author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. ROBERT JENNINGS
    (AC 27712)
    Flynn, C. X, and Schaller and Graendel, Js.
    Argued March 12
    officially released June 19, 2007

      Richard T. Meehan, Jr., with whom were Rachel Topham, law student intern, and, on the brief, Edward J. Gavin, for the appellant (defendant).

      Susan C. Marks, supervisory assistant state’s attorney, with whom, on the brief, were David I. Cohen,
      state’s attorney, and Nancy Dolinsky, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Robert Jennings, entered a conditional plea of nolo contendere pursuant to General Statutes § 54-94a to the charge of breach of the peace in violation of General Statutes § 53a-181 (a) (l),1 reserving his right to appeal from the trial court’s denial of his motion to dismiss. We are called upon to decide in the defendant’s appeal whether a subsequent information is barred by the statute of limitations, where the essential facts on which both the original information and the later information resulting in the defendant’s conviction remain the essential facts. State v. Almeda, 211 Conn. 441, 446, 560 A.2d 389 (1989), teaches us that one purpose of the statute of limitations in a criminal case is “to ensure that a defendant receives notice, within a prescribed time, of the acts with which he is charged,” so that he can prepare a defense. (Internal quotation marks omitted.). Because the informative statutory purpose was met, we conclude that the statute remained tolled and that the trial court properly denied the defendant’s motion to dismiss one of the stalking charges then lodged against him. We further affirm the judgment of conviction for breach of the peace. Although we conclude that the other stalking charge should have been dismissed as violative of the statute of limitations because it impermissibly broadened the charges by doubling the maximum possible sentence, the court’s failure to dismiss it became a nondispositive issue when a final substitute information, charging only one count of breach of the peace, was filed, to which the defendant pleaded nolo contendere.

The following facts and procedural history guide our review of the defendant’s appeal. On September 28, 2004, a judge of the Superior Court signed an arrest warrant that was attached to a short form information, charging the defendant with one count of stalking in the second degree. The information charged that the offense was committed “on or about September 24, 2004.” Subsequently, the defendant was arrested on October 2, 2004, pursuant to the arrest warrant.

Approximately fifteen months later, on January 3, 2006, the defendant filed a motion for a bill of particulars, requesting a statement of the essential facts. In response, the state filed a long form information on April 17, 2006, charging the defendant with five counts of stalking in the second degree in violation of General Statutes § 53a-181d. Although the April 17, 2006 information alleged that one of the offenses was committed “on or about September 20, 2004,” the information did not identify September 24, 2004, as a date on which any of the offenses allegedly occurred.

On May 16, 2006, the defendant filed a motion to dismiss the charges contained in the April 17, 2006 long form information. The defendant argued, inter alia, that the filing of the long form information was “tantamount to a nolle and/or withdrawal of the original information,” charging him with stalking “on or about September 24, 2004,” and that the long form information was barred by the statute of limitations since it charged that the offenses were committed on dates different than what appeared in the original information and, therefore, were not tolled. Thereafter, the state filed two amended informations on May 22, 2006, and on May 23, 2006, which continued to charge the defendant with having committed five counts of stalking. Although the state filed a demand for written notice of alibi defense on May 22, 2006, the record does not indicate that the defendant filed such a notice.

On May 24, 2006, the state filed a fourth amended information, charging the defendant with the commission of two counts of stalking in the second degree that allegedly occurred “on or about September 20, 2004,” and “on or about September 24, 2004.” Also on that day, the defendant filed an amended motion to dismiss. A hearing on the defendant’s motion to dismiss was held before the court, Nigro, J., on May 24, 2006, at which the defendant argued that the statute of limitations precluded the prosecution of the charges on the April 17, 2006 information, as well as the subsequently filed amended informations. At the conclusion of the May 24, 2006 hearing, Judge Nigro orally denied the defendant’s motion to dismiss. On the following day and pursuant to an agreement between the state and the defendant, the state charged the defendant, in a fifth substitute information, with one count of breach of the peace “on or about September 24, 2004,” in violation of § 53a-181 (a) (1). The defendant then entered a conditional plea of nolo contendere to the charge of breach of the peace, reserving his right to appeal from the court’s denial of his motion to dismiss. Consequently, the court rendered a judgment of conviction on the charge of breach of the peace in accordance with the defendant’s plea and sentenced the defendant to six months imprisonment, execution suspended, and two years of probation. This appeal followed.

On appeal, the defendant claims that the court improperly denied his motion to dismiss because the statute of limitations barred the state from proceeding on its prosecution of the defendant with respect to the charges set forth in the informations filed in 2006. The state, however, maintains that the original information tolled the statute of limitations, allowing the prosecution of the defendant on the amended informations.

As a prehminary matter, we note that we will review the defendant’s claim because the court found that the motion to dismiss would be dispositive of the case against the defendant under § 54-94a. We also review the claim because had the motion been granted as to the stalking charges, all of the pending charges against the defendant would have been disposed of, and there could not have been a subsequent amendment to the information, charging one count of breach of the peace for which he was convicted.

Our standard of review governing the defendant’s claim that the court failed to grant his motion to dismiss is well settled. Our review of the court’s legal conclusions and resulting denial of the defendant’s motion to dismiss will be de novo. State v. Haight, 279 Conn. 546, 550, 903 A.2d 217 (2006).

In support of his claim that the denial of his motion to dismiss was improper, the defendant presents two arguments. First, the defendant argues that the state was barred by the statute of limitations from prosecuting him on the basis of the informations filed in 2006, because the inclusion of additional counts in those informations substantially broadened the allegations against him. The defendant next argues that the addition of new dates in the April 17, 2006 information, which were different from the “on or about September 24, 2004” date listed on the original information, operated as an implicit nolle and/or withdrawal of the “on or about September 24, 2004” date. As a result, the defendant argues, the state could not continue with the prosecution of the defendant or revive the “on or about September 24, 2004” date in any subsequently amended informations without violating the statute of limitations because the reference to the “on or about September 24, 2004” date had been deleted in the April 17, 2006 information.

Our analysis and resolution of the defendant’s claims are guided by the following statutory and case law authority. We first review the rules of practice and relevant case law that enunciate the broad authority of a prosecutor to make substantive amendments to an information before the start of trial. Pursuant to Practice Book § 36-17, prior to the commencement of the trial, “the prosecuting authority may amend the information, or add additional counts, or file a substitute information. ...”

It also is evident from our Supreme Court’s holding in State v. Ramos, 176 Conn. 275, 407 A.2d 952 (1978), that a prosecutor has broad authority to file an amended or substitute information before trial. In that case, an information initially charged the defendant with having committed the charged offenses “on or about April 15, 1975.” Id., 275-76. Before the defendant’s trial commenced, the state filed a substitute information, in which the state alleged that the offenses occurred on “May 22, 1975.” Id., 276. After noting that “[i]t is a well-established rule in this state that it is not essential in a criminal prosecution that the crime be proved to have been committed on the precise date alleged, it being competent ordinarily for the prosecution to prove the commission of the crime charged at any time prior to the date of the complaint and within the period fixed by the Statute of Limitations”; (internal quotations marks omitted.) id., 276-77; our Supreme Court recognized that the state may amend an information to correct the date on which the crime allegedly occurred when time is not a material element of the charged offense. See also State v. Bergin, 214 Conn. 657, 674, 574 A.2d 164 (1990) (“[w]here the [information] alleges that an offense allegedly occurred ‘on or about’ a certain date, the defendant is deemed to be on notice that the charge is not limited to a specific date. . . . The courts agree that when the [information] uses the ‘on or about’ designation, proof of a date reasonably near to the specified date is sufficient.” [Internal quotation marks omitted.]).

We are cognizant, however, that the broad authority of a prosecutor to amend an information prior to trial is tempered by the applicable statute of limitations. Connecticut statutory provisions that limit when criminal prosecutions may be brought in the state are found in Chapter 966 of our General Statutes. For misdemeanors, like stalking in the second degree in violation of § 53a-181d, General Statutes § 54-193 (b) provides that no person may be prosecuted except “within one year next after the offense has been committed.” A statute of limitations protects a defendant from stale prosecutions; State v. Kruelski, 41 Conn. App. 476, 479, 677 A.2d 951, cert. denied, 238 Conn. 903, 677 A.2d 1376 (1996); and “[ensures] that a defendant receives notice, within a prescribed time, of the acts with which he is charged, so that he and his lawyers can assemble the relevant evidence [to prepare a defense] before documents are lost [and] memorfies] fade . . . .” (Internal quotations marks omitted.) State v. Almeda, supra, 211 Conn. 446.

The issuance of an arrest warrant tolls the running of the statute of limitations, provided that it is executed without unreasonable delay and with due diligence. See, e.g., State v. Ali, 233 Conn. 403, 412, 416, 660 A.2d 337 (1995); State v. Crawford, 202 Conn. 443, 450-51, 521 A.2d 1034 (1987). When, however, the state files an amended or substitute information after the limitations period has passed, the first information will toll the statute if the amended or substitute information does not broaden or substantially amend the charges made in the first information. See United States v. Grady, 544 F.2d 598, 601-602 (2d Cir. 1976); State v. Almeda, supra, 211 Conn. 447-48 (prosecution on substitute information charging assault in first degree was not time barred where factual allegations were identical to those underlying original information charging attempt to commit murder); State v. Saraceno, 15 Conn. App. 222, 238-40, 545 A.2d 1116, cert. denied, 209 Conn. 823-24, 552 A.2d 431 (1988). Although notice is the “touchstone” of the analysis in determining whether an amended or substitute information substantially broadens or amends the original charges; United States v. Grengo, 808 F.2d 1, 8 (2d Cir. 1986); some factors to assist in this determination are “whether the additional pleadings allege violations of a different statute, contain different elements, rely on different evidence, or expose the defendant to a potentially greater sentence.” United States v. Salmonese, 352 F.3d 608, 622 (2d Cir. 2003).

At oral argument before this court, the defendant acknowledged that in order for us to determine that the denial of his motion to dismiss was improper, we must conclude that the April 17, 2006 information was the functional equivalent of a nolle prosequi. The defendant further conceded that his argument, in part, presents a novel theoiy, to which he was unable to locate any supporting case law. In light of these concessions and after applying the applicable legal principles, we conclude that the court properly denied the defendant’s motion to dismiss with respect to one of the two counts alleged in the May 24, 2006 information.

Here, the September 28,2004 arrest warrant and short form information served to prosecute the defendant within one year of the date of the commission of the charged offense, as required by § 54a-193 (b). Under State v. Crawford, supra, 202 Conn. 443, 447, the arrest warrant and the September 28, 2004 information tolled the statute of limitations. As we explain more fully in this opinion, the tolling of the statute of limitations, therefore, permitted the state to file subsequent amendments to the September 28, 2004 information, even when those amendments were filed after the expiration of the limitations period.

We are not convinced by the defendant’s argument that the entire May 24, 2006 information substantially broadened or amended the charges levied against him, causing the information to be time barred. We, however, do agree with the defendant insofar as he argues that one of the two counts of stalking in the second degree alleged in the May 24, 2006 information was barred by the statute of limitations.

The September 28, 2004 short form information and arrest warrant charged the defendant with one count of stalking, occurring “on or about September 24,2004.” After the applicable statute of limitations had passed, the state filed an amended information on May 24,2006, charging the defendant with two counts of stalking, one occurring “on or about September 20, 2004,” and the other “on or about September 24, 2004.” We review the May 24, 2006 information for broadness and conclude that since two counts of stalking would double the possible maximum penalty, the addition of a second count impermissibly would broaden the charges against the defendant by exposing him to a potentially greater sentence. See State v. Salmonese, supra, 352 F.3d 622; see also United States v. Ben Zvi, 168 F.3d 49, 54—55 (2d Cir.) (holding that addition, after limitations period had passed, of sixteen counts of money laundering to charge of scheme to defraud substantially amended original indictment), cert. denied, 528 U.S. 872, 120 S. Ct. 176, 145 L. Ed. 2d 148 (1999); State v. Rowley, 12 Conn. 101, 102-104, 107 (1837) (holding that after limitations period had passed, state could not amend information that charged conspiracy to cheat and defraud and add new count); State v. Eppens, 30 Wash. App. 119, 125, 633 P.2d 92 (1981) (holding that amendment to one count of grand larceny in first amended information to charge four counts of grand larceny in second amended information was invalid as to all but one count of larceny in second amended information). Accordingly, one of the two counts charged in the May 24, 2006 information was time barred and should have been dismissed by the court.

The state’s amendments of the original single count that alleged “on or about September 24, 2004,” consistently charged some conduct occurring reasonably about the “on or about September 24, 2004” date and, therefore, did not broaden impermissibly the charge in terms of date of occurrence. The September 28, 2004 arrest warrant and short form information still served to toll the running of the statute of limitations as to one count of stalking in the second degree, permitting the subsequent amendments after the limitations period had lapsed.

We next address, in more detail, the defendant’s arguments concerning the amendments made to the date the offense was alleged to have occurred. First, we do not agree with the defendant that the appearance of a date other than “on or about September 24,2004,” which occurred in the April 17, 2006 information, operated as a nolle prosequi such that the prosecution of the defendant was terminated. Rather, we conclude that the inclusion of a date different from the precise wording of “on or about September 24, 2004,” constituted a permissible amendment to the original information. Such an amendment specifically is permitted by Practice Rule § 36-17, and, therefore, the initiation of a new prosecution was not required. Moreover, under State v. Ramos, supra, 176 Conn. 275-77, a prosecutor may amend an information to correct a date, particularly, as here, where time is not a material element of the charged offense. Our case law also makes clear that the “on or about” designation appearing in the original information was sufficient to provide the defendant with notice that the offense was alleged to have occurred on or about that date, not specifically on the date alleged. See State v. Bergin, supra, 214 Conn. 674.

Second, we similarly are not persuaded by the defendant’s contention that the state was prohibited from reviving the date of “on or about September 24, 2004,” in the information filed on May 24, 2006, having deleted that date in intervening informations. Having tolled the statute of limitations with the filing of the September 28, 2004 arrest warrant and short form information, the state was allowed to file amended informations prior to the commencement of trial pursuant to Practice Book § 36-17, provided it did not broaden or substantially amend the charges. Exercising its broad authority to amend informations, the state was permitted to amend the information to include again the date of “on or about September 24, 2004,” in the information filed on May 24, 2006. The primary purpose of the statute of limitations, ensuring that the defendant receives notice, was achieved in the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides in relevant part: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s . . . motion to dismiss, the defendant after the imposition of sentence may file an appeal ■within the time prescribed by law provided a trial court has determined that a ruling on such . . . motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied . . . the motion to dismiss. . . .” See also Practice Book § 61-6 (a) (2) (i).

       General Statutes § 53a-181(a) provides in relevant part: “A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place. . . .”

       On September 28, 2004, the state submitted an application for a warrant for the defendant’s arrest “for the charges listed on the front pages” of the application; however, no charges were listed on any of the front pages.

       General Statutes § 53a-181d provides: “(a) A person is guilty of stalking in the second degree when, with intent to cause another person to fear for his physical safety, he wilfully and repeatedly follows or lies in wait for such other person and causes such other person to reasonably fear for his physical safety.
      “(b) Stalking in the second degree is a class A misdemeanor.”

       The September 28, 2004 short form information originally charged that the defendant had committed stalking in the second degree in violation of § 53a-181, the breach of the peace statute. The defendant acknowledges in his brief that the reference to § 53a-181 was a mistake and that the correct statutory reference is General Statutes § 53a-181d. In addition, the September 28, 2004 information originally listed the date of the offense as “on or about September 26, 2004,” rather than “on or about September 24, 2004.” A handwritten notation crossed out the reference to September 26, 2004, and added the date of September 24, 2004. At a hearing on May 24, 2006, the defendant accepted the representation of the state’s attorney that the state had altered the date, and, in his brief, the defendant acknowledges that the parties had agreed that the date was changed prior to the submission of the warrant application.

       The informations changed the date alleged from March 21,2004, to March 27, 2004.

       Although the amended motion to dismiss was addressed to the April 17, 2006 information, which had been superseded by subsequent amendments, at the hearing, the parties and the court treated the motion as addressed to the May 24, 2006 information.

       The chart below will assist the reader graphically in following the many informations filed in the present case.

       After trial has commenced, however, the authority of a prosecutor to amend an information is constrained by the provisions of Practice Book § 36-18. State v. Wilson F., 77 Conn. App. 405, 411, 823 A.2d 406, cert. denied, 265 Conn. 905, 831 A.2d 254 (2003). Section 36-18 provides that the state may amend an information after the commencement of trial as long as “no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. . . .”

       Practice Book § 36-17 provides: “If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in its discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.”

       General Statutes § 54-193 (b) provides: “No person may be prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony, a class A felony or a violation of section 53a-54d, except within one year next after the offense has been committed.”


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    PAULA MILARDO v. JESSICA KOWALESKI ET AL.
    (AC 27503)
    DiPentima, Gruendel and Hennessy, Js.

      Argued February 21
    officially released June 19, 2007

      Louis W. Flynn, Jr., with whom was W. Anthony Stevens, Jr., for the appellant (plaintiff).

      Louise C. LaMontagne, for the appellees (defendants).
   Opinion

GRUENDEL, J.

On January 18, 2003, an automobile accident occurred between the respective vehicles of the plaintiff, Paula Milardo, and defendant Jessica Kowaleski. Litigation followed, which resulted in a jury verdict in favor of the defendants, Kowaleski and Ford Motor Credit Company. On appeal, the plaintiff contends that the trial court abused its discretion in denying her motion to set aside the verdict. In addition, she raises multiple claims concerning the admission of the expert testimony of Anthony G. Alessi, a neurologist. We affirm the judgment of the trial court.

The following facts are undisputed. On January 18, 2003, the plaintiff was a passenger in a Chevrolet Tahoe sport-utility vehicle operated by her daughter, Angela Tigner. As that vehicle stopped for oncoming traffic on the exit thirteen ramp onto Route 9 in Middletown, it was struck from behind by a Lincoln LS sedan operated by Kowaleski. An ambulance subsequently transported the plaintiff to Middlesex Memorial Hospital (hospital). The medical record prepared by the hospital, introduced as an exhibit at trial, noted that the plaintiff complained of “neck and back pain.” It also indicated that the plaintiff represented that she had “no previous injury to her neck or back.” An X ray of the plaintiffs cervical spine and lumbar spine revealed no fracture. Accordingly, she was diagnosed with “acute neck and lumbar strain” and was discharged that day.

A civil action followed. By complaint dated December 8, 2003, the plaintiff alleged that Kowaleski negligently caused the January 18, 2003 accident, which in turn caused the plaintiff to suffer physical injury, pain and anguish. A trial was held over the course of four days, at the conclusion of which the jury found in favor of the defendants. The plaintiff thereafter filed a motion to set aside the verdict. By memorandum of decision dated February 15, 2006, the court denied that motion and rendered judgment accordingly. From that judgment, the plaintiff now appeals. Additional facts will be set forth as necessary.

I

The plaintiff contends that the court abused its discretion in denying her motion to set aside the verdict. A review of the evidence presented at trial convinces us that her claim is without merit.

“The proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict ... is the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. ... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Citation omitted; internal quotation marks omitted.) State v. Sunila, 98 Conn. App. 847, 850, 911 A.2d 773 (2006). “Our standard of review . . . requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony.” (Internal quotation marks omitted.) Mokonnen v. Pro Park, Inc., 96 Conn. App. 625, 631, 901 A.2d 725, cert. denied, 280 Conn. 924, 908 A.2d 1088 (2006).

Notably, the defendants at trial conceded negligence on the part of Kowaleski in the operation of her vehicle. At the same time, they steadfastly maintained that her negligence did not cause the plaintiffs injuries. The jury agreed, returning a verdict in favor of the defendants. On appeal, the plaintiff argues that there exists “no evidence to support the verdict.”

Following physical and X ray examination at the hospital, the plaintiff was diagnosed with an acute neck and shoulder sprain. At trial, the plaintiff detailed the pain she experienced after the accident. She testified that the pain was constant and described it as a “sharp” and “burning” pain that “feels like somebody is actually pulling on you.” She further stated that the pain “starts in the . . . end of the skull all the way down here to my shoulder and it goes down into my shoulder blade and it goes into my armpit through . . . my heart and it goes up in my neck-shoulder area and then it goes into my left three fingers.”

The plaintiff offered the following evidence of causation. First, she testified that the January 18, 2003 accident caused her neck and shoulder sprain. She introduced into evidence the hospital’s medical record of her January 18, 2003 visit, which contained the following “discharge impression: acute neck and lumbar strain, secondary to motor vehicle accident.” She also introduced into evidence the notes of her family physician, Adam Perrin, which likewise contained a statement indicating that the plaintiff was involved in a car accident and now complained of neck and back pain. The plaintiff produced expert testimony from neurologist Edward Tucker that she suffered an injury to her T1 nerve root on the left side that was proximately caused by the January 18,2003 accident. Tucker further opined that the plaintiff had a 37 percent permanent partial disability of her left upper extremity. The plaintiff also introduced into evidence the medical report of neurosurgeon Ahmed Khan. That report stated in relevant part: “[The plaintiff] is a 54 year old female referred to us by Dr. Tucker for left arm pain. January 18, 2003, she was a seat belted passenger when [the] vehicle she was riding in was rear-ended. She developed pain in the left side of her neck, into the left armpit, and ulnar aspect of left arm.” On the basis of that evidence, the plaintiff now argues that the jury was compelled to conclude that the January 18, 2003 accident caused her injuries. We disagree.

The defendants presented the following evidence to the jury. Although the plaintiff informed the hospital on January 18, 2003, that she had “no previous injury to her neck or back,” the plaintiff conceded during cross-examination that she suffered a neck injury at the Bonanza Steakhouse in Middletown several years earlier. In her response to the defendants’ request for answers to interrogatories, the plaintiff averred that she suffered a pinched nerve in her neck that required a cortisone shot and that she subsequently filed a claim against Bonanza Steakhouse. The plaintiff also acknowledged that she had been taking the pain medication codeine for the past twenty-eight years.

The defendants offered the expert testimony of Alessi, who performed an independent medical examination of the plaintiff on October 18, 2005. In his report, which was introduced as an exhibit at trial, Alessi opined that “[bjased on my clinical evaluation ... I believe that she is suffering from a left ulnar mononeu-ropathy, well localized to the left elbow. ... I did not see any evidence to suggest a T1 radiculopathy. I believe that the cyst present on the [magnetic resonance imaging] scans is unrelated to the motor vehicle accident and is stable. I also do not have any specific evidence that the ulnar neuropathy is directly related to this motor vehicle accident.” Alessi also disputed Tucker’s assertion that the plaintiff suffered a 37 percent permanent partial disability of her left upper extremity. He stated: “I have reviewed the guides to the evaluation of permanent impairment, page 492, Table 16-15. This is the same table used by Dr. Tucker. ... If there is any motor impairment, I believe that it is minor and I would not assign more than 5 [percent] in this regard bringing the total impairment to 8.5 [percent] of the left upper extremity. Again, I did not find any evidence to suggest that this injury is related to the motor vehicle accident. I am additionally concerned by the fact that [the plaintiff] has continued to use twelve tablets per day of Tylenol with codeine, which is a narcotic analgesic.”

Moreover, as the court stated in its memorandum of decision, “[t]he defendants’ expert witness ... a board certified neurologist, testified that when he was performing his examination of the plaintiff, her husband coached her on two occasions. The plaintiffs husband put his finger to his lips while the plaintiff was answering one of Dr. Alessi’s questions, and the plaintiff immediately stopped talking. The plaintiffs husband held up his hand on another occasion during the examination. Again, the plaintiff immediately stopped answering the doctor’s question.”

Furthermore, the jury was presented with photographs of the two vehicles involved in the accident. Those photographs indicate that the collision caused no visible damage to the plaintiffs vehicle; the front bumper cover on Kowaleski’s vehicle was damaged. Perhaps most significantly, the jury heard Kowaleski’s testimony that her vehicle was traveling “less than five miles per hour” when it struck Tigner’s sport-utility vehicle.

In light of the foregoing, the jury reasonably could have found that the plaintiff failed to demonstrate that the January 18, 2003 accident caused her injuries. Although the plaintiff presented expert testimony as to the cause of her injuries, the defendant offered expert testimony that rebutted the conclusions contained therein. It is well established that “[i]n finding facts in cases of conflicting expert testimony, a jury may choose to believe one expert over another.” State v. Gray, 221 Conn. 713, 720, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992). The jury, thus, was free to credit Alessi’s expert opinion that there was no evidence that the plaintiffs injuries were related to the January 18, 2003 accident. The jury likewise was free to disbelieve the plaintiffs testimony. See, e.g., State v. Smith, 99 Conn. App. 116, 136, 912 A.2d 1080 (whether testimony believable is question solely for juiy), cert. denied, 281 Conn. 917, 917 A.2d 1000 (2007). Considering the evidence in the light most favorable to the defendants, we conclude that the court did not abuse its discretion in denying the motion to set aside the verdict.

II

The plaintiff raises multiple claims concerning the admission of Alessi’s expert testimony. We review each under the abuse of discretion standard. “[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed.” (Internal quotation marks omitted.) Coughlin v. Anderson, 270 Conn. 487, 514-15, 853 A.2d 460 (2004). “When reviewing claims under an abuse of discretion standard, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness . . . .” (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 274, 819 A.2d 773 (2003). An abuse of discretion leading to reversal of the judgment is rare. Segale v. O’Connor, 91 Conn. App. 674, 677, 881 A.2d 1048 (2005).

A

The plaintiff claims that the court abused its discretion in admitting Alessi’s testimony. The following facts are pertinent to that claim.

The plaintiff first disclosed her expert witnesses to the defendants on April 25, 2005. On May 12, 2005, the plaintiff filed a supplemental disclosure of Tucker as an expert witness that indicated both that the plaintiff had a 37 percent permanent partial disability of her left upper extremity and that the disability “can be ascribed to the accident which is the subject of this litigation.” In response, the defendants filed a motion for a continuance in which they stated: “(1) This case is scheduled to start jury selection on June 1, 2005. (2) Until May 10, 2005, the [pjlaintiff had no permanency rating whatsoever. (3) Until May 10, 2005, the extent of the [pjlain-tiffs medical bills were thought to be approximately $3,000.00. Plaintiffs counsel now represents that they are in the neighborhood of $10,000.00. (4) Under the cover letter of May 10, 2005, was Dr. Tucker’s report dated May 5, 2005 assessing a 37 [percent] permanent partial disability rating to [pjlaintiff s left upper extremity.” The defendants thus requested a continuance of “at least [ninety] days to evaluate the new and unanticipated information, depose medical treaters and arrange for an [independent medical examination].” The court granted the motion and continued the matter until September 13, 2005. The plaintiff thereafter filed a motion for a continuance due to Tucker’s complicated schedule. As she represented to the court, “Tucker is currently dividing his time between a home in France where his children and wife reside and his practice in Essex.” The court again granted the motion and continued the matter to November 8,2005, when jury selection would commence.

Following the disclosure of Tucker’s report in May, the defendants sought to have the plaintiff examined by an independent medical examiner. During the following months, the defendants proposed six different physicians, all of whom the plaintiff found unacceptable. As counsel for the plaintiff explained at a November 10, 2005 hearing: “[W]e had some arguments .... I [rejected two physicians] on good faith based upon the fact that I don’t think [they would conduct] independent medical examinations. It’s a biased medical examination in favor of the defendants because that’s what they do.” Instead, the plaintiff provided the defendants with a list of ten physicians whom she considered acceptable. Included on that list was Alessi. The defendants contacted Alessi and scheduled a medical examination with the plaintiff, which was performed on October 18,2005. Alessi completed his report and provided it to the defendants on November 1, 2005. On November 3, 2005, the defendants sent a copy of that report to the plaintiff; they filed with the court a disclosure of Alessi as an expert witness on November 7, 2005. The plaintiff filed a motion in limine to preclude Alessi’s testimony on November 10, 2005, on which the court conducted a hearing that day.

At the hearing, counsel for the plaintiff explained that he received the disclosure on the eve of jury selection. He continued: “Now, the problem comes up, if [Alessi] said instead of 10 percent, 5 percent, we wouldn’t be here going through this. We’d just go the distance and let it be. He comes up with a completely different theory. She wasn’t tested right. She should have been seen by an orthopedist with respect to one of her disabilities . . . .” Counsel further complained that because Tucker was in France, the plaintiff would be prejudiced by the late disclosure of Alessi as an expert. On that point, counsel for the defendants pointed out that the plaintiff had disclosed four physicians and therefore was free to have someone other than Tucker review Alessi’s report.

The court denied the plaintiffs motion to preclude. It stated: “There is no prejudice because you have a doctor. A lot of times in this situation, the prejudice is [that] the party doesn’t have time to go out and get a doctor to respond. Well, you have a doctor. You’ve consented to have your client go to [Alessi]. [His disclosure] was late because you rejected a number of other doctors for what I consider to be invalid reasons. Your client has no prior experience with these people, no bad relations. You just thought they were defendant’s doctors. ... If you need time to confer with your doctor before he testified and show him the report, of course I’ll give you that time. But because the defendants tried to cooperate with you and finally did go to the doctor you suggested, which is now one that you want to preclude, I just can’t grant this motion and penalize the defendants for cooperation, so the motion is denied . . . .”

On appeal, the plaintiff argues that the disclosure of Alessi as an expert witness was untimely and unduly prejudicial. We are not persuaded. To the contrary, we agree with the court that the late disclosure of Alessi was attributable primarily to the plaintiffs rejection of the first six independent medical examiners suggested by the defendants. Although Tucker resided in France, the plaintiff was free to consult one of the other three experts she previously had disclosed, any of whom could have reviewed Alessi’s report. Furthermore, despite the court’s overture, the plaintiff did not request a continuance following Alessi’s disclosure.

The plaintiff also alleges that the disclosure did not comply with Practice Book § 13-4 (4). That provision “plainly requires a plaintiff to disclose: (1) the name of the expert witness; (2) the subject matter on which the expert is expected to testify; (3) the substance of the facts and opinions to which the expert is expected to testify; and (4) a summary of the grounds for each opinion.” Wexler v. DeMaio, 280 Conn. 168, 180, 905 A.2d 1196 (2006).

The disclosure at issue named Alessi as the expert. It stated that “Alessi will testify as to the physical condition of the plaintiff, whether the plaintiff suffers from any permanent impairment, and the nature and extent of such impairment, the appropriateness and necessity of any treatment either already provided to or proposed for the plaintiff, and whether said injury is causally related to the incident complained thereof.” As to the substance of the facts and opinions to which Alessi was expected to testify, the disclosure provided that “[i]t is expected that Dr. Alessi will testify in accordance with his written report (copy attached).” **7It then listed the following summary of the grounds for his opinions: “Dr. Alessi will testify based on his training, experience and education, his review of [plaintiffs medical records, diagnostic test results and diagnostic imaging and [p]laintiff s medical history, and his examination of the [p]laintiff. Dr. Alessi may utilize models of portions of the human body, transparencies and acetate overlays, books, photographs and/or diagnostic imaging of the human body.”

This court considered a similar disclosure in Cata-lano v. Falco, 74 Conn. App. 86, 812 A.2d 63 (2002), cited with approval in Wexler v. DeMaio, supra, 280 Conn. 188. The plaintiffs disclosure in that case provided: “Subject Matter of Testimony: [Gerald] Becker, an orthopedic surgeon, is expected to testify concerning his examination, diagnosis and treatment of [the plaintiff]. Substance of the Facts and Opinions to which the Expert is Expected to Testify: Becker is expected to testify substantially in accordance with his treatment notes and evaluation and consultation reports, all of which have been provided to defendant’s counsel. Summary of the Grounds for Each Opinion: The grounds for Dr. Becker’s opinion are his examination and treatment of the plaintiff and his education and professional training, including but not limited to, his experience as an orthopedic surgeon.” Catalano v. Falco, supra, 90 n.2. On appeal, we concluded that the plaintiffs disclosure complied with the requirements of Practice Book § 13-4, as “[t]he plaintiffs disclosure of Becker as an expert witness clearly indicated that he was expected to testify in accordance with his treatment notes and evaluation and consultation reports, which had previously had been provided to the defendant.” Catalano v. Falco, supra, 89-90. We likewise conclude that the disclosure in the present case, to which the report referenced therein was appended, apprised the plaintiff as to the basic details of Alessi’s expected testimony. See Wexler v. DeMaio, supra, 188 (disclosure fails to comply with Practice Book § 13-4 [4] only when disclosure fails to apprise defendant of basic details of plaintiff s claim). Because the disclosure complied with Practice Book § 13-4, we cannot say that the court abused its discretion in admitting Alessi’s testimony.

B

The plaintiff also argues that the court abused its discretion in permitting Alessi to testify as to her alleged neck and shoulder pain. In ruling on the plaintiff’s motion to preclude Alessi’s testimony, the court indicated that Alessi would be permitted to testify only as to those opinions contained in his report. During a subsequent colloquy with the court, counsel for the plaintiff stated that “[Alessi] made a statement that he has nothing to say about the shoulder to neck, and I’m going to make a motion in limine before we take any testimony from him on that.” The court responded: “Well, if he said he doesn’t have an opinion about the shoulder and the neck, he can’t testily.” (Emphasis added.)

Following Alessi’s deposition, but prior to its presentation to the jury, the court heard argument from both parties on the deposition testimony. The plaintiff argued that the report contained no opinion as to the plaintiffs alleged neck and shoulder pain. Counsel for the defendants responded: “I’d like to go back to your ruling, which I understood to be that you weren’t opining because you had never seen the report. You weren’t opining as to exactly what he was going to be able to say. Your ruling was that he’s confined to the report, as I understood it.” The court then answered, “right.” After reviewing the report and the respective arguments of counsel, the court concluded: “I don’t think he’s gone beyond his report. I’ll allow it to stay in.” The plaintiff now challenges that determination.

Unfortunately, we cannot review the plaintiffs claim. The November 18, 2005 transcript provides as follows:

“The Court: All right. We’re going to have now, ladies and gentlemen, the video deposition of Dr. Alessi.

“(The taped deposition of Dr. Alessi was played.)

“The Court: All right. Ladies and gentlemen, we’ll have a brief recess, and then we’ll have final argument of counsel.”

That videotaped deposition was not introduced as an exhibit at trial. Furthermore, neither party introduced a transcript of Alessi’s deposition. Likewise, the plaintiff on appeal has not provided this court with a transcript of that deposition, rendering us unable to evaluate Alessi’s testimony.

In Connecticut, the appellant shoulders the burden of providing this court with an adequate record for review. See Practice Book § 61-10; Narumanchi v. DeS-tefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005). She has not done so in the present case. Accordingly, we cannot review her claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       As the court noted in its memorandum of decision, Tucker was not a board certified neurologist.

       The plaintiff disclosed Tucker, Perrin, Khan and Mary E. Powell, a physician, as potential expert witnesses.

       At the November 10, 2005 hearing on the plaintiffs motion to preclude Alessi’s testimony, the plaintiff informed the court that she received a facsimile from the defendants concerning Alessi’s medical examination of her on October 4, 2005.

       Alessi's report was three pages long. It stated in relevant part: “Based on my clinical evaluation of [the plaintiff] I believe she is suffering from a left ulnar mononeuropathy, well localized to the left elbow. This has produced 50 [percent] loss in pinprick sensation in her hand. I did not see any evidence to suggest a T1 radiculopathy. I believe that the cyst present on the [magnetic resonance imaging] scans is unrelated to the motor vehicle accident and is stable. I also do not have any specific evidence that the ulnar neuropathy is directly related to this motor vehicle accident. In regard to her left, neck and shoulder pain, I believe that these injuries are musculoligamentous in nature, and best evaluated by an orthopedist. There is also no evidence on my examination of complex regional pain syndrome.
      “I have reviewed the guides to the evaluation of permanent impairment, page 492, Table 16-15. This is the same table used by Dr. Tucker. Given a 50 [percent] sensory deficit and a maximum upper extremity percentage of 7 [percent] loss due to loss of sensation, I believe that she is entitled to 3.5 [percent] impairment from a sensory standpoint. I was unable to clearly document a motor deficit in an ulnar distribution of the left hand and needle electromyography was not performed, which can often help us in this regard. If there is any motor impairment, I believe that it is minor and I would not assign more than 5 [percent] in this regard bringing the total impairment to 8.5 [percent] of the left upper extremity. Again, I did not find any evidence to suggest that this injury is related to the motor vehicle accident.
      “I am additionally concerned by the fact that [the plaintiff] has continued to use twelve tablets per day of Tylenol with codeine, which is a narcotic analgesic.”


author: McLACHLAN, J.

text:
    AL-JANET, LLC, ET AL. v. B AND B HOME IMPROVEMENTS, LLC, ET AL.
    (AC 27370)
    Flynn, C. J., and Bishop and McLachlan, Js.

      Argued February 8
    officially released June 19, 2007

      Joseph P. Secóla, for the appellants (plaintiffs).

      Kasey Procko Burchman, with whom was Michael Feldman, for the appellees (defendant Berube Insurance Agency et al.).
   Opinion

McLACHLAN, J.

The plaintiffs, Al-Janet, LLC, Ghulam Murtaza and Zahid Hussain, appeal from the judgment rendered after the jury’s verdict in favor of the defendants, Berube Insurance Agency and Gary P. Berube. On appeal, the plaintiffs claim that the court improperly (1) declined to instruct the jury on the general duties of an insurance agent and the elements of promissory estoppel as proposed by the plaintiffs and (2) granted the defendants’ motion to preclude the testimony of an expert witness. We affirm the judgment of the trial court.

This matter arises out of a contractual dispute over liability insurance coverage on the plaintiffs’ gasoline station. On January 3, 2001, a patron of the gasoline station suffered personal injuries resulting from a slip and fall on the premises and, consequently, received a binding arbitration award of $152,514.50 against the plaintiffs. The plaintiffs, who had no insurance to cover these losses, brought the present action against the defendants. In the complaint, the plaintiffs alleged, inter alia, that on September 30, 2000, they had entered into a contract with the defendants to procure liability insurance on the premises and that the defendants had breached their contractual obligation by failing to procure the insurance, which resulted in substantial monetary damages to the plaintiffs. The plaintiffs further alleged that the defendants had assured them that they would be covered against any and all bodily injury and property damage claims and that the plaintiffs had relied on these assurances to their detriment.

The jury reasonably could have found the following facts that are relevant to the issues raised on appeal. In August, 2000, Murtaza purchased a gasoline station in Brookfield and hired Hussain to manage the station. When Murtaza bought the premises, the previous owner recommended that he contact the defendants to obtain liability insurance coverage. On September 30, 2000, the plaintiffs contacted Berube to inquire about obtaining the insurance, and the following day he faxed an insurance quote to the plaintiffs. The defendants initiated several further contacts in October, 2000, in order to complete the application and to collect a deposit for the insurance. Berube testified, however, that the plaintiffs indicated that they wanted to shop around for a better price, and he did not hear back from them at that time. Murtaza testified that he did not remember actually entering into a contract with the defendants to obtain the insurance, and Hussain testified that he did not personally enter into such a contract with the defendants in October, 2000. It is undisputed that the plaintiffs did not make any payment for the quoted insurance policy prior to the slip and fall accident that occurred on the premises in January, 2001, or receive any documents other than the quote that Berube faxed to them.

On April 18, 2001, more than three months after the accident, the plaintiffs contacted the defendants with regard to obtaining insurance coverage. Berube testified that at that time, Hussain requested that he backdate the coverage to January 1, 2001. The plaintiffs obtained an insurance policy from the defendants effective April 18, 2001.

On December 12, 2005, the jury returned a verdict in favor of the defendants. On January 16, 2006, the court issued a memorandum of decision denying the plaintiffs’ motion to set aside the verdict. This appeal followed.

I

The plaintiffs’ first claim involves two separate jury instructions, each of which the plaintiffs had proposed but which the court declined to adopt in its charge to the jury. Specifically, the plaintiffs claim that the court improperly declined to adopt their proposed instructions on the general duties of an insurance agent and on the elements of promissory estoppel.

Our standard of review concerning preserved claims of improper jury instruction is well settled. “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.” (Internal quotation marks omitted.) Smith v. Greenwich, 278 Conn. 428, 437, 899 A.2d 563 (2006). A court’s failure to charge precisely as proposed by a party is not improper when the point is fairly covered in the charge. Id. “Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues.” (Internal quotation marks omitted.) Id.

With respect to the plaintiffs’ request to charge the jury on the general duties of an insurance agent to a consumer, the plaintiffs claim that they properly pleaded and presented evidence at trial that the defendants were insurance professionals. According to the plaintiffs, this should have triggered the requested jury instruction on the general duties of an insurance agent. We disagree.

It is well established that “[j]ury instructions should be confined to matters in issue by virtue of the pleadings and evidence in the case. ... It is error to submit a specification ... to the jury in respect to which no evidence has been offered.” (Citation omitted.) Mack v. Perzanowski, 172 Conn. 310, 313, 374 A.2d 236 (1977).

Here, the plaintiffs’ proposed jury instruction would have created an unsupported legal presumption with respect to the relationship between the parties. Specifically, the instruction proposed by the plaintiffs would have required the jury, without legal guidance, to draw a conclusion as to whether an agency relationship existed between the defendants and the plaintiffs. Although the complaint alleged that the defendants were “insurance professional [s]” and that Berube was an “agent/broker” of Berube Insurance Agency, it was devoid of any allegation that an agency relationship existed between the defendants and the plaintiffs. Thus, the instruction, which begins with “[t]o the extent that [Gary] Berube was acting as Plaintiffs’ agent” provides no guidance to assist the jury in assessing whether an agency relationship arose on the basis of the facts before it. It would have been essential for the jury to make a preliminary determination as to whether such an agency relationship existed before determining whether a breach of duty arose out of that relationship, as the proposed instruction set forth.

Moreover, the plaintiffs have pointed to nothing in the record to demonstrate that they either requested an explicit instruction on the law of agency or that the evidence supported such an instruction. Thus, without legal guidance to assist the jury in determining whether an agency relationship even existed, we conclude that the proposed instruction on the duties that may have arisen as a result of such an agency relationship would have served only to confuse the jury on matters not at issue in the case, as the instruction would have required the jury to presume that Berube was acting as an agent of the plaintiffs, which was neither alleged in the complaint nor expressly presented to the jury at trial or in an instruction. Accordingly, we conclude that the court properly declined to include the proposed instruction.

The plaintiffs also claim that the court improperly declined to charge the jury using their proposed instruction with respect to a cause of action for promissory estoppel. The plaintiffs concede that they failed to allege a distinct cause of action for promissory estoppel in their complaint. Nevertheless, they argue that the elements of promissory estoppel were set forth within their breach of contract counts and that the cause of action was supported by the testimony of the plaintiffs.

“[A]n appellant should not be allowed to claim as error that which his own action has induced.” (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 267, 698 A.2d 838 (1997). Here, the operative counts of the plaintiffs’ complaint consisted of a blend of legal elements of breach of contract and promissory estoppel within the same counts, which were entitled “Breach of Contract.” Although a plaintiff may use a single count to set forth the basis of a plaintiff s claims for relief when they grow out of a single occurrence or transaction or closely related occurrences or transactions; see Hill v. Williams, 74 Conn. App. 654, 661, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003); it does not follow that a plaintiff can force a court to parse through a poorly drafted complaint to glean from it potential causes of action and then cry foul when the court declines to instruct the jury on vague assertions inadequately supported by the evidence. The court’s instruction to the jury accurately tracked the plaintiffs’ allegations as they were set forth in the complaint, and the plaintiffs, having pleaded and presented the evidence in this manner, cannot now claim error on this ground. See Drummond v. Hussey, 24 Conn. App. 247, 248, 588 A.2d 223 (1991) (“[t]he trial court need charge only on those points of law that arise pursuant to the claims of proof advanced by the parties in their pleadings”).

Moreover, the plaintiffs took part in a request to submit to the jury an interrogatory that mirrored the allegations set forth in the plaintiffs’ complaint, which blended the elements of breach of contract and promissory estoppel. The jury interrogatory, which was submitted to the jury without objection, required the jury to answer, inter alia, “[d]o you find that the [p]laintiffs proved by a preponderance of the evidence that the [defendants entered into a contract with the [plaintiffs to procure liability insurance and the [p]laintiffs detrimentally relied upon these promises?” (Emphasis added.) Accordingly, we conclude that by failing to plead distinctly a cause of action for promissory estop-pel and by acquiescing in the submission of a jury interrogatory, which mirrored the complaint and the court’s charge, the plaintiffs’ claim of error was induced by their own actions, and they cannot claim as error that which their own action has induced. See Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 266-67. We decline, therefore, to address this claim.

II

The plaintiffs next claim that the court improperly granted the defendants’ motion to preclude the testimony of an expert witness regarding the duties of an insurance agent-broker. “It is well established that [t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Concerning expert testimony specifically, the trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Citation omitted; emphasis added; internal quotation marks omitted.) Prentice v. Dalco Electric, Inc., 280 Conn. 336, 342, 907 A.2d 1204 (2006), cert. denied, 549 U.S. 1266, 127 S. Ct. 1494, 167 L. Ed. 2d 230 (2007).

Prior to trial, the plaintiffs disclosed to the defendants a proposed expert witness who would testify as to the general duties of an insurance agent. By motion in limine, the defendants sought to preclude the expert from testifying on the grounds that the proposed testimony would be, inter alia, irrelevant and confusing to the jury. After argument, the court granted the defendants’ motion.

On appeal, the plaintiffs argue that such an expert was needed to reveal the duties of an insurance agent-broker because selling insurance is a specialized field with specialized knowledge and experience. As with the plaintiffs’ jury instruction claim, however, this claim presumes the existence of an agency relationship, which was not pleaded by the plaintiffs. As we stated in part I, the plaintiffs have cited nothing in the record to demonstrate that they either requested or that the evidence supported an explicit instruction on the law of agency. Accordingly, we conclude that the court did not abuse its discretion in precluding the proposed expert testimony, as the plaintiffs have failed to demonstrate how the testimony was directly applicable to a matter in issue in the case.

The judgment is affirmed.

In this opinion the other judges concurred.

       Prior to trial, the complaint was withdrawn as against the defendant B & B Home Improvements, LLC. We hereinafter refer to Berube Insurance Agency and Gary Berube as the defendants.

       With respect to the preservation of this claim, the plaintiffs requested the proposed charges to the court and took exception to the court’s decision not to include the instructions in its jury charge. On appeal, the defendants do not contest that the claim was preserved adequately.

       The plaintiffs requested the following charge related to this duty: “To the extent that [Gary] Berube was acting as Plaintiffs’ agent he owed [the plaintiffs] a duty to exercise reasonable skill, care, and diligence in effecting the insurance, and any negligence or other breach of duty on his part which defeats the insurance which he undertakes to secure will render him liable to his principal for the resulting loss. Where he undertakes to procure a policy affording protection against a designated risk, the law imposes upon him an obligation to perform with reasonable care the duty he has assumed, and he may be held liable for loss properly attributable to his default. . . .
      “The principal may sue for breach of the contract. The broker’s general duty is to act reasonably and without delay to procure the insurance coverage he has promised to obtain and to notify his client promptly if he is unable to procure the requested insurance coverage. . . . The purpose of timely notification is to permit the client to have an opportunity to procure insurance elsewhere. The agent breaches his contract to procure the insurance if he fails to obtain the insurance and fails to notify the client. The agent’s breach then must be established to be a proximate cause of the uninsured loss.” (Citations omitted; internal quotation marks omitted.)

       “[T]he three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking.” (Internal quotation marks omitted.) McDermott v. Calvary Baptist Church, 263 Conn. 378, 384, 819 A.2d 795 (2003).

       We note that the defendants argue that the duty of an insurance agent does not arise until the parties have entered into a contract to procure insurance and that the cases cited by the plaintiffs in support of their proposed instruction all involved such a contractual relationship. With respect to the cases cited by the plaintiffs on the general duties of an insurance agent, we agree with the defendants that they are factually incongruous to the present matter, as they involved allegations of an agent’s breach of duty arising from an undisputed contractual relationship or an undisputed ongoing relationship. See Ursini v. Goldman, 118 Conn. 554, 557, 173 A. 789 (1934) (action arose after insurance agent negligently failed to make required disclosures to insurance company in procuring insurance and claim denied as result); Rametta v. Stella, 214 Conn. 484, 485-88, 572 A.2d 978 (1990) (property owner had long-standing relationship with insurance agency and sued agency after she directed them to obtain certain insurance, which they failed to do); Preston v. Chartkoff, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV-00-0071112-S (January 30, 2004) (Lager, J.) (although undisputed agency relationship existed imposing duty of care on defendant broker to procure commercial liability insurance for contractor, court determined that plaintiff, owner of residence where contractor was performing work, was unable to establish that agency relationship extended to plaintiff, as agent’s duty of care ran only to applicant for insurance). Because we conclude that the potential confusion caused by the plaintiffs’ proposed instruction renders their claim on appeal fatal, however, we need not decide in this appeal at what point an agency relationship may arise warranting an instruction on an agent’s duty, or whether an insurance agent’s duties are different in the absence of a clear contractual or ongoing relationship.

       We note that in purportedly asserting a cause of action for promissory estoppel within the breach of contract counts, the plaintiffs failed to allege specifically the essential element of inducement. See Torringford Farms Assn., Inc. v. Torrington, 75 Conn. App. 570, 576 n.8, 816 A.2d 736 (“the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief’ [internal quotation marks omitted]), cert. denied, 263 Conn. 924, 823 A.2d 1217 (2003).

       Additionally, we note that the plaintiffs’ bald assertion in their brief that the charge materially impacted the jury’s verdict fails to explain adequately the harm caused by this alleged error. See Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 243, 828 A.2d 64 (2003) (“before a party is entitled to a new trial ... he or she has the burden of demonstrating that the error was harmful. ... An instructional impropriety is harmful if it is likely that it affected the verdict.” [Internal quotation marks omitted.]).