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LOIS R. STILKEY v. ELIZABETH A. ZEMBKO
(AC 42410)
DiPentima, C. J., and Keller and Flynn, Js.*
Syllabus
The plaintiff sought to recover damages from the defendant for statutory
theft in connection with her actions in withdrawing certain funds from
a retirement account belonging to the plaintiff. The defendant had pre-
viously represented the plaintiff in her divorce proceedings, as a result
of which the plaintiff received one half of her former husband’s pension
funds, which were subsequently placed in an individual retirement
account. Through the defendant’s representation of the plaintiff, she
obtained confidential information about the plaintiff and used it to with-
draw money from the account without the plaintiff’s knowledge or
permission over a period of three years. In the defendant’s answer, she
raised the statute of limitations as a special defense, although she did
not specify the statute on which she relied. The plaintiff did not plead
the continuing course of conduct doctrine in avoidance of the special
defense of the statute of limitations in pleadings or at trial and, instead,
raised it in posttrial briefs. The trial court ruled in favor of the plaintiff,
finding that she did not authorize the defendant to remove moneys from
the IRA and that the defendant took those funds with the intent of
depriving the plaintiff of those moneys. The trial court also rejected the
defendant’s statute of limitations defense, concluding that the continuing
course of conduct doctrine, despite being improperly pleaded, operated
to toll the three year statute of limitations. On appeal, the defendant
claimed, inter alia, that the trial court abused its discretion in considering
the plaintiff’s continuing course of conduct argument despite improper
pleading. Held:
1. The court did not abuse its discretion in applying the continuing course
of conduct doctrine, as it was within its discretion to reach the merits
of the plaintiff’s continuing course of conduct claim once it was put
before the court, and it was within the court’s discretion to determine
that no party was prejudiced by the lapse in pleading; both parties failed
to comply with the rules of practice, this court could not say that the
trial court decided the matter so arbitrarily as to vitiate logic or decided
the matter on the basis of improper or irrelevant factors, the defendant
had ample opportunity to address the continuing course of conduct
doctrine during posttrial briefing but she failed to specify how she was
prejudiced by the plaintiff’s posttrial invocation of that doctrine, and
the trial court was in the best position to determine whether either
party had been unfairly prejudiced by the defendant’s failure to specify
the statute on which her defense rested or by the plaintiff’s failure to
timely raise the continuing course of conduct doctrine in avoidance of
that special defense.
2. The defendant could not prevail on her claim that the trial court improperly
concluded that the continuing course of conduct doctrine tolled the
statute of limitations, as this court concluded that this claim was briefed
inadequately; the defendant’s brief contained no citations and no legal
authority, or citations to evidence in the record in support of her claim.
3. The trial court’s findings that the plaintiff had no knowledge of the
defendant’s actions and had not consented to or authorized them were
not clearly erroneous, as such findings were supported by the evidence
and this court was not left with a definite and firm conviction that any
mistake had been committed; it was not the function of this court to
retry the case or to reassess the credibility of the witnesses.
Argued March 4—officially released September 15, 2020
Procedural History
Action to recover damages for, inter alia, statutory
theft, brought to the Superior Court in the judicial dis-
trict of New Britain, where Pamela Rustigian, admin-
istratrix of the estate of Lois R. Stilkey, was substituted
as the plaintiff; thereafter, the matter was tried to the
court, Wiese, J.; judgment in favor of the substitute
plaintiff, from which the defendant appealed to this
court. Affirmed.
Scott M. Schwartz, for the appellant (defendant).
Michael P. Barry, for the appellee (substitute
plaintiff).
Opinion
DiPENTIMA, C. J. The defendant, Elizabeth A. Zem-
bko, appeals from the judgment rendered after a court
trial in favor of the substitute plaintiff, Pamela Rustig-
ian, administratrix of the estate of Lois R. Stilkey
(administratrix).1 On appeal, the defendant claims that
the court (1) abused its discretion in considering the
administratrix’ continuing course of conduct argument
despite improper pleading, (2) improperly concluded
that the continuing course of conduct doctrine tolled
the statute of limitations, and (3) erroneously found that
Stilkey had no knowledge of the defendant’s actions
and did not consent to or authorize those actions. We
disagree and, accordingly, affirm the judgment of the
trial court.
The following facts and procedural history, as set
forth by the trial court in its memorandum of decision
or otherwise gleaned from the record, are relevant to
the defendant’s claims on appeal. The defendant, an
attorney, represented Stilkey in her 2003 divorce. As
part of the dissolution action, Stilkey and her former
husband executed a qualified domestic relations order
(QDRO),2 under which Stilkey received a 50 percent
interest in his Iron Workers’ Local 15 and 424 Annuity
Fund. The QDRO contained confidential information,
including Stilkey’s Social Security number, date of birth,
home address and telephone number. The defendant
had access to all of the confidential information con-
tained in the QDRO.
Stilkey’s QDRO funds were invested in a Prudential
individual retirement account (IRA). The IRA enroll-
ment form listed Stilkey’s mailing address as 11 Towns-
end Road, Farmington, Connecticut. Stilkey never
resided at that address; rather, the defendant had lived
there with her husband. Additionally, the defendant was
identified as the primary beneficiary of the IRA in the
event of Stilkey’s death.
From October, 2010 to January, 2013, the defendant
made twenty-four phone calls to Prudential, which were
recorded. During each call, the defendant misrepre-
sented herself as ‘‘Lois Stilkey’’ and instructed the Pru-
dential representative to disburse funds from the IRA
and to send the funds to the defendant’s address.
The defendant deposited nineteen of the twenty-four
Prudential checks into her own checking account. The
checks were endorsed ‘‘Lois Stilkey pay to the order
of Elizabeth Zembko,’’ or with similar language. The
total sum of funds disbursed in the twenty-four checks
was $155,002.18, and the total sum deposited into the
defendant’s checking account was $101,501.31. The five
checks deposited into Stilkey’s account totaled
$56,500.80.
Stilkey commenced this action on July 16, 2015. The
and sought treble damages pursuant to General Statutes
§ 52-564. The defendant filed an answer and raised a
statute of limitations special defense.3 After the Novem-
ber 1, 2017 trial and a number of posttrial briefs, the
court, Wiese, J., issued a memorandum of decision on
December 3, 2018. The court rendered judgment in favor
of the administratrix in the amount of $304,503.93,
awarding treble damages pursuant to § 52-564. The
court found that Stilkey had not authorized the defen-
dant to remove $101,501.31 from her Prudential account
and that the defendant ‘‘took those funds with the intent
to deprive . . . Stilkey of her moneys. The theft repre-
sented an ongoing scheme to appropriate the moneys
and to deplete the Prudential account owned by . . .
Stilkey.’’
Additionally, the court rejected the defendant’s stat-
ute of limitations defense. Specifically, it concluded
that the continuing course of conduct doctrine operated
to toll the three year statute of limitations set forth
in General Statutes § 52-577. The court stated: ‘‘The
defendant’s theft was not complete until January 4,
2013, and this action, having been commenced by ser-
vice on July 16, 2015, is within the limitation period set
forth in § 52-577.’’ This appeal followed. Additional facts
will be set forth as necessary.
I
The defendant first claims that the court abused its
discretion in considering the administratrix’ continuing
course of conduct argument despite improper pleading.
Specifically, she argues that the court should not have
considered that doctrine as a consequence of the admin-
istratrix’ failure to raise it ‘‘in the pleadings, at trial
and in her initial posttrial brief.’’ The administratrix
counters that ‘‘[t]he trial court did not err in recognizing
a ‘continuing course of conduct’ exclusion from the
statute of limitations defense.’’ We conclude that the
court did not abuse its discretion in applying the contin-
uing course of conduct doctrine.
The following additional facts are necessary for our
discussion. The first check that the defendant wrong-
fully deposited into her own checking account was
dated October 12, 2010. The final stolen check was
dated January 3, 2013. Stilkey filed her complaint on
July 15, 2015. The defendant first raised her statute of
limitations special defense on May 10, 2017, by way of
answer to the administratrix’ revised complaint. After
trial, the court ordered posttrial briefing on the statute
of limitations defense. In the parties’ posttrial briefs,
they addressed the bilateral pleading deficiencies with
respect to the statute of limitations defense and the
continuing course of conduct doctrine. The administra-
trix argued that the defendant had waived the statute
of limitations special defense by failing to specify the
precise statute on which she relied. In that same brief,
the administratrix argued for the first time that if the
statute of limitations special defense had been pleaded
properly, then she would have had the opportunity to
plead the continuing course of conduct doctrine to toll
the statute of limitations. After that ‘‘passing reference
to the continuing course of conduct doctrine’’ the court
ordered supplemental briefing, ordering the parties to
address it specifically. The defendant responded that
the continuing course of conduct doctrine should not
be considered, because it must be pleaded in avoidance
of a special defense pursuant to Practice Book § 10-57.4
The court addressed the statute of limitations issue
and the deficient pleadings in its memorandum of deci-
sion. Specifically, the court explained that ‘‘[t]he defen-
dant argues that the court need not reach the merits
of the [administratrix’] continuing course of conduct
argument because it was not specially pleaded and
raised for the first time in a posttrial brief. The court
rejects the defendant’s argument. The defendant herself
did not identify the specific statute on which she relied
for her statute of limitations defense until her second
posttrial brief. The court will not fault the [administra-
trix] for failing to plead the continuing course of con-
duct doctrine in avoidance of the defendant’s special
defense, when that special defense was a bare assertion
that the ‘[p]laintiff’s cause of action is barred by the
statute of limitations.’ Both parties have erred in their
pleadings but however imperfectly they have each
pleaded, the issues have been placed before the court
and the merits will be reached.’’ The court ruled that
the continuing course of conduct doctrine applied, toll-
ing the statute of limitations until the defendant’s
wrongful conduct terminated.
We agree with the court that both parties failed to
comply with our rules of practice. The defendant did
not identify specifically the statute on which her statute
of limitations defense was based, in violation of the
requirement of Practice Book § 10-3 (a). Then, the
administratrix, in turn, did not comply with Practice
Book § 10-57, due to her failure to plead the continuing
course of conduct doctrine in avoidance of the defen-
dant’s special defense. The court, nevertheless, decided
to overlook the parties’ pleading deficiencies.
The issue, therefore, is whether the court properly
considered the continuing course of conduct doctrine
under these facts and circumstances. We begin with
our standard of review. Our Supreme Court has stated
that ‘‘when a party properly objects to a violation of
the rules of practice, the trial court may disregard the
improperly raised claim if doing so is not an abuse of
discretion.’’ (Internal quotation marks omitted.)
Zatakia v. Ecoair Corp., 128 Conn. App. 362, 367, 18
A.3d 604, cert. denied, 301 Conn. 936, 23 A.3d 729 (2011).
‘‘In general, [an] abuse of discretion exists when a court
could have chosen different alternatives but has
decided the matter so arbitrarily as to vitiate logic, or
has decided it based on improper or irrelevant factors
. . . . Therefore, [i]n those cases in which an abuse of
discretion is manifest or where injustice appears to
have been done, reversal is required.’’ (Internal quota-
tion marks omitted.) D’Ascanio v. Toyota Industries
Corp., 133 Conn. App. 420, 428, 35 A.3d 388 (2012),
aff’d, 309 Conn. 663, 72 A.3d 1019 (2013). ‘‘When
reviewing claims under an abuse of discretion standard,
the unquestioned rule is that great weight is due to the
action of the trial court and every reasonable presump-
tion should be in favor of its correctness . . . . Fur-
thermore, we have stated in other contexts in which
an abuse of discretion standard has been employed that
this court will rarely overturn the decision of the trial
court.’’5 (Footnote added and omitted; internal quota-
tion marks omitted.) Zatakia v. Ecoair Corp., supra,
368.
In the present case, the court, in exercising its discre-
tion, chose to resolve the statute of limitations issue
on the merits despite both parties’ clear procedural
errors. For example, the court could have declined to
consider the defendant’s statute of limitations defense
after she failed to plead a specific statute. Failure to
plead the specific statute on which a statute of limita-
tions defense rests is grounds for waiver of that special
defense when, as in this case, that statute of limitations
is procedural rather than jurisdictional. See Cue Associ-
ates, LLC v. Cast Iron Associates, LLC, 111 Conn. App.
107, 116–17, 958 A.2d 772 (2008) (‘‘[t]he [limitation]
period for tort actions found in § 52-577 is procedural
rather than jurisdictional, thus making it subject to
waiver’’). It was within the court’s discretion, however,
to overlook that procedural error.
Similarly, the court did not abuse its discretion by
reaching the merits of the administratrix’ continuing
course of conduct argument, even though she did not
raise it in her pleadings by way of a reply to the special
defense but, instead, asserted it for the first time in a
posttrial brief. This court said as much in Bellemare v.
Wachovia Mortgage Corp., 94 Conn. App. 593, 607, 894
A.2d 335 (2006), aff’d, 284 Conn. 193, 931 A.2d 916
(2007). In that case, this court explained that ‘‘we
respond substantively to the issue . . . because, how-
ever imperfectly, the plaintiff placed the issue before
the court and, in this instance, we believe it is just to
reach the claim.’’ Id. In the present case, the court
explained that ‘‘[b]oth parties have erred in their plead-
ings but however imperfectly they have each pleaded,
the issues have been placed before the court and the
merits will be reached.’’
Our Supreme Court, in Flannery v. Singer Asset
Finance Co., LLC, 312 Conn. 286, 301, 94 A.3d 553
(2014), explained that ‘‘[b]eyond the trial courts’ discre-
tion to overlook violations of the rules of practice in
the absence of a timely objection from the opposing
party . . . it may be just to reach the merits of a plain-
tiff’s claim to a toll of the statute of limitations, even
when not properly pleaded pursuant to Practice Book
§ 10-57, if the issue is otherwise put before the trial court
and no party is prejudiced by the lapse in pleading.’’ In
the present case, the trial court was in the best position
to determine whether either party had been unfairly
prejudiced by the defendant’s failure to specify the stat-
ute on which her defense rested or by the administra-
trix’ failure to timely raise the continuing course of
conduct doctrine in avoidance of that special defense.
The defendant had ample opportunity to address the
continuing course of conduct doctrine during posttrial
briefing. In her supplemental posttrial brief, the defen-
dant objected to the application of the continuing
course of conduct doctrine on procedural grounds,
arguing only that the court should not address that
doctrine because it had not been pleaded in avoidance
pursuant to Practice Book § 10-57. Nowhere in the
defendant’s posttrial briefs did she specify how she was
prejudiced by the administratrix’ posttrial invocation
of that doctrine. Instead, the defendant makes the bald
assertion in her appellate brief that ‘‘[i]mposing the
continuing course doctrine raised after trial to allow
the [administratrix] to escape the result of the statute
of limitations violates the concept of fundamental
fairness.’’6
It was within the court’s discretion to reach the merits
of the administratrix’ continuing course of conduct
claim once it was put before the court, and it was within
the court’s discretion to determine that no party was
prejudiced by the lapse in pleading. The defendant has
not proven an abuse of discretion in this instance, and
we cannot say that the trial court decided the matter
so arbitrarily as to vitiate logic, or has decided it on
the basis of improper or irrelevant factors. Accordingly,
the court did not abuse its discretion, and the defen-
dant’s argument to the contrary fails.
II
The defendant claims that the court improperly con-
cluded that the continuing course of conduct doctrine
tolled the statute of limitations. The court concluded
that the continuing course of conduct doctrine applied
to toll the statute of limitations until the defendant’s
series of thefts was complete on January 4, 2013, and
that ‘‘this action, having been commenced by service
on July 16, 2015, is within the limitation period set forth
in § 52-577.’’
We conclude that the defendant’s claim challenging
the conclusion that the continuing course of conduct
doctrine tolled the statute of limitations defense based
on the evidence in this case is briefed inadequately.
‘‘We are not required to review issues that have been
improperly presented to this court through an inade-
quate brief. . . . Analysis, rather than [mere] abstract
assertion, is required in order to avoid abandoning an
issue by failure to brief the issue properly. . . . We do
not reverse the judgment of a trial court on the basis
of challenges to its rulings that have not been adequately
briefed.’’ (Citation omitted; internal quotation marks
omitted.) Grasso v. Connecticut Hospice, Inc., 138
Conn. App. 759, 768, 54 A.3d 221 (2012).
The section of the defendant’s brief devoted to this
issue consists of two paragraphs. It contains no case
citations, nor any citations to other legal authority. It
fails to provide an analysis demonstrating why the
court’s conclusion that the continuing course of con-
duct doctrine applied was incorrect. See, e.g., Martin
v. Martin, 101 Conn. App. 106, 122, 920 A.2d 340 (2007)
(where parties cite no law and provide no analysis of
claims, we will not review them). Other than to state,
in a conclusory manner, that ‘‘[this] is not a typical
context argument for this theory’’ and that ‘‘all the
claimed acts evidenced at trial were discrete, distinct
and identifiable,’’ the defendant failed to cite evidence
in the record supporting her claim on appeal that the
court incorrectly applied the continuing course of con-
duct doctrine to these facts.
The defendant’s reply brief fares no better. Her one
page discussion of the continuing course of conduct
doctrine likewise contains no case citations and no
legal analysis. Rather, it states that ‘‘the facts do not fit
the continuing course narrative,’’ and ‘‘[t]he continuing
course exclusion should not apply where the party is
on notice and wilfully blind.’’ Consequently, based on
this inadequate briefing, we do not review this aban-
doned claim.
III
The defendant claims that the court erroneously
found that Stilkey had no knowledge of the defendant’s
actions and had not consented to or authorized them.
Specifically, the defendant challenges the court’s find-
ings of fact, claiming that ‘‘the trial court erred in failing
to consider the implications of [Stilkey’s] knowledge
of [the] defendant’s actions, and consequently, failed
to conclude that [the] defendant’s such actions were
authorized and consented to.’’ The defendant further
contends that the five checks deposited into Stilkey’s
account established ‘‘a proper information that Stilkey
knew of [the defendant’s] assistance for years and took
no action . . . assumedly because she consented to
such.’’ Additionally, the defendant argues that the
‘‘[administratrix] has not evidenced that these checks
were forged, has not proven [the] defendant signed
the checks, and most importantly has not proven that
Stilkey did not sign over those checks to [the defen-
dant].’’ Finally, the defendant argues that because state
and federal taxes were withheld from the checks drawn
from Stilkey’s Prudential account, ‘‘[t]hese deductions
and the consequent benefit to Stilkey on her income
tax clearly suggest that Stilkey was aware of the transac-
tions and consented to them.’’ (Emphasis omitted.)
We disagree.
The following additional facts are relevant to the
defendant’s claim. In the administratrix’ revised com-
plaint, she alleged that, ‘‘[i]n 2009, the defendant rees-
tablished contact with [Stilkey] and gained her trust,
and [Stilkey] believed the defendant had become a
trusted friend.’’ At trial, the administratrix’ counsel
asked the defendant two questions related to her 2009
reentry into Stilkey’s life: ‘‘And sometime in 2009, you
befriended Mrs. Stilkey again.’’ ‘‘And you helped her
with her taxes and learned her Social Security number
and took other documents from her house.’’ To both
of those questions, the defendant responded: ‘‘Upon the
advice of counsel, I hereby invoke my fifth amend-
ment right.’’
Additionally, the administratrix’ counsel asked the
defendant a number of detailed, probative questions
concerning the Prudential transactions. Specifically, the
administratrix’ counsel asked the defendant: (1) ‘‘and
Lois Stilkey never gave you her permission to call [Pru-
dential] on her behalf’’; (2) ‘‘[a]nd you forged [Stilkey’s]
name on each and every one of those checks that are
listed on exhibit two’’; and (3) ‘‘[y]ou stole all of that
money from Mrs. Stilkey, didn’t you?’’ On each occasion
the defendant similarly declined to answer, stating:
‘‘Upon the advice of counsel, I hereby invoke my fifth
amendment right.’’
The court found that ‘‘Stilkey did not authorize [the
defendant] to take $101,501.31 of her Prudential
account moneys. [The defendant] took these funds with
the intent to deprive Ms. Stilkey of her moneys. The
theft represented an ongoing scheme to appropriate the
moneys and deplete the Prudential account owned by
Ms. Stilkey.’’ The court also addressed the defendant’s
invocation of her fifth amendment right and her refusal
to respond to probative questions at trial, noting that
‘‘[t]he court infers from the defendant’s silence a tacit
admission that she stole from Ms. Stilkey.’’ Those find-
ings in particular are the subject of the defendant’s
claim of error.
We begin by setting forth the applicable standard of
review. The trial court’s findings of fact ‘‘are binding
upon this court unless they are clearly erroneous in
light of the evidence and the pleadings in the record
as a whole . . . . 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 mistake has been
committed. . . .
‘‘In applying the clearly erroneous standard of review,
[a]ppellate courts do not examine the record to deter-
mine whether the trier of fact could have reached a
different conclusion. Instead, we examine the trial
court’s conclusion in order to determine whether it
was legally correct and factually supported. . . . This
distinction accords with our duty as an appellate tribu-
nal to review, and not to retry, the proceedings of the
trial court. . . .
‘‘[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 . . . and the trial
court is privileged to adopt whatever testimony [it] rea-
sonably believes to be credible. . . . On appeal, we do
not retry the facts or pass on the credibility of wit-
nesses.’’ (Citations omitted; internal quotation marks
omitted.) FirstLight Hydro Generating Co. v. Stewart,
328 Conn. 668, 679–80, 182 A.3d 67 (2018).
As we have noted, the defendant exercised her fifth
amendment right several times during the trial. The fifth
amendment privilege against self-incrimination ‘‘not
only protects the individual against being involuntarily
called as a witness against himself in a criminal prosecu-
tion but also privileges him not to answer official ques-
tions put to him in any other proceeding, civil or crimi-
nal, formal or informal, where the answers might
incriminate him in future criminal proceedings.’’ (Inter-
nal quotation marks omitted.) Olin Corp. v. Castells,
180 Conn. 49, 53, 428 A.2d 319 (1980), citing Lefkowitz
v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d
274 (1973). ‘‘The privilege does not, however, forbid
the drawing of adverse inferences against parties to
civil actions when they refuse to testify in response to
probative evidence offered against them. The prevailing
rule is that the fifth amendment does not preclude the
inference where the privilege is claimed by a party to a
civil cause.’’ (Emphasis omitted.) Olin Corp. v. Castells,
supra, 53–54. Guided by those principles, we address
each of the defendant’s arguments in turn.
First, the defendant argues that the five checks depos-
ited into Stilkey’s account indicate that Stilkey ‘‘knew
of [the] defendant’s assistance.’’ Indeed, the administra-
trix’ revised complaint indicates that the defendant had
become Stilkey’s ‘‘trusted friend,’’ and the defendant’s
invocation of the fifth amendment when asked whether
she prepared Stilkey’s tax returns permits the adverse
inference that she did so. Accordingly, the court could
have found that Stilkey was aware that the defendant
was ‘‘assisting’’ her with her finances. The court could
also have found, and, indeed, did find that, even if Stil-
key had been aware of the defendant’s general financial
assistance, ‘‘[she] did not authorize [the defendant] to
take $101,501.31 of her Prudential account moneys.’’
Stilkey may have been aware of the defendant’s general
financial assistance, but that does not imply that she
authorized or consented to the defendant’s withdrawals
from her IRA.
Second, the defendant argues that the administratrix
failed to prove that the signatures on the checks depos-
ited into the defendant’s account were forged, that Stil-
key did not sign the checks, and that Stilkey did not
sign the checks over to the defendant. At trial, the
administratrix presented evidence that the defendant
falsely identified herself as Lois Stilkey during each of
the Prudential phone calls in order to have checks
issued from Stilkey’s IRA. Additionally, the administra-
trix’ counsel asked the defendant at trial, ‘‘and you
forged [Stilkey’s] name on each and every one of those
checks . . . .’’ The defendant responded by invoking
her fifth amendment right against self-incrimination.
Accordingly, the court was entitled to draw an adverse
inference that the defendant forged Stilkey’s signature
on those checks.
Finally, the defendant claims that because state and
federal taxes were withheld from the checks at issue,
Stilkey must have been aware of the Prudential transac-
tions and consented to them. We disagree. Indeed, there
is evidence in the record that the defendant prepared
Stilkey’s tax returns after reentering her life in 2009.
The fact that taxes were withheld from the fraudulently
issued checks did not persuade the trial court that Stil-
key was aware of the defendant’s actions, and we, like-
wise, are not persuaded.
The court’s findings are supported by the evidence
and this court is not left with a definite and firm convic-
tion that any mistake has been committed. We conclude,
therefore, that the court’s findings are not clearly erro-
neous. We iterate that it is not the function of this
court to retry the case or reassess the credibility of
the witnesses. Accordingly, the defendant’s claims of
factual error fail.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Stilkey died on March 30, 2016, after the commencement of this action.
On November 16, 2016, the Berlin Probate Court appointed Stilkey’s sister,
Rustigian, to serve as the administratrix of her estate. The court granted
the administratrix’ motion to be substituted as plaintiff in this action on
March 20, 2017.
2
‘‘A QDRO is the exclusive means by which to assign to a nonemployee
spouse all or any portion of pension benefits provided by a plan that is
governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001
et seq.’’ (Internal quotation marks omitted.) Callahan v. Callahan, 192 Conn.
App. 634, 685 n.29, 218 A.3d 655, cert. denied, 333 Conn. 939, 218 A.3d
1050 (2019).
3
The defendant’s special defense stated: ‘‘Plaintiff’s cause of action is
barred by the statute of limitations.’’
4
Practice Book § 10-57 provides in relevant part that a ‘‘[m]atter in avoid-
ance of affirmative allegations in an answer or counterclaim shall be specially
pleaded in the reply.’’
5
We note that the administratrix claimed in her appellate brief that the
plenary standard of review applied because resolution of this claim involved
the interpretation of our rules of practice. We disagree and conclude that
the abuse of discretion standard applies.
6
We note also that, because the defendant failed to raise a claim of
prejudice in her posttrial briefs, she cannot raise it for the first time on
appeal. See O’Connell, Flaherty & Attmore, LLC v. Doody, 124 Conn. App.
1, 7–8, 3 A.3d 969 (2010). Regardless, we conclude that the court did not
abuse its discretion in considering the continuing course of conduct claim.