text:
    In re Kezia M.

    (11933)
    Daly, O’Connell and Heiman, Js.
    Argued September 14
    decision released October 15, 1993

      Mary Ann Barile, for the appellants (respondents).

      Ann-Marie DeGraffenreidt, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

      Pauline E. Lybeck, with whom, on the brief, was Gretchen Hellauer, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Daly, J.

This is an appeal by the respondent father and paternal grandmother from the judgment of the trial court terminating the father’s parental rights with respect to his minor daughter, Kezia, pursuant to General Statutes § 17a-112 (b) (1), (3) and (4).

On appeal, the respondents argue that the trial court improperly concluded (1) that there was sufficient evidence to support the termination order on the grounds set out in General Statutes § 17a-112 (b) (1), (3) and (4), and (2) that the commissioner of the department of children and youth services (DCYS) had made reasonable efforts to unite Kezia with her father pursuant to General Statutes § 17a-112 (d) (l). We affirm the judgment of the trial court.

The following facts are pertinent to our resolution of this appeal. Kezia was bom on February 9,1987. She resided with her mother until November 3,1987, when she was placed in foster care. On November 8, 1987, Kezia was found to have been neglected by her mother and was committed to the care and custody of DCYS. Since placement on November 3,1987, Kezia has lived with her current foster parents. Her half sister, Tameika, also lives there.

On January 4, 1990, DCYS filed a petition seeking to terminate the mother’s and father’s parental rights, listing Phillip P. as Kezia’s father. Subsequently, the mother informed DCYS that Kenneth M. was in fact Kezia’s father. On September 13, 1990, after court ordered blood tests had confirmed his paternity, Kenneth acknowledged his paternity of Kezia. At that time, a visitation schedule was arranged so that Kenneth and his mother, Mary M., could spend time with Kezia. In March, 1992, DCYS suspended their visitation rights when it decided that Kezia was not benefiting from these contacts.

On October 9, 1991, DCYS filed a petition seeking to terminate Kenneth’s parental rights to Kezia. On November 6,1991, Kenneth’s mother intervened as an equitable party in interest for dispositional purposes. Hearings on the petition for termination were held on April 8, 13, and 30, and May 5, 1992. Kenneth failed to appear on April 8 and May 5. On May 5, 1992, the trial court granted Kenneth’s motion to change the child’s last name to his own. On October 23, 1992, the trial court found clear and convincing evidence to support the termination of Kenneth’s parental rights to Kezia.

In its memorandum of decision, the trial court found that Kenneth’s parental rights should be terminated on three of the four grounds specified in General Statutes § 17a-112 (b), namely: (1) He had abandoned his child; (2) the child was denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for her physical, educational, moral or emotional well-being; and (3) there was no ongoing parent-child relationship. The court further found that these conditions had existed for more than one year. The respondents, Kenneth and his mother, Mary, appeal from this judgment terminating Kenneth’s parental rights as to Kezia.

The termination of parental rights is defined as “the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . . . .” General Statutes § 45a-707 (g) (formerly § 45-61b [g]). “ ‘It is a most serious and sensitive judicial action. Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975).’ . . .” In re Michael M., 29 Conn. App. 112, 117-18, 614 A.2d 832 (1992). When petitioning to terminate parental rights without consent, DCYS must allege and prove by clear and convincing evidence, one or more of the specific grounds set forth in General Statutes § 17a-112 (b). In re Baby Girl B., 224 Conn. 263, 293, 618 A.2d 1 (1992); In re Juvenile Appeal (Anonymous), 177 Conn. 648, 671, 420 A.2d 875 (1979); In re Michael M., supra, 118. “The same evidence certainly can establish more than one ground for termination.” In re Shannon S., 41 Conn. Sup. 145, 157, 562 A.2d 79, aff'd, 19 Conn. App. 20, 560 A.2d 993 (1989).

“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported.” In re Michael M., supra, 121; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991); In re Davon M., 16 Conn. App. 693, 696, 548 A.2d 1350 (1988). We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980); nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987).

I

To prevail, the respondents must successfully challenge all three of the bases of the judgment terminating Kenneth’s parental rights. If any of the grounds relied on by the trial court are upheld on appeal, the termination of parental rights must stand. In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984); In re Kelly S., 29 Conn. App. 600, 613, 616 A.2d 1161 (1992). We conclude that two of the three grounds supporting the determination can be sustained. Accordingly, we uphold the trial court’s decision to terminate Kenneth’s parental rights.

A

The respondents first claim that the trial court improperly determined that Kenneth had abandoned Kezia. We disagree.

Abandonment focuses on the parent’s conduct. In re Michael M., supra; In re Rayna M., 13 Conn. App. 23, 36, 534 A.2d 897 (1987). A lack of interest in the child is not the sole criterion in determining abandonment. In re Michael M., supra; In re Rayna M., supra, 37. General Statutes § 17a-112 (b) (1) defines abandonment as the “failure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . .” “Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child. In re Luke G., 40 Conn. Sup. 316, 323, 498 A.2d 1054 (1985).” (Internal quotation marks omitted.) In re Michael M., supra. Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare. In re Juvenile Appeal (Docket No. 9189), 183 Conn. 11, 14, 438 A.2d 801 (1981).

Section 17a-112 (b) (1) does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. “A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern.” (Internal quotation marks omitted.) In re Michael M., supra; In re Rayna M., supra, 37-38; In re Migdalia M., 6 Conn. App. 194, 208-209, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).

“ ‘The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.’ ” In re Juvenile Appeal (Docket No. 9489), supra, 15, quoting In re Adoption of Webb, 14 Wash. App. 651, 657, 544 P.2d 130 (1975).

The trial court found that Kenneth has four children by three different mothers. He has not been married nor has he been regularly employed. He lives from one third to one half of the year at his mother’s house where one of his daughters permanently resides; his stays there are sporadic. Kenneth has never suggested that he would ever serve as Kezia’s primary caretaker. He has expressed no desire to provide a home of his own for his children. Although his chief concern is that Kezia know he is her father, he has visited her on only ten occasions in the two years since he acknowledged paternity.

The trial court found clear and convincing evidence that Kenneth had abandoned Kezia. In light of the facts found and Kenneth’s course of conduct, it is apparent that he manifested no reasonable degree of interest, concern or responsibility for Kezia’s welfare. We conclude that the findings of subordinate facts amply support the conclusion reached on the issue of abandonment and that no erroneous rule of law was applied by the trial court. The trial court properly concluded that Kenneth had abandoned his child as defined in § 17a-112 (b) (1).

B

The respondents next claim that the trial court improperly concluded that DCYS had proved by clear and convincing evidence that Kenneth had denied Kezia the care necessary for her well-being. We agree.

General Statutes § 17a-112 (b) (3) authorizes the termination of parental rights where “the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his [or her] physical, educational, moral or emotional well-being.” This provision authorizes the termination of parental rights where specific acts of parental commission or omission have caused serious physical or emotional injury to the child. See In re Theresa S., 196 Conn. 18, 25-27, 491 A.2d 355 (1985); In re Kelly S., supra, 614; In re Sean H., 24 Conn. App. 135, 144-45, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991).

Here, Kezia has been in the custody and control of DCYS since shortly after birth. No injury has befallen her as a result of acts of commission or omission by her parents. She could not have been denied the care, guidance or control necessary for her physical, educational, moral or emotional well-being by reason of parental acts while in foster care. See In re Kelly S., supra; In re Shannon S., supra.

Because there is no evidentiary support for this conclusion, the finding of the trial court terminating parental rights pursuant to General Statutes § 17a-112 (b) (3) cannot be sustained.

C

The respondents also claim that the trial court improperly found that there was no ongoing parent-child relationship between Kenneth and Kezia within the meaning of General Statutes § 17a-112 (b) (4), and that to allow further time for the establishment of such a relationship would be detrimental to the best interest of Kezia. We find no error.

Section 17a-112 (b) (4) provides for the termination of parental rights if, upon clear and convincing evidence, it is proved that no ongoing parent-child relationship has existed in excess of one year. This part of the statute requires the trial court to undertake a two-pronged analysis. First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child’s best interest to allow time for such a relationship to develop. In re Juvenile Appeal (Anonymous), supra, 670; In re Michael M., supra, 128; In re Megan M., supra, 340; In re Juvenile Appeal (84-6), 2 Conn. App. 705, 708, 483 A.2d 1101 (1984), cert. denied, 195 Conn. 801, 487 A.2d 564 (1985); In re Juvenile Appeal (84-3), 1 Conn. App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984).

“It is reasonable to read the language of ‘no ongoing parent-child relationship’ to contemplate a situation in which, regardless of fault, a child either has never known his or her parents, so that no relationship has ever developed between them, or has definitively lost that relationship, so that despite its former existence it has now been completely displaced.” In re Juvenile Appeal (Anonymous), supra; In re Jessica M., 217 Conn. 459, 470, 586 A.2d 597 (1991); In re Juvenile Appeal (84-6), supra, 708-709. In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance. See In re Michael M., supra, 129; In re Megan M., supra, 341. The ultimate question is whether the child has no present memories or feelings for the natural parent. In re Jessica M., supra, 468; In re Juvenile Appeal (84-6), supra, 709. Feelings for the natural parent connotes feelings of a positive nature only. In re Jessica M., supra, 469; In re Juvenile Appeal (84-6), supra.

An ongoing parent-child relationship is one that develops “ ‘as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child’. . . I’ In re Jessica M., supra, 463-64. The fact that Kenneth had some contact with Kezia does not preclude a determination that there has been no ongoing parent-child relationship for a period in excess of one year. See In re Juvenile Appeal (Anonymous), supra, 670.

The trial court found that Kenneth had never met on a continuing day-to-day basis the physical, emotional, mental and educational needs of Kezia and does not aspire to do so in the future. Kezia has no positive emotional ties to her father. Instead, she exhibits indifference or hostility toward him. Kenneth has had approximately two years in which to establish a relationship with his daughter but he has failed to do so. In this case, DCYS presented ample evidence to satisfy the statutory requirement of establishing the absence of an ongoing parent-child relationship between Kenneth and Kezia for more than one year.

To satisfy the second prong, the trial court was required to determine whether it would be in the child’s best interest to allow additional time for the establishment of a parent-child relationship. In re Juvenile Appeal (84-6), supra, 708. The “best interest” standard, therefore, does not become relevant until after it has been determined that no ongoing parent-child relationship exists. In re Michael M., supra, 128.

The factors to be considered in deciding whether it would be in Kezia’s best interest to permit further time for a relationship with her father to develop include (1) the length of stay with her foster parents, (2) the nature of her relationship to her foster parents, (3) the degree of contact maintained with the natural parent, and (4) the nature of her relationship to her natural parent. In re Juvenile Appeal (Anonymous), supra, 663. In addition, the genetic bond shared by a biological parent and his or her child, although not determinative of the issue of the best interest of the child, is certainly a factor to consider. McGaffin v. Roberts, 193 Conn. 393, 405, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985).

“The psychological testimony from professionals is rightly accorded great weight in termination proceedings.” In re Nicotina T., 9 Conn. App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987). The respondents’ expert, Charlene Alderfer, a family therapist, recommended the need for additional time to develop a parent-child relationship, after observing Kezia interact with her father for only twenty minutes. In contrast, DCYS’s expert clinical psychologist, David Mantell, concluded, after twenty to thirty hours of evaluation, that to permit further time to establish such a relationship would be detrimental to Kezia. Man-tell believed Kezia’s visits with Kenneth affected her adversely. Mantell felt that Kezia will be harmed if she is removed from her foster home because of her strong emotional ties to and positive feelings for her foster parents.

The trial court was free to judge the credibility of the expert witnesses. See, e.g., State v. Gonzalez, 206 Conn. 391, 408-409, 538 A.2d 210 (1988); State v. DeAngelis, 200 Conn. 224, 230, 511 A.2d 310 (1986); see also 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 118c. The trial court found that Kezia is over five and one-half years of age and that she has been living with her foster parents since she was nine months old. In addition, the court found that Kezia has strong positive feelings and emotional ties toward her foster parents whom she regards as her mother and father. In contrast, Kezia harbors negative feelings toward Kenneth.

If the respondents were to succeed in reinstating Kenneth’s parental rights, Kenneth’s mother would become Kezia’s primary caretaker since Kenneth has no intention of assuming the responsibilities of parenthood. Kezia’s grandmother, however, is apparently oblivious to the trauma that Kezia will experience if she is separated from her foster parents. Rather, the grandmother is more concerned with providing a companion for Kezia’s sister, who is presently living with the grandmother.

Given these facts and the fact that Kenneth has neither the inclination nor the ability to be a responsible parent, we uphold the trial court’s finding that termination was in the best interest of the child.

II

The respondents’ final claim is that the trial court should have dismissed DCYS’s termination petition because DCYS failed to make reasonable efforts to reunify Kezia with them. We disagree.

General Statutes § 17a-112 (d) provides that “the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent . . . .” The respondents claim that DCYS failed to provide adequate services.

The trial court found that DCYS offered the respondents visitation with Kezia. An open visitation policy was initiated by DCYS between September, 1990, and November, 1991, where weekly visits with Kezia were encouraged. In November, 1991, a semiweekly visitation schedule was established. Despite having the opportunity to visit Kezia often, Kenneth did so only ten times between September, 1990, and February, 1992. The court noted that his primary concern was to be recognized as Kezia’s father and not to facilitate Kezia’s return to his home in the near future.

The trial court further found that Kenneth never sought and was not offered services to improve his parenting skills. The court reasonably could have inferred from his lifestyle and lack of initiative in becoming the caretaker of any of his other three children that it would have been futile to provide additional supportive services to the respondents in an attempt to reunite the family.

The judgment is affirmed.

In this opinion the other judges concurred.

       The paternal grandmother was admitted as an intervening party for dispositional purposes.

       General Statutes § 17a-112 (b) (formerly § 17-43a [b]) provides in relevant part: “The superior court upon hearing and notice, as provided in sections 45a-716 and 45a-717, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that, with respect to any consenting parent, such parent has voluntarily and knowingly consented to termination of his parental rights with respect to such child or that, with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year: (1) The child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child ... or (3) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; or (4) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child. If the court denies a petition for consent termination of parental rights, it may refer the matter to an agency to assess the needs of the child, the care the child is receiving, and the plan of the parent for the child.”

       General Statutes § 17a-112 (d) (formerly § 17-43a [d]) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

       The parental rights of Kezia’s mother were terminated on December 13, 1991.


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    Ted Rosick v. Equipment Maintenance and Service, Inc., et al.
    (11686)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued September 27
    decision released November 9, 1993

      Donald G. Leis, Jr., for the appellant (plaintiff).

      William W. Kaliff, for the appellees (defendants).
   Heiman, J.

The plaintiff appeals from the trial court’s judgment dismissing counts one and two of the complaint and in favor of the named defendant on count three of the complaint. On appeal, the plaintiff asserts that the trial court improperly (1) refused to allow him to present evidence concerning invoices for work done by him to establish that the payments for such work had been made without prior written authorization by the named defendant, Equipment Maintenance and Service, Inc. (Equipment), (2) denied the plaintiff’s motion to amend his complaint to conform the pleadings to the proof at trial, (3) granted the defendants’ motion for judgment of dismissal for failure of the plaintiff to make a prima facie case as to counts one and two, and (4) found that Equipment was not obligated to pay for additional loads of topsoil delivered to the job site. We affirm the trial court’s judgment.

The following facts are necessary for a proper resolution of this appeal. On November 18, 1988, Equipment contracted with the Metropolitan District for the construction of a sanitary bypass sewer and underground comminutor adjacent to the terminal pump station at Bradley International Airport. On July 21,1989, Equipment subcontracted with the plaintiff, Ted Rosick, doing business as Ted Rosick Construction, to excavate for the installation of a bypass comminutor, a ten inch sewer line, a fifteen inch sewer line, manholes, and conduits. Additionally, the subcontract called for the installation of a stabilization pad, a ten inch sewer line, a fifteen inch sewer line, concrete channels, manholes, a precast chamber, a silt fence, a fine grade, and pavement and curbs around the station. The subcontract called for the work to be substantially completed no later than August 31, 1989. Equipment agreed to pay Rosick $28,025 under the subcontract.

The subcontract contained two provisions central to this appeal. Section 11.9 stated that “the subcontractor may be ordered in writing by the Contractor [Equipment], without invalidating this Subcontract, to make changes in the work within the general scope of the Subcontract consisting of additions, deletions or other revisions, the Contract Sum and the Contract Time being adjusted accordingly. The Subcontractor, prior to the commencement of such changes or revised work, shall submit promptly to the Contractor written copies of any claim for adjustment to the Contract Sum and Contract Time for such revised work in a manner consistent with the Contract Documents.” Section 11.10 stated that “the Subcontractor shall make all claims promptly to the Contractor for additional cost, extension of time, and damages for delays or other causes in accordance with the Contract Documents. Any such claim which will affect or become part of a claim which the Contractor is required to make under the Contract Documents within a specified time period or in a specified manner shall be made in sufficient time to permit the Contractor to satisfy the requirements of the Contract Documents. Such claim shall be received by the Contractor not less than two working days preceding the time by which the Contractor’s claim must be made. Failure of the Subcontractor to make such a timely claim shall bind the Subcontractor to the same consequences as those to which the Contractor is bound.” Section 11.9 refers to “change orders” while § 11.10 refers to “additional costs.”

The plaintiff began work on or about July 23, 1989. The job required him to perform additional work, which he catalogued on seventeen invoices. Equipment paid the plaintiff an additional $5589 in compensation for work billed in six invoices leaving eleven invoices unpaid. The unpaid invoices charged for time that the plaintiff’s machines were idle and for moving machinery due to delays, removing unsuitable material, using hoe pac to compact the fill at the job site, supplying bankrun gravel for backfill, raising two manhole frames and covers, providing topsoil, some of which was rejected, recutting the roadway, paving around the comminutor, and renting warning lights and taped drums due to delays. The plaintiff never filed a written claim to change or revise the contract for this work. He claimed that Equipment owed him $20,756 for the additional work.

The plaintiff filed a complaint, which was later amended, alleging that “the plaintiff has provided said materials and labor as required under the terms of said contract, and the plaintiff, at the request of [Equipment] and in accordance with the provisions in section 11.9 of said contract, provided certain additional materials and labor on said project.” At the end of the plaintiff’s case-in-chief, the trial court dismissed counts one and two of the complaint on the ground that the plaintiff had failed to produce written change orders. The trial court permitted the case to proceed on count three of the complaint, but only as to the invoice claiming that money was owed for the providing of topsoil. The trial court found that the topsoil claim was outside the scope of the contract while the other claims were within it. At the conclusion of Equipment’s case, the trial court found that the plaintiff had not proven the elements necessary to recover under a quantum meruit theory. The trial court stated that the plaintiff failed to substantiate the amount of topsoil used, the amount rejected, or the reasonable unit price. This appeal followed.

I

The plaintiff first claims that the trial court improperly refused to allow him to present evidence concerning invoices for other work he had done that was paid for by Equipment despite a lack of prior written authorization. We are not persuaded.

Certain additional facts are necessary for a proper resolution of this issue. At trial, the plaintiff introduced a ledger sheet kept by him in the ordinary course of business. The ledger revealed the payment records for the Bradley Field pump project. The ledger indicated that Equipment paid him the full contract price totaling $28,025. The ledger also disclosed payment of six additional invoices totaling $5589. Finally, the ledger revealed an outstanding balance of $20,756 for eleven invoices. The eleven unpaid invoices are the basis of this action.

During direct examination of the plaintiff, an attempt was made to elicit testimony as to whether the work completed in connection with the six paid invoices had been authorized in writing. The plaintiff argued that the evidence was admissible to show that the parties had orally changed the contract and to show the course of conduct between the parties. The defendants objected to the admission of the evidence on the ground of relevancy. The defendants stated that the written contract required written change orders and that oral change orders in the past could not alter the contract requirements. Further, the defendants objected on the ground that the evidence was outside the scope of the complaint, which alleged neither oral changes to the contract nor changes based on a course of conduct. Instead, the complaint alleged that the parties had complied with § 11.9 of the contract. The trial court sustained the defendants’ objection on the basis of relevance. The plaintiff failed to take an exception, pursuant to Practice Book § 288, to the trial court’s ruling.

We first address the threshold question of whether Practice Book § 288, as amended, applies retroactively. Section 288, as amended effective October 1,1993, does not require a party to take an exception to an evidentiary ruling to preserve the issue for appeal. “Procedural statutes and rules of practice ordinarily apply ‘retroactively to all actions whether pending or not at the time the statute [or rule] became effective, in the absence of any expressed intent to the contrary.’ ” Mulrooney v. Wambolt, 215 Conn. 211, 216-17, 575 A.2d 996 (1990); Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council, 217 Conn. 143, 151, 584 A.2d 1183 (1991). Since § 288 lacks an expression of contrary intent, we will apply it retroactively and review the plaintiff’s claim.

“The trial court has broad discretion in determining the relevancy of evidence.” Aspiazu v. Orgera, 205 Conn. 623, 634, 535 A.2d 338 (1987); Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990); Delott v. Roraback, 179 Conn. 406, 414, 426 A.2d 791 (1980); Heritage Village Master Assn., Inc. v. Heritage Village Water Co., 30 Conn. App. 693, 700, 622 A.2d 578 (1993); Munson v. United Technologies Corporation, 28 Conn. App. 184, 189, 609 A.2d 1066 (1992); 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 67c, p. 504. “Its ruling will only be overturned if there is an abuse of discretion.” Aspiazu v. Orgera, supra; Hall v. Burns, supra; Heritage Village Master Assn., Inc. v. Heritage Village Water Co., supra; Munson v. United Technologies Corporation, supra. “In determining whether the trial court has abused its broad discretion, we will afford every reasonable presumption in favor of the correctness of its ruling. . . . The ultimate issue to be determined in a claim involving an alleged abuse of the trial court’s discretion is whether the trial court could reasonably conclude as it did.” (Citations omitted.) Gemme v. Goldberg, 31 Conn. App. 527, 538, 626 A.2d 318 (1993).

“Evidence is admissible if it has a reasonable tendency to prove or disprove a material fact in issue or shed some light upon some material inquiry. . . .” (Citations omitted; internal quotation marks omitted.) Munson v. United Technologies Corporation, supra, 190; Lombardi v. Groton, 26 Conn. App. 157, 163, 599 A.2d 388 (1991), cert. denied, 221 Conn. 908, 600 A.2d 1361 (1992). “What is in issue is determined by the pleadings . . . .” Telesco v. Telesco, 187 Conn. 715, 720, 447 A.2d 752 (1982); Vinchiarello v. Kathuria, 18 Conn. App. 377, 383-84, 558 A.2d 262 (1989); Lundborg v. Lundborg, 15 Conn. App. 156, 159, 543 A.2d 783, cert. denied, 209 Conn. 818, 551 A.2d 756 (1988); Tehrani v. Century Medical Center, 7 Conn. App. 301, 308, 508 A.2d 814 (1986). “ ‘The principle that a plaintiff may rely only upon what he has alleged is basic.’ ” Kelley v. Bonney, 221 Conn. 549, 590, 606 A.2d 693 (1992); Tehrani v. Century Medical Center, supra. “The purpose of the complaint is to limit the issues to be decided at the trial of a case .... Only those issues raised by the plaintiffs in the latest complaint can be tried . . . .” (Citations omitted.) Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557-58, 525 A.2d 954 (1987); Kelley v. Bonney, supra; Bennett v. Automobile Ins. Co. of Hartford, 32 Conn. App. 617, 620, 630 A.2d 149 (1993); Lynch v. Granby Holdings, Inc., 32 Conn. App. 574, 582, 630 A.2d 609 (1993).

The complaint simply states that “the plaintiff has provided said materials and labor as required under the terms of said contract, and the plaintiff, at the request of the defendant [Equipment], and in accordance with the provisions in Section 11.9 of said contract, provided certain additional materials and labor on said project.” (Emphasis added.) The complaint does not claim an oral modification or waiver of the contract. Since oral modification or waiver is not alleged in the complaint, the issue cannot be tried during the trial. Farrell v. St. Vincent’s Hospital, supra. Therefore, the evidence offered by the plaintiff did not tend to prove a “material fact in issue or shed some light upon some material inquiry. . . .” (Internal quotation marks omitted.) Munson v. United Technologies Corporation, supra; Lombardi v. Groton, supra. Accordingly, the trial court correctly excluded the proffered evidence.

II

The plaintiff next claims that the trial court improperly denied his motion to amend his complaint to conform to the proof at trial. We are unpersuaded.

Certain additional facts are necessary for a proper resolution of this issue. The complaint alleged that the defendants owed money to the plaintiff under § 11.9 of the contract. During direct examination, the plaintiff testified that the unpaid invoices did not contain charges for change orders under § 11.9 of the contract, but charged for additional work under § 11.10 of the contract. After the testimony, the plaintiff filed a motion to amend the complaint, pursuant to Practice Book § 178, to include a claim under § 11.10 of the contract. The plaintiff claimed that the amendment would conform the pleadings to the proof submitted at the trial. The trial court found that the facts on which the plaintiff based his claim existed three years prior to trial. The court found that the amendment would cause prejudice to the defendants.

“A trial court has wide discretion in granting or denying amendments of pleadings and rarely will this court overturn the decision of the trial court. . . . This court will not interfere with the decision of a trial court not to permit an amendment unless an abuse of discretion is clearly evident.” (Citations omitted.) S.M.S. Textile Mills, Inc. v. Brown, Tillinghast, Lahan & King, P.C., 32 Conn. App. 786, 794, 631 A.2d 340 (1993); Kelley v. Bonney, supra, 591. “ ‘While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. . . .’” (Citations omitted.) Farrell v. St. Vincent’s Hospital, supra, 561-62; Hasan v. Warden, 27 Conn. App. 794, 798, 609 A.2d 1031, cert. denied, 223 Conn. 917, 614 A.2d 821 (1992); All American Pools, Inc. v. Lato, 20 Conn. App. 625, 629, 569 A.2d 562 (1990). “Although Practice Book § 178 provides that ‘[in] all cases of any material variance between allegation and proof, an amendment may be permitted at any stage of the trial,’ our Supreme Court has often held that the word ‘may’ is discretionary and not mandatory.” Morales v. Trinity Ambulance Service, 9 Conn. App. 386, 390, 519 A.2d 90 (1986), cert. dismissed, 202 Conn. 806, 520 A.2d 1287 (1987). Upon review, “[a] trial judge has a unique vantage point that entitles his decision to great weight on appeal.” Bielaska v. Waterford, 196 Conn. 151, 154, 491 A.2d 1071 (1985); Simmons v. Southern Connecticut Gas Co., 7 Conn. App. 245, 251, 508 A.2d 785 (1986); Sansone v. Lettieri, 4 Conn. App. 466, 467, 495 A.2d 720 (1985).

The plaintiff has failed to present facts sufficient to demonstrate an abuse of discretion. Here, the plaintiff knew of the factual claims for three years prior to the trial. An amendment would have required the defendants to recall witnesses to counter the evidence elicited by the plaintiff without having time to prepare an adequate defense. The plaintiff, in his brief, argues that the defendants would not be prejudiced by the amendment because the defendants’ own trial memorandum referred to a claim under § 11.10 of the contract. While this factor may tend to demonstrate that the defendants would not be prejudiced by the amendment, it is only one piece of evidence. The trial court correctly balanced all relevant factors in denying the motion to amend and the plaintiff has failed to demonstrate that it clearly abused its discretion.

III

The plaintiff next claims that the trial court improperly dismissed counts one and two and certain claims under count three of the complaint under Practice Book § 302. We disagree.

Certain additional facts are necessary for a proper resolution of this issue. At the end of the plaintiff’s case, the defendants moved that the entire complaint be dismissed under Practice Book § 302. The trial court dismissed counts one and two. The trial court also dismissed count three with respect to all the invoices except the invoice that claimed payment for supplying additional topsoil. The trial court stated that there was no evidence that the plaintiff followed the change order procedure to make claims under § 11.9 of the contract as alleged in counts one and two. Further, the trial court dismissed certain claims made in count three because the work set out in those invoices fell within the contract. The trial court denied the motion as to the claim for the topsoil in the quantum meruit count because it did not fall within the contract.

The plaintiff claims that the trial court’s finding that the work listed on the unpaid invoices fell within the scope of the contract is inconsistent with the evidence presented at trial. He thus posits that the trial court incorrectly dismissed the quantum meruit claims.

A dismissal “of a case may be resorted to only when a plaintiff has failed to make out a prima facie case, that is, when the evidence produced by the plaintiff, if fully believed, would not permit the trier in reason to find the essential issues on the complaint in favor of the plaintiff. . . .” (Citation omitted; internal quotation marks omitted.) Logan v. O’Neill, 187 Conn. 721, 728-29, 448 A.2d 1306 (1982); Ivimey v. Watertown, 30 Conn. App. 742, 751, 622 A.2d 603, cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993). “The plaintiffs evidence is to be interpreted in the light most favorable to the plaintiff and every reasonable inference should be drawn in the plaintiff’s favor. . . .We must determine whether the trial court properly determined that the plaintiff failed to provide sufficient evidence to support his prima facie case.” (Citation omitted.) Ivimey v. Watertown, supra; Bershtein, Bershtein & Bershtein v. Nemeth, 221 Conn. 236, 239, 603 A.2d 389 (1992); Logan v. O’Neill, supra; Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 548, 447 A.2d 406 (1982); Wordie v. Staggers, 27 Conn. App. 463, 466, 606 A.2d 734 (1992). “A party has the same right to submit a weak case as he has to submit a strong one.” Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983). Whether the plaintiff established a prima facie case is a question of law for the court. Id.; Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., supra, 561; Gulycz v. Stop & Shop Cos., 29 Conn. App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1992); Wordie v. Staggers, supra, 465.

A

COUNTS ONE AND TWO

The plaintiff alleged in counts one and two of his complaint that he complied with § 11.9 of the contract. Section 11.9 required the plaintiff to submit written change orders in order to receive payment for work done under that section. The plaintiff submitted no evidence of written change orders. In the absence of any written change orders, the plaintiff could not recover under the allegations in counts one and two. Thus, the trial court acted properly in dismissing these counts under Practice Book § 302.

B

COUNT THREE

The plaintiff claimed damages under a quantum meruit theory in count three. An “implied contract can only exist where there is no express one.” Collins v. Lewis, 111 Conn. 299, 304, 149 A. 668 (1930). “[Quantum meruit [is a form] of the equitable remedy of restitution by which a plaintiff may recover the benefit conferred on a defendant in situations where no express contract has been entered into by the parties.” Burns v. Koellmer, 11 Conn. App. 375, 385, 527 A.2d 1210 (1987). “[P]arties who have entered into controlling express contracts are bound by such contracts to the exclusion of inconsistent implied contract obligations.” H. B. Toms Tree Surgery, Inc. v. Brant, 187 Conn. 343, 347, 446 A.2d 1 (1982); Polverari v. Peatt, 29 Conn. App. 191, 199, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992).

In determining the scope of a contract, “[t]he plain, clear language of the contract must be accorded its logical effect.” Four D’s, Inc. v. Mattera, 25 Conn. App. 308, 313, 594 A.2d 484 (1991). “ 'The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used.' ” E & F Construction Co. v. Rissil Construction Associates, Inc., 181 Conn. 317, 320, 435 A.2d 343 (1980); Fletcher-Terry Co. v. Grzeika, 1 Conn. App. 422, 430-31, 473 A.2d 1227 (1984). “As we have stated, in situations in which the parties have their agreement in writing, their intention is to be determined from its language and not on the basis of any intention either may have secretly entertained.” (Internal quotation marks omitted.) Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 130-31, 523 A.2d 1266 (1987). “Normally, a determination of what the parties intended by contractual commitments is ‘a question of fact, reversible only if the trier of fact could not reasonably have arrived at the conclusion it had reached’; Thompson & Peck, Inc. v. Harbor Marine Contrading Corporation, [supra, 130]; but ‘[w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.’ Id., 131. 'Terms cannot be added to a contract by interpretation.’ Connecticut Union of Telephone Workers v. Southern New England Telephone Co., 148 Conn. 192, 200, 169 A.2d 646 (1961).” Gaynor Electric Co. v. Hollander, 29 Conn. App. 865, 872-73, 618 A.2d 532 (1993); Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 158, 595 A.2d 872 (1991).

The plaintiff first claims that road patching was not included in the terms of the contract because the contract states that road patching “will be an extra.” This language does not take road patching out of the contract parameters. The contract contained § 11.10, which provided a procedure for the subcontractor to make claims for additional costs. Additional costs include extras. See Black’s Law Dictionary (6th Ed. 1990) (extra defined as additional). The express contract provided a procedure for the plaintiff to make a claim for extras and the road patching costs fell within that procedure; thus, because there was an express provision covering road patching, a quantum meruit claim to recover for this work is barred. H. B. Toms Tree Surgery, Inc. v. Brant, supra; Collins v. Lewis, supra; Polverari v. Peatt, supra; Burns v. Koellmer, supra.

The plaintiff next claims that the raising of the manhole covers was not covered by the contract. The plaintiff refers us to his own testimony and to that of James McCarthy, the Metropolitan District’s inspector, to show that the parties discussed and agreed on a price outside of the contract for manhole raising. The plaintiff further argues that if the work fell under the contract, the contract would have included this cost. This argument fails because both witnesses also testified that a change order, under § 11.9 of the contract, should have been submitted before the plaintiff completed the work. The plaintiff’s own evidence demonstrated that the contract provided a procedure for the plaintiff to make a claim for raising manhole covers. Therefore, the plaintiff is barred from raising a claim in quantum meruit for this expense. H. B. Toms Tree Surgery, Inc. v. Brant, supra; Collins v. Lewis, supra; Polverari v. Peatt, supra; Burns v. Koellmer, supra.

The plaintiff’s final claim is that the supplying of bankrun gravel was not within the purview of the contract because McCarthy testified that the parties did not anticipate the need for bankrun gravel. This testimony does not place the work outside of the contract. The contract, in § 11.10, provided a procedure for the plaintiff to make a claim for unexpected additional expenses incurred in the course of the work. The plaintiff submitted testimony that he needed the bankrun gravel to pave the pump station, which was explicitly provided for in the contract. The bankrun gravel constituted an additional cost of paving. Thus, the plaintiff cannot raise this claim in quantum meruit. H. B. Toms Tree Surgery, Inc. v. Brant, supra; Collins v. Lewis, supra; Polverari v. Peatt, supra; Burns v. Koellmer, supra.

There was no evidence presented by the plaintiff that suggested that the work for which he sought recovery in quantum meruit fell outside of the contract. The plaintiff failed to provide any evidence that would permit the trial court to have found in his favor.

IV

The plaintiff next claims that the trial court improperly found that Equipment was not obligated to pay for additional loads of topsoil delivered to the job site. We disagree.

Certain additional facts are necessary for a proper resolution of this issue. At trial the plaintiff introduced an invoice for providing topsoil. On cross-examination, McCarthy testified that Equipment rejected none of the topsoil charged in the invoice. Equipment introduced contradictory testimony by Frank Regnery, its project manager. Regnery testified that the plaintiff supplied defective topsoil and that Equipment had to use a local nursery to remedy the situation. After Equipment presented its case, the trial court stated that “very simply, the plaintiff has not proven the elements necessary to recover. . . . [Tjhere is nothing to substantiate a reasonable unit price. Nothing to substantiate how many yards are not rejected. The plaintiff did not prove his case.”

Quantum meruit allows a plaintiff to “recover the benefit conferred on a defendant in situations where no express contract has been entered into by the parties.” Burns v. Koellmer, supra. A determination of a quantum meruit claim “requires a factual examination of the circumstances and of the conduct of the parties . . . that is not a task for an appellate court [but rather for the trier of fact]. ...” (Citation omitted; internal quotation marks omitted.) Crowell v. Danforth, 222 Conn. 150, 158, 609 A.2d 654 (1992). “The factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses.” (Citations omitted.) Holy Trinity Church of God in Christ v. Aetna Casualty & Surety Co., 214 Conn. 216, 223, 571 A.2d 107 (1990). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ...” (Citations omitted; internal quotation marks omitted.) Dalia v. Lawrence, 226 Conn. 51, 71, 627 A.2d 392 (1993); Central Connecticut Teachers Federal Credit Union v. Grant, 27 Conn. App. 435, 437-38, 606 A.2d 729 (1992). On the basis of the record, we are unable to conclude that the trial court's finding is clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Equipment Maintenance and Service, Inc., and Utica Insurance Company. Count one of the complaint applies to both defendants while counts two and three apply to Equipment Maintenance and Service, Inc., only.

       Count one consisted of an action on a performance bond. Count two was a breach of contract action. Count three was a quantum meruit action. The defendant filed a counterclaim, not involved in this appeal, seeking damages for vexatious suit.

       The plaintiff testified that hoe pac is different from standard compaction equipment because it fits onto an excavator and does a better job of compacting the fill.

       The plaintiff testified that bankrun gravel is used to stabilize the top portion of earth fill to allow paving.

       Practice Book § 288, prior to October 1, 1993, provided: “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground for appeal.”

       Practice Book § 178 provides: “In all cases of any material variance between allegation and proof, an amendment may be permitted at any stage of the trial. If such allegation was made without reasonable excuse, or if the adverse party was actually misled thereby to his prejudice in maintaining his action or defense upon the merits, or if such amendment requires postponement of the trial or additional expense to the adverse party and this is shown to the satisfaction of the court, such amendment shall be made only upon payment of costs or upon such terms as the court may deem proper; but in any other case, without costs. Immaterial variances shall be wholly disregarded.”

       Practice Book § 302 provides in pertinent part: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such a motion, if in its opinion the plaintiff has failed to make out a prima facie case. . . .”


author: Per Curiam.

text:
    Richard LaValley et al. v. Jeff Correia, Connecticut State Police
    (12202)
    O’Connell, Foti and Schaller, Js.
    Argued October 1
    decision released November 9, 1993

      Gary A. Mastronardi, for the appellants (petitioners).

      Richard F. Jacobson, assistant state’s attorney, for the appellee (respondent).
   Per Curiam.

This is a joint and cónsolidated appeal from the trial court’s denial of the petitioners’ writs of habeas corpus in which they contested their extraditions to the Commonwealth of Pennsylvania. All four petitioners on appeal claim that the trial court improperly concluded (1) that Pennsylvania’s documents were properly authenticated and (2) that the petitioners were “substantially charged” within the meaning of General Statutes § 54-159. The petitioners Richard LaValley and Gregory V. Nastu also claim that the trial court improperly concluded that they were fugitives within the meaning of § 54-159. We affirm the judgment of the trial court.

The scenario resulting in this appeal began when a Pennsylvania grand jury returned a presentment recommending that the attorney general of that state initiate criminal proceedings against numerous individuals, among whom were the petitioners. Thereafter, two Pennsylvania state troopers executed affidavits incorporating the grand jury findings and submitted them to a judge who issued warrants for the petitioners’ arrests.

In due course, Pennsylvania Governor Robert Casey authenticated certain documents and, pursuant to the Uniform Criminal Extradition Act; General Statutes § 54-157 et seq.; made demand on the governor of Connecticut for the arrest and return of the petitioners. Connecticut Governor Lowell P. Weicker, Jr., issued extradition arrest warrants pursuant to which the respondent, a Connecticut state police detective, arrested the petitioners, each of whom filed a writ of habeas corpus to test the legality of the arrest. Following a hearing, the trial court denied each of the petitions and LaValley, Gary J. Montanaro, Nastu and David M. Schneider appealed to this court.

We are persuaded by our examination of the record, briefs and arguments of the parties, that the judgment of the trial court should be affirmed. In a thoughtful and comprehensive memorandum of decision, the trial court analyzed the law in a manner consistent with our statutes and case precedents. LaValley v. Correia, 42 Conn. Sup. 569, 632 A.2d 1147 (1993). Because that memorandum addresses the arguments raised in this appeal, we adopt the trial court’s well reasoned decision as a statement of the applicable law on these issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Daw’s Critical Care Registry, Inc. v. Department of Labor, 225 Conn. 99, 101-102, 622 A.2d 518 (1993); Bank of Boston Connecticut v. Brewster, 32 Conn. App. 215, 217, 628 A.2d 990 (1993).

The judgment is affirmed.

       The petitioners are Richard LaValley, Gary J. Montanaro, Gregory V. Nastu, David M. Schneider and Scott Schola. Schola has not appealed to this court.

       General Statutes § 54-159 provides: “No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging, except in cases arising under section 54-162, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.”


author: Schaller, J.

text:
    Barbara Blancato et al. v. Sebastian Randino
    (11398)
    Lavery, Landau and Schaller, Js.
    Submitted on briefs September 24
    decision released November 9, 1993

      Alexandra Davis and Wesley W. Horton filed a brief for the appellants (plaintiffs).

      Karen P. Blado, Medina K. Jett and David Sylvestre filed a brief for the appellee (defendant).
   Schaller, J.

This case is before us on remand from our Supreme Court. We previously considered the matter in Blancato v. Randino, 30 Conn. App. 810, 622 A.2d 1032, remanded for reconsideration, 226 Conn. 914, 628 A.2d 983 (1993), in which we affirmed the judgment of the trial court rejecting the plaintiffs’ claim of negligence. We concluded that the jury’s finding that the defendant’s actions were not the proximate cause of the collision obviated the need to consider whether the jury instruction on negligence per se was improper. Id., 815. The Supreme Court granted certification and remanded the case to this court for reconsideration in light of its decision in Curry v. Burns, 225 Conn. 782, 626 A.2d 719 (1993). Upon review of the plaintiffs’ claims on remand, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 9,1988, the plaintiff, Barbara Blancato, and the defendant, Sebastian Randino, were driving their respective vehicles on Ridgewood Road in Middletown shortly after a heavy snowfall. The defendant was traveling down a hill toward a sharp curve to his right. The plaintiff had passed the curve and was heading up the hill.

Temperatures that day never rose above freezing, and ice covered the surface of the road on the defendant’s side. From the crest of the hill, the defendant’s pickup truck began to slide uncontrollably on the ice. The plaintiff stopped her car near the bottom of the hill several feet away from a driveway. Despite the defendant’s efforts to maneuver his truck to the shoulder of the road, the truck slid across the center line of the road and collided with the plaintiff’s car.

At the close of trial, the court submitted the case to the jury along with ten interrogatories. The first interrogatory asked the following: “Was the collision proximately caused by the negligence of the defendant, Sebastian Randino? If you answer ‘No,’ please report that you have concluded your deliberations, and complete the defendant’s verdict form.” The jury answered the question “No” and returned a verdict for the defendant.

On remand, the dispositive issues are (1) whether, in light of Curry v. Burns, supra, the general verdict rule applies to this case, and (2) whether, if the rule does not apply, the jury’s finding that the defendant did not proximately cause the collision is dispositive of the plaintiff’s claim of instructional error.

The plaintiff first claims that, in light of Curry v. Burns, supra, the general verdict rule does not apply to this case, and, accordingly, we must consider the second claim relating to instructional error. While we agree that the general verdict rule does not apply here, we disagree with the plaintiff’s claim that the nonapplication of the rule necessitates our review of the claim of instructional error.

In light of the Supreme Court’s decision in Curry v. Burns, supra, we conclude that the general verdict rule does not apply in this case. In Curry, our Supreme Court addressed the issue of the continued viability of the general verdict rule as applied to the denial of factually distinct elements of a single cause of action. Id., 784. In its analysis, the court overruled the general verdict approach relied on in Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 520 A.2d 208 (1987), as being overbroad. Curry v. Burns, supra, 786.

The court then established parameters that limit the application of the general verdict rule to five scenarios: “(1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” Id., 801. The question presented here, whether the defendant was negligent per se, involves both issues of negligence and proximate cause. Considering the guidelines of Curry, we conclude that the general verdict rule does not apply to the facts of this case. Here, the plaintiffs claim involves the denial of two elements of the same cause of action and therefore falls outside the rubric of Curry.

Notwithstanding the analysis in Curry, in the present case the jury’s finding of no proximate cause is dispositive. See Blancato v. Randino, supra, 814. The “general verdict rule provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.” Curry v. Burns, supra, 786; Staudinger v. Barrett, 208 Conn. 94, 99, 544 A.2d 164 (1988). “A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury.” Curry v. Burns, supra; Pedersens. Vahidy, 209 Conn. 510, 514, 552 A.2d 419 (1989). The plaintiff contends that the trial court required the plaintiff to submit interrogatories to the jury on each element of negligence in order to avoid the effects of the general verdict rule. The plaintiff submitted ten interrogatories to the jury. The jury answered the dis-positive interrogatory on causation in the negative, thus obviating the need to answer the other nine interrogatories.

As the jury finding on proximate cause was dispositive, we focus our analysis on the element of causation and do not reach the plaintiff’s claim of negligence. “In order to predicate a recovery on the ground of statutory negligence, two elements must coexist. . . . [Tjhe violation of the statute must constitute a breach of duty owed to the plaintiff. . . . Second, a plaintiff must prove that the violation of the statute . . . was a proximate cause of his injuries.” (Citations omitted.) Coughlin v. Peters, 153 Conn. 99, 101-102, 214 A.2d 127 (1965); Mesite v. Kirchenstein, 109 Conn. 77, 81, 145 A. 753 (1929). “Proximate cause is ordinarily a question of fact" Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988); Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983). “Conclusions of proximate cause are to be drawn by the jury and not by the court.” Trzcinski v. Richey, supra. In this case, the jury, in its answer to the dispositive interrogatory, conclusively determined that the defendant’s actions were not the proximate cause of the plaintiffs injuries.

The evidence presented at trial established that the defendant’s side of the road was covered with ice. The defendant also testified that he was driving under the speed limit when he encountered the ice. Despite his efforts to brake and maneuver his vehicle onto the shoulder, the defendant lost control of the truck when it slid on the ice. Given these facts, the jury could reasonably conclude that the road conditions, and not the defendant’s actions, were the proximate cause of the collision. Blancato v. Randino, supra.

In light of the specific jury finding that the actions of the defendant were not the proximate cause of the collision, we conclude that we do not need to reach the plaintiffs second claim, that the improper jury instruction on negligence per se constitutes harmful error. “The ultimate question . . . is whether the erroneous ruling of the court would have been likely to affect the result.” See Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). “The appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” Id. Even if we assume that the negligence per se instruction was defective, it had no bearing on the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff Sebastian Blancato’s claim for loss of consortium is derivative of that of the named plaintiff. We will refer to the named plaintiff as the plaintiff in this opinion.

       The plaintiff contends that the defendant was negligent per se because he violated several provisions of our General Statutes pertaining to highway use. The statutes in question concern traveling unreasonably fast, traveling on the wrong side of the road and failing to pass oncoming traffic on the right. See General Statutes §§ 14-218a, 14-230, 14-231.

       The court found that the dispositive interrogatory was phrased so as to include the elements of negligence and causation. Blancato v. Randino, 30 Conn. App. 810, 814 n.3, 622 A.2d 1032 (1993).

       The wording of the dispositive interrogatory to include the elements of both negligence and causation is favorable to the plaintiff as the chosen expression assumes the defendant’s negligence.


author: Cretella, J.

text:
    State of Connecticut v. Stephen Krijger
    (11855)
    Foti, Landau and Cretella, Js.
    Argued September 22
    decision released November 16, 1993

      Stephen J. Krijger, pro se, the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Mary Jean Kanabis, assistant state’s attorney, for the appellee (state).
   Cretella, J.

The pro se defendant appeals from the judgment of conviction, rendered after a jury trial, of reckless driving in violation of General Statutes § 14-222, engaging police in pursuit in violation of General Statutes § 14-223 (b), and misuse of license plates in violation of General Statutes § 14-147 (c). The defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal as there was not sufficient evidence to support the jury’s guilty verdict, (2) denied him the constitutional right to a speedy trial, and (3) denied him a continuance, which prevented him from calling another witness. We disagree.

The jury could reasonably have found the following facts. On February 25,1991, shortly after 2 p.m., Raymond Loughman, a Groton police officer operating an unmarked vehicle, saw the defendant’s silver BMW go through a red light. Loughman observed, from a distance of approximately twenty-five to fifty feet, that the driver was the sole occupant of the BMW. The officer activated his flashing emergency lights and siren and began to follow the defendant on Route 1 in Groton. The defendant led the officer on a high speed chase, passing cars in both lanes and weaving in and out of moderate traffic before getting on the entrance ramp for 1-95 north. On the highway, he continued to weave back and forth across the lanes driving in excess of seventy miles per hour.

Loughman radioed headquarters for assistance and was joined by Sergeant Michael Lewin, also of the Groton police department. The defendant exited 1-95 at the Route 117 juncture, proceeded south on Route 117 and turned onto Hazelnut Hill Road, a winding, country road. Loughman lost sight of the defendant but Lewin observed him run behind a church on Hazelnut Hill Road. Minutes later, when Lewin pulled into the church parking lot, he discovered the defendant’s car parked there. The defendant, who was the only other person in the parking lot, admitted that the car was his, but claimed that he was merely a passenger and not the operator.

The defendant claimed that the operator, who had been test-driving the car to decide whether to buy it, exited the car at the Pequot Center on Hazelnut Hill Road, one-half mile away from the church. The defendant maintained that it was at that point that he got in the driver’s seat and drove up the road to the church where he had an appointment with the minister. He also indicated that he was unaware that the police were following his car. The officers ran a check of the license plate and discovered that, although the plate was registered to the defendant, it was assigned to a different car. The defendant admitted that he had taken the plate off his other car and put it on this one.

The jury chose not to give credence to the defendant’s claim that he was only a passenger in the vehicle or to the sole witness produced by the defendant who testified that he had observed the defendant as a passenger when the defendant’s vehicle passed his on 1-95, sometime between 2 and 3 p.m. on February 25,1991.

I

The defendant first claims that the trial court should have granted his motion for judgment of acquittal because the state produced insufficient evidence to sustain his convictions of engaging an officer in pursuit and reckless driving. We disagree.

“ Tn reviewing a claim of insufficiency of the evidence, this court construes the evidence in the light most favorable to sustaining the jury’s verdict and will affirm that verdict if it is reasonably supported by the evidence and the logical inferences drawn therefrom.’ . . .” State v. Adams, 225 Conn. 270, 276, 623 A.2d 42 (1993), quoting State v. Ruscoe, 212 Conn. 223, 245, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990). “The issue is whether the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” State v. Ruscoe, supra.

To convict the defendant of the crimes of engaging an officer in pursuit and reckless driving, the state first had to prove that the defendant was operating the vehicle. A jury need not accept a defendant’s version of the events or the reasonable inferences that flow therefrom. State v. Adams, supra, 278. “The jury is free to juxtapose conflicting versions of events and to determine which is the more credible. See, e.g., State v. Bunkley, 202 Conn. 629, 645, 522 A.2d 795 (1987); State v. Banks, 194 Conn. 617, 619, 484 A.2d 444 (1984). Should it determine, as it did here, that the state has proven beyond a reasonable doubt facts constituting the elements of the crimes charged, its responsibility is to return verdicts of guilty. We do not sit as [an additional] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991).” (Citation omitted; internal quotation marks omitted.) State v. Adams, supra.

Applying these standards to this case, we conclude that the evidence presented by the state could reasonably have persuaded the jury, beyond a reasonable doubt, that the defendant was the driver of the vehicle, and thus was guilty of the operating offenses of engaging an officer in pursuit and reckless driving.

II

The defendant next claims, for the first time on appeal, that he was denied his right to a speedy trial. We disagree.

The defendant now claims that the delay of nineteen months from his arrest on February 25, 1991, to his trial on September 14,1992, demonstrates the lack of a speedy trial. He admits that he failed to preserve the speedy trial claim by making a motion in the trial court. He argues, however, that because he has proffered a constitutional claim, it is reviewable under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We conclude, however, that the defendant failed to reach any of the four prongs that would justify a review under Golding. This is especially obvious as to the absence of an adequate record since there was never any hearing held.

III

The defendant’s last claim is that the trial court abused its discretion when it refused to give him an additional day at the end of the trial to produce another witness.

Approximately one week before trial, the court notified the defendant that the trial date had been changed and the trial would begin on September 14, 1992, instead of September 15,1992. At trial, the defendant admitted that he had received notice of such schedule change but claimed that as a result of it, a witness that had intended to testify on the original trial date was unable to do so on September 14. The defendant claims that this witness’ testimony was crucial to his case because she would have corroborated the testimony of his only other witness that the defendant was a passenger in the BMW and not the driver.

The transcript clearly establishes that the defendant did not request a continuance to accommodate this witness. Even if we construe the dialogue between this pro se defendant and the court as being an informal request for a continuance, he did not properly take exception to the court’s decision to proceed. The following dialogue took place:

“The Court: . . . Any other witnesses?
“The Defendant: There was one other lady, Your Honor. She had children and she had made arrangements for tomorrow. She may or may not show up today.
“The Court: No, this is your trial today.
“The Defendant: Yes, Your Honor.
“The Court: I know that you have had notice and that’s why we have gone ahead.
“The Defendant: Yes.
“The Court: Are you ready for your argument now?
“The Defendant: Yes, Your Honor.”

The defendant made no further requests for continuance or any objection to the trial court’s ruling to proceed. Although we allow pro se litigants some latitude, “the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” Galland v. Bronson, 204 Conn. 330, 334-35, 527 A.2d 1192 (1987); Duve v. Duve, 25 Conn. App. 262, 264, 594 A.2d 473, cert. denied, 220 Conn. 911, 579 A.2d 332 (1991), cert. denied, U.S. , 112 S. Ct. 1224, 117 L. Ed. 2d 460 (1992).

Furthermore, even if we glean from the defendant’s dialogue with the court that he did request a continuance, which the court denied, such denial is within the discretion of the trial judge and will be set aside only if a clear abuse of discretion is shown. State v. Walker, 215 Conn. 1, 9-10, 574 A.2d 188 (1990); State v. Williams, 200 Conn. 310, 320, 511 A.2d 1000 (1986). “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.” Thode v. Thode, 190 Conn. 694, 697, 462 A.2d 4 (1983). To establish an abuse of discretion, the defendant must show that denial of the continuance demonstrably prejudiced his ability to defend himself. State v. Walker, supra, 10; State v. Stanley, 197 Conn. 309, 312, 497 A.2d 46 (1985). We cannot conclude that the trial court abused its discretion by refusing to delay the trial nor is there a reason to believe that its denial of the defendant’s request impaired his ability to present a defense.

The judgment is affirmed.

In this opinion the other judges concurred.

       Even if we chose to review the defendant’s speedy trial claim, it is without merit. The record reveals that the defendant was arrested on February 25,1991. His first court appearance was March 11,1991, when a public defender was appointed. Subsequently, the case was continued without the defendant’s objection until June 18,1991, when the defendant applied for accelerated rehabilitation. On that date, the state also entered nolle prosequis in the counts of engaging police in pursuit and improper use of plates. On July 10,1991, the defendant was terminated from accelerated rehabilitation because it was discovered that he had previously been in that program. On August 23,1991, the state’s nolle prosequis were reopened and the defendant pleaded not guilty.


author: Freedman, J.

text:
    Mary Joan McCann v. City of New Haven
    (11899)
    O’Connell, Heiman and Freedman, Js.
    Argued October 4
    decision released November 16, 1993

      Michael F. O’Connor, with whom, on the brief, was Kevin Walsh, for the appellant (plaintiff).

      Linsley J. Barboto, assistant corporation counsel, for the appellee (defendant).
   Freedman, J.

The plaintiff, Mary Joan McCann, appeals from the summary judgment rendered by the trial court in favor of the defendant city of New Haven. The plaintiff claims that the trial court improperly determined that the notice given to the defendant, pursuant to General Statutes § 13a-149, was inadequate as a matter of law. We reverse the judgment of the trial court.

The relevant facts are as follows. On May 25, 1992, the plaintiff filed a two count revised complaint alleging that on November 14,1990, she suffered physical and emotional injuries as the result of a fall on a dangerous and defective roadway maintained by the defendant. In her complaint, the plaintiff alleged that “[njotice of the incident was duly given to the defendant on December 18, 1990, a copy of which notice is attached hereto as Exhibit A.” See General Statutes § 13a-149. The notice sent to the defendant by the plaintiff provided that the fall occurred “where the road surface meets the curbing adjacent to 17 Hillhouse Avenue — east side of Hillhouse Avenue, New Haven, CT.” The notice went on to state that the cause of the fall was a “[hjole in [the] street surface; deteriorated street surface.”

On October 27, 1992, the defendant filed a motion for summary judgment on the ground that “the plaintiff has failed to provide the defendant with the proper statutory notice for the defective highway claim brought in the first count.” Three affidavits accompanied the motion for summary judgment. The first was executed by the assessor for the defendant city who stated that “the dimensions of the property located at 17 Hillhouse Avenue are approximately 165 by 272 feet” and that the 272 foot dimension faced Hillhouse Avenue. The second affidavit was executed by an employee of the defendant’s engineering department and stated that “the parcel located at 17 Hillhouse Avenue abuts approximately 270 linear feet of curbage fronting Hillhouse Avenue.” The third affidavit was executed by one of the defendant’s police officers who was a public liability investigator assigned to the office of the corporation counsel. This affidavit stated that the affiant “was unable to determine from the description in the notice which portion of the road surface the notice indicated” and that the affiant “was unable to locate the alleged defect from the description in the notice.” The plaintiff filed an objection to the motion for summary judgment and a memorandum of law in support thereof, but filed no counteraffidavits. The trial court granted the motion for summary judgment. The trial court did not file a memorandum of decision. The plaintiff appeals from the granting of summary judgment.

“Summary judgment is a method of resolving litigation when 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. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. ...” (Citations omitted; internal quotation marks omitted.) Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 316-17, 477 A.2d 1005 (1984).

Section 13a-149 provides that before an action for personal injury caused by a defective road may be brought against a municipality bound to keep it in repair, the claimant must first give the municipality “written notice of such injury and a general description of the same, and of the cause thereof and the time and place of its occurrence.” “Whether notice is sufficient is normally a question of fact for the jury. . . . The sufficiency of the notice is to be tested by the purpose of the statute, and not by the requirements of a pleading. . . . The obvious purpose of [the statutory notice provision] is that the officers of municipal corporations, against which suits for injuries are about to be instituted, shall have such precise information as to time and place as will enable them to enquire into the facts of the case intelligently. . . . Notice is sufficient if it enables one of ordinary intelligence, using ordinary diligence under the circumstances, to ascertain where the injury occurred. ...” (Citations omitted; emphasis in original; internal quotation marks omitted.) Bassin v. Stamford, 26 Conn. App. 534, 539, 602 A.2d 1044 (1992).

Here, the notice informed the municipality that the defect was a “hole in [the] street surface; deteriorated street surface” and that the defect was located “where the road surface meets the curbing adjacent to 17 Hillhouse Avenue — east side of Hillhouse Avenue, New Haven, CT.” While we recognize that the notice in this case is not a model of clarity, it cannot be said that, as a matter of law, it was so insufficient that it would not enable one of ordinary intelligence, using ordinary diligence under the circumstances of this case, to ascertain the defect and where it was located. See id. Neither the fact that the frontage of the property at 17 Hillhouse Avenue is 270 or 272 feet long, nor the fact that the investigator for the corporation counsel’s office was unable to locate the defect is in and of itself sufficient to render the notice inadequate as a matter of law. Because there is a genuine issue as to the adequacy of the notice, which issue should properly have been submitted to the jury, the trial court should not have rendered summary judgment.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       The plaintiff further claims that even if the notice were inadequate as a matter of law, the saving clause contained in General Statutes § 13a-149 would validate the notice. Because of our disposition of this matter we need not reach this issue.

       The second count alleging the creation and maintenance of a nuisance by the defendant was withdrawn at the time of the hearing on the motion for summary judgment.

       General Statutes § 13a-149 provides in relevant part: “No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”


author: Dupont, C. J.

text:
    State of Connecticut v. Marin Robles
    (11521)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued September 27
    decision released November 16, 1993

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Steven M. Sellers, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James R. Dinnan, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from a judgment of conviction, rendered after a trial to the court, of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). He claims that the trial court improperly admitted testimony that focused on the defendant’s invocation of his constitutionally protected right to silence. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. During the early evening of December 12,1990, Efrain Acevedo visited the Meriden apartment of the defendant, who expressed his dissatisfaction with a car radio that Acevedo had sold to him one month earlier. When Acevedo refused to refund his money, the defendant became angry and challenged Acevedo to fight. Acevedo declined and left the defendant’s apartment. He observed a police car nearby, and asked Officer Lou Sobieraj, who was inside the car, to calm down the defendant. Acevedo was concerned that the defendant might attack him. Sobieraj did not get a chance to speak to the defendant, however.

After Acevedo had returned to his own apartment, the defendant and another man knocked at the door while Acevedo was in the living room playing with his son. When Acevedo again refused to refund his money, the defendant pushed in the partially opened door and stabbed Acevedo in the left side of his chest with a knife. Acevedo pulled out the knife, grabbed a nearby baseball bat, struck the defendant over the head with the bat and then fell to the floor. Acevedo’s wife ran into the living room to help, and he asked her to get his revolver. At that point, the defendant and his companion left. After the police arrived, Acevedo was taken to the hospital for emergency surgery on the potentially deadly wound, and has since fully recovered.

After reporting to the scene of the stabbing, two police officers, Michael Lyons and Sobieraj visited the defendant’s apartment. The defendant was bleeding from a cut on his head when he answered the door, and, when asked by Lyons what had happened, the defendant said that he had “hurt himself.” Another police officer, Carlos Otero, later arrived at the defendant’s apartment and advised the defendant in Spanish of his Miranda rights. Otero then asked him how he had received the gash in his forehead. The defendant replied that someone had hit him over the head with a baseball bat, but did not mention the stabbing. Subsequently, the defendant was transported to the hospital. When the defendant was released from the hospital, Otero had him sign a Miranda rights form printed in Spanish, which the defendant said he understood. At that time, the defendant refused to make a further statement.

At trial, the prosecutor asked Lyons once, the defendant once, and Otero twice if the defendant ever mentioned that he had stabbed someone. The state, in its closing argument, again alluded to the silence of the defendant as to the stabbing. The defendant was found guilty of assault in the first degree by the trial court. His sole claim is that the trial court improperly admitted the testimony of Otero and the defendant regarding the defendant’s postMiranda silence, which the state used to impeach the defendant’s credibility.

The defendant claims that the trial court violated his rights to due process and against self-incrimination pursuant to the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution when it permitted the state to ask questions that focused on the defendant’s post-Miranda silence. Such questioning is prohibited by the decision of the United States Supreme Court in Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); see also State v. Silano, 204 Conn. 769, 529 A.2d 1263 (1987); State v. Apostle, 8 Conn. App. 216, 512 A.2d 947 (1986).

The defendant’s counsel did not preserve this claim by raising an objection to the challenged testimony at trial. The defendant maintains, however, that the issue can be reviewed under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Golding held that a defendant can prevail on an unpreserved claim of constitutional error only if the record is adequate to review the claim of error, if the defendant alleges the violation of a fundamental constitutional right that clearly exists and clearly deprived him of a fair trial, and, if a harmless error analysis must be undertaken, the state has failed to demonstrate the harmlessness of the violation beyond a reasonable doubt. Id., 239-40. “In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” Id., 240. Here, we need not decide whether the trial court committed a Doyle violation by allowing the state to ask questions about the defendant’s postMiranda silence because we conclude that the state has proven beyond a reasonable doubt that any violation of the principles of Doyle was harmless.

The test for harmfulness of a Doyle violation “is whether ‘there is a reasonable possibility that the improperly admitted evidence contributed to the conviction. . . .’ ’' State v. Jones, 215 Conn. 173, 184, 575 A.2d 216 (1990), quoting Schneble v. Florida, 405 U.S. 427, 432, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972). “The harmlessness of an error depends upon its impact on the trier and the result . . . .” (Internal quotation marks omitted.) State v. Jones, supra, 185.

Here, the trial was before a court, not a jury, which decreases the likelihood that the trier of fact was misled by the state’s allusion to the defendant’s invocation of his Miranda rights. See State v. Sherbacow, 21 Conn. App. 474, 484, 574 A.2d 817, cert. denied, 216 Conn. 808, 580 A.2d 65 (1990). The collective decision of a jury is more likely to reflect the taint of a Doyle violation than the decision of a trial judge trained to sift out and discard evidentiary improprieties.

Moreover, the defendant’s invocation of his right to remain silent is neither mentioned nor alluded to in the transcript of the court’s decision. The transcript instead contains the court’s assessment of the overall incredibility and transparency of the defendant’s story in comparison to Acevedo’s “logical and consistent” explanation of the altercation. The court stated that it did not have much difficulty determining which account to believe, as there was not “a single piece that [did not] fit” Acevedo’s story. The court concluded that the evidence against the defendant was overwhelming.

Although the state alluded to the silence of the defendant on four separate occasions, none of its questions was specifically directed at postarrest, as opposed to prearrest, silence. Rather, the state asked whether the defendant had “ever” told the police that he stabbed Acevedo. We acknowledge that State v. Esposito, 223 Conn. 299, 319-20, 613 A.2d 242 (1992), held that a question that could reasonably be understood to encompass both prearrest and postarrest silence should not be allowed. See also State v. Jeffrey, 220 Conn. 698, 721, 601 A.2d 993 (1991), cert. denied, U.S. , 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992). The state’s questions in this trial to the court, however, cannot be said to have “struck at the jugular” of the defendant’s defense, or “highlighted” the defendant’s silence to the point of prejudicial error. State v. Canty, 223 Conn. 703, 714, 613 A.2d 1287 (1992). On the basis of the totality of the circumstances in this case, we conclude that the state has established beyond a reasonable doubt that the alleged improper questioning was not a factor in the outcome of the trial. See State v. Canty, supra, 714; State v. Jones, supra, 185-87; State v. Apostle, supra, 227. The defendant, therefore, cannot prevail. State v. Golding, supra, 239-40.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 provides in relevant part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       In the defendant’s brief, he also claimed as improper the court’s admission of the testimony of Lyons regarding the defendant’s failure to inform the police of the stabbing. Because it is unclear from the record, however, whether Lyons spoke to the defendant before or after Otero read him his Miranda rights, the defendant abandoned this claim in his reply brief.