author: FOTI, J.

text:
    SALLY MALONEY v. PCRE, LLC, ET AL.
    (AC 21351)
    Foti, Dranginis and Flynn, Js.

      Argued January 14
    officially released March 26, 2002

      Peter T. Fay, for the appellants-appellees (defendants).

      Eric R. Posmantier, with whom, on the brief, was Andrew P. Nemiroff, for the appellee-appellant (plaintiff).
   Opinion

FOTI, J.

The present appeals follow a breach of contract action tried before the trial court. The defendants, PCRE, LLC (PCRE), and Real Estate Connecticut, Inc. (Real Estate Connecticut), both doing business as Prudential Connecticut Realty, appeal from the judgment rendered in favor of the plaintiff, Sally Maloney. The defendants claim that the court improperly (1) concluded that they had agreed to spend certain moneys to market a specific real estate project and that this agreement constituted a condition precedent to a modified agreement between the parties, (2) determined that they had breached any contractual obligation owed to the plaintiff, (3) calculated the amount of damages, if any, caused by their alleged breach, (4) rendered judgment jointly against both defendants when the plaintiff did not present a prima facie case against PCRE and (5) awarded certain declaratory relief in the plaintiffs favor. In her cross appeal, the plaintiff claims that the court improperly (1) denied her posttrial request for leave to amend her claim for relief and (2) failed to award her prejudgment interest. We affirm the judgment of the trial court.

The record reveals the following. In her two count complaint, the plaintiff alleged that at all relevant times she was a licensed real estate agent and the defendants were licensed real estate brokers. On January 12, 1994, the plaintiff entered into a written agreement with Real Estate Connecticut. By the agreement’s terms, the plaintiff would be paid 80 percent of all commissions received by Real Estate Connecticut “from the sale of property which the plaintiff showed to and assisted in the sale of to the ultimate purchasers of said property.”

The plaintiff further alleged in her complaint that she subsequently showed and assisted in the sale of twenty-one condominium units that were part of a real estate project in Greenwich (Waterford properties). As a result of the sale of each of the Waterford properties, Real Estate Connecticut received a listing commission that totaled 2.5 percent of the sale price for each property. Although the plaintiffs contractual share of those commission payments totaled $556,206, Real Estate Connecticut paid her only $310,629. Despite the plaintiffs demands, Real Estate Connecticut refused to pay her the $245,577 that she claimed was owed to her. The plaintiff also alleged that in December, 1997, Real Estate Connecticut transferred or sold all of its rights, obligations and interests to PCRE. As a result, PCRE received the commissions that were included in the sale of the Waterford properties and thereafter became bound to pay commission fees that were owed to her. The plaintiff sought the payments that she claimed both defendants owed her under the contract, interest and other costs.

Although the defendants admitted having entered into a contractual agreement with the plaintiff, they denied that such agreement entitled the plaintiff to receive as compensation for her services 80 percent of commission payments received by the defendants for the Waterford properties. They likewise denied owing the plaintiff any payments arising out of her work involving the Waterford properties.

The defendants also pleaded five special defenses. First, the defendants pleaded the defense of accord and satisfaction in that the parties had entered into a subsequent agreement concerning commission payments owed to the plaintiff and that the defendants had paid all funds owed to the plaintiff under that new agreement. Second, the defendants pleaded the defense of unclean hands. They alleged in that regard that the plaintiff, in at least two instances, improperly had directed the seller to pay commissions owed to them to a third party instead of to the defendants and that the plaintiff improperly had removed documents related to that litigation from their place of business. Third, the defendants pleaded that by virtue of her actions, the plaintiff had breached the covenant of good faith and fair dealing that she owed to the defendants. Fourth, the defendants pleaded that by virtue of her actions, the plaintiff had breached the fiduciary duty that she owed to the defendants. Fifth, the defendants pleaded that insofar as the plaintiff had received commission payments in amounts that exceeded the amounts owed to her under the agreement, they were entitled to a setoff for such excess payments.

The court conducted a hearing in August, 1999, and issued its memorandum of decision on October 2, 2000. The court found that the January 12, 1994 contract between the plaintiff and Real Estate Connecticut afforded the plaintiff a nonexclusive license to use the name of “The Prudential Connecticut Realty” in her capacity as a real estate agent. The agreement provided for the payment of commissions to the plaintiff after Real Estate Connecticut had been paid commissions by sellers. The agreement was silent on the manner in which commissions were to be divided between the parties other than to specify that commissions “shall be promptly divided between [the defendant] and [the plaintiff] in the proportion to which each is entitled.”

The parties did not dispute that the owner of the Waterford properties, BSB Greenwich Mortgage Limited Partnership (BSB), agreed to pay a commission price in the amount of 5 percent of the sale price on each property. That 5 percent payment was further divided so that 2.5 percent of the sale price was paid to the selling broker, and 2.5 percent of the sale price was paid to the listing broker. The plaintiff acted as the listing broker on all of the units that are the subject of this action, and her claim involved only the parties’ contractual agreement as to how to divide the listing commissions paid to the defendants.

The court heard evidence concerning the parties’ agreement that the plaintiff would receive an 80 percent commission share from the sale of properties with which she had been involved. The court found credible the plaintiffs testimony that the parties had modified their original agreement concerning the division of listing commissions received by Real Estate Connecticut from the sale of the Waterford properties in that the plaintiff had agreed to receive 50 percent, rather than 80 percent, of the listing commissions. The court further found that she had agreed to that lesser percentage of the commissions because Real Estate Connecticut had agreed to spend at least $200,000 for advertising and marketing of the properties. The court concluded that Real Estate Connecticut’s agreement to market the Waterford properties constituted a condition precedent to the modified commission sharing agreement.

Both parties agreed that the defendant had spent about $80,000 for advertising and marketing prior to the summer or early fall of 1996. Consequently, the court concluded that Real Estate Connecticut and, subsequently, PCRE had failed to satisfy their obligation under the modified agreement. It further concluded that the defendants could not enforce the modified agreement and that the plaintiff was entitled to enforce the original agreement and thereby receive 80 percent of the commission share. The court also concluded that the defendants had failed to prove any of their special defenses. The court awarded damages to the plaintiff in the amount of $79,077. This appeal and cross appeal followed. Additional facts and procedural history will be set forth as necessary in the context of the parties’ claims.

I

APPEAL

A

The defendants first claim that the court improperly concluded that they had agreed to spend $200,000 for advertising and marketing for the Waterford properties and that this agreement constituted a condition precedent to the modified commission sharing agreement between the parties. We disagree.

In her complaint and consistently throughout the course of the proceedings, the plaintiff sought to recover damages against the defendants based on the original agreement between the parties. The defendants alleged in their special defenses that the parties had created a separate, modified agreement for the listing of the Waterford properties. The plaintiff readily acknowledged at trial that the parties had modified their original agreement specifically to cover the listing of the Waterford properties. The parties did not create a written memorial of that modified agreement and, at trial, hotly contested its terms.

The original employment agreement between the parties did not fix the method by which the parties would share commissions. The court had before it, however, a written agreement entitled “Commission Policy & Procedure,” which the parties executed when the plaintiff first began working at Real Estate Connecticut. That agreement provided that the defendants would pay to the plaintiff an 80 percent commission payment. Although that agreement expired by its terms on August 12,1995, the plaintiff testified that even after the policy expired, her supervisor had informed her that her commission share would remain at 80 percent. It was not contested that both before and after Real Estate Connecticut listed the Waterford properties and for all of the plaintiffs work on other properties, the defendants paid her an 80 percent commission share.

The plaintiff testified that sometime prior to June, 1995, she learned about the Waterford properties and began to use her professional efforts to lure its owner, BSB, to list the properties with her at Real Estate Connecticut. The plaintiff testified that she and others at Real Estate Connecticut believed that other companies had marketed the Waterford properties inadequately in the past. The parties acknowledged that prior to Real Estate Connecticut’s involvement, the Waterford properties were considered a failed real estate venture. Real Estate Connecticut’s officers recognized that to entice BSB to award the listing to their company, they would have to agree to commit significant resources to marketing the Waterford properties to ensure sales. The plaintiff testified that representatives from BSB informed representatives from Real Estate Connecticut that they would require the company to spend a minimum of $200,000 to market the Waterford properties. The plaintiff further explained that Casey Jones, then the manager of Real Estate Connecticut’s Greenwich office, informed her that for Real Estate Connecticut to undertake that expenditure, the plaintiff would have to agree to accept a 50 percent share of commissions on the listing side for the Waterford properties units. On the basis of the evidence adduced at trial, the court concluded that Real Estate Connecticut had agreed to spend $200,000 to market the Waterford properties and that this agreement constituted a condition precedent to the modified commission sharing agreement between the parties.

We first set forth our standard of review. “If the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the record or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . With regard to the trial court’s factual findings, the clearly erroneous standard of review is appropriate. . . . The trial court’s legal conclusions are subject to plenary review. [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision. . . . [T]he interpretation of the contract is a matter of law and our review is plenary.” (Citations omitted; internal quotation marks omitted.) Aubin v. Miller, 64 Conn. App. 781, 786, 781 A.2d 396 (2001).

The defendants claim, essentially, that, even if they agreed to spend as much as $200,000 on marketing, that agreement did not constitute a condition precedent but merely a promise. “A condition precedent is a fact or event which the parties intend must exist or take place before there is a right to performance. ... A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor. ... If the condition is not fulfilled, the right to enforce the contract does not come into existence. . . . Whether a provision in a contract is a condition the nonfulfilment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they executed the contract.” (Citations omitted.) Lack v. Cahill, 138 Conn. 418, 421, 85 A.2d 481 (1951).

The court characterized the evidence on the issue of the marketing of the Waterfront properties as follows: “The defendants appear to argue that the plaintiff voluntarily agreed to decrease her 80 percent share of the listing broker’s commission, which she had been receiving, without receiving any benefit, an interpretation that may speak well for the plaintiffs benevolence, but defies logic in the real estate business.”

Although the parties did not produce a written memorial of the modified agreement, the court heard ample evidence concerning the terms of the modified agreement, the circumstances surrounding its execution and the intent of the parties. “[W]hat the parties intended to encompass in their contractual commitments is a question of the intention of the parties, and an inference of fact. ... As such, the findings of the trial court may be overturned only if clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Gallicchio Bros., Inc. v. C & S Oil Co., 191 Conn. 104, 107, 463 A.2d 600 (1983). Although the court heard conflicting evidence concerning the modified agreement, the court concluded that “[t]he plaintiffs testimony on this point and all others is found to be credible and logical.”

The defendants apparently ask this court to second-guess the trial court’s evaluation of the evidence on that issue. They posit that it would have been illogical for the defendants to have agreed to spend $200,000 on marketing and that it would have been illogical for them to have intended to make that commitment a condition precedent to the modified agreement. Although the defendants assert that the plaintiff had, as she testified, agreed to receive 50 percent of commissions, they likewise assert that “[a] far more likely scenario is that [Real Estate Connecticut] only agreed to take the listing and only agreed to spend . . . $77,000 if [the] plaintiff agreed to reduce her commission to 50 percent on the listing side.” It is axiomatic that we do not reevaluate the credibility to be afforded witnesses or the weight to be given specific testimony. K.A. Thompson Electric Co. v. Wesco, Inc., 27 Conn. App. 120, 126, 604 A.2d 828 (1992).

The evidence demonstrated that both parties recognized that aggressive marketing was needed to sell units in the Waterford properties. The court found credible the plaintiffs testimony that she agreed to forgo substantial commission payments because the defendants were going to spend $200,000 on marketing. The court logically could have inferred that given the plaintiffs commitment so that the defendants could invest such funds in the project, the parties had intended for that expenditure to be a condition precedent. Further, the court logically could have found that it was both logical and reasonable for the plaintiff to have agreed to forgo a large portion of her commission share only because the defendants had agreed to invest $200,000 to market the Waterford properties. Accordingly, we are unable to conclude that the court’s findings as to the terms of the modified agreement are clearly erroneous.

B

The defendants next claim that the court improperly concluded that they breached any contractual obligation that they owed to the plaintiff. We disagree.

At trial, the parties represented that they had sought to modify their original employment agreement and to create a new agreement solely for the Waterford properties listing. The defendants rely on that evidence and claim that the court improperly concluded that they had breached the original agreement because the parties did not intend for that agreement to apply to the Waterford properties project.

The court concluded that once the modified agreement failed because of the defendants’ failure to satisfy the condition precedent, the plaintiff was entitled to commissions as provided in the original agreement between the parties. We are unable to conclude that the court’s decision in that regard resulted from an improper application of the law or was unsupported by the evidence adduced at trial.

Our discussion in part I A makes clear that absent any modification, the original agreement between the parties governed all of the plaintiffs sales and listings, professional duties and relationship with the defendants. Likewise, the commission sharing agreement between the parties, as well as the verbal commitments made to the plaintiff after the expiration of the original agreement as to her entitlement to an 80 percent commission share for her work, purported to apply to all of her sales and listings. At the time that the parties sought to modify their original agreement, the defendants were contractually obligated, by virtue of the written commission policy, to pay the plaintiff an 80 percent commission share. The defendants paid the plaintiff an 80 percent share for sales and listings prior to when she began working on the Waterford properties and continued to do so after that time.

The scope of the parties’ proposed modified agreement was essentially undisputed; it applied only to the listing commissions for the Waterford properties. The court found that the defendants were to pay the plaintiff a decreased commission share and, in return, spend $200,000 to market the Waterford properties. We already have determined, however, that the court properly concluded that the modified agreement failed because the defendants failed to satisfy the condition precedent for that agreement.

The court logically could have concluded that the parties intended for the original agreement to govern all of the plaintiffs professional services while she worked with the defendants. It is clear that the defendants sought to modify their existing agreement with the plaintiff because its commission sharing terms would have applied to her work on the Waterford properties. In other words, absent a modified agreement, the defendants would have been obligated to pay the plaintiff her customary 80 percent commission share. Despite the fact that the parties might have intended for the modified agreement to govern commissions for the Waterford properties, the professional services rendered on behalf of the defendants by the plaintiff for that project were of the same character as all of her other work for the defendants, and were governed by the provisions and standards set forth in the original agreement.

The legal consequence of the defendants’ failure to satisfy the condition precedent to the modified agreement is clear: “If the condition [precedent] is not fulfilled, the right to enforce the contract does not come into existence.” Lack v. Cahill, supra, 138 Conn. 421. The court properly determined that once the defendants could not enforce the modified agreement, the original agreement between the parties applied to the plaintiffs work on the Waterford properties. Consequently, it properly awarded damages that resulted from the defendants’ breach of that agreement.

c

The defendants next claim that the court improperly measured the plaintiffs damages, if any, caused by their breach. We disagree.

The defendants’ argument is based on the premise that the court awarded damages for breach of the modified agreement. It follows, they argue, that the plaintiff could not have demonstrated that she suffered any damages from their breach of that agreement because, despite their failure to spend $200,000 on marketing for the properties, the plaintiff still received all of the benefits of her bargain with respect to those properties. They point to the undisputed facts that all of the units were sold and that the plaintiff received all of the commission payments due her under the terms of the modified agreement from the sale of those units. In sum, the defendants argue, “[t]he plaintiff offered absolutely no evidence to support a claim that she was in a worse position than she would have been in had [the defendants] spent $200,000.”

After finding that the defendants had breached their contract with the plaintiff, the court noted that it would award damages to put the plaintiff in as good a position as she would have been had the contract been performed. It concluded, “[t]he plaintiff did sustain damages because she lost 30 percent of the commissions she would have earned had she not agreed to cut back her share from 80 percent to 50 percent.” The defendants claim in their principal brief that the court “essentially determined that the plaintiff suffered ‘damages’ as a result of having entered into the modified agreement, rather than determining whether any damages were caused by the defendants’ alleged breach of the modified agreement.” (Emphasis in original.)

We first set forth our standard of review. We undertake a plenary review of the standards or rule applied to the facts by the trial court. See Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn. App. 657, 664, 778 A.2d 237 (2001). The defendants agree that the court stated the proper rule by which it should measure damages. They argue, however, that the court misapplied that standard and that the evidence adduced at trial did not support its findings of damages. “In making its assessment of damages for breach of [any] contract the trier must determine the existence and extent of any deficiency and then calculate its loss to the injured party. The determination of both of these issues involves a question of fact which will not be overturned unless the determination is clearly erroneous.” (Internal quotation marks omitted.) L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 41, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986).

The court apphed the proper legal standard when it assessed the plaintiffs claim of damages. “It is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed. . . . The injured party, however, is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain. . . . Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach.” (Citations omitted; internal quotation marks omitted.) Argentinis v. Gould, 219 Conn. 151, 157-58, 592 A.2d 378 (1991).

We note, at the outset, that the defendants’ argument results from their mischaracterization of the basis for the court’s judgment. The court did not award damages for the defendants’ breach of the modified contract. The court held that the modified contract was unenforceable because the defendants had not satisfied the condition precedent for the modified agreement. See part I A. The court permitted the plaintiff to recover under the original agreement between the parties. See part I B.

The court properly determined, from the evidence before it, that the plaintiff received only 50 percent of the listing commissions from the Waterford properties. Because the modified agreement was unenforceable, the court applied damages based on the defendants’ agreement to pay the plaintiff an 80 percent commission. In that regard, the court properly permitted the plaintiff to recover the lost income that she would have realized if the defendants had paid her an 80 percent commission share.

In the present case, the record clearly reveals that this damage amount equaled the 30 percent difference between the commission payments that the defendants paid the plaintiff for her services and the commission payments that the defendants should have paid the plaintiff under the original agreement.

D

The defendants next claim that the court improperly rendered judgment jointly against both defendants because the plaintiff did not present a prima facie case against PCRE. We are unable to review the defendants’ claim.

In count two of her complaint, the plaintiff sought to recover from PCRE the balance of the commission payments for her work on the Waterford properties. She alleged that in December, 1997, Real Estate Connecticut “transferred or sold all of its rights, obligations and interests” to PCRE and that, thereafter, both entities conducted business under the name “Prudential Connecticut Realty.” The record reveals that in their post-trial brief, the defendants argued that the evidence was insufficient to support a prima facie case against PCRE. The court thereafter rendered judgment against both defendants. The court’s memorandum of decision, however, does not set forth any factual findings, legal authority or legal conclusions in regard to its decision to render judgment against both defendants.

Despite the fact that the defendants raised the issue before the trial court, they made no effort to acquire from the court the basis for that aspect of its decision. The appellant bears the burden of furnishing this court with an adequate record on which to review the trial court’s factual and legal determinations. Practice Book § 61-10. “It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision . . . [or] to clarify the legal basis of a ruling . . . .” (Internal quotation marks omitted.) Community Action for Greater Middlesex County, Inc. v. American Alliance Ins. Co., 254 Conn. 387, 394, 757 A.2d 1074 (2000); see Practice Book § 66-5. The record is not adequate to review the defendants’ claim, and we thus decline to afford review.

E

Finally, the defendants claim that the court improperly awarded the plaintiff declaratory relief concerning unpaid commissions for the sale of three units. We disagree.

The following additional facts and procedural history underlie the defendants’ claim. On July 23, 1999, and on August 19,1999, the plaintiff filed requests for leave to file an amended complaint to include, inter alia, a third count. The plaintiff alleged in that proposed third count that BSB had entered into a contract with Real Estate Connecticut that obligated it to pay Real Estate Connecticut a 5 percent commission on the sale price of three separate units in the Waterford properties if Real Estate Connecticut found “a buyer ready, willing and able to buy said real property.” The plaintiff alleged that she, working as an agent of either or both of the defendants, provided such purchasers for those units and that the purchasers did purchase those units. She further alleged that BSB had not yet paid to the defendants the commissions for those sales. The plaintiff then alleged that the defendants had refused her demand to be paid her 80 percent share of the commissions from those sales. She sought as relief for her claim “[a] declaration that compensatory damages representing the plaintiffs 80 percent share of the total commissions received by the defendants from BSB be paid to the plaintiff if and when such commissions are received by the defendants from BSB.”

On August 6, 1999, the defendants filed an objection to the plaintiffs July 23,1999 request for leave to amend her complaint. The defendants argued that the late amendment would prejudice their ability to defend against the proposed third count and that in the event that the court decided to grant the request, they should be afforded a reasonable period of time in which to prepare a motion to strike, other responsive pleadings or a motion to implead BSB as a third party defendant. When the trial began on August 19, 1999, the court and the plaintiffs attorney engaged in a colloquy regarding the requests for leave to amend and the defendants’ objections thereto.

The court noted that in counts one and two of her original complaint, the plaintiff already had alleged that she was owed an 80 percent commission from the sale of the three units that were the subject of the proposed third count of the complaint. The plaintiffs counsel argued that he sought to add count three out of an “excess of caution” because BSB had not yet paid the defendants the commissions for those units. The plaintiffs counsel noted that because the defendants had not received the payments, they had not yet breached their contractual duty to pay the plaintiff her share of the commission payments. Likewise, the plaintiffs counsel argued that whatever the court’s decision with respect to the issue of commission share was, it should resolve the issue of what the defendants owed the plaintiff for her services as to those units.

The court stated that it did not see the rationale for adding the third count because its decision as to the plaintiffs commission percentage would apply to all commissions received by the defendants from BSB. The plaintiff ultimately withdrew her request to amend. In its memorandum of decision, the court found that the plaintiffs efforts resulted in the sale of those three units despite the fact that they had not closed prior to the date that her employment for the defendants terminated. The court also noted that pursuant to her contract with the defendants, the defendants were entitled to retain a reasonable portion of the plaintiffs commission share as to those units “ ‘to defray costs and expenses attributable to the servicing and closing of the sale after termination.’ ” Although the court noted that the parties disputed the appropriate setoff to defray the defendants’ costs and expenses, the court ruled that “whatever the ultimate amount of commission paid to the listing broker, the plaintiff is entitled to 80 percent thereof . . . .”

On appeal, the defendants challenge the court’s ruling in that regard on two grounds. First, they argue that the court improperly granted declaratory relief because the plaintiff did not seek such relief in the operative complaint. Second, they argue that even if the court could have properly granted such relief, the evidence did not warrant it in this case.

1

We first address the defendants’ claim that the plaintiffs complaint precluded the court from awarding declaratory relief for the three units that were the subject of the proposed third count of the complaint.

The interpretation of pleadings is an issue of law. As such, our review of the court’s decisions in that regard is plenary. Forte v. Citicorp Mortgage, Inc., 66 Conn. App. 475, 484, 784 A.2d 1024 (2001). Our courts enforce the well established rule that precludes litigants from alleging one cause of action and recovering on another. A court may not grant relief on the basis of an impleaded claim. Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 575, 715 A.2d 46 (1998). “The modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Internal quotation marks omitted.) Forte v. Citicorp Mortgage, Inc., supra, 484-85.

Likewise, variations between facts or issues alleged in a complaint and facts or issues raised at trial do not necessarily preclude a court from basing its decision on the facts or issues actually litigated at trial. See Tedesco v. Stamford, 215 Conn. 450, 457, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992). “A variance in the factual aspect of a case which does not prejudice the opponent, and which does not change the theory of the cause of action, should not under ordinary circumstances be allowed to make voidable an otherwise sound judgment. . . . Of course, a variance which alters the basic nature of a complainant’s cause of action cannot be condoned.” (Citations omitted; internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 63, 717 A.2d 77 (1998).

Furthermore, our Supreme Court has noted that the absence of a claim from the pleadings does not automatically preclude a trial court from addressing that claim. “[A] court may, despite pleading deficiencies, decide a case on the basis on which it was actually litigated and may, in such an instance, permit the amendment of a complaint, even after the trial, to conform to that actuality. . . . Indeed . . . even in the absence of such an amendment, where the trial court had in fact addressed a technically impleaded claim that was actually litigated by the parties, it was improper ... to reverse the trial court’s judgment for lack of such an amendment.” (Citations omitted.) Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 575.

In the present case, we are unable to conclude that the court’s declaratory award with respect to the units was improper. We rely first on the fact that a broad and realistic interpretation of the complaint put the defendant on notice that the plaintiff sought to litigate the issue of her compensation, more specifically her commission share, for the work she performed as to all the units in the Waterford properties. She specifically referred to the three units at issue here in her complaint. To that extent, we do not conclude that there was a pleading deficiency. The plaintiff alleged that she showed and assisted in the sale of the units and that the defendants had failed to pay to her the 80 percent share to which her agreement with the defendants entitled her. Although she alleged that the defendants had received a commission from the sale of the properties, that variation from the proof adduced at trial that showed that the defendants had not, as of that time, received the commission payments from BSB, did not preclude the court from adjudicating the plaintiffs commission share of such payments. That issue was the basis for her action and the basis for the court’s award.

Second, the parties actually litigated the issue of the plaintiffs commission for the sale of the three units. The plaintiff introduced evidence in that regard. The defendants argued at trial that the evidence did not support an award concerning those units because the defendants had not yet received the commission payments arising from their sale.

Third, we note that by way of the plaintiffs garnishment order and her attempts to amend her complaint, the defendants were on notice that the plaintiff sought to have the court resolve the issue of commissions for the three units as well as for the others. The court’s award did not depart from the general theory on which the plaintiff based her action or from how it was presented at trial. As such, we are unable to see how the court’s consideration of the issue caused the defendant to suffer any surprise or prejudice.

2

We now address the defendants’ claim that the evidence adduced at trial did not support the court’s award with respect to the three units. We review the court’s factual findings under the clearly erroneous standard of review. To the extent that the court has drawn legal conclusions from the facts found, our review is plenary.

The defendants argue that “the court’s own findings do not support the award of declaratory relief.” The court found that the ultimate sale of the three units resulted from the plaintiffs efforts prior to when she left the defendants’ employ in December, 1997. The court noted that the contract between the parties provided that the defendants were entitled to retain a reasonable portion of the plaintiffs commission to defray the costs and expenses expended to finalize the sale and closing following her departure from the company. The court further noted that as it had issued a garnishment order dated March 1,1999, for $250,000, the commissions had not yet been paid to the plaintiff. The court also noted that the contract between the parties provided that the defendants were not obligated to pay commissions to the plaintiff until they had received such payments upon passage of title from the seller to the buyer.

The defendants appear to argue that because the court acknowledged that the defendants’ reasonable fees and expenses for the sale of the three units was still in dispute, and because the defendants had not yet received commission fees from BSB for the units and were not yet contractually bound to pay commissions to the plaintiff, the court was unable to award the declaratory relief that it did. We disagree.

The court’s discussions of the issue in its memorandum of decision, as well as prior to trial, evince the court’s understanding that the issue of commissions for the sale of the three units was a real dispute between the parties and that despite the fact that the defendants were not obligated to pay the plaintiff commission payments until they themselves received such payments, the issue of the plaintiffs commission for the units demanded resolution. The plaintiffs counsel expressed reservations about not resolving the issue at trial and the hardship such an omission would cause the parties, who would possibly have to endure the long and costly process of relitigating the same issue in a subsequent proceeding.

Practice Book § 17-54 provides that the court may award declaratory relief “as to the existence or nonexistence (1) of any right, power, privilege or immunity; or (2) of any fact upon which the existence or nonexistence of such right, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future.” Practice Book § 17-55 permits a court to award such relief if the following conditions are met: “(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party’s rights or other jural relations; (2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure.”

We afford the court “wide discretion to render a declaratory judgment unless another form of action clearly affords a speedy remedy as effective, convenient, appropriate and complete.” (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). We also are mindful that a “plaintiff should need an authoritative settlement of [the interest at issue] so that he may avoid the expense of future litigation or action.” Bombero v. Planning & Zoning Commission, 40 Conn. App. 75, 80, 669 A.2d 598 (1996).

We conclude that the present forum afforded the court an appropriate opportunity in which to resolve the issue. Nothing prevented the court from issuing such relief in circumstances, as here, where the plaintiff demonstrates a controversy that either now exits or will arise in the future. As our Supreme Court has noted, one of the benefits of such relief “is to enable parties to have their differences authoritatively settled in advance of any claimed invasion of rights, that they may guide their actions accordingly and often may be able to keep them within lawful bounds, and so avoid the expense, bitterness of feeling and disturbance of the orderly pursuits of life which are so often the incidents of law suits.” Sigal v. Wise, 114 Conn. 297, 301, 158 A. 891 (1932).

The issue before the court was not hypothetical. The court recognized that commissions still had not been paid to the defendant and that the defendants were entitled to a setoff before the plaintiff would be paid. Nonetheless, the defendants were bound to pay commissions to the plaintiff, and the court properly chose to apply its decision as to the other units to the sale of the three units that were the subject of the proposed third count of the complaint. There is nothing improper about affording such relief where it is necessary “to determine rights which will arise or become complete only in the contingency of some future happening.” Id., 302.

II

CROSS APPEAL

A

The plaintiff first argues that the court improperly denied her request to amend her complaint to comport with the evidence presented at trial. We disagree.

The following additional facts and procedural history underlie the plaintiff’s claim. The evidentiary hearing for the trial concluded in August, 1999. On June 14, 2000, the plaintiff filed a request for leave to amend her complaint, seeking to add, inter alia, a prayer for punitive damages as provided in General Statutes § 31-72. The defendants thereafter filed an objection to that request. The court, relying in part on the fact that the plaintiff had filed her request approximately ten months following the hearing, denied her request. It explained that “[gjranting the plaintiffs motion at this time would be prejudicial to the defendants who tried the case on the theory that the plaintiff was an ‘independent contractor,’ as was stated numerous times in the contract she signed with Prudential, and not an employee.”

“Whether to allow an amendment is a matter left to the sound discretion of the trial court. [An appellate] comb will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. ... It is the [plaintiffs] burden in this case to demonstrate that the trial court clearly abused its discretion.” (Internal quotation marks omitted.) Mastrolillo v. Danbury, 61 Conn. App. 693, 696, 767 A.2d 1232 (2001).

The trial court may permit an amendment to pleadings at any time. Drew v. K-Mart Corp., 37 Conn. App. 239, 242, 655 A.2d 806 (1995). Although our courts have been liberal in permitting amendments, that liberality is restrained by certain considerations. “Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.” Wagner v. Clark Equipment Co., 259 Conn. 114, 128, 788 A.2d 83 (2002).

In denying the plaintiffs motion, the court made reference to the length of the delay and the prejudice that the late amendment would have caused the defendants. We note that the plaintiff failed to offer the court any explanation for her failure to seek the relief she sought in her amendment at any time prior to trial or immediately thereafter. Despite the plaintiffs assertion that amending the complaint to permit her to recover damages as an employee would visit no harm to the defendants, the court reasonably found to the contrary. The defendants proceeded with their evidence and arguments at trial based on the theory that the plaintiff was seeking relief as an independent contractor. The plaintiff correctly points out that our Supreme Court has held that real estate salespersons may be found to be employees and thus fall within the ambit of relief afforded by § 31-72. Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 700, 651 A.2d 1286 (1995). Nevertheless, it would prejudice a defendant for a plaintiff to amend his or her complaint to seek relief under that theory after the evidentiary phase of a trial where neither party addressed the issue. As our Supreme Court stated in Tianti: “The determination of the status of an individual as an independent contractor or employee is often difficult . . . and, in the absence of controlling considerations is a question of fact.” (Internal quotation marks omitted.) Id., 696.

Obviously, the plaintiff needed to allege facts in her complaint and to produce evidence at trial to substantiate her allegations. Likewise, the defendants were entitled to receive notice of that issue to have the opportunity to refute the plaintiffs evidence in support of that issue and to produce evidence to the contrary, should they have so desired. We conclude that the court acted well within the bounds of its discretion in denying the plaintiffs motion.

B

The plaintiff next claims that the court improperly failed to award her prejudgment interest as provided by General Statutes § 37-3a.

The trier of fact may award prejudgment interest, as an element of damages, for the detention of money after it becomes payable if equitable considerations deem that such interest is warranted. Aubin v. Miller, supra, 64 Conn. App. 798. An award of such interest is an equitable determination lying within the trier’s sound discretion. Rapin v. Nettleton, 50 Conn. App. 640, 651, 718 A.2d 509 (1998). The determination “is one to be made in view of the demands of justice rather than through the application of an arbitrary rule.” (Internal quotation marks omitted.) Id.

“A trial court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated.” (Internal quotation marks omitted.) Id.

The plaintiff posits that the court’s refusal to award prejudgment interest is inconsistent with its finding that the defendants improperly failed to pay her an 80 percent commission share. The plaintiff argues in her principal brief that “[a] finding by the trial court that the defendants breached the 80/20 agreement is equivalent, in all logical respects, to a finding that moneys were wrongfully withheld from the plaintiff by the defendants.” That is not necessarily the case. The court specifically found that the defendants had not wrongfully withheld the plaintiffs money. The court explained that “[tjhere was a bona fide dispute concerning the refusal of the defendants to spend $200,000 on advertising and marketing, and whether that gave rise to any damages. The amount sought was essentially unliquidated in the sense that the exact amount due was unknown and subject to a possible setoff. Moreover, there was no evidence of bad faith or wilfulness on the part of the defendants.”

We conclude that the court was well within the exercise of its sound discretion when it declined to award such interest. A plaintiffs burden of demonstrating that the retention of money is wrongful requires more than demonstrating that the opposing party detained money when it should not have done so. The fact that an award of such interest is discretionary and subject to equitable considerations, rather than automatic, reflects the reality that not all improper detentions of money are wrongful.

“Our courts have seldom found an abuse of discretion in the determination by a trial court of whether a detention of money was wrongful.” (Internal quotation marks omitted.) Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 136, 147, 619 A.2d 866 (1993). The resolution of the issue is dependent on the circumstances in each case and is, consequently, inherently fact bound. Middlesex Mutual Assurance Co. v. Walsh, 218 Conn. 681, 702, 590 A.2d 957 (1991). Prior courts have properly awarded prejudgment interest despite the fact that the issues at trial were “ ‘hotly contested’ Solomon v. Hall-Brooke Foundation, Inc., supra, 147; and courts have found that such interest was warranted because a party had detained money to punish the party who rightly should have possessed it. Aubin v. Miller, supra, 64 Conn. App. 798. Other courts have upheld a trial court’s refusal to award such damages where the trial court found that the party who had detained moneys had made good faith arguments in defense of its actions; Maluszewski v. Allstate Ins. Co., 34 Conn. App. 27, 39, 640 A.2d 129, cert. denied, 229 Conn. 921, 642 A.2d 1214 (1994); or where the trial court found that the defendant improperly withheld moneys under a good faith belief, bolstered by the advice of counsel, that an agreement was enforceable. Hoye v. DeWolfe Co., 61 Conn. App. 558, 564, 764 A.2d 1269 (2001).

In the present case, the court concluded not only that the parties had engaged in a bona fide dispute as to whether such commission payments were owed to the plaintiff, but that the exact amount of the payments was uncertain. Furthermore, the evidence at trial unequivocally demonstrated that for a considerable period of time, the plaintiff submitted written requests to the defendants solely for a 50 percent commission share and that she first requested payment for unpaid commission payments in excess of that amount after she left the defendants’ employ. Given the evidence before it, the court acted well within the bounds of its sound discretion when it declined to award prejudgment interest.

The judgment is affirmed.

In this opinion the other judges concurred.

       The agreement is entitled “Independent Contractor Agreement.”

       The court noted that the fact that the plaintiff also acted as the selling broker for several of those units was not relevant to the issues before it.

       The defendants also claim in their principal brief that the court improperly found “that there was a failure of a condition precedent when this theory of the case was not part of the pleadings or the evidence at trial.” The defendants argue that the court was bound to render its judgment based solely on the allegations set forth in the plaintiffs complaint. They further assert that the plaintiff neither pleaded nor presented evidence in support of that theory and that the court’s actions denied them the opportunity to “prepare for, argue or in any way address this theory of the case.”
      A plaintiff’s ability to recover damages is always circumscribed by the allegations set forth in his or her complaint. Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977). “[T]he interpretation of pleadings is always a question of law for the court . . . .” (Citation omitted; internal quotation marks omitted.) Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985). Although courts in this state construe pleadings broadly and realistically, the burden remains on the plaintiff to set forth the relevant facts alleged and the issues to be tried so as not to surprise or prejudice the rights of the opposing party. Cellu Tissue Corp. v. Blake Equipment Co., 41 Conn. App. 413, 417, 676 A.2d 405 (1996).
      The court’s judgment is based on a breach of the original agreement. The defendants sought to rely on the modified agreement and pleaded, as a special defense, that they had “paid all funds due [to the plaintiff] under the new agreement or agreements.” The defendants alleged the existence of the modified agreement, fully addressed issues related to the terms of that agreement, and the circumstances under which they were made and sought to hold the plaintiff to the commission sharing agreement contained therein. “The defendants, as the parties alleging that there was a modification, bear the burden of proof as to that issue.” Lar-Rob Bus Corp. v. Fairfield, 170 Conn. 397, 402, 365 A.2d 1086 (1976); see also First Hartford Realty Corp. v. Ellis, 181 Conn. 25, 34, 434 A.2d 314 (1980); Hess v. Dumouchel Paper Co., 154 Conn. 343, 349, 225 A.2d 797 (1966).
      The defendants mischaracterize the grounds on which the court rendered judgment. The court granted relief to the plaintiff based on the theory of relief set forth in her complaint. Furthermore, we find no merit to the defendants’ claim that the court’s findings with regard to the modified agreement in any way caused them to suffer surprise or prejudice.

       Although the defendants consistently had claimed that they did not agree to spend $200,000 to market the Waterford properties, they argue before this court that the trial court should have considered the fact that they spent approximately $80,000 on marketing and the fact that “there was no definite time frame for [their] promise to spend $200,000 on advertising . . . .” They further argue that they had been “in the process of performing under the modified agreement” when the units began to sell rapidly. They further argue that because all of the units were sold, there was no need for them to continue to spend money on advertising and for the court to have required them to have done so would “result in economic waste.” Finally, they assert that “the court should have concluded that the intent of the modified agreement was satisfied and that [the defendants], to the extent practicable, had substantially performed under the modified agreement and, therefore, did not breach the modified agreement.”
      We are able to dispose of that “substantial performance” claim without much discussion. First, we already have concluded in part IA that Real Estate Connecticut’s commitment to spend $200,000 was a condition precedent to the modified agreement. Although the defendants’ lesser expenditure may have achieved the desired result in regard to the sale of the units, it did not satisfy the defendants’ contractual obligation under the modified agreement. Second, the defendants did not raise that argument before the trial court. Accordingly, there is no indication in the record that the court considered that defense or made any factual or legal conclusions in regard thereto. We reiterate that “our appellate courts do not consider issues of law that were not presented first to the trial court.” (Internal quotation marks omitted.) Taylor v. Zoning Board of Appeals, 65 Conn. App. 687, 697, 783 A.2d 526 (2001).

       In their appellate brief, the defendants concede that the trial court failed to set forth any factual findings relevant to this issue.

       The plaintiff referred to the sale of units C-15, D-23 and D-24.

       On March 1,1999, the court awarded the plaintiff a prejudgment remedy by garnishing $250,000 held in an escrow account by BSB for the defendants.

       See footnote 7.

       General Statutes § 31-72 provides in relevant part: “When any employer fails to pay an employee wages in accordance with the provisions of sections 31-71ato 31-71Í, inclusive, or fails to compensate an employee in accordance with section 31-76k . . . such employee . . . may recover, in a civil action, twice the full amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court . . .

       General Statutes § 37-3a provides in relevant part: “[I]nterest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions ... as damages for the detention of money after it becomes payable. . . .”


source: Caselaw Access Project

author:
MIHALAKOS, J.
      LANDAU, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. PAUL CRNKOVIC
    (AC 21233)
    Landau, Mihalakos and Daly, Js.

      Argued December 3, 2001
    officially released March 26, 2002

      Steven D. Jacobs, for the appellant (defendant).

      Terri L. Sonnemann, deputy assistant state’s attorney, with whom were Margaret Gaffney Radionovas, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, and Jeffrey G. Doskos, senior assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Paul Cmkovic, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 2 la-278 (b). On appeal, the defendant claims that (1) the trial court improperly precluded from evidence an alternative reason for his flight, (2) the court improperly admitted into evidence the nature of his prior convictions for assault on a police officer and failure to appear, (3) the court improperly instructed the jury regarding consciousness of guilt and (4) the prosecutor engaged in misconduct that violated the defendant’s constitutional right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 6, 1999, officers Wilfredo Cruz and Luis Rivera, members of the New Haven police department drug interdiction unit, were driving a marked police car near Davenport Avenue in New Haven. At approximately 8:17 p.m., Cruz observed a small red car stop at the side of the road at the intersection of West Street and Davenport Avenue. A man exited the vehicle and began walking toward the defendant, who was standing in front of his house on Davenport Avenue.

The defendant put his arm around the other man, and the two began walking along Davenport Avenue and onto West Street. At that time, Rivera turned his car around and followed the men as they walked. After seeing the defendant motion to his mouth and then to his waistband area, Cruz exited the patrol car and the defendant began to run toward Congress Avenue. Cruz began to chase the defendant on foot, and Rivera exited the vehicle and followed. While the defendant was running through the courtyard of a housing complex, Cruz observed him throw something toward the ground. The defendant was apprehended when he slowed to a walk after crossing onto Bond Street.

After securing the defendant, the officers retraced the route of the previous foot chase back to the courtyard. Cruz found a plastic bag inside of which were twenty-three smaller, black plastic bags containing a substance that field tested positive for cocaine. The defendant’s trial commenced on June 19, 2000. The jury returned a verdict of guilty, and the defendant received a total sentence of twenty years, of which five were mandatory. This appeal followed. Additional facts will be provided as necessary.

I

The defendant first claims that the court abused its discretion in precluding the defense from offering testimony about the basis for his fear of the police. Specifically, the defendant argues that (1) the basis for his fear was as relevant as the fear itself, and (2) the preclusion of testimony regarding the underlying facts and circumstances giving rise to his fear deprived him of his sixth amendment right to compulsory process and his fourteenth amendment right to present a defense. We disagree.

At the outset, we set forth our standard of review. “[T]he trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. . . . [Bjecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.) State v. Bush, 249 Conn. 423, 430, 735 A.2d 778 (1999).

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.” (Internal quotation marks omitted.) State v. Johnson, 67 Conn. App. 299, 305-306, 786 A.2d 1269 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). “It is not logical relevance alone, however, that secures the admission of evidence. Logically relevant evidence must also be legally relevant . . . that is, not subject to exclusion for any one of the following prejudicial effects: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. Joly, 219 Conn. 234, 260-61, 593 A.2d 96 (1991).

At trial, the defendant offered the testimony of his mother to support his claim that he feared the police. Specifically, during the defendant’s offer of proof, Diavka Cmkovic testified regarding the circumstances under which the police allegedly had beaten her son during a prior, unrelated incident. The court ruled that she could testify only about her son’s fear of the police, but not about the underlying circumstances. does not bear on any of the essential elements of the crime with which the defendant was charged, and, therefore, it is a side issue. In addition, allowing Diavka Cmkovic to provide a factual basis for the defendant’s fear of the police would shift the jury’s attention from the trial of the defendant to a trial of the police department.

Our Supreme Court’s decision in State v. Joly, supra, 219 Conn. 234, is binding on our disposition of the defendant’s claim. In Joly, the defendant claimed that he was deprived of his right to present a defense by the “court’s refusal to allow him to introduce circumstantial evidence of a beating that he allegedly had suffered at the hands of the Bristol police following his arrest for an unrelated incident . . . .” Id., 258. The defendant argued that the evidence relating to the alleged beating was necessary to rebut the state’s argument that his lies and nervousness evidenced his consciousness of guilt. The Supreme Court concluded that “[d]ue to the prejudicial tendency of the defendant’s evidence to divert the trial from its primary course and provoke a barrage of distracting counterproof . . . the trial court acted well within its discretion in excluding the evidence notwithstanding its logical relevance.” Id., 262. Thus, in the present case, the defendant’s argument also must fail.

The defendant argues that his flight from the police was essential to the case against him and that the justification for his flight was the cornerstone of his defense. That argument is misplaced. The defendant was convicted of possession of a narcotic substance with intent to sell in violation of § 2 la-278 (b). To prove its case, the state must prove beyond a reasonable doubt that (1) the defendant possessed a substance, (2) the substance was a narcotic and (3) the defendant intended to sell it. Flight evidence demonstrating consciousness of guilt

The proof of the alleged beating and the corresponding rebuttal evidence would have created a side issue that unduly distracted the jury from the main issues of the case. Accordingly, the court did not abuse its discretion by precluding testimony from Diavka Cmkovic about the underlying circumstances giving rise to the defendant’s fear of the police.

II

The defendant next claims that the court abused its discretion in ruling that his prior conviction for assault of a police officer could be introduced into evidence as a named felony for purposes of impeachment. Specifically, he argues that the ruling deprived him of his constitutional right to present a defense because it effectively prevented him from testifying. Our Supreme Court’s decision in State v. Harrell, 199 Conn. 255, 506 A.2d 1041 (1986), is dispositive of that issue.

As a preliminary matter, “evidence that a criminal defendant has been convicted of crimes on a prior occasion is not generally admissible.” (Internal quotation marks omitted.) State v. Jefferson, 67 Conn. App. 249, 261, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002). “A trial court’s decision denying a motion to exclude a witness’ prior record, offered to attack his credibility, will be upset only if the court abused its discretion.” (Internal quotation marks omitted.) State v. Harrell, supra, 199 Conn. 261. “The trial court must undertake a balancing test to determine if the probative value of the prior convictions outweighs any prejudicial impact. This balancing of intangibles— probative values against probative dangers—is so much a matter where wise judges in particular situations may differ that a lee-way of discretion is generally recognized.” (Internal quotation marks omitted.) Id., 262. With regard to the admission of prior convictions as named felonies, however, “to accomplish this balancing, the court must know the precise nature of the defendant’s testimony, which is unknowable when . . . the defendant does not testify.” (Internal quotation marks omitted.) Id., 266.

In State v. Harrell, supra, 199 Conn. 255, the defendant was convicted of burglary in the second degree with a firearm and attempt to commit robbery in the first degree. The trial court denied his motion in limine, which sought to prohibit the state from introducing into evidence his prior convictions for robbery, forgery and attempted false pretenses. The defendant chose not to testify. On appeal, he argued that because the court ruled that his prior convictions would be admissible as named felonies for impeachment purposes, he was prevented from exercising his fundamental right to present a defense. Our Supreme Court rejected the defendant’s claim and followed the holding of Luce v. United States, 469 U.S. 38, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984), that to “raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.” (Internal quotation marks omitted.) State v. Harrell, supra, 265-66.

In addition, the court noted that “[bjecause an accused’s decision whether to testify seldom turns on the resolution of one factor ... a reviewing court cannot assume that the adverse ruling motivated a defendant’s decision not to testify.” (Internal quotation marks omitted.) Id., 267, quoting Luce v. United States, supra, 469 U.S. 42. The court also recognized that “[a] defendant may decide not to take the witness stand because of the risk of cross-examination. But this is a choice of litigation tactics.” (Internal quotation marks omitted.) State v. Harrell, supra, 199 Conn. 264.

In the case at hand, the defendant filed a motion in limine requesting that the court prohibit the state from using for impeachment purposes his prior convictions in 1993 for possession of narcotics and in 1994 for assault of a police officer, sale of a hallucinogenic or narcotic substance, failure to appear and possession of narcotics. The court ruled that the state could present as named felonies the prior convictions for assault of a police officer and failure to appear, and that the remaining convictions would be unnamed felonies. The defendant did not testify. Because the defendant did not testify, his claim of improper impeachment by a prior conviction must fail.

Ill

The defendant next claims that the court improperly instructed the jury regarding flight as evidence of consciousness of guilt. Specifically, he argues that the court’s instruction improperly directed the jury to infer guilt from the evidence of the defendant’s flight and, therefore, effectively diluted the state’s burden of proof. We disagree.

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Citation omitted; internal quotation marks omitted.) State v. Rodriguez, 63 Conn. App. 529, 534, 777 A.2d 704, cert. denied, 256 Conn. 936, 776 A.2d 1151 (2001).

“A jury charge in which the court removes from the jury’s consideration an issue that is one of the essential elements of the crime, and thereby relieves the state of the burden of proving every element beyond a reasonable doubt” is improper. (Internal quotation marks omitted.) State v. Washington, 28 Conn. App. 369, 373, 610 A.2d 1332, cert. denied, 223 Conn. 926, 614 A.2d 829 (1992). “A proper instruction on flight as consciousness of guilt, however, merely identifies a permissive inference that the jury might draw from the defendant’s conduct.” Id. A consciousness of guilt instruction is, therefore, not so directly related to an essential element of the crime that an improper flight instruction raises constitutional implications. See id.

If no constitutional issues are raised by the claim of an improper jury charge, as is the case here, we review the entire charge to determine whether the instructions are correct in law and whether they presented the case to the jury so that no injustice would result. State v. Roman, 67 Conn. App. 194, 204-205, 786 A.2d 1147 (2001), cert. granted on other grounds, 259 Conn. 920, 791 A.2d 567 (2002). “[T]he charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.” (Internal quotation marks omitted.) Id., 204.

Specifically, “[t]he decision whether to give an instruction on flight, as well as the content of such an instruction, if given, should be left to the sound discretion of the trial court.” State v. Hines, 243 Conn. 796, 816, 709 A.2d 522 (1998). The instruction about flight that was given by the court correctly presented the law to the jury.

“[F]light, when unexplained, tends to prove a consciousness of guilt. . . . Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration. . . . The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous. . . . Moreover, [t]he court was not required to enumerate all the possible innocent explanations offered by the defendant.” (Internal quotation marks omitted.) State v. Figueroa, 257 Conn. 192, 196-97, 777 A.2d 587 (2001); State v. Freeney, 228 Conn. 582, 593-94, 637 A.2d 1088 (1994).

Turning to the case before us, the defendant ran from Cruz as soon as he exited the patrol car. In its charge, the court instructed the jury that it may consider the defendant’s flight as evidence of his consciousness of guilt. Although the court could have referenced the defendant’s fear of the police, the court was not required to do so. See State v. Hines, supra, 243 Conn. 813. We conclude that the court correctly instructed the jury in accordance with the law and did not abuse its discretion.

IV

Finally, the defendant claims that the prosecutor engaged in misconduct during his summation and rebuttal argument to the jury. Specifically, he claims that the prosecutor improperly vouched for the credibility of the state’s witnesses and otherwise expressed his personal opinions about the evidence.

The defendant concedes that he did not properly preserve his claim for appeal. He seeks review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “It is well established that [w]e will not afford Golding review to [unpreserved] claims of prosecutorial misconduct where the record does not disclose a pattern of misconduct pervasive throughout the trial or conduct that was so blatantly egregious that it infringed on the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Perry, 58 Conn. App. 65, 69, 751 A.2d 843, cert. denied, 254 Conn. 914, 759 A.2d 508 (2000); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 12, p. 76 & (Sup. 2001) § 12, pp. 69, 82. We now review the closing arguments to determine if a pattern of misconduct existed or the conduct was so egregious as to infringe on the defendant’s right to a fair trial.

“[P]rosecutorial misconduct can occur in the course of closing argument. . . . When presenting closing arguments, as in all facets of a criminal trial, the prosecutor, as a representative of the state, has a duty of fairness that exceeds that of other advocates.” (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 336, 746 A.2d 761 (2000). “Nevertheless, [i]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered .... Ultimately, therefore, the proper scope of closing argument lies within the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) Id., 337.

Although a prosecutor is allowed latitude during closing argument, he cannot comment, directly or indirectly, as to the credibility, truth or veracity of witnesses. See State v. Oehman, 212 Conn. 325, 335-36, 562 A.2d 493 (1989). “The personal evaluations and opinions of trial counsel are at best boring irrelevancies and a distasteful cliche-type argument. At worst, they may be a vague form of unsworn and irrelevant testimony. . . . The fairness of the trial and not the culpability of the prosecutor is [however,] the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. . . . Thus, improper summation results in a denial of due process when the improper statements cause substantial prejudice to the defendant.” (Citations omitted; internal quotation marks omitted.) Id., 336.

In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, we consider several factors. “Included among those factors are the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 262-63, 780 A.2d 53 (2001).

Our review of the record reveals that the prosecutor characterized the police officers as “credible,” “forthright,” “honest” and “not cagey.” Although objectionable and improper, those comments were isolated and did not constitute serious misconduct on the part of the prosecutor. In addition, the most blatant remarks were made during his rebuttal summation in direct response to the defendant’s accusation that the officers had lied. Furthermore, those comments were not a reflection of a pattern of misconduct throughout the trial.

In addition, in its charge to the jury immediately following closing arguments, the court instructed the jury that the attorneys’ arguments were not evidence and that the jurors’ recollection of the facts, and not the attorneys’ recitation, was controlling. Because we conclude that the prosecutor’s comments do not demonstrate a pattern of misconduct and that the prosecutor’s conduct was not so egregious that it infringed on the defendant’s right to a fair trial, we will not afford Golding review to the defendant’s unpreserved claim.

The judgment is affirmed.

In this opinion DALY, J., concurred.

LANDAU, J.,

concurring. I concur with the majority’s result. I write separately, however, because I believe that the defendant’s second claim is not reviewable, and we need proceed no further.

The defendant has a history of prior felony convictions. He therefore filed a motion asking the trial court to preclude the state during cross-examination from impeaching his credibility by offering evidence of his five felony convictions. The court denied the motion but limited the extent to which the state could use the prior convictions. The court would permit the state to name only two of the convictions, and the remainder would be referred to as unnamed felony convictions. The defendant asserts that, on the basis of the court’s ruling, he elected not to testify on his own behalf. On appeal, he claims that the court deprived him of his constitutional right to testify.

“It is the defendant’s burden to provide a record adequate to review any claim he seeks to raise on appeal. Practice Book § 61-10. When a defendant claims that a ruling of the trial court improperly restricted his freedom to choose whether to testify, a reviewing court can meaningfully gauge the validity of the claim only if the record shows what the substance of his testimony would have been.” State v. Hoffler, 55 Conn. App. 210, 213, 738 A.2d 1145, cert. denied, 251 Conn. 923, 742 A.2d 360 (1999). “[A] defendant must testify to preserve for review any claims of improper impeachment by a prior conviction. State v. Harrell, 199 Conn. 255, 265-66, 506 A.2d 1041 (1986).” State v. Hoffler, supra, 213.

Here, the defendant did not testify. His claim on appeal therefore cannot be reached because there is no record.

For this reason, I respectfully concur in the majority’s opinion.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who . . . possesses with the intent to sell or dispense ... to another person any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years .... The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended . . . .”

       The following exchange occurred during the defendant’s offer of proof:
      “[Defense Counsel]: Mrs. Crnkovic, had you previous discussions with [the defendant] regarding the police?
      “[Defense Council]: Yes.
      “Q: And what had he told you about the police?
      “A: [The defendant] was beaten by the police many times. Even if you ask questions from his brother, he would tell—
      “The Court: Sorry, he was what?
      “[The Witness]: Beaten by the police.
      “[Defense Counsel]: I’m showing you the defendant’s exhibit B and C; do you recognize these?
      “[The Witness]: Yes, I do.
      “Q: What are they?

        “A: That was my son’s picture, [the defendant].
      “Q: And they reflect injuries?
      “A: Yes.
      “Q: Who caused those injuries?
      “A: The police.
      “Q: When did that incident occur?
      “A: That incident occurred—I’m not sure exactly, you know, but the lady [knocked] on my door and . . . [said], ‘They’re beating your son up in the street.’ . . . That day he was beaten. They Maced him in the face.
      “Q: After that incident, did [the defendant] express fear of the police?
      “A: Yes. Yes.
      “Q: What did he say?
      “A: He said [he] was all the time afraid of them because they have the badge, you know. They have the power, and they jump on him, five [to] ten of them, and they also have more rights than he does.”

       The following colloquy took place:
      “The Court: And you have a hearsay statement to a mother that’s being offered to negate the issue of [flight]. In order for the court to accept that proposition, the court would have to conclude that intent is a material issue in this case .... This is not the case.
      “[Defense Counsel]: No, I don’t think that is the case. I think as long as the state intends to offer consciousness of guilt evidence and [intends] to argue flight, consciousness of guilt, that puts that whole issue into play. And what [the defendant] was thinking or feeling or believing at the time he was being chased by the police officers is in play. . . . And I think we have the right to show—to let the jury know that there is another witness and that there may be an innocent reason that [the defendant] ran from the police, that he had had [a] prior, very negative experience with the police and wanted to get to a location where people could see him.
      “[Prosecutor]: My concern, Your Honor, again, it’s the same argument about the collateral nature; we’re going to be trying a whole separate incident as to conclusions as to why a defendant would develop a fear.
      “The Court: We’re not going to do that. What the court will allow is the mother to testify that as a result of his involvement with the police, he was fearful of the police, and you want to use that to get in to argue—that’s maybe one of the reasons he ran, fine, for the limited purpose of engaging consciousness of guilt. But to get the whole reliability of that, and the court does not see that as a material issue, and I think it would be what the prosecution said, a collateral matter, but to [that] extent the objection is sustained. To the extent that you are offering it to show there is another reason as to why he might have ran, that’s allowed in itself and can be used to negate consciousness of guilt, to the extent that you wish to indicate that he was fearful as a result of prior involvements, but not to get into details.
      * ** *
      “The Court: The court’s ruling is that the witness can testify that [the defendant] indicated to her [that] as a result of prior involvement with the police that he was fearful.
      “[Prosecutor]: But without getting into the specifics of it.
      “The Court: Right, that’s the ruling.”

       The court instructed the jury in relevant part: “Now, I am going to talk to you about a principle; that principle is known as consciousness of guilt. It applies when a defendant does an act when one can infer that he has attempted to avoid the detection or avoid facts which could lead to his arrest or conviction. You may consider under this [principle] of law such evidence as consciousness of guilt, as such, in addition to circumstantial evidence of . . . flight, when unexplained tends to prove consciousness of guilt. The flight of a person accused of a crime is a circumstance which, when considered together with all the facts of the case, may justify a finding of the defendant’s guilt. However, flight, if shown, is not conclusive. It is to be given the weight the jury says it is entitled to under the circumstances. Here, there was evidence that the defendant initially fled from the officers on the date of his arrest. If you find that he was fleeing from the officers, you may consider it as evidence of his consciousness of guilt. It is upon you to give the evidence the weight to which you think it is entitled.” (Emphasis added.)

       In addition, the defendant argues that the instruction effectively directed a finding as to his mental state, thereby relieving the state of its burden to prove an essential element of the crime. The defendant was convicted of possession with intent to sell a narcotic substance in violation of General Statutes § 21a-278 (b). As we stated previously in part I, the state must prove beyond a reasonable doubt that (1) the defendant possessed a substance, (2) the substance was a narcotic substance and (3) the defendant intended to sell it. We fail to see how an instruction regarding consciousness of guilt bears on any of the elements of the crime with which the defendant was charged.

       See footnote 4.

       The defendant also argues that the prosecutor improperly suggested to the jury that it must find that the police officers committed perjury to acquit the defendant. That claim is without merit. At no point during his summation or his rebuttal did the prosecutor directly or indirectly suggest that the jury must find that a witness committed perjury to acquit the defendant.

       Under Síaie v. Golding, supra, 213 Conn. 239-40, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.)

       The court instructed the jury in relevant part: “You are the sole judges of the facts. It is your duty to find the facts. You are to recollect and weigh the evidence and form your own conclusions as to what the ultimate facts are. You may not go outside the evidence introduced in court to find the facts. . . .
      * ** *
      “Now, the evidence from which you are to decide what the facts are consists of the sworn testimony of witnesses, both on direct and cross-examination, regardless of who called the witness, and the exhibits that have been received into evidence. In reaching your verdict, you should consider all the testimony and exhibits received into evidence. Certain things, however, are not evidence, and you may not consider them in deciding what the facts are. These include arguments and statements by lawyers. The lawyers are not witnesses; what they have said in their closing arguments is intended to help you interpret the evidence, but is not evidence. If the facts, as you remember them, differ from the way the lawyers have stated them, it’s your memory of them that controls. The testimony that has been excluded or stricken is not evidence.” (Emphasis added.)