author: HENNESSY, J.

text:
    DAWN SULLIVAN v. YALE-NEW HAVEN HOSPITAL, INC., ET AL.
    (AC 19462)
    Foti, Dranginis and Hennessy, Js.

      Argued January 23 —
    officially released August 7, 2001

      William T. Shea, for the appellant (substitute plaintiff).

      Peter T. Fay, for the appellee (named defendant).

      Augustus R. Southworth III, with whom, on the brief, was Leslie R. Gold, for the appellees (defendant Arthur Levy et al.).
   Opinion

HENNESSY, J.

The substitute plaintiff, Patricia Sullivan, appeals from the judgment rendered following the trial court’s granting of the motions for summary judgment filed by the defendants, Yale-New Haven Hospital, Inc., Arthur Levy, and Medical Oncology and Hematology, P.C. (Medical Oncology). The substitute plaintiff claims that the trial court improperly (1) granted the defendants’ motions to preclude expert testimony, (2) denied her motion to continue the case assigned for trial and her motions for a continuance of the summary judgment and trial proceedings, (3) granted the defendants’ motions to preclude the substitute plaintiff from offering the testimony of expert witnesses at trial, (4) refused her request to file objections and affidavits in opposition to the defendants’ supplemental motions for summary judgment, (5) heard the defendants’ supplemental motions for summary judgment on January 25, 1999, (6) granted the defendants’ supplemental motions for summary judgment, (7) found an abuse of process by the substitute plaintiffs counsel and (8) considered the deposition testimony of the substitute plaintiffs expert witness when granting the defendants’ supplemental motions for summary judgment. We affirm the judgment of the trial court.

The court had before it the following facts. On October 2,1990, the plaintiff, Dawn Sullivan, was diagnosed as suffering from leukemia. She was treated by Levy and his associates at Medical Oncology and was released from Yale-New Haven Hospital, Inc. (hospital), on October 20, 1990, in complete remission. Following the advice of Levy, the plaintiff underwent additional chemotherapy at the hospital and suffered side effects therefrom. By early December, 1990, the plaintiff exhibited severe difficulties, including blindness, acute aphasia and neurological disabilities, that resulted in an inability to walk unassisted. The plaintiff continued treatment with Levy and his associates until November, 1992, when she became the patient of Jonathan Sporn, an oncologist at the University of Connecticut Health Center. The plaintiff died at the health center on January 1, 1994.

The original complaint filed by the plaintiff on December 3, 1993, was a three count action that sounded in negligence and sought damages for loss of sight and neurological impairment as a result of the defendants’ inappropriate administration of the chemotherapy agent, ARA-C, which was prescribed by Levy to treat the plaintiffs leukemia beginning in December, 1990. On September 19, 1995, an amended complaint was filed by the substitute plaintiff, Patricia Sullivan, administratrix of the estate of the plaintiff, which added a claim that the plaintiffs death was related to the defendants’ treatment of her in December, 1990. The defendants filed supplemental motions for summary judgment on the ground that the substitute plaintiff could not pursue her claims in the absence of expert testimony that the defendants had deviated from the applicable standard of care. The defendants’ supplemental motions for summary judgment were granted, and, thereafter, the substitute plaintiff filed this appeal.

I

The substitute plaintiff first claims that the court improperly allowed a hearing on January 11, 1999, which concerned the defendants’ motions to preclude expert testimony, to go forward without the presence of the substitute plaintiffs counsel. Specifically, the substitute plaintiff claims that the court abused its discretion by refusing to continue oral argument on the motions to the next day or to any other day available after the court was informed that the substitute plaintiffs counsel could not be present due to medical reasons. We disagree.

Our review of a trial court’s denial of a continuance is governed by the abuse of discretion standard. Lawson v. Whitey’s Frame Shop, 42 Conn. App. 599, 612, 682 A.2d 1016 (1996), rev’d in part on other grounds, 241 Conn. 678, 697 A.2d 1137 (1997). “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.” (Internal quotation marks omitted.) State v. Medley, 48 Conn. App. 662, 665-66, 711 A.2d 1191, cert. denied, 245 Conn. 915, 718 A.2d 19 (1998). “There is no hard and fast rule by which an abuse of discretion may be determined but, in general, for an exercise of discretion not to amount to an abuse, it must be legally sound and there must be an honest attempt by the court to do what is right and equitable under the circumstances of the law, without the dictates of whim or caprice.” Id., 666; see also State v. Tubbs, 52 Conn. App. 636, 642, 727 A.2d 776 (1999).

In the present case, both sides agreed to go forward with the hearing on Januaiy 11, 1999, concerning the defendants’ motions to preclude the substitute plaintiff from offering the testimony of expert witnesses. On that date, the court was informed by the court clerk and counsel for the defendants that the substitute plaintiff’s counsel, who had returned from vacation the day before, could not appear at the hearing because of the dilation of his eyes earlier in the day. The court then reviewed the file and had his clerk inquire with the caseflow office to ascertain whether the substitute plaintiff had filed a motion for a continuance or an objection to the defendants’ motions. Upon learning that no such motions had been filed and considering that a trial date was set for two weeks from that date, the court proceeded with the hearing and granted the defendants’ motions.

Under these circumstances, the ruling of the court was legally sound because (1) the substitute plaintiffs counsel had agreed to the date of the hearing, (2) the substitute plaintiffs counsel had not followed the proper procedure for requesting a continuance and (3) the trial date was only two weeks away. The court, therefore, had good reason to move ahead with the scheduled hearing. Furthermore, the court, a short time later, vacated its decision, reheard argument with all counsel present and granted the defendants’ motions. Accordingly, we conclude that the court did not abuse its discretion, and the substitute plaintiff did not suffer an injustice by the court’s actions.

II

The substitute plaintiff next contends that the court abused its discretion when it denied her written motion dated January 21,1999, for a continuance of the January 25, 1999 trial assignment date. The substitute plaintiff also claims that the court abused its discretion when it denied her written motion dated January 25, 1999, for a continuance of the hearing on the defendants’ supplemental motions for summary judgment to be held on that date. The court heard argument and denied both motions on January 25, 1999, the day the trial was to commence.

The substitute plaintiff specifically claims that the court’s refusal to grant the continuance prevented her from taking depositions and from filing written objections and affidavits in opposition to the defendant’s motions for summary judgment. The substitute plaintiff further argues that the defendants offered no reason why the court should deny her motion for a continuance and that she offered to reimburse any expense incurred by defense counsel as a result of their attending the January 25, 1999 hearing.

Our review of the denial of a motion for a continuance by the trial court is limited to the abuse of discretion standard. Lawson v. Whitey’s Frame Shop, supra, 42 Conn. App. 612. Accordingly, we will make every reasonable presumption in favor of the correctness of the court’s ruling and will reverse its judgment “only where an abuse of discretion is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) State v. Medley, supra, 48 Conn. App. 665-66. “We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial.” (Internal quotation marks omitted.) Lawson v. Whitey’s Frame Shop, supra, 612.

Counsel for defendants Levy and Medical Oncology argued to the court that the matter had been pending since July or August, 1998, that there had been a number of continuances granted to the substitute plaintiff to obtain expert testimony and that, after many delays, the court had ruled that the substitute plaintiff was thereafter precluded from introducing expert testimony. Counsel also argued that on January 14, 1999, the court had set this matter down for a hearing on January 25, 1999, and that the substitute plaintiff had failed to file an opposition to the motions for summary judgment other than to request a continuance. Counsel for the defendant hospital argued that the supplemental motions for summary judgment had been pending since July and that the substitute plaintiffs reasons for seeking a continuance, namely, to obtain further discovery from the hospital and to depose Levy, were unavailing in light of the court’s previous ruling that the substitute plaintiff was precluded from offering expert testimony.

In the present case, the court denied the motions for a continuance after reviewing the history of the case and finding that, for some period of time, the case had been set down for trial on January 25,1999, and that on January 14, 1999, the court clearly had stated that it also was going to consider the supplemental motions for summary judgment on January 25, 1999. Furthermore, the court found that the substitute plaintiff had not offered good cause for granting the continuance. Accordingly, we find that the court did not abuse its discretion and that the substitute plaintiff did not suffer an injustice.

Ill

The substitute plaintiff next argues that the court abused its discretion in granting the defendants’ motions to preclude all expert testimony when the substitute plaintiff had provided the names of expert witnesses, their addresses and the general tenor of their expected testimony. Specifically, the substitute plaintiff claims that both expert witnesses, Robert Koch, Jr., of the St. Petersburg, Florida, Medical Center, and Michael Insler, professor of ophthalmology at the LSC Eye Center in New Orleans, Louisiana, opined that the defendants had violated the standard of care in treating the plaintiffs leukemia. The substitute plaintiff further claims that she properly disclosed their opinions and offered the opportunity to compíete the defendants’ knowledge of their opinions by use of sworn depositions, via telephone, all of which complied with the court’s order of October 26, 1998, to disclose her expert witnesses. The defendants argue that the substitute plaintiffs disclosure of her experts failed to comply with Practice Book § 13-4 and the court’s order that full disclosure be completed by November 25, 1998.

Our Supreme Court recently discussed this type of issue in Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 17-18, 776 A.2d 1115 (2001). We review this claim under the standards of review described therein. In Millbrook, our Supreme Court stated: “[F]or a trial court’s order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met.

“First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court’s intended meaning. This requirement poses a legal question that we will review de novo.

“Second, the record must establish that the order was in fact violated. This requirement posses a question of fact that we will review using a clearly erroneous standard of review.

“Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion.” Id., 17-18.

We conclude that the court’s discovery order satisfied the first prong of the Millbrook test in that it was “reasonably clear.” The order merely required the substitute plaintiff to comply with the rules of practice.

The dispositive issue of this claim is whether the trial court’s finding was clearly erroneous under the second prong of the Millbrook test. The court found that the substitute plaintiffs disclosure of her experts did “not comport with the disclosure requirements of the Practice Book because it [did] not, except in the most cursory fashion possible, state the substance of the facts and opinions to which the expert[s were] expected to testify, and it certainly [did not] state anything that could conceivably be called a summary of the grounds for each opinion.” The court further found that there had been an abuse of process by the substitute plaintiff and, on the date of trial, that there were no reports of any experts and no proposed plan for having them deposed. We agree with the court.

Practice Book § 13-4 (4) requires “any plaintiff expecting to call an expert witness at trial [to] disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. . . .” The court has the authority, pursuant to § 13-4 (4), to preclude the testimony of an expert if, upon motion, the judicial authority determines that the late disclosure will cause undue prejudice to the moving party or undue interference with the orderly progress of trial of the case, or that the delay involved bad faith by the disclosing party. Practice Book § 13-4 (4).

After reviewing the record, we conclude that the court had before it adequate evidence upon which to find that substitute plaintiffs disclosure did not comply with the requirements of Practice Book § 13-4 (4). Thus, its ruling was not clearly erroneous. Additionally, the mailing of the defective disclosure to the defendants to inform them that no one, including the substitute plaintiffs counsel, who was on vacation, would be available for a deposition until January 11, 1999, for a January 25, 1999 trial that involved a wrongful death action based on medical malpractice was, as the court found, an abuse of process. Moreover, the court’s exclusion of the expert testimony as a sanction for violating the court’s discovery order is proportional to the violation and therefore satisfies the third prong of Millbrook. When an individual violates a discovery order as to a particular item of evidence, it is wholly within the discretion of the court to exclude that evidence as punishment for the violation. We, therefore, cannot find that the court abused its discretion in granting the defendants’ motions to preclude the substitute plaintiff from presenting expert testimony. Accordingly, the court’s decision to exclude the expert testimony is affirmed.

IV

The substitute plaintiff next claims that the court, after precluding the expert testimony, abused its discretion in refusing her request to present arguments or affidavits in support of her claim that negligence could be established without expert testimony.

The substitute plaintiff specifically argues that the defendants negligently administered a highly toxic drug and that such negligence can be proven without employing expert testimony. In support of this position, she cites Bourquin v. B. Braun Melsungen, 40 Conn. App. 302, 670 A.2d 1322, cert. denied, 237 Conn. 909, 675 A.2d 456 (1996). In Bourquin, the trial court denied the plaintiffs pretrial motion to amend his complaint. On appeal to this court, we reversed the trial court, concluding that the requested amendment did not enlarge the specifications of negligence or inject new facts into the case of which the defendant was unaware, that it was filed promptly after the need for it became apparent and that it would not have delayed the trial so as to prevent the defendant from preparing a defense. Id., 312-13. Additionally, the focus of the amendment was to claim that the defendant had failed to heed the warnings on the box in which human tissue had been received and had failed to investigate the significance of those warnings. In Bourquin, we concluded that the significance of those warnings was not such a complex issue as to require expert testimony. Id., 316.

Bourquin, however, is inapposite to the present case. Here, the substitute plaintiff has presented a new theory on the day of the trial that would have required a delay in the trial for arguments to take place on the issue of whether expert testimony was necessary to determine if a chemotherapy drug was administered negligently. The court found that to prove medical malpractice under Connecticut law, with certain exceptions that are not applicable here, there must be expert evidence to show that the defendants in the present case breached the applicable standard of care. The evidence proffered by the substitute plaintiff — photographs of the plaintiff before and after her hospital stay — did not address the required standard of care or the defendants’ alleged breach of that standard. The substitute plaintiffs argument that the trial should have been delayed for her to obtain hospital records in an attempt to show that the defendants’ monitoring and administration of ARA-C was negligent is unavailing. The court stated, and we agree, that the substitute plaintiff alleged in her complaint a breach of a standard of care by a health provider and, to establish that breach, expert testimony was required. No expert testimony was properly brought before the court and, therefore, the substitute plaintiffs argument must fail. Accordingly, we conclude that the trial court did not abuse its discretion in refusing the substitute plaintiffs request.

V

The substitute plaintiff next claims that the court abused its discretion in hearing the defendants’ motions for summary judgment without first scheduling and hearing motions for permission to file supplemental motions for summary judgment in accordance with Practice Book § 17-44. Specifically, she claims that the court never gave the defendants permission to file motions for summary judgment relative to the issue of expert testimony and, thereby, did not afford her “the opportunity to prepare for any motion for summary judgment.”

The record indicates that the defendants filed motions for permission to file supplemental motions for summary judgment dated August 21,1998, to supplement their initial motions for summary judgment dated June 24,1998, on the ground that the substitute plaintiff had failed to produce expert testimony concerning the standard of care. The motions for permission to file supplemental motions for summary judgment were granted on September 29,1998. A hearing on the supplemental motions for summary judgment was scheduled for January 25,1999. The substitute plaintiff had approximately four months to prepare from the court’s decision granting the defendants’ motions for permission to file supplemental motions for summary judgment to when the court heard argument on the defendants’ supplemental motions for summary judgment. Accordingly, we find that the court did not abuse its discretion in this matter.

VI

The substitute plaintiff next claims that the court improperly granted the defendants’ supplemental motions for summary judgment when the plaintiffs treating oncologist had been noticed properly and could have been used as an expert. Additionally, the substitute plaintiff claims that she should have been allowed to proceed with her claim that the failure to administer ARA-C properly is an issue that is not so complex as to require expert testimony. Because the substitute plaintiff has failed to analyze and to brief this claim properly on appeal, it is deemed abandoned. See In re Bruce R., 234 Conn. 194, 215-16, 662 A.2d 107 (1995) (appellate court may decline to review claims not properly briefed and analyzed); State v. Henderson, 47 Conn. App. 542, 558-59, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998) (same).

VII

The substitute plaintiff next argues that the court abused its discretion “by casting aspersions upon [her] counsel” and “suggesting some sort of abuse of process relative to compliance with Practice Book § 13-4” and, thereby, displayed a prejudicial attitude toward her counsel. The substitute plaintiff refers us to the trial transcript dated January 25, 1999. She has not referenced, however, specific pages from which we can determine whether the trial court did cast aspersions on her counsel, nor did she refer us to specific portions of the twenty-one pages of transcript in which the trial court suggests some sort of abuse of process. Claims not properly briefed on appeal will not be reviewed by this court and will be treated as having been abandoned. In re Bruce R., supra, 234 Conn. 215; State v. Henderson, supra, 47 Conn. App. 558-59.

VIII

The substitute plaintiff finally claims that the court improperly granted the defendants’ supplemental motions for summary judgment on the basis of the deposition testimony of Spom, the plaintiffs treating oncologist. Specifically, she contends that the deposition testimony of Sporn should not have been deemed to be conclusive and, therefore, that she should have been allowed to clarify or contradict it at trial. We disagree.

Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits .... The adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence . . . .” Practice Book (2000) § 17-45. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Crystal Lake Clean Water Preservation Assn. v. Ellington, 53 Conn. App. 142, 146, 728 A.2d 1145, cert. denied, 250 Conn. 920, 738 A.2d 654 (1999). “A material fact is a fact that will make a difference in the result of the case. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Fernandez v. Standard Fire Ins. Co., 44 Conn. App. 220, 222, 688 A.2d 349 (1997). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citation omitted; internal quotation marks omitted.) Crystal Lake Clean Water Preservation Assn. v. Ellington, supra, 146.

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendants] as a matter of law, our review is plenary and we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the [record].” (Citation omitted; internal quotation marks omitted.) Id., 147. “On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). On appeal, we review the affidavits to determine whether the opposing party sustained that burden.” 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994). On the basis of our review of the record, we conclude that the substitute plaintiff has not demonstrated that the trial court improperly granted the defendants’ supplemental motions for summary judgment.

The defendants’ supplemental motions for summary judgment and accompanying affidavits allege that the substitute plaintiff has failed to produce expert testimony against the defendants on the issue of the standard of care, the alleged breach of the standard of care and causation of injury, and, therefore, the defendants are entitled to summary judgment as a matter of law. The opposing affidavit of the substitute plaintiff, who is the mother of the plaintiff, averred that on the basis of the answers given by the defendants to certain questions, a review of the medical records and correspondence between the physicians, and the literature concerning the chemotherapy drugs that were administered, the defendants were negligent in treating the plaintiff.

“This court has approved the grant of a summary judgment in a medical malpractice case when, as in this case, it is evident that the plaintiff will be unable to produce at trial an expert witness to testify regarding the applicable standard of care.” Bourquin v. B. Braun Melsungen, supra, 40 Conn. App. 314; Guzze v. New Britain General Hospital, 16 Conn. App. 480, 485, 547 A.2d 944, cert. denied, 209 Conn. 823, 552 A.2d 430 (1988). “It is well settled that the plaintiff cannot prevail [in a medical malpractice case] unless there [is] positive evidence of an expert nature from which the jury could reasonably conclude that the defendant was negligent, except where there is manifest such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence that the testimony of an expert is not necessary.” (Internal quotation marks omitted.) Vinchiarello v. Kathuria, 18 Conn. App. 377, 381-82, 558 A.2d 262 (1989); see also Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982).

In the present case, the substitute plaintiff alleged in her complaint that the defendants’ treatment of the plaintiff for T-cell acute lymphocytic leukemia was negligent in that they had failed to develop a proper protocol for the administration of ARA-C, had failed to monitor the administration of ARA-C and had erred in the administration of the proper dosage of ARA-C. The court concluded, and we agree, that expert testimony was necessary to show that the defendants were negligent because the determination of the proper protocol for the administration of ARA-C, the monitoring of the administration of ARA-C, its appropriate dosage and the suitability of ARA-C for the treatment of leukemia are facts not generally within the sphere of common knowledge of a lay person.

Our review of the record reveals that Spom was the only expert witness that the substitute plaintiff properly disclosed and who would have testified as an expert witness against Levy. Spom, however, was deposed by the defendants and testified that, in his opinion, the plaintiff was treated with the appropriate standard of care by all of the defendants. Because it was evident that the substitute plaintiff did not produce an expert witness who would have testified that the defendants’ had breached the standard of care in their treatment of the plaintiff, the court properly found that the defendants were entitled to judgment as a matter of law. See Bourquin v. B. Braun Melsungen, supra, 40 Conn. App. 314; Guzze v. New Britain General Hospital, supra, 16 Conn. App. 485.

It is clear from our review of the record that the conclusion reached by the court — that the substitute plaintiff did not produce expert testimony in support of her claim and, therefore, that the defendants were entitled to judgment as a matter of law — is legally and logically correct and is supported by the facts set out in the record. Accordingly, we conclude that the court; properly granted the defendants’ motions for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff, Dawn Sullivan, commenced this medical malpractice action against the defendants and died during the pendency of the litigation. Her mother, Patricia Sullivan, was appointed administratrix of her estate and was substituted as the party plaintiff in this matter.

       We note that the record does not contain either a written memorandum of decision or a transcribed copy of an oral decision, signed by the court, with regard to the trial court’s decision granting the defendants’ supplemental motions for summary judgment. See Practice Book § 64-1. “The duty to provide [the Appellate Court] with a record adequate for review rests with the appellant. Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998); see also Practice Book § 61-10. This court has declined to review claims where the appellant has failed to provide the court with an adequate record for review. Chase Manhattan Bank/City Trust v. AECO Elevator Co., supra, 609; Emigrant Savings Bank, v. Erickson, 46 Conn. App. 51, 54, 696 A.2d 1057, cert. denied, 243 Conn. 921, 701 A.2d 341 (1997).” (Internal quotation marks omitted.) Crystal Lake Clean Water Preservation Assn. v. Ellington, 53 Conn. App. 142, 145-46 n.7, 728 A.2d 1145, cert. denied, 250 Conn. 920, 738 A.2d 654 (1999). We review the substitute plaintiffs claims, however, because the unsigned transcript reveals the basis of the trial court’s findings. See id.

       The defendants first filed motions for summary judgment claiming that the substitute plaintiff had failed to commence this action within the two year statute of limitations period. The court denied those motions on the ground that “the question of when a reasonably diligent person would have become aware of actionable harm under the circumstances of this case is an issue of fact that must be resolved by the jury.” The defendants then filed motions for permission to file supplemental motions for summary judgment, which were granted by the court.

       The substitute plaintiffs disclosure of expert witnesses stated: “Insler is expected to testify [that] the care and treatment provided to Dawn Sullivan in December, 1990, was not within the accepted standard of care and was a serious departure from then prevailing standards of care.” The substitute plaintiff also used the identical language in disclosing Koch as an expert witness.

       Practice Book § 134 (4) provides in relevant part: “In addition to and notwithstanding the provisions of subdivisions (1), (2) and (3) of this rule, any plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testily, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. ... If disclosure of the name of any expert expected to testily at trial is not made in accordance with this subsection, or if an expert witness who is expected to testily is retained or specially employed after a reasonable time prior to trial, such expert shall not testily if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. Once the substance of any opinion or opinions of an expert witness who is expected to testily at trial becomes available to the party expecting to call that expert witness, disclosure of expert witness information shall be made in a timely fashion in response to interrogatory requests pursuant to subdivision (1) (A) of this rule, and shall be supplemented as required pursuant to Section 13-15. Any expert witness disclosed pursuant to this rule within six months of the trial date shall be made available for the taking of that expert’s deposition within thirty days of the date of such disclosure. . . .”

       The substitute plaintiff suggested that the depositions of the two expert witnesses, one in Florida and one in Louisiana, take place by telephone. The defendants argued, and we agree, that the depositions of the experts, in a matter involving a wrongful death in a medical malpractice case, should take place with the experts present so that the parties could question them thoroughly and observe their demeanor.

       Practice Book § 17-44 provides in relevant part: “[A]ny party may move for a summary judgment at any time, except that the party must obtain the judicial authority’s permission to file a motion for summary judgment after the case has been assigned for trial. ...”

       Because we affirm the judgment of the trial court granting the defendants’ supplemental motions for summary judgment on the ground that the substitute plaintiff failed to provide expert medical testimony, it is not necessary for us to address the defendants’ claims relative to their alternate ground for affirmance, namely, that the substitute plaintiff failed to bring this action within the time period required by the statute of limitations.


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    KRISTIN LUDINGTON v. CHRISTOPHER SAYERS ET AL.
    (AC 19898)
    (AC 19899)
    Mihalakos, Dranginis and Shea, Js.
    Argued February 23 —
    officially released August 7, 2001

      Glory M. Lena, for the appellant-appellee (defendant Arute Brothers, Inc.).

      Stewart M. Casper, with whom, on the brief, were Gwendolyn Field Noto and Victoria de Toledo, for the appellant-appellee (plaintiff).

      J. Kevin Golger, for the appellee (named defendant).

      Geoffrey L. Squitiero, for the appellee (defendant Eric Lent).
   Opinion

MIHALAKOS, J.

Arute Brothers, Inc. (Arute), one of three defendants in this negligence action, appeals from the judgment of the trial court rendered in favor of the plaintiff, Kristin Ludington. On appeal, Arute claims that the court (1) improperly refused to instruct the jury on the doctrine of superseding cause and (2) improperly admitted expert testimony by Steven C. Batterman indicating that Arute had failed to deploy warning signs, including a high mounted, internally illuminated flashing arrow, at the highway construction site where the plaintiff was injured. In a separate appeal, the plaintiff claims that the court improperly refused to tax costs relating to the fee charged by her treating physician for the use of a videotape of his deposition testimony at the trial. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are necessary for our resolution of these appeals. On August 2,1992, at approximately 10:20 p.m., Christopher Sayers and Eric Lent, the other defendants in this action, departed from Norwalk to return to Stamford. Sayers and Lent traveled in separate vehicles and were driving south on Interstate 95. As they approached exit eleven in Darien, Lent stopped his vehicle because the left lane, in which he was driving, was obstructed by a sign and a highway construction site. Sayers, who was following Lent, was unable to stop his vehicle in a timely manner, and it collided with Lent’s vehicle. Both vehicles sustained minor damage; neither vehicle was disabled, however.

After the collision, Sayers and Lent exited the vehicles and walked to a nearby service station in search of a telephone. Thereafter, Sayers and Lent returned; each sat in his vehicle and waited for the police to arrive. At approximately 10:55 p.m., the plaintiff was driving south on Interstate 95. As she approached exit eleven, her vehicle collided with Sayers’ vehicle, which, along with Lent’s vehicle, was obstructing the left lane. The plaintiffs right foot was severely injured in the collision. Arate was operating the highway construction site near the location of the two collisions.

A state police trooper arrived at the scene and conducted an investigation. He questioned the three drivers and later authored the police accident reports. In the accident reports, the state trooper did not indicate whether there had been a high mounted, internally illuminated flashing arrow present to warn oncoming traffic of the closure of the left lane. The state trooper’s diagram of the accident scene depicted one construction sign.

The contract for road repairs between Arate, a construction contractor, and the department of transportation had directed Arate to post a flashing arrow near the highway median, 1000 feet in advance of the closure of the left lane. Additionally, the contract had directed Arate to post a total of five right arrow signs beyond the flashing arrow in intervals of 200 feet to taper the closure of the left lane.

On November 27,1992, the plaintiff brought an action in the trial court, seeking compensation for the injury she had sustained in the collision. In the operative complaint, the plaintiff alleged that Arate, Sayers and Lent had been negligent, and that their negligence had caused her vehicle to collide with Sayers’ vehicle. Regarding Arate, the plaintiff alleged that it (1) had “failed to place adequate signs warning drivers of the closing of the leftmost southbound lane,” (2) had “failed to provide adequate advanced warning of the closing of the leftmost southbound lane,” (3) had “failed to provide and install adequate flashing lights giving notice of the closing of the leftmost southbound lane” and (4) had “failed to adequately gradually taper traffic from the leftmost southbound lane into the center lane.” In its operative answer, Arate pleaded the special defense of contributory negligence.

At the conclusion of the trial, the jury returned a plaintiffs verdict. Specifically, the jury concluded that the plaintiff had sustained damages in the amount of $1,537,868.62. It apportioned liability as follows: Arate, 65 percent; the plaintiff, 22 percent; Sayers, 12 percent; and Lent, 1 percent. The court accepted the verdict.

Thereafter, Arate filed a motion for judgment notwithstanding the verdict, a motion to set aside the verdict and a motion for remittitur. The court denied the motions and, after reducing the damages to account for contributory negligence and collateral source payments, rendered judgment awarding the plaintiff $1,188,104.15, exclusive of costs. This appeal and cross appeal followed. Additional facts and procedural history will be provided as necessary.

I

ARUTE’S APPEAL

A

Arate claims that the court improperly refused to instruct the jury on the doctrine of superseding cause. We disagree.

The following additional facts and procedural history are relevant to our disposition of Arate’s claim. During the trial, the court admitted evidence suggesting that (1) the collision between the plaintiffs vehicle and Sayers’ vehicle had been caused by the failure of Sayers and Lent to drive their vehicles out of the left lane after the first collision, (2) the plaintiff had steered her vehicle into the left lane from the center lane moments before colliding with Sayers’ vehicle and (3) generally, signs in the left lane or median of a highway are less visible to individuals driving in the center lane.

Thereafter, Arate filed a request to charge, asking the court to instruct the jury on the doctrine of superseding cause. See Practice Book § 16-21. Specifically, Arate requested that the court include the following language in its instructions to the jury: “Defendant Arate Brothers, Inc., has argued that [it is] not hable for the plaintiffs injuries due to what is called a superseding or intervening cause. The law defines a superseding or intervening cause as an affirmative act or acts of another party or parties — the plaintiff and/or the other defendants in this case, which, breaks the chain of causation so as to be the sole proximate cause of the injuries: that is, the conduct of the plaintiff and/or the conduct of the other defendants in this case — can intervene or supersede so as to become the only proximate cause of the plaintiffs injuries so that even if defendant Arute Brothers, Inc., was negligent, [it] would not be liable because the other parties’ conduct superseded [its] conduct as a substantial factor in causing the plaintiffs injury. You may find that the plaintiffs conduct alone superseded any or all of [Arute’s] conduct, you may find that the other defendants’ conduct superseded [Arute’s] conduct, or you may find that a combination of the plaintiffs and other defendants’ conduct superseded the conduct of defendant Arute Brothers, Inc. In other words, it is possible that two or more intervening forces may combine to create a superseding cause of the plaintiffs injuries. If you find that defendant [Arute’s] conduct was superseded by the conduct of any or all of the other parties in this action then [it is] not liable for the plaintiffs injuries, and you must return a verdict for defendant Arute Brothers, Inc.”

The court declined to instruct the jury on superseding cause. Arute later took an exception to that ruling.

“A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 243 Conn. 168, 179, 700 A.2d 38 (1997). Accordingly, “[pjroximate cause results from a sequence of events unbroken by a superseding cause, so that its causal viability continued until the moment of injury or at least until the advent of the immediate injurious force.” (Internal quotation marks omitted.) Id., 178. An “issue of proximate cause is ordinarily a question of fact for the trier.” (Internal quotation marks omitted.) Doe v. Manheimer, 212 Conn. 748, 756, 563 A.2d 699 (1989), overruled in part on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995). “It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier of fact.” (Internal quotation marks omitted.) Doe v. Manheimer, supra, 757. Therefore, in the present case, the court’s refusal to instruct the jury on the doctrine of superseding cause was proper only if a fair and reasonable person could not have concluded that Arute’s negligence had been superseded by the acts of the plaintiff, Lent or Sayers, or any combination thereof. See also Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993) (“ ‘court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding’ ”). Before we address that threshold issue, we must review further the legal principles concerning superseding cause.

The terms “superseding cause” and “intervening cause” have been used interchangeably. Wagner v. Clark Equipment Co., supra, 243 Conn. 178. Regarding intervening cause, “[our Supreme Court has] adopted the standard set forth in § 442B of [2 Restatement (Second), Torts (1965)], that ‘[w]here the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not reheve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.’ ” Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 607-608, 662 A.2d 753 (1995).

“ ‘Our cases make it clear that, to be within the “scope of the risk,” the harm actually suffered must be of the same “general type” as that which makes the defendant’s conduct negligent in the first instance.’ . . . Moreover, ‘[i]f the . . . [defendant’s] conduct is a substantial factor in bringing about harm to another, the fact that the . . . [defendant] neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent it from being liable.’ ” (Citation omitted; emphasis in original.) Id., 609-10.

In the present case, the court may have been required to instruct the jury on superseding cause if a fair and reasonable person could have reached the following conclusion: The harm suffered by the plaintiff was not within the scope of risk created by Arute’s failure to post a flashing arrow and an adequate number of warning signs, and to taper the closure of the left lane. The harm suffered by the plaintiff, i.e., the severe foot injury, was incurred in an automobile accident. The general type of harm sought to be prevented by requiring contractors engaging in road construction to warn drivers of obstructions or restrictions to normal traffic flow is injury to persons (or damage to property) resulting from automobile accidents. See Regs., Conn. State Agencies § 14-298-553 (“[w]arning signs shall be used for the purpose of warning traffic of existing or potentially hazardous conditions either on or adjacent to the road”); Regs., Conn. State Agencies § 14-298-804 (a) (“[s]igns shall be placed in positions where they will convey their messages most effectively .... Signs shall be so placed that the driver will have adequate time for response”); Regs., Conn. State Agencies § 14-298-807 (c) (“[w]here any part of the roadway is obstructed or closed, construction approach warning signs are required to alert traffic well in advance of these obstructions or restrictions to normal traffic flow”). Thus, the scope of risk created by Arute’s conduct includes personal injuries resulting from automobile accidents. See Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 609. Consequently, we conclude that a fair and reasonable person could not reasonably have concluded that the harm suffered by the plaintiff was not within the scope of the risk created by Arute’s failures. Accordingly, the jury could not reasonably have found that Arute’s negligence had been superseded by the acts of the plaintiff, Lent or Sayers, or any combination thereof. See id., 607-608. We therefore conclude that the court properly refused to instruct the jury on the doctrine of superseding cause.

B

Arute also claims that the court improperly admitted expert testimony by Batterman indicating that Arute had failed to deploy warning signs, including a high mounted, internally illuminated flashing arrow, at the highway construction site where the plaintiff was injured. Specifically, Arute argues that Batterman’s testimony failed to comport with standards of admissibility for expert scientific testimony as outlined in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587-89, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). We conclude that Arute cannot prevail on this claim because it has failed to demonstrate that the challenged testimony was harmful.

The following facts and procedural history are relevant to Arute’s claim. At the trial, the plaintiff called Batterman, a forensic engineer, as an expert witness. During voir dire, Batterman testified that he had reviewed the police accident reports as well as the depositions and witness statements that the plaintiff had provided him. Batterman testified that the accident report did not indicate that a flashing arrow had been posted in advance of the construction site. Similarly, Batterman testified that neither the deposition testimony nor the witness statements indicated the presence of a flashing arrow. On the basis of that information, Batterman concluded that a flashing arrow had not been posted at the scene of the accident or any place prior to the scene of the accident in that general vicinity.

Arute, which previously had filed a motion in limine requesting that the court exclude Batterman’s testimony, argued that his testimony failed to comport with standards of admissibility for expert scientific testimony as outlined in Daubert. The court denied Arute’s motion and permitted Batterman to testify.

Batterman testified in the presence of the jury consistently with his testimony during voir dire. Additionally, Batterman testified that nobody had reported running over sandbags, signs or scaffolding. Therefore, in his opinion, Arute also had failed to deploy four or more plain arrow signs to taper the closure of the left lane.

The plaintiff also called Gurson Alexander, a human factors analyst, as an expert witness. Alexander testified that he had reviewed the police accident reports, depositions of various witnesses, and the contract between Arute and the department of transportation. Regarding the flashing arrow, Alexander testified as follows: “It may be an overstatement to say that it’s missing. What I believe is that if it was there, it was not turned on. It was not illuminated. And it in fact may have been missing. As I indicated earlier, that flashing arrow sign, and particularly at night, is very conspicuous. It is — the bulbs are yellow. They’re bright and they flash. There’s no question that if you were in the vicinity, you would see it. I mean, that’s — everything we know underlines that. The fact that neither of the — none of the drivers said they saw it would indicate to me that it was either not there or not on.”

Alexander also testified that it was “inconceivable” that (1) four or more plain arrow signs had been posted to taper the closure of the left lane, and that (2) those signs had been knocked down before Lent and Sayers approached the construction site in their vehicles. Alexander based his opinion on Lent’s indication that he had seen one sign partially obstructing the left lane, and on the traffic control plan contained in the contract between Arate and the department of transportation.

Before addressing the merits of Arute’s claim, we first set out the legal principles that guide our analysis. “[Our Supreme Court has] often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling ‘would likely affect the result.’ ” (Citations omitted.) Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990). Additionally, “[i]t is well recognized that any error in the admission of evidence does not require reversal of the resulting judgment if the improperly admitted evidence is merely cumulative of other validly admitted testimony.” (Internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 211, 680 A.2d 1243 (1996).

In the present case, we assume arguendo that the court improperly admitted Batterman’s testimony and consider whether Arate has satisfied its burden of demonstrating harm. We have reviewed Batterman’s and Alexander’s testimony, and conclude that Batterman’s testimony was cumulative of Alexander’s. On appeal, Arate does not challenge the court’s decision to admit Alexander’s testimony. Therefore, we presume that his testimony was validly admitted and, for the foregoing reasons, conclude that Arate has failed to satisfy its burden of demonstrating that Batterman’s testimony was harmful. Consequently, Arute can not prevail on its appeal.

II

PLAINTIFF’S APPEAL

The plaintiff claims that the court improperly refused to tax costs relating to the fee charged by her treating physician for the use of a videotape of his deposition testimony at the trial. We disagree.

The following facts and procedural history are relevant to the plaintiffs claim. During the trial, the plaintiff sought to have a videotape of the deposition of Walther Bohne, the plaintiffs treating physician, admitted into evidence as expert testimony. The court admitted the videotape and allowed the jury to view it. Bohne, who did not attend court, never testified in person. Following the trial, the plaintiff filed an amended bill of costs, which included Bohne’s fee of $5000 for the use of the videotape. Sayers and Lent each filed an objection, arguing that Bohne’s fee was not taxable under our statutes. The court sustained the objections, and this appeal followed.

“It is a settled principle of our common law that parties are required to bear their own litigation expenses, except as otherwise provided by statute. . . . Furthermore, because ‘[c]osts are the creature of statute . . . unless the statute clearly provides for them courts cannot tax them.’ ” (Citation omitted.) M. DeMatteo Construction Co. v. New London, 236 Conn. 710, 715, 674 A.2d 845 (1996). Thus, the plaintiffs claim raises an issue of statutory construction over which our review is plenary. See Polizos v. Nationwide Mutual Ins. Co., 255 Conn. 601, 607, 767 A.2d 1202 (2001). When construing a statute, we recognize that it should “ ‘be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law.’ ” M. DeMatteo Construction Co. v. New London, supra, 715.

Two statutes are relevant to our inquiry: General Statutes §§ 52-257 and 52-260. Subsections (a) and (b) of § 52-257 set forth the costs available to the prevailing party in a civil action in which the matter in demand is not less than $15,000. Subsection (b) provides in relevant part: “Parties shall also receive: (1) For each witness attending court, his legal fee and mileage . . . .” (Emphasis added.) General Statutes § 52-257 (b). Subsection (b) expressly provides that a court can tax: costs for witnesses who attend court, but it is silent regarding witnesses who do not attend court, as is subsection (a). See General Statutes § 52-257 (a) and (b). Because neither subsection clearly provides that the costs for witnesses who do not attend court are taxable, a court cannot tax costs for a witness who does not attend court. See M. DeMatteo Construction Co. v. New London, supra, 236 Conn. 715.

Section 52-260 (f) authorizes a reasonable fee for a practitioner of the healing arts who gives expert testimony (practitioner). It does not address whether a fee can be taxed for a practitioner who does not attend court. Nonetheless, § 52-260 (f) should be interpreted with regard to subsections (a) and (b) of § 52-257 because the legislature is presumed to have created a consistent body of law. See id., 715. Consequently, unless the practitioner attends court, the court cannot tax the fee prescribed by § 52-260 (f). See also id., 717 (“[b]y its express terms, § 52-260 [¶] treats as taxable only those costs that arise from an expert’s testimony at trial”). For the foregoing reasons, we conclude that the court properly refused to tax costs relating to the fee charged by Bohne for the use of a videotape of his deposition testimony at the trial. Consequently, the plaintiff can not prevail on her appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       See General Statutes § 52-225a.

       Practice Book § 16-21 provides: “Any party intending to claim the benefit of the doctrines of supervening negligence, superseding cause, intervening cause, assumption of risk, or the provisions of any specific statute shall file a written request to charge on the legal principle involved.”

       In State v. Porter, 241 Conn. 57, 66-68, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), our Supreme Court adopted the standard for admissibility of scientific evidence as set forth by the United States Supreme Court in Daubert.

       Alexander testified that “human factors is the science of the application of what we know about what people do well and not so well to the designs of things for their use. ... It applies in the design of highways and how we transmit information to drivers.”

       The plaintiff also claimed that the court improperly refused to instruct the jury on the doctrine of acting in concert. In her brief and during oral argument, she requested, however, that we refrain from considering that claim unless Arute prevails in its appeal and a new trial is ordered. We grant the plaintiffs request and do not consider that claim.

       General Statutes § 52-260 (f) provides in relevant part: “When any practitioner of the healing arts as defined in section 20-1 ... is summoned to give expert testimony in any action or proceeding, the court shall determine a reasonable fee to be paid to the practitioner of the healing arts . . . and taxed as part of the costs in lieu of all other witness fees payable to the practitioner of the healing arts . . . .”


author: FOTI, J.

text:
    ROBERT AUBIN ET AL. v. JAMES A. MILLER, JR., ET AL.
    (AC 20744)
    Foti, Flynn and Healey, Js.

      Argued May 3 —
    officially released August 7, 2001

      Kevin A. Coles, for the appellant (defendant Munson Builders, Inc.).

      Michael P. Kaelin, with whom, on the brief, was James M. Moriarty, for the appellees (plaintiffs).
   Opinion

FOTI, J.

The defendant Munson Builders, Inc., appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiffs, Robert Aubin and Denyse Aubin. On appeal, the defendant claims that the court improperly (1) concluded that the plaintiffs were diligent in their attempt to secure a mortgage, (2) construed the terms of paragraph twenty-three of the parties’ contract, (3) concluded that the parties’ initial letter of agreement did not control the escrow agreement, (4) concluded that the defendant had recouped moneys that it had spent on changes in the construction plan that were requested by the plaintiffs, (5) failed to allow the defendant the opportunity to prove the cost of building a larger structure, (6) found that the defendant had converted the plaintiffs’ money and (7) awarded interest on the entire amount of the down payment and stated in its memorandum of decision that the defendant would have to pay offer of judgment interest to the date of satisfaction of the judgment. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. In June, 1996, the plaintiffs met with the president of the defendant corporation, Calvin Munson, to discuss the purchase of certain real property located in Fairfield and the construction of a home thereon. On July 23, 1996, the parties entered into a sales agreement. The sales agreement provided for a down payment of $74,900, which included $7490 that was paid when the plaintiffs submitted an offer to purchase on July 2,1996, and $5000 paid pursuant to the terms of a letter of agreement dated July 2, 1996. The plaintiffs paid the remaining balance due on the down payment to the defendant after deducting the $12,490 that they already had paid.

Paragraph nineteen of the sales agreement contained a mortgage contingency clause on which the effectiveness of the contract depended. The mortgage contingency clause provided: “It is expressly understood and agreed by the parties hereto that this contract is conditioned on the Purchaser being able to obtain a mortgage loan in the amount of FOUR HUNDRED THOUSAND DOLLARS ($400,000.00) from a recognized lending institution which loan shall be for a period not to exceed thirty (30) years and shall bear interest at the prevailing rate of said institution. Purchaser shall make prompt and immediate application with diligence, including the providing of all documentation necessary to support said application promptly. If Purchaser is unable to obtain a commitment for such loan on or before August 16, 1996, and if Purchaser so notifies Seller in writing care of James A. Miller, Jr., Attorney at Law, 140 Sherman Street, P.O. Box 826 Fairfield, Connecticut, 06430, on or before August 16, 1996, at 5:00 p.m., then this contract shall be null and void and the Purchaser shall be entitled to the return of all sums paid by the Purchaser on account of this contract, except $250.00 to cover the cost of preparing this contract. Should the Purchaser fail to provide such notice or fulfill the foregoing requirements, this contract shall continue in full force and effect, and the rights and obligations of the parties hereunder shall be as if this paragraph did not appear in this contract.”

On July 30, 1996, Robert Aubin sent a fully executed copy of the sales agreement to People’s Bank, a recognized lending institution. On August 6, 1996, Robert Aubin completed additional documents as requested by People’s Bank, including additional credit and employment release authorization forms, a borrower’s certification and authorization, another copy of the mortgage application and a rate lock-in agreement. He also advised the bank of the August 16, 1996 deadline.

On August 8,1996, Robert Aubin’s employer, Reader’s Digest, prepared an employment verification form, and its senior vice president for strategic planning and human resources sent the bank a letter confirming that Robert Aubin would be given an interest free corporate loan ranging from $150,000 to $250,000 to assist in his relocation. That loan would be secured by a second mortgage on the property.

On August 13, 1996, Reader’s Digest terminated Robert Aubin’s employment. He thereafter advised his attorney, Kathryn Hunter, and the account officer at People’s Bank, Mary Neidermeier, that Reader’s Digest had terminated his employment. On August 14, 1996, Hunter notified the defendant and its attorney, James A. Miller, Jr., by facsimile and registered mail that the plaintiffs were unable to secure a mortgage and, therefore, that they sought the return of all sums paid under the sales agreement pursuant to paragraph nineteen of the sales agreement.

Despite the plaintiffs’ repeated demands, the defendant refused to return the plaintiffs’ deposit. On August 10, 1998, the plaintiffs commenced the present action by service of process upon Munson Builders, Inc., and its attorney, James A. Miller, Jr., who was the escrow agent under the sales agreement. The first count of the complaint alleged breach of contract against the defendant. The second count alleged breach of the escrow agreement by Miller. The third count of the complaint alleged violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq., against Miller. The fourth count of the complaint alleged theft against the defendant and Miller, and the fifth count of the complaint alleged conversion against the defendant and Miller. After a trial to the corut, the court rendered judgment in favor of the plaintiffs and against the defendant as to counts one and five. The court further rendered judgment in favor of Miller on all counts, and in favor of the defendant as to the fourth count. The court awarded damages to the plaintiffs in the amount of $74,650, plus prejudgment interest in the amount of $26,749.58 and offer of judgment interest in the amount of $20,006.03, for a total amount of $121,405.61. The defendant appeals from that judgment. Additional facts will be provided as necessary.

I

The defendant first claims that the court improperly determined that the plaintiffs were diligent in their application for the required loan. We disagree.

Before we address the defendant’s claim, we first articulate the applicable standard of review. “If the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 606, 749 A.2d 1219, cert. denied, 254 Conn. 903, 755 A.2d 881 (2000). “With regard to the trial court’s factual findings, the clearly erroneous standard of review is appropriate.” Empire Paving, Inc. v. Milford, 57 Conn. App. 261, 265, 747 A.2d 1063 (2000). “The trial court’s legal conclusions are subject to plenary review. [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... [T]he interpretation of the contract is a matter of law and our review is plenary.” (Internal quotation marks omitted.) Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., 59 Conn. App. 194, 199, 756 A.2d 309 (2000).

“It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony he reasonably believes to be credible. ... On appeal, we do not retry the facts or pass on the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) Powers v. Olson, 252 Conn. 98, 105, 742 A.2d 799 (2000).

After careful review of the record, we conclude that there is ample evidence in the record to support the court’s finding that the plaintiffs made reasonable efforts to secure a mortgage. The defendant is asking this court to reconsider the evidence and to reach a different finding. We cannot do so.

“Reasonableness . . . is an objective standard, involving an analysis of what a person with ordinary prudence would do given the circumstances, without accounting for any particular knowledge or skill. . . . In contracts as in tort cases, [t]he test is external, not subjective; that is, the question is how would a person of ordinary prudence in such a situation have behaved, not how did the defendant in fact behave. . . . Whether the plaintiffs actions constituted reasonable efforts to satisfy the contractual condition is a factual determination for the trial court.” (Citations omitted; internal quotation marks omitted.) Phillipe v. Thomas, 3 Conn. App. 471, 475, 489 A.2d 1056 (1985).

The defendant makes several different arguments to support its position that the plaintiffs did not make reasonable attempts to secure a mortgage. We address each argument in turn.

First, the defendant claims that because Denyse Aubin did not herself apply for a mortgage after the bank denied Robert Aubin’s application, the plaintiffs did not make reasonable efforts. The defendant’s argument is without merit. Here, the court found that the plaintiffs disclosed all assets and debts to the bank, including the fact that Denyse Aubin had no income. We agree with the court that the law does not require the performance of a useless act; Barber v. Jacobs, 58 Conn. App. 330, 336, 753 A.2d 430, cert. denied, 254 Conn. 920, 759 A.2d 1023 (2000); and common sense dictates that someone with no income would not be approved for a $400,000 mortgage loan.

The defendant also argues that the evidence shows that Reader’s Digest did not fire Robert Aubin, but that he left his job voluntarily, and, therefore, the plaintiffs did not make reasonable efforts to secure a mortgage. The trial court specifically found that the official reason given by Reader’s Digest for Robert’s departure was nothing more than a pleasant coiporate gloss given to make the termination appear less harsh. Again, we conclude that the evidence in the record supports the court’s finding that Reader’s Digest fired Robert Aubin, and, therefore, the court’s finding was not clearly erroneous.

The defendant further argues that the court was bound to consider exhibit Q, which consisted of the organizational announcement by Reader’s Digest of Robert Aubin’s departure, for its truth, and not for the limited purpose of showing the organizational announcement. We note 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.” (Internal quotation marks omitted.) State v. Wright, 62 Conn. App. 743, 757, 774 A.2d 1015, cert. denied, 256 Conn. 919, 774 A.2d 142 (2001). The court properly determined that the announcement was hearsay, and the court considered the evidence for the limited purpose of showing the company’s announcement and not for the truth of the statements contained therein. Moreover, the court concluded that “even if the organizational announcement was admitted as a full exhibit . . . it is nothing more than corporate posturing and merely providing a polite reason for Aubin leaving Reader’s Digest.” Notwithstanding the announcement, the court specifically found Robert Aubin’s testimony that Reader’s Digest fired him believable and credible. We do not reconsider the credibility of the witnesses on appeal, which is properly left within the discretion of the trial court. Greene v. Perry, 62 Conn. App. 338, 343, 771 A.2d 196 (“ ‘[i]t is the trier’s exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony’ ”), cert. denied, 256 Conn. 917, 773 A.2d 943 (2001). Accordingly, we conclude that the record supports the court’s conclusion that Reader’s Digest fired Robert Aubin and that the plaintiffs made reasonable efforts to secure a mortgage. The court did not abuse its discretion in limiting the admissibility of exhibit Q, nor was its finding that Reader’s Digest fired Robert Aubin clearly erroneous.

II

The defendant next claims that the court improperly failed to consider that paragraph twenty-three of the purchaser’s rider to the sales agreement authorized the release of funds to the defendant. The defendant claims that once those funds were released to the defendant, the funds were not required to be returned pursuant to the mortgage contingency clause in paragraph nineteen. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. Pursuant to a letter of agreement dated July 2, 1996, the plaintiffs released $5000 to the defendant so that construction of the home could commence. Upon completion of the foundation, Miller released $24,966.99 to the defendant. The court did not allow the defendant to raise those setoffs, in part, because the defendant did not attempt to do so until the eve of trial. The court did, however, consider the defendant’s argument that it was entitled to keep that money pursuant to the terms of the sales agreement.

We begin our analysis of the defendant’s claim by first stating the applicable standard of review. “If a contract contains definitive language, the determination of what the parties intended by their contractual commitments is a question of law subject to plenary review by this court. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229-30, 654 A.2d 342 (1995).” (Internal quotation marks omitted.) Plikus v. Connecticut Light & Power Co., 42 Conn. App. 299, 301, 679 A.2d 401 (1996). Because the defendant’s claims relate to clear and unambiguous language in the parties’ contract, our review is plenary.

The defendant first claims that paragraph twenty-three of the rider to the sales agreement entitles it to retain the escrow funds that the plaintiffs paid over: We disagree.

Paragraph twenty-three of the purchasers’ rider to the contract of sale, which was incorporated into the contract of sale agreement, provides: “The amount of $74,900 paid by Purchaser on account of the Purchase Price (the ‘Escrow Funds’) shall be held in escrow by James A. Miller, Jr., Esq., Seller’s attorney (the ‘Escrow Agent’), and shall be released to Seller as follows: (i) one-third ($24,966) upon the completion of the foundation and basement and (ii) the balance ($49,934) upon completion of the framing, including the roof. Escrow Agent shall notify Purchaser at such time as the Escrow Funds, or any portion thereof, are released to Seller. In the event of any dispute with respect to the disposition of said funds, the Escrow Agent may retain the Escrow Funds in escrow until the dispute is settled, or may deposit the Escrow Funds into a court of competent jurisdiction in the State of Connecticut, and thereupon be released and discharged of any and all obligation and liability hereunder. The Escrow Agent shall not be liable for any error or omission or action which it may take, and the Purchaser and the Seller do each hereby jointly and severally agree to indemnify and save the Escrow Agent harmless of and from any and all liability in connection with this paragraph, unless the same is the result of the Escrow Agent’s negligence or willful breach of the terms of this paragraph. In the event the Escrow Funds are deposited in an interest-bearing account, any interest earned thereon shall belong to the Seller if the sale is completed pursuant to the terms hereof, but shall belong to and be released to Purchaser upon the down payment being returned to the Purchaser pursuant to the terms of this Contract.”

As previously stated, paragraph nineteen of the sales agreement provides in pertinent part: “If Purchaser is unable to obtain a commitment for such loan . . . this contract shall be null and void and the Purchaser shall be entitled to the return of all sums paid by the Purchaser on account of this contract, except $250.00 to cover the cost of preparing this contract.” (Emphasis added.) Because paragraph twenty-three of the sales agreement was incorporated into the contract, it follows that the sums paid pursuant to that paragraph were “sums paid by the Purchaser on account of this contract,” and, therefore, the plaintiffs were entitled to have the money returned once the “null and void” mechanism contained in paragraph nineteen was triggered by the plaintiffs’ inability to secure a mortgage.

Similarly, paragraph nineteen of the sales agreement also governs the $5000 that the plaintiffs paid to the defendant pursuant to the letter agreement. Indeed, the letter agreement preceded the sales agreement and merely served as evidence that the plaintiffs paid the defendant $5000 to initiate breaking ground and the construction of the foundation. This is further evidenced by the footnote to paragraph two, subsection (b), of the sales agreement, which provides: “Receipt of $5000.00 provided in accordance with letter agreement attached hereto is acknowledged, balance due upon signing is $62,410.00.” Therefore, we conclude that the defendant’s argument that it is entitled to offset the amount owed to the plaintiffs by the money that it already received is without merit. The sales agreement controls all of the money that the plaintiffs paid to the defendant on account of the purchase of the property and the construction of the home thereon. The court properly concluded that the plaintiffs were entitled to the return of their deposit of $74,900, less the $250 for the preparation of the contract, i.e., $74,650.

We further conclude that the defendant’s argument that the plaintiffs should be held responsible for the additional expenses is unpersuasive. As the defendant concedes in its brief, it took a significant risk by proceeding with construction before the mortgage condition was satisfied. We do not agree with the defendant that it is unfair to force it to return the funds to the plaintiffs. That is precisely what the defendant bargained for in its contract. Because the defendant was a party to the contract, we presume that it was aware of the mortgage condition, and it cannot now complain that the court held it to the terms to which it previously had agreed.

Ill

The defendant next claims that the court improperly concluded that the letter of agreement did not control the payment of funds to the defendant. We disagree.

As a threshold matter, we note that our standard of review is plenary because the determination of this issue involves construing clear and unambiguous language of the contract. See Plikus v. Connecticut Light & Power Co., supra, 42 Conn. App. 301-302. The defendant argues that the letter of agreement was intended to protect it when a purchaser demands an immediate start to construction. Specifically, the defendant argues that it was the intent of the parties that the plaintiffs compensate the defendant immediately for the work that it had initiated prior to the contract. The defendant further argues that this intent persisted through the negotiation of the language of the escrow clause contained in paragraph twenty-three. The defendant contends that once funds were released under the escrow agreement, such funds were no longer governed by the sales agreement, but rather were governed by the letter of agreement. The plaintiffs respond that there is nothing in either paragraph twenty-three of the sales agreement or the letter of agreement that overrides the mortgage contingency clause contained in paragraph nineteen of the sales agreement.

“Our interpretation of these contract provisions is guided by well established principles of contract law. A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000).

We agree with the plaintiffs that there is no language in either paragraph twenty-three of the sales agreement or the letter of agreement that could be read to override the mortgage contingency clause. We will not torture the language of the contract or search for another meaning when the language of the contract is clear and unambiguous. Id. As we previously concluded in part II of this opinion, the mortgage contingency clause contained in paragraph nineteen of the sales agreement governs the disposition of all moneys paid by the plaintiffs to the defendant on account of the sales agreement. Therefore, we conclude that the court properly determined that the defendant was not entitled to keep any sums paid over to it by the plaintiffs other than the $250 provided for in paragraph nineteen for the cost of preparing the contract.

IV

The defendant next claims that the court improperly determined that it had recouped the money that it had spent for the plaintiffs’ changes when the property was sold. The defendant claims that it was entitled to compensation for the expenditures made on construction in compliance with the plaintiffs’ plan. We are not persuaded.

As we previously have concluded in parts II and III of this opinion, paragraph nineteen of the sales agreement controls the return of all sums paid by the plaintiffs on account of the contract. Accordingly, we conclude that the court properly determined that the defendant was not entitled keep the money that the plaintiffs paid to it beyond the $250 for preparing the contract.

V

The defendant next claims that the court improperly failed to allow it the opportunity to prove the cost of constructing a larger building than it originally had planned. Specifically, the defendant argues that because the plaintiffs required a new plan for a structure that was 143 square feet larger than the one that the defendant originally had planned to construct on the property, and because the defendant already had poured the foundation for the larger structure prior to the mortgage contingency’s coming into effect, the defendant should have been allowed to prove how much the revised plan added to its costs. Thus, the defendant claims that the court’s failure to allow it to make such a showing prejudiced its defense at trial. We disagree.

As we already have concluded in parts II, III and IV of this opinion, the mortgage contingency contained in paragraph nineteen of the sales agreement controls the resolution of the defendant’s claims arising out of the purchase of the property and the construction of the home thereon. The court properly limited the defendant’s proof at trial because the issue of how much the defendant expended as a result of the plaintiffs’ plans was not relevant to the issue of whether the mortgage contingency contained in paragraph nineteen properly had been triggered. Under the circumstances of the present case, the court did not abuse its discretion by not allowing the defendant to present evidence of setoffs. See Gore v. People’s Savings Bank, 40 Conn. App. 219, 226, 670 A.2d 332 (1996) (“ ‘trial court has broad discretion to determine the relevancy of evidence, and we will not disturb a trial court’s ruling on the admissibility of evidence in the absence of a clear abuse of discretion’ ”).

VI

The defendant next claims that the court improperly found that it had converted the plaintiffs’ money. Specifically, the defendant argues that it did not convert the plaintiffs’ money because a genuine dispute existed as to whether the defendant was entitled to the deposit. We disagree.

The defendant is essentially claiming that the record does not contain sufficient evidence to support a finding of conversion. The applicable standard of review is whether the court’s conclusion that the evidence supported the finding of conversion was clearly erroneous. “We have long held that a finding of fact is reversed only when it is clearly erroneous. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) American Heritage Agency, Inc. v. Gelinas, 62 Conn. App. 711, 717, 774 A.2d 220, cert. denied, 257 Conn. 903, 777 A.2d 192 (2001). We cannot say that the court’s finding of conversion was clearly erroneous based on the evidence before it.

“Conversion is an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner’s rights.” Discover Leasing, Inc. v. Murphy, 33 Conn. App. 303, 309, 635 A.2d 843 (1993). To establish a prima facie case of conversion, the plaintiffs had to establish that (1) the deposit given to the defendant belonged to the plaintiffs, (2) the defendant deprived the plaintiffs of their funds for an indefinite period of time, (3) the defendant’s conduct was unauthorized and (4) the defendant’s conduct harmed the plaintiffs. See id.

Here, the court found that the language of the sales agreement was so clear that even a lay person could understand it. The court found that the contract became null and void on August 16,1996, and that the defendant should have realized that. The court found that after the contract had become null and void, it was incumbent on the defendant to return the plaintiffs’ deposit, less $250 for the preparation of the agreement. The court found that despite repeated demands for the return of the money, the defendant refused to return it. The court found that the defendant’s conduct was wrongful and without justification. Finally, the court found that the plaintiffs were harmed when they were deprived of their property. After our review of the record, we conclude that all of those findings are supported by the evidence in the record and thus are not clearly erroneous. Therefore, under the facts and circumstances of this case, the court’s conclusion that the defendant converted the plaintiffs’ money was correct as a matter of law.

VII

The defendant’s final claim is that the court improperly awarded interest to the plaintiffs. The defendant presents its claim in two parts. The defendant first claims that the court improperly awarded interest on part or all of the plaintiffs’ deposit. Second, the defendant claims that the court improperly awarded offer of judgment interest to the plaintiffs until the date of satisfaction of the judgment. We disagree with the first claim and agree with the second. We will address the defendant’s claims in turn.

A

The defendant first argues that because a genuine dispute existed as to whether it was entitled to the funds and because it was entitled to keep at least a portion of the down payment, the court should not have calculated the interest based on the entire $74,650 that was due the plaintiffs. The defendant’s claim is without merit.

General Statutes § 37-3a provides that interest may be recovered and allowed in civil actions as damages for the detention of money after it becomes payable. “It is clear that Connecticut case law establishes that prejudgment interest is to be awarded if, in the discretion of the trier of fact, equitable considerations deem that it is warranted.” (Internal quotation marks omitted.) Hoye v. DeWolfe Co., 61 Conn. App. 558, 564, 764 A.2d 1269 (2001). As we previously have determined in this opinion, the court properly concluded as a matter of law that the plaintiffs were entitled to the return of their deposit in the amount of $74,650. The court also determined that the defendant’s conduct was wrongful and meant to punish the plaintiffs. Furthermore, the court determined that the defendant was not entitled to the setoffs that it had claimed. Those findings by the court were supported by the facts in the record. Therefore, we conclude that the court did not abuse its discretion when it awarded prejudgment interest on the $74,650.

B

The defendant also claims that the court improperly stated in its memorandum of decision that the plaintiffs were entitled to offer of judgment interest through the date of satisfaction of the judgment. The plaintiffs concede in their brief that the court’s statement to that effect is incorrect. They note, however, that the court’s award of offer of judgment interest through the date of judgment was proper. We agree that the court improperly stated in its memorandum of decision that offer of judgment interest was payable through the date of satisfaction of the judgment, but we also conclude that the court properly awarded offer of judgment interest through to the date of judgment.

The following additional facts and procedural history are necessary for our resolution of this claim. On September 23, 1999, the plaintiffs filed an offer of judgment pursuant to General Statutes § 52-192a in the amount of $69,500. The defendant did not respond to the offer, and the plaintiffs subsequently recovered an amount greater than the amount proffered in the offer of judgment. The court found that the plaintiffs were entitled to $20,066.03 in offer of judgment interest. In its memorandum of decision, the court stated that “the plaintiffs Robert Aubin and Denyse Aubin are entitled to offer of judgment interest through the date of satisfaction of judgment.”

“The question of whether the trial court properly awarded interest pursuant to § 52-192a is one of law subject to de novo review.” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 55, 717 A.2d 77 (1998). It is well established that “[sjection 52-192a provides for interest until the date of judgment.” Paulus v. LaSala, 56 Conn. App. 139, 151, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000); see also Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 55. “Section 52-192a (b) requires a trial court to award interest to the prevailing plaintiff from the date of the filing of a complaint to the date of judgment whenever: (1) a plaintiff files a valid offer of judgment within eighteen months of the filing of the complaint in a civil complaint for money damages; (2) the defendant rejects the offer of judgment; and (3) the plaintiff ultimately recovers an amount greater than or equal to the offer of judgment. . . . The purpose of § 52-192a is to encourage pretrial settlements by penalizing a party that fails to accept a reasonable offer of settlement in any civil action based upon contract or seeking the recovery of money damages.” (Citation omitted; internal quotation marks omitted.) Lakeview Associates v. Woodlake Master Condominium, Assn., Inc., 239 Conn. 769, 783-84 n.22, 687 A.2d 1270 (1997). “The mies of § 52-192a determine prejudgment interest, the interest from the date when the offer of judgment was filed until the date of judgment. Thereafter, [the plaintiffs are] entitled to interest at the rate of [10] percent on whatever amounts remain unpaid on the judgment rendered in [their] favor. . . . This postjudgment interest is authorized by General Statutes § 37-3a.” (Citation omitted; internal quotation marks omitted.) O’Leary v. Industrial Park Corp., 211 Conn. 648, 653, 560 A.2d 968 (1989).

Here, the court misstated in its memorandum of decision that the plaintiffs were entitled to offer of judgment interest through the date of satisfaction of the judgment. Interest payable after the judgment would be at the rate of 10 percent pursuant to § 37-3a. See id. We conclude, however, that the court properly awarded offer of judgment interest from the date of the complaint until the date of judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because the named defendant is not involved in this appeal, we refer in this opinion to the defendant Munson Builders, Inc., as the defendant.

       An organizational announcement by Reader’s Digest stated: “I regret to announce that Robert Aubin, president of Reader’s Digest U.S.A., is leaving the company for personal reasons related to the complexities of his family’s relocation to the United States.”

       Paragraph twenty-two of the sales agreement incorporated the purchasers’ rider into the agreement.

       The defendant does not raise the issue of whether the court made any computational errors in applying the formula it used in awarding interest to the plaintiffs. Therefore, we will not address whether the court’s mathematical calculation was correct.

       General Statutes § 37-3a provides in relevant part: “Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. ...”

       General Statutes § 52-192a provides: “(a) After commencement of any civil action based upon contract or seeking the recovery of money damages, whether or not other relief is sought, the plaintiff may before trial file with the clerk of the court a written ‘offer of judgment’ signed by him or his attorney, directed to tire defendant or his attorney, offering to settle the claim underlying the action and to stipulate to a judgment for a sum certain. The plaintiff shall give notice of the offer of settlement to the defendant’s attorney, or if the defendant is not rejtresented by an attorney, to the defendant himself. Within thirty days after being notified of the filing of the ‘offer of judgment,’ and prior to the rendering of a verdict, by the jury or an award by the court, the defendant or his attorney may file with the clerk of the court a written ‘acceptance of offer of judgment’ agreeing to a stipulation for judgment as contained in plaintiff’s ‘offer of judgment’. Upon such filing, the clerk shall enter judgment immediately on the stipulation. If the ‘offer of judgment’ is not accepted within thirty days and prior to the rendering of a verdict by the jury or an award by the court, the ‘offer of judgment’ shall be considered rejected and not subject to acceptance unless refiled. Any such ‘offer of judgment’ and any ‘acceptance of offer of judgment’ shall be included by the clerk in the record of the case.
      “(b) After trial the court shall examine the record to determine whether the plaintiff made an ‘offer of judgment’ which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain stated in his ‘offer of judgment’, the court shall add to the amount so recovered twelve per cent annual interest on said amount, computed from the date such offer was filed in actions commenced before October 1, 1981. In those actions commenced on or after October 1, 1981, the interest, shall be computed from the date the complaint in the civil action was filed with the court if tire 'offer of judgment’ was filed not later than eighteen months from the filing of such complaint. If such offer was filed later than eighteen months from the date of filing of the complaint, the interest shall be computed from the date the ‘offer of judgment’ was filed. The court may award reasonable attorney’s fees in an amount not to exceed three hundred fifty dollars, and shall render judgment accordingly. This section shall not be interpreted to abrogate the contractual rights of any party concerning the recovery of attorney’s fees in accordance with the provisions of any written contract between the parties to the action.”

       We note that the rate of interest under § 37-3a is not a fixed rate, but rather is the maximum rate of interest that a trial court, in its discretion, can award. See Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 765, 699 A.2d 81 (1997).


author: Per Curiam.

text:
    STATE OF CONNECTICUT v. DOUGLAS J. MYERS
    (AC 20412)
    Schaller, Dranginis and Flynn, Js.
    Argued May 29 —
    officially released July 3, 2001
   Per Curiam.

The judgment is affirmed.


text:
    PATRICIA PESZYNSKI v. HARTFORD INSURANCE COMPANY OF THE MIDWEST
    (AC 20584)
    Schaller, Dranginis and Flynn, Js.
    Argued May 29 —
    officially released July 3, 2001
   Per Curiam.

The judgment is affirmed.


text:
    MILFORD BEACH ASSOCIATES v. ROBERT HEYER ET AL.
    (AC 20868)
    Landau, Spear and Mihalakos, Js.
    Argued June 4 —
    officially released July 3, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CHARLES BROWN
    (AC 20441)
    Lavery, C. J., and Foti and Schaller, Js.
    Argued June 5 —
    officially released July 3, 2001
   Per Curiam.

The judgment is affirmed.


text:
    CHARLES D. GIANETTI v. THOMAS FISCHETTI
    (AC 21066)
    Foti, Schaller and Dupont, Js.
    Argued June 5 —
    officially released July 3, 2001
   Per Curiam.

The judgment is affirmed.


text:
    JANIE LEE PALMIERI v. DIANA M. LEE ET AL.
    (AC 20802)
    Lavery, C. J., and Mihalakos and O’Connell, Js.
    Argued June 6 —
    officially released July 3, 2001
   Per Curiam.

The judgment is affirmed.


text:
    ROBERT ROBBINS, EXECUTOR (ESTATE OF JOAN ROBBINS) v. CHARLES N. LEACH, JR., ET AL.
    (AC 20310)
    Spear, Mihalakos and Flynn, Js.
    Argued June 7 —
    officially released July 3, 2001
   Per Curiam.

The judgment is affirmed.


text:
    DANIEL DUMONT v. UBC, INC.
    (AC 20912)
    Foti, Dranginis and Hennessy, Js.
    Argued June 7 —
    officially released July 3, 2001
   Per Curiam.

The judgment is affirmed.


text:
    BRIAN GILLESPIE v. COMMISSIONER OF CORRECTION
    (AC 20682)
    Landau, Mihalakos and Dranginis, Js.
    Argued June 11 —
    officially released July 10, 2001
   Per Curiam.

The judgment is affirmed.


text:
    DUFFY STARKS v. COMMISSIONER OF CORRECTION
    (AC 19930)
    Foti, Landau and Flynn, Js.
    Submitted on briefs June 13 —
    officially released July 10, 2001
   Per Curiam.

The judgment is affirmed.


text:
    SHAWN NEWSOME v. COMMISSIONER OF CORRECTION
    (AC 20915)
    Foti, Landau and Flynn, Js.
    Submitted on briefs June 13 —
    officially released July 10, 2001
   Per Curiam.

The appeal is dismissed.


text:
    VINCENT DELLAVENTURA v. COMMISSIONER OF MOTOR VEHICLES
    (AC 21383)
    Lavery, C. J., and Dranginis and O’Connell, Js.
    Submitted on briefs June 13 —
    officially released July 10, 2001
   Per Curiam.

-The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CYNTHIA KRAJEWSKI
    (AC 20776)
    Foti, Spear and Flynn, Js.
    Argued June 11 —
    officially released July 10, 2001
   Per Curiam.

The judgment is affirmed.


text:
    CHARLES D. TYSON III v. COMMISSIONER OF CORRECTION
    (AC 20460)
    Schaller, Spear and Mihalakos, Js.
    Submitted on briefs June 13 —
    officially released July 10, 2001
   Per Curiam.

The judgment is affirmed.