author: FOTI, J.

text:
    DENNIS GIANQUITTI v. GERTRUDE SHEPPARD
    (AC 17769)
    O’Connell, C. J., and Foti and Sullivan, Js.

      Argued March 3
    officially released April 27, 1999

      Michael Feldman, for the appellant-appellee (third party defendant).

      Kathleen A. St. Onge, with whom, on the brief, were JohnB. Farley and Bruce H. Raymond, for the appellee-appellant (third party plaintiff).
   Opinion

FOTI, J.

The third party defendant, BST Systems, Inc. (BST), appeals from the judgment of the trial court rendered in favor of the third party plaintiff, Gertrude Sheppard, on Sheppard’s indemnification claim. On appeal, BST claims that the trial court improperly (1) precluded it from filing its special defenses, (2) determined that it was in exclusive control of certain premises, (3) determined that Sheppard had no reason to anticipate BST’s negligence, (4) awarded common-law indemnification against BST where Sheppard failed to establish the breach of an independent legal duty, (5) awarded common-law indemnification against BST where Sheppard failed to make a timely notice or demand or to provide BST with an opportunity to defend the underlying action and (6) awarded attorney’s fees to Sheppard. We affirm the judgment of the trial court with regard to all of BST’s claims.

Sheppard filed a cross appeal claiming that the trial court improperly failed to award her full indemnity for the attorney’s fees and expenses she incurred in defense of the first party action filed against her. We affirm the judgment of the trial court with regard to Sheppard’s claim on cross appeal.

The following facts and procedural history are relevant to the resolution of this appeal. BST leased storage space in a commercial warehouse located in Plainfield, which was owned by Sheppard. In November, 1993, BST instructed Dennis Gianquitti, one of its employees, to go to the warehouse to repair an overhead door. The door was located between a hallway, which was in a common area of the warehouse, and a storage room, which was controlled by and leased to BST. When Gian-quitti attempted to fix the door, it fell, injuring him.

This action originated when Gianquitti brought a personal injury suit against Sheppard seeking damages for the injuries he allegedly sustained when the door fell on him. After receiving Gianquitti’s complaint, Sheppard filed a motion to implead BST, which was granted by the trial court. Sheppard then filed a revised third party complaint against BST seeking indemnification for damages that might be paid to Gianquitti, along with attorney’s fees, costs and expenses. Sheppard claimed that if she was negligent, as Gianquitti had claimed, then such negligence was “secondary in nature, and the negligence of [BST] . . . was the direct and immediate cause of the injury and damages claimed” by Gianquitti. That claim was based on Sheppard’s assertion that BST, as lessee of the area in which Gianquitti’s was injured, maintained “exclusive control over the situation which led to [those] injuries.” Subsequently, Gianquitti and Sheppard entered into a settlement agreement whereby Sheppard agreed to pay Gianquitti $7000. Gianquitti then withdrew his complaint against Sheppard.

In September, 1997, the case was tried to the court on Sheppard’s third party indemnification claim against BST. On October 17,1997, the trial court filed its memorandum of decision finding in favor of Sheppard and awarding her $7000 for indemnity, as well as attorney’s fees and costs. BST then appealed from the trial court’s judgment, and Sheppard filed a cross appeal. Additional facts will be set forth as they become relevant in the context of the parties’ specific claims.

I

BST first claims that the trial court improperly precluded it from filing its special defenses. We disagree.

On September 5, 1997, the day the trial commenced, BST attempted to file an answer and special defenses to Sheppard’s revised complaint, which she had filed on June 11, 1997, almost three months prior to the commencement of trial. Following an objection by Sheppard’s counsel, the trial court permitted BST to file its answer but refused to permit it to file its special defenses, finding them to be untimely and prejudicial to Sheppard’s case.

On appeal, BST argues that there was no legal basis for the trial court’s decision to preclude it from filing its special defenses. In support of its argument, BST cites General Statutes § 52-121 (a), which provides that “[a]ny pleading in any civil action may be filed after the expiration of the time fixed by statute . . . until the court has heard any motion for judgment by default or nonsuit for failure to plead which has been filed in writing with the clerk of the court in which the action is pending.” (Emphasis added.) BST argues that even though it filed its answer beyond the time period fixed by Practice Book § 10-8, because Sheppard never moved to default BST for failing to plead, “BST was entitled as of right to file its pleading including special defenses,” even on the first day of trial.

Under the circumstances of this case, the trial court did not improperly preclude BST from filing its special defenses. While Sheppard never moved to default BST for failing to plead, we cannot say that the trial court was deprived of its inherent authority to control the proceedings before it to ensure that there was no prejudice or inordinate delay. See Daily v. New Britain Machine Co., 200 Conn. 562, 574, 512 A.2d 893 (1986) (denial of motion to amend complaint upheld, in part, by trial court’s “wide latitude in docket control” and responsibility for “efficient and orderly movement of cases”).

While the special defenses filed by BST were not technically filed as an amendment to an existing answer, we recognize that the same concerns that necessitate providing the trial court with broad discretion to grant or deny amendments to existing pleadings apply under these circumstances as well. As we have said, “[t]he trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case. The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial.” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 181, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997).

In sustaining Sheppard’s objection to BST’s special defenses, the trial court noted that it took BST “almost three months to file the answer and [BST] filed it on the date of trial with four special defenses. [The plaintiffs counsel] said they are not adequate. [The defendant’s counsel] says they are. ... I don’t think it’s appropriate to put the court on the spot of having to make a determination as to whether or not they’re adequate without the court’s having an opportunity to prepare and read cases and briefs or whatever submissions counsel would make to help the court decide that question. So I think the court is prejudiced by the late filing, as well as the plaintiff.”

We conclude, therefore, that in light of the trial court’s finding of prejudice and possible delay, it did not abuse its discretion in precluding BST from filing its special defenses.

II

BST next claims that the trial court improperly determined that it was in exclusive control of the situation that gave rise to Gianquitti’s injuries. We disagree.

To maintain a common-law action for indemnity, Sheppard was required to establish: “(1) that the other tortfeasor was negligent; (2) that [that] negligence, rather than [the defendant’s], was the direct, immediate cause of the accident and injuries; (3) that [the other tortfeasor] was in control of the situation to the exclusion of [the defendant]; and (4) that [the defendant] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent.” (Emphasis added; internal quotation marks omitted.) Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 698, 694 A.2d 788 (1997).

In finding that BST was in exclusive control of the situation that gave rise to Gianquitti’s injuries, the trial court noted that BST ordered Gianquitti “to go to [the] building owned by Sheppard to repair a door latch. The door was between a common area hallway and a room leased by BST from Sheppard. . . . BST had the only key to the door and Sheppard could not enter the leased area without the permission of BST who had sole possession of the key to the door. BST discovered the defective latch and hinge and sent Gianquitti to make repairs, all without any knowledge of Sheppard.”

BST argues that the location of the door, which was on the boundary of a common area and the area leased to Sheppard, “make[s] the finding of exclusive control unsupportable.” We do not agree. As the trial court found, BST had the only key to the broken door that caused Gianquitti’s injuries. In addition, when the door needed repair, BST undertook to repair it without Sheppard’s knowledge or permission. In fact, even though Sheppard owned the warehouse, she could not enter the leased area without BST’s permission.

The absence or presence of exclusive control is ordinarily a question of fact. Id., 704. “We will not upset a trial court’s resolution of a question of fact unless it is clearly erroneous.” Board of Public Utilities Commissioners v. Yankee Gas Services Co., 236 Conn. 287, 298, 672 A.2d 953 (1996). On the basis of our review of the record, we conclude that the trial court’s determination that BST was in exclusive control of the situation that gave rise to Gianquitti’s injuries was not clearly erroneous.

Ill

BST next claims that the trial court improperly determined that Sheppard had no reason to anticipate BST’s negligence. We decline to review this claim.

Again, to maintain a common-law action for indemnity, Sheppard was required not only to establish that BST maintained exclusive control over the negligent situation that gave rise to Gianquitti’s injuries, but was required to demonstrate that Sheppard “did not know of such negligence, had no reason to anticipate it, and could reasonably rely on [BST] not to be negligent.” (Internal quotation marks omitted.) Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 698. On appeal, BST claims that Sheppard failed to produce evidence to support her claim that she had no reason to anticipate BST’s negligence.

“It is the appellant’s burden to provide an adequate record for review. Practice Book § 4061 [now § 60-5]; Barnes v. Barnes, [190 Conn. 491, 494, 460 A.2d 1302 (1983)]. 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; Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 543, 651 A.2d 1302 (1995); to clarify the legal basis of a ruling; Leverly & Hurley Co. v. Commissioner of Transportation, 192 Conn. 377, 379, 471 A.2d 958 (1984); or to ask the trial judge to rule on an overlooked matter. Wolk v. Wolk, 191 Conn. 328, 335 n.1, 464 A.2d 780 (1983).” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52-53, 717 A.2d 77 (1998).

A review of the memorandum of decision reveals that while the trial court determined that Sheppard, in fact, had no reason to anticipate BST’s negligence, the legal and factual basis for that conclusion is not stated. BST has not moved for an articulation on this point. We, therefore, decline to review this issue.

IV

BST next claims that the trial court improperly awarded common-law indemnification against BST where Sheppard failed to establish the breach of an independent legal duty. We disagree.

Generally, “ ‘[w]hen the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer, contribution [or indemnification] is ordinarily denied on the ground that the employer cannot be said to be jointly hable in tort to the employee because of the operation of the exclusive-remedy clause [of the Workers’ Compensation Act]. But if the employer can be said to have breached an independent duty toward the third party, or if there is a basis for finding an implied promise of indemnity, recovery in the form of indemnity may be allowed. . . .’2A A. Larson, [Workmen’s Compensation Law § 76].” Ferryman v. Groton, 212 Conn. 138, 144-45, 561 A.2d 432 (1989).

Following its memorandum of decision, the trial court issued an articulation and found that “[t]he case of Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 694 A.2d 788 (1997), holds that ‘a third party plaintiff, outside the context of workers’ compensation law, need not establish the existence of an independent legal relationship between itself and the alleged indemnitor as a condition for recovery on the basis of a common law claim for indemnity.’ Id., 701-702. Sheppard, therefore, had no obligation to prove such an independent legal duty. Since there was no special defense of workers’ compensation permitted in this case, Sheppar d had no duty to allege or prove such relationship.”

On appeal, BST continues to argue that Sheppard was required to establish the existence and breach of an independent legal duty. While we agree that an employer’s failure to assert as a special defense the exclusive remedy clause of the Workers’ Compensation Act, General Statutes § 31-275 et seq., does not necessarily excuse a third party tortfeasot^ppfeing indemnification from establishing the breacn of an independent legal duty, we cannot say that Sheppard’s alleged failure to prove that duty in this instance requires reversal.

Although we recognize that “the Workers’ Compensation Act should be broadly construed to accomplish its humanitarian purpose ... its remedial purpose cannot transcend its statutorily defined jurisdictional boundaries.” (Citations omitted; internal quotation marks omitted.) Kinney v. State, 213 Conn. 54, 58-59, 566 A.2d 670 (1989). For example, the act excludes certain persons from the operative definition of “employee.” See General Statutes § 31-275 (9) (B).

Although the relationship between BST and Gian-quitti could have potentially given rise to the act’s exclusive remedy clause, we cannot say for certain, from the record, that BST falls under the act. Because we do not have before us sufficient evidence to establish that the act applies in this case, we cannot say that Sheppard was required to prove the existence and breach of an independent legal duty.

V

BST next claims that the trial court improperly awarded common-law indemnification against BST where Sheppard failed to make a timely notice or demand or to provide BST with an opportunity to defend the underlying action. We disagree.

In support of its claim, BST argues that “[t]he facts are undisputed that neither Sheppard nor anyone on Sheppard’s behalf gave notice to BST or made demand of BST for indemnification or requested a defense from BST.” In its memorandum of decision, however, the trial court noted that “[i]n fact, the court finds that Sheppard brought this third party action on July 16, 1996, claiming that BST was responsible for the plaintiffs claim agami||Éjp.' [Gianquitti’s] case was not withdrawn until April 30, 1997, a period of time in which BST had ample opportunity to defend or settle the case.” After reviewing the record in this case, we find that the trial court did not abuse its discretion in reaching this conclusion.

VI

BST finally claims that the trial court improperly awarded attorney’s fees to Sheppard. We disagree.

“The implied contract of indemnity which arises in favor of a person who is exposed to liability on account of the tortious act of another imposes an obligation upon the active wrongdoer to reimburse the indemnitee not only for any damages which he has been obliged to pay but also for reasonable attorney’s fees, at least where he has notice of the suit against the indemnitee and an opportunity to defend. 42 C.J.S., Indemnity § 24. Sendroff v. Food Mart of Connecticut, Inc., 34 Conn. Sup. 624, 626, 381 A.2d 565 (1977).” (Emphasis added; internal quotation marks omitted.) Seismograph Service (England), Ltd. v. Bolt Associates, Inc., 8 Conn. App. 446, 453, 513 A.2d 180 (1986).

Specifically, BST argues that the trial court improperly awarded attorney’s fees where BST was never given an opportunity to defend Sheppard in the first party action. The trial court found, however, that from the date Sheppard brought her third party action against BST, July 16, 1996, to the date on which Gianquitti withdrew his complaint against Sheppard, April 30, 1997, “BST had ample opportunity to defend or settle the case.” Since the trial court found that BST had ample opportunity to defend the action, it did not improperly award reasonable attorney’s fees to Sheppard.

VII

We next consider Sheppard’s cross appeal in which she claims that the trial court improperly failed to award her full indemnity for the attorney’s fees and expenses she incurred in defense of the first party action filed by Gianquitti. We disagree.

“ ‘The implied contract of indemnity . . . imposes an obligation upon the active wrongdoer to reimburse the indemnitee not only for any damages which he has been obliged to pay but also for reasonable attorney’s fees ....’” Seismograph Service (England), Ltd. v. Bolt Associates, Inc., supra, 8 Conn. App. 453. In short, “an indemnitee is entitled to recover from an indemnitor, as part of its damages, attorney’s fees, costs and expenses.” 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 311, 685 A.2d 305 (1996).

Our Supreme Court has said that “[a] trial court may rely on its own general knowledge of the trial itself to supply evidence in support of an award of attorney’s fees. Bizzoco v. Chinitz [193 Conn. 304, 310, 476 A.2d 572 (1984)]. Because the trial court is in a more advantageous position to evaluate the services of counsel than a reviewing court, [t]he amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion. Link v. Shelton, 186 Conn. 623, 629, 443 A.2d 902 (1982).” (Internal quotation marks omitted.) Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 77-78, 689 A.2d 1097 (1997).

Here, in its memorandum of decision, the trial court noted that “attorney Bruce H. Raymond, who was the only witness regarding the fees, admitted several errors in the affidavit regarding the fees and also that the fist of fees was based on hearsay from employees in his office rather than his personal knowledge. Based upon the testimony, the court finds a reasonable fee to be $4000.” “It is the function of the court as trier of fact to assess the credibility of witnesses.” State v. Guckian, 27 Conn. App. 225, 239, 605 A.2d 874 (1992), aff'd, 226 Conn. 191, 627 A.2d 407 (1993). Having carefully reviewed the record, we cannot conclude that the trial court abused its discretion in arriving at that figure.

The judgment is affirmed.

In this opinion the other judges concurred.

       While Sheppard’s preliminary statement of issues raised three separate issues in her cross appeal, she has briefed only one, that the trial court improperly failed to award her full indemnity for the fees and expenses she incurred in defense of the first party action. Because Sheppard failed to brief the additional claims raised, we deem them abandoned. See Wright v. Hutt, 50 Conn. App. 439, 456, 718 A.2d 969, cert. denied, 247 Conn. 939, 723 A.2d 320 (1998).

       Practice Book § 10-8 provides in relevant part: “Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required, except that in summary process actions the time period shall be three days and in actions to foreclose a mortgage on real estate the initial time period shall be fifteen days. ...”


source: Caselaw Access Project

license: Public Domain

text:
    LINDA STEWART-BROWNSTEIN v. CONCETTA CASEY ET AL.
    (AC 18036)
    Foti, Landau and Dupont, Js.
    Argued January 21
    officially released April 27, 1999

      Jeffrey D. Brownstein, for the appellant (plaintiff).

      Arnold B. Abrams, for the appellees (named defendant et al.).

      Linda J. Cannata, for the appellee (defendant Phillips Home Inspection Services).
   Opinion

FOTI, J.

The plaintiff, Linda Stewart-Brownstein, appeals from the judgment of the trial court dismissing her complaint for lack of subject matter jurisdiction. The sole issue before this court is whether the plaintiffs failure to comply with General Statutes (Rev. to 1997) § 52-45a or Practice Book § 8-1 deprived the trial court of subject matter jurisdiction, which may not be waived, or of personal jurisdiction, which may be waived.

The pro se plaintiff, who is not an attorney, filed an action in Superior Court against the defendants, Concetta Casey, Clarence Casey and Phillips Home Inspection Services, seeking damages and equitable relief arising from her purchase of a home in Meriden. The writ of summons accompanying the plaintiffs complaint was not signed by a commissioner of the Superior Court or the clerk of the court. Appearances were then filed on behalf of the Caseys, and a pro se appearance was filed by Curtis J. Phillips on behalf of Phillips Home Inspection Services. Phillips is a sole proprietor doing business as Phillips Home Inspection Services. Thereafter, the plaintiff filed a revised complaint to which the Caseys, through counsel, filed an answer and special defenses. Phillips filed an answer on behalf of Phillips Home Inspection Services.

The plaintiff then filed a reply to the Caseys’ special defenses. Thereafter, counsel appeared on behalf of Phillips Home Inspection Services and filed a motion to dismiss the plaintiffs complaint for lack of subject matter jurisdiction. The plaintiff filed an opposition to the motion to dismiss, along with a memorandum of law, as well as a motion for permission to file an amended complaint. On December 1, 1997, the trial court granted the motion to dismiss after granting the Caseys’ oral request to join in that motion. The plaintiff did not attend the argument.

The trial court found that the plaintiffs “summons was presented to the clerk of the court. The plaintiff admits that the summons had defects. The clerk of the court did not sign the summons as is the clerk’s responsibility pursuant to [General Statutes § 52-45a] because of those defects.” “The act of the clerk in signing the writ on behalf of a pro se plaintiff is . . . purely ministerial. The clerk has no discretion whatsoever to refuse to sign the writ of a pro se litigant in a cause of action unless the writ is defective as to form or lacks a bond for prosecution.” Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 554, 610 A.2d 1260 (1992).

The trial court then concluded that “[t]he failure of the plaintiffs summons to be signed by a commissioner of the Superior Court or the clerk of the court deprives the court of subject matter jurisdiction. To rule otherwise would allow anyone to institute a suit without the protections afforded by [§ 52-45a], This suit was never commenced properly. The other defects may have been correctable but the absence of the plaintiff at argument on the motion to dismiss deprived the court of the opportunity to address curative measures designed to remedy these flaws.”

Practice Book § 8-1 (a) provides that “[m]esne process in civil actions shall be a writ of summons . . . describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiffs complaint. Such writ . . . shall be signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable. ...” (Emphasis added.) See also General Statutes § 52-45a. “In ordinary usage of the term, [a summons is the] original process upon a proper service of which an action is commenced and the defendant therein named brought within the jurisdiction of the court .... Ballentine’s Law Dictionary (3d Ed.).” (Emphasis added; internal quotation marks omitted.) Hillman v. Greenwich, 217 Conn. 520, 524, 587 A.2d 99 (1991). A “writ of summons is a statutory prerequisite to the commencement of a civil action . . . [and] an essential element to the validity of the jurisdiction of the court.” (Citations omitted.) Id., 526.

Generally, “[jurisdiction over the subject matter is the court’s power to hear and decide cases of the general class to which the proceedings at issue belong.” Haigh v. Haigh, 50 Conn. App. 456, 460-61, 717 A.2d 837 (1998). “A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.” (Internal quotation marks omitted.) Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). “Where a decision as to whether a court has subject matter jurisdiction is required, every presumption favoring jurisdiction should be indulged.” Demar v. Open Space & Conservation Commission, 211 Conn. 416, 425, 559 A.2d 1103 (1989).

The Superior Court is a constitutional court of general jurisdiction, and, in the absence of statutory or constitutional provisions, the limits of its jurisdiction are delineated by the common law. State v. Luzietti, 230 Conn. 427, 431, 646 A.2d 85 (1994). “Although the Superior Court has general subject matter jurisdiction ... it may exercise jurisdiction over a person only if that person has been properly served with process, has consented to the jurisdiction of the court or has waived any objection to the court’s exercise of personal jurisdiction.” (Citations omitted; emphasis added.) Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 195-96, 629 A.2d 1116 (1993).

In Brunswick v. Inland Wetlands Commission, supra, 222 Conn. 541, our Supreme Court examined a situation in which an attorney had signed and issued a citation in an administrative appeal in which he was a party plaintiff. There, the court held that such an “alleged defect in the citation . . . affected only the court’s personal jurisdiction over the defendants.” Id., 550. In concluding as it did, our Supreme Court discussed two civil cases, Parrott v. Housatonic R.R. Co., 47 Conn. 575, 576 (1880), and Brown v. Allen, 166 Conn. 174, 175-76, 348 A.2d 666 (1974), and stated that “[b]ecause the writs used to commence civil actions are analogous to the citations used to commence administrative appeals, there is no basis for regarding such a defect in the one as implicating subject matter jurisdiction, while regarding the defect in the other as relating only to personal jurisdiction. Indeed, we have held in Johnson v. Zoning Board of Appeals, 166 Conn. 102, 107-108, 347 A.2d 53 (1974), that an improperly executed citation implicates the personal jurisdiction of the court.

“An improperly executed writ or citation does not, therefore, affect the subject matter jurisdiction of the trial court. As a defect in having the court acquire personal jurisdiction over the defendant, an improperly executed [writ] may be waived by the defendant. . . . A defendant may contest the personal jurisdiction of the court ‘even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance.’ Practice Book § 142 [now § 10-30].” (Emphasis added.) Brunswick v. Inland Wetlands Commission, supra, 222 Conn. 550-51.

We conclude, therefore, that in the present case, the trial court was not deprived of subject matter jurisdiction by the plaintiffs failure to properly execute her writ. Noncompliance with General Statutes § 52-45aand Practice Book § 8-1 merely deprived the trial court of jurisdiction over the persons of the defendants unless the defendants waived the lack of personal jurisdiction.

The trial court improperly granted the defendants’ motion to dismiss for lack of subject matter jurisdiction. In so doing, the court neither made findings regarding personal jurisdiction or the defendants’ possible waiver of such, nor did it make any findings as to any “other defects.”

The judgment of dismissal is reversed and the case is remanded for further proceedings to determine whether the court has personal jurisdiction over the defendants.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 52-45a provides in relevant part: “Civil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance. The writ shall be accompanied by the plaintiffs complaint. The writ may run into any judicial district and shall be signed by a commissioner of the Superior Court or a judge or clerk of the court to which it is returnable.”

       Practice Book § 8-1 (a) provides: “Mesne process in civil actions shall be a writ of summons or attachment, describing the parties, the court to which it is returnable and the time and place of appearance, and shall be accompanied by the plaintiffs complaint. Such writ may run into any judicial district or geographical area and shall be signed by a commissioner of the superior court, or a judge or clerk of the court to which it is returnable. Except in those actions and proceedings indicated below, the writ of summons shall be on a form substantially in compliance with the following judicial branch forms prescribed by the chief court administrator: Form JD-FM-3 in family actions, Form JD-HM-32 in summary process actions, and Form JD-CV-1 in other civil actions, as such forms shall from time to time be amended. Any person proceeding without the assistance of counsel shall sign the complaint and present the complaint and proposed writ of summons to the clerk; the clerk shall review the proposed writ of summons and, unless it is defective as to form or does not contain a bond for prosecution pursuant to Section 8-3, shall sign it.”

       The summons was signed, instead, by the plaintiff herself.

         The motion to dismiss claimed that the trial court lacked subject matter jurisdiction because (1) the plaintiffs summons was not signed by the proper authority, (2) the plaintiff failed to file a certificate of financial responsibility and (3) the plaintiff failed to name a proper party when the summons listed “Phillips Home Inspection Services.” The record is clear, however, that the trial court dismissed the plaintiffs complaint based on its finding that it lacked subject matter jurisdiction because the writ was not properly executed.

       The court explained that “[tjhe citation that is used to commence an administrative appeal is analogous to the writ used to commence a civil action.” Brunswick v. Inland Wetlands Commission, supra, 222 Conn. 542 n.1.


author: SHEA, J.

text:
    STATE OF CONNECTICUT v. EDWARD ANDREWS
    (AC 17984)
    Schaller, Dupont and Shea, Js.
    Argued December 17, 1998
    officially released April 27, 1999

      Richard Condon, Jr., deputy assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, former assistant state’s attorney, for the appellee (state).
   Opinion

SHEA, J.

The defendant appeals from the judgment convicting him of murder in violation of General Statutes § 53a-54a (a) and imposing a sentence of imprisonment for thirty-three years. The only claim relied on for reversal of the judgment is that the failure of the trial court to inform him when he pleaded guilty to the murder charge that a murder conviction would make him ineligible for parole pursuant to General Statutes § 54-125a (b) (l) rendered the pleading canvass defective and entitled him to withdraw his plea. We reject that claim and affirm the judgment.

Originally, the defendant pleaded not guilty to the murder charge and to two additional charges involving his possession and use of a firearm. After a jury had been selected, the trial began on September 4, 1996. The trial court denied the defendant’s motion to suppress the testimony of an eyewitness who identified the defendant as the person who had shot the victim.

On the following day, the defendant agreed to plead guilty to the murder charge and the state agreed not to prosecute the other two charges. Before accepting the guilty plea, the trial court canvassed the defendant in accordance with the requirements of Practice Book §§ 711 through 713, now §§ 39-19 through 39-21. The defendant’s responses to the court’s inquiries disclosed that he was thirty years of age and a high school graduate who had attended college for one year. He had discussed the murder charge and the evidence against him with his attorney and was satisfied with his attorney’s services. He was not under the influence of alcohol, drugs or any medication and he understood that murder was a class A felony that carried a maximum sentence of sixty years and a minimum sentence of twenty-five years with a maximum fine of $20,000. During the canvass, the defendant said that he realized he was waiving various constitutional rights related to a criminal trial by pleading guilty, but, nevertheless, was pleading guilty voluntarily without any force or threats by other persons.

The court informed the defendant that, after discussing the case with the prosecutor and defense counsel, it was prepared to impose a sentence of thirty-three years for the crime that the defendant had committed. The court asked the defendant whether he wanted to plead guilty to murder when the sentence indicated was thirty-three years. The defendant answered yes. The court then proceeded to accept the guilty plea.

On December 3,1996, before the sentencing proceeding, the defendant filed a written motion to withdraw his guilty plea, alleging that the plea was made unknowingly and involuntarily. Previously, in a brief letter received by the clerk’s office on October 18, 1996, the defendant had claimed that the trial court did not canvass him properly on an unspecified critical element of his case.

On January 9, 1997, there was an evidentiary hearing on the motion to withdraw the guilty plea. The only witness presented was the defendant, who testified that he did not understand the consequences of his plea when the trial court questioned him during the plea acceptance proceeding. He claimed that he was then under the impression that he would have to serve only eight to fifteen years of his thirty-three year sentence. He also testified that his plea was not voluntary because his trial attorney had pressured him into pleading guilty. After listening to the arguments of the state’s attorney and the defendant’s new counsel, the court reviewed the transcript of the plea canvass and denied the motion to withdraw the defendant’s guilty plea. The court then sentenced the defendant to thirty-three years imprisonment as agreed at the time that his guilty plea was accepted.

On appeal, the defendant claims that the trial court should have permitted him to withdraw his plea in accordance with Practice Book § 721 (2) because of his mistaken belief that the thirty-three year sentence would result in only eight to fifteen years of actual imprisonment. He maintains that the court should have informed him that he would not be eligible for parole because § 54-125a (b) (1) provides that persons convicted of murder as defined in § 53a-54a are ineligible for parole.

I

The state argues initially that the defendant has not properly preserved his claim for appellate review because he merely filed a “boilerplate motion to withdraw, asserting in a generic fashion that his guilty plea was unknowing and involuntary.” There is little substance to this contention.

Although the defendant’s written motion to withdraw his plea does not state the basis for his claim that the plea was unknowing and involuntary, the grounds for his motion were sufficiently articulated at the hearing thereon prior to sentencing. The defendant testified at the hearing that he thought he would be imprisoned for only eight to fifteen years of the thirty-three year sentence because that would have been the result under New York law. In this appeal, he is raising essentially the same claim, that he was not fully aware of the consequences of his plea because of his misunderstanding concerning the time he would have to remain in prison. The state’s reliance on State v. Brown, 19 Conn. App. 640, 642, 563 A.2d 1379, cert. denied, 212 Conn. 821, 565 A.2d 540 (1989), in which this court declined to review an unpreserved claim regarding a plea canvass, is misplaced because the defendant in that case first challenged the sufficiency of the canvass after he had been sentenced. Practice Book § 720 prohibits the withdrawal of a plea after the conclusion of the sentencing proceeding. Because the defendant sufficiently raised the issue on which he seeks appellate review in the trial court, we need not consider his alternative ground for such review, that his claim involves the deprivation of a constitutional right and satisfies the criteria for review of claims not raised in the trial court as set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

II

“We have never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary, and indeed such a constitutional requirement would be inconsistent with the current rules of procedure governing the entry of guilty pleas in the federal courts.” Hill v. Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). The federal courts of appeal have rejected claims that a plea was involuntary because of the failure to inform a defendant that the sentence imposed following a plea of guilty would result in ineligibility for parole. United States v. Posner, 865 F.2d 654, 659-60 (5th Cir. 1989); Hunter v. Fogg, 616 F.2d 55, 60 (2d Cir. 1980); Armstrong v. Egeler, 563 F.2d 796, 800 (6th Cir. 1977). Parole eligibility is regarded as a collateral consequence of a guilty plea and the trial court is not obliged to inform the defendant on that subject before accepting the plea. G. Herman, Plea Bargaining § 8.08 (1997). “The failure to advise a defendant of collateral consequences of a plea of guilty does not render it involuntary. Holloway v. Lynaugh, 838 F.2d 792, 794 [(5th Cir.), cert. denied, 488 U.S. 838, 109 S. Ct. 104, 102 L. Ed. 2d 80 (1988)]. A defendant need not be furnished with information about parole eligibility . . . and the current rules of procedure ... in the federal courts do not require it.” United States v. Posner, supra, 660.

In claiming that a different rule should prevail in Connecticut, the defendant relies on State v. Collins, 176 Conn. 7, 9-10, 404 A.2d 871 (1978), and State v. Collins, 207 Conn. 590, 598, 542 A.2d 1131 (1980). In State v. Collins, supra, 7, the defendant pleaded guilty pursuant to an agreement that he would receive a sentence of seven and one-half to fifteen years. When the sentence was imposed, however, the court added the condition that the new sentence would be served after he had completed serving any outstanding sentences. The defendant immediately moved to withdraw his guilty plea because the court had modified the plea bargaining agreement. On the appeal from the denial of the defendant’s motion, our Supreme Court reversed the judgment and ordered that the defendant be allowed to withdraw his plea because there was no prior discussion of whether the sentence imposed would be concurrent or consecutive to the outstanding sentences. A guilty plea “ ‘cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.’ . . . An understanding of the law in relation to the facts must include all relevant information concerning the sentence. The length of time a defendant may have to spend in prison is clearly crucial to a decision of whether or not to plead guilty.” (Citations omitted.) Id., supra, 9-10.

In State v. Collins, supra, 207 Conn. 590, the defendant moved to withdraw his guilty pleas immediately before he was sentenced. He claimed that his attorney had incorrectly informed him that, with credit for good time, he would spend less than ten years in prison in serving his sentence of seventeen years. The attorney who had represented the defendant in the trial court admitted that he had misinformed the defendant about the duration of prison confinement resulting from the sentence imposed. Our Supreme Court remanded the case for an evidentiary hearing to determine the effect of the erroneous advice on the defendant’s decision to plead guilty. Id., 598.

Although State v. Collins, supra, 176 Conn. 7, and State v. Collins, supra, 207 Conn. 590, demonstrate the concern of our Supreme Court that a defendant be fully aware of the duration of his imprisonment resulting from a sentence imposed pursuant to a plea bargain, those cases are clearly distinguishable from the case before us in which the claim is that the trial court was obliged to inform the defendant that a person convicted of murder is ineligible for parole. In State v. Collins, supra, 176 Conn. 7, the court held simply that a trial court cannot modify a plea bargain in a manner detrimental to the defendant without affording him an opportunity to withdraw his plea. In State v. Collins, supra, 207 Conn. 590, the court did not attempt to impose on the trial court a duty to inform the defendant of the effective term of imprisonment he would serve if he should earn the maximum amount of good time, but remanded the case for an evidentiary proceeding to determine whether the defendant’s attorney had misinformed him about the effect of good time on his sentence. Neither case supports the defendant’s claim that the trial court has a duty to advise a defendant that his conviction will make him ineligible for parole.

Our Supreme Court has rejected several claims that, in accepting a guilty plea, the trial court must advise the defendant of the consequences of his conviction beyond those prescribed by Practice Book § 711, now § 39-19. In Mainiero v. Liburdi, 214 Conn. 717, 725, 573 A.2d 1207 (1990), the court was not persuaded that a defendant who pleaded guilty pursuant to a plea agreement was entitled to a reversal of his conviction

because the trial court never informed him that he would be ineligible for sentence review or sentence modification. “There is no requirement ... that the defendant be advised of every possible consequence of such a plea.” State v. Gilnite, 202 Conn. 369, 383, 521 A.2d 547 (1987). Even when the trial court, in accepting a guilty plea, has failed to comply with Practice Book § 711 (2) by neglecting to advise the defendant of the mandatory minimum sentence for an offense, the plea remains effective as long as the record indicates that the defendant understood the actual sentencing possibilities. State v. Domian, 235 Conn. 679, 687-88, 668 A.2d 1333 (1996).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 54-125a (b) (1) provides in relevant part: “No person convicted of any of the following offenses, which was committed on or after July 1, 1981, shall be eligible for parole under subsection (a) of this section . . . murder, as defined in section 53a-54a . . . .”

       The defendant testified: “Well, it’s like in New York, thirty-three years— it would be like eight to fifteen years. And now I got the internal memo and they said I got to do like twenty-seven years flat.” The record, briefs and transcript fail to disclose the basis for the defendant’s statement concerning the duration of imprisonment resulting from a thirty-three year sentence under New York law.

         On appeal, the defendant has not briefed this claim of being pressured by his trial attorney to plead guilty. Accordingly, we must treat that claim in tliis appeal as abandoned. Mather v. Griffin Hospital, 207 Conn. 125, 129 n.2, 540 A.2d 666 (1988); State v. Cavallo, 200 Conn. 664, 666 n.3, 513 A.2d 646 (1986).

       Practice Book § 721 (2), now § 39-27, provides in relevant part: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows ....
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed . . .

       Practice Book § 720, now § 39-26, provides in relevant part: “A defendant may not withdraw his or her plea after the conclusion of the proceeding at which the sentence was imposed.”

       The United States Court of Appeals for the Second Circuit, when it first considered the issue, held that the failure of the trial court to inform the defendant that he was ineligible for parole with respect to the offense to which he had pleaded guilty invalidated the plea because he was not advised of that consequence of his conviction. Bye v. United States, 435 F.2d 177 (2d Cir. 1970). In Hunter v. Fogg, supra, 616 F.2d 60, decided after the 1975 amendment to rule 11 of the Federal Rules of Criminal Procedure, the court effectively overruled Bye by construing the amended rule to require that the trial court, in accepting a guilty plea, inform the defendant of “only two sentencing consequences: the mandatory minimum penalty provided by law, il' any, and the maximum possible penalty provided by law.” (Internal quotation marks omitted.)

       In this appeal, the defendant has not claimed that his trial attorney informed him that he would be imprisoned for only eight to fifteen years of his thirty-three years sentenced.


author: O’CONNELL, C. J.

text:
    PAUL J. YAMIN v. STATEWIDE GRIEVANCE COMMITTEE
    (AC 17969)
    O’Connell, C. J., and Lavery and Hennessy, Js.
    Argued December 3, 1998
    officially released April 27, 1999

      Christopher G. Blanchard, assistant bar counsel, for the appellant (defendant).

      Paul J. Yamin, pro se, the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of the trial court sustaining the plaintiffs appeal from the reprimand issued by the defendant. On appeal, the defendant claims that the trial court improperly substituted its judgment for that of the defendant in concluding that there did not exist clear and convincing evidence that the plaintiff violated rule 8.4 (4) of the Rules of Professional Conduct. We affirm the judgment of the trial court.

The record discloses the following pertinent facts. The plaintiff is an attorney licensed to practice law in the state of Connecticut. In February, 1995, Mary Beth Ali filed a complaint against the plaintiff with the grievance panel in the judicial district of Waterbury. The panel referred the complaint to the defendant. Prior to the hearing on the complaint, Ali submitted additional information that she had been approached by the plaintiffs client, Brian McDonald, who gave her two documents prepared by the plaintiff. The first document was an irrevocable assignment of interest to Ali in a personal injury claim being pursued by the plaintiff on behalf of McDonald. The second document was a letter to be signed by Ali that stated that she wanted to withdraw her grievance complaint. On the basis of that additional information, the defendant found that the plaintiff had violated rule 8.4 (4) and issued a reprimand. The plaintiff appealed the reprimand to the Superior Court. In December, 1997, the trial court sustained the appeal. The defendant thereafter filed the present appeal.

The defendant claims that there was clear and convincing evidence that the plaintiffs preparation of the irrevocable assignment of interest and the withdrawal letter was “prejudicial to the administration of justice.” See footnote 1. It also claims that the trial court had improperly substituted its judgment for that of the defendant. We are not persuaded.

“[I]n reviewing a decision of the statewide grievance committee to issue a reprimand, neither the trial court nor this court takes on the function of a fact finder. Rather, our role is limited to reviewing the record to determine if the facts as found are supported by the evidence contained within the record and whether the conclusions that follow are legally and logically correct.

. . . Additionally, in a grievance proceeding, the standard of proof applicable in determining whether an attorney has violated the [Rules] of Professional [Conduct] is clear and convincing evidence. . . . The burden is on the statewide grievance committee to establish the occurrence of an ethics violation by clear and convincing proof.” (Internal quotation marks omitted.) Somers v. Statewide Grievance Committee, 245 Conn. 277, 290, 715 A.2d 712 (1998); see Practice Book § 2-38 (f). “[C]lear and convincing proof denotes a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989).

The trial court determined that there was sufficient evidence to support the defendant’s finding that the plaintiff had prepared the letter and assignment of interest. The court adduced, however, that there was insufficient support in the record to conclude that by preparing these documents the plaintiff had attempted to persuade Ali to withdraw her grievance complaint. The court concluded, therefore, that the defendant had failed to establish an ethical violation by clear and convincing proof.

The defendant claims that the trial court substituted its judgment for that of the defendant because there was substantial evidence that the plaintiff had attempted to induce Ali to withdraw her grievance. The only evidence that it identifies to support its argument, however, is the evidence that the plaintiff prepared the documents and the plaintiffs testimony that he had intimated to McDonald that if he wanted to pay Ali, it would be “helpful” if she withdrew her complaint. Although we do not condone the plaintiffs actions, we agree with the trial court that this evidence clearly does not meet the high standard of proof required in such cases. We also conclude that because the defendant failed to establish that the trial court retried the facts, the court did not improperly substitute its judgment for that of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       Rule 8.4 of the Rules of Professional Conduct provides in relevant part: “It is professional misconduct for a lawyer to . . .
      “(4) Engage in conduct that is prejudicial to the administration of justice

       The defendant’s review committee did not find any other violations.


author: DUPONT, J.

text:
    FLORENCE KRONDES v. NORWALK SAVINGS SOCIETY
    (AC 17221)
    Landau, Schaller and Dupont, Js.

      Argued January 28
    officially released April 27, 1999

      Arthur R. Riceio, Jr., for the appellant (plaintiff).

      Richard E. Castiglioni, with whom, on the brief, was James P. Blanchfield, for the appellee (defendant).
   Opinion

DUPONT, J.

The plaintiff, Florence Krondes, appeals from a judgment of the trial court rendered after the court directed a verdict in favor of the defendant. On appeal, the plaintiff claims that the trial court improperly (1) directed the verdict for the defendant, (2) concluded that the plaintiffs claims were barred by the applicable statutes of limitation, (3) concluded that the plaintiffs claims were precluded on res judicata and collateral estoppel grounds and (4) denied the plaintiffs request to have the jury polled. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. The plaintiff brought this action against the defendant on May 24, 1991. In her complaint, the plaintiff alleged that she relied to her detriment on the advice, experience and expertise of the defendant and its agents in connection with the purchase and financing of two properties located at 31 Isaac Street, Norwalk (Isaac Street property), and 142-152 Connecticut Avenue, Norwalk (Connecticut Avenue property). On March 30, 1987, the plaintiff borrowed $200,000 from the defendant and, as security for the loan, executed a promissory note and gave a mortgage to the defendant on the Isaac Street property. The plaintiff contracted to purchase the Connecticut Avenue property on February 4,1986. In connection with the contract, the plaintiff accepted and executed a series of mortgage commitment letters concerning the Connecticut Avenue property, the last one expiring on March 14, 1988. The plaintiff and the sellers never completed this transaction, however, and on May 5, 1988, the plaintiff sold her right to the contract to a third party.

The plaintiff alleged that she sought to finance the purchase of both properties through the defendant bank because the defendant held existing mortgages on the properties and allegedly knew the sellers, and she thought that she could enter into a special relationship with the defendant. The plaintiff alleged that she in fact established a special relationship of trust and confidence with the defendant and that, by virtue of this special banking relationship, the defendant owed her a duty to advise her of any information it had obtained relating to the properties. The plaintiff alleged that the defendant breached this duty by failing to advise her of certain detrimental information relating to the properties and the sellers and that said breach caused the plaintiff to suffer economic and other damages. The one count complaint alleged claims for fraud, misrepresentation, breach of an implied covenant of good faith and fair dealing, breach of a fiduciary duty and relationship of trust and confidence, and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

The defendant filed an answer and special defenses, alleging that the plaintiffs claims were barred by the applicable statutes of limitation and by the doctrines of res judicata and collateral estoppel. The plaintiff filed an amended reply denying the claims made in the defendant’s special defenses and alleging that the defendant fraudulently concealed the plaintiffs causes of action in violation of General Statutes § 52-595. A jury was selected and the trial commenced on February 25, 1997.

On March 7, 1997, at the close of the plaintiffs case, the defendant moved for a directed verdict pursuant to Practice Book § 16-37. After hearing argument, the trial court reserved decision on the motion. Thereafter, on March 11, 1997, the trial court stated the following: “As I indicated to counsel in chambers, I was going to place on the record, this morning, my position with respect to many of the claims being made by the plaintiff in this lawsuit. You may recall, initially, I received a number of motions in limine regarding many of these same issues when the lawsuit or the taking of evidence was about to commence and reserved decision to see what the evidence would show. Thereafter, at the conclusion of the plaintiffs case Friday, there was a motion ... a motion for directed verdict by the defense—defendant’s and at the time I indicated I would not direct a verdict.

“But, on consideration over the weekend and review of the case in its entirety, what the evidence has shown, from the way I viewed the evidence in any event, I’m not going to charge the jury with respect to a number of issues raised by the plaintiff, and, that would have the effect of directing a verdict, if you will. One of the concerns I have, is the complaint as drafted. The one count contains numerous claims, issues, causes of action and it would be difficult for me to sort that out. I certainly can’t direct a verdict as to the entire count, at least at this juncture.

“I indicated, if I were to allow all claims to go to the jury, I know that based on the evidence as [it has] been introduced in this courtroom and the jury comes back with a verdict on any of these issues, I—for the plaintiff, I would take it away from the jury, as I would be duty bound to do. Not to create false hopes, if the jury were to come back in any one particular for the plaintiff, on any of these issues, I made my mind up.”

The trial court found that as to the fraud, misrepresentation, tort and CUTPA claims, the plaintiff failed to present clear, precise and unequivocal evidence from which a jury could infer fraudulent concealment. The court, therefore, concluded that the applicable three year statutes of limitation were not tolled and that the plaintiffs claims were barred. These conclusions of the trial court applied to both the Connecticut Avenue and Isaac Street properties.

In addition to the ruling as to the statutes of limitation, the trial court ruled that the plaintiffs claims relating to the Isaac Street property were precluded by res judicata but that her claims as to the Connecticut Avenue property were not precluded on res judicata or collateral estoppel grounds because those claims were not involved in the prior foreclosure action.

The trial court concluded that the only viable claim remaining was the claim for a breach of the implied covenant of good faith and fair dealing as to the Connecticut Avenue property and that it would charge the jury as to that claim alone. Thereafter, the defendant presented one witness and then rested its case. No rebuttal was offered.

The next day the trial court stated the following: “Before we start anything regarding the present case, I want to make sure that the parties understand and the attorneys understand exactly what I will entertain today and that is what issue I will allow or claim I will allow to be presented to the jury. Yesterday, you will recall, I went through the various claims of the plaintiff that are contained in [her] revised complaint and decided that all save one would not be presented to the jury. I gave the reasons therefor. All reasons that I placed on the record but with respect to this claim that I said I would allow to go to the jury. I want to make sure we understand, we’re all on the same wavelength. The claim, as I recall, is a breach by the defendant Norwalk Savings Society of an implied covenant of good faith and fair dealing.”

The trial court explained further that it would allow the claim only as it relates to the Connecticut Avenue property. The trial court stated that “with respect to the claim of the breach of covenant, implied covenant of good faith and fair dealing relating to the Isaac Street property, that was heard. That was heard and decided in Norwalk Savings Society versus Krondes, decided a couple months ago by Judge Stevens. It was pled as a special defense, as I recall, along with a lot of other special defenses. It was fully litigated. There was a hearing, contested hearing. The judge decided the issue and decided against the defendant in that action, the plaintiff in this case .... [T]he plaintiff must understand that she made an election to have it heard and tried to the court. . . . She pled the breach of implied covenant of good faith and fair dealing as it relates to Isaac Street in that foreclosure action. ... It was pled to the court. It was decided by the court. [It] cannot now be pled to the jury and decided by the jury.”

Thereafter, the defendant renewed its motion for a directed verdict with respect to all claims in the complaint. The trial court stated, “Everything else is gone, as far as I’m concerned, from the case. It’s as though I directed a verdict on all those other areas but because all of the cases—all of the claims were included in one paragraph it was very difficult for me to try to sort those out. Had they been in separate counts I would have entered a directed verdict as to those counts where I felt it required. Here, the best I can do is just say I will not charge these matters to the jury and therefore, it’s as though I directed a verdict on all of these particular claims.” The defendant argued that the court should direct a verdict as to the breach of an implied covenant of good faith and fair dealing because the plaintiff failed to present any evidence of a breach to support her claim. The plaintiff countered that she presented sufficient evidence from which a jury could find for the plaintiff.

Following the parties’ arguments on the defendant’s renewed motion for a directed verdict, the trial court stated the following: “I don’t see for the life of me where the lender has breached any covenant, expressed or implied, in that contract without being able to make certain of these other claims that are precluded. There’s no way in the world that a reasonable jury on the basis of competent evidence could reasonably find for the plaintiff on this, the only claim that’s viable. There’s no way in the world that can be done. So rather than prolong the agony and get Mrs. Krondes’ hopes up, this is my ruling and I’ll end it right here and I’m going to direct a verdict on all claims against the plaintiff and for the defendant. ... I don’t see any competent evidence from which a jury can make a finding in favor of the plaintiff on this particular claim. I’m not ruling on those other claims. They’re not before me. I said that I’m not going to hear that and so that’s my ruling and that ends the case at this point and exceptions are noted.” The trial court did not charge the jury and no closing arguments were made to the jury.

The trial court then directed the jury to find the issues for the defendant and denied the plaintiffs request to have the jury polled. The plaintiff filed a motion to set aside the verdict and for a new trial, which was denied by the trial court on May 6, 1997. This appeal followed.

I

The plaintiff first claims that the trial court failed to follow the correct procedures under the rules of practice in directing the verdict for the defendant, thereby denying the plaintiff a fair trial. Specifically, the plaintiff claims that the trial court proceeded in a disjointed and confusing manner when it granted what the plaintiff refers to as a partial directed verdict on March 11,1997, and subsequently when it reversed its decision in part on March 12, 1997, and directed a verdict in favor of the defendant on all counts. The defendant claims that this court should not review this claim because the plaintiff did not raise this claim at trial, or in her motion to set aside the verdict and for a new trial.

We first note that the plaintiff objected to the granting of the defendant’s motion for a directed verdict both when it was initially made and when it was renewed at the close of the defendant’s case. Although the plaintiff did not specifically claim that the defendant’s motion when made at the close of the plaintiffs case could be granted or denied only in toto, we will review this claim because it is encompassed within the plaintiffs objection to the granting of the defendant’s motion.

Practice Book § 16-37 allows the very procedure the plaintiff claims was a partial directed verdict. That section provides in relevant part: “Whenever a motion for a directed verdict made at any time after the close of the plaintiffs case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. After the acceptance of a verdict . . . a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside . . . .”

Here, on March 7, 1997, when the defendant moved for a directed verdict at the close of the plaintiffs case, the trial court reserved decision on the motion. Then, on March 11, 1997, it ruled that with the exception of one claim, all of the plaintiffs claims were time barred. Prior to submitting the case to the jury, the trial court determined that the plaintiff had failed to present competent evidence to support her claim for a breach of the implied covenant of good faith and fair dealing and it directed the verdict as to all claims. Because the rules of practice allow a trial court to revisit and decide issues of law raised in a motion for directed verdict, as was the case here, the procedure followed by the trial court was not improper. Furthermore, Practice Book § 16-37 is not limited in any way and does not prohibit a trial court from granting a motion for a directed verdict as to some causes of action, while reserving decision as to others.

II

The plaintiff next claims that the trial court improperly directed the verdict in favor of the defendant because (1) the plaintiff presented sufficient evidence from which a jury could find that the statute of limitations had been tolled by either the defendant’s fraudulent concealment of the causes of action or a continuing course of conduct on the part of the defendant, (2) the trial court used an improper standard in directing the verdict and (3) the trial court improperly determined that the plaintiffs claims were precluded on res judicata and collateral estoppel grounds.

“The rules controlling appellate review of a directed verdict are well settled. Directed verdicts are not generally favored. A trial court’s decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion. . . . We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff.” (Internal quotation marks omitted.) Ciarlelli v. Romeo, 46 Conn. App. 277, 282, 699 A.2d 217, cert. denied, 243 Conn. 929, 701 A.2d 657 (1997). “While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven; Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 529, 562 A.2d 1100 (1989); it may not resort to mere conjecture and speculation. Burke v. West Hartford, 147 Conn. 149, 151-52, 157 A.2d 757 (1960). If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury.” (Internal quotation marks omitted.) DiDomizio v. Frankel, 44 Conn. App. 597, 600, 691 A.2d 594 (1997).

A

The plaintiff claims that there was sufficient evidence from which a jury could find that the statutes of limitation had been tolled by either the defendant’s fraudulent concealment or its continuing course of conduct.

The following additional facts are relevant to our resolution of this claim. The plaintiff closed on the Isaac Street property on March 30, 1987, when she obtained a loan and mortgaged the property to the defendant. The plaintiff never closed on the Connecticut Avenue property and sold her right to acquire the property on May 5, 1988. With respect to the plaintiffs fraud and misrepresentation claims, the applicable statute of limitations is three years. Day v. General Electric Credit Corp., 15 Conn. App. 677, 683, 546 A.2d 315, cert. denied, 209 Conn. 819, 551 A.2d 755 (1988). The tort claims are governed by a three year statute of limitations, as is the CUTPA claim. Accordingly, with the exception of the plaintiffs claim for a breach of the implied covenant of good faith and fair dealing, the statutes of limitation for all of her claims were three years. The plaintiffs claims as to the Isaac Street property, therefore, had to be brought no later that March 30, 1990, and the Connecticut Avenue claims, May 5, 1991. The present action, however, was not brought until May 24, 1991, and it is therefore barred by the statutes of limitation unless the plaintiff can show that the statutes were tolled by either the defendant’s fraudulent concealment or a continuing course of conduct.

General Statutes § 52-595 provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.” Our Supreme Court has held that “ ‘[t]o establish that the [defendant] had fraudulently concealed the existence of [her] cause of action and so had tolled the statute of limitations, the [plaintiff] had the burden of proving that the [defendant was] aware of the facts necessary to establish this cause of action . . . and that [it] had intentionally concealed those facts from the [plaintiff].’ Bound Brook Assn. v. Norwalk, 198 Conn. 660, 665, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986).” Connell v. Colwell, 214 Conn. 242, 250, 571 A.2d 116 (1990). “The [defendant’s] actions must have been directed to the very point of obtaining the delay [in filing the action] of which [it] afterward [seeks] to take advantage by pleading the statute. Lippitt v. Ashley, [89 Conn. 451, 480, 94 A. 995 (1915)] .... To meet this burden, it was not sufficient for the [plaintiff] to prove merely that it was more likely than not that the [defendant] had concealed the cause of action. Instead, the [plaintiff] had to prove fraudulent concealment by the more exacting standard of clear, precise, and unequivocal evidence . . . .” (Citations omitted; internal quotation marks omitted.) Cutsumpas v. Connecticut Light & Power Co., 16 Conn. App. 108, 112-13, 546 A.2d 962 (1988).

The plaintiff claims that she asked agents of the defendant whether they knew about the sellers, the financial soundness of the investment or anything material or adverse to her investment in the properties. She claims that the agents denied having such knowledge, when in fact they personally knew the sellers and were aware of detrimental information relating to the properties, which they concealed from the plaintiff. She claims that she conducted an independent investigation after being alerted by the Federal Bureau of Investigation that the information necessary to commence this action remained concealed from her until after August, 1989, and, therefore, she had until at least August, 1991, to commence this action.

The evidence relied on by the plaintiff fails to show any intent on the part of the defendant to conceal facts, nor does it support a finding that the defendant’s alleged concealment was directed toward obtaining a delay in the filing of this action.

The evidence before the trial court showed that the events of which the plaintiff complained took place more than three years prior to the plaintiffs institution of this action and that the statutes of limitation were not tolled. The trial court correctly concluded that the plaintiffs claims were time barred as a matter of law and, therefore, properly directed a verdict. “[W]here the judgment in a case heard before a jury depends wholly on a question of law, so that any other verdict than the one so required would inevitably be set aside upon review, it has long been the practice for the judge to direct the jury to bring in a particular verdict. It is merely reaching more speedily and directly a result which would inevitably be reached in the end.” (Internal quotation marks omitted.) Simmons v. Southern Connecticut Gas Co., 7 Conn. App. 245, 250, 508 A.2d 785 (1986).

The plaintiff also claims that the trial court improperly directed the verdict for the defendant because there was sufficient evidence to submit to the jury that the defendant engaged in a continuing course of conduct that tolled the statutes of limitation. The plaintiff states in her brief that the trial court “never addressed this issue in any of its rulings or findings on the motion for directed verdict.” A review of the transcript reveals that although the plaintiff raised the claim at trial, the trial court’s decision on March 11,1997, regarding the plaintiffs failure to present sufficient evidence to toll the limitations period, was predicated on the fraudulent concealment issue, and that no mention was made of the claim of a continuing course of conduct.

“It is the appellant’s burden to provide an adequate record for review. Practice Book § [60-5] .... 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; Gerber & Hurley, Inc. v. CCC Corp., 36 Conn. App. 539, 543, 651 A.2d 1302 (1995); to clarify the legal basis of a ruling; Leverty & Hurley Co. v. Commissioner of Transportation, 192 Conn. 377, 379, 471 A.2d 958 (1984); or to ask the trial judge to rule on an overlooked matter. Wolk v. Wolk, 191 Conn. 328, 335 n.1, 464 A.2d 780 (1983).” (Citation omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52-53, 717 A.2d 77 (1998). Here, the plaintiff has not moved for an articulation of the trial court’s ruling regarding the continuing course of conduct claim. We, therefore, decline to review this issue.

B

The plaintiff claims that the trial court failed to use the proper standard in directing the verdict because the court failed to find specifically that the jury could not reasonably and legally have found that the plaintiff proved her case. The plaintiff claims that “[a]t no time in ruling on the motion for directed verdict did the court ever state that there was insufficient evidence to go to the jury on the issues of fraud, misrepresentation and [the CUTPA claim]” and that in rendering its final decision on the motion for directed verdict the “trial court failed to specifically find that the jury could not reasonably and legally have found that the plaintiff had proved her case.” We disagree.

Here, the trial court found that because no reasonable juror could find fraudulent concealment on the part of the defendant, the statutes of limitation were not tolled. Accordingly, the court held that the plaintiffs claims of fraud, misrepresentation, a violation of CUTPA and breach of fiduciary duty and relationship of trust and confidence were each barred by a three year statute of limitations. The fact that the trial court did not restate this finding on March 12, 1997, when it directed the verdict as to the final claim is of no consequence. The effect of the trial court’s ruling on March 11,1997, was to direct a verdict for the defendant on all of the plaintiffs claims except one. The trial court used the correct standard in directing the verdict on these claims and the plaintiffs claim is without merit.

C

The plaintiff next claims that the trial court improperly determined that her claims were precluded under the doctrines of res judicata and collateral estoppel. We disagree.

The plaintiff claims that the trial court improperly determined that her claims were precluded on res judi-cata or collateral estoppel grounds because the foreclosure action did not involve the Connecticut Avenue property and there was never an adjudication on her CUTPA claims because they were not made in the foreclosure action. The plaintiff, however, misconstrues the trial court’s ruling on this issue.

The trial court specifically held that the plaintiffs claims as to the Connecticut Avenue property were not precluded by either res judicata or collateral estoppel. With the exception of the claim for a breach of the implied covenant of good faith and fair dealing, the trial court held that all of the plaintiffs claims concerning both properties were precluded by the statutes of limitation. The trial court also held that all of the claims relating to Isaac Street were precluded under the doctrine of res judicata. Because we have concluded that the trial court correctly precluded the jury from determining any claims except the claim for breach of the implied covenant of good faith because the statutes of limitation had run, the only claim we must examine concerning the issue of res judicata involves the plaintiffs claim for a breach of the implied covenant of good faith and fair dealing relating to the Isaac Street property.

Here, the trial court held that the plaintiff was precluded from submitting this claim to the jury because it was raised in the foreclosure action, fully litigated in a contested hearing and decided by the trial court against the plaintiff. The trial court held further that the plaintiff chose to have her claims in the foreclosure action decided by the court, and that she could not now claim that she was being denied the right to have her claims heard by a jury. Although the defendant alleged that the plaintiffs claims were precluded by both res judicata and collateral estoppel, the trial court analyzed the issue of preclusion only in terms of res judicata.

“[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose. . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it. Delahunty v. Massachusetts Mutual Life Ins. Co, 236 Conn. 582, 589, 674 A.2d 1290 (1996).” (Citations omitted; internal quotation marks omitted.) Tirozzi v. Shelby Ins. Co., 50 Conn. App. 680, 685, 719 A.2d 62, cert. denied, 247 Conn. 945, 723 A.2d 323 (1998). “[T]he appropriate inquiry with respect to [claim] preclusion is whether the party had an adequate opportunity to litigate the matter in the earlier proceeding . . . .” (Internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 43-44, 694 A.2d 1246 (1997). “The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation. Res judicata or claim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits.” (Internal quotation marks omitted.) Daoust v. McWilliams, 49 Conn. App. 715, 723, 716 A.2d 922 (1998).

Each of the elements of res judicata is satisfied in this case. Both the foreclosure and the present actions involve the same parties, the sole plaintiff, and the bank, Norwalk Savings Society. The same claim, raised by the plaintiff here in her complaint, was raised by her in the foreclosure action as a special defense. The judgment by the trial court in the foreclosure action ruling that the plaintiff had failed to show that the bank acted in bad faith was rendered on the merits as the foreclosure action required the judge to decide the merits of the plaintiffs claim. The foreclosure action involved a contested hearing, in which the plaintiff offered extensive testimony as to her claim and, accordingly, the plaintiff had the opportunity to litigate her claim fully. We conclude that the trial court properly determined that the judgment in the foreclosure action as to the claim of the breach of the implied covenant of good faith and fair dealing involving the Isaac Street property precluded submission to the jury.

Ill

The plaintiffs final claim is that the trial court improperly denied her request to have the jury polled. We are not persuaded.

The following additional facts are relevant to this claim. On March 12, 1997, after the trial court determined that it would direct a verdict for the defendant as to all of the plaintiffs claims, the court brought the jury into the courtroom and stated the following: “I want to explain to you that for better or for worse the court has taken this matter from you. You’re not going to decide anything. I have decided it and I have—what I have to do, I guess, however, is to require that you go into your deliberation room and I’ll give you—-we have verdict forms?

“[Defendant’s Counsel]: Yes, Your Honor.

“The Court: I will give you a defendant’s verdict form and I will direct that you do two things. That you elect a foreperson and that foreperson then direct a verdict for the defendant by signing and dating said. So there’s no deliberation. I am directing a verdict for the defendant. So you don’t have any—there’s no option. There’s no choice.....”

Thereafter, the jury exited the courtroom. When the jury failed to return promptly, the court directed the sheriff to bring the jury back into the courtroom. The trial court asked if there was a problem and a juror responded, “We’re all just undecided, Judge.” The trial court again instructed the jurors that the court had taken the decision away from them, and, to remedy the situation, the court modified the verdict form to read that pursuant to the court’s order, the jury finds the issues in this case for the defendant. After the verdict was rendered, the plaintiffs counsel requested that the jury be polled on the directed verdict. The trial court denied the request, stating, “No, because it’s not their— they haven’t discussed it yet. They haven’t had the opportunity to talk about it, consider the evidence, to look at all the documents. So this has nothing to do with the jurors’ discretion. This has to do with the court’s order.”

The plaintiff claims that “it was apparent from the record that the jury had not agreed unanimously to direct the verdict thereby making the verdict that was actually rendered defective and entitling the plaintiff to a new trial.” The plaintiffs argument is entirely without merit. A trial court may direct a verdict for a defendant if it finds that the jury could not reasonably and legally have reached any other conclusion. DiDomizio v. Frankel, supra, 44 Conn. App. 600. When a verdict is directed, the trial judge, in effect, orders the entry of judgment without any consideration on the part of the jury because, as a matter of law, there could be only one verdict. Practice Book § 42-31, which now requires that the jury be polled at the request of any party or upon the judicial authority’s own motion, presupposes that the verdict that is being returned is that of the jury, not the court. Section 42-31 provides in relevant part that “[t]he poll shall be conducted by the clerk of the court by asking each juror individually whether the verdict announced is such juror’s verdict. ...” Here, the directed verdict was clearly not that of the jurors and, as such, Practice Book § 42-31 does not apply.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also challenges the denial of her motions to set aside the verdict and for a new trial. Because we conclude that the trial court properly directed the verdict for the defendant, we do not discuss the plaintiffs motions to set aside the verdict and for a new trial. Also, we need not discuss (he defendant’s claim pursuant to Practice Book § 63-4 (a) (1) (A), formerly § 4013 (a) (1) (A), that we should affirm the judgment of the trial court on the alternate ground that the plaintiff could not sustain this lender liability action because she had failed to introduce evidence of any fiduciary relationship between her and the defendant.

       Specifically, the plaintiff claimed that the defendant failed to inform her of prior lawsuits and fires relating to the properties, and of various construction and zoning problems of which the defendant knew or should have known by virtue of inspections or because of its prior knowledge of the buildings and association with the sellers. The plaintiff claimed that if she had had that information, she would not have purchased the Isaac Street property. She alleges that she purchased a building with a value of less than she had been led to believe by the defendant and that she lost rental income from the failed closing of the Connecticut Avenue properly.

       Prior to the commencement of this claim, the defendant brought a foreclosure action against the plaintiff with respect to the Isaac Street property. In that action, the plaintiff alleged several special defenses, including fraudulent and negligent misrepresentation, unconscionability, breach of the implied covenant of good faith and fair dealing, and breach of a fiduciary duty. The case was tried to the court, which heard extensive testimony from the plaintiff. The trial court, Stevens, J., found for the defendant bank and against the plaintiff on all the special defenses and rendered a judgment of foreclosure in favor of the bank. The court found that the plaintiff failed to meet her burden of proving by clear and convincing evidence that she had a legitimate defense to the foreclosure action based on fraudulent misrepresentation, and that no negligent misrepresentations or omissions were made to the plaintiff regarding the matters that affected her decision whether to proceed with the closing. The court also found that the plaintiff offered no facts to indicate that the bank acted unconscionably or in bad faith and that she had failed to meet her burden of proof on those claims as well. The court further found that there was no special relationship of trust or confidence that would give rise to a fiduciary duty on the part of the bank.

       Specifically, the trial court stated that “in the case of Norwalk Savings Society versus Krondes action decided by Judge Stevens, fraudulent omission and misrepresentation emanating from the bank’s relationship with Mrs. Krondes regarding the Isaac Street property were decided against her; therefore I am eliminating those issues from this case.”

       In effect, the trial court had denied the defendant’s motion for a directed verdict made at the close of the plaintiffs case as to the plaintiffs claim for a breach of the implied covenant of good faith and fair dealing as to the Connecticut Avenue property, a.nd granted it as to the rest of the plaintiffs claims.

       Also, General Statutes § 52-216 provides in relevant part: “The court shall decide all issues of law and all questions of law arising in the trial of any issue of fact; and, in committing the action to the jury, shall direct them to find accordingly. . . .”

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but, within three years from the daté of the act or omission complained of.”

       General Statutes § 42-110g (f) provides that an action for a violation of CUTPA “may not be brought more than three years after the occurrence of a violation of this chapter.”

       The trial court found that the claim for a breach of the implied covenant of good faith and fair dealing was governed by a six year statute of limitation and was therefore timely, and the plaintiff does not, challenge this finding on appeal. Thus, this claim will not be addressed in this section.

       We note that the plaintiff has failed to brief any claim concerning the granting of the defendant’s motion for a directed verdict as to her claim for a breach of the implied covenant of good faith and fair dealing concerning the Connecticut Avenue property. Issues not briefed are deemed abandoned. Burnham v. Karl & Gelb, P. C., 50 Conn. App. 385, 394 n.4, 717 A.2d 811, cert. granted on other grounds, 247 Conn. 944, 723 A.2d 320 (1998); Timberland Development Corp. v. Planning & Zoning Commission, 43 Conn. App. 606, 610, 684 A.2d 1216 (1996), cert. denied, 240 Conn. 902, 688 A.2d 331 (1997).

       The trial court stated the following: “[W]ith regard to res judicata, the claimed effect of res judicata is the claim preclusion effect of same and Judge Stevens’ decision in Norwalk Savings Society versus Krondes. The court notes while Mrs. Krondes raised the same issues in that case as in this, all be it in special defenses in that case, the factual predicate in the foreclosure action involved a relationship with the bank concerning the Isaac Street property; whereas, in the instant matter, her relationship with Norwalk Savings Society involves two properties, Isaac Street and Connecticut Avenue. In the foreclosure action her relationship with the bank vis-a-vis the Connecticut Avenue property was irrelevant. For example, the claimed mortgage commitment contracts regarding same were unnecessary in Judge Stevens’ findings and, therefore, I’ll not preclude the entire claim on the basis of his decision.”

       Practice Book § 42-31 provides: “After a verdict has been returned and before the jury have been discharged, the jury shall be polled at the request of any party or upon the judicial authority’s own motion. The poll shall be conducted by the clerk of the court by asking each juror individually whether the verdict announced is such juror’s verdict. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or they may be discharged.”