author: HEALEY, J.

text:
    ELIZABETH CRISCUOLO v. MAURO MOTORS, INC.
    (AC 18924)
    Landau, Spear- and Healey, Js.
    Argued February 29
    officially released July 4, 2000

      Anita Flannigan Steenson, with whom, on the brief, was R. E. Phillips, for the appellant (defendant).

      Frank S. Marcucci, with whom, on the brief, was Paul J. Dorsi, for the appellee (plaintiff).
   Opinion

HEALEY, J.

The defendant, Mauro Motors, Inc., appeals from the judgment rendered in favor of the plaintiff, Elizabeth Criscuolo, after a trial to the court in this action pertaining to her purchase from the defendant of an allegedly defective used 1992 BMW (vehicle). The plaintiff filed a six count complaint seeking, inter alia, damages, attorney’s fees and interest. The court found the defendant liable only on the first count* * and awarded the plaintiff damages of $10,883.14. On appeal, the defendant claims that the court improperly (1) rendered judgment pursuant to a statutory cause of action that the plaintiff did not plead in her complaint or pursue at trial, but only was “imported” into the case by the court in its memorandum of decision, (2) decided that the defendant breached the implied warranty of merchantability pursuant to General Statutes § 42-2-314 in that the vehicle became unfit for its ordinary purpose due to a latent defect that became apparent only after being driven approximately 6500 miles in a one year period, (3) awarded only nominal damages after finding that the defendant was entitled to an offset for the plaintiffs use of the vehicle because calculation of the offset was too speculative and (4) awarded the plaintiff an amount greater than she had paid as a return of her down payment. We affirm in part and reverse in part the judgment of the trial court.

In its memorandum of decision, the court set forth the following facts. On or about July 13, 1994, the plaintiff entered into a written, retail purchase and sale agreement with the defendant, an automobile dealer, whereby she agreed to buy and the defendant agreed to sell, a used 1992 BMW automobile. Although the agreed cash price was $23,000, the total cash price on delivery, after adjustments, was $24,690.94. The plaintiff allegedly made a down payment of $4690.94 and financed the balance. She took delivery of the vehicle on or about July 16, 1994, when its odometer read 10,120 miles.

From July, 1994, until November, 1994, the plaintiff used the vehicle on weekends. From November, 1994, to February, 1995, the plaintiff kept the vehicle garaged and no one drove it. By March, 1995, the odometer read 14,197 miles. In April, 1995, the plaintiffs husband began to use the vehicle regularly to drive back and forth to work. In June, 1995, the husband noticed what appeared to be severe wear on the tires. As of June 7, 1995, the odometer read 16,613 miles, which was 6500 miles more than when the plaintiff purchased the vehicle. The plaintiffs husband continued to drive the vehicle until September, 1995, when he and the plaintiff ceased using it. By September, 1995, the odometer read approximately 21,000 miles. Thus, from the time of purchase in July, 1994, until September, 1995, the plaintiffs use of the vehicle totaled approximately 11,000 miles.

In June, 1995, the plaintiff, having been apprised of the tire wear problem, undertook certain measures to learn why the problem arose and how it could be corrected. On or about June 7,1995, the plaintiffs husband took the vehicle to Guilford Tire Service (Guilford) for wheel alignment. After inspection, Guilford reported that it could not align the wheels properly. A handwritten notation on the Guilford report sheet stated, “three cracks in valence under bumper they tried to weld.” From June, 1995, to July, 1995, the plaintiff contacted the defendant and complained about the alignment problem. Two appointments were made for the plaintiff to bring the vehicle in for inspection, but the plaintiff ultimately decided not to let the defendant inspect the vehicle. On June 16, 1995, the plaintiff, using the name Deborah Dowling, engaged County Line BMW of Water-town to perform an inspection. The inspection confirmed that the vehicle had been in a collision and disclosed other problems. The plaintiff subsequently ascertained that her vehicle had been damaged in a collision in November, 1993, and that the damage was extensive, including considerable damage to the right front and rear of the vehicle.

In July, 1995, the plaintiff stopped making her monthly payments on the vehicle. She also retained an attorney, who contacted the defendant in June, 1995. On or about April 5, 1996, the plaintiff had Midway Service, Inc., of North Branford inspect the vehicle and prepare a repair estimate. Midway Service, Inc., estimated a total of $9350.78 to restore the vehicle to the condition it was in before it was involved in the accident. On May 14, 1996, the plaintiff filed her complaint.

In finding liability for the plaintiff on the first count, the court specifically found the following facts. “At the time of sale the subject BMW was defective in that its frame had been damaged in a prior collision so as to cause the right rear tire and wheel to be misaligned; that such a misalignment could not be corrected other than by straightening said frame to a condition permitting proper alignment of said tire and wheel. . . . The said defect affected the use of said vehicle in that it caused inordinate wear and tear on said tire. . . . The said defect affected the safety of said vehicle in that it affected negatively the handling of said vehicle when operated in wet or slippery conditions. . . . Said defect was not readily apparent by visual inspection at the time of sale. . . . Such defect would not be readily apparent as a result of the ‘safety inspection’ conducted by the defendant at the time of sale. . . . The defendant, its officers, agents and employees were unaware of the existence of said defect at the time of sale and unaware that the subject BMW had suffered damage in a collision prior to sale. . . . The plaintiff was aware of her right to have conducted an independent inspection of said vehicle, pursuant to General Statutes § 42-225 and she declined to do so.” The court found, however, that the failure by the plaintiff to exercise such right of inspection did not constitute an exclusion of the implied warranty under General Statutes § 42a-2-316 (3) (b) because there was no assurance that a reasonable inspection under the circumstances at the time of sale would have uncovered the defect.

The court further found that “[b]ased on the testimony and evidence presented . . . the plaintiff has established, by a fair preponderance of the evidence, a breach of implied warranty of merchantability by the defendant in that over time the said defect rendered the subj ect motor vehicle unfit for the ordinary purposes for which such vehicle is used.” The court then rendered judgment for the plaintiff on the first count of her complaint for $10,883.14, less an offset for her use of the vehicle. The defendant thereafter appealed. Additional facts will be stated where necessary.

We begin by addressing the appropriate standard of review. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

I

The defendant’s first claim is that the court improperly rendered judgment on a statutory cause of action that the plaintiff did not plead in her complaint or pursue at trial, but that the court instead “imported” into the case in its memorandum of decision. We do not agree.

“Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them.” Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952); KMK Insulation, Inc. v. A. Prete & Son Construction Co., 49 Conn. App. 522, 525, 715 A.2d 799 (1998).

“The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations in his complaint. ... A plaintiff may not allege one cause of action and recover on another. Facts found but not averred cannot be made the basis for a recovery.” (Citations omitted; internal quotation marks omitted.) Moore v. Sergi, 38 Conn. App. 829, 841-42, 664 A.2d 795 (1995); Francis v. Hollauer, 1 Conn. App. 693, 694-95, 475 A.2d 326 (1984).

Pursuant to Practice Book § 10-3 (a), “When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.” The defendant claims that the judgment on the first count was inappropriate in that it was awarded pursuant to statutory authority and there is no allegation of any statutory basis in the first count. Although the defendant’s claim is correct, our courts have held that the requirement that the pleader specifically identify the statute on which he relies is directory rather than mandatory. Steele v. Stonington, 225 Conn. 217, 221 n.7, 622 A.2d 551 (1993); Goodrich v. Diodato, 48 Conn. App. 436, 443, 710 A.2d 818 (1998); Peerless Ins. Co. v. Tucciarone, 48 Conn. App. 160, 163 n.3, 708 A.2d 611 (1998); Rowe v. Godou, 12 Conn. App. 538, 542, 532 A.2d 978 (1987), rev’d on other grounds, 209 Conn. 273, 520 A.2d 1073 (1988).

“The warranty of merchantability is the broadest and most important warranty in the Uniform Commercial Code. A warranty of merchantability is implied in any sale of goods by a merchant seller; the statutory standards for merchantability include, under § 42a-2-314 (2) (c), that the goods be fit for the ordinary purposes for which such goods are used. . . . See White & Summers, Handbook of the Law under the Uniform Commercial Code, §§ 9-6, 9-7 (1972).” (Internal quotation marks omitted.) Schenck v. Pelkey, 176 Conn. 245, 253-54, 405 A.2d 665 (1978).

“The implied warranty of merchantability holds merchants liable to the extent their goods fail to conform to the ordinary purpose for which they are supposed to be used. U.C.C. § 2-314. A breach of this warranty occurs, if at all, at the time of the sale; Standard Structural Steel Co. v. Bethlehem Steel Corp., 597 F. Supp. 164,187 (D. Conn. 1984); Liberty Mut. Ins. Co. v. Sears, Roebuck & Co., 35 Conn. Supp. 687, 690, 406 A.2d 1254, 1257 (1979), or when they leave the manufacturer’s control. Fellows v. USV Pharmaceutical Corp., 502 F. Supp. 297, 299 (D. Md. 1980). Thus, the critical question with regard to this warranty is what was the ordinary purpose for which the goods were to be used and were the goods suited for that purpose when they left [the defendant’s] control. This is properly a question for the jury. See generally Lindy Homes, Inc. v. Evans Supply Co., 357 So. 2d 996 (Ala. Civ. App. 1978); Agri-Business Supply Co. v. Hodge, 447 So. 2d 769 (Ala. Civ. App. 1984); Price Bros. Co. v. Philadelphia Gear Corp., 649 F. 2d 416 (6th Cir.), cert. denied, 454 U.S. 1099, 102 S. Ct. 674, 70 L. Ed. 2d 641 (1981).” Moldex, Inc. v. Ogden Engineering Corp., 652 F. Sup. 584, 590 (D. Conn. 1987).

It is apparent from an examination of the first count of the plaintiffs complaint that she alleged a cause of action in breach of warranty. The plaintiff alleged that “[t]he Defendant warranted the motor vehicle to be in all respects in good and running condition and without any substantial mechanical defects and the Plaintiff purchased [this] motor vehicle in reliance upon said warranties.” The plaintiff also alleged that “[t]he motor vehicle was not in fact in good and running condition and was not without substantial mechanical defect . . . .” The language of the first count not only alleged that there was a breach of warranty, but it also included language that sounded in terms of merchantability under § 42a-2-314 (2) (c). Other than the inadvertence of not citing the specific statute in the first count, the plaintiffs allegations are amenable to alleging a cause of action on the basis of a breach of the implied warranty of merchantability. Because this was the only complaint in the case, if the defendant in preparing for trial had any question about whether the plaintiff sought to plead a cause of action on the basis of a statute, it had, among other options, the right to file a request to revise to elicit that information. See Practice Book § 10-35; Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988). The defendant cannot genuinely claim that it was surprised. The claim by the defendant that the plaintiff did not pursue the matter regarding breach of an implied warranty of merchantability lacks merit. On the basis of the whole record before us, including the court’s findings of fact and conclusions of law, we conclude that this matter was pursued at trial. The court did not, as the defendant claims, “import” this statutory cause of action into the case; it was already there. In accordance with what we have stated, we conclude that the plaintiff properly alleged this cause of action and, further, that it was an element of the case pursued at the time of trial.

II

The defendant’s second claim is that the court improperly decided that it breached an implied warranty of merchantability in that the vehicle became unfit for its ordinary purpose due to a latent defect that became apparent only after being driven approximately 6500 miles between July, 1994, and June, 1995. We do not agree.

In its brief, the defendant attacked the court’s memorandum of decision, stating: “In its memorandum of decision the trial court cited Beech Aircraft Corp. v. Flexible Tubing Corp., 270 F. Sup. 548 (D. Conn. 1967), for the proposition that ‘[i]f the particular purpose for which goods are to be used coincides with their general functional use, an implied warranty of fitness for a particular purpose merges with an implied warranty of merchantability,’ [Id., 562], citing Crotty v. Shartenberg’s-New Haven, Inc., 147 Conn. 460, 464, 162 A.2d 513 (1960). Recovery may be on either theory: The particular purpose for which the goods are required, made known to the seller, may also be the general purpose for which the product was prepared and is commonly used. If so, there is an implied warranty that the goods are of merchantable quality. ‘A dealer who sells articles which ordinarily are used in only one way impliedly warrants fitness for use in that particular way. The warranty is one of merchantability.’ Id. Of significance in [Beech Aircraft Corp. v. Flexible Tubing Corp., supra, 548], however, the product in question, rubber hoses, had more than one commercial purpose. In the instant case, the subject BMW had only one purpose, its ordinary purpose—transportation of the owner. Therefore, the trial court misapplied the holding in [Beech Aircraft Corp.] to the facts of the instant case by failing to distinguish the significant factual differences.”

The court did not apply, let alone misapply, the holding of Beech Aircraft Corp., as the defendant claims. Beech Aircraft Corp. was a complex case in which the plaintiff buyer sought recission of a sale of special rubber hoses on the ground that the seller had breached its warranty. Id., 556. As both parties in that case were aware, the hoses that the seller manufactured were purchased for the purpose of transporting “extremely toxic and corrosive” substances; id., 552; that were to be used in propellants for a liquid filled rocket. Examining Beech Aircraft Corp. in its entirety and considering that portion of it paraphrased in the trial court’s memorandum of decision, Beech Aircraft Corp. followed Connecticut law and made no new law with its language, as it could not. Interestingly, in holding for the plaintiff, the court in Beech Aircraft Corp. based its decision on the ground that the defendant had breached its express warranty made to the plaintiff and not on the ground that it had breached any implied warranty. The court in the present case, therefore, did not misapply or even apply the holding in Beech Aircraft Corp. Rather, it iterated what for many years has been Connecticut case law.

The defendant is correct in stating in its brief that there are “significant factual differences” between Beech Aircraft Corp. and this case. Hence, in paraphrasing language from Beech Aircraft Corp., the court was not applying the holding of that decision, but merely was referring to Connecticut law that set out the theories of implied warranty as well as express warranty. There was, therefore, no need to go into the factual differences between Beech Aircraft Corp. and the present case.

In its brief, the defendant also argued that the court acted improperly in not following “the holding and reasoning of our Supreme Court in Chamberlain v. Bob Matick Chevrolet, Inc., [4 Conn. Cir. Ct. 685, 239 A.2d 42 (1967)], which is an analogous case, squarely on point.”

In making this claim, the defendant argues that the court found the same factual scenario as the court described in Chamberlain and other similar cases, but did not follow the principle of law set forth in Chamberlain when it decided that the defendant in the present case breached the implied warranty of merchantability. This case, however, is quite distinguishable from Chamberlain.

In Chamberlain, the plaintiff bought a used 1958 Chevrolet from the defendant. Id., 687. The defendant’s salesman, at the time of the sale, told the plaintiff that the car’s master cylinder needed to be fixed. Id. Knowing this, the plaintiff still purchased the car. Id., 688. Shortly thereafter, the car developed an oil leak, and the plaintiffs son brought it to an oil dealer. Id. The oil dealer detected some worn and defective parts that required replacement for the safe operation of the car. Id., 689. This information was not communicated to the plaintiff, to her son or to the defendant until late in September, 1965. Id. On September 29, 1965, the plaintiffs husband wrote a letter to the defendant, claiming that the plaintiff was entitled to rescission because of the alleged breach of warranty as evidenced by the claimed defects. Id. The plaintiffs husband offered to return the car upon the return of the money paid. Id. The Appellate Division of the Circuit Court held that the evidence sustained the trial court’s finding that the seller had not breached its “warranty of implied fitness”; id., 689; in the sale of the used vehicle. Id., 695-96.

The circumstances of Chamberlain are quite dissimilar from those of the present case. We agree with Chamberlain's statement, however, that “[a] used car is not a new car, and the express or implied warranties, if any, must be reflected in the newness or antiquity of the car sold.” Id., 695; see Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 353, 525 A.2d 57 (1987). In Chamberlain, the car was a seven year old Chevrolet; Chamberlain v. Bob Matick Chevrolet, Inc., supra, 4 Conn. Cir. Ct. 687; in this case, the vehicle was a two year old BMW. In Chamberlain, the purchase price was $325; id.; in this case, the purchase price was $24,690. Furthermore, in Chamberlain, the car was sold “as is,” with no guarantees; id; in this case, the car was not sold “as is.”

Moreover, we have not overlooked the court’s finding that the “defect would not be readily apparent as a result of the ‘safety inspection’ conducted by the defendant at the time of sale.” In Web Press Services Corp. v. New London Motors, Inc., supra, 203 Conn. 343-44, the plaintiff sought damages from the defendant automobile dealer in connection with the defendant’s sale to the pla.iut.iff of an allegedly defective used vehicle. The court interpreted Chamberlain to stand for the proposition that unless the case before the court concerns an “as is” clause in the contract, Chamberlain does not apply. Id., 353. Therefore, any other source that interprets Chamberlain to stand for more than just that proposition is unpersuasive authority. The court in Web Press Services Corp. never addressed the fact that in that case, the trial court concluded that there was “no evidence that [the defendant] knew or should have known that . . . there were defects in [the] vehicle . . . .” Id., 361. Because the court never addressed that fact when it discussed the implied warranty of merchantability, any suggestion that Chamberlain’s dictum is critical in our analysis lacks merit. Therefore, in the present case, the defendant’s reliance on Chamberlain is misplaced. See id., 353.

We therefore cannot conclude that Chamberlain is squarely on point or that it involves the same factual scenario as exists in the present case. The court in the present case recognized that the facts found and the applicable law permitted the conclusion that the defendant breached the implied warranty of merchantability in that the vehicle involved was unfit for the ordinary purposes for which it was used. We agree with that basis of liability. The court weighed all of the factors and properly concluded that the defendant had breached its implied warranty of merchantability.

The law the defendant uses to support its claim that the court improperly found a breach of the implied warranty of merchantability is not in fact applicable. The cases the defendant cites clearly are distinguishable from the present case. The defendant, therefore, has not shown that the court’s fact-finding was clearly erroneous or that its legal conclusions were improper.

Ill

The defendant’s next claim is that the court improperly awarded only nominal damages after it found that the defendant was entitled to an offset for the plaintiffs use of the vehicle, but determined that calculating the amount of the offset was too speculative. We do not agree.

“The policy of the law is always to prevent unnecessary litigation, and where . . . entire justice can be done to both of the parties before the court, by the ascertainment and set-off of their mutual claims against each other, without a violation of any of the settled rules or forms of law, such set-off ought always to be made. ... A set-off is made where the defendant has a debt against the plaintiff . . . and desires to avail himself of that debt, in the existing suit, either to reduce the plaintiffs recovery, or to defeat it altogether, and, as the case may be, to recover a judgment in his own favor for a balance.” (Citation omitted; internal quotation marks omitted.) Hope’s Architectural Products, Inc. v. Fox Steel Co., 44 Conn. App. 759, 762, 692 A.2d 829, cert. denied, 241 Conn. 915, 696 A.2d 985 (1997).

The court found that the plaintiff and her husband drove the vehicle approximately 11,000 miles between July, 1994, and September, 1995. It further found that the defendant established, by the necessary burden of proof, that it was entitled to an offset for that use. Therefore, after the court rendered judgment, it scheduled an evidentiary hearing for the limited purpose of establishing a monetary value for the use of the vehicle by the plaintiff and her husband. A hearing thereafter was held at which the defendant presented two expert witnesses, Tom Neville and Gary Listorti, who were examined and cross-examined at length.

Neville and Listorti had considerable experience in the matter of leasing motor vehicles. Both were confronted with the task of calculating a monetary value for the plaintiffs monthly use in 1994 and 1995 of a 1992 vehicle. Neville, the defendant’s service director, offered figures on the basis of new motor vehicles. He testified that he was not aware of whether there was a market for leasing defective vehicles and had no opinion regarding the fair use of this particular vehicle in 1994 and 1995. Listorti, the rental manager for a large Ford car and truck agency for about nineteen years, had never leased a BMW and did not know what this model BMW had cost in 1994. Furthermore, Listorti was unaware that the vehicle was defective. He testified that if he knew that a vehicle was defective, he would not lease it because there is no market for leasing a defective motor vehicle.

Credibility of expert testimony is for the trier of fact, and such testimony cannot be based on conjecture or surmise. See Connecticut Bank & Trust Co. v. Incendy, 207 Conn. 15, 33-34, 540 A.2d 32 (1988). We are aware that “[m]athematical exactitude in the proof of damages is often impossible, but [the party seeking damages] must nevertheless provide sufficient evidence for the trier to make a fair and reasonable estimate.” (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 59, 717 A.2d 77 (1998). “To authorize a recovery of more than nominal damages, facts must exist and be shown by the evidence which affords a reasonable basis for measuring the [defendant’s] loss.” (Internal quotation marks omitted.) Id., 58.

After listening to the experts, the court, in commenting on the difficulty of placing a correct monetary value on the vehicle’s use under these circumstances, stated that the comparisons by the experts were based on “a different type of agreement [than what the plaintiff actually entered into], that is, a lease agreement as contrasted to the retail sale and purchase [agreement actually entered into] by the plaintiff . . . .” The court stated that it was difficult for the experts to calculate, in 1998, figures for a period of 1994 and 1995 on a vehicle that was built in 1992. At the end of the hearing, the court stated that “based on the evidence presented, for the court to attempt to calculate a reasonable offset for the plaintiffs usage of the subject motor vehicle would require an exercise in guessing and speculation, which this court declines to do, and the court concludes that the defendant has failed to establish by a fair preponderance of the evidence more than a nominal value for the subject offset.” The court then awarded a nominal offset of $1 to the defendant and adjusted the plaintiffs actual damages accordingly. We conclude that under these circumstances, the court’s award of nominal damages was appropriate and was not clearly erroneous.

IV

The defendant’s final claim is that the court improperly awarded the plaintiff, as a return of her down payment, an amount greater than what she had paid. We agree with the defendant.

The defendant argues that in its posttrial motion for reargument and reconsideration, it noted that the court had determined that the defendant was to refund the plaintiffs down payment. In that regard, the defendant points out that the court awarded $4690.94, but argues that the plaintiffs evidence, exhibits A and B, indicates that the amount of the down payment was $2980.94. The court issued no clarification in response to the defendant’s motion.

In its memorandum of decision, the court found that the plaintiff should be awarded $4690.94 to account for the down payment she had made. While it is true, as the plaintiff argues, that exhibit A sets out the down payment as $4690.94, the defendant argues that this figure is incorrect and that the actual down payment was $2980.94. The defendant points to two other exhibits, exhibit B and exhibit nine. The latter is the defendant’s invoice, no. 1977, dated July 15, 1994, which recites a down payment of $2980.94. Exhibit B is a document, dated July 15,1994, and signed by the plaintiff, which recites the amount financed as $21,710.

Exhibit B also sets out the dollar amounts involved in arriving at the $21,710 figure. In section four, part B, of exhibit B, titled “Down Payment,” there is typed the figure 2980.94, which is repeated on the line titled “Total Down Payment.” In yet another box on exhibit B titled “Total Sale Price,” $2980.94 appears as the down payment. Furthermore, when $2980.94 is added to the amount financed, $21,710, the total is $24,690.94, which is the total cash price of the vehicle.

On exhibit A, the “Total Cash Price Delivered” is set out as $24,690.94, and the “Unpaid Balance of Cash Price” is set out as $20,000. Thus, on exhibit A, the retail installment contact signed by the plaintiff and the defendant, the figure $4690.94 appears. That figure appears once again on exhibit A on no special designated line and in no box, but on the face of the exhibit as “COD Amt $4,390.94.” On exhibit B, the figure $2980.94 appears three times. As far as the down payment is concerned, the only evidence before us on this matter, in addition to what we previously have set out, is a check from the plaintiffs credit union, dated July 16, 1994, to the defendant in the amount of $2250, plus the $300 referred to in exhibit A.

We do believe that it is fair to consider exhibits A and B together because the two are legally related, with the former being the transfer of the property and the latter being in the nature, metaphorically speaking, of the mortgage that completes the delivery of the consideration in full for the transaction.

In proceeding as we do, we are not retrying any facts. We are determining whether the challenged facts were appropriately determined. We may modify the amount of damages where it exceeds the amount proven. See Sabo v. Strolis, 148 Conn. 504, 506, 172 A.2d 609 (1961). We can do so especially where it can be done without interfering with settled principles of law, and the record contains sufficient data to accomplish that task. See 5 C.J.S. 404-405, Appeal and Error § 906 (1993).

We observe that on exhibit A, the “Total Cash Price Delivered” on the vehicle was $24,690.94 and on exhibit B in the box labeled “Amount Financed” is $21,710. The difference between those figures is $2980.94. This figure, we determine, is the proper amount that should have been awarded to the plaintiff as a refund of the down payment. The court was, therefore, clearly erroneous when it determined that the amount of her down payment award should have been $4690.94. When calculating damages in a breach of contract case, the plaintiff is entitled to receive that amount of compensation that would leave her as well off as she would have been had the breach of contract not taken place. See Foley v. Huntington, 42 Conn. App. 712, 722, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). Awarding her $2980.94 for her down payment will do that on this branch of her claim.

The judgment is reversed only as to the calculation of the amount of the down payment due the plaintiff and the case is remanded with direction to reduce the refund of the down payment to $2980.94; the judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The first count of the complaint alleged that the vehicle was not in good and running condition in that it had substantial mechanical defects. The second count alleged that the defendant breached the parties’ sales agreement by representing that the vehicle had not previously been in an automobile accident when it had been in such an accident. The third count alleged a violation of General Statutes § 42-225 by virtue of false, misleading or deceptive statements about the history and condition of the vehicle. The fourth count alleged that the plaintiff relied to her detriment on the representations of the defendant. The fifth count alleged that the defendant fraudulently induced the plaintiff to purchase the vehicle. The sixth count alleged unfair or deceptive acts or practices in violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

       The defendant seemed to suggest at oral argument, but not in its brief, that the plaintiff in her complaint had not included a proper prayer for relief. We disagree. “In an ordinary civil case, the general rule is that a prayer for relief must articulate with specificity the form of relief sought.” Stern v. Medical Examining Board, 208 Conn. 492, 501, 545 A.2d 1080 (1988), and cases therein cited. The plaintiff has done so in asking for “[m]onetary damages within the jurisdiction of the court.”

       The court dismissed the remaining counts of the complaint, finding that the plaintiff had failed to meet her burden of proof as to the second, third, fifth and sixth counts, and that she had failed to state a cause of action in the fourth count..

       The court broke down its judgment for damages as follows: (1) down payment at the time of purchase, $4690.94; (2) eleven monthly payments at $538.70 per month for a total of $5925.70; (3) the cost of two new tires, as estimated by the defendant’s witness, $240; and (4) an inspection by a tire dealer costing $26.50 for total damages of $10,883.14, less an offset for the plaintiffs use of the vehicle.

       General Statutes § 42a-2-314 provides: “(1) Unless excluded or modified as provided by section 42a-2-316, a warranty that the goods shall be merchantable is implied in a contract for their sale if 1he seller is a merchant with respect, to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
      “(2) Goods to be merchantable must be at least such as (a) pass without objection in the trade under the contract description; and (b) in the case of fungible goods, are of fair average quality within the description; and (c) are fit for the ordinary purposes for which such goods are used; and (d) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (e) are adequately contained, packaged, and labeled as the agreement may require; and (f) conform to the promises or affirmations of fact made on the container or label if any.
      "(3) Unless excluded or modified as provided by section 42a-2-316 other implied warranties may arise from course of dealing or usage of trade.”

       The inspection report, by County Line BMW of Watertown stated in part: “[The vehicle has] been in a severe rear collision. Right rear drive axle, complete control arm have been replaced. Rear differential support frame is twisted on right side and should have been replaced. Right rear frame rail is dented. Rear bumper does not line up. . . . Three tires in fair shape, but right rear is bald. Because of bent differential support on right rear, the tire is scuffing the rubber off and will continue even if tire is replaced.”

       The insurer of the vehicle at that time obtained a repair estimate in the range of $8000. The vehicle then was repaired. The owner at that time transferred the vehicle’s title to Stamford European Motors, Inc., which, in turn, transferred the title to Chip’s Auto Sales, Inc., which then transferred the title to the defendant on or about April 6, 1994.

       Sometime around July, 1995, the plaintiff mailed a complaint to the department of motor vehicles but obtained no satisfaction.

       The court’s memorandum of decision references General Statutes § 42a-2-315 (3) (b), but because there is no subsection (3) (b) in that statute, it is reasonable for us to assume that the court intended to cite § 42a-2-316 (3) (lb).

       The court scheduled a hearing for September 29,1998, to admit evidence as to the monetary value of the offset.

       The first count of the complaint alleged:
      “1. At all times hereinafter mentioned, the Defendant, MAURO MOTORS, INC., is a valid Connecticut corporation with its principal place of business located at 1635 Dixwell Avenue, in the Town of Hamden, County of New Haven and State of Connecticut, and is engaged in the business of, inter alia, the sale of new and used motor vehicles, and also being duly licensed by the State of Connecticut, Department of Motor Vehicles, Dealers and Repairers Division.
      “2. On or about July 13,1994, the Plaintiff, ELIZABETH CRISCUOLO, and the Defendant, entered into a written Retail Purchase Order for Motor Vehicle, whereby the Plaintiff agreed to buy, and the Defendant agreed to sell, a used 1992 BMW 318; C motor vehicle, for the price of Twenty-Three Thousand Dollars ($23,000.00).
      “3. The Defendant warranted the motor vehicle to be in all respects in good and running condition and without any substantial mechanical defects, and the Plaintiff purchased said motor vehicle in reliance upon said warranties.
      “4. The motor vehicle was not in fact in good and running condition and was not without substantial mechanical defect in that the frame of said motor vehicle is bent and twisted, the right rear frame rail is dented, the rear bumper does not line up, the paint work and body work is substandard, and the tires are rubbing against the vehicle.
      “5. By reason of said defects, the Plaintiff has been damaged in that said motor vehicle is inoperable and will require a large sum of money for its repair and during the period of time it will take to repair, the Plaintiff will lose its use and enjoyment.”

       There is no question in this case that the defendant was a merchant seller and that the vehicle was sold as being fit for the ordinary purposes for which such goods are used. See General Statutes § 42a-2-314 (2) (c).

       The transcript of the entire trial is not in the record before us.

       The defendant claims that the plaintiff cannot recover for breach of warranty on the basis of Sampiere v. Zaretsky, 26 Conn. App. 490, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992). We do not agree. Sampiere presents a scenario much different from the one in this case. In Sampiere, a medical malpractice case, the plaintiff failed to allege in her complaint that she would be forced, as a result of the claimed malpractice, to incur future medical expenses. Id., 492. The trial court, however, instructed the jury that it could award such expenses. Id. On appeal, this court reversed the judgment for the plaintiff on the basis of that improper instruction and stated that the allegations in her complaint “explicitly limited her right of recovery to those expenses incurred prior to the trial.” Id., 496. We also stated that “[e]ven a broad reading of the complaint did not give the defendant notice of the additional issue.” Id.
      In the present case, the plaintiffs allegations did not explicitly limit her right to recover under the theory of implied warranty of merchantability. Furthermore, if we read the complaint broadly, it would, without question, be said to have given the defendant notice of the specific claim. Sampiere is thus clearly distinguishable.

       “We may examine the trial court’s memorandum of decision to understand better the basis of its decision and to determine the reasoning used by it in reaching its conclusion.” Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 404, 480 A.2d 552 (1984). “[W]e must read the language of [the] trial court in the context of its entire memorandum of decision, declining to find reversible error solely because of what may be an inappropriate choice of words.” (Internal quotation marks omitted.) Sunbury v. Sunbury, 13 Conn. App. 651, 658, 538 A.2d 1082 (1988), rev’d on other grounds, 210 Conn. 170, 553 A.2d 612 (1989). It is the duty of the trial judge to set forth the basis of his or her decision. Powers v. Powers, 183 Conn. 124, 125, 438 A.2d 845 (1981).

        Beech Aircraft Corp. v. Flexible Tubing Corp., supra, 270 F. Sup. 548, was complex factually and legally. The decision included forty-four headnotes. Although both Connecticut and Colorado law were involved, it was agreed that the pertinent statutory warranty provisions were the same.

       The holding of Beech Aircraft Corp., for the salce of brevity without the loss of substance, fairly appears in the syllabus of the case, which states: “Suit for breach of warranty, wherein plaintiff sought recission of sale of specialized hoses on ground of seller’s breach and defendant counterclaimed. The [United States District Court for the District of Connecticut], Blumenfeld, J., held that where attached to quotations submitted by seller’s agent was a drawing showing use of hoses to transport corrosive fuel and oxidizer, note on drawing stated that rubber compound and teflon used wouldbe compatible, and seller’s sales order acknowledgement, constituting a counteroffer to sell hoses, contained no representations but stated that seller guaranteed its merchandise to be substantially as represented, seller expressly warranted that hoses would be reasonably fit for use with corrosive substances referred to in drawing and buyer was not liable for purchase price when hoses failed to fulfill warranty, but that where buyer could have procured substitute hoses within a matter of hours or at most a few weeks when it appeared that hoses supplied by seller were not suitable for buyer’s purpose, buyer’s use of some of hoses after giving notice of rescission to seller was not reasonably necessary to mitigate probable future damage and constituted waiver of buyer’s right to rescind as to hoses actually used.” (Emphasis added.) Beech Aircraft Corp. v. Flexible Tubing Corp., supra, 548.

       In this case, the language in the memorandum of decision regarding implied warranties paraphrases that in Crotty v. Shartenberg’s-New Haven, Inc., supra, 147 Conn. 464.

       The defendant suggests that the court improperly relied on Beech Aircraft Corp. Simply put, had Crotty v. Shartenberg’s-New Haven, Inc., supra, 147 Conn. 460, itself been cited instead of Beech Aircraft Corp., there well could have been no comment by the defendant. Assuming arguendo that the court did improperly rely on Beech Aircraft Corp., the facts could not establish that the court improperly found for the plaintiff on the first count of her complaint because even where a court “does not state a proper basis for its results, its judgment may be sustained if there are proper grounds to support it.” Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 529, 546 A.2d 216 (1988).

        Chamberlain v. Bob Matick Chevrolet, Inc., 4 Conn. Cir. Ct. 685, 239 A.2d 42 (1967), was decided by the Appellate Division of the Circuit Court, not by our Supreme Court.

       No “other similar cases” are cited by the defendant in its brief.

       The purchaser of this car bought it from the defendant for her son who was a student at a college in Schenectady, New York. Chamberlain v. Bob Matick Chevrolet, Inc., supra, 4 Conn. Cir. Ct. 687. She purchased the car in 1965. Id. Her son picked up the car from the defendant late in August, 1965, and soon thereafter drove to Schenectady, where the vehicle was kept until it was sold one year later. Id., 688.

       The Chamberlain court also stated that the defendant’s salesman had explained to the plaintiff and her son that “no guarantee meant that once they drove the vehicle out of the lot, it became their responsibility.” (Internal quotation marks omitted.) Chamberlain v. Bob Matick Chevrolet, Inc., supra, 4 Conn. Cir. Ct. 687.

       Because Web Press Services Corp. is a Supreme Court case and Chamberlain is a Circuit Court case, Web Press Services Corp. is more authorita.tive support.

       The Chamberlain “court stressed [that] there was no evidence that the dealer had any knowledge of the alleged defect prior to the sale, or that the defect was ascertainable by inspection.” Annot., Liability on Implied Warranties in Sale of Used Motor Vehicle, 47 A.L.R.5th 677, 713 § 4[b] (1997).

       It was appropriate for the court to conclude that what the defendant characterizes in its brief as a “latent defect,” which the defendant was responsible for under its warranty, was not discovered by the plaintiff apparently until after the vehicle had been driven about 6500 miles between July, 1994, when it was purchased, and June, 1995. This case has some similarity to McCormack v. Lynn Imports, Inc., 114 Misc. 2d 905, 452 N.Y.S.2d 821 (1982). In McCormack, the plaintiff was involved in a minor collision eight months after she bought a used car from the defendant. Id., 907-908. The plaintiffs expert testified that he found that the car had a bent frame from an earlier accident and that there was evidence of weld marks. Id., 908. The small claims court found a breach of the implied warranty of merchantability under the Uniform Commercial Code. Id., 910-12.

       The right of setoff also is called offset. Citizens Bank of Maryland v. Strumpf 516 U.S. 16, 18, 116 S. Ct. 286, 133 L. Ed. 2d 258 (1995).

       The court scheduled the hearing because it concluded that the record was insufficient to enable it to determine the dollar amount to which the defendant was entitled.

       Each expert was hindered because neither had any lease figures from 1992 to work from.

       The court noted the many differences one must consider when making 1998 calculations for a period of 1994 and 1995. Some of the differences the court addressed were different manufacturer suggested retail prices, different total sales prices and different start payments. The court noted the fact that the vehicle in this case (1) was used, not new, and (2) was found to have been defective at the time of the sale and during its use by the plaintiff.

       Exhibit A was the retail installment contract, dated July 13, 1994, between the defendant as the seller and the plaintiff as the buyer.

       Exhibit B is the BMW Financial Services, Retail Installment Contract and Security Agreement, dated July 15, 1994, between the defendant as the seller and the plaintiff as the buyer. The plaintiff financed the balance by the agreement in exhibit B after being credited for the cash she put down.

       At the time of the hearing regarding the offset on September 29, 1998, the defendant drew the court’s attention to the claimed discrepancy in the amount of the down payment. At that time, the court stated: “I understand. I propose to take no action, but it’s on the record, your position on this matter. ”

       Exhibit nine contains handwriting that reads, “COD amount paid-in-full-7-15-95 T.D.” There are no handwritten signatures on it.

       Exhibit B also includes a specific dollar amount for such items as the monthly payments, the terms of the payments, the total of the payments, the annual percentage rate, the cash sale price and the sales tax.

       If there is any other evidence of the down payment, it is not before us.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    MORGAN BUILDINGS AND SPAS, INC. v. DEAN’S STOVES AND SPAS, INC., ET AL.
    (AC 18393)
    Lavery, Schaller and Mihalakos, Js.

    Argued October 29, 1999
    officially released July 4, 2000

      Mark W. Korotash, for the appellant (plaintiff).

      Richard E. Hayber, for the appellees (defendants).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

SCHALLER, J.

In this action for breach of contract in connection with the sale of spa equipment, the plaintiff, Morgan Buildings and Spas, Inc., appeals from the judgment of the trial court rendered in favor of the defendants, Dean’s Stoves and Spas, Inc. (Dean’s), and Dean W. Michanczyk, individually, as guarantor of the debts of Dean’s. The plaintiff claims that the court improperly (1) concluded on the basis of the evidence presented that delivery of certain of the goods at issue was not established and (2) admitted into evidence exhibits that were not provided to the plaintiff during discovery. We affirm the judgment of the trial court.

The record discloses the following facts. Michanczyk had done business with the plaintiff since 1991. Michan-czyk ordered spas and spa materials from the plaintiffs national sales manager. The sales manager would forward the order to the plaintiffs manufacturing plant, at which time the plaintiff would generate a bill of lading.

The plaintiff demanded prepayment of any material that it shipped. To facilitate prepayment and because it did not have the necessary capital, Dean’s maintained a credit line with TransAmerica Finance (Trans-America). When Dean’s placed an order, the plaintiff would contact TransAmerica, which would preapprove the purchase. The plaintiff then would notify Dean’s, ship the material through a trucking company, and provide a bill of lading describing the material by serial number and model number. The bill of lading was signed by the truck driver when the material was loaded and signed by a Dean’s representative when delivered. TransAmerica would pay the plaintiff when notified that the goods were received by Dean’s. All billing was through TransAmerica; the plaintiff did not directly bill Dean’s.

The plaintiff claimed and the defendants agreed that Dean’s ordered sixteen spas in March, 1995. The plaintiff conceded that it received payment for two of the spas, but claimed that no payment was received for the remaining fourteen spas.

In its case-in-chief, the plaintiff offered fifteen exhibits, including bills of lading signed by the trucking company but not the recipient, invoices, a carbon copy of a check, a paid bill for the deliveiy of spas and a computer printout of a repair history. The model numbers and serial numbers referenced between the documents were inconsistent, and the spa shipment dates were similarly inconsistent. The plaintiffs exhibits were offered into evidence through its sole witness, Oleta Kaes, the plaintiffs department manager of sales operations. Kaes had no personal knowledge of any of the deliveries in question and obtained all information from the plaintiffs company files.

The sole witness for the defendants was Michanczyk, who offered his business records in the form of his ledgers, inventory records and TransAmerica records. The plaintiff objected to the admission of inventory aging documents, a check register and an order report, asserting that these documents should have been disclosed during discovery in accordance with its motion for disclosure and production. During his testimony, Michanczyk admitted receipt of seven of the remaining fourteen spas at issue. He then supplied ledgers and TransAmerica’s floor sheets to support his claim that payment was made for those seven spas. After a trial to the court, the court detailed its findings in a memorandum of decision.

I

The plaintiff first argues that the court improperly concluded that it had failed to establish delivery of or nonpayment for seven of the fourteen spas at issue. We agree that the plaintiff did not meet its burden.

“As prerequisites to recovery ... a seller must establish acceptance by the buyer of goods sold and delivered, as well as the failure of the buyer to fulfill his payment obligation.” Swift & Co. v. Rexton, Inc., 187 Conn. 540, 542, 447 A.2d 9 (1982). A plaintiff seeking damages under either a claim for breach of contract, unjust enrichment, or quantum meruit must establish that the defendant received a benefit, which in this case equates to proof of delivery. “The obligation of the seller is to transfer and deliver . . . .” General Statutes § 42a-2-301. “Plaintiffs seeking recovery for unjust enrichment must prove . . . that the defendants were benefitted . . . .” (Internal quotation marks omitted.) Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994). “Quantum meruit ... is the form of action which has been utilized when the benefit received was the work, labor, or services of the party seeking restitution.” Burns v. Koellmer, 11 Conn. App. 375, 384, 527 A.2d 1210 (1987).

The court found the evidence introduced by the plaintiff in the form of invoices, bills of lading unsigned by the defendants and repair documents insufficient to establish that the defendants received the spas in question. The court’s finding that the plaintiff failed to establish that the defendants received seven of the fourteen spas was not clearly erroneous.

“It is the province of the trier of fact to weigh the evidence presented and determine the credibility and effect to be given the evidence. See Hally v. Hospital of St. Raphael, 162 Conn. 352, 359, 294 A.2d 305 (1972). On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.” Swift & Co. v. Rexton, Inc., supra, 187 Conn. 543. “It is not within the power of this court to find facts or draw conclusions from primary facts found by the trial court. As an appellate court, we review the trial court’s factual findings to ensure that they could have been found legally, logically and reasonably.” (Internal quotation marks omitted.) Lembo v. Schlesinger, 15 Conn. App. 150, 154, 543 A.2d 780 (1988). “Appellate review under the clearly erroneous standard is a two-pronged inquiry: [W]e first determine whether there is evidence to support the finding. If not, the finding is clearly erroneous. Even if there is evidence to support it, however, a finding is clearly erroneous if in view of the evidence and pleadings in the whole record [this court] is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Nelson v. Nelson, 13 Conn. App. 355, 359, 536 A.2d 985 (1988).

In light of these considerations, the court reasonably could have concluded that delivery of the spas in question was not established by a preponderance of the evidence. The evidence presented included bills of lading lacking the defendants’ signatures and testimony from the plaintiffs employee, Kaes, who had no specific knowledge of the spas in question. The plaintiff relied almost exclusively on documents exhibiting numerous inconsistencies. Intermediaries also were involved in the spa shipments and the billing aspects of the transactions, adding uncertainty to the determination of liability, as neither TransAmerica nor any shipping company was called as a witness or named as a party to this action. Moreover, the court’s finding that Dean’s adequately established that it had paid for the seven spas it admitted to receiving was supported by the submission of its ledgers and checks. Considering all of these factors, we are not persuaded that the evidence fails to support the court’s findings, nor do we have a definite and firm conviction that a mistake has been committed.

II

The plaintiff next argues that the court abused its discretion in admitting into evidence documents that had not been provided to the plaintiff during discovery and that the court’s action was prejudicial to the plaintiffs case. We disagree.

“It is well settled that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . [Its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . State v. Coteman, 241 Conn. 784, 789, 699 A.2d 91 (1997). Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990) .... State v. Beliveau, 237 Conn. 576, 592, 678 A.2d 924 (1996); State v. Colton, 227 Conn. 231, 260, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996). . . . State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998); see Casalo v. Claro, 147 Conn. 625, 630, 165 A.2d 153 (1960) (discussing fundamental rule of appellate procedure in the review of evidential rulings . . . that [a party] has the burden of establishing that there has been an erroneous ruling which was probably harmful to him); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 3.5.10, citing Casalo v. Claro, supra, 630.” (Internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 546-47, 733 A.2d 197 (1999).

The plaintiff claims that it was prejudiced by the admission into evidence of certain of the defendants’ exhibits, despite the plaintiffs objection, because the exhibits contained information that was confusing and misleading. The plaintiff argues that it could have established that all spas were delivered had the defendants produced during discovery all documents relating to delivery. The defendants asserted that they produced all documents that were properly called for by the plaintiffs requests for production.

As indicated in part I of this opinion, the burden was on the plaintiff to establish delivery of the items in question. With respect to the plaintiffs assertion that it could have established delivery had the defendants complied with the production requests, “we decline to engage in the speculative exercise that this argument invites.” State v. McGraw, 204 Conn. 441, 450, 528 A.2d 821 (1987). The plaintiff failed to establish that the admission of the documents in question resulted in substantial prejudice or injustice. We note that the court in its memorandum of decision stated, “At the end of the plaintiffs case, the defendants made a motion to dismiss for failure to make out a prima facie case. At this point, the court was tempted to grant the motion, but in . . . light of the special defense that the plaintiff had been paid and the implication that there might have been a delivery, the court; decided to deny the motion . . . .” We therefore conclude that the admission of the challenged exhibits was neither an abuse of discretion nor did it result in substantial prejudice to the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff initially alleged breach of contract and quantum meruit, but later alleged claims of quantum meruit and unjust enrichment. See Morgan Buildings & Spas, Inc. v. Dean’s Stoves & Spas, fee., judicial district of Hartford, Docket No. CV-97-0567187-S (July 17, 1998). As all theories require proof that the defendants received a benefit, which the plaintiff failed to establish, the actual characterization of the theory of recovery is not essential.

       The plaintiff also claims that the court improperly assessed the weight attributable to a bill of lading issued by a common carrier. The plaintiff cites to no authority from this jurisdiction that supports its assertion that a bill of lading, unsigned by the defendants, is entitled to greater weight than what was accorded to it by the court. “We will not review such claims, absent law and analysis.” New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 101, 709 A.2d 14 (1998).


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. LARRY FULLER
    (AC 17805)
    Landau, Hennossy and Dupont, Js.

      Argued April 26
    officially released July 4, 2000

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Larry Fuller, appeals from the judgment of conviction, rendered after a jury trial, of assault in the third degree in violation of General Statutes §§ 53a-61 (a) (1) and 53a-8, kidnapping in the second degree in violation of General Statutes §§ 53a-94 (a) and 53a-8, unlawful restraint in the first degree in violation of General Statutes §§ 53a-95 (a) and 53a-8, conspiracy to commit assault in the third degree in violation of General Statutes §§ 53a-48 (a) and 53a-61 (a) (1), conspiracy to commit kidnapping in the second degree in violation of §§ 53a-48 (a) and 53a-94 (a) and conspiracy to commit unlawful restraint in the first degree in violation of §§ 53a-48 (a) and 53a-95 (a). On appeal, the defendant claims that the court improperly (1) denied his motion for judgment of acquittal because the evidence was insufficient to sustain his convictions, (2) instructed the jury on the law concerning principal and accessory liability and (3) violated the constitutional prohibition against double jeopardy by convicting and sentencing him separately on three separate counts of conspiracy. We affirm the judgment of the trial court in part and reverse it in part.

The jury reasonably could have found the following facts. In March, 1994, the defendant was living at an apartment of a friend, George Gaillard, located at the Bridgewater condominium complex at 320 Quinnipiac Avenue in New Haven. Both the defendant and Gaillard worked for an illegal drug operation that sold drugs in the area. The men sold drugs from Gaillard’s apartment and from the nearby apartment of Kenneth Rawls and Mary Kim Michaud located at 210 Burwell Street. The men sold drugs at the Burwell Street apartment on a daily basis from 3 p.m. to midnight. The defendant and Gaillard were close friends and were often seen together apart from when they were engaged in drug transactions.

The victim sold drugs for Gaillard and was a narcotics addict. On the day before her death, the victim visited the Burwell Street apartment twice to purchase drugs from the defendant and Gaillard. Michaud was present during both visits and testified that there had been some tension between the victim and Gaillard because Gaillard had accused the victim of failing to turn over $500 from a drug transaction that she had completed for him.

On the next day, March 28, 1994, at approximately 4:30 a.m., the victim was seen leaving an apartment in the Bridgewater complex with the defendant, Gaillard and a third man known as Little Ninja. Soon thereafter, the victim arrived at the Burwell Street apartment alone and was visibly upset. Rawls told her she could stay at the apartment if she gave him drugs. The victim told Rawls that she did not have any drugs with her but that she would be right back. When the victim did not return after about one hour, Michaud went to the Bridgewater complex to look for her.

At the complex, Michaud witnessed the defendant and Gaillard walking down a sidewalk about ten feet in front of her. Gaillard was carrying a woman, whose head was slumped downward and whose feet were dragging on the sidewalk. The defendant was walking directly behind Gaillard. Michaud recognized the woman’s clothing, sneakers and hair as that of the victim, based on her observation of the victim whom she had seen one hour earlier. Gaillard carried the victim into an abandoned house at 75 Pardee Street and the defendant followed them inside. Approximately five minutes later, both men exited the building alone. The two men then noticed Michaud, who turned and ran to her apartment.

The defendant and Gaillard went to the Burwell Street apartment to sell drugs later that day. Gaillard told Michaud not to say anything about what she might have seen. The men watched the five o’clock news, frequently exchanging glances and paying particular attention to a story about the discoveiy of a woman’s body in a house on Pardee Street. After the men left the apartment that evening, they never returned. Michaud later told the police what she had seen.

The victim’s body was discovered lying in a pool of blood in the basement of the house at 75 Pardee Street, with stab wounds to the neck and abdomen and a slashed throat. A medical examination of the victim revealed that she had been stabbed with a knife at least four inches long and that she had wounds that indicated that she had tried to defend herself. A forensic examination of the abandoned house also revealed that the victim had been injured in at least two separate events, that she had been kneeling or crawling when she was stabbed, that she was alive when the wounds had been inflicted and that she was pushed or thrown down the staircase into the basement.

On July 27, 1995, the defendant and Gaillard were arrested in Reading, Pennsylvania, where the two were residing at the house of the defendant’s girlfriend. The defendant initially told the police that he and Gaillard were in New Haven on March 28, 1994, but later recanted his story, claiming that he was in New York at the time of the victim’s death. When shown photographs of the victim and Michaud, the defendant denied recognizing either woman.

The defendant was charged in an eight count information with murder, assault in the second degree, kidnapping in the second degree, unlawful restraint in the first degree and four separate charges of conspiracy to commit these crimes. Gaillard testified at the defendant’s trial. He stated that he and a man named Michael killed the victim, but on cross-examination, he stated that he alone killed the victim. He testified that he had paged the victim to bring him the drug money that she owed him. When the victim stated that she did not have the money, Gaillard “flipped out” and punched the victim, rendering her unconscious. He dragged her body to the abandoned house. He testified further that it was not his intention to kill the victim when he took her to this house, but that he just “flipped out” again, yelling at the victim. He stabbed her twice in the stomach, slit her throat and threw her down the stairs into the basement. Gaillard also testified that the defendant was not present during the course of these events.

At the close of the state’s evidence, the defendant moved for a judgment of acquittal, which motion was denied. At the close of all of the evidence, the defendant renewed his motion for judgment of acquittal on all eight counts. The court denied the motion except as to counts two and six, which alleged assault in the second degree and conspiracy to commit assault in the second degree. The court reduced those charges to assault in the third degree and conspiracy to commit assault in the third degree. The jury found the defendant not guilty of the charges of murder and conspiracy to commit murder, and found him guilty of the remaining charges. The court sentenced the defendant to a total effective sentence of twenty years imprisonment, execution suspended after fifteen years, with five years probation. This appeal followed.

I

The defendant first claims that the court improperly denied his motion for judgment of acquittal because the evidence was insufficient to sustain his convictions.

“The standards by which we review claims of insufficient evidence are well established. When reviewing a sufficiency of the evidence claim, our courts apply a two-prong test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we must determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Kenney, 53 Conn. App. 305, 311, 730 A.2d 119, cert. denied, 249 Conn. 930, 733 A.2d 851 (1999).

The defendant was charged as both a principal and as an accessory to all of the crimes. General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally hable for such conduct and may be prosecuted and punished as if he were the principal offender.”

“Since under our law both principals and accessories are treated as principals ... if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] committed the [crime] charged or did some act which forms ... a part thereof, or directly or indirectly counseled or procured any persons to commit the offenses or do any act forming a part thereof, then the convictions must stand. ... To prove guilt as a principal, the state must prove each element of the offense charged beyond a reasonable doubt. To be guilty as an accessory one must share the criminal intent and community of unlawful puipose with the perpetrator of the crime and one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it.” (Internal quotation marks omitted.) State v. Diaz, 237 Conn. 518, 543, 679 A.2d 902 (1996). “General Statutes § 53a-8 requires (1) that the accessory have the intent to aid the principal, and (2) that, in so doing, he have the intent to commit the offense with which he is charged.” (Internal quotation marks omitted.) State v. Aponte, 50 Conn. App. 114, 119-20, 718 A.2d 36 (1998), rev’d in part on other grounds, 249 Conn. 735, 737, 738 A. 2d 117 (1999). With these principles in mind, we turn to the defendant’s claims.

A

The defendant first claims that the evidence was insufficient to support his conviction of assault in the third degree. He claims that the state failed to present sufficient evidence to establish, beyond a reasonable doubt, that he intentionally inflicted physical injury on the victim or assisted Gaillard in committing the assault on the victim. We disagree.

General Statutes § 53a-61 (a) (1) provides: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injuiy to another person, he causes such injury to such person or to a third person . . . .” Physical injury is defined to mean “impairment of physical condition or pain . . . General Statutes § 53a-3 (3). For the juiy to convict the defendant on an accessorial theory, it had to find that he intended both to aid the principal and to commit the underlying offense of assault in the third degree. See State v. Ortiz, 47 Conn. App. 333, 346, 705 A.2d 554 (1997), cert. denied, 244 Conn. 902, 710 A.2d 175 (1998).

On the basis of our review of the record, we conclude that there was sufficient circumstantial evidence to support the jury’s verdict finding the defendant guilty of assault in the third degree. The record contains evidence that the defendant and Gaillard were close friends who belonged to the same drug gang, and that the two lived and sold drugs together. The evidence also established that the defendant was seen with Gail-lard prior to and immediately following the beating of the victim that rendered her unconscious. Gaillard testified that he beat the victim because she shortchanged him money from drug sales. The fact that the defendant sold drugs with and belonged to the same drug gang as Gaillard tends to show that he knew why Gaillard punched the victim and that he had an interest in the punishment of the victim. Also, the jury could have inferred from the defendant’s failure to summon medical assistance that he intended to cause physical injury to her. Thus, from the circumstantial evidence, the jury reasonably could have inferred not only that the defendant was present during the assault of the victim, but also that he intended to cause physical injury to the victim and to assist Gaillard in causing such physical injury.

B

The defendant next claims that the evidence was insufficient to sustain his convictions for kidnapping in the second degree and unlawful restraint in the first degree. We do not agree.

“A person is guilty of kidnapping in the second degree when he abducts another person.” General Statutes § 53a-94 (a). General Statutes § 53a-91 (2) defines “abduct” to mean “to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.” “Kidnapping requires that there be an abduction. Abduction means restraint with the intent to prevent liberation. Whether in a given case the restraint is accompanied by the requisite intent, so as to constitute kidnapping, or is merely incidental to another felony, is ordinarily a question for the jury.” State v. Lee, 177 Conn. 335, 343, 417 A.2d 354 (1979). “There is neither any time requirement for the restraint, nor any distance requirement for the asportation to constitute the crime of kidnapping.” (Internal quotation marks omitted.) State v. Torrence, 1 Conn. App. 697, 708, 476 A.2d 598 (1984), aff'd, 196 Conn. 430, 493 A.2d 865 (1985).

Under General Statutes § 53a-95 (a), “[a] person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.” “Persons are restrained when their movements are intentionally restricted so as substantially to interfere with their liberty, either (1) by moving them from one place to another, or (2) by confining them either to the place where the restriction commences or to the place where they have been moved without their consent. General Statutes § 53a-91 (1).” (Internal quotation marks omitted.) State v. Luster, 48 Conn. App. 872, 880, 713 A.2d 277, cert. denied, 246 Conn. 901, 717 A.2d 239 (1998). Thus, for the jury to convict the defendant on an accessorial theory, it had to find that he intended both to aid the principal and to commit the underlying offenses of kidnapping in the second degree and unlawful restraint in the first degree.

The defendant claims that his actions in merely following Gaillard to the abandoned house without helping him to carry the victim or to open doors is insufficient to establish that he was an accessory to the offense of unlawful restraint in the first degree. He also claims that his mere presence at the house at 75 Pardee Street where Gaillard killed the victim was not sufficient to prove that he was an accessory to kidnapping in the second degree. He cites State v. Laffin, 155 Conn. 531, 536, 235 A.2d 650 (1967), for the proposition that “[o]ne who is present when a crime is committed but neither assists in its commission nor shares in the criminal intent of its perpetrator cannot be convicted as an accessory.” The state counters that evidence of presence, combined with other circumstantial evidence, is sufficient to support such a conviction.

In the present case, the jury could have found that the victim was beaten by Gaillard and rendered unconscious. While she was unconscious, the victim was taken to an abandoned house where she was not likely to be found. There is evidence that while at the house, the victim attempted to defend herself and that she was restrained from leaving and protecting herself, resulting in her death. The question presented in this case, therefore, is whether the jury reasonably could have concluded beyond a reasonable doubt that the defendant assisted or abetted Gaillard in the commission of the kidnapping and unlawful restraint of the victim.

“Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the one who commits the crime must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and wilfully assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it. . . . Whether a person who is present at the commission of a crime aids or abets its commission depends on the circumstances surrounding his presence there and his conduct while there.” (Citations omitted.) Id.

In this case, the jury reasonably could have inferred from the evidence that the defendant was with Gaillard at the time he beat the victim and rendered her unconscious. The defendant was seen following Gaillard, who was carrying the victim’s unconscious body to an abandoned house where the victim would not likely be found. The defendant was seen entering the house with Gaillard and the victim. There is evidence from the defensive wounds on the victim that she struggled while in the house, and that she was restrained and kept there against her will. The defendant was also seen leaving the abandoned house with Gaillard without the victim.

“Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Internal quotation marks omitted.) State v. Ruiz, 171 Conn. 264, 277, 368 A.2d 222 (1976). “It [is] within the province of the jury to draw reasonable and logical inferences from the facts proven.” State v. Laffin, supra, 155 Conn. 536. We conclude that the evidence was sufficient to permit the jury to find, beyond a reasonable doubt, the restraint and the intent necessary to constitute kidnapping in the second degree and unlawful restraint in the first degree.

C

The defendant claims next that there was insufficient evidence to support his convictions for conspiracy to commit assault in the third degree, conspiracy to commit kidnapping in the second degree and conspiracy to commit unlawful restraint in the first degree. He claims that there was no evidence of an agreement, either express or implied, between him and Gaillard to commit those offenses, or that he participated in any way in furtherance of the conspiracies.

“To establish the crime of conspiracy under § 53a-48 ... it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. . . . Further, the prosecution must show both that the conspirators intended to agree and that they intended to commit the elements of the underlying offense.” (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 657-58, 737 A.2d 404 (1999). “Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Internal quotation marks omitted.) State v. Kenney, supra, 53 Conn. App. 312.

“The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of conspiracies, a conviction usually is based on circumstantial evidence. . . . Consequently, it is not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words we have an agreement. . . . Indeed, a conspiracy can be inferred from the conduct of the accused . . . and his coconspirator, as well as from the circumstances presented as evidence in the case.” (Citations omitted; internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 226-27, 733 A.2d 156 (1999).

“An overt act is an essential ingredient of the crime of conspiracy; it may be committed by either coconspirator.” (Internal quotation marks omitted.) State v. Gonda, 53 Conn. App. 842, 851, 732 A.2d 793, cert. denied, 250 Conn. 919, 738 A.2d 660 (1999). “Furthermore, [t]he size of a defendant’s role does not determine whether that person may be convicted of conspiracy charges. Rather, what is important is whether the defendant willfully participated in the activities of the conspiracy with knowledge of its illegal ends. . . . Participation in a single act in furtherance of the conspiracy is enough to sustain a finding of knowing participation.” (Internal quotation marks omitted.) State v. Forde, 52 Conn. App. 159, 168, 726 A.2d 132, cert. denied, 248 Conn. 918, 734 A.2d 567, 568 (1999).

The jury reasonably could have inferred from the evidence that the defendant knew that Gaillard was upset with the victim about her failure to turn over drug money, and that he was present with Gaillard when he paged the victim to come to the apartment and knew what Gaillard would do to the victim if she did not turn over the money. The evidence was capable of supporting a conclusion that the defendant and Gaillard had engaged in a mutual plan to assault the victim, and that Gaillard committed an overt act in furtherance of that conspiracy when he punched the victim.

The jury also reasonably could have inferred from the evidence that once the victim was rendered unconscious, the defendant and Gaillard conspired to dispose of her body in an abandoned building where it would not likely be found, and that Gaillard’s carrying of the victim to that building constituted an overt act in furtherance of the conspiracy to commit kidnapping. The jury, viewing the evidence in its entirety, could have concluded beyond a reasonable doubt that the defendant had the requisite intent to commit the offenses of conspiracy to commit kidnapping in the second degree and to commit assault in the third degree. Because of our conclusion in part III of this opinion, it is not necessary to discuss whether the evidence was sufficient to support a finding of a third agreement between the defendant and Gaillard to restrain the victim unlawfully.

II

The defendant next claims that the court improperly instructed the jury on the law concerning principal and accessory liability. Specifically, the defendant claims that the court improperly failed to instruct the jury to specify whether it was finding the defendant guilty as either a principal or an accessory. He claims that because there was no evidence indicating that he acted as a principal to any of the offenses he was charged with, it was improper to instruct the jury that it could find him guilty as a principal, thereby inviting the jurors to engage in speculation that he might have acted as a principal. We do not agree.

“The trial court in a criminal proceeding is under no duty to charge in the identical language requested if its charge is accurate, adequate, and, in substance, properly includes material portions of the requested charge. . . . The test is whether the charge as a whole presents the case to the jury so that no injustice will result . . . .” (Citations omitted.) State v. Bagley, 35 Conn. App. 138, 146, 644 A.2d 386, cert. denied, 231 Conn. 913, 648 A.2d 157 (1994).

“In Connecticut, there is no practical significance to being labeled as a principal or as an accessory. . . . The accessory statute merely provides alternate means by which a substantive crime may be committed.” (Citation omitted; internal quotation marks omitted.) State v. Faulkner, 48 Conn. App. 275, 278, 709 A.2d 36 (1998). “Under the modem approach, a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. . . . [T]here is no such crime as being an accessory . . . .” (Citation omitted; internal quotation marks omitted.) State v. Aponte, supra, 50 Conn. App. 119.

Because we have concluded that there is sufficient evidence to support the defendant’s convictions as an accessory and because there is no difference between being convicted as a principal or as an accessory, the defendant’s claim must fail.

Ill

The defendant’s final claim is that his constitutional right not to be placed in double jeopardy was violated by his convictions and sentencing for three separate conspiracies. He claims that he and Gaillard at most entered into only one agreement to commit all three crimes. The defendant conceded that this double jeopardy claim was not raised at trial and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. Practice Book § 60-5. The defendant’s claim is reviewable because it meets the first two prongs of Golding. State v. Knight, 56 Conn. App. 845, 853, 747 A.2d 13 (2000); see also State v. Chicano, 216 Conn. 699, 704, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). We conclude that the defendant’s fundamental constitutional right against double jeopardy was clearly violated by his convictions for both conspiracy to commit kidnapping and conspiracy to commit unlawful restraint.

“The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. . . . This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial.” (Citations omitted; internal quotation marks omitted.) State v. Knight, supra, 56 Conn. App. 853-54.

“Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute .... For such a violation, only the single penalty prescribed by the statute can be imposed.” (Internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 559, 747 A.2d 487 (2000). “A single agreement to commit several crimes constitutes one conspiracy. . . . [Mjultiple agreements to commit separate crimes constitute multiple conspiracies.” (Internal quotation marks omitted.) State v. Ketchum, 45 Conn. App. 270, 278, 696 A.2d 987, cert. denied, 242 Conn. 910, 697 A.2d 368 (1997).

In the present case, the state concedes, in an alternative argument, that the jury reasonably could have concluded that the defendant and Gaillard entered into two separate agreements. The defendant, as noted previously, claims that he at most entered into only one agreement to commit three crimes. The state claims that the two conspiracies consist of an initial agreement to beat the victim and, when she was rendered unconscious, a second agreement to dispose of her body in an abandoned building where it would not likely be found. We agree with the state.

The evidence produced at trial was sufficient to establish that the defendant and Gaillard entered into two separate agreements; first, they agreed to beat the victim when she did not turn over the drug money and, second, after the victim was rendered unconscious, the defendant and Gaillard conspired to dispose of her body in a location where it would not likely be found. The jury could have concluded that it was foreseeable that the victim would need to be restrained if she regained consciousness after the assault on her and that this unlawful restraint is subsumed in the conspiracy to kidnap.

We conclude, however, that the defendant’s convictions and sentencing for both conspiracy to commit kidnapping in the second degree and conspiracy to commit unlawful restraint in the first degree constitutes multiple punishments for the same offense.

Accordingly, the judgment as to these two conspiracy counts must be set aside and the case remanded to the trial court with direction to combine the defendant’s conspiracy convictions for kidnapping in the second degree and for unlawful restraint in the first degree and to vacate the sentence for one of the conspiracy convictions. State v. Ortiz, supra, 252 Conn. 559; see also State v. Howard, 221 Conn. 447, 462-63, 604 A.2d 1294 (1992); State v. Chicano, supra, 216 Conn. 725.

The judgment is reversed in part and the case is remanded to the trial court with direction to combine the defendant’s convictions for conspiracy to commit kidnapping in the second degree and conspiracy to commit unlawful restraint in the first degree and to vacate the sentence for one of the conspiracy convictions; the judgment on all of the other convictions is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of murder and conspiracy to commit murder.

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