble zoning regulations to the court. Id., 541–42. The
present case is readily distinguishable from Delfino.
Here, the parties stipulated that the plaintiff had only
a minimal interest in the property and that a partition
in kind or by sale would not better serve the interests
of the parties. The hearing before the court was for the
sole purpose of having it determine the fair market
value of the property. No evidence was submitted to the
court regarding the possibility of obtaining any zoning
variance and the court did not conclude that the current
use of the property would not be permitted to continue.
We conclude that the plaintiff has not met either
prong of the plain error doctrine. The plaintiff has failed
to demonstrate that the court made a plain and obvious
error that affected ‘‘the fairness and integrity of and
public confidence in the judicial proceedings.’’ (Internal
quotation marks omitted.) DeChellis v. DeChellis,
supra, 190 Conn. App. 865. Because of the parties’ stipu-
lation, the court’s determination of the highest and best
use and fair market value of the property did not require
the review of applicable zoning regulations. Further,
the plaintiff has not established that the failure to grant
relief will result in a manifest injustice. Therefore, we
are not persuaded that plain error exists.
II
The plaintiff next argues that the court made clearly
erroneous findings of fact when it determined that the
highest and best use of the property was residential,
rather than as a commercial equestrian center.7 The
defendant counters that the evidence presented at trial
supported the court’s determination that the highest
and best use of the property is ‘‘the continuation as a
residential use augmented by a supporting equestrian
facility that has limited commercial viability.’’ We agree
with the defendant.
We first set forth the relevant legal principles and
standard of review. ‘‘A property’s highest and best use
is commonly accepted by real estate appraisers as the
starting point for the analysis of its true and actual
value. . . . [U]nder the general rule of property valua-
tion, fair [market] value, of necessity, regardless of the
method of valuation, takes into account the highest and
best value of the land. . . . A property’s highest and
best use is commonly defined as the use that will most
likely produce the highest market value, greatest finan-
cial return, or the most profit from the use of a particular
piece of real estate.’’ (Citations omitted; emphasis omit-
ted; internal quotation marks omitted.) United Technol-
ogies Corp. v. East Windsor, 262 Conn. 11, 25, 807 A.2d
955 (2002).
’’The highest and best use determination is inextrica-
bly intertwined with the marketplace because fair mar-
ket value is defined as the price that a willing buyer
would pay a willing seller based on the highest and best
possible use of the land assuming, of course, that a
market exists for such optimum use. . . . The highest
and best use conclusion necessarily affects the rest of
the valuation process because, as the major factor in
determining the scope of the market for the property,
it dictates which methods of valuation are applicable.
Finally, a trier’s determination of a property’s highest
and best use is a question of fact that we will not disturb
unless it is clearly erroneous.’’ (Internal quotation
marks omitted.) Sakon v. Glastonbury, 111 Conn. App.
242, 253–54, 958 A.2d 801 (2008), cert. denied, 290 Conn.
916, 965 A.2d 554 (2009). ‘‘A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed.’’ (Internal quotation marks
omitted.) United Technologies Corp. v. East Windsor,
supra, 262 Conn. 23. ‘‘It is well established that [i]n a
case tried before a court, the trial judge is the sole
arbiter of the credibility of the witnesses and the weight
to be given specific testimony. . . . The credibility and
the weight of expert testimony is judged by the same
standard, and the trial court is privileged to adopt what-
ever testimony [it] reasonably believes to be credible.
. . . On appeal, we do not retry the facts or pass on
the credibility of witnesses.’’ (Internal quotation marks
omitted.) Id., 26.
In the present case, the court considered the testi-
mony and written reports of both the plaintiff’s and the
defendant’s expert appraisers, and determined that the
highest and best use of the property ‘‘is the continuation
as a residential use augmented by a supporting eques-
trian facility . . . .’’ The court found that the major
difference in the appraiser’s values was a result of their
choice of comparable sales, which was in turn affected
by their different classifications of the highest and best
use of the property. After examining the evidence, the
court concluded that Hardej’s comparable sales were
more similar to the property in size and location than
were Michel’s. In addition, Michel determined the value
based, in part, on a price per stall method that included
twenty-three horse stalls, but the evidence at trial sup-
ported the court’s finding that only thirteen or fourteen
horse stalls on the property were potentially functional.
The only evidence of income generated from the prop-
erty was rent for the single-family home and two apart-
ments, as well as rent for two horse stalls in the larger
barn. In reaching its decision, the court considered the
testimony from Bongiorno that ‘‘the marketing of the
property as a commercial equestrian facility was not
successful.’’ After a thorough review of the record, we
conclude that the court’s determination that the highest
and best use of the property, a residential use aug-
mented by a supporting equestrian facility that has lim-
ited commercial viability, was not clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The original plaintiffs, Bridjay Capone and Red Barn Stables, LLC, filed
their initial complaint against three defendants, Michele Nizzardo, John
Bongiorno, and Frank Bongiorno (original three defendants). On February
2, 2018, the original three defendants transferred, by quitclaim deed, their
combined 75 percent interest in the property to Bongiorno Children Red
Barn, LLC. On February 9, 2018, the original three defendants moved to cite
in Bongiorno Children Red Barn, LLC. The court granted this motion on
February 28, 2018. On August 8, 2018, the plaintiff withdrew the action as
to the original three defendants. The court was asked to disregard the
status of the plaintiff Red Barn Stables, LLC. The third amended complaint
contained one count with one plaintiff, Bridjay Capone, and one defendant,
Bongiorno Children Red Barn, LLC. All references herein to the plaintiff
are to Capone, and references to the defendant are to Bongiorno Children
Red Barn, LLC.
2
We do not address separately the plaintiff’s third claim because it is
premised on her first two claims. The plaintiff contends that the court’s
plain error in failing to consider applicable zoning regulations, coupled with
its clearly erroneous factual findings in determining the highest and best
use of the property, constituted an abuse of discretion. Because we conclude
that the trial court did not commit plain error and that its determination of
the highest and best use of the property was not clearly erroneous, we also
conclude that the court did not abuse its discretion in determining the value
of the property.
3
General Statutes § 52-500 (a), pertaining to the sale or equitable distribu-
tion of real property owned by two or more persons, provides in relevant
part that ‘‘[i]f the court determines that one or more of the persons owning
such real . . . property have only a minimal interest in such property and
a sale would not promote the interests of the owners, the court may order
such equitable distribution of such property, with payment of just compensa-
tion to the owners of such minimal interest, as will better promote the
interests of the owners.’’
4
We note that, in its decision, the court stated that Michel determined
‘‘that the highest and best use is as a vacant residential lot . . . .’’ However,
the court also stated that Michel characterized the property as a ‘‘commercial
equestrian center,’’ and in its articulation, stated that it did not give weight
to the ‘‘site as though vacant’’ method used by Michel. (Internal quotation
marks omitted.) In his appraisal report, Michel determined the highest and
best use of the property ‘‘as though vacant’’ prior to determining the highest
and best use ‘‘as improved.’’ His report states that the highest and best use
of the property as improved is ‘‘an equestrian facility as it is currently
improved.’’ In addition, Michel testified that the highest and best use of the
property is ‘‘to continue its use for an equestrian facility.’’
5
‘‘Under the cost approach, the appraiser estimates the current cost of
replacing the subject property with adjustments for depreciation, the value
of the underlying land and entrepreneurial profit.’’ Sun Valley Camping
Cooperative, Inc. v. Stafford, 94 Conn. App. 696, 702 n.10, 894 A.2d 349 (2006).
6
‘‘The comparable sales approach is also known as the market data
approach or sales comparison approach. . . . It is a process of analyzing
sales of similar recently sold properties in order to derive an indication of
the most probable sales price of the property being appraised. The reliability
of this technique is dependent upon (a) the availability of comparable sales
data, (b) the verification of the sales data, (c) the degree of comparability
or extent of adjustment necessary for time differences, and (d) the absence
of [nontypical] conditions affecting the sales price. . . . After identifying
comparable sales, the appraiser makes adjustments to the sales prices based
on elements of comparison.’’ (Citations omitted; internal quotation marks
omitted.) Sun Valley Camping Cooperative, Inc. v. Stafford, 94 Conn. App.
696, 702 n.8, 894 A.2d 349 (2006).
7
In her reply brief, the plaintiff argues that the defendant failed to respond
adequately to the issues raised in her claims, and therefore the defendant
has abandoned its defense. We disagree. ‘‘There is no rule . . . that an
appellee’s failure to reply in its brief to an issue raised by the appellant is
an implicit concession that the appellant’s claim is meritorious and that the
claim should be decided in the appellant’s favor. Abandonment of a claim
for failure of a party to brief that claim typically occurs when the appellant
fails to brief properly the claim that is raised on appeal.’’ (Emphasis in
original.) Harris v. Commissioner of Correction, 271 Conn. 808, 842 n.24,
860 A.2d 715 (2004).