author: BISHOP, J.

text:
    BEVERLY L. GRIMM v. ROBERT L. GRIMM
    (AC 22315)
    Foti, Bishop and Dupont, Js.
    Argued October 16
    officially released December 31, 2002

      Thomas P. Puccio, pro hac vice, with whom were John Wayne Fox and, on the brief, Patricia M. Gang, for the appellant (defendant).

      Gaetano Ferro, with whom was Norman A. Roberts II, for the appellee (plaintiff).
   Opinion

BISHOP, J.

The tortured histoiy of this case demonstrates the detrimental effect that procedural dysfunction in a marital dissolution action can have on the judicial process. The specific questions presented in this appeal are whether the court improperly (1) refused to vacate the plaintiffs withdrawal of the action and (2) declined to restore the case to the docket to permit the defendant to seek counsel fees. We affirm the judgment of the trial court.

Reasonable discussion of those issues requires a cursory review of the court’s voluminous file. This marital dissolution action was commenced in the judicial district of Stamford-Norwalk by complaint dated August 25,1997, and initially claimed to the trial list on December 8, 1997. Trial of the matter was scheduled to commence on June 10, 1998, July 30, 1998, December 15, 1998, March 16, 1999, July 20, 1999, May 16, 2000, and July 7, 2000; on each of those dates, the trial was continued. It thereafter was set for trial on September 12,2000.

The transcript of the September 12, 2000 proceeding indicates that when the defendant’s counsel stated that he was not prepared for trial on that day, the court commented: “This case has been marked on trial. The request for a continuance became moot yesterday, and we’re ready to proceed.” In response to the request for a continuance by the defendant’s counsel, the court stated: “That’s not an excuse. If you don’t have it prepared, that’s your problem. You’ve been on notice. This is now one of the oldest cases in the [judicial district]. It’s on trial. Now, that’s all there is to it. You’re on trial.”

After further colloquy with counsel, the court stated: “We’re on trial. I want to get this case going.” When the defendant’s counsel persisted in his argument that it would not be reasonable to commence evidence on that date, the court relented, in part, but indicated its intention to give the case an on trial status so that both counsel would be insulated from the demands of other courts. To effectuate that proposition, the court had the plaintiff take the witness stand. The court stated to the plaintiff: “Would you come up here, Mrs. Grimm, to the witness stand? And then it will be on trial.” Once the plaintiff had been sworn in and had testified as to the date of the marriage, the court stated: “All right. We’re going to suspend, as we’ve already discussed. I won’t review it again. You heard it all.”

The trial then was continued to September 21, 2000, at 9:30 a.m., but for reasons not clear from the record, the trial did not resume on September 21, 2000. The parties were next in court on December 12, 2000, when the court heard evidence concerning contempt motions filed by the plaintiff. That hearing continued through December 13, 2000, and was scheduled to resume on December 14, 2000. When the parties returned on December 14, however, the plaintiff brought to the court’s and the defendant’s attention that she had withdrawn the action at the end of the day on December 13. The court then concluded that there was nothing else to do.

On the next day, the plaintiff commenced a marital dissolution action in the judicial district of Danbury. After the defendant attempted unsuccessfully to have the Danbury action dismissed or transferred to Stamford, he filed two motions in this matter, both dated April 12, 2001, one seeking to have the withdrawal vacated, and the other to have the case restored to the docket for the purpose of seeking counsel fees incurred in defending the plaintiffs motions for contempt. It is from the denial of those motions that the defendant has appealed. We affirm the judgment of the trial court.

I

The defendant first claims that the court improperly allowed the plaintiff to withdraw her complaint without leave of the court, as is required by General Statutes § 52-80, after the commencement of a hearing on the merits. We agree, but hold that the issue is moot.

General Statutes § 52-80 provides in relevant part: “The plaintiff may withdraw any action so returned to and entered in the docket of any court, before the commencement of a hearing on the merits thereof. After the commencement of a hearing on an issue of fact in any action, the plaintiff may withdraw such action . . . only by leave of court for cause shown.” See also Smith v. Reynolds, 54 Conn. App. 381, 383, 735 A.2d 827 (1999).

The issue in this case is whether the court improperly determined that the plaintiff did not need permission to withdraw her action in accordance with § 52-80. Pivotal to that determination is the question of whether the court had commenced a hearing on an issue of fact in the marital dissolution action. If it had, then by operation of § 52-80, the action could not be withdrawn without the court’s permission. Implicit in the court’s ruling was its determination that prior to the filing of the withdrawal, the court had not commenced a hearing on an issue of fact in the action. We disagree.

In its memorandum of decision regarding the defendant’s motion to vacate the plaintiffs withdrawal, the court noted: “No evidence had been elicited from any witness in support of any allegation contained in the plaintiffs complaint. The court finds that the commencement of a hearing on the merits of the plaintiffs complaint did not take place.” That finding was improper.

A review of the transcript of the September 12, 2000, proceeding indicates that when the plaintiff was called to testify, she gave the date of the marriage as set forth in the complaint. Additionally, the trial court file reflects that the case had been assigned for trial on that date. Thus, no matter how brief, the plaintiffs testimony signified the commencement of a hearing on the merits of her complaint. The court’s further observation to the effect that the purpose of commencing the hearing was to give counsel an “on trial” status is legally insignificant. The reason for the commencement of the hearing is not relevant to the application of § 52-80.

Having determined that the court improperly determined that the provisions of § 52-80 were inapplicable, we next turn to the question of relief. At oral argument, the defendant conceded that he would not want the eventual dismissal of the Danbury action that could be triggered by this court’s reversal of the trial court’s denial of his motion to vacate the plaintiffs withdrawal. See Nielsen v. Nielsen, 3 Conn. App. 679, 682, 491 A.2d 1112 (1985) (prior pending action doctrine permits court to dismiss second case that raises issues currently pending before court). As well, the defendant acknowledged at oral argument that this would not promote judicial economy by having repetitive litigation. We agree. It is our understanding from counsel that the Danbury action recently was concluded and that the parties await the court’s decision. Under those unique circumstances, no useful purpose would be achieved by our reversal of the trial court’s decision. We consistently have held that “[w]hen . . . events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” (Internal quotation marks omitted.) Brown v. Brown, 69 Conn. App. 209, 212, 794 A.2d 550 (2002).

Accordingly, although the refusal of the court to vacate the withdrawal was improper, we find that the issue has been made moot by the subsequent proceedings in the judicial district of Danbury.

II

The defendant’s second claim is that the court abused its discretion by fading to restore the case to the docket. We disagree.

At the outset, we note that the decision whether to restore a case to the docket invokes the court’s discretionary authority. Marshall v. Marshall, 71 Conn. App. 565, 572, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002); Sicaras v. Hartford, 44 Conn. App. 771, 779, 692 A.2d 1290 (“whether a case should be restored to the docket is one of judicial discretion”), cert. denied, 241 Conn. 916, 696 A.2d 340 (1997).

We are mindful that the defendant’s motion to restore the case to the docket was dated April 12,2001, approximately four months after the withdrawal, and that the Danbury action had been pending for nearly as long. Additionally, although, as the defendant correctly claims, the court could have restored the case to the docket for the sole purpose of awarding the defendant counsel fees in conjunction with the plaintiffs motions for contempt, at the time of the withdrawal, the court had not concluded the contempt hearing and, accordingly, had not made any findings on the then pending contempt motions. Under those circumstances, the court did not abuse its discretion in denying the motion to restore.

The judgment is affirmed.

In this opinion the other judges concurred.

       The computer printout in the trial court file indicates that from the inception of this action until this appeal, there were 151 notations, most of which concerned discovery requests, objections to them, various contempt motions, multiple requests for continuances filed by the defendant, Robert L. Grimm, and various motions concerning anticipated trial witnesses. The file also indicates that this action has been the subject of two interlocutory appeals, both dismissed for lack of finality, and that counsel for one of the parties claimed the matter to 1he jury.

       Although that determination is adequate to dispose of the claim under General Statutes § 52-80 in this case, we note that prior to September 12, 2000, the court had, in fact, conducted pendente lite hearings on interim contested matters. Consistent with the purpose of § 52-80 to prevent a party from unilaterally withdrawing an action once it has engaged the court, we believe that a better understanding of § 52-80 in the marital dissolution context is that its provisions apply anytime after the court has conducted a hearing on any contested issue, including a pendente lite hearing.

       Although that determination is adequate to dispose of the claim under General Statutes § 52-80 in this case, we note that prior to September 12, 2000, the court had, in fact, conducted pendente lite hearings on interim contested matters. Consistent with the purpose of § 52-80 to prevent a party from unilaterally withdrawing an action once it has engaged the court, we believe that a better understanding of § 52-80 in the marital dissolution context is that its provisions apply anytime after the court has conducted a hearing on any contested issue, including a pendente lite hearing.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    MARQUARDT AND ROCHE/MEDITZ AND HACKETT, INC. v. RIVERBEND EXECUTIVE CENTER, INC.
    (AC 21928)
    Mihalakos, Flynn and Hennessy, Js.

      Argued September 11, 2002
    officially released January 7, 2003

      Scott M. Harrington, for the appellant (defendant Summer Street Properties, LLC).

      Robert J. Sickinger, for the appellee (plaintiff).
   Opinion

FLYNN, J.

The defendant Summer Street Properties, LLC, appeals from the judgment of the trial court granting the plaintiff, Marquardt & Roche and Partners, Inc., injunctive relief and attorney’s fees. This matter concerns a dispute between the parties as to the interpretation of lease provisions concerning parking insofar as they affect three particular parking spaces. The claims that the defendant raises are (1) whether the plaintiff was entitled under the lease to the exclusive use of the parking area, (2) whether the evidence supported a finding of irreparable harm necessary for injunctive relief, (3) whether the court improperly excluded the defendant’s evidence of available parking spaces, (4) whether the court improperly excluded, as expert opinion, a certain out-of-court statement, (5) whether the court improperly excluded, as an offer of compromise, a letter from the plaintiffs counsel to the defendant’s counsel and (6) whether the court abused its discretion in the amount of attorney’s fees awarded to the plaintiff. We affirm in part and reverse in part the judgment of the trial court.

We note that some of the events which are pertinent to this appeal occurred before the lease, which is the focus of this case, was assigned to the defendant by the former lessor, Riverbend Executive Center, Inc. (Riverbend). The trial court could reasonably have found the following facts.

On December 11,1996, the plaintiff leased office and parking space from Riverbend in a building located at 999 Summer Street in Stamford. One of the reasons that the plaintiff chose this particular building was the availability of parking for its employees and clients.

In negotiations prior to the execution of the lease, the plaintiffs representatives drafted a paragraph regarding the plaintiffs rights to parking and a map of the parking area as an attachment to the lease. Riverbend agreed to these changes and the paragraph numbered 1 (z) and the map designated exhibit B were incorporated into the signed lease. Paragraph 1 (z) states in part: “Parking: A designated area as shown on Exhibit B on Parking Level C, the closed area inside the control point is to be for the exclusive use of [the plaintiff]. Nine (9) additional designated parking spaces outside of the control point (as shown on Exhibit B Parking Plan as spaces 27-35) will also be provided to [the plaintiff]. [The plaintiff] acknowledges that Landlord has provided enough space to park at least Thirty-Four (34) cars in total. Landlord will provide metal signage on the walls to clearly indicate that the above mentioned parking is for the exclusive use of [the plaintiff]. [The plaintiff] may, at its option and cost, install a mechanical gate to restrict others from the closed area inside the control point. [The plaintiff] may at its option and cost, install a rope/ chain or similar device to restrict use of the nine (9) additional designated parking spaces outside the control point. ...”

After the lease signing, but prior to its February 14, 1997 commencement date, the plaintiff requested and Riverbend agreed to paint three curbside spaces marked “Reserved” in the closed area within the control point (control area). These three spaces became the focus of this dispute. The map of the parking area was drawn to reflect the condition of the parking area at the time of the execution of the lease and, so, does not show the location of the three curbside spaces. The three curbside spaces are within the control area, and are also adjacent to the office used by the landlord’s maintenance personnel. In August, 1997, Riverbend installed signs for the plaintiff that read, “Reserved M& R/M&H,” on the wall beside those three spaces. The plaintiff noticed unauthorized vehicles parking in the three curbside spaces shortly after the spaces were created.

In December, 1998, Riverbend assigned its interest in the lease to the defendant. After the assignment, Riverbend continued to act as the property manager on the defendant’s behalf. After several complaints to the defendant’s agents regarding unauthorized vehicles parking in the three curbside spaces, the defendant gave the plaintiff permission to tow unauthorized vehicles parked in those spaces. The towing, however, caused other tenants of the defendant and their customers to become upset.

In March, 2000, without any notice to the plaintiff, the defendant replaced the signs on the wall beside the curbside spaces that formerly read, “Reserved M&R/M& H,” with signs that read, “Property Maintenance Service Vehicles Only.” The plaintiff repeatedly requested that the defendant return the curbside spaces to their former condition, but the defendant consistently refused. Subsequently, the plaintiffs employees and clients no longer parked in the curbside spaces, but the defendant’s employees did park there occasionally.

In August, 2000, the defendant resurfaced the parking area, thus removing the word “Reserved” that had been painted on the spaces themselves. The defendant then had the surface painted to read, “Property Maintenance Service Vehicles Only,” thus echoing the language of the signs on the wall beside the curbside spaces. After the plaintiff contacted the defendant about this latest development, the defendant, in September, 2000, painted “no parking” on the surface of the parking area where the three curbside spaces had been located. The defendant removed its signs from the adjacent wall a few days later. Despite the spaces being marked “no parking,” however, the defendant’s employees continued to park in the curbside area.

The plaintiff commenced the present action in September, 2000, when it served Riverbend with the original complaint. Riverbend responded by filing a motion for summary judgment based, in part, on the fact that, since the assignment of its interest to the defendant, Riv-erbend was no longer a party responsible under the lease. The plaintiff realized its error and filed a motion to cite in and to substitute Summer Street Properties, LLC, as the defendant. Our review of the record indicates that the plaintiff was billed substantial attorney’s fees in connection with the action against the wrong defendant, Riverbend, and its motion for summary judgment. At the hearing on Riverbend’s motion, the court granted the plaintiffs motion to cite in Summer Street Properties, LLC, and ordered the plaintiff to file an amended complaint. In December, 2000, the plaintiff filed an amended complaint against the defendant, and the matter was withdrawn as to Riverbend.

A trial was held in May, 2001, in which the court found the issues for the plaintiff, enjoined the defendant from interfering with the plaintiffs leasehold, issued an injunction ordering the defendant to paint stripes to mark the three curbside spaces, which would be for the plaintiffs exclusive use, and ordered the defendant to pay the $24,270.31 in attorney’s fees and costs requested by the plaintiff.

The defendant raises six separate claims on appeal. The defendant’s first claim is simply a question of the extent of the parties’ rights under the lease. The parties agree that the lease was not modified after it was executed. The defendant claims that the court’s decision that the lease granted the plaintiff the exclusive use of the three curbside parking spaces was improper. We begin by setting forth our standard of review.

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct . . . .” (Citations omitted; internal quotation marks omitted.) Issler v. Issler, 250 Conn. 226, 235-36, 737 A.2d 383 (1999).

“In construing a written lease, which constitutes a written contract, three elementary principles must be kept constantly in mind: (1) The intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible.” (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 275, 709 A.2d 558 (1998). “A determination of contractual intent ordinarily presents a question of fact for the ultimate fact finder, although where the language is clear and unambiguous, it becomes a question of law for the court.” Id., 276.

The parties’ dispute centers on the three curbside spaces located within the control area. The language of the lease that relates to parking is clear and unambiguous in this regard: “[T]he closed area inside the control point is to be for the exclusive use of [the plaintiff].” We agree with the court that this language gives the plaintiff the right to the exclusive use of the control area, which also happens to be the area where the three curbside spaces are located. Despite this clear and unambiguous language, the defendant appropriated the three curbside parking spaces to its own use by marking them, “Property Maintenance Service Vehicles Only,” and later, “no parking.”

The defendant argues that the lease did not identify the three curbside spaces and that the lease could not grant the curbside spaces because they were not created until after the lease was executed. We do not find this contention persuasive because the lease grants the plaintiff the exclusive use of the entire area within the control point and not just the parking spaces that were delineated before the lease was executed.

The defendant calls our attention to paragraph 2 (c) (ii) of the lease, which the defendant claims grants it the right to make changes to the plaintiffs parking area. In considering the defendant’s claim, we are mindful of the fact that “the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible.” (Internal quotation marks omitted.) Id., 275. Paragraph 2 (c) of the lease states in part: “Landlord reserves the right from time to time upon reasonable notice to [the plaintiff] (except in emergency situation, in which event no notice will be required) without unreasonable interference with [the plaintiffs] use . . . (ii) To make changes to the Common Areas including, without limitation, changes in the location, size, shape and number of . . . parking spaces . . . (no changes may be made to [the plaintiffs] parking spaces as provided in Exhibit B without [the plaintiffs] consent which consent shall not be unreasonably withheld) . . . .” Despite the defendant’s claim, however, this paragraph does not grant it the power to act in the manner it did for several reasons.

We note first that this paragraph requires the defendant to provide reasonable notice to the plaintiff prior to making any changes. We are not directed to anything in the record that indicates that any notice was given to the plaintiff before the repainting of the parking area and removal of the plaintiffs signs. This paragraph does provide an exception to the notice requirement for emergency situations, but the defendant does not point us to any evidence in the record that there was ever such an emergency.

Finally, this paragraph applies solely to “common areas.” Paragraph 2 (b) of the lease demonstrates quite clearly that the closed area within the control point does not fall within the term “common areas.” Paragraph 2 (b) states that “[the plaintiff] shall have the nonexclusive right to use in common with the Landlord or any other tenants in the Building . . . the following areas (‘Common Areas’) appurtenant to the Premises . . . .” The defendant fails to explain how the “closed area within the control point is to be for the exclusive use of [the plaintiff] ” under paragraph 1 (z) while simultaneously being a common area that the plaintiff has “the nonexclusive right to use in common with the Landlord or any other tenants” under paragraph 2 (b). Such an interpretation of the lease would result in contradictory provisions. We conclude, on the basis of the ordinary meaning of the language of the lease, that the term “common areas” does not include the control area in which the plaintiff has “exclusive use.”

We further conclude that the court was correct to conclude that “[t]he provisions of the lease clearly indicate that the [plaintiff] was entitled to the exclusive use of the area sited in exhibit B of the lease.”

The defendant’s second claim is that the court improperly found that the plaintiff suffered irreparable harm.

We begin our analysis of the defendant’s second claim by setting forth our standard of review for this claim. “A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. . . . Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion . . . the trial court’s decision must stand.” (Citations omitted; internal quotation marks omitted.) Advest, Inc. v. Wachtel, 235 Conn. 559, 562-63, 668 A.2d 367 (1995). “A decision to grant or deny an injunction must be compatible with the equities in the case and ‘balance the injury complained of with that which will result from interference by injunction.’ Moore v. Serafín, 163 Conn. 1, 6, 301 A.2d 238 (1972).” Raph v. Vogeler, 45 Conn. App. 56, 62, 695 A.2d 1066, cert. denied, 241 Conn. 920, 696 A.2d 342 (1997).

“The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm.” (Internal quotation marks omitted.) AvalonBay Communities, Inc. v. Orange, 256 Conn. 557, 566, 775 A.2d 284 (2001).

The defendant claims that “no evidence of any harm, much less actual harm, was presented at trial . . . .” We disagree. The court had before it ample evidence in the form of testimony and photographs from which the court could determine that the defendant removed the plaintiffs signs and repainted the three curbside spaces for the defendant’s own use. The defendant took these actions without any notice to the plaintiff and without the plaintiffs consent even though it took such action within the area which the lease designated for the plaintiffs exclusive use. We conclude in light of the record that the court properly found that “[a] leasehold was taken away from the plaintiff and . . . that is sufficient to constitute irreparable harm.”

The defendant argues that it proved that the plaintiff always had other parking spaces available to it. The defendant believes that such a showing would preclude a finding of harm in this case. We are not persuaded. The plaintiff is not required to use every inch of its parking area constantly in order to prevent the defendant from entering and taking part of that area for its own use. Such an argument by the defendant could just as easily be used to support a decision by any interloper to take a portion of a tenant’s office space if the tenant happened to let a leased room he idle for too long.

We conclude that the plaintiff carried its burden of proving irreparable harm, and, therefore, that the court did not abuse its discretion in granting the injunctive relief requested.

The defendant’s third claim is an evidentiary one, but our decision on this third claim is closely tied to the outcome of the issue of irreparable harm in the second claim. The defendant claims that it was improper for the court to exclude from evidence, on relevancy grounds, the documentary and photographic evidence offered by the defendant concerning the number of vacant parking spaces that were available for use by the plaintiff in its exclusive parking area.

We begin our analysis of the defendant’s third claim by setting forth our standard of review when considering the court’s evidentiary rulings. “[Our Supreme Court has] held generally that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) Urich v. Fish, 261 Conn. 575, 580, 803 A.2d 311 (2002).

The defendant argues that photographic and documentary evidence of parking spaces available to the plaintiff was relevant to the issue of irreparable harm. “Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. Pitt v. Kent, 149 Conn. 351, 357, 179 A.2d 626 (1962). One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. State v. Blake, 69 Conn. 64, 76, 36 A. 1019 (1897). . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. State v. Kelly, 77 Conn. 266, 269, 58 A. 705 (1904). A party is not required to offer such proof of a fact that it excludes all other hypotheses; it is sufficient if the evidence tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. State v. Briggs, [179 Conn. 328, 332, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980)] .... Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Emphasis in original; internal quotation marks omitted.) State v. Kiser, 43 Conn. App. 339, 361-62, 683 A.2d 1021, cert. denied, 239 Conn. 945, 686 A.2d 122 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1478, 137 L. Ed. 2d 690 (1997).

We previously concluded that the plaintiff is not required by the lease constantly to be using eveiy inch of its parking area in order to prevent the defendant from entering and taking part of that area for its own use. No number of photographs of empty parking spaces could have prevented a determination by the court that the defendant had interfered with the plaintiffs leasehold, unless those photographs showed that the defendant had not, as the plaintiffs witness testified, taken down the plaintiffs signs, replaced those signs with the defendant’s own signs, removed the “reserved” markings from the parking surface, and painted “Property Maintenance Service Vehicles Only” and “no parking” on the parking surface in an area that was for the plaintiffs exclusive use. The documentary and photographic evidence offered by the defendant did not contradict the testimony of the plaintiffs witness on any of those facts. We conclude that the court acted within its discretion by excluding such evidence.

The defendant’s fourth claim is, as was its third claim, an evidentiary one. Specifically, the defendant claims that the court should have allowed the testimony of William Barber, the defendant’s parking lot painter. Barber testified that he told one of the defendant’s representatives that painting the three curbside spaces to allow for parking was “an unwise decision, because [of] the difficulty of backing out from the perpendicular parking spaces.” The plaintiff objected to this statement, and the court sustained that objection on the ground that this was opinion testimony and Barber had not been disclosed as an expert witness. Although we disagree with the court that Barber’s testimony amounted to expert opinion testimony, the testimony was not relevant and, therefore, properly was excluded.

The court thought that the defendant wanted to use Barber’s statement as substantive evidence to prove that the parking spaces were unsafe. The court reasoned that the question of the difficulty of backing out was one to which only an expert could testify. Expert testimony is required when a disputed matter is “manifestly beyond the ken of the average trier of fact, be it judge or jury.” State v. McClary, 207 Conn. 233, 245, 541 A.2d 96 (1988); see also Jaffe v. State Dept. of Health, 135 Conn. 339, 349, 64 A.2d 330 (1949) (“[w]here ... an issue presented is such that its solution can only be reached upon the basis of the special knowledge of expext witnesses, such evidence must be produced”).

The couxt, however, did not consider the fact that the question of difficulty of backing a vehicle is one which our legislature expects all operators of motor vehicles to consider on a regular basis when using public streets. See General Statutes § 14-243 (b) (“[n]o person shall back a vehicle unless such movement can be made with reasonable safety and without interfering with other traffic”). Section 14-243 (b) is an indication from the General Assembly that a common sense standard can be employed regarding the safety of backing a vehicle. In this case, the court could have allowed Barber, who was familiar with the parking area, to testify on the issue of the safety of backing. “The court in its sound discretion may admit testimony as to the opinion of a lay witness.” Zering v. Zering, 5 Conn. App. 249, 251, 497 A.2d 1023 (1985). This was not a situation such as in Doe v. Yale University, 252 Conn. 641, 748 A.2d 834 (2000), where the jury was asked to determine whether a university had breached the applicable standard of care when the plaintiff, a resident physician, contracted the human immunodeficiency virus at Yale-New Haven Hospital. In Doe, our Supreme Court determined that, under the facts of that case, the jury was required to consider the expert testimony on the issue of the applicable standard of care, because the standard of care was not something within lay knowledge. See id., 687-89. The present case presented a very simple question which a lay witness, such as Barber, might have answered for the court.

The defendant stated, however, that the testimony was not being offered for its truth, but rather to show what the defendant was told. Absent a claim by the defendant that Barber’s statement should have been considered in a determination of whether the parking spaces were unsafe, such testimony does not even fall within the rubric of opinion testimony by an expert. We must yet determine, however, whether Barber’s testimony was relevant to an issue before the court.

The defendant argues that Barber’s testimony was relevant to the defendant’s motive and intent in repainting the three curbside spaces, namely, that the defendant’s representatives had learned of concerns as to the safety of the three curbside spaces. The defendant argues that, in deciding whether to grant an injunction, the court must balance all of the equities as outlined in Raph v. Vogeler, supra, 45 Conn. App. 62. Although Barber’s testimony might have established that the defendant had been made aware of safety concerns regarding the three curbside parking spaces, the defendant’s good faith, or lack thereof, should not have been a factor in the court’s decision.

The language of the lease is clear when it states that “the closed area inside the control point is to be for the exclusive use of [the plaintiff].” The defendant had no right to repaint the plaintiffs parking area for the defendant’s exclusive use or to mark it “no parking.” The plaintiffs evidence demonstrated that the defendant’s agents continue to use the three curbside spaces despite “no parking” being painted there. The court’s injunction required the defendant to return the plaintiffs parking area to the condition it was in prior to the defendant’s wrongful acts. “It would be contrary to equity and fairness to allow a defendant to retain a benefit at the expense of the plaintiff.” United Coastal Industries, Inc. v. Clearheart Construction Co., 71 Conn. App. 506, 513, 802 A.2d 901 (2002). Where the benefit taken by the defendant was the plaintiffs lease rights to park on certain property, the plaintiff had a right to have that property returned to its use, the defendant’s motive and intent notwithstanding.

The fifth claim raised by the defendant is also eviden-tiary in nature. The defendant claims that it was improper for the court to exclude the letter sent from the plaintiffs attorney to the defendant’s attorney in April, 2000, because the letter contains a statement of fact that was separate from any offer of compromise. We disagree.

We need not examine whether a particular statement of fact contained in the letter should have been admitted into evidence. The defendant, at trial, did not direct the court’s attention to the specific language, which the defendant claims should have been admitted. Rather, the defendant attempted to have the entire letter admitted into evidence as a full exhibit. Even on appeal, the defendant still argues that the entire letter should have been admitted in evidence. This letter, however, contains the following statements: “Will your client respect the rights of mine to the ‘exclusive use’ of this area, including but not limited to these three (3) spaces? Will your client restore the signage in this area? Can we reach an agreement that will avoid the need for a judicial determination of my client’s rights?” These statements clearly are inadmissible evidence of settlement negotiations and, as such, the court was correct to exclude them. See Tomasso Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194, 199, 602 A.2d 1011 (1992).

Although there were statements within that letter that the defendant wanted introduced into evidence, the defendant never sought an introduction of only those portions it claims were admissible; it sought, rather, to introduce the entire letter. Because the inadmissible statements of an offer of compromise were contained in the letter offered in its entirety, the court properly refused to admit that letter into evidence.

The defendant’s sixth and final claim pertains to the amount of attorney’s fees the court ordered the defendant to pay to the plaintiff. Specifically, the defendant argues that it was improper for the court to award the full amount of attorney’s fees requested by the plaintiff when a portion of that amount was attributable to the plaintiffs actions in erroneously filing suit against Riv-erbend. We agree with the defendant on this issue.

“[A]bsent contractual or statutory authorization, there can be no recovery, either as costs or damages, for the expenses of litigation or the expenditures for counsel fees by a party from his opponent. . . . Where a contract expressly provides for the recovery of reasonable attorney’s fees, an award under such a clause requires an evidentiary showing of reasonableness. ... A trial court may rely on its own general knowledge of the trial itself to supply evidence in support of an award of attorney’s fees. . . . The amount of attorney’s fees to be awarded rests in the sound discretion of the trial court and will not be disturbed on appeal unless the trial court has abused its discretion.” (Citations omitted; internal quotation marks omitted.) Buccino v. Cable Technology, Inc., 25 Conn. App. 676, 679, 595 A.2d 376 (1991). “Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law . . . .” (Internal quotation marks omitted.) Krasowski v. Fantarella, 51 Conn. App. 186, 199-200, 720 A.2d 1123 (1998), cert. denied, 247 Conn. 961, 723 A.2d 815 (1999).

Paragraph thirty-two of the lease states that, in an action brought due to a breach of any provision of the lease, “all reasonable costs and expenses, including without limitation, actual professional fees such as appraisers’, accountants’, and attorneys’ fees, incurred by [the] prevailing party shall be paid by the other party . . . .” The defendant argues that the court abused its discretion when it awarded attorney’s fees incurred before the defendant was made a party to this action.

The court awarded the plaintiff attorney’s fees of $23,488.75, costs of $502.97 and abill of costs of $318.59. The court was aware of the fact that the plaintiff mistakenly had named Riverbend as a defendant before citing in the defendant Summer Street Properties, LLC. We have reviewed the affidavit in support of the plaintiffs request for attorney’s fees. The record discloses that the total amount of legal fees and costs awarded included several thousand dollars of expenses which arose because the plaintiff sued the wrong party. The lease provision that requires the payment of legal fees to the prevailing party does not reach so broadly as to require the defendant to pay for the plaintiffs mistakes. The court failed to account for the fact that the plaintiff was requesting attorney’s fees, some of which would not have been incurred had the plaintiff named Summer Street Properties, LLC, as the defendant from the beginning. By including those fees and any associated costs in its award, the court abused its discretion, and that part of the judgment awarding attorney’s fees must be recalculated to eliminate such fees and costs, which are solely the fault of the plaintiff.

The judgment is reversed as to the award of attorney’s fees and costs only, and the case is remanded with direction to recalculate said award to eliminate the fees and costs incurred as a result of the plaintiffs mistakenly bringing an action against Riverbend. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiff represents that “Marquardt & Roche and Partners, Inc.” is its present name, although when this case began the plaintiff was known as “Marquardt & Roche/Meditz & Hackett, Inc.”
      Riverbend Executive Center, Inc., is no longer a defendant in this case. Prior to trial, Summer Street Properties, LLC, was joined as a defendant, and the action was withdrawn as against Riverbend Executive Center, Inc. We refer in this opinion to Summer Street Properties, LLC, as the defendant.

       Portions of the plaintiffs requested relief appear to be in the nature of specific performance. For example, the plaintiff sought an injunction preventing the defendant from interfering with the plaintiffs parking rights under the lease. We note that the analysis is the same whether we label the relief a prohibitive injunction or specific performance. “Under the traditional views, specific relief will be denied when . . . the legal remedy is regarded as adequate or the plaintiff is not subjected to irreparable harm by the breach .... The specific performance remedy is a form of ipjunctive decree in which the court orders the defendant to perform the contract. . . . The specific performance decree originated in the old equity courts and continues today to be thought of as an equitable remedy, with the usual attributes of such remedies.” 3 D. Dobbs, Law of Remedies (2d Ed. 1993) § 12.8 (1), pp. 190-91.

       The defendant argues that “a finding of irreparable harm is a conclusion of law” without citing any authority for the proposition. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Szczerkowski v. Karmelowicz, 60 Conn. App. 429, 436, 759 A.2d 1050 (2000). Because the defendant failed to support its argument, we rely solely on the standard of review previously set forth.

       In sustaining the plaintiffs objection to Barber’s testimony, the court stated that “[essentially what [the defendant] want[s] me to do is to take [Barber’s] opinion, and I can only take his opinion if he is an expert.”

       When asked by the court why Barber’s testimony should be admitted, the defendant’s counsel responded: “You wouldn’t let my client testify about how he came to his knowledge about a safety concern, and I am trying to get to his knowledge about a safety concern.”


text:
    STATE OF CONNECTICUT v. MICHAEL A. MAZZEO
    (AC 21365)
    Schaller, Dranginis and Bishop, Js.

      Argued October 15, 2002
    officially released January 7, 2003

      Hubert J. Santos, with whom, on the brief, were Hope G. Seeley and Patrick S. Bristol, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Michael J. Sullivan, senior assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Michael A. Mazzeo, appeals from the judgment of conviction, rendered after a jury trial, of fraudulent receipt of workers’ compensation benefits in violation of General Statutes § 31-290c (a) (2) and larceny in the first degree in violation of General Statutes § 53a-122. The defendant claims that the trial court improperly (1) excluded exhibits that were central to his case, (2) introduced prejudicial material to the jury prior to conducting a poll and (3) instructed the jury on reasonable doubt, thereby depriving him of his right to a fair trial. We affirm the judgment of the trial court.

The defendant was employed by United Parcel Service (UPS) from 1988 to 1999. During his employment, the defendant suffered injuries that caused him to miss periods of employment. The most recent period for which the defendant collected workers’ compensation benefits was from October 2, 1996, until July 8, 1997. The injury associated with those benefits was in the nature of a temporary total disability. An injured worker is entitled to temporary total disability benefits if he is completely disabled from doing any type of work for a specific period of time. Someone who collects temporary total disability compensation is, due to injury, unable to earn any income for a specific period of time.

To ensure that injured workers are paid according to law, claimants are required to complete a workers’ compensation document designated as form 1A. Above the signature line on that document, a claimant is warned that “[a]ny person who intentionally misrepresents or fails to disclose any material fact related to the claimed injury may be guilty of a felony.” Question five on form 1A asks a claimant whether he has any other employers, to which the defendant answered “none” on January 6, 1997.

Liberty Mutual Insurance Company (Liberty Mutual) was responsible for making workers’ compensation payments on behalf of UPS. Liberty Mutual has its own form for determining compensation. On its form, it asked whether the defendant was self-employed or if he had worked since the date of his injury. The defendant answered in the negative as to both inquiries on January 6, 1997.

On January 6,1997, Lynette Hill, the defendant’s case manager at Liberty Mutual, telephoned the defendant to discuss his case. The call was answered with a message indicating that she had reached Shannon Development Corporation (Shannon Development). When Hill later asked the defendant about Shannon Development, he explained that it was his wife’s business. Hill became suspicious and asked a company called Countermeasures Investigations (Countermeasures) to explore the matter. An investigation revealed that the defendant was the manager and primary operating officer of Shannon Development, a company that developed property and built homes. According to records seized from the defendant’s home on January 7,1999, prior to his arrest, Shannon Development had a gross income in excess of $137,000 from October, 1996, until June, 1997, a period of time during which the defendant also collected more than $15,000 in disability benefits due to the injury he suffered at UPS.

Thereafter, the defendant was charged with fraudulent receipt of workers’ compensation benefits in violation of § 31-290c (a) (2) and larceny in the first degree in violation of § 53a-122. The prosecution alleged, in a long form information, that the defendant “did intentionally nondisclose and failed to reveal material facts affecting his claim for Worker Compensation Employment benefits . . . .”

The jury returned a verdict of guilty as to both counts, and the court sentenced the defendant to two concurrent ten year prison terms, execution suspended after eighteen months. This appeal followed. Additional facts will be set forth as necessary.

I

ADMISSIBILITY OF THE COUNTERMEASURES RECORDS

The defendant claims that the court should have allowed him to introduce into evidence certain reports prepared by Countermeasures. The defendant’s strategy at trial rested on the premise that Liberty Mutual was aware that he was employed and working for Shannon Development at the time he completed the application forms for disability payments. Consequently, the defendant contends that there was no material nondisclosure when he answered “no” to the questions concerning other employers, self-employment and whether he had worked since his injury. Toward that end, the defendant attempted to introduce six surveillance reports, marked as exhibits A through F, prepared by Countermeasures for Liberty Mutual to demonstrate that Liberty Mutual knew of his association with Shannon Development well before he completed the workers’ compensation application forms. The court sustained the state’s objection to the introduction of the reports on the ground that although they were business records within the hearsay exception, they contained inadmissible opinion and hearsay statements. The court did allow redacted versions of the reports to be admitted. The redacted versions contained only Countermeasures’ letterhead, a reference to the defendant, the date and Hill’s name as the addressee. The redacted versions did not contain any of the substance of the reports.

Our standard of review for evidentiary rulings is as follows. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evi-dentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, eviden-tiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Citations omitted, internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 229-30, 733 A.2d 156 (1999). “When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. . . . The defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Citation omitted; internal quotation marks omitted.) State v. Chapman, 229 Conn. 529, 544, 643 A.2d 1213 (1994).

For a defendant to be convicted of fraudulent receipt of workers’ compensation benefits under § 31-290c (a) (2), the state is required to prove that he made an “intentional nondisclosure of any material fact affecting such claim or the collection of such benefits . . . .” General Statutes § 31-290c (a) (2). It is the defendant’s contention that exhibits A through F were essential to prove his defense that he made no material nondisclosure to Liberty Mutual because the offered documents revealed that Liberty Mutual had knowledge of his employment. That claim apparently is premised on the notion that the defendant should be excused from criminal liability for making a false statement and omitting material information regarding his employment on form 1A and the Liberty Mutual application form simply because Liberty Mutual had prior knowledge that he did not truthfully complete the forms. In support of that novel theory, the defendant has provided no deci-sional law or analysis other than to cite to the fact that the prosecution, in closing argument, argued to the jury that there was no evidence that Liberty Mutual knew of the defendant’s employment at the time he completed the subject applications. Although the state may have been misdirected to urge that proposition on the jury, the fact that the state may have sipped vinegar does not thereby change it to fine wine. We agree with the state’s claim on appeal that those documents, exhibits A through F, were not relevant to any viable theory of defense. Whether the defendant completed his application form for workers’ compensation falsely and omitted material information can be determined by reference to the documents themselves and the evidence of his concomitant employment without regard to whether Liberty Mutual was, in fact, aware of his deceit. Because the question of whether Liberty Mutual had independent knowledge of the defendant’s employment was not relevant to his criminal liability, the court’s exclusion of the substance of the reports was correct, albeit on a different basis. The documents, exhibits A through F, were not exculpatory. As such, they were not relevant.

II

THE JURY POLL

On August 7,2000, the jury returned a verdict of guilty on both charges against the defendant. The verdict was accepted and recorded by the court. The clerk then asked the jury, as a group, whether the verdict was unanimous. The court then spoke to the jurors, thanking them for the job they did and mentioning their dedication to their civic duty. The jurors were excused and released, and the court asked the sheriff to escort them back to the deliberation room.

The court then asked if there were any motions, and the defendant responded that he wanted the jury polled. The court stopped the jurors as they were preparing to exit the courtroom and asked them to assume their previous positions in the jury box. The jurors complied, and they were individually polled on each count. The verdict on each count was unanimous. The jury was then excused, and the defendant offered no objection to the process used to poll the jury.

The defendant claims on appeal that the court introduced prejudicial material to the juiy* prior to conducting the poll and improperly discharged the jury prior to conducting the poll, thereby depriving him of his constitutional right to a unanimous verdict. Because the defendant did not preserve his claim for appeal, we need not afford it review. Additionally, the defendant has failed to satisfy the requirements for review of an unpreserved claim under either State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5.

Under Practice Book § 60-5, an appellate court “shall not be bound to consider a claim unless it was distinctly raised at trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” The defendant concedes that he did not raise his challenge to the jury poll at trial, but seeks review under either Golding or the plain error doctrine.

To invoke Golding review, an appellant must allege, minimally, a violation of a constitutional right. See State v. Golding, supra, 213 Conn. 239-40. In that respect, the defendant’s claim fails because it is not of constitutional magnitude alleging a violation of a fundamental right. The right to a jury poll is mandated by Practice Book § 42-31. That right, although “ ‘a corollary to the defendant’s right to a unanimous verdict,’ ” is not, however, one “of constitutional dimension.” State v. Pare, 253 Conn. 611, 623, 755 A.2d 180 (2000). As such, review under Golding is denied.

The defendant also seeks plain error review of his claim. “ [P]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. O’Neil, 67 Conn. App. 827, 835-36, 789 A.2d 531 (2002). We conclude that the defendant’s claim does not merit review under that doctrine. The court’s comments to the jurors can be reasonably understood as merely thanking them for the performance of their public duty and not as commending them on their verdict.

III

THE JURY INSTRUCTIONS

The defendant’s final claim is that the court’s instructions on reasonable doubt* *** impermissibly diluted the state’s burden of proof, thereby depriving him of his constitutional right to a fair trial. We disagree.

The defendant contends that the following phrases contained misstatements of law: “[N]ot a surmise or a guess or a mere conjecture”; “not a doubt suggested by counsel”; “a doubt as in the serious affairs that concern you, you would heed”; “a real doubt, a honest doubt”; “a doubt that’s honestly entertained and is reasonable in light of the evidence after a fair comparison and careful consideration of the entire evidence”; and “proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.”

“It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. . . . The [reasonable doubt concept] provides concrete substance for the presumption of innocence — that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law. ... At the same time, by impressing upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused, the [reasonable doubt] standard symbolizes the significance that our society attaches to the criminal sanction and thus to liberty itself. . . . [Consequently, the defendant] in a criminal case [is] entitled to a clear and unequivocal charge by the court that the guilt of the [defendant] must be proved beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 370-71, 796 A.2d 1118 (2002).

“In determining whether a trial court’s charge satisfies constitutional requirements, however, individual juiy instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.” (Internal quotation marks omitted.) State v. Walsh, 67 Conn. App. 776, 798, 789 A.2d 1031, cert. denied, 260 Conn. 906, 795 A.2d 546 (2002).

After our review of the jury instructions as a whole, we fail to find any language that would mislead the jury. Also, a “microscopic search for possible error”; id.; although not necessary, fails to reveal any language that has not previously been upheld as proper. See State v. Whipper, 258 Conn. 229, 297, 780 A.2d 53 (2001) (“[Our Supreme Court] consistently [has] held that the definition of reasonable doubt as a ‘real doubt, an honest doubt’ ... a ‘doubt which in the serious affairs which concern you in everyday life you would pay heed and attention to’ does not dilute the state’s burden of proof when such definitions are viewed in the context of an entire charge. . . . [Our Supreme Court] also [has] condoned instructions that similarly explained that reasonable doubt was not ‘doubt suggested by counsel . . . .’ ”); State v. Griffin, 253 Conn. 195, 206, 749 A.2d 1192 (2000) (“[Supreme Court has] approved a reasonable doubt instruction containing the statement that such a doubt is not ‘a surmise, a guess or a conjecture’ ”); State v. Sivri, 231 Conn. 115, 131, 646 A.2d 169 (1994) (Supreme Court noted “familiar language regarding proof beyond a reasonable doubt . . . [i.e., that it is]‘proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion’ ”); State v. Anderson, 65 Conn. App. 672, 686, 783 A.2d 517 (2001) (“court’s instruction that ‘[reasonable doubt] is a doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence presented in the case’ ” has consistently been upheld).

Because all of the language the defendant challenges has been upheld consistently in Connecticut courts, we conclude that the court’s instructions on reasonable doubt were proper and did not impermissibly dilute the state’s burden of proof. The defendant was not deprived of his constitutional right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court stated in relevant part: “Ladies and gentlemen, the court wants to thank you for the effort that you put in in regard to this case, you’ve shown extreme dedication and full attention to your responsibility. It has been a long trial. I hope and expect that it came into the time parameters or close to what we said. There were a number of times when court was suspended and not in session. I don’t want you to think the court was taking advantage of your time and attention. As I told you at the outset, there are many occasions where it is the juror’s responsibility to participate, and there are legal matters that do not require your attention so that you are out of the courtroom for a period of time. This has been a trial that has included a lot of exhibits and a lot of evidence and testimony and [that has] required your undivided attention. It is apparent that you have kept your oaths individually and collectively and rendered these verdicts. At this time, you have fulfilled your obligation to the state, and you are going to be excused with our thanks for the performance that you have rendered on behalf of the people of the state of Connecticut. ... I also will be available to talk to you briefly if you have any questions after the court adjourns. I realize it’s late in the day, and I’m sure you are anxious to leave. . . . But, again, on behalf of the people of the state of Connecticut, we want to thank you for your performance here this afternoon, and at this time you’re excused and released of all further responsibility for this case. Thank you.”

       Apparently, the defendant characterizes the court’s comments to the jury, such as “thanks for the performance that you have rendered on behalf of the people of the state of Connecticut,” as “prejudicial material.”

       Practice Book § 42-31 provides: “After a verdict has been returned and before the jury have been discharged, the jury shall be polled at the request of any party or upon the judicial authority’s own motion. The poll shall be conducted by the clerk of the court by asking each juror individually whether the verdict announced is such juror’s verdict. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or they may be discharged.”

       The defendant’s reliance on McCullough v. State, 10 Ga. App. 403, 73 S.E. 546 (1912), and United States v. Randle, 966 F.2d 1209 (7th Cir. 1992), is misplaced. Those cases can be distinguished easily on their facts. In McCullough, following the jury’s verdict of guilty, but before a poE was taken, the court imposed a sentence of twenty years, the maximum punishment aEowed for the defendant’s crime. McCullough v. State, supra, 406. On appeal, the defendant’s conviction was reversed because the natural inference of the court’s imposition of the maximum sentence is that the court strongly approved of the jury’s verdict. Id. The court’s statements in the present case could lead to no such inference. In Randle, following the jury’s verdict of guilly, but before a poll was taken, the court read aloud a memorandum from the probation department that recounted the defendant’s numerous arrests and convictions. United States v. Randle, supra, 1213. The defendant’s conviction was reversed because the jury was subjected to outside influence before an objection could be made. Id., 1214. In the present case, the court’s statements to the jury were unobjectionable, as they did not contain biased or extraneous information.

       The court’s instructions were as follows: “The meaning of reasonable doubt can be arrived at by emphasizing the word ‘reasonable.’ It’s not a surmise or a guess or a mere conjecture; it is not a doubt suggested by counsel which is not warranted by the evidence. It is such a doubt as in the serious affairs that concern you, you would heed. That is, it’s a doubt that would cause reasonable men and women who hesitate to act upon it in matters of importance. It is not hesitation springing up from any feelings of pity or sympathy for the accused or any other persons who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is a doubt that’s honestly entertained and is reasonable in light of the evidence after a fair comparison and careful consideration of the entire evidence.
      “Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that after hearing all the evidence, if there is something to the evidence or the lack of evidence that leaves in the minds of the jurors as reasonable men and women a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.”