author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. RICHARD ANNULLI
    (AC 32272)
    Bishop, Robinson and Peters, Js.

      Argued May 19
    officially released August 9, 2011

      Mark G. Ouellette, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, former state’s attorney, and Cynthia S. Serafini, senior assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Richard Annulli, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (B), one count of attempt to commit sexual assault in the fourth degree in violation of General Statutes §§ 53a-49 and 53a-73a (a) (1) (B), and three counts of risk of injury to a child in violation of General Statutes § 53-21 (a). On appeal, the defendant claims that (1) the trial court improperly excluded certain impeachment evidence in violation of § 6-6 (b) (1) of the Connecticut Code of Evidence, and his rights to confrontation and to present a defense under the sixth amendment to the United States constitution, and (2) the evidence was insufficient to support his conviction of one count of sexual assault in the fourth degree and one count of risk of injury to a child. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. One day in the fall of 2006, the victim, A, was visiting with her friend, K, at K’s home in Oakville when the defendant, who was the victim’s neighbor at the time, stopped his vehicle in front of K’s home and requested that the victim come over to his vehicle. The victim walked over to the passenger’s side of the vehicle and leaned on the vehicle by the open window. While the victim was leaning on the vehicle, the defendant grabbed her arm, pulled her body halfway into the vehicle and attempted to kiss her. When the victim refused to kiss the defendant, he attempted to place her hand on his penis and told her not to tell anyone about the incident. At this point, K, who had observed the entire incident, ran over to the vehicle and began to pull the victim free. When the victim finally pulled free of the defendant, the victim and K ran into K’s home and locked the door.

On another occasion, in the summer of 2007, the victim went to the defendant’s house to summon her brother, B, home. While the victim was waiting for B, she went into the defendant’s garage and sat down. The defendant, who was working in the garage at the time, walked over to the victim and began touching her vagina through her clothing. As the defendant groped the victim, he told her, referring to her vagina, that “it was mine” and “not to let anybody else touch it.” He also warned the victim not to disclose the abuse. Thereafter, the victim left and returned to her home.

Later during the summer of 2007, the victim again went over to the defendant’s house. While the victim was in the defendant’s kitchen, he tried to put his hand on the victim’s vagina but she walked away. At some point after the victim initially had walked away from the defendant, he touched her vagina through her clothing. The victim then left the house.

On January 31,2008, the victim telephoned the defendant’s house from her school in an effort to contact the defendant’s son. The defendant answered the telephone and informed the victim that his son was not at home. The victim explained that she needed a ride to her mother’s workplace and the defendant offered to drive her. The victim accepted the defendant’s offer and he picked her up from school. During the ride, the defendant placed his hands between the victim’s crossed legs and tried pushing them apart. The victim moved away from the defendant, pressed herself against the passenger side door and pretended to be sending text messages from her cellular telephone. When they arrived at the workplace of the victim’s mother, the defendant told the victim not to tell anyone about the incident.

The next day, on February 1, 2008, the victim disclosed the incidents of abuse to her mother and Detective Lisa Scannell of the Watertown police department. After conducting an investigation, the police obtained a warrant and arrested the defendant. The defendant was charged in a substitute information with two counts of sexual assault in the fourth degree, one count of attempt to commit sexual assault in the fourth degree, three counts of risk of injury to a child and one count of attempt to commit kidnapping in the second degree in violation of General Statutes §§ 53a-49 and 53a-94 (a).

On February 22, 2010, the evidentiary portion of the defendant’s trial commenced. On February 24, 2010, the trial court granted the defendant’s motion for a judgment of acquittal as to the charge of attempt to commit kidnapping in the second degree. On February 26, 2010, the jury returned guilty verdicts as to the remaining six charges. On May 7, 2010, the court sentenced the defendant to a total effective term of ten years incarceration, execution suspended after five years, followed by fifteen years probation, which included a number of special conditions. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly excluded certain impeachment evidence in violation of § 6-6 (b) (1) of the Connecticut Code of Evidence, and his rights to confrontation and to present a defense under the sixth amendment to the United States constitution. Specifically, the defendant argues that the court abused its discretion when it precluded defense counsel from cross-examining the victim about an unrelated incident in which she allegedly lied to the police and altered evidence. We are not persuaded.

The following additional facts are relevant to the defendant’s first claim. During cross-examination, defense counsel questioned the victim about her honesty and inquired as to whether she ever lied to her friends during Internet conversations. The state objected to this line of inquiry and requested a discussion outside the presence of the jury. The court excused the jury and heard arguments from both parties.

Outside the presence of the jury, defense counsel claimed that he had evidence that showed that the victim had “intentionally altered e-mail documents and [had] lied [to the police] in an attempt to have another person arrested for threatening her.” In response, the state told the court that there was “some discrepancy” as to what had been said online and, consequently, the evidence was unclear as to whether the victim had lied. In response, defense counsel maintained that the victim had “intentionally chang[ed] the course of a conversation and then [lied] to the police . . . [about] what [had] happened.” Following the state’s request, defense counsel made an offer of proof.

After considering the offer of proof and additional arguments by the parties, the court determined that the evidence failed to establish that the victim had lied to the police, and, therefore, defense counsel could not make this inquiry. Even though this line of inquiry was not permitted, the court indicated that defense counsel could pursue other lines of questioning concerning the victim’s credibility.

After the jury was returned to the courtroom, defense counsel resumed cross-examination of the victim, asking her if she was involved in an incident with a classmate involving the exchange of e-mail messages. The state objected on the ground that the question was beyond the scope of direct examination. Defense counsel argued that he was “establishing a basis ... as to credibility regarding [the victim] and her dealings with another witness.” After speaking with counsel off the record, the court again excused the jury.

Outside the presence of the jury, the court permitted defense counsel to make an offer of proof by questioning the victim. After the victim admitted to being involved in an incident with a classmate involving the exchange of e-mail messages, defense counsel asked the victim repeatedly if she had changed or altered the e-mails that she had provided to the police in connection with the incident. In response, the victim stated that she had copied and pasted the e-mails into a Word document and provided this information to the police. She further testified that the police were aware that the information that she had provided to them had been copied and pasted from the original, and that she had not been arrested for changing the e-mails or filing a false statement to the police. At the conclusion of defense counsel’s questioning, however, the following exchange occurred:

“[Defense Counsel]: When you . . . were at the police station, the bottom line and end result was that it was determined that the e-mail you claimed you received you had changed, correct?

“[The Victim]: Yes.

“[Defense Counsel]: So you lied to the police because you told them you had been threatened and it really wasn’t true, correct?

“[The Victim]: Yes.”

On cross-examination, the state inquired as to what the victim had meant when she stated on direct examination that she had copied and pasted the e-mails. The victim responded that she had “highlighted [the e-mails] from MySpace and . . . copied [them] and went to Word Pad and pasted [them].” Upon further examination, the victim admitted that she had deleted some of the information contained in the original e-mails, but maintained that she had not altered the e-mails in such a manner as to contain a threat that was not in the original. At the conclusion of the state’s cross-examination, the following exchange occurred:

“[The Prosecutor]: And so as you sit here today, did you lie to the police about the threat that you got from [a classmate]?

“[The Victim]: No.

“[The Prosecutor]: Was it a he [that a classmate] had threatened you?

“[The Victim]: No.”

At the conclusion of the testimony, the court ruled: “Any line of questioning concerning whatever this incident may or may not have been between [the victim] and [the classmate] is collateral and that line of questioning is not allowed.”

We begin our analysis by setting forth the legal principles and standard of review that guide our resolution of the defendant’s claim. “The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest seemed by confrontation is the right to cross-examination .... Indeed, if testimony of a witness is to remain in the case as a basis for conviction, the defendant must be afforded a reasonable opportunity to reveal any infirmities that cast doubt on the reliability of that testimony. . . . The defendant’s right to cross-examine a witness, however, is not absolute. . . . [T]he [c]onfrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . Thus, [t]he confrontation clause does not . . . suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination.” (Citations omitted; internal quotation marks omitted.) State v. Mark R., 300 Conn. 590, 608-609, 17 A.3d 1 (2011).

In analyzing the defendant’s claim, then, “we first review the trial court’s evidentiary [ruling]. Om standard of review for evidentiary claims is well settled. To the extent [that] atrial court’s admission [or exclusion] of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. . . . We review the trial court’s decision to admit [or exclude] evidence, if premised on a correct view of the law, however, for an abuse of discretion. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court . . . reasonably [could have] conclude[d] as it did. ... If, after reviewing the trial court’s evidentiary rulings, we conclude that the trial court properly excluded the proffered evidence, then the defendant’s constitutional claims necessarily fail. ... If, however, we conclude that the trial court improperly excluded certain evidence, we will proceed to analyze [w]hether [the] limitations on impeachment, including cross-examination, [were] so severe as to violate [the defendant’s rights under] the confrontation clause of the sixth amendment . . . .” (Citations omitted; internal quotation marks omitted.) State v. Davis, 298 Conn. 1, 10-11, 1 A.3d 76 (2010).

In the present case, the defendant claims that the proffered evidence establishes that the victim admitted that she had lied to the police about being threatened by a classmate and that she had made substantive alterations to the e-mail messages containing the threat prior to bringing them to the police. According to the defendant, this evidence establishes that the victim was untruthful, and, consequently, defense counsel should have been permitted, pursuant to § 6-6 (b) of the Connecticut Code of Evidence, to cross-examine the victim regarding these instances of untruthfulness and the court’s failure to permit this line of inquiry, therefore, constituted an abuse of discretion. We disagree.

Section 6-6 (b) (1) of the Connecticut Code of Evidence provides in relevant part: “A witness may be asked, in good faith, about specific instances of conduct of the witness, if probative of the witness’ character for untruthfulness.” Pursuant to this rule of evidence, “[a] witness may be impeached by specific acts of conduct that evidence a lack of veracity.” State v. Crumble, 24 Conn. App. 57, 67, 585 A.2d 1245, cert. denied, 218 Conn. 902, 588 A.2d 1077 (1991); see Hicks v. State, 287 Conn. 421, 451, 948 A.2d 982 (2008). While a witness may be impeached by such acts, “[b]oth the allowance and the extent of cross-examination into the [prior acts] of a witness is discretionary with the trial court . . . and such evidence may be excluded ... if it has a tendency to confuse or impede the litigation by injecting collateral issues into the trial.” (Citation omitted; emphasis added.) State v. Crumble, supra, 67-68; see also State v. James, 211 Conn. 555, 571-72, 560 A.2d 426 (1989) (court may exclude evidence if it has “tendency to inject a collateral issue into the trial”); Robinson v. Atterbury, 135 Conn. 517, 521, 66 A.2d 593 (1949) (“the trial court has a reasonable discretion as to the extent to which . . . cross-examination [concerning a witness’s lack of veracity] will be permitted, particularly when the result might be to raise collateral issues”).

In the present case, our review of the proffered evidence reveals that the victim provided inconsistent testimony regarding whether she had lied to the police and whether she had made substantive alterations to the e-mail messages that she provided to the police. In particular, during her direct examination by defense counsel, the victim testified that she had lied to the police about being threatened by a classmate and that she had altered the e-mail messages that she had provided to them. Upon cross-examination by the state’s attorney, however, the victim testified that she had not lied to the police about being threatened by her classmate and that she had not altered the e-mail messages in a manner that changed the nature of what had been stated in the original e-mails. Therefore, contrary to the defendant’s claim, the proffered evidence was unclear regarding whether the victim had lied to the police and whether she had substantively altered the e-mail messages containing the threat. As the proffered evidence was unclear, the court reasonably could have concluded that introduction of the proffered evidence would have injected collateral issues into the trial by requiring the jury to determine whether the victim in an unrelated incident had lied to the police and made substantive alterations to the e-mail messages.

Having concluded that the trial court reasonably could have concluded that the evidence would have injected collateral issues into the trial, we cannot conclude that the trial court abused its discretion when it precluded defense counsel from introducing this evidence by cross-examining the victim about whether she had lied to the police and altered evidence. Consequently, because the court did not abuse its discretion on the evidentiary issue, the defendant’s constitutional claims necessarily fail. See State v. Davis, supra, 298 Conn. 11.

II

The defendant next claims that the evidence was insufficient to support his conviction of one count of sexual assault in the fourth degree and one count of risk of injury to a child, as charged in counts three and four of the substitute information, respectively. Count three alleged that the defendant committed sexual assault in the fourth degree “on a date or dates between January 1, 2007 and December 31, 2007 . . . .” Count four alleged that the defendant committed risk of injury to a child “on a date or dates between January 1, 2007 and December 31, 2007 . . . .” We are not persuaded that the evidence was insufficient.

We begin by setting forth the applicable standard of review. “In reviewing a sufficiency of the evidence claim, we utilize a two part analysis. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Sherman, 127 Conn. App. 377, 382, 13 A.3d 1138 (2011). “This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Reynolds, 118 Conn. App. 278, 309, 983 A.2d 874 (2009), cert. denied, 294 Conn. 933, 987 A.2d 1029 (2010).

A

We first consider whether the evidence was sufficient to support the defendant’s conviction of sexual assault in the fourth degree, as charged in count three of the substitute information.

Section 53a-73a (a) (1) (B) provides in relevant part that a person is guilty of sexual assault in the fourth degree when “[s]uch person intentionally subjects another person to sexual contact who is . . . thirteen years of age or older but under fifteen years of age and the actor is more than three years older than such other person . . . .” General Statutes § 53a-65 (3) defines “ ‘[s]exual contact’ ” as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person . . . .” Section 53a-65 (8) defines “ ‘[i]ntimate parts’ ” as “the genital area or any substance emitted therefrom, groin, anus or any substance emitted therefrom, inner thighs, buttocks or breasts.” Therefore, “the state was required to present sufficient evidence to prove beyond a reasonable doubt that the defendant had contact with [the victim’s] genital area for the purpose of sexual gratification . . . .” State v. Michael H., 291 Conn. 754, 760, 970 A.2d 113 (2009).

At trial, the victim testified that the defendant had touched her vagina on two different occasions during the summer of 2007. One incident occurred while the victim was in the defendant’s garage waiting for her brother. According to the victim’s testimony, while she was seated in the garage, the defendant walked over to where she was seated, touched her vagina through her clothing and, while doing so, told her that “it was mine” and “not to let anybody else touch it.” The other incident occurred when the victim was in the defendant’s kitchen. The victim testified that the defendant attempted to touch her vagina but she walked away. According to the victim, after she walked away, the defendant was able to touch her vagina through her clothing.

In support of his insufficiency claim, the defendant argues that, notwithstanding the victim’s testimony that the defendant did touch her vagina, the jury could not reasonably have inferred that he had contact with the victim’s genital area in his kitchen because the victim testified that she had walked away from him when he attempted to touch her and, therefore, it was physically impossible for him to have touched the victim. The defendant’s argument, however, ignores that the victim testified to more than one incident of sexual contact involving the defendant during the summer of 2007. As stated previously, in addition to the incident in the defendant’s kitchen, the victim also testified that the defendant touched her vagina in his garage. As count three of the substitute information charged that the defendant had sexual contact with the victim on “a date or dates between January 1, 2007 and December 31, 2007,” the state only needed to establish that one incident of sexual contact occurred during this time frame to support the charge.

Construed in the light most favorable to sustaining the verdict, the jury reasonably could have concluded that the defendant had contact with the victim’s genital area for the purpose of sexual gratification in the summer of 2007 based solely on the victim’s testimony concerning the defendant’s conduct in his garage. Therefore, we conclude that the evidence was sufficient to support the defendant’s conviction of sexual assault in the fourth degree as alleged in count three of the substitute information, and, accordingly, we reject the defendant’s first claim of insufficient evidence.

B

We next consider whether the evidence was sufficient to support the defendant’s conviction of risk of injury to a child, as charged in count four of the substitute information.

Section 53-21 (a) (2) provides in relevant part that a person is guilty of risk of injury to a child when such person “has contact with the intimate parts ... of a child under the age of sixteen years ... in a sexual and indecent manner likely to impair the health or morals of such child . ...” As stated previously, § 53a-65 (8) defines “ ‘[i]ntimate parts’ ” as “the genital area or any substance emitted therefrom, groin, anus or any substance emitted therefrom, inner thighs, buttocks or breasts.” Therefore, the state was required to present sufficient evidence to prove beyond a reasonable doubt that the defendant had contact with the victim’s genital area in a sexual and indecent manner that was likely to impair her health or morals.

As in part IIA of this opinion, the defendant contends that the jury could not reasonably have concluded that he had contact with the victim’s genital area in a sexual and indecent manner in his kitchen because the victim testified that she had walked away from him and, therefore, it was physically impossible for him to have touched the victim. Again, the defendant’s argument ignores that the victim testified that the defendant touched her vagina on two different occasions in the summer of 2007; once in his garage and once in his kitchen. As count four of the substitute information charged that the defendant had contact with the intimate parts of the victim “on a date or dates between January 1, 2007 and December 31, 2007,” the state only needed to establish one incident of contact with the intimate parts of the victim to support this charge.

After reviewing the evidence, we conclude that the jury reasonably could have concluded that the defendant had contact with the victim’s genital area in a sexual and indecent manner that was likely to impair the health or morals of the victim in the summer of 2007 based solely on the victim’s testimony concerning the defendant’s conduct in his garage. We conclude, therefore, that the evidence was sufficient to support the defendant’s conviction of risk of injury to a child as alleged in count four of the substitute information. Accordingly, we reject the defendant’s second claim of insufficient evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although §§ 53a-73a (a) and 53-21 have been amended since the date of the defendant’s offenses; see Public Acts 2007, No. 07-143, §§ 2 and 4; the changes, including the redesignation of certain subsections, are not relevant to this appeal. For purposes of clarity, we refer herein to the current revision of the statutes.

       The record indicates that at the time of the incident, the victim was approximately thirteen years old and that the defendant was approximately forty-eight years old.

       According to the victim’s testimony, the defendant was sitting in the driver’s seat of his vehicle with his pants pulled down to his thighs and his penis exposed.

         The record indicates that B and the defendant’s son were friends.

       Counts one and three of the substitute information alleged sexual assault in the fourth degree. Count one charged that “on or about January 31,2008,” the defendant “intentionally subjected . . . [the victim] to sexual contact when [the victim] was fourteen years old and the defendant was more than three years older than her.”
      Count three charged that “on a date or dates between January 1, 2007 and December 31, 2007,” the defendant “intentionally subjected . . . [the victim] to sexual contact when [the victim] was fourteen years old or younger, and the defendant was more than three years older than her.”

       Counts two, four and seven of the substitute information alleged risk of injury to a child. Count two charged that “on or about January 31, 2008,” the defendant “did an act likely to impair the morals of a child under the age of sixteen, to wit: he had sexual contact with the intimate parts of a child ... in a sexual and indecent manner.”
      Count four charged that “on a date or dates between January 1, 2007 and December 31, 2007,” the defendant “did an act likely to impair the morals of a child under the age of sixteen, to wit: he had sexual contact with the intimate parts of a child ... in a sexual and indecent manner.”
      Count seven charged that “on a date or dates between January 1, 2006 and December 31, 2006,” the defendant “did an act likely to impair the health or morals of a child under the age of sixteen . . . .”

       In his offer of proof, the defendant’s trial counsel stated that he had evidence that, in a prior unrelated matter, the victim was involved in an exchange of e-mail messages with a classmate, and that the victim had complained to the police that she had received a threatening message from the classmate. Defense counsel further stated that, in response to an investigation by the police, the victim and the classmate provided the police with copies of the e-mail messages. According to the defendant’s trial counsel, during the course of the investigation, “the [victim] . . . did, in fact, alter the e-mail and it was determined that [the complaint filed by the victim] was a lie.”

       As the defendant concedes, in “determining whether sexual contact occurred, it is of no consequence in our analysis that the contact occurred through the victim’s clothing rather than against her bare skin.” State v. Alberto M., 120 Conn. App. 104, 111, 991 A.2d 578 (2010); see also In re Mark R., 59 Conn. App. 538, 542, 757 A.2d 636 (2000) (“[t]o have ‘sexual contact’ as defined by the statute it is irrelevant whether the [defendant’s] contact with the victim was through clothing or with bare skin”).


source: Caselaw Access Project

author: BEAR, J.

license: Public Domain

text:
    JAMES LUCAS ET AL. v. ZONING COMMISSION OF THE TOWN OF HARWINTON ET AL.
    (AC 32110)
    DiPentima, C. J., and Lavine and Bear, Js.
    Argued June 1
    officially released August 9, 2011

      R. Bartley Halloran, with whom, on the brief, was Kaitlin A. Halloran, for the appellants (plaintiffs).

      Steven E. Byrne, for the appellees (defendants).
   Opinion

BEAR, J.

The plaintiffs, James Lucas and Leslie B. Lucas, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant zoning commission of the town of Harwinton on the ground that they failed to plead facts sufficient to allege aggrievement. On appeal to this court, the plaintiffs claim that they pleaded facts sufficient to allege both statutory and classical aggrievement, and, therefore, that the court improperly dismissed their appeal. We agree that the plaintiffs’ complaint contained facts sufficient to allege statutory aggrievement pursuant to General Statutes § 8-8 (a) (l). Accordingly, we reverse the judgment of the trial court.

The plaintiffs’ complaint contains the following relevant allegations. The plaintiffs own property on 119 Woodchuck Lane in Harwinton. Their property is located in the country residential zone (CR zone). Prior to September 15, 2008, all residential zones in Harwinton were subject to the same limitations and restrictions concerning buildable area. On September 15,2008, however, the defendant adopted an amendment to § 2.3 of the Harwinton zoning regulations (regulations) that redefined buildable area in the CR zone. “ [T]he plaintiffs are the owners of real property in such [CR zone] which is affected by the restrictions set forth in said regulations.” No other zones in Harwinton were affected by this amendment. The amendment to § 2.3 of the regulations “constituted an illegal taking of the plaintiffs’ property.”

Attached to the plaintiffs’ complaint as exhibit A was a copy of the amended regulation. The amendment adds the following to § 2.3 of the regulations: “Buildable Area—That amount of land area on a lot (in a [ CR] zone) consisting of one contiguous acre of land excluding the following: (1) Land classified as inland wetlands and watercourses as defined in the Harwinton Inland Wetlands and Watercourses Regulations; (2) Land with naturally occurring pre-development slope equal to or greater than 25 [percent] as determined by a [ten] foot vertical change of grade in horizontal distance of [forty] feet or less (based on field topography or USGS topography); (3) Land subject to public utility easements or rights of way with the exception of those public utility services directly servicing the lot.”

The record contains the following additional facts and procedural history. The plaintiffs appealed to the court on several grounds from the defendant’s decision approving the amendment to § 2.3 of the regulations. The court heard the appeal on July 8, 2009. During the hearing, the plaintiffs first attempted to establish aggrievement. An inland wetland map, which purportedly showed, inter alia, the plaintiffs’ property, was shown to the defendant’s counsel. The defendant’s counsel agreed that the map indicated that the plaintiffs’ property contained wetlands and that that was “satisfactory” to establish aggrievement. The court then asked how counsel wanted to proceed. The parties presented their arguments on the merits of the plaintiffs’ appeal. On January 8, 2010, however, the court issued a memorandum of decision in which it dismissed the appeal on the ground that the plaintiffs had failed to plead facts sufficient to establish either classical or statutory aggrievement. This appeal followed.

“It is well established that [p]leading and proof of aggrievement are prerequisites to the trial court’s jurisdiction over the subject matter of a plaintiffs appeal. . . . [I]n order to have standing to bring an administrative appeal, a person must be aggrieved. . . . Two broad yet distinct categories of aggrievement exist, classical and statutory. . . . Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation.” (Internal quotation marks omitted.) Wucik v. Planning & Zoning Commission, 113 Conn. App. 502, 505-506, 967 A.2d 572 (2009).

“Aggrievement presents a question of fact for the trial court. . . . The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts. ... 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.” (Internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 665-66, 899 A.2d 26 (2006). In considering whether the plaintiffs properly pleaded facts sufficient to establish aggrievement, however, we view the complaint in the light most favorable to the plaintiffs. See generally St. Germain v. LaBrie, 108 Conn. App. 587, 594, 949 A.2d 518 (2008) (construing complaint in light most favorable to pleader, this court concluded plaintiff met both prongs for showing classical aggrievement); Chiulli v. Zola, 97 Conn. App. 699, 705, 905 A.2d 1236 (2006) (same). The interpretation of pleadings “is always a question of law for the court . . . .” (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 573 n.12, 864 A.2d 1 (2005).

On appeal, the plaintiffs claim that the court improperly dismissed their appeal because they had pleaded facts sufficient to establish aggrievement. We agree that the plaintiffs pleaded facts sufficient to allege statutory aggrievement.

Section 8-8 provides in relevant part: “(a) As used in this section: (1) ‘Aggrieved person’ means a person aggrieved by a decision of a board and includes . . . any person owning land that abuts or is within a radius of one hundred feet of any portion of the land involved in the decision of the board.” Those persons who come within § 8-8 (a) (1) are statutorily aggrieved and are not required to plead and to prove the elements of classical aggrievement. Here, the plaintiffs argue that they pleaded that they own property located in the zone governed by such regulations and that their property is specifically affected by the decision to amend § 2.3 of the regulations. Therefore, according to the plaintiffs, they alleged facts sufficient to establish that they are statutorily aggrieved by the amendment. We agree that their complaint alleges facts sufficient to establish statutory aggrievement.

We are guided in our decision by several relevant cases. In Timber Trails Corp. v. Planning & Zoning Commission, 222 Conn. 374, 376, 610 A.2d 617 (1992), the plaintiffs appealed from a planning and zoning commission decision to increase lot size in zone B from 40,000 square feet to 80,000 square feet and to make all zone A requirements applicable to zone B. Our Supreme Court stated, albeit in dicta, that “[a]s owners of land in zone B [the zone affected by the amendments], the plaintiffs are aggrieved parties. See General Statutes § 8-8 (b) [providing that an aggrieved party may appeal]; Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 502-503, 264 A.2d 566 (1969).” Timber Trails Corp. v. Planning & Zoning Commission, supra, 376 n.3. Although our Supreme Court did not offer an analysis of its determination of aggrievement, it concluded, nonetheless, that the plaintiffs, as owners of land in the affected zone, were aggrieved. Id. There has been some discussion about whether the Supreme Court in Timber Trails Corp. was referring to statutory aggrievement, classical aggrievement or both. See Stauton v. Planning & Zoning Commission, 271 Conn. 152, 161-62, 856 A.2d 400 (2004) (unclear in Timber Trails Corp. whether statutory aggrievement, classical aggrievement or both were found); Harris v. Zoning Commission, 259 Conn. 402, 413, 788 A.2d 1239 (2002) (“[although the question of aggrievement was not directly at issue [in Timber Trails Corp.], we noted in dicta that the plaintiffs had established both classical and statutory aggrievement”); Lewis v. Planning & Zoning Commission, 62 Conn. App. 284, 291 n.8, 771 A.2d 167 (2001) (concluding that Supreme Court in Timber Trails Corp. found classical aggrievement, not statutory aggrievement).

In Cole v. Planning & Zoning Commission, 30 Conn. App. 511, 512, 620 A.2d 1324 (1993), the plaintiffs appealed to the trial court from the planning and zoning commission’s decision to amend its regulations, specifically, the regulations affecting the R-3 and R-5 zones. After an evidentiary hearing on aggrievement, the court determined that the plaintiffs had failed to prove aggrievement and dismissed the appeal for lack of standing. Id., 513. On appeal to this court, we specifically explained that classical aggrievement had not been proved: “The trial court concluded that the plaintiffs had ‘failed to demonstrate a specific, personal and legal interest as distinguished from a general interest such as is the concern of members of the community as a whole and to establish a specific and legal interest which has been specially and injuriously affected by the action of the commission.’ ” Id., 514. We then concluded, citing Timber Trails Corp. v. Planning & Zoning Commission, supra, 222 Conn. 376 n.3, that statutory aggrievement was proved: “The plaintiffs, however, as owners of land within either the R-3 zone or the R-5 zone, the zones to which the amendment pertains, are aggrieved parties by virtue of ... § 8-8 (a) (1).” Cole v. Planning & Zoning Commission, supra, 514; see also Ghent v. Zoning Commission, 220 Conn. 584, 587, 600 A.2d 1010 (1991) (“[t]he plaintiffs, as owners of property within the areas affected by the [zoning] amendments, appealed to the Superior Court from the action of the zoning commission in adopting the amendments”).

In Lewis v. Planning & Zoning Commission, supra, 62 Conn. App. 285-86, the commission had amended two sections of the Ridgefield (town) subdivision regulations, and, although the plaintiffs owned approximately 6 or 7 percent of the subdividable land in town, the court found that they were not statutorily nor classically aggrieved by the amendments. On appeal, this court concluded that the plaintiffs were both statutorily and classically aggrieved. Id., 298. On the issue of classical aggrievement, we concluded that the plaintiffs had demonstrated an identifiable legal and personal interest because they owned property affected by the amendments and the amendments applied only to a limited number of acres in town. Id., 293. We also concluded that the plaintiffs had proven that the amendments had an immediate impact on the value of their property by reducing the number of lots on the plaintiffs’ property. Id., 295-96.

On the issue of statutory aggrievement, relying on Cole v. Planning & Zoning Commission, supra, 30 Conn. App. 514-15, we further concluded that the plaintiffs also had proven statutory aggrievement. Lewis v. Planning & Zoning Commission, supra, 62 Conn. App. 296. Although the commission had argued in Lewis that Cole was distinguishable because the injury suffered by the plaintiff in Cole was instant and specific, this court found that argument unavailing. Id., 297. We explained: “First, the question of whether there has been an immediate impact pertains to the issue of whether a party has sufficiently established an injury, which constitutes an element of classical aggrievement, not statutory aggrievement. A statutorily aggrieved person need not have sustained any injury. See Caltabiano v. Planning & Zoning Commission, 211 Conn. 662, 671, 560 A.2d 975 (1989) (Shea, J., dissenting). Second, even if the distinction identified by the [commission] had any bearing on the issue of statutory aggrievement, we reiterate the conclusion we reached . . . that the plaintiffs have shown an instant economic impact on their property independent of the filing of a subdivision application. [Nonetheless] [w]e read Cole to stand for the proposition that the plaintiffs, as owners of land within the affected zone, are statutorily aggrieved.” Lewis v. Planning & Zoning Commission, supra, 297.

The defendant argues that if we agree with the plaintiffs’ claim that they properly pleaded statutory aggrievement, we will “expand the scope of statutory aggrievement beyond the legislature’s intent.” It relies on Stauton v. Planning & Zoning Commission, supra, 271 Conn. 161, to support its argument.

In Stauton, the planning and zoning commission of the town of Madison had approved an amendment to the zoning regulations to allow the construction of a planned adult community on one specific piece of property. Id., 153-54. The plaintiffs, who owned property in the same zone but which was not within 100 feet of the specific piece of property that the amendment benefit-ted, appealed the adoption of the amendment to the Superior Court. Id., 155-56. The court determined that the plaintiffs were statutorily aggrieved, but it dismissed the appeal on its merits. Id., 156. On appeal, our Supreme Court held that the plaintiffs were not statutorily aggrieved and that the trial court should not have considered the merits of the appeal. Id., 157. Although the plaintiffs owned land that was within the same zone as a section of the property in question, they were not aggrieved under § 8-8 (a) (1) because their land was not within 100 feet of the land in question and it did not abut that land. Id., 160-61. Specifically relevant to our Supreme Court’s decision was the fact that the amendment affected only one parcel of land within the zone. See id., 161. The court explained: “[W]hen a zoning decision directly affects only a single property within a zone, the phrase ‘land involved in the decision of the board,’ as used in § 8-8 (a) (1), does not include the entire zone in which the affected property is located.” Id. The court further explained: “¡T]he plaintiffs have provided no other authority for the proposition that a legislative action that affects only a single property should be treated in a manner different from an administrative action that affects a single property for purposes of establishing aggrievement, and we cannot perceive why that should be the case.” Id., 165.

We conclude that Stauton readily is distinguishable from the present case. The amendment to the zoning regulations in Stauton was adopted specifically to permit the development of one particular piece of property. Id., 153-54. As stated by our Supreme Court, it was more akin to an administrative action that affected a single property, and, in such cases, a plaintiff must either prove classical aggrievement or must own property that either abuts or is within 100 feet of the subject property to prove statutory aggrievement. See id., 165. The facts of the present case are distinguishable.

In the present case, after a full hearing on the merits of the plaintiffs’ claims, the court dismissed the action because it found that the plaintiffs had insufficiently pleaded either classical or statutory aggrievement. In light of our Supreme Court’s statements in Timber Trails Corp. and in Ghent, as well as this court’s rulings in Lewis and in Cole, we conclude that the plaintiffs pleaded sufficient facts in their complaint to allege statutory aggrievement. See Timber Trails Corp. v. Planning & Zoning Commission, supra, 222 Conn. 376 n.3; Ghent v. Zoning Commission, supra, 220 Conn. 587; Lewis v. Planning & Zoning Commission, supra, 62 Conn. App. 297; Cole v. Planning & Zoning Commission, supra, 30 Conn. App. 514—15. The plaintiffs alleged that they owned property in the CR zone and that the defendant redefined buildable area solely in the CR zone. In accordance with the previously cited precedents, these allegations alone would be sufficient to establish statutory aggrievement. If we were to agree with the defendant, however, that some type of harm also is necessary, the plaintiffs in this case further alleged that their property was affected by the amendment and that the amendment amounted to a taking of their property. We conclude, therefore, that the plaintiffs sufficiently pleaded facts to allege statutory aggrievement. Accordingly, the court improperly dismissed their appeal on the ground that their pleading was insufficient to allege statutory aggrievement. This, however, does not end our analysis.

Because of the procedural posture of this case, we asked the parties during oral argument to opine on how we should proceed if we agreed with the plaintiffs that they properly had pleaded aggrievement. The plaintiffs stated that the case could be remanded for an entirely new hearing or we simply could remand it with direction to the trial court to consider the case on the existing record. The defendant stated that the plaintiffs already had their opportunity to prove aggrievement and should not be permitted to present additional evidence on that issue. We conclude that the matter should be remanded to the trial court with direction to consider the appeal, including the issue of proof of aggrievement, on the basis of the existing record. See Fox v. Zoning Board of Appeals, 84 Conn. App. 628, 638, 854 A.2d 806 (2004) (“[I]t is the plaintiffs burden to prove aggrievement. It is well established that a plaintiff is limited to only one opportunity to prove its claim.” [Internal quotation marks omitted.]).

“[P]leading and proof of aggrievement are prerequisites to the trial court's jurisdiction over the subject matter of a plaintiff s appeal.” (Internal quotation marks omitted.) Wucik v. Planning & Zoning Commission, supra, 113 Conn. App. 505. Although parties may stipulate to facts that would support a determination in favor of jurisdiction, they cannot directly agree to confer jurisdiction on the court. Fox v. Zoning Board of Appeals, supra, 84 Conn. App. 637. “One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action .... Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved.” (Internal quotation marks omitted.) Id., 634—35. “[U]nless the plaintiff alleges and proves aggrievement, her case must be dismissed. . . . Only if the plaintiff has established aggrievement can the court proceed to consider the merits of her claim.” (Internal quotation marks omitted.) Id., 635.

In Fox, the trial court found, inter alia, that the plaintiff was statutorily aggrieved because she owned property that was within 100 feet of the property involved in the decision of the zoning board of appeals (board). Id., 635-36. On appeal, we concluded that the record did not support the court’s finding. Id., 637. We explained that after thoroughly reviewing the entire record on appeal, there was no evidence submitted by the plaintiff to prove that she owned property within 100 feet of the property involved in the decision of the board. Id., 636. Although there was a map submitted to the trial court, it did not identify the plaintiffs property. Id. Furthermore, the stipulation by the defendants’ counsel did not include facts that, standing alone, would support a finding of statutory aggrievement. Id., 636-37. In light of the plaintiffs failure to prove aggrievement, this court reversed the judgment of the trial court and remanded the case with instruction to dismiss the appeal. Id., 638.

In the present case, because the court decided that the plaintiffs had not pleaded facts sufficient to establish either statutory or classical aggrievement, it did not proceed to decide if the plaintiffs had proven aggrievement. After our review of the record, we note that there is evidence in the record that the court could consider in determining whether the plaintiffs proved statutory aggrievement by a fair preponderance of the evidence. We conclude, therefore, that it is necessary to remand the matter to the trial court. See Moutinho v. Planning & Zoning Commission, supra, 278 Conn. 665 (“[a]ggrievement presents a question of fact for the trial court” [internal quotation marks omitted]). If, on the basis of the entire record, the court determines that the plaintiffs have proven statutory aggrievement, then, the court should reach the merits of the plaintiffs’ appeal. If, however, the court determines that the plaintiffs have failed to prove statutory aggrievement, the court should dismiss the plaintiffs’ appeal.

The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       The plaintiffs also named as defendants Patricia Williamsen, the town clerk of Harwinton; Clarence Caldwell, the chairman of the Harwinton zoning commission; and Christine Neal, the secretary of the Harwinton zoning commission. Additionally, the plaintiffs named as defendants Peter Brazaitis; Ronald P. Sherlock; Herbert H. Etter, Jr.; Nina A. Callahan; Anne Marie Buoncore and John W. DiCarlo, all of whom the plaintiffs alleged are members of the Harwinton zoning commission. For purposes of this appeal, however, we refer to the Harwinton zoning commission as the defendant.

       We further conclude that the court properly determined that the plaintiffs failed to plead facts sufficient to allege classical aggrievement.

       The defendant had raised the issue of the plaintiffs’ failure to plead sufficient facts to establish aggrievement in its prehearing brief. The court, however, did not consider the sufficiency of the pleading until after the merits of the case had been argued.

       The court, of course, is free to request additional briefing and argument on the issues.


author: DiPENTIMA, C. J.

text:
    DENIS DALLAIRE, ADMINISTRATOR (ESTATE OF SANDRA DALLAIRE) v. VEN C. HSU
    (AC 32435)
    DiPentima, C. X, and Gruendel and Borden, Js.

      Argued May 16
    officially released August 9, 2011

      George W. Kramer, for the appellant (plaintiff).

      Eliot B. Gersten, with whom, on the brief, was John H. Van Lenten, for the appellee (defendant).
   Opinion

DiPENTIMA, C. J.

The plaintiff, Denis Dallaire, as administrator of the estate of the decedent, Sandra Dallaire, brought this medical malpractice action, alleging that the defendant, Ven C. Hsu, negligently prescribed lethal amounts of opiate medications, resulting in her death. The trial court rendered judgment in favor of the defendant. On appeal, the plaintiff argues that the court improperly (1) found that the decedent had a significant tolerance to morphine and methadone, and that the standard of care did not require the defendant to consult with the plaintiffs prior health care providers or to obtain her pharmacy records to determine her level of tolerance, (2) found that the plaintiff failed to prove causation and (3) disregarded the opinion of the plaintiffs expert on causation. We affirm the judgment of the trial court.

The court found the following facts. The decedent suffered from Madelung’s disease, a congenital skeletal deformity resulting in years of chronic pain, multiple fractures and surgeries. For at least six years prior to seeing the defendant, the decedent was prescribed a variety of narcotic medications to alleviate her chronic pain. Between 2003 and June 27, 2005, the decedent was treated by Karen Warner, a physician at the Comprehensive Pain & Headache Treatment Centers, LLC (treatment center). Subsequent to the decedent’s discharge from the treatment center, the decedent received prescriptions for opiate medications from a number of unaffiliated physicians. Then, on July 20, 2005, the decedent saw David S. Kloth, a physician at Connecticut Pain Care, P.C. According to Kloth’s records, the decedent informed him that the final prescriptions issued to her on discharge from the treatment center included “OxyContin 80 mg qid, [m]ethadone 80 mg qid, Duragesic 200 meg q 72 hrs, Valium 10 mg qid and Soma qid.” Kloth reduced the decedent’s prescriptions solely to methadone 10 mg q.i.d. On October 13, 2005, Kloth issued the decedent a final prescription for methadone, 10 mg q.i.d. for twenty-eight days.

On October 27,2005, the decedent saw the defendant, who specializes in pain management. The decedent provided the defendant with the pharmacy records from Warner but not those of Kloth, “even though she had, that very day, obtained her complete prescription records, including Kloth’s, from Walgreens Pharmacy.” The defendant believed that the decedent was out of medication and that if she did not receive any, she might engage in drug seeking behaviors. The defendant considered this to be an “emergency and urgent.” The defendant prescribed “[m]ethadone, 40 mg 4 pills/day, MS Contin 60 mg 2/day, Xanax 1 mg 3/day.” At approximately 1 a.m., on October 28, 2005, the plaintiff found the decedent nonresponsive, and emergency responders were unable to revive her. The medical examiner listed the cause of the decedent’s death as opiate toxicity.

Thereafter, the plaintiff commenced this action. The defendant filed a special defense, alleging that the decedent was contributorily negligent. Following a trial to the court, it issued a memorandum of decision in favor of the defendant. This appeal followed.

We begin by setting forth the legal principles that guide our analysis. The trial court’s findings of fact are binding on this court “unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.” (Internal quotation marks omitted.) Babcock v. Bridgeport Hospital, 251 Conn. 790, 828, 742 A.2d 322 (1999). “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.” (Internal quotation marks omitted.) Schiavone v. Bank of America, N.A., 102 Conn. App. 301, 304, 925 A.2d 438 (2007).

Conflicting expert testimony “does not necessarily equate to insufficient evidence.” Carusillo v. Associated Women’s Health Specialists, P.C., 79 Conn. App. 649, 656, 831 A.2d 255 (2003). Where such testimony does conflict, “the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible. . . . On appeal, we do not retry the facts or pass on the credibility of witnesses.” (Internal quotation marks omitted.) Bay Hill Construction, Inc. v. Waterbury, 75 Conn. App. 832, 838, 818 A.2d 83 (2003).

Finally, to recover in a medical malpractice action, the plaintiff must prove “(1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.” (Internal quotation marks omitted). Goldv. Greenwich Hospital Assn., 262 Conn. 248, 254-55, 811 A.2d 1266 (2002). Guided by these principles, we address the plaintiffs claims in turn.

The plaintiff first claims that the defendant deviated from the standard of care required by reasonably prudent physicians in the defendant’s position. See General Statutes § 52-184c (a). Specifically, the plaintiff argues that the court’s finding that the decedent was opiate tolerant was clearly erroneous. We disagree.

Physicians are required to exercise “the degree of skill, care, and diligence that is customarily demonstrated by physicians in the same line of practice.” Edwards v. Tardif, 240 Conn. 610, 614, 692 A.2d 1266 (1997). To prove that a physician has breached the standard of care, the plaintiff must produce “some evidence that the conduct of the physician was negligent.” Id. The plaintiff, generally, must present the testimony of expert witnesses to establish the applicable standard of care and the defendant’s failure to conform to this standard. Kunst v. Vitale, 42 Conn. App. 528, 536, 680 A.2d 339 (1996).

An issue at trial was whether the decedent was opiate tolerant or opiate naive. The court found that the defendant “would not have prescribed the same dosages to an opiate naive person, because they could be lethal.” The experts first differed with respect to the definitions of the terms “opiate naive” and “opiate tolerant.” The defendant’s expert, Matthew Kline, a physician, board certified in pain management and anesthesiology, defined an opiate naive patient as someone “who has never been on a narcotic.” The plaintiffs expert, George Adam, a physician, board certified in psychiatry and neurology, defined an opiate naive patient as “someone who has not taken opiates, or has taken very low doses,” and an opiate tolerant patient as “someone whose metabolism has learned to efficiently accommodate and detoxify the body from narcotics.” The plaintiff also offered the testimony of Daniel E. Buffington, a clinical pharmacologist, who defined an opiate naive patient as “someone who is not acclimated to that product,” and an opiate tolerant patient as one who has had “chronic regular exposure” to the drug. The court adopted Kline’s definition of opiate naive and declined to give weight to the opinions of the plaintiffs experts.

The experts also differed in applying these terms to the present case. Kline concluded that the decedent had “significant opiate tolerance” at the time she visited the defendant. The court agreed, finding that the decedent had a long history of taking opiate medications as a result of her chronic condition. Adam concluded that the decedent was “on the naive side.” Buffington concluded that, because Kloth prescribed lower dosages of methadone than Warner, the decedent was “opiate tolerant to methadone—but at a much lower level” than before seeing Kloth. Buffington concluded further that the decedent was opiate naive to morphine. Adam and Buffington both opined that, because the decedent was opiate naive, the standard of care required the defendant to begin treatment with starting doses of methadone and morphine.

The court found that, with respect to the opinions of the plaintiffs experts, their “premise is faulty” because the decedent was not opiate naive. With respect to Adam, the court found that his experience in practicing pain management was merely incidental to his neurology specialty, and, as such, the court did not give Adam’s opinion weight. With respect to Buffing-ton, the court found that Buffington’s opinion that the decedent was opiate naive to morphine was “not tenable” in light of the decedent’s medical history and that this conclusion “undermines his credibility.” On the basis of the evidence presented to the court, we conclude that the court was justified in declining to give weight to Adam’s and Buffington’s opinions. See Bay Hill Construction, Inc. v. Waterbury, supra, 75 Conn. App. 838. Thus, the court’s finding that the decedent was opiate tolerant was not clearly erroneous.

Second, the plaintiff contends that the defendant breached the standard of care by failing to consult with the decedent’s prior health care providers and failing to obtain her prior pharmacy records to determine her level of tolerance. We disagree.

The court found that the defendant was entitled to assess the decedent’s condition independently, on the basis of Kline’s testimony that “[p]atient history and the forthright nature of a patient is a critical part . . . of treatment.” See Farrell v. Bass, 90 Conn. App. 804, 812-15, 879 A.2d 516 (2005) (plastic surgeon was not liable for malpractice where jury found that standard of care did not require consultation with patient’s internist or cardiologist before instructing patient to stop taking anticoagulants, which were prescribed by those physicians). The court found that the standard of care, as defined by the plaintiffs experts, reflects a “narrow textbook approach to the practice of pain management and ignores the role of the patient-physician interaction.” The defendant spoke with the patient, took a detailed history and, on the basis of all the circumstances, prescribed medications accordingly.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant is not a board certified physician but has a valid medical license in Connecticut and has practiced as a pain specialist since 1989. The defendant, by holding himself out as a pain specialist, is held to the standard of care of board certified physicians who also practice pain management. See Grondin v. Curi, 262 Conn. 637, 650-51, 817 A.2d 61 (2003) (standard of care for specialist); see also General Statutes § 52-184c (c).

       Because we affirm the court’s finding that the defendant did not breach the standard of care, we need not address the issue of causation. See Kalams v. Giacchetto, 268 Conn. 244, 250, 842 A.2d 1100 (2004) (“[t]he jury was not required to reach the issue of causation because ... it first determined that the defendant had not breached the standard of care”). We, therefore, also need not reach the issue of whether the court properly disregarded the opinion on causation given by George Adam, the plaintiffs expert. We note that the court, acting in its role as the trier of fact, found that the plaintiffs expert, Daniel E. Buffington, did not adequately opine that the dosages, if taken as prescribed by the defendant, caused the decedent’s death.

       “Q.i.d.” is a medical abbreviation for quater in die, or four times a day. See Stedman’s Medical Dictionary (28th Ed. 2006) p. 1615 (noting that “q” is a medical abbreviation for quodque, or “every”). Id. Thus, the decedent’s prescription of “Duragesic 200 meg q 72 [hours]” indicates that the decedent was prescribed 200 micrograms of the drug every 72 hours. See id.

       The plaintiffs expert opined that the decedent’s severe pain did not obviate the defendant’s breach of the standard of care. The defendant’s expert opined that the decedent presented “with what appeared to be a crisis; that [the defendant] calculated what he believed was an appropriate dose of medication to help treat [the decedent’s] severe pain . . . .” The court agreed with the opinion of the defendant’s expert.

       MS Contin is a brand of controlled release morphine. See Physician’s Desk Reference (60th Ed. 2006) p. 2697. Morphine and methadone hydrochloride are both narcotic, opiate analgesics. Stedman’s Medical Dictionary (28th Ed. 2006) pp. 1227, 1196 (defining “narcotic” in relevant part as “any drug derived from opium or opium-like compounds with potent analgesic effects associated with both significant alteration of mood and behavior with potential for dependence and tolerance”). Id., p. 1281. Xanax, or alprazolam, is a benzodiazepine used to treat anxiety disorders. See Physician’s Desk Reference, supra, p. 2656.

       Connecticut has adopted the doctrine of comparative negligence. However, our statutes retain the term “contributory negligence.” See, e.g., General Statutes §§ 52-114 and 52-572h (b). Utica Mutual Ins. Co. v. Precision

        Mechanical Services, Inc., 122 Conn. App. 448, 460 n.10, 998 A.2d 1228, cert. denied, 298 Conn. 926, 5 A.3d 487 (2010).

       On the basis of the expert opinion testimony presented to it, the court defined an “opiate naive” patient as one “who has not previously taken or been exposed to opiates,” and “opiate tolerant” as one “whose dose to control symptoms has been escalating, because the metabolism has learned to accommodate and handle the drug more efficiently than before.”

       Plaintiffs need not present expert testimony, however, where the physician’s actions or omissions rise to the level of gross negligence. Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 813, 945 A.2d 955 (2008). The plaintiff does not argue that the defendant was grossly negligent.

       On cross-examination, the defendant’s expert and the plaintiffs counsel engaged in the following colloquy:
      “[The Plaintiffs Counsel]: Okay. The dosage that [the defendant] prescribed here, 40 milligrams, six tablets, 240 per day, is that a potentially lethal dosage of methadone?
      “[Matthew Kline]: If a narcotic naive patient—as you’re saying, someone that was on no narcotics at all—took a dose of 240 milligrams of methadone, it is most certainly potentially lethal.”

       At oral argument before this court, the plaintiff argued that the decedent took her medications as prescribed, and that under General Statutes § 52-114, the decedent is entitled to a presumption that she acted reasonably. Section 52-114 provides in relevant part that “[i]n any action to recover damages for negligently causing the death of a person ... it shall be presumed that such person whose death was caused or who was injured or who suffered property damage was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants.” We affirm the court’s finding that the defendant did not breach the standard of care and, therefore, we need not reach the issue of the decedent’s negligence or the presumption of due care in § 52-114.

       Kline opined at trial that the defendant was presented with an “extremely complicated case, in which a patient who had many, many years of chronic pain, well documented severe pain, had been on . . . very, very large doses of multiple narcotics.”

       Buffington opined that the defendant, on the basis of the “severity and the potential complications from the dosing levels that he was prescribing . . . had the duty to discern the accuracy of that patient history, as a peer-to-peer or vendor-to-vendor, if it’s confirming with the pharmacy as well.”

       Kline opined that pain management physicians rely on their experience and intuition “because medicine is certainly not an exact science. . . . Part of [medicine] is to determine whether or not a patient is being forthright.”