text:
    ALDIN ASSOCIATES LIMITED PARTNERSHIP v. MICHAEL P. HEALEY ET AL.
    (AC 21742)
    Lavery, C. J., and Bishop and West, Js.

      Argued May 7
    officially released September 17, 2002

      Kenneth M. Potash, for the appellants (defendants).
   Opinion

WEST, J.

The defendants, Michael P. Healey and Henry F. Healey, Jr., appeal from the judgment of the trial court modifying the prior judgment that confirmed an arbitration award and awarding the plaintiff $3800. The defendants claim that the court improperly modified the judgment by ordering them to pay $3800 where the arbitration award provided for an award of either $1000 or $5000 and where the parties further had stipulated in their submission to the court that the award would be either $1000 or $5000. We agree with the defendants and reverse the judgment of the trial court.

The following facts are necessary for our resolution of the defendants’ appeal. On July 18,1985, the plaintiff, as tenant, and the defendants, as landlords, entered into a lease of a gasoline station. After the expiration of the lease, a dispute arose over a canopy that was located on the premises and owned by the plaintiff. The parties agreed that the canopy could remain on the property and that the defendants would pay the plaintiff for it. When the parties could not agree on a price, they submitted their dispute to binding arbitration pursuant to the terms of their lease agreement. The arbitrators issued their award on May 1, 1998. They awarded the plaintiff, in the alternative, $1000 in the event that the canopy was fixed directly into a concrete base or $5000 in the event that the canopy was bolt mounted. The arbitrators did not make a finding as to which, if either, of those two methods of installation had in fact been used to secure the canopy.

On August 14, 1998, the plaintiff filed an application to vacate the arbitration award on the ground that the parties could not agree whether the canopy was bolt mounted or fixed directly into a concrete base and that the matter therefore could not be resolved. The defendants objected to the application, arguing that it was not filed timely, and filed a motion to confirm the arbitration award. The court heard argument on the motion to confirm the award on February 22, 1999. The court denied as untimely the plaintiffs application to vacate the award and, on March 1, 1999, granted the defendants’ motion to confirm the award. The plaintiff thereafter attempted to execute on the judgment in the amount of $5000. On July 28, 1999, the defendants filed an objection to the plaintiffs postjudgment remedies and interrogatories. The plaintiff filed a motion in reply to the defendants’ objection, requesting that it be permitted to execute on the judgment in the amount of $5000. The court granted the plaintiffs motion on October 10, 1999.

On November 8, 1999, the defendants filed a motion to open and to vacate the judgment, and to reconsider the court’s decision granting permission to the plaintiff to execute on the judgment in the amount of $5000. The plaintiff objected, claiming that the proper procedural vehicle to contest the amount of damages would be through a hearing in damages. The court agreed with the plaintiff and on February 26, 2001, held an evidentiary hearing to determine the proper amount of damages. The court found that the arbitrators’ framing of the factual predicate underpinning their alternative awards did not accurately reflect the manner in which the canopy actually was secured. Specifically, the court found that the canopy was both bolt mounted and fixed in concrete and that, accordingly, those two circumstances could not be alternatives to each other. In light of its findings, the court concluded that the appropriate compensation due the plaintiff would fall between the two extremes determined by the arbitration panel and ordered the defendants to pay $3800 to the plaintiff. This appeal followed.

The defendants claim that the court improperly modified the judgment confirming the arbitration award and ordered them to pay $3800 to the plaintiff where the arbitration award itself called for a judgment in the amount of either $1000 or $5000 and the submission of the issue to the court stipulated that the award would be either $1000 or $5000. We agree.

Generally, the court’s authority to open and modify a judgment is governed by General Statutes § 52-212a, which provides in relevant part that “[ujnless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . . The parties may waive the provisions of this section or otherwise submit to the jurisdiction of the court . . . .” In the present case, the record indicates that the parties did consent to the court’s determination of the proper amount of damages to be awarded pursuant to the confirmed arbitration award.

Although ordinarily, the parties may consent to the opening and modification of a judgment, we are persuaded that a different, standard should be applied in circumstances where the judgment at issue is not an “independent” judgment of the court, but is simply a judgment in confirmation of an arbitration award. Such judgments are confined by their very nature to the terms of the arbitration award. Consideration for the principles of judicial economy undergirding legislative and judicial support for arbitration as a substitute for litigation; see Local 1042, Council 4, AFSCME, AFL-CIO v. Board of Education, 66 Conn. App. 457, 461-62, 784 A.2d 1018 (2001) (arbitration favored means for settling disputes); 6 C.J.S., Arbitration § 2 (1975) (arbitration is substitute for rather than prelude to litigation and where agreement provides for arbitration, that is forum for dispute, not court); persuades us that a better approach is to hold judgments in confirmation of an arbitration award to the same strict standard of review as that applied to judicial modification of the arbitration award itself. Any other approach would allow the parties to circumvent the established statutory scheme governing the review of arbitration awards by permitting them to modify the terms of the judgment on the award when they could not otherwise alter or modify the terms of the award itself. Accordingly, we will review the action of the court in opening and modifying its judgment confirming the arbitration award as if that action had been directed at the arbitration award itself.

The Superior Court’s authority to vacate or modify an arbitration award is restricted to the grounds delineated in General Statutes §§ 52-418 and 52-419. General Statutes § 52-420 further limits the authority of the court to act on an application to vacate or to modify an arbitration award filed beyond thirty days from the notice of the award. After that thirty day period has expired, the court is required to confirm the arbitration award on the application or motion of a party filed within one year of the award.

Although the court may not modify the terms of the arbitration award after the expiration of the thirty day period provided by § 52-420, once the award is confirmed, the court possesses inherent authority to enforce the terms of the judgment by appropriate post-judgment orders. See AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 249, 796 A.2d 1164 (2002). Thus, the propriety of the court’s action in the present case will turn, in the first instance, on the question of whether its action was an effectuation of the arbitration award or a modification of that award.

Although the forum in which the court acted was styled a “hearing in damages,” the court’s action in setting the appropriate amount of compensation at $3800 essentially operated as a modification of the judgment confirming the arbitration award. The arbitration award did not provide for an award between $1000 and $5000; it provided for an award of either $1000 or $5000. Thus, the court’s judgment modified an essential element of the arbitration award going to the merits of the parties’ submission. Although the court found that the factual presumption relied on by the arbitrators, specifically, that the canopy either was bolt mounted or fixed in concrete, was apparently erroneous, that factual determination was wholly within the scope of the submission to the arbitration panel and, consequently, may not be reviewed by the court. See Con necticut Ins. Guaranty Assn. v. Zasun, 52 Conn. App. 212, 229, 725 A.2d 406 (1999); see also Board of Education v. Hartford Federation of School Secretaries, 26 Conn. App. 351, 353, 600 A.2d 1053 (1992) (court may not review arbitration award for errors of law, fact).

The judgment is reversed and the case is remanded for further proceedings on the defendants’ motion to open the judgment and to reconsider the order of execution.

In this opinion the other judges concurred.

       We note that in the heading introducing their principal argument in their brief to this court, the defendants’ claim reads: “The trial court erred in modifying the arbitration award and awarding $3800 to the plaintiff, when the arbitration award called for $1000 or $5000 and the parties stipulated that the award would be $1000 or $5000.” (Emphasis added.) In their preliminary statement of the issues, however, the defendants’ claim is more general in that it raises the question, “Did the trial court err in awarding $3800 to the plaintiff when the arbitration award called for $1000 or $5000, and the parties agreed that the figure would be $1000 or $5000.” On the basis of the procedural history of the case at the trial level, we adhere to the spirit of the defendants’ claim as set forth in their preliminary statement of the issues and interpret the defendants’ appeal as challenging the court’s modification of the judgment confirming the arbitration award.
      The defendants also claim on appeal that the court improperly allowed testimony from an expert witness who never had been disclosed to them, based its decision on speculative testimony and allowed evidence that was beyond the scope of the arbitration. Because we conclude that the court did not have the authority to modify the judgment confirming the arbitration award and because that is dispositive of this appeal, we need not address the additional claims raised by the defendants.

       The parties’ lease agreement states that “[ajny dispute arising under this lease shall be settled by arbitration in accordance with the rules then prevailing of the American Arbitration Association. The Landlord and Tenant shall each choose an arbitrator, and the two arbitrators thus chosen shall select a third arbitrator. The findings and award of the three arbitrators thus chosen shall be final and binding on the parties hereto. Each party shall pay its own costs in connection with such arbitration. The fees of the third arbitrator shall be borne equally by the Landlord and Tenant.”

       General Statutes § 52-420 (b) provides: “No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who maltes the motion.”

       General Statutes § 52-417 allows one year for the filing of applications to confirm arbitration awards.

       In reaching its conclusion, the court inferred that the amounts awarded by the arbitration panel were meant to reflect the relative difficulty of removing the canopy depending on which of the two installation methods, bolt mounting or fixing in concrete, had been used. The court reasoned that a less difficult removal would make the canopy more valuable to the plaintiff while a more difficult removal would reduce that value. The court concluded that because the bolts by which the canopy was primarily mounted were covered by only several inches, as opposed to feet, of concrete, the situation more closely resembled the “easier to remove” scenario envisioned by the panel. Accordingly, the court’s award, while falling between the two alternatives awarded by the panel, was closer to the $5000 award than it was to the $1000 award.

       That standard also is set forth in Practice Book § 17-4.

       Despite the plaintiffs opposition to the defendants’ motion to open the judgment and to reconsider the order granting the plaintiff permission to execute on the judgment in the amount of $5000, the plaintiff itself requested that the matter be determined through a hearing in damages. Thereafter, the parties agreed to submit to the court the question of which of the two alternative amounts awarded by the arbitration panel was appropriate, $1000 or S5000.

       Our decision should not be read to diminish the inherent power and control that the courts exercise over their own judgments. See AvalonBay Communities, Inc. v. Plan & Zoning Commission, 260 Conn. 232, 241, 796 A.2d 1164 (2002) (courts possess continuing jurisdiction to effectuate prior judgments). We are mindful, however, of the potential for an unbridled discretion, exercised merely at the consent of the parties, to expand the judicial role in postarbitral proceedings beyond that contemplated by the legislative arbitration scheme itself. The purpose to be served by bringing arbitration awards within the ambit of the judicial system is to back an award with a meaningful power of enforcement. The goal is not to give parties a second bite at the apple by permitting them further opportunities to modify the essential terms of an award.

       General Statutes § 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”
      General Statutes § 52-419 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order modifying or correcting the award if it finds any of the following defects: (1) If there has been an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the award; (2) if the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted; or (3) if the award is imperfect in matter of form not affecting the merits of the controversy.”

       Prior to confirmation, enforcement of an arbitration award relies solely on the parties’ voluntary compliance. Confirmation of an arbitration award converts it into an enforceable judgment of the Superior Court. It is in part that ability to have an award confirmed that has encouraged parties to submit to this informal method of dispute resolution. See comment, “Arbitration in Connecticut: Issues in Judicial Intervention Under the Connecticut Arbitration Statutes,” 17 Conn. L. Rev. 387, 388 (1985).

       We recognize that because no appeal was taken timely from the court’s denial of the plaintiffs application to vacate the award, that outcome leaves the parties with an arbitration award, and an ensuing judgment, arguably indefinite in its terms. It is not the function of this court, however, to leap jurisdictional barriers simply to aid the parties to reach closure.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    JOHNSON ELECTRIC COMPANY, INC. v. SALCE CONTRACTING ASSOCIATES, INC.
    (AC 21509)
    Schaller, Mihalakos and Peters, Js.

      Argued May 28
    officially released September 17, 2002

      Anthony R. Minchella, with whom, on the brief, was Maximino Medina, Jr., for the appellant (plaintiff).

      Paul A. Sobel, for the appellee (defendant).
   Opinion

PETERS, J.

Our Unfair Trade Practices Act, General Statutes § 42-110a et seq. (CUTPA), provides a remedy for a person who has sustained an ascertainable loss as a result of conduct that is immoral, unethical, oppressive or unscrupulous. The CUTPA claimant in this case is a subcontractor that was denied a subcontract even though the subcontractor had been named in the successful bid proposal of the general contractor. An attorney trial referee, relying on his extensive findings of fact, issued a report concluding that the subcontractor had proven a CUTPA violation. The trial court rejected the report of the attorney trial referee. The most important issue in this case is whether, as a matter of statutory interpretation, CUTPA requires a claimant to prove not only misconduct, but also a repeated course of misconduct. Because we agree with the claimant that a single instance of misconduct may be actionable, we reverse the judgment of the trial court.

The plaintiff subcontractor, Johnson Electric Company, Inc., filed a complaint against the defendant general contractor, Salce Contracting Associates, Inc., in which it alleged that the defendant had violated CUTPA by failing to award it a subcontract to do the electrical work on a Bridgeport school project. Despite the fact that the school project required a general contractor to “name its subs,” the defendant denied that it owed any duty to the plaintiff. The trial court, without expressly challenging the findings of Mark J. Rosen, an attorney trial referee to whom the case had been referred, concluded that the plaintiff had not proven its CUTPA claim.

The plaintiffs appeal challenges the validity of the trial court’s judgment with respect to both its fact-finding and its legal conclusions. Our basic standard of review of such claims is well established. “To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 122, 788 A.2d 83 (2002); Coady v. Martin, 65 Conn. App. 758, 764, 784 A.2d 897 (2001), cert. denied, 259 Conn. 905, 789 A.2d 993 (2002). We agree with the plaintiff in both respects.

I

FACTUAL FINDINGS

The trial court’s findings of fact were based entirely on the record of the proceedings before the attorney trial referee. Under these circumstances, application of the “clearly erroneous” test must reflect the special rules that govern judicial review of a report of an attorney referee. “While the reports of [attorney trial referees] in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based upon evidence, in the absence of errors of law, and the parties have no right to demand that the court shall redetermine the fact thus found. ... A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. . . . This court has articulated that attorney trial referees and factfinders share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.” (Citation omitted; internal quotation marks omitted.) Killion v. Davis, 257 Conn. 98, 102, 776 A.2d 456 (2001), quoting Elgar v. Elgar, 238 Conn. 839, 848-49, 679 A.2d 937 (1996); Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508, 508 A.2d 415 (1986). “[T]he trial court may not retry the case and pass on the credibility of the witnesses . . . .” Post Road Iron Works, Inc. v. Lexington Development Group, Inc., 54 Conn. App. 534, 541, 736 A.2d 923 (1999).

In accordance with this road map, to determine the propriety of the fact-finding of the trial court, we first must examine the fact-finding of the attorney trial referee. These facts are recited in the report that the plaintiff asked the court to accept.

The attorney trial referee made the following findings. He found that (1) the defendant, in its bid solicitation to construct the school, named the plaintiff as its electrical subcontractor because the municipality required all bids to “name your sub”; (2) in its bid solicitation, the defendant submitted a price for electrical work that was higher than the price that the plaintiff had quoted to the defendant; (3) subsequent to the award of the construction contract to the defendant, the defendant asked the plaintiff to reduce its price to reflect a lower bid price that the plaintiff had offered to a competing general contractor; and (4) the defendant, having failed to receive the requested price reduction, entered into an electrical subcontract with another subcontractor.

With respect to the plaintiffs CUTPA claim, the attorney trial referee further found that the plaintiff “routinely provide[d] different bids to different general contractors based on a consideration of multiple factors including prior experience with different general contractors.” He found that it was industry practice that the named subcontractors actually receive the work. He also found that it was unethical, unfair and inconsistent with normal industry practice for a contractor to engage in “bid shopping” among nonlisted subcontractors. Finally, he found that the defendant knew that the bid solicitation had a “name your sub” requirement.

Neither the trial court nor the defendant has challenged any of these findings of fact as being clearly erroneous. Instead, the court and the defendant have added facts that the attorney trial referee’s report did not include. Only the court had the authority to add facts and its authority had to be exercised in accordance with Practice Book § 19-17 (b). Pursuant to that section, the court could add a fact only if it was “admitted or undisputed . . . .”

We agree with the plaintiff that the court exceeded its authority. The court added two findings of fact. One was that the defendant’s request to the plaintiff to lower its bid price was neither unfair nor coercive. The other was that the defendant had not been treated fairly and equally by the plaintiff. Our review of the report of the attorney trial referee and the testimony on which the report relies persuades us that neither of these added facts can accurately be characterized as admitted or undisputed. We will not consider them further.

The defendant does not claim that it had any authority to add findings to the report of the attorney trial referee. An appeal is not a trial de novo. Nonetheless, the defendant relies on testimony that is not reflected in the findings of fact of the attorney trial referee. To state the obvious, the attorney trial referee was not obligated to make additional findings, just as he was not obligated to find credible the testimony of the defendant’s witnesses. No one other than the attorney trial referee is authorized to assess the credibility of the witnesses who appear before him. Post Road Iron Works, Inc. v. Lexington Development Group, Inc., supra, 54 Conn. App. 541.

We must, therefore, disregard the defendant’s repeated assertions, throughout its appellate brief, that the plaintiffs conduct was inequitable. On the record, it was not inequitable for the plaintiff to consider economic circumstances when it calculated the bid price that it quoted to the defendant. The plaintiff was not found to have engaged in bid rigging. The defendant’s statements to the contrary serve only to confuse.

We conclude, therefore, that the findings of fact contained in the report of the attorney trial referee are dispositive. Our review of the legal conclusions of the trial court must be based on these findings and no others.

II

CUTPA VIOLATION

As a matter of law, to establish a CUTPA violation, the plaintiff had to establish that it was injured by “unfair or deceptive acts or practices in the conduct of any trade or commerce.” General Statutes § 42-110b (a). The attorney trial referee so concluded.

The defendant maintains that the trial court properly came to the opposite conclusion. According to the court and the defendant, even if the refusal to enter into a subcontract with the plaintiff did not comport with an established trade practice and even if the plaintiffs conduct was entirely proper, the plaintiff has not satisfied the conditions that limit CUTPA relief. We disagree.

The court concluded that CUTPA was inapplicable because the dispute between the parties involved only (1) a single isolated instance that (2) did not implicate any specific and substantial public purpose. Because the court’s conclusions concerned issues of law, our review is plenary. In our view, these objections to the report of the attorney trial referee are not well founded.

A

Single Incident

The trial court held that, because the plaintiff did not prove that the defendant had engaged in a repeated course of misconduct, the plaintiff did not establish that the defendant violated CUTPA. The court characterized the present case as no more than a fact bound isolated incident. In the court’s view, in order to prevail, the plaintiff would have had to show that this defendant regularly called the plaintiff “for the same bid price that [the plaintiff] gave to other competing general contractors.”

Whether CUTPA applies to a single act of misconduct is a question of first impression. Our Supreme Court has not addressed it directly. The trial courts are divided. In the absence of applicable common-law principles, the scope of General Statutes § 42-1 lOg (a) is entirely a question of statutory interpretation.

Well established principles of statutory interpretation require us to engage in “a reasoned search for the intention of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Connelly v. Commissioner of Correction, 258 Conn. 394, 403, 780 A.2d 903 (2001); Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 26, 717 A.2d 77 (1998); Kindl v. Dept. of Social Services, 69 Conn. App. 563, 567, 795 A.2d 622 (2002).

Textually, § 42-1 lOg (a) describes those who are eligible to bring a CUTPA action as “[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b . . . .” (Emphasis added.) The use of “practice” as well as “act” is indicative of an intent to make the statute applicable to a single act of misconduct. This interpretation is consistent with § 42-110b (d), which expresses the intent of the legislature that, as a remedial statute, CUTPA is to be interpreted broadly.

The legislative history of § 42a-110g (a) is entirely consistent with the instruction stated in § 42-110b (d). On several occasions, the legislature has amended the statute so as to broaden its application. In 1975, the legislature deleted a notice requirement. In 1979, the legislature deleted a privity requirement. In 1984, the legislature added language to clarify that a claimant need not prove a public interest or a public injury. To the best of our knowledge, it had never amended CUTPA so as to limit its coverage.

It is true, as the defendant notes, that § 42-110g (a) refers to §42-110b, which speaks, in the plural, of deceptive “acts” or “practices.” We are persuaded that our interpretation of § 42-1 lOg (a) can be reconciled with § 42-110b. In describing the kinds of conduct that CUTPA forbids, the legislature naturally described such conduct in the plural. When it came to defining the terms of the conduct that was actionable, the legislature naturally was more precise. It not only used the word “act” in the singular but also provided relief for a “practice.” We do not disregard any part of a statute. “Every word and phrase is presumed to have meaning, and we do not construe statutes so as to render certain words and phrases surplusage.” State v. Walton, 41 Conn. App. 831, 842-43, 678 A.2d 986 (1996), citing Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 16, 615 A.2d 1032 (1992); see Vibert v. Board of Education, 260 Conn. 167, 176, 793 A.2d 1076 (2002).

Finally, our interpretation follows the accepted principle that, in case of doubt, the more specific statutory provision takes priority over one that is more general. Velez v. Commissioner of Correction, 250 Conn. 536, 550, 738 A.2d 604 (1999); Commission on Human Rights & Opportunities v. Truelove & Maclean, Inc., 238 Conn. 337, 346, 680 A.2d 1261 (1996); Coregis Ins. Co. v. Fleet National Bank, 68 Conn. App. 716, 720, 793 A.2d 254 (2002). It is § 42a-110g that specifically describes a CUTPA cause of action.

Our interpretation of § 42a-110g is supported by case law in which, albeit without discussion of the issue, CUTPA has been held to apply to a single act of misconduct. Our Supreme Court so held in Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 259, 550 A.2d 1061 (1988), in which that court found that the single act of dismantling a mobile home violated CUTPA. This court, again without statutory analysis, came to a similar conclusion in Lester v. Resort Camplands Interna tional, Inc., 27 Conn. App. 59, 71, 605 A.2d 550 (1992) (single controversy about space in a campground). We know of no appellate case to the contrary and the defendant has cited none.

To supplement its argument about the significance of the language used in § 42-110b, the defendant reminds us that the legislature has instructed us to be guided by the law of unfair trade practices under § 5 (a) (1) of the Federal Trade Commission Act, 15 U.S.C. § 45 (a) (1). Federal law speaks of unfair trade practices in the plural. The defendant maintains that we should do the same. We disagree.

Although the guidance provided by federal law will often be enlightening, federal law is not a straightjacket. In Caldor, Inc. v. Heslin, 215 Conn. 590, 577 A.2d 1009 (1990), cert. denied, 498 U.S. 1088, 111 S. Ct. 966, 112 L. Ed. 2d 1053 (1991), our Supreme Court held that that the judgments of our courts are not limited by § 5 of the Federal Trade Commission Act. “As originally enacted, [CUTPA] provided that state unfair or deceptive acts or practices were to be those determined to be unfair or deceptive by the [Federal Trade Commission] or the federal courts. 1973 Pub. Acts 615, § 2 (a). However, the Act was amended in 1976 to provide only that courts in Connecticut [and the department of consumer protection] were to be ‘guided by’ federal interpretations of § 5 of the [Federal Trade Commission Act]. The purpose of the change apparently was to permit . . . practices which had not yet been specifically declared unlawful by federal authorities to be nevertheless unlawful under CUTPA. . . . Bailey Employment System, Inc. v. Hahn, 545 F. Sup. 62, 71 (D. Conn. 1982) [aff'd, 723 F.2d 895 (2d Cir. 1983)].” (Internal quotation marks omitted.) Caldor, Inc. v. Heslin, supra, 598. In other words, federal law sets a floor for Connecticut law, but not a ceiling.

We conclude, therefore, that the trial court improperly declined relief to the plaintiff on the ground that it had alleged and proven only a single act of misconduct. We reiterate that CUTPA is a remedial statute. If there were any plausible doubt about the conduct that the statute makes actionable, the remedial purpose of the statute persuades us that such doubts should be set aside to permit recovery by the plaintiff.

B

Public Interest

The court concluded that CUTPA provides relief only if a plaintiff can demonstrate that its claim implicates a “substantial public interest.” The court came to this conclusion because of the holding of our Supreme Court in Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 461 A.2d 1369 (1983). That case is no longer good law. As the defendant belatedly concedes, the need to show a substantial public interest has been eliminated by the enactment of the 1984 amendment of § 42-110g (a).

C

Ascertainable Loss

In addition to its conclusions about the kinds of transactions that fall within CUPTA, the court also concluded that the plaintiff could not succeed because it did not meet the requirements for relief that are stated in CUTPA. The court held that, as a matter of law, the plaintiff had failed to prove an ascertainable loss. Such proof is required by § 42-110g (a).

The attorney trial referee found that the plaintiff had submitted to the defendant a bid proposal in the amount of $596,950. The attorney trial referee further found that, in arriving at this bid figure, the plaintiff had followed its usual procedures. The plaintiffs president testified that its standard profit margin was 8 percent of the price quoted to the general contractor. The attorney trial referee determined that, at a later time, it would hear “further argument concerning the basis for the plaintiffs assertion of 8 percent profit and $4000 to $5000 of cost of preparation of the bid.” It bears remembering that, once a CUTPA violation is established, a claimant may recover not only actual damages, but also costs and attorney’s fees. General Statutes § 42-1 lOg (d).

Neither the trial court nor the defendant has questioned the propriety of holding a supplemental hearing in damages. This acquiescence implies that there is no question that the attorney trial referee was satisfied that the plaintiff had sufficiently demonstrated that it had suffered an ascertainable loss.

The court, however, concluded that the report of the attorney trial referee should not be accepted because the record was “void of any ascertainable loss of money . . . .” In the words of the court, “8 percent profit margin does not prove ascertainable damages in this case. Further, the various bids, which were substantially different, by [the plaintiff] for identical electrical work for this project fundamentally belies this suggestion. The suggested cost of preparing a bid merely is a usual cost of business and cannot be charged as damages in this case. [The plaintiff] would have incurred this cost whether he did the work or not. The plaintiff has failed to prove ascertainable damages.”

The court improperly relied on factual assumptions that have no grounding in the findings contained in the report of the attorney trial referee. More important, under our case law, proof of an ascertainable loss does not require quantification of the loss that a CUTPA claimant has suffered. “[T]he words ‘any ascertainable loss’ ... do not require a plaintiff to prove a specific amount of actual damages in order to make out a prima facie case. . . . Under CUTPA, there is no need to allege or prove the amount of the ascertainable loss.” (Citations omitted.) Hinchliffe v. American Motors Corp., 184 Conn. 607, 612-14, 440 A.2d 810 (1981); see also Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 79, 717 A.2d 724 (1998). On its face, the loss of a contract is an ascertainable loss.

Paradoxically, the defendant also relies on Hinchliffe. The defendant reminds us that Hinchliffe held that an ascertainable loss must be “of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b . . . .” (Emphasis added; internal quotation marks omitted.) Hinchliffe v. American Motors Corp., supra, 184 Conn. 612. The defendant focuses on the fact that the plaintiff did not prove a breach of contract. Without a contract, according to the defendant, the plaintiffs loss of profits was not caused by the defendant. Without a contract, the defendant did not cause the plaintiff to lose preparatory costs because the plaintiff was free to offer its electrical services to other general contractors.

The flaw in this argument is that it assumes an identity between contracts law and CUTPA law. More specifically, it assumes that conduct consisting of the unjustified failure to enter into a contract can never be conduct that causes losses that are cognizable under CUTPA. Hinchliffe does not say that, and the defendant has not cited any other case that supports its argument.

Ill

ALTERNATE GROUNDS FOR AFFIRMANCE OF THE JUDGMENT

The defendant maintains that we should affirm the judgment of the trial court also on the basis of issues that the court did not address. According to the defendant, the record establishes alternate grounds for affirmance because, as a matter of law, the “undisputed facts” are insufficient to establish a CUTPA claim. Our review is plenary. Elm Street Builders, Inc. v. Enterprise Park Condominium Assn., Inc., 63 Conn. App. 657, 669, 778 A.2d 237 (2001).

The defendant advances four arguments: (1) the defendant’s conduct did not meet the CUTPA unfairness standard; (2) the defendant’s conduct was merely passive in refraining from doing an act it had no legal duty to perform; (3) the court lacked sufficient evidence to award damages to the plaintiff; and (4) the plaintiffs bids to general contractors were rigged to the defendant’s disadvantage. We are not persuaded.

The defendant’s first claim is that the defendant’s conduct was not actionable under CUTPA because it did not fit within the criteria for misconduct that are described by the so-called “cigarette rule.” See McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 567-68, 473 A.2d 1185 (1984); Conaway v. Prestia, 191 Conn. 484, 492-93, 464 A.2d 847 (1983). As the attorney trial referee noted, under the “cigarette rule,” a CUTPA claimant’s evidence must establish that the conduct at issue falls within one of three criteria. A court must decide whether the conduct (1) offends public policy, (2) is immoral, unethical, oppressive or unscrupulous or (3) causes substantial injury to consumers, competitors or other businessmen. McLaughlin Ford, Inc. v. Ford Motor Co., supra, 567-68.

In the circumstances of this case, the question is whether the plaintiff has proven that the defendant’s conduct meets the unfairness test described in the second criterion. The defendant maintains that, as a matter of fact and law, the plaintiff has failed to satisfy its burden of proof.

As a matter of fact, the defendant asserts that if, as in this case, a CUTPA claimant relies on only one criterion, it must establish the degree to which a defendant’s conduct is unfair. See, e.g., Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., supra, 245 Conn. 43. The defendant argues that the report of the attorney trial referee is unacceptable because it does not contain any finding of degree. It properly raised this issue in its objection to the final report of the attorney trial referee.

We have found no precedent, and the defendant has cited none, that tells us how to determine the degree to which misconduct is unfair. In our view, the required calibration does not envisage a global standard but rather must reflect the particular circumstances of the case. Perhaps an unethical deviation from accepted trade practices that causes only minor injury, is not actionable. That is not this case. The report of the attorney trial referee establishes that the defendant deliberately refused to conform its conduct to an established trade practice in the construction industry. The defendant admitted that its actions were taken for the purpose of maximizing its profits. In our view, proof of such misconduct demonstrates unfairness to a substantial degree and permits a recovery under CUTPA. For today, it suffices to say that we are persuaded that, under these circumstances, the plaintiff has proven what it needed to prove.

As a matter of law, the defendant maintains that, in determining whether conduct is “immoral, unethical, oppressive or unscrupulous,” this court is bound to follow the fairness test established by federal law. This argument is identical to the one the defendant raised with respect to the question of whether CUTPA permits recovery for a single act of misconduct. Our answer is the same. The defendant cannot prevail on this claim. See Caldor, Inc. v. Heslin, supra, 215 Conn. 598.

The defendant’s other claims warrant little discussion because they assume facts other than those in the report of the attorney trial referee or rely on principles of law that we already have found to be inapplicable. We note once again that, on the facts found, the plaintiff has not engaged in bid rigging. The breach of a duty to enter into a contract cannot properly be characterized as exhibiting conduct that is merely passive. Such a characterization does not flow from the cases cited by the defendant, in which there was no breach of duty.

The defendant reiterates its claim that the plaintiff has not adequately demonstrated that it has suffered an ascertainable loss as a result of the defendant’s misconduct. Recasting the defendant’s contention to focus on the absence of proof of damages does not add to its persuasiveness. Further, the claim is premature in light of the contemplated future hearing to determine actual damages.

CONCLUSION

We conclude, therefore, that the trial court improperly held that the defendant was entitled to judgment as a matter of law. Under these circumstances, we need not decide whether, if the court properly had decided to reject the report of the attorney trial referee, it had authority to render judgment in favor of the defendant rather than remanding the case for a new hearing before the same or a different attorney trial referee or before a judge of the Superior Court. See Practice Book § 19-17 (a).

In the absence of persuasive reasons for rejection of the report of the attorney trial referee, we further conclude that the court was required to render a judgment granting the motion of the plaintiff for acceptance of the report. Except for the hearing on damages, nothing further needs to be done.

The judgment of the trial court is reversed and the case is remanded with direction to accept the report of the attorney trial referee including its recommendation for a further hearing with respect to damages.

In this opinion the other judges concurred.

       Although the complaint also contained a count for breach of contract, the trial court, Levin, J., granted the defendant’s motion for summary judgment on that count. The plaintiff amended its complaint accordingly. It no longer pursues any claim for breach of contract.

       The plaintiffs president testified that the price it quoted to the defendant was lower than the price quoted by any other electrical subcontractor that submitted a bid.

       In the memorandum of decision that accompanied the judgment sustaining the viability of the plaintiffs CUTPA claim, the court, Levin, J., described bid shopping. “Bid shopping is the term used to describe aprime contractor’s post-award effort to obtain lower-priced subcontractors than those upon which he based his price to the owner. . . . This practice is generally condemned as unethical by- construction industry associations . . . .” (Internal quotation marks omitted.) 1 S. Stein, Construction Law (2002) § 2.05 [1], p. 2-158.

       The majority of Superior Court decisions have held that a single act or occurrence is sufficient to support a CUTPA claim. See Pollock v. Panjabi, 47 Conn. Sup. 179, 198-99, 781 A.2d 518 (2000); Bank of New Haven v. Karas Motors, Inc., Superior Court, judicial district of New Haven, Docket No. 414574 (July 28, 1999); Abrams v. Riding High Dude Ranch, Inc., Superior Court., judicial district of Fairfield, Docket No. 345046 (February 5, 1998); Giacomo v. USF & G Ins. Co., Superior Court, judicial district of Stamford-Norwalk, Docket No. 164760 (September 10, 1998); Glaser Realty Associates v. Joshua Morris Publishing, Inc., Superior Court, judicial district of Danbury, Docket No. 322785 (January 15, 1997); Lovick v. Nigro, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 542473 (February 24, 1997).
      For eases holding that multiple acts are required to support a CUTPA claim, see Morgan v. Tolland County Health Care, Inc., Superior Court, judicial district of Hartford-New Britain at New Britain, Docket No. 469204 (February 9, 1996) (16 Conn. L. Rptr. 294); Swienicki v. Griggs & Browne Co., Superior Court, judicial district of New London, Docket No. 513407 (February 28, 1995).

       General Statutes § 42-1 lOg (a) provides in relevant part: “Any person who suiters any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action ... to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section . . . .”

       Although the defendant failed to list this issue in its preliminary statement of issues, as Practice Book § 63-4 (a) (1) requires, the plaintiff has not claimed that it was prejudiced by this procedural lapse.

       The defendant cites Downes-Patterson Corp. v. First National Supermarkets, Inc., 64 Conn. App. 417, 780 A.2d 967, cert. granted, 268 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed June 25, 2002). In Downes-Patterson Corp., we held that the defendant’s refusal to execute a release of a restrictive covenant when the defendant had no obligation to do so did not constitute a CUTPA violation. Id., 426-28. The defendant also makes reference to three cases that we cited in support of that holding. See Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 523, 646 A.2d 1289 (1994); Kenney v. Healey Ford-Lincoln-Mercury, Inc., 53 Conn. App. 327, 330, 730 A.2d 115 (1999); Southington Savings Bank v. Rodgers, 40 Conn. App. 23, 28-29, 668 A.2d 733 (1995), cert. denied, 236 Conn. 908, 670 A.2d 1307 (1996).


author: FLYNN, J.

text:
    LINDA RAYBECK v. DANBURY ORTHOPEDIC ASSOCIATES, P.C., ET AL.
    (AC 20737)
    Dranginis, Flynn and Daly, Js.

      Argued January 8
    officially released September 17, 2002

      Edward F. Hennessey, for the appellant (plaintiff).

      Augustus R. Southworth III, with whom, on the brief, was Isabella S. Murray, for the appellee (named defendant).

       This appeal was argued before a panel comprised of Judges Dranginis, Flynn and Daly. Although Judge Daly agreed with the other two judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written decision. The parties stipulated, however, that they would not reargue the appeal to this court with a panel consisting of the original two judges and an additional judge. Rather, the parties stipulated that 1hey would permit the remaining two judges alone to render a written decision.

   Opinion

FLYNN, J.

In this medical malpractice action, the plaintiff, Linda Raybeck, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the named defendant, Danbury Orthopedic Associates, P.C. On appeal, the plaintiff claims that she is entitled to a new trial because the court (1) improperly overruled her objection to a portion of the defendant’s closing argument and refused to give a curative instruction to the jury regarding that portion of the argument, (2) improperly instructed the jury that the plaintiff was required to prove through expert testimony that the defendant had a duty to inform the plaintiff of the risks and benefits of the surgical procedure that was performed on her injured wrist and any alternatives to that procedure, (3) improperly admitted certain evidence and excluded other evidence, (4) improperly instructed the jury with respect to medical negligence and informed consent in that the instruction was inadequate and misleading, (5) unduly limited the jury charge to only a portion of the plaintiffs claims of failure to treat and failure to inform and (6) improperly directed and refused to set aside a verdict in favor of the defendant on portions of the plaintiffs claims of failure to treat and failure to inform. We agree with and find dispositive the plaintiffs first and second claims and grant the relief requested. We discuss the plaintiffs remaining claims only insofar as those claims are likely to arise on retrial.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. The plaintiff is employed as a title searcher, who, in the performance of her duties, is required to lift heavy books of land records. On February 8, 1994, she fell on an icy sidewalk and injured her left wrist. She sought treatment for that injury at the Danbury Hospital emergency room that same day. While at the emergency room, the plaintiff was treated by Dr. Thomas M. Malloy, an orthopedic surgeon who was associated with the defendant corporation. Dr. Malloy informed the plaintiff that she had sustained a Colles’ fracture of the left wrist. He further informed her that the appropriate treatment for her injury was a closed reduction and casting and that the only other alternative was to not treat the wrist at all. Thereafter, the plaintiff consented to, and Dr. Malloy performed, a closed reduction and casting, which involves manually realigning the bones and applying a cast while the patient is under general anesthesia.

The plaintiff went to the defendant’s facility for a series of follow up visits during the months of February, March and April, 1994. During those visits, the plaintiff was seen and treated by both Dr. Malloy and Dr. Roger LaGratta, another physician associated with the defendant coxporation. Both physicians noted that although the fracture was healing, the plaintiff’s wrist had begun to develop a tilt as it healed. That tilt became more pronounced over time with one of the bones in her wrist protruding outward, which made the wrist appear deformed. The plaintiff also complained of extreme pain throughout the course of her treatment, for which Dr. Malloy and Dr. LaGratta prescribed physical therapy. After the plaintiffs April 14,1994 visit at the defendant’s facility, she sought a second opinion regarding the healing of her wrist from her family physician, Dr. Oscar Lascano. Dr. Lascano recommended that the plaintiff see a specialist. Sometime thereafter, on Dr. Lascano’s recommendation, the plaintiff, who was still experiencing a great deal of pain in her wrist, sought an orthopedic evaluation at Yale University School of Medicine with Dr. Scott Wolfe, a surgeon. Dr. Wolfe performed surgery on the plaintiffs wrist both to repair the deformity in her wrist, evidenced by the tilt that had developed, and to avoid further degeneration. Subsequently, the plaintiff instituted this action in a one count complaint alleging (1) lack of informed consent and (2) medical malpractice.

Portions of the deposition testimony of the plaintiffs expert witness, Dr. Elias Sedlin, a physician, were admitted into evidence at trial. Through his deposition, Dr. Sedlin testified both as to informed consent and the standard of care required of an orthopedist treating a fracture similar to the one sustained by the plaintiff. He testified that the plaintiff should have been informed that casting carried some risk in that in some cases, the bones may slip out of alignment and, as a result, the fracture would heal improperly. He also testified that there were alternative treatments that the defendant could have employed and that the plaintiff should have been informed of those alternatives. He opined that one such alternative was to employ percutaneous pins to hold the fractured wrist bones in place. In fact, Dr. Sedlin testified that the standard of care for the type of fracture sustained by the plaintiff required that the wrist be pinned, rather than cast as had been done by the defendant, and that the defendant’s failure to employ pinning rather than casting constituted a deviation from the standard of care. The defendant’s medical expert, Dr. Derek Woodbury, testified at trial that the standard of care mandated casting rather than pinning and that he, like Dr. Malloy, believed that the only alternative to casting was to simply let the fracture heal on its own.

After the conclusion of the evidence from both parties, the court instructed the jury regarding informed consent and medical malpractice. Thereafter, the jury returned a general verdict in favor of the defendant. The plaintiff filed a motion to set aside the verdict and for a new trial. The court denied the plaintiffs motion and rendered judgment in favor of the defendant. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly overruled her objection to a portion of the defendant’s closing argument and refused to give a curative instruction to the jury regarding that portion of the argument. Specifically, she argues that a portion of defense counsel’s argument was improper because it invited the jury to draw an adverse inference from the fact that the plaintiff had failed to produce Dr. Sedlin’s partner, Dr. Michael Houseman, as a witness at trial. She further argues that although the missing witness rule set forth in Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960), has been abrogated in civil cases by General Statutes § 52-216c, the applicability of § 52-216c is limited to closing arguments in situations where counsel first has given a prior fairness notice. She contends that because no notice was provided here, the argument was improper and the court should have given a curative instruction. The defendant counters with the argument that § 52-216c is inapplicable because counsel did not explicitly argue to the jury that it should draw an adverse inference from the fact that the plaintiff failed to produce Dr. Houseman as a witness and, therefore, there was no need for the court to give a curative instruction. The defendant further argues that even if § 52-216c is applicable, the language of the statute does not mandate that prior notice be given before counsel invites the jury to draw an adverse inference from a party’s failure to produce a witness at trial. We agree with the plaintiff.

As a preliminary matter, we set forth the applicable standard of review. “The trial court is invested with a large discretion with regard to the arguments of counsel and while its action is subject to review and control, we can interfere only in those cases where the discretion was clearly exceeded or abused to the manifest injury of some party.” (Internal quotation marks omitted.) Marchell v. Whelchel, 66 Conn. App. 574, 586, 785 A.2d 253 (2001). Nonetheless, where we must interpret a statute regulating final arguments, our review of the meaning of that particular statute is plenary. Statewide Grievance Committee v. Connor, 260 Conn. 435, 439, 797 A.2d 1081 (2002).

We begin our resolution of the plaintiffs first claim with a brief overview of the Secondino rule. “In Secondino v. New Haven Gas Co., [supra, 147 Conn. 674-75], our Supreme Court held that the failure to produce a witness for trial who is available and whom a party would naturally be expected to call, warrants an adverse inference against that party. This is commonly referred to as the Secondino rule or missing witness rale. The jury charge explaining the rule is known as the Secondino instruction or missing witness instruction.” State v. Bailey, 56 Conn. App. 760, 761 n.1, 746 A.2d 194 (2000). The reasoning behind the missing witness rale was that “[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause. ... To take advantage of [the] rule permitting an adverse inference, [however] the party claiming the benefit [of the rale was required to] show that he [was] entitled to it.” (Citation omitted; internal quotation marks omitted.) Close, Jensen & Miller, P.C. v. Lomangino, 51 Conn. App. 576, 584, 722 A.2d 1225, cert. denied, 248 Conn. 905, 731 A.2d 306 (1999). “A party [was required to] seek and obtain an advance ruling from the trial court before arguing to the jury that an unfavorable inference should be drawn from the absence of a witness at trial. . . . Unless [a] party [fulfilled] the requirements of a Secondino charge ... he [was] not . . . allowed to argue it to the jury in any form, full or watered down.” (Citation omitted; internal quotation marks omitted.) Krupien v. Rai, 56 Conn. App. 247, 249, 742 A.2d 1270 (1999), cert. denied, 252 Conn. 931, 746 A.2d 793 (2000).

In 1998, the General Assembly enacted General Statutes § 52-216c, which abrogated the Secondino rule by prohibiting the trial court from giving a Secondino charge in civil cases. Section 52-216c provides in relevant part: “No court in the trial of a civil action may instruct the jury that an inference unfavorable to any party’s cause may be drawn from the failure of any party to call a witness at such trial. However, counsel for any party to the action shall be entitled to argue to the trier of fact during closing arguments . . . that the jury should draw an adverse inference from another party’s failure to call a witness who has been proven to be available to testify.” (Emphasis added.)

Under our reading of the “proven to be available” language of the statute, the advance ruling requirement set forth in Secondino has been preserved in § 52-216c. Accordingly, the court is prohibited from instructing the jury on the issue, but counsel is not prohibited from arguing that the jury should draw an adverse inference from any party’s failure to call a witness at trial, provided that counsel first has proven to the court that the witness was one who was available to testily.

A review of the legislative history of § 52-216c also reveals that the legislature contemplated that before counsel would be allowed to invite the jury to draw an adverse inference from another party’s failure to call a particular witness at trial, the trial judge must make a finding that the witness at issue was actually available. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 5,1998 Sess., p. 1564. The legislature intended that the trial judge make this finding on the basis of the evidence offered during trial. Id. The requirement that counsel first make an evidentiary showing that the witness is available before arguing that the jury should draw an adverse inference from the witness’ absence at trial demonstrates that the legislature recognized the inherent unfairness and impropriety of allowing counsel to invite the jury to draw an adverse inference from one party’s failure to produce a particular witness at trial if that witness had died or for some other reason was unavailable to testify at trial. Id.

The following additional facts are relevant to our resolution of this claim. In the course of Dr. Sedlin’s deposition testimony, he indicated that, while on a skiing trip, his wife sustained a fracture similar to that sustained by the plaintiff. Dr. Sedlin explained that he employed a cast to treat his wife’s fracture because the two of them were planning to go to Tahiti and his wife did not consent to be treated with pins because she knew that if pins were employed, she would be unable to boat or swim. Counsel for the defendant then asked Dr. Sedlin what treatment plan would have been accorded to his wife if not for the Tahiti trip. Dr. Sedlin indicated that he would have referred his wife to his partner, Dr. Houseman, for percutaneous pins.

During closing argument, in referring to Dr. Sedlin’s testimony, the defendant’s counsel argued as follows: “If he had a patient [that] he thought needed percutaneous pinning, he would refer that patient to his partner, who is an expert. Maybe if he had been here, Dr. Houseman, we would have found out how those patients really would have been treated.” (Emphasis added.) The defendant’s counsel offered no evidence that Dr. Houseman was available to testify at trial. Out of the presence of the jury, the plaintiffs counsel requested the court to give a curative instruction on the missing witness rule. The court denied his request after finding that counsel did not ask the jury to draw an adverse inference from Dr. Houseman’s absence at trial.

We conclude that the plaintiff was entitled to a curative instruction on the defendant’s argument that the plaintiff did not call Dr. Houseman as a witness at trial. There is no doubt that in arguing “maybe if [Dr. Houseman] had been here . . . we would have found out how [the plaintiff] would have been treated,” the defendant’s counsel was implicitly, if not explicitly, asking the jury to infer that the plaintiff should have produced Dr. Houseman’s expert testimony, rather than Dr. Sedlin’s, and that if Dr. Houseman had been produced, he likely would have given testimony that was contrary to Dr. Sedlin’s testimony and adverse to the plaintiffs case.

We also conclude, despite the defendant’s argument to the contrary, that the language of § 52-216c does require that advance notice be given before counsel is allowed to argue that the jury should draw an adverse inference from the opposing party’s failure to produce a witness at trial. It is obvious from both the “proven to be available to testify” language of § 52-216c and the legislative history that the legislature intended not only that there be advance notice of counsel’s intent to invite the jury to draw an adverse inference from a party’s failure to call a witness, but that there be an advance ruling by the trial judge that counsel has provided some evidentiary basis entitling him or her to do so. This conclusion comports with the general principle that in closing argument before the jury, “counsel may comment upon facts properly in evidence and upon reasonable inferences drawn therefrom.” (Internal quotation marks omitted.) Skrzypiec v. Noonan, 228 Conn. 1, 16, 633 A.2d 716 (1993). “Counsel may not, however, comment on or suggest [in closing argument] an inference from facts not in evidence.” (Internal quotation marks omitted.) State v. Graham, 67 Conn. App. 45, 49-50, 787 A.2d 11 (2001), cert. denied, 259 Conn. 911, 789 A.2d 996 (2002). Without first providing an evidentiary basis that Dr. Houseman was available to testify at trial, it was improper for counsel to comment on the plaintiffs failure to present Dr. Houseman as a witness because such a comment invited the jury to draw an inference from facts not in evidence.

The defendant opines that under State v. Malave, 250 Conn. 722, 740-41, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), no curative instruction was necessary because the defendant’s counsel did not expressly argue that the plaintiff failed to produce a witness. We disagree. The holding in Malave, which abrogated the Secondino rule in criminal cases, is applicable only in criminal cases. Section 52-216c is applicable in civil cases. The defendant does not point to any statutory language that can fairly be interpreted to mean that § 52-216c is applicable only where counsel expressly exhorts the jury to draw an adverse inference from a party’s failure to present a particular witness. Furthermore, such an interpretation of the statute would allow counsel to circumvent the evidentiary predicate and prior ruling requirements of § 52-216c by simply arguing implicitly, rather than explicitly, that the jury should draw an adverse inference from a witness’ absence and would eviscerate the “proven to be available to testify” language of § 52-216c, the purpose of which was to prevent an adverse inference from being drawn where it was unfair to do so. It is improper to interpret a statute in a manner that thwarts its purpose; Water Pollution Control Authority v. Keeney, 234 Conn. 488, 498, 662 A.2d 124 (1995); or creates a bizarre result. Bovat v. Waterbury, 258 Conn. 574, 587, 783 A.2d 1001 (2001). We refuse to interpret § 52-216c in such a manner here.

In the present case, the defendant’s counsel neither sought nor obtained an advance ruling from the court before arguing to the jury that it should draw an adverse inference from the fact that the plaintiff did not produce Dr. Houseman as a witness, and the record is devoid of any evidence that showed that Dr. Houseman was available to testify at trial. We conclude, therefore, that defense counsel’s remarks in closing were improper and that the court clearly abused its discretion in failing to give a curative instruction on that portion of his argument.

We also conclude that this impropriety was harmful. Although the court ruled on a request for a curative instruction as to final argument, that ruling implicates an evidentiary consideration about whether the jury was being asked to draw an improper inference without an adequate factual basis in the evidence. “[B]efore 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.” (Internal quotation marks omitted.) Dubreuil v. Witt, 65 Conn. App. 35, 45, 781 A.2d 503 (2001). In the present case, liability was not conceded, and Dr. Sedlin and Dr. Woodbury, the plaintiffs and the defendant’s expert, respectively, gave conflicting testimony on both the duty of care and informed consent. In what was a battle of experts, we conclude that the jury, in returning a verdict for the defendant, likely may have drawn an adverse inference from the plaintiffs failure to call Dr. Houseman to testify due to the improper remarks made by the defendant’s counsel.

II

The plaintiff next contends that the court improperly instructed the jury that she was required to prove through expert testimony that the defendant had a duty to inform the plaintiff of the risks and benefits of casting and of any alternatives to that procedure.

We begin our analysis of the plaintiffs claim with the well established standard of review. “When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 142-43, 757 A.2d 516 (2000).

The plaintiff argues that her claim that expert testimony was not required to establish that the defendant had a duty to inform is controlled by our Supreme Court’s decision in Godwin v. Danbury Eye Physicians & Surgeons, P.C., supra, 254 Conn. 131, which was decided subsequent to the plaintiffs trial and which involved the same trial judge, the same plaintiff’s counsel and the same defense counsel. We agree.

In Godwin, our Supreme Court held that “[i]n a case where only one physician treats the patient, it is not necessary to establish through expert testimony that the physician had a duty to inform the patient prior to a surgical procedure.” Id., 145. In the present case, the court instructed the jury as follows: “The plaintiff . . . has alleged that the defendant . . . failed to properly advise and inform her of treatment options available to her, and failed to advise her of the risks associated with a closed reduction of a fracture of the type and severity of a Colles’ fracture she sustained. It is the duty of every physician or surgeon, if the duty is proven to exist, to give the patient all of the information that is material to the decision the patient will make in undergoing a proposed operation or procedure. . . . The plaintiff must first establish a duty to inform. This must be shown by expert, testimony, and in this case that was shown because both Dr. Malloy and Dr. LaGratta testified concerning information provided to [the] patient and an explanation of alternatives to the proposed procedures and that [a] duty to inform a patient exists. There was disagreement as to what the information should consist of, but there was an agreement that, there was a duty to inform. Therefore, if you find that the plaintiff . . . has proven a duty to inform, you will then go on to determine the degree or the extent of the disclosure in accordance with the following standards. Now, the standard is what has been referred [to] as a lay standard . . . .” (Emphasis added.)

We conclude in this case, as did our Supreme Court in Godwin, that “the trial court properly instructed [the] jurors that the defendant was required to follow a lay standard in providing informed consent to the plaintiff. Nevertheless, it improperly instructed the jury that the plaintiff was required to establish through expert testimony that the defendant had a duty to inform.” Id., 143-44.

Our analysis does not end, however, with our conclusion that the court’s charge was improper; “[w]e must next determine whether the improper instruction was harmful because it would have been likely to affect the jury’s verdict.” Richmond v. Ebinger, 65 Conn. App. 776, 782-83, 787 A.2d 552 (2001), citing Remington v. Aetna Casualty & Surety Co., 240 Conn. 309, 316, 692 A.2d 399 (1997). We conclude that the improper instruction here was harmful. Unlike the trial court in Godwin, the trial court in the present case instructed the jury that there was expert testimony, from both Dr. Malloy and Dr. LaGratta, that there was a duty to inform the plaintiff of the risks and benefits of the procedure and alternatives to that procedure. The court further instructed the jury that it was the plaintiffs duty to establish the duty to inform and that only if the jury found that she had met her burden, should it then go on to determine the extent of the disclosure. Finally, the court instructed the jury that the credibility of the witnesses was a matter entirely within the province of the jury. Under that instruction, if the jury chose to discredit the testimony of Dr. Malloy and Dr. LaGratta with regard to the duty to inform, it could not reasonably or legally have reached any conclusion other than that the plaintiff did not meet her burden of proving an element of her case and would necessarily have returned a verdict in favor of the defendant. Yet, under Godwin, the jury was not limited to expert testimony in finding that the defendant had a duty to inform; it could have relied on its own lay assessment, which the charge foreclosed the jury from doing. Accordingly, we conclude that the challenged instruction here was harmful because it was likely to have affected the jury’s verdict.

Ill

The plaintiff next claims that the court improperly admitted certain evidence and excluded other evidence. We address these claims only insofar as they are likely to arise on retrial.

A

The plaintiff first argues that the court improperly excluded a statement made to her by an emergency room physician while she was waiting to be treated. We agree.

The following additional facts are necessary to our discussion of this issue. During her deposition, the plaintiff testified that one of the physicians in the emergency room, as well as the attending nurses, told her that her wrist was “a real mess” and that she should expect to stay awhile to have her wrist pinned. The defendant filed a motion in limine seeking to bar the plaintiff from offering that evidence, arguing that it constituted hearsay because it was an out-of-court statement offered to prove the truth of the matter asserted, namely, that the duty of care required that the plaintiffs wrist be pinned, and that the statement did not fall within an exception to the hearsay rule. The plaintiff objected to the defendant’s motion, arguing that the statement was not offered to show that her wrist should have been pinned but was offered, instead, to show that she would have consented to a pinning procedure had that alternative been offered to her. After a lengthy argument by counsel, the court ruled that the out-of-court statement was hearsay and was, therefore, inadmissible. Thereafter, in its jury charge, the court instructed the jury that the plaintiff had the burden of proving that if percutaneous pins had been presented to her as an alternative, she would have consented to their use.

The plaintiff claims that this out-of-court statement should not have been excluded as hearsay because it was not offered for its substantive truth. “In Connecticut, an out-of-court statement offered to prove the truth of the matter asserted is hearsay. ... If such a statement is offered for a purpose other than establishing the truth of the matters contained in the statement, it is not hearsay.” (Citation omitted.) State v. Esposito, 223 Conn. 299, 315, 613 A.2d 242 (1992).

In this case, the plaintiff offered the statement of the emergency room physician to show its effect on her, namely, that if she had been offered the choice of percu-taneous pins, she would have consented to such a procedure. The statement was not offered to show that the duty of care required that percutaneous pins be employed to treat the plaintiffs fracture. Accordingly, if, on retrial, the plaintiff offers out-of court statements of the physician at the emergency room and the attending nurses to prove their effect on her, namely, that she would have consented to percutaneous pins being inserted into her wrist had she been offered that choice, that statement should not be excluded as hearsay.

B

The plaintiff next claims that the court improperly admitted certain evidence introduced by the defendant. Specifically, she claims that the court improperly admitted evidence regarding (1) the fees that Dr. Sedlin generally receives for providing deposition testimony and for testifying in court and (2) the treatment that Dr. Sedlin had provided to his wife after she had sustained a Colles’ fracture of the wrist.

1

First, the plaintiff argues that it was improper and prejudicial for the court to admit evidence of the fees that her expert generally charges for deposition testimony and for testifying in court while at the same time prohibiting the plaintiff from introducing evidence of what the defendant’s expert was, in fact, charging the defendant in this particular case.

Prior to trial, the plaintiffs counsel identified the portions of Dr. Sedlin’s deposition testimony that he intended to have read to the jury at trial. Before identifying the portions of Dr. Sedlin’s deposition testimony that the defendant’s counsel sought to introduce at trial, he requested, as a professional courtesy, that the plaintiff allow the defendant’s expert witness, Dr. Woodbury, to testify during the plaintiffs case because Dr. Wood-bury had to leave for a scheduled ski trip. The plaintiffs counsel agreed to make that accommodation. Dr. Wood-bury testified on direct and cross-examination. Thereafter, he testified in the jury’s absence that he charged $500 per hour and that the defendant had paid him $1600 or $1700 to date. He further testified that the defendant owed him fees for an additional twenty horns, which was comprised of the time he spent preparing for trial and the time he had spent in court. After Dr. Woodbury left for his ski trip, defense counsel indicated the portions of Dr. Sedlin’s deposition testimony that it wanted read to the jury, including Dr. Sedlin’s testimony that he generally charged $500 an hour for deposition testimony and $6000 to $7500 a day for testifying in court. The trial court allowed those portions of Dr. Sedlin’s deposition testimony to be read to the jury over the plaintiffs objections.

We decline to address this claim. We do not conceive of this situation arising again on retrial because, after this experience, we do not believe it likely that the plaintiffs counsel will again extend a professional courtesy to allow the defendant’s counsel to interrupt the plaintiffs case with the out of order testimony of the defendant’s expert witness. That being the case, if the defendant’s counsel examines the plaintiffs expert about how much he is charging for preparation and trial, the plaintiffs counsel will be able to point out to the jury during the defendant’s case that, to the extent that fees give an expert an interest in the outcome of the case, the defense expert, Dr. Woodbury, also had an interest in the outcome by virtue of the fact of his professional fees charged for preparation and trial testimony.

2

Second, the plaintiff argues that it was improper for the court to admit evidence of the fact that Dr. Sedlin had treated his wife’s fracture with a cast, rather than with pins. The plaintiff argues that this evidence was irrelevant and served only to distract the jury from the main issues in the case and was, therefore, improper. We disagree.

“Generally, evidence is admissible to prove a material fact that is relevant to the cause of action alleged by the plaintiff.” (Internal quotation marks omitted.) Hayes v. Manchester Memorial Hospital, 38 Conn. App. 471, 474, 661 A.2d 123, cert. denied, 235 Conn. 922, 666 A.2d 1185 (1995). “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.” (Internal quotation marks omitted.) State v. Nieves, 69 Conn. App. 96, 101, 793 A.2d 290, cert. denied, 260 Conn. 930, 798 A.2d 972 (2002); see also Conn. Code Evid. § 4-1.

We conclude that evidence of the manner in which Dr. Sedlin treated his wife’s fracture was relevant to one of the main issues in the case. Here, one of the central issues was whether the defendant had breached the duty of care. On the one hand, the defendant’s expert, Dr. Woodbury, testified that the duty of care required that the plaintiffs fracture be treated with a cast. On the other hand, the plaintiffs expert, Dr. Sedlin, testified that the duty of care mandated that the plaintiffs fracture be treated with percutaneous pins. The credibility of the experts was, therefore, also at issue. “It is well settled that the credibility of an expert witness is a matter to be determined by the trier of fact.” Hayes v. Manchester Memorial Hospital, supra, 38 Conn. App. 474. The fact that Dr. Sedlin treated his wife in a manner that was contrary to what he had asserted was mandated by the duty of care would serve to aid the jury in its determination of his credibility and it was therefore relevant.

IV

The plaintiff next argues that the court’s jury instruction was inadequate with respect to medical negligence and informed consent and that the inadequacy of the instruction was compounded by the court’s refusal to utilize any of the plaintiffs requests to charge. The plaintiff further argues that the court improperly focused its jury instructions on what is not expected of physicians. We disagree.

The gist of the plaintiffs argument regarding the inadequacy of the charge was that the charge constituted forty pages of transcript, and of that forty pages, the issues of failure to treat and failure to inform constituted only six pages. As previously stated, a “charge is not to be critically dissected for purposes of discovering possible inaccuracies . . . .” (Internal quotation marks omitted.) Remington v. Aetna Casualty & Surety Co., supra, 240 Conn. 316. As long as the charge is “correct in law, adapted to the issues and sufficient for the guidance of the jury [the charge is not improper].” (Internal quotation marks omitted.) Id. There is no fixed formula as to the number of pages required for a charge. Furthermore, we do not agree that the court unduly focused the instruction on what is not expected of physicians.

V

We decline to address the plaintiffs remaining claims attacking the court’s decision to direct a verdict on portions of the plaintiffs claims. In the course of a new trial, these claims may not arise again because the plaintiff may introduce additional evidence in support of her claims. Accordingly, we decline to consider those claims at this juncture.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       This action was originally instituted against the defendant Danbury Orthopedic Associates, P.C, and its agents, Dr. Thomas M. Malloy and Dr. Roger J. LaGratta. Shortly before trial, the matter was withdrawn as against Dr. Malloy and Dr. LaGratta. We therefore refer in this opinion to Danbury Orthopedic Associates, P.C, as the defendant.

       Specifically, the plaintiff alleged that the defendant, “failed to conform to proper medical standards in one or more of the following ways: a. it failed to properly advise and inform [the plaintiff] of the treatment options available to her; b. it failed to advise [the plaintiff] of the risks associated with a closed reduction of a fracture of the type and severity that her fracture presented; c. it utilized casting rather than open or pinning procedures, at times when the latter was the proper procedure under the circumstances; d. it, failed to treat the wrist once it knew or should have known that the closed reduction performed on February 8, 1994 had been unsuccessful; e. it failed to inform [the plaintiff] of the failure of the closed reduction when it was first detected; f. it failed to advise, inform, recommend or treat [the plaintiff] for the malunion that, was further observed in late March and April, such period more specifically being March 16 through April 14, 1994.”

       “[T]he way it is usually done is either you serve a subpoena on that witness and put the subpoena in evidence to show that that person was available or, for instance, in a [case], husband — wife, the wife is the passenger. The husband is the plaintiff. The question is who had the red light. The husband doesn’t call the wife as a witness. Then the husband’s on the witness stand and you say, by the way, where’s your wife? Well, she’s home. Established availability.” Conn. Joint Standing, Committee Hearings, Judiciary, Pt. 5, 1998 Sess., p. 1564, remarks of Robert Adelman on behalf of the Connecticut Trial Lawyers Association.

       The defendant claims that this case is controlled not by Godwin, but rather by Mason v. Walsh, 26 Conn. App. 225, 230, 600 A.2d 326 (1991), cert. denied, 221 Conn. 909, 602 A.2d 9 (1992), because the plaintiff was treated by two physicians, Dr. Malloy and Dr. LaGratta. We disagree. In Mason, where the plaintiff was treated by three physicians, a urologist and two anesthesiologists, the issue before this court was which of the three, if any, owed the plaintiff the duty of disclosing facts sufficient to permit him to make an informed consent to the use of general anesthesia. This court held that, under such circumstances, it was incumbent upon the plaintiff to establish by expert testimony which of the physicians, if any, owed him the duty of disclosing information sufficient for him to exercise an informed consent. In the present case, the plaintiff did not claim that either Dr. Malloy or Dr. LaGratta owed her a duty of obtaining informed consent but that both owed her that duty on separate and distinct treatment occasions. Furthermore, because the court charged out of the jury’s consideration the plaintiffs allegations of lack of informed consent occurring after February, 1994, and because Dr. LaGratta did not treat the plaintiff until sometime in March, 1994, her claim of lack of informed consent involved only one physician.

       The plaintiff also argues that this testimony should have been allowed once the defendant opened the door to its admissibility by challenging the plaintiffs recollection of what she was and was not told while at the emergency room. In light of our determination that the statement should have been admitted initially, we conclude that it is unnecessary to address this argument.