author: BEACH, J.

text:
    STATE OF CONNECTICUT v. KENNETH BARDLIVING
    (AC 27799)
    Flynn, C. J., and Beach and McDonald, Js.

      Argued January 17
    officially released July 22, 2008

      Michael ZaHphes, special public defender, for the appellant (defendant).

      Lawrence J. Tytla, supervisory assistant state’s attorney, with whom, on the brief, was Michael L. Regan, state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Kenneth Bardliving, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), threatening in the second degree in violation of General Statutes § 53a-62 (a) (1), attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-70 (a) (1), and criminal violation of a protective order in violation of General Statutes § 53a-223 (a). On appeal, the defendant claims that (1) the trial court improperly marshaled the evidence in favor of the state during the charge to the jury, (2) the court improperly limited his cross-examination of the victim and (3) he was deprived of a fair trial due to prosecutorial improprieties during closing arguments to the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of February 6, 2004, school had been cancelled due to snow and sixteen year old S was home alone in an apartment in which she lived with her mother, H. S, while home alone, fell asleep while lying on the living room couch watching television and was awakened by the sound of footsteps ascending the stairs to the second floor apartment. S had failed to lock the front door after her mother left for work, and a person, who S recognized as the defendant, her mother’s former boyfriend, entered the apartment. Several months earlier, on October 21, 2003, a court issued a protective order that prohibited the defendant from, inter alia, imposing any restraint on, and from threatening, harassing, assaulting, molesting or sexually assaulting H or entering her home. The order extended to H’s minor children.

When S asked the defendant what he was doing in the apartment, he assured her that H had given him permission to be in the apartment. The defendant got a glass of water and talked to S about school and her boyfriend. While S continued to watch television, the defendant suddenly placed a knife to her throat. The defendant choked S, causing her to lose consciousness, and attempted to sexually assault her.

After a trial to the jury, the defendant was convicted of burglary in the first degree, assault in the second degree, threatening in the second degree, attempt to commit sexual assault in the first degree and criminal violation of a protective order. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant claims that the court improperly marshaled the evidence in favor of the state during its charge to the jury, and, as a result, he was denied his due process right to a fair trial. Specifically, the defendant claims that the court violated his constitutional right to a fair trial by referencing the state’s evidence, and not his evidence, while instructing the jury on an element of the offense of criminal violation of a protective order. We disagree.

The defendant seeks review of his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that his claim is reviewable under Golding because the record is adequate for review and the claim is of constitutional magnitude. See State v. Dixon, 62 Conn. App. 643, 647, 772 A.2d 166 (2001). The claim nonetheless does not satisfy the third prong of Golding because the defendant has failed to demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial.

In addressing the defendant’s claim that the court unfairly marshaled the evidence, we note that “[a] trial court has broad discretion to comment on the evidence adduced in a criminal trial. ... A trial court often has not only the right, but also the duty to comment on the evidence. . . . The purpose of marshaling the evidence, a more elaborate manner of judicial commentary, is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality. . . . Fair comment does not become improper merely because it tends to point out strengths, weaknesses, or difficulties of a particular case. . . . The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter.” (Citation omitted; internal quotation marks omitted.) State v. Young, 68 Conn. App. 10, 17, 791 A.2d 581, cert. denied, 260 Conn. 909, 795 A.2d 547 (2002).

“On review, we do not evaluate the court’s marshaling of the evidence in isolation. Rather, [t]o determine whether the court’s instructions were improper, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict. . . . 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. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Internal quotation marks omitted.) State v. Little, 88 Conn. App. 708, 713, 870 A.2d 1170, cert. denied, 274 Conn. 916, 879 A.2d 895 (2005).

The state presented testimony of Kerri Hall, deputy clerk of the Superior Court, geographical area number ten, concerning the October 21, 2003 protective order. She testified that in geographical area number ten, a protective order usually is prepared by the family relations division, then placed into the file of the state’s attorney. She further testified that the prosecutor then presents it to the presiding judge in open court and asks the court to issue the protective order. The court, she testified, then reads the order, adds any other orders it deems necessary, signs it and hands it to the clerk, who hands a copy to the defendant in open court.

Hall further testified that on the basis of her review of the court records, a protective order pertaining to the defendant was issued on October 21, 2003. Hall noted that if the defendant was not present in court on that day, the courtroom clerk would have made a notation in the file, indicating that the defendant was not present when the order issued. Hall testified that there was no such notation in the defendant’s file. The defendant, on the other hand, testified on cross-examination that he was not familiar with the October 21, 2003 protective order issued against him. He testified that on October 21, 2003, he met with a family relations officer but had no recollection of appearing in court or receiving the protective order.

The defendant directs us to portions of the court’s charge that, in his view, constituted improper marshaling. With respect to the charge of violation of a protective order, the court instructed in relevant part: “As to the first element, you may recall there was testimony from the clerk’s office regarding issuance of a protective order. The order was placed into evidence. And because it is a full exhibit, you will consider or may consider the contents of that order as evidence of the case. You may then decide whether the first element has been proven beyond a reasonable doubt, that is, the order was issued by the court. As to the second element, that the protective order was issued on the defendant, you may consider the same testimony that is referenced in the first element. You may recall there was no objection to the testimony which I referenced in the first element. There was no objection to [the prosecutor’s] having that placed into evidence. But again, you decide if this element has been proven beyond a reasonable doubt.” (Emphasis added.) The court concluded that instruction by describing the final two elements of the charge.

The defendant argues that the court, in its instruction to the jury with respect to the second element of the charge of violation of a protective order, namely, that the protective order was issued against him, improperly marshaled evidence in favor of the state because it instructed the jury to consider only the testimony of the court clerk without instructing that it also could consider his testimony concerning his lack of receipt and lack of notice of the protective order. The defendant further argues that the improper marshaling of evidence also prejudiced him with respect to the unlawful entry element of the charge of burglary in the first degree because the state’s theory of unlawful entry was a violation of the protective order.

We conclude, after carefully reviewing the court’s instructions, that it is not reasonably possible that the jury was misled by the court’s marshaling of the evidence. In its instruction to the jury, the court noted that the testimony of Hall detailing and authenticating the protective order, as well as the protective order itself, came into evidence without objection. The defendant did not contest the authenticity or legality of the protective order itself, and the court instructed the jury that the validity of the protective order was not an issue for it to consider. The court did not address the issue of whether the defendant was aware of the protective order until it subsequently was raised by the prosecutor. At the state’s request, the court recharged the jury in relevant part: “Regarding the protective order, one of the things that you would need to find is that the defendant was aware of the protective order. That is one of the issues for you to discuss.” During this recharge, the court did not mention the testimony of Hall or the defendant. The court did not mention specifically Hall’s testimony suggesting that the defendant received the protective order or the defendant’s testimony that he did not receive the protective order at any point in the charge.

The court explicitly instructed the jury that it was the sole finder of fact. The court also informed the jury that it should rely on its recollection of the evidence to determine the facts. In addition, the court instructed the jury: “If the court has expressed or intimated any opinion as to the facts, you are not bound by that opinion. What the verdict shall be is your sole [and] exclusive duty and responsibility. If I refer to any of the evidence in this charge, and I may do so, it will be simply for the purpose of illustration and clarification, and you are not to understand that I intend to emphasize any evidence I mention or to limit your consideration to that evidence alone.” The court’s instruction that the jury is the sole finder of fact and its instruction that it did not intend to place emphasis on any of the evidence are both factors that have been deemed persuasive to show that it was not possible for the jury to be misled by the court’s marshaling of the evidence. See State v. Reid, 254 Conn. 540, 560, 757 A.2d 482 (2000). Further, and most critically, at the state’s request, the court recharged the jury concerning the issue of notice. Additionally, the court specifically instructed that the state had the burden of proving the defendant’s guilt beyond a reasonable doubt. See State v. Little, supra, 88 Conn. App. 711-15 (court’s charge did not unfairly focus on state’s case when it referenced state’s evidence concerning motive, not defendant’s, but left jury to determine whether defendant had motive to commit crime).

We conclude that the charge, when read in its entirety and in light of the language in the additional instruction, reasonably guided the jury in reaching a verdict. Accordingly, the court’s mar shaling of the evidence did not deprive the defendant of his right to due process. Therefore, the defendant’s claim fails under the third prong of Golding.

II

The defendant next claims that the court improperly limited his cross-examination of S, thereby abridging his rights to confrontation and to present a defense under the sixth and fourteenth amendments to the United States constitution. We disagree.

“We traditionally apply a two part analysis to determine whether a party has been deprived of effective cross-examination. First, we determine whether the defendant received the minimum opportunity for cross-examination of adverse witnesses required by the constitution. ... If so, we then consider whether the trial court’s restriction of cross-examination amounted to an abuse of discretion under the rules of evidence. . . .

“We first look to whether the court’s preclusion of the evidence constituted a violation of the defendant’s constitutional right to confrontation. Generally, under the constitutional right to confrontation, a defendant is allowed broad latitude to test the veracity and credibility of the witnesses testifying against him. . . . The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . . Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . .

“The proffering party bears the burden of establishing the relevance of the offered testimony. Unless such a proper foundation is established, the evidence ... is irrelevant. . . . This may be accomplished in one of three ways. First, the defendant can make an offer of proof. . . . Second, the record independently can be adequate to establish the relevance of the proffered testimony. . . . Finally, the defendant can establish a proper foundation for the testimony by stating a good faith belief that there is an adequate factual basis for his inquiry. A good faith basis on the part of examining counsel as to the truth of the matter contained in questions propounded to a witness on cross-examination is required. ... A cross-examiner may inquire into the motivation of a witness if he or she has a good faith belief that a factual predicate for the question exists.

“In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Citations omitted; internal quotation marks omitted.) State v. Grant, 89 Conn. App. 635, 639-41, 874 A.2d 330, cert. denied, 275 Conn. 903, 882 A.2d 678 (2005). We examine the defendant’s claims under this framework.

A

The defendant first claims that his rights to confrontation and to present a defense were violated when he was not permitted to question S concerning whether he was at the apartment for her birthday in 2003. We disagree.

The defendant specifically argues that the precluded question was relevant because it would have established that he “was a welcomed and invited guest, which would have corroborated his later testimony concerning his lack of knowledge of the protective order, his partial residency at the dwelling, and his affair with S and ongoing relationship with H, but it also would have tended to impeach S concerning her bias, prejudice and motive in testifying against him . . . .’’He also argues that such an examination would have helped to demonstrate that neither he nor S were aware of the existence of the protective order. The defendant does not state specifically how the precluded testimony would relate to S’s bias, prejudice or motive in testifying against him. We note, however, that the defendant was able to cross-examine S concerning her version of the events that had transpired on the date in question, including the extent of a struggle between the defendant and S, if any, and the accuracy of her statement to the police. He also was able to elicit testimony from S that on the day in question, the defendant was not an unwelcomed guest and that S heard the defendant indicate, upon arriving, that he had permission from H to be in the apartment. We conclude that the court’s preclusion of S’s testimony as to whether the defendant was present at the apartment for S’s birthday in 2003 did not deprive him of his rights to confrontation or to present a defense.

Even if we were to assume that the defendant could have suggested through this testimony that he did not receive notice of the protective order or that the testimony otherwise could have bolstered his credibility or demonstrated S’s bias, prejudice or motive in testifying against him, the defendant acknowledges that the testimony did not appear to be relevant at the time it was offered, nor was a sufficient foundation laid at that time. Specifically, he observes in his brief to this court that “the proffered testimony concerning unlawful entry in relation to the other elements and defenses of the defendant’s case . . . wouldn’t be apparent until the defense presented its case and [the] defendant took the [witness] stand and recounted his version of the events much later in the trial.” (Emphasis added.) At the time the testimony was offered, defense counsel noted that the purpose of the offer was to contest the state’s claim of unlawful entry regarding the burglary charge. The prosecutor responded that the state’s only theory for unlawful entry was the violation of the protective order. Therefore, at the time it was offered, the issue of permissive entry was not relevant.

Furthermore, as the corut stated in sustaining the prosecutor’s objection to the question at issue, the defendant did not lay a proper foundation for the question because there was no evidence as to whether the birthday occurred after the date the protective order was signed in October, 2003. The record reveals that the defendant was not prevented from making an offer of proof. The defense also did not recall S as a witness after the defendant testified.

For the foregoing reasons, we conclude that the court did not abuse its discretion by precluding that line of inquiry at the time it was offered. Thus, the defendant’s rights to confrontation and to present a defense were not violated.

B

The defendant next claims that his rights to confrontation and to present a defense were violated when he was not permitted to question S concerning whether he had been at the residence between October, 2003, and February 6, 2004, on occasions when S was not present. We disagree.

The defendant did not object to the court’s ruling with which he now takes issue on appeal. Accordingly, our review of this claim is governed by State v. Golding, supra, 213 Conn. 239-40. “As noted previously, a claim is reviewable under Golding if the record is adequate to review the claim and the claim is of constitutional magnitude alleging the violation of a fundamental right. ... It is well established that eveiy evidentiary ruling that denies a defendant a line of inquiry is not a violation of his constitutional rights. The defendant’s right to confront witnesses against him is not absolute, but must bow to other legitimate interests in the criminal trial process. . . . Accordingly, [t]he defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right. . . .

“Thus, [o]nce identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed. . . . We previously have stated that the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” (Citations omitted; internal quotation marks omitted.) State v. Gerald W., 103 Conn. App. 784, 797-98, 931 A.2d 383, cert. denied, 284 Conn. 933, 935 A.2d 152 (2007).

The defendant’s unpreserved evidentiary claim fails under the second prong of Golding. The defendant effectively cross-examined S, during which time he was able to elicit testimony from her that he was not an unwelcomed guest and that upon seeing him in the apartment, S did not ask him to leave. Under the circumstances of this case, we conclude that the constitutional standard of confrontation was met, and, therefore, the court’s ruling merely was evidentiary in nature. Accordingly, we decline to review the defendant’s unpreserved evidentiary claim.

III

The defendant next claims that he was deprived of a fair trial as a result of prosecutorial impropriety. We disagree.

At trial, the defendant failed to object to the alleged instances of prosecutorial impropriety with which he now takes issue on appeal. “Once prosecutorial impropriety has been alleged, however, it is unnecessary for a defendant to seek to prevail under State v. Golding, [supra, 213 Conn. 239-40], and it is unnecessary for an appellate court to review the defendant’s claim under Golding. . . . The reason for this is that the touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).” (Citation omitted; internal quotation marks omitted.) State v. Fauci, 282 Conn. 23, 33, 917 A.2d 978 (2007).

We conduct a two step inquiry in analyzing claims of prosecutorial impropriety. “The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial.” (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 572, 849 A.2d 626 (2004). We recognize that “because closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Nevertheless, [w]hile a prosecutor may argue the state’s case forcefully, such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. Antonio A., 90 Conn. App. 286, 298, 878 A.2d 358, cert. denied, 275 Conn. 926, 883 A.2d 1246 (2005), cert. denied, 546 U.S. 1189, 126 S. Ct. 1373, 164 L. Ed. 2d 81 (2006).

“The issue is whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . [The court] must view the prosecutor’s comments in the context of the entire trial.” (Internal quotation marks omitted.) Id., 297. “[T]he fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial [impropriety]. ... It is in that context that the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.” (Internal quotation marks omitted.) Id., 301. The factors to be considered in assessing the prosecutor’s actions include “the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted.) State v. Williams, supra, 204 Conn. 540.

Having set forth the applicable legal principles, we now examine the challenged remarks in turn.

A

The defendant first claims that the prosecutor committed improprieties when he expressed his personal opinion as to the credibility of S and the defendant. We disagree.

“It is well settled that [a] prosecutor may not express his own opinion, either directly or indirectly, as to the credibility of witnesses .... Such expressions of personal opinion are a form of unsworn and unchecked testimony. . . . These expressions of opinion are particularly difficult for the jury to ignore because of the special position held by the prosecutor. . . . The jury is aware that he has prepared and presented the case and consequently, may have access to matters not in evidence . . . which the jury may infer to have precipitated the personal opinions. . . . The prosecutor may, however, argue to the jury that the evidence and the reasonable inferences to be drawn therefrom should lead the jury to a conclusion as to the credibility of witnesses.” (Emphasis in original; internal quotation marks omitted.) State v. Morgan, 70 Conn. App. 255, 287, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002).

1

The defendant refers to several instances of what he claims to be improper argument. During closing argument, the prosecutor argued: “[The defendant] is being untruthful to the state police, he is being untruthful— he acknowledges on at least two occasions being untruthful to [Peter M. Zeman, a psychiatrist].” During closing rebuttal argument, the prosecutor argued: “[The defendant] on the other hand, not only sat down with the state police, not having suffered any injuries, not having been rendered unconscious or suffered any injuries, and gave a signed, sworn statement to the police, which, based on his testimony here in court, is obviously a lie in the details. And then you heard that on two more occasions when he was interviewed by . . . Zeman, he persisted in those lies.” The defendant argues that the foregoing statements by the prosecutor were an expression of personal opinion and constituted improper argument. Specifically, the defendant cites the fact that the prosecutor used the word “lie.” We disagree.

“[I]t is not improper for a prosecutor to comment on the credibility of a witness as long as he neither personally guarantees the witness’ credibility nor implies that he has knowledge of the witness’ credibility outside the record.” (Internal quotation marks omitted.) State v. Wickes, 72 Conn. App. 380, 388, 805 A.2d 142, cert. denied, 262 Conn. 914, 811 A.2d 1294 (2002). “[E]ven though it is unprofessional, a prosecutor can argue that a defendant is a ‘liar’ if such an argument is supported by the evidence.” (Internal quotation marks omitted.) State v. Dews, 87 Conn. App. 63, 81, 864 A.2d 59, cert. denied, 274 Conn. 901, 876 A.2d 13 (2005); see also State v. Spyke, 68 Conn. App. 97, 113, 792 A.2d 93 (prosecutor’s characterization of defendant as “liar” supported by evidence), cert. denied, 261 Conn. 909, 804 A.2d 214 (2002); cf. State v. Hilton, 79 Conn. App. 155, 169, 829 A.2d 890 (2003) (prosecutor’s characterization of defendant as “liar” improper); State v. Floyd, 10 Conn. App. 361, 367-68, 523 A.2d 1323 (same), cert. denied, 203 Conn. 809, 525 A.2d 523, cert. denied, 484 U.S. 859, 108 S. Ct. 172, 98 L. Ed. 2d 126 (1987).

In this case, the prosecutor did not express his opinion as to the defendant’s or the victim’s credibility. Instead, the prosecutor drew the conclusion that the defendant was untruthful because his trial testimony was contradicted by his statements to the police and to Zeman, with whom the defendant talked concerning the events that transpired on the day in question. The prosecutor’s submission concerning the defendant’s credibility was fair in light of the testimony of S that contradicted the defendant’s testimony. “[I]t is not improper for the prosecutor to comment [on] the evidence presented at trial and to argue the inferences that the jurors might draw therefrom. . . . We must give the jury the credit of being able to differentiate between argument on the evidence and attempts to persuade them to draw inferences in the state’s favor, on one hand, and improper unsworn testimony, with the suggestion of secret knowledge, on the other hand.” (Internal quotation marks omitted.) State v. Fauci, supra, 282 Conn. 36.

2

The defendant next argues that the prosecutor improperly vouched for the credibility of S when he stated during closing argument: “[S] also told you something, and again, it’s one of those little details—either she is diabolically clever or it’s another indication of credibility; she told you that in her fear she wet her pants, she urinated. And that is not the kind of thing that people disclose casually; that’s embarrassing. And in the context of everything else, she noted that to the police and to you.” We disagree with this claim.

This remark was not based on personal opinion and was not an improper attempt to bolster the credibility of S. “[I]t is not improper for a prosecutor to remark on the motives that a witness may have to lie, or not to lie, as the case may be.” (Internal quotation marks omitted.) State v. Stevenson, supra, 269 Conn. 585. Accordingly, it was not improper for the prosecutor to argue that S did not have a motive to lie about this detail because it was embarrassing and people normally do not disclose embarrassing details that are untrue. The prosecutor simply directed the jurors to draw inferences from their knowledge and common experience.

3

The defendant also claims that during closing argument, when referring to the defendant’s testimony and character, the prosecutor improperly used the words “I think” followed by negative adjectives and phrases, such as “remarkable,” “extraordinary,” “outrageous,” “fantasy,” “bizarre,” “incredible,” “narcissistic,” “act of desperation,” “sense of narcissism,” “shameless” and “lame.” The defendant argues that the use of the words “I think” was improper because it was an expression of personal opinion. We disagree.

“Although logic dictates that the use of T increases the likelihood that a statement is an expression of one’s personal opinion, it is not necessarily so. The use of T is an integral part of our lexicon that is not easily eliminated from speech. Therefore, we must look at the statement, including the use of the pronoun %’ as a whole, in determining whether it was an expression of the [prosecutor’s] personal opinion regarding the credibility of witnesses.” State v. Fauci, supra, 282 Conn. 38.

Our review of the record leads us to conclude that the prosecutor was commenting on the evidence and arguing the inferences that the jurors reasonably could draw therefrom. The prosecutor did not impermissibly inject his personal beliefs or opinions into his argument or imply that he had knowledge of the defendant’s credibility obtained from outside of the record. He merely was commenting on the inferences that could be drawn from the evidence and, because those inferences were supported by the evidence, the remarks were not improper. See Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 401, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999).

B

The defendant also claims the prosecutor improperly appealed to the emotions, passions and prejudices of the jurors during closing argument. We disagree.

“It is well settled that [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal. . . . Therefore, a prosecutor may argue the state’s case forcefully, [but] such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Nevertheless, [w]hen making closing arguments to the jury . . . [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. ” (Internal quotation marks omitted.) State v. Farr, 98 Conn. App. 93, 107-108, 908 A.2d 556 (2006).

1

The defendant claims that during closing argument, when referring to the defendant’s testimony and character, the prosecutor improperly used negative adjectives and phrases, such as “remarkable,” “extraordinary,” “outrageous,” “fantasy,” “bizarre,” “incredible,” “narcissistic,” “act of desperation,” “sense of narcissism,” “shameless” and “lame.” In addition to claiming that the use of the words “I think” in relation to these adjectives and phrases was improper, which we have addressed previously, the defendant also argues that the use of the adjectives and phrases was improper because it appealed to the emotions, passions and prejudices of the jurors. We disagree.

“[W]hile a prosecutor may argue the state’s case forcefully, such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. Antonio A., supra, 90 Conn. App. 298. In each instance, the transcript reveals that the prosecutor was commenting on the evidence and arguing the inferences that the jurors could reasonably draw therefrom. Our review of the record leads us to conclude that the prosecutor’s remarks were based on the evidence and did not divert the jury from the facts of the case. Accordingly, we reject the defendant’s claims that these remarks improperly appealed to the jury’s emotions.

2

The defendant last refers to the prosecutor’s statement made during closing argument that S and the defendant both testified that S had lost consciousness during the incident and that it was a “big deal” that the defendant had caused the unconsciousness. The defendant argues that this comment appealed to the jurors emotions, passions and prejudices by asking them to experience this type of event themselves. We disagree.

The prosecutor’s remarks were based on the evidence and did not divert the jury from the facts of the case. The prosecutor commented on the evidence that S and the defendant both testified that S had lost consciousness and suggested that being rendered unconscious by another was an unusual occurrence and was a significant event for the jury to consider. We reject the defendant’s claim that this remark improperly appealed to the jury’s emotions.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identify may be ascertained. See General Statutes § 54-86e.

       The defendant does not malee a claim based on insufficient evidence. His only claim, with respect to this issue, concerns the court’s charge.

       “Under State v. Golding, supra, 213 Conn. 239-40, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original; internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 178 n.22, 920 A.2d 236 (2007).

       The phrase “issued on” was used in the trial court. In context, it is clear that the phrase “issued on” meant served or otherwise formally provided notice to the defendant.

       The state limited its theory of unlawful entry with respect to the burglary charge to that of violation of the October 21, 2003 protective order.

       We also note that the issue of notice was not addressed during the defendant’s direct testimony but was elicited on cross-examination. In closing arguments, the defendant did not address the issue of lack of notice of the protective order.

       The court instructed the jury in relevant part: “You are the sole judges of the facts. It is your duty to find the facts. You are to recollect and weigh the evidence and form your own conclusions as to what the ultimate facts are. . . . The actions of the court during the trial on ruling on motions or objections by counsel or in comments to counsel or in questions to witnesses or in setting forth the law in these instructions are not to be taken by you as any indication of the court’s opinion as to how you determine the issues of fact.”

       The defendant also alleges a violation of article first, § 8, of the Connecticut constitution. We decline to reach the defendant’s state constitutional claim because it does not meet the standard enunciated in State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992). “We have repeatedly apprised litigants that we will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim . . . (Internal quotation marks omitted.) State v. Sinvil, 270 Conn. 516, 518 n.1, 853 A.2d 105 (2004). Consequently, we analyze the defendant’s arguments only under the United States constitution.

       In her statement to the police, S indicated that she fell asleep while watching television. The statement indicated that the defendant entered the apartment and engaged her in conversation concerning school and her boyfriend. S further indicated in her statement that the defendant put a knife to her throat, choked her, causing her to lose consciousness, and attempted to sexually assault her.

       Specifically, S, during the defense cross-examination, testified as follows:
      “[Defense Counsel]: You told him to go into the kitchen?
      “[The Witness]: Yes. He asked for soda, and I said, you know, we don’t have soda here. So, I told him he could have a glass of water.
      “[Defense Counsel]: So, I guess it’s fair to say, at least at this point, at no time after seeing [the defendant] in the apartment did you tell him to leave the apartment.
      “[The Witness]: No.
      “[Defense Counsel]: Is it fair to say although you hadn’t seen him in some time, he wasn’t an unwelcome guest in your apartment? It was a surprise to see him?
      “[The Witness]: It was a surprise to see him because he hadn’t been there in so long.
      “[Defense Counsel]: But you didn’t tell him to leave?
      “[The Witness]: No.
      “[Defense Counsel]: So, I guess it’s fair for us to say that he wasn’t unwelcome in the sense of a stranger walking into your house?
      “[The Witness]: No.”

       In his statement to the police, the defendant claimed that he remembered being in H’s apartment talking to S but that he subsequently blacked out. He next remembered standing over S, who was lying on the floor bleeding from her nose. He stated that S hugged him, told him she loved him and told him to leave. His statement further indicated that S asked him whether he had raped or beaten her and he answered “no” before leaving. At trial, the defendant testified that he had been having an affair with S, who invited him over to the apartment, disclosed to him that she was pregnant and, when he attempted to leave, attacked him with a knife. The defendant testified on cross-examination that although he had told Zeman that he had blacked out while in the apartment with S on the day in question, he, in fact, had not blacked out.

       S testified that the defendant choked her, causing her to lose consciousness, and attempted to assault her sexually.


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    STAMFORD LANDING CONDOMINIUM ASSOCIATION, INC. v. CHARLENE LERMAN ET AL.
    (AC 29225)
    Bishop, Lavine and Foti, Js.

      Argued April 15
    officially released July 22, 2008

      Edward Kanowitz, for the appellant (named defendant).

      Gerald S. Knopf, for the appellee (plaintiff).
   Opinion

LAVINE, J.

The defendant Charlene Lerman appeals from the judgment of the trial court, rendered in favor of the plaintiff, Stamford Landing Condominium Association, Inc., in an action to foreclose a statutory lien for an unpaid debt levied against her pursuant to General Statutes § 47-258 of the Common Interest Ownership Act. On appeal, the defendant claims that the court improperly concluded that (1) the plaintiff fined her in accordance with the requirements of General Statutes § 47-244 (a) (11) and the plaintiffs declaration, (2) the plaintiffs rule prohibiting tenants from keeping dogs was enforceable and (3) the affidavit of debt submitted by the plaintiff after trial did not improperly exceed the scope of the pleadings. We affirm in part and reverse in part the judgment of the trial court.

The record includes the following relevant facts and procedural history. The plaintiff is a Connecticut corporation comprised of the unit owners of a condominium complex known as The Village at Stamford Landing (the village) and incorporated in 1987. In 1991, the defendant bought a unit at the village that, by 2003, she had begun renting to a tenant, Georgia Harbison. In August, 2003, the plaintiffs board of directors (board) received a complaint that Harbison was keeping a dog in violation of the plaintiffs rules. At the instruction of the board, the plaintiffs managing agent, Michael Hibbert, investigated the situation. On August 21, 2003, as a result of the investigation, the plaintiff mailed the defendant a letter, informing her that Harbison was keeping a dog in the unit in violation of the plaintiffs rules. The letter notified the defendant that if the dog was not removed from the premises by September 1, 2003, fines of $25 per day would be imposed.

On September 5, 2003, Francis J. Browne, acting as the defendant’s attorney, telephoned and conversed with Hibbert about the August 21, 2003 letter. Immediately thereafter, Browne sent the plaintiff a letter contesting the enforceability of the plaintiffs rules regarding pets. On September 9, 2003, the plaintiff mailed Browne a letter reiterating that Harbison did “not have the right to have the dog on the property.” The plaintiff, however, extended a grace period to the defendant, allowing her until October 10, 2003, to see that the dog was removed, after which fines would begin to accrue. On October 14 and 24,2003, the plaintiff sent letters to the defendant in which it advised that fines were being imposed but that the defendant could be heard on the matter at the next board meeting on November 3, 2003. The defendant did not attend the board meeting. On November 5, 2003, the plaintiff informed the defendant that the fines were continuing, that legal fees were being added to her account and that foreclosure proceedings would be instituted on the accumulating fines if the dog was not removed from her unit.

On July 1, 2004, the plaintiff commenced an action, pursuant to § 47-258, to foreclose a statutory hen on the defendant’s unit. The complaint stated that as of July 1, 2004, the defendant had failed to pay duly authorized fines, common charges and late fees amounting to “a minimum of $4,213.12, plus costs of collection.” The first count of the complaint alleged unpaid common charges. The second count alleged unpaid fines resulting from the violation of the plaintiffs rules. At the time the complaint was served, the defendant allegedly owed the plaintiff $553.12 in common charges, $2225 for fines relating to the pet violation and $1435 for the plaintiffs attorney’s fees. During the pendency of the action, the defendant made sporadic payments to the plaintiff for common charges. When the trial to the court began, the defendant’s account was again in arrears. On January 11 and 12, 2007, a trial was held before the court. The plaintiff provided documentary and testimonial evidence regarding the defendant’s debts. Hibbert also testified about problems at the village relating to dogs.

At trial, the defendant presented no evidence to contradict the plaintiffs claim for unpaid common charges and late fees relating to them. The court determined that the plaintiffs rules and regulations prohibited tenants from housing pets and that the plaintiff properly provided the defendant with notice and an opportunity for a hearing. To ensure that the hearing requirement was satisfied prior to the levying of fines, the court excluded fines assessed prior to the November 3, 2003 board meeting. Ultimately, the court concluded that the plaintiff had proven its entitlement to foreclose its lien on the defendant’s unit.

On the basis of its findings, the court calculated that the defendant owed the plaintiff $1700 in unpaid fines, $14,040 in attorney’s fees and an undetermined amount in common charges. In a memorandum of decision, the court directed the plaintiff to submit an updated affidavit of the remaining debt owed to it by the defendant. On July 30, 2007, the plaintiff submitted an affidavit of debt listing the following debts: common charges of $705.85, an unpaid portion of a garage assessment of $882.59 and late fees of $575. On August 2, 2007, the court issued a supplemental memorandum of decision in which it added the previously determined debt of $15,740 to the $2163.44 listed on the posttrial affidavit for a total of $17,903.44 owed by the defendant to the plaintiff. This appeal followed.

I

The defendant first claims that the court improperly determined that the plaintiff was authorized to levy fines against her. Specifically, she alleges that the plaintiff failed to follow the procedural requirements set forth in § 47-244 (a) (11) and in the condominium declaration. We do not agree.

A

The defendant asserts that the plaintiff violated § 47-244 (a) (11) by failing to provide her with proper notice and an opportunity to attend a hearing before levying fines against her. The record indicates otherwise.

The question of whether a party has been provided notice and an opportunity to be heard is a factual issue to be determined by the trial court. See Lynch v. Lynch, 13 Conn. App. 433, 436, 537 A.2d 503 (1988). “[W]here the factual basis of the court’s decision is challenged, we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. ... 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.” (Citation omitted; internal quotation marks omitted.) Owens v. New Britain General Hospital, 229 Conn. 592, 609, 643 A.2d 233 (1994).

In this case, the record indicates that the plaintiff provided the defendant with sufficient notice of the impending daily fines as well as an opportunity to be heard on the matter of Harbison’s dog. The defendant received at least two letters advising her that she could be heard at the November 3, 2003 board meeting before the disputed fines were levied. The fact that she did not attend the meeting does not nullify the plaintiffs invitation. Moreover, the court’s exclusion of all fines assessed prior to November 3, 2003 assures that the hearing requirement was satisfied prior to the levying of fines. Contrary to the defendant’s position, the evidence establishes that the plaintiff supplied the defendant with notice and an opportunity to be heard.

B

The defendant also insists that the plaintiff levied fines against her in violation of the notice requirements of its declaration. The interpretation of a condominium’s declaration presents a question of law. 15A Am. Jur. 2d, Condominiums and Cooperative Apartments § 8 (2000); see Weldy v. Northbrook Condominium Assn., Inc., 89 Conn. App. 581, 874 A.2d 296 (2005), rev’d on other grounds, 279 Conn. 728, 904 A.2d 188 (2006). Our standard of review is thus plenary.

This court recently has stated that “[t]he concept of notice concerns notions of fundamental fairness, affording parties the opportunity to be apprised when their interests are implicated in a given matter. . . . Notice is not a rigid concept. Section 2 of the Restatement (Second) of Judgments, entitled ‘Adequate Notice’ . . . explains that [t]he modern approach to notice-giving attaches primary importance to actual notice and treats technical compliance with notice procedures as a secondary consideration.” (Citations omitted; internal quotation marks omitted.) Twenty-Four Merrill Street Condominium Assn., Inc. v. Murray, 96 Conn. App. 616, 622-23, 902 A.2d 24 (2006).

The defendant argues that the letters mailed to her by the plaintiff failed to incorporate all of the elements mandated by article XXIV, § 2, of the plaintiffs declaration. Specifically, she claims that the date, time and place of the hearing and the rules of procedure to be followed dining the hearing were missing from the notice she received. Our review of the pertinent correspondence apprises us that the letters dated October 14 and 24, 2003, invited the defendant to attend the November 3, 2003 board meeting. In light of the fact that the defendant was familiar with the location, layout and procedures of the village, the letters’ omission of the exact time and location of the meeting was not problematic. As to the rules of procedure that the defendant claims were missing, article XXIV, § 2, of the declaration does not mandate that such information be contained in the notice. Furthermore, Browne’s calling Hibbert on September 5, 2003, to discuss the August 21,2003 letter proves that the defendant received actual notice. See Reiner, Reiner & Bendett, P.C. v. Cadle Co., 278 Conn. 92, 111, 897 A.2d 58 (2006). We must agree with the court’s conclusion that the plaintiff satisfied the requirements of its declaration in providing notice to the defendant.

II

The defendant next claims that the court improperly deemed valid the plaintiffs rule prohibiting tenants from housing dogs at the village. In particular, she contends that because the rule comprises a restriction on use that is not contained in the declaration, § 47-244 (c) (1) bars its enforcement. We do not agree.

This claim turns on our construction of § 47-244 (c) (1). “The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case .... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Jim’s Auto Body v. Commissioner of Motor Vehicles, 285 Conn. 794, 806-807, 936 A.2d 295 (2008).

General Statutes § 47-244 (c) (1) provides in relevant part: “Unless otherwise permitted by the declaration or this chapter, an association may adopt rules and regulations that affect the use or occupancy of units that may be used for residential purposes only to: (A) Prevent any use of a unit which violates the declaration; (B) Regulate any occupancy of a unit which violates the declaration or adversely affects the use and enjoyment of other units or the common elements by other unit owners . . . .”

We agree with the defendant’s position that an association’s power to adopt rules and regulations restricting the use of units is not unlimited. Indeed, § 47-244 (c) (1) outlines the exceptions to the general proscription against associations adopting rules that restrict the use of residential units. We concur with the court, however, that § 47-244 (c) (1) (B) allows precisely for the rule disputed here, which provides that “[n]o tenant may house pets of any kind on the premises.” The court concluded that “rules concerning pets fall squarely within the powers of a condominium association” and specifically noted § 47-244 (c) (1) (B).

Although the defendant insists that the plaintiff has failed to show the adverse effects that would trigger the application of § 47-244 (c) (1) (B), the record indicates otherwise. Hibbert’s testimony that the plaintiff had received complaints about dogs over the years and that the village had experienced problems relating to canine waste and damage to the grounds caused by “dogs running amuck,” established the existence of adverse effects on unit owners. It is clear to us that the disputed rule, which serves to regulate the occupancies of units that adversely affect other unit owners’ enjoyment of the common elements, is valid under the purview of § 47-244 (c) (1) (B). Because we agree with the court’s determination that the enforcement of the disputed rule fell within the plaintiffs statutory powers, the defendant’s second claim fails.

III

The defendant’s final claim is that the court, in calculating the plaintiffs damages, improperly considered two matters not alleged in the complaint, namely, debt accrued after the action was commenced and a garage assessment mentioned in the plaintiffs posttrial affidavit. According to the defendant, because the complaint does not allege a continuing failure to pay common charges, the court should not have awarded damages for charges beyond the commencement of the action. The defendant also claims surprise at the garage assessment. We affirm the court’s judgment as to all of the charges except the garage assessment. As to that alleged debt, we agree with the defendant and reverse the judgment.

“The interpretation of pleadings is an issue of law. As such, our review of the court’s decisions in that regard is plenary. . . . The allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint.” (Citations omitted; internal quotation marks omitted.) Provenzano v. Provenzano, 88 Conn. App. 217, 225, 870 A.2d 1085 (2005). “The purpose of a complaint ... is to limit the issues at trial, and . . . pleadings are calculated to prevent surprise. ... It is fundamental to our law that the right of a [party] to recover is limited to the allegations in his [pleading], . . . Facts found but not averred cannot be made the basis for a recoveiy.” (Internal quotation marks omitted.) Connecticut Education Assn., Inc. v. Milliman USA, Inc., 105 Conn. App. 446, 460, 938 A.2d 1249 (2008). Our Supreme Court has recognized, however, that “where the trial court ha[s] in fact addressed a technically unpleaded claim that was actually litigated by the parties, it [i]s improper for the Appellate Court to reverse the trial court’s judgment for lack of such an amendment [to the complaint].” Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 575, 715 A.2d 46 (1998).

It is axiomatic that “the burden of proving damages is on the party claiming them.” Gargano v. Heyman, 203 Conn. 616, 620, 525 A.2d 1343 (1987). When damages are claimed, they are an essential element of the plaintiffs proof and must be proved with reasonable certainty. Simone Corp. v. Connecticut Light & Power Co., 187 Conn. 487, 495, 446 A.2d 1071 (1982). Damages “are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.” Humphrys v. Beach, 149 Conn. 14, 21, 175 A.2d 363 (1961).

A

The defendant maintains that because the plaintiffs complaint does not cite a continuing failure to pay common charges and late fees, the court should not have awarded damages for charges incurred after the day on which the complaint was served. The complaint contains the following pertinent allegations: “Before, since and including on or about September 1,2003, the [defendant] ha[s] failed to pay duly authorized common charges pursuant to aperiodic budget adopted annually, late fees and other charges duly assessed in accordance with the rules and regulationfs] of the [p]laintiff. As of the date of the [c]omplaint, this amounts to a minimum of $4,213.12 plus costs of collection. . . . Wherefore, the plaintiff claims . . . [a]ttomey’s fees and costs pursuant to [§] 47-258 (g) of the Connecticut General Statutes . . . [i]nterest pursuant to Connecticut General Statutes [§] 47-258 [and] [s]uch other and further relief, legal or equitable, as may be required.”

At trial, the plaintiff proffered an updated ledger documenting common charges that the defendant had failed to pay. The court made the following findings. “Through the testimony of . . . Hibbert . . . and the records of [the plaintiff], it was established that on July 1, 2004, [the defendant] owed [the plaintiff] $3936.56, an amount that consisted of two months common charges and late fees, $2225 of fines and $1310 in legal fees. The amounts owed have fluctuated since that time, as fifteen months passed when no common charges were paid. As of June 1, 2006, over $5000 was owed on [the unit] for common charges and late fees. Two large payments by [the defendant] brought the common charges current in December, 2006, but as of the date of trial, the January [2007] common charges were in arrears. There was no contrary evidence presented by [the defendant], and the plaintiff has proven that as of January, 2007, common charges and late fees were owed by [the defendant].”

In light of the record, the court’s determination that the plaintiff was entitled to common charges accrued after the date of the July 1, 2004 complaint was appropriate. The issue clearly was litigated. “[A] court may, despite pleading deficiencies, decide a case on the basis on which it was actually litigated . . . .” Stafford Higgins Industries, Inc. v. Norwalk, supra, 245 Conn. 575. We accordingly reject the defendant’s claim that the court improperly awarded charges accrued after the commencement of the action.

B

The defendant also submits that the court should not have awarded the plaintiff $882.59 for a garage assessment listed on the posttrial affidavit. Because our careful review of the record reveals that the garage assessment was raised neither in the plaintiffs pleadings nor at trial, we agree that the court should not have included the garage assessment in its calculation of the debt.

The complaint alleges, and the defendant has admitted to, delinquency in the payment of her common charges. Conversely, the $882.59 garage assessment is neither alleged in the complaint nor mentioned in the parties’ briefs. Furthermore, the garage assessment was not litigated at trial but appeared in the record for the first time on the affidavit of debt submitted after trial. Whereas the defendant was notified about the accumulating common charges and late fines, we must conclude that she was not warned adequately about the garage assessment.

“Whether a complaint gives sufficient notice is determined in each case with reference to the character of the wrong complained of and the underlying purpose of the rule which is to prevent surprise upon the defendant.” Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 223-24 n.16, 477 A.2d 988 (1984). The defendant was entitled to receive notice of the allegation that she owed the garage assessment so that she had an opportunity to refute the plaintiffs evidence in support of that issue and produce evidence to the contrary. See Maloney v. PCRE, LLC, 68 Conn. App. 727, 754, 793 A.2d 1118 (2002). Because there are no subordinate factual findings in the record to support the court’s determination that the plaintiff is entitled to the garage assessment, we conclude that the court improperly awarded the plaintiff damages in the amount of $882.59.

The judgment is reversed only as to the award of $882.59 for the garage assessment and the case is remanded with direction to render judgment as on file except as modified to eliminate those damages.

In this opinion the other judges concurred.

       The other defendants have been defaulted for failure to appear, to plead or to disclose a defense. They are not parties to this appeal. We therefore refer in this opinion to Lerman as the defendant.

       The Common Interest Ownership Act, General Statutes § 47-200 et seq., is a comprehensive legislative scheme that governs creation, organization and management of all forms of common interest communities. See Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 237 Conn. 123, 130, 676 A.2d 369 (1996).
      General Statutes § 47-258 (a) provides in relevant part: “The association has a statutory lien on a unit for any assessment levied against that unit or fines imposed against its unit owner. . . .”

       “Declaration” means any instruments, however denominated, that create a common interest community, including any amendments to those instruments. General Statutes § 47-202 (13).

       Alternately, the defendant claims that the plaintiff selectively enforced a previously unenforced rale against her when it fined her for violating the pet prohibition. At trial, Hibbert testified, however, that unit owners other than the defendant had been fmed for violations of the rules that pertain to dogs. The court found this testimony credible.

       General Statutes § 47-244 (a) (11) provides that an association may “[ijmpose charges or interest or both for late payments of assessments and, after notice and opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws, rules and regulations of the association . . . .”

       The defendant additionally asserts that the plaintiff failed to demonstrate that the fines levied against her, including attorney’s fees, were reasonable pursuant to § 47-244 (a) (11). Because this claim is unaccompanied by analysis, we decline to afford it review. “Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marlcs omitted.) Turner v. American Car Rental, Inc., 92 Conn. App. 123, 130-31, 884 A.2d 7 (2005).

       Article XXIV, § 2, of the plaintiffs declaration provides in relevant part: “Whenever the instruments require that an action be taken after ‘notice and hearing,’ the following procedures shall be observed. The party proposing to take the action . . . shall give written notice of the proposed action to all unit owners or occupants of units whose interest would be significantly affected by the proposed action. The notice shall include a general statement of the proposed action and the date, time and place of the hearing. At the hearing, the affected person shall have the right, personally or through a representative, to give testimony orally, in writing or both (as specified in the notice), subject to reasonable rules of procedure established by the party conducting the meeting to assure a prompt and orderly resolution of the issues.”

       The defendant also alleged that the plaintiffs “new dog policy” is ambiguous. Irrespective of any claimed ambiguity in the “new dog policy,” the plaintiffs rules and regulations barred Harbison from keeping a dog.

       Furthermore, General Statutes § 47-244 (c) (1) applies to rules that affect the use or occupancy of units “ [ujnless [those rules are] otherwise permitted by the declaration or by this chapter . . . .” Article IX, § 2, of the plaintiffs declaration states that “[n]o [Residential [u]nit may be leased by a [u]nit [o]wner other than [djeclarant except in accordance with the procedures and requirements set forth in the [Rules and [Regulations . . . .”
      Additionally, article IX, § 1 (e), provides: “The use of [cjommon [elements is subject to the [b]ylaws and the [Rules and [Regulation^] of the [association.” It is clear that the disputed rule, which relates to the use of common elements, is permitted by the plaintiffs declaration, as it is incorporated by reference into the declaration. The rule is thus authorized by article IX of the plaintiffs declaration as well as by § 47-244 (c) (1) (B).

       Our examination of the plaintiffs declaration reveals that late fees are included as common expense assessments. Article XIX, § 3, of the declaration states: “(f) Fees, charges, late charges, fines and interest charged against a Unit Owner pursuant to the Instruments and the Act are enforceable as common expense assessments.”

       At trial, the plaintiffs counsel claimed that the action included common charges that were unpaid as of the trial. The defendant’s counsel subsequently objected to the plaintiffs proffer of a ledger documenting debts accrued beyond the date of the complaint. He argued that the trial should concern the “sums of money that are set forth in the complaint and attorney’s fees.” Referring to the disputed documents as “evidence of a claimed debt,” the court overruled the objection.

       According to the plaintiffs declaration, garage assessments are not included as common charges. Article XIX of the declaration provides. “Common expenses shall include: (a) Expenses of administration, maintenance, and repair or replacement of the common elements.” The “common elements” are listed in § 5 of article II of the declaration. They do not include garage space. Garage space is defined, rather, as a “limited common element.” See article II, § 18 and article VI. “Garage spaces . . . [are] limited to units to which they are assigned.” Moreover, § 7 of article XIX, providing that “all common expenses, other than special assessments, shall be assessed and shall be due and payable in twelve equal monthly installments,” distinguishes “assessments” from common expenses.


text:
    MARK C. PETERSON, EXECUTOR (ESTATE OF CHRISTOPHER B. PETERSON), ET AL. v. OCEAN RADIOLOGY ASSOCIATES, P.C., ET AL.
    (AC 28138)
    Harper, Beach and Hennessy, Js.

      Argued March 28
    officially released July 22, 2008

      Eric W. Callahan, for the appellants (plaintiffs).

      Frank H. Santoro, with whom was Donald E. Leone, Jr., for the appellees (defendants).
   Opinion

BEACH, J.

In this medical malpractice action, the plaintiffs, Mark C. Peterson and Todd B. Peterson, executors of the estate of Christopher B. Peterson (decedent), appeal from the summary judgment rendered by the trial court in favor of the defendants Ocean Radiology Associates, P.C. (Ocean Radiology), and Leonard A. Copertino, a radiologist employed by Ocean Radiology. On appeal, the plaintiffs claim that the court incorrectly categorized five of the six claims for relief in their complaint as “loss of chance” claims and because of this incorrect categorization improperly granted the defendants’ motion for summary judgment. We agree with the plaintiffs and, accordingly, reverse in part the judgment of the trial court.

A brief overview of the loss of chance doctrine at the outset is helpful. “In a loss of chance case, a tortfeasor, through his [negligent failure to act], causes an individual to lose a chance to avoid some form of physical harm from a preexisting medical condition.” (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 659 n.31, 904 A.2d 149 (2006). In such cases, the plaintiff must show that “if proper treatment had been given, better results would have followed.” (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 573, 864 A.2d 1 (2005). “In recent years, a number of states have [adopted] some version of the loss of chance doctrine. . . . Generally speaking, courts have adopted three approaches in addressing this doctrine: (1) the relaxed causation approach, (2) the proportional approach, and (3) the traditional approach.” Borkowski v. Sacheti, 43 Conn. App. 294, 301-302, 682 A.2d 1095, cert. denied, 239 Conn. 945, 686 A.2d 120 (1996). “Connecticut recognizes a cause of action for lost chance . . . [and follows] a traditional approach in the determination of proximate cause.” (Citations omitted.) Poulin v. Yasner, 64 Conn. App. 730, 744, 781 A.2d 422, cert. denied, 258 Conn. 911, 782 A.2d 1245 (2001).

“We employ loss of chance ... to include ‘decreased chance,’ be it of successful treatment or survival itself.” Borkowski v. Sacheti, supra, 43 Conn. App. 311 n.19. “To prevail on [a loss of chance] claim, a plaintiff must show (1) that he has in fact been deprived of a chance for successful treatment and (2) that the decreased chance for successful treatment more likely than not resulted from the defendant’s negligence. ... In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome.” (Citation omitted; internal quotation marks omitted.) LaBieniec v. Baker, 11 Conn. App. 199, 207, 526 A.2d 1341 (1987). In order to satisfy the elements of a lost chance claim, the plaintiffs must first prove that had the standard of care been followed, there was a greater than 50 percent chance of avoiding the harm. See Drew v. William W. Backus Hospital, 77 Conn. App. 645, 653, 825 A.2d 810 (“[w]here a preexisting condition is involved, a loss of chance plaintiff, in order to meet the traditional standard of causation, must prove that the victim of the alleged negligence probably would have survived had he been treated properly” [internal quotation marks omitted]), cert. granted on other grounds, 265 Conn. 909, 831 A.2d 249 (2003) (appeal withdrawn December 22, 2003); Wallace v. St. Francis Hospital & Medical Center, 44 Conn. App. 257, 262-64, 688 A.2d 352 (1997); see also J. Lagnese, C. Anderson & F. Santoro, Connecticut Medical Malpractice (2007) § 9-2:3.1, p. 67. The plaintiffs must then prove that the decreased chance for survival or successful treatment more likely than not resulted from the defendant’s negligence. Boone v. William W. Backus Hospital, supra, 272 Conn. 573-74. “[I]t is not sufficient for a lost chance plaintiff to prove merely that a defendant’s negligent conduct has deprived him or her of some chance; in Connecticut, such plaintiff must prove that the negligent conduct more likely than not affected the actual outcome.” (Internal quotation marks omitted.) Id., 574.

The material facts underlying the plaintiffs’ appeal are not in dispute. The plaintiffs filed a complaint dated January 12, 2004. The plaintiffs alleged, in part, that Copertino failed to note significant changes between the July, 2001, and October, 2001 chest X rays of the decedent. The plaintiffs alleged that Copertino failed to observe an increased density in the left hilum that was present in the October, 2001 chest X ray and which was absent from the July, 2001 chest X ray. It was not until March, 2002, that the decedent was diagnosed with extensive small cell lung carcinoma. The decedent died in July, 2002. Paragraph twenty-two of the complaint alleged that as a result of Copertino’s negligence and carelessness while he was acting on behalf of Ocean Radiology, the decedent “[a] [s]uffered great pain and extreme mental anguish before his death; [b] [experienced a significant and material decrease in his life expectancy; [c] [l]ost any opportunity and/or chance of achieving a favorable medical recovery from his disease; [d] [l]ost the opportunity to experience significant palliative benefit of available medical treatment; [e] [e]xperienced more intrusive, invasive and medically, physically and emotionally disabling medical intervention to attempt to treat his disease; and [¶] [l]ost the opportunity to enjoy and carry out all of life’s activities, including the companionship of his spouse, children, and grandchildren, during his remaining living days.”

On January 30, 2006, the defendants filed a motion for summary judgment on the ground that there was no genuine issue of material fact regarding “the plaintiff [s’] claim that the defendants’ alleged negligence caused [the] decedent a loss of chance to survive or loss of chance for successful treatment. ” In their memorandum of law in support of the motion for summary judgment, the defendants asserted that the plaintiffs’ claim for recovery relied solely on a theory of loss of chance or loss of opportunity for successful treatment. The defendants argued that the deposition testimony of the plaintiffs’ expert, James R. Rigas, a thoracic oncologist, created no genuine issue of material fact and that, as a matter of law, the defendants’ alleged negligence had not proximately caused the decedent to experience a lost chance of survival or opportunity for successful treatment. In essence, they argued that the plaintiffs could not prove, under the traditional approach adopted by Connecticut in loss of chance claims, that the decedent’s chance of survival or successful treatment was greater than 50 percent even had appropriate treatment been provided and, accordingly, that they were entitled to judgment as a matter of law.

In their memorandum of law objecting to the defendants’ motion for summary judgment, the plaintiffs argued that Connecticut should adopt the “substantial chance” approach to the loss of chance doctrine rather than adhering to the traditional approach. Moreover, the plaintiffs asserted that the defendants’ motion for summary judgment addressed only the claim for relief alleging loss of chance in paragraph 22 (c). They submitted that the court ought not address the remaining claims for relief in paragraph twenty-two. The plaintiffs argued that if the court granted the motion for summary judgment as to paragraph 22 (c), their remaining allegations of damage proximately caused by the defendants’ negligence would survive the motion for summary judgment and would proceed to trial.

On August 22, 2006, the court granted the defendants’ motion for summary judgment. The court explained that in attempting to establish the nonexistence of a genuine issue of material fact, the defendants submitted as evidence excerpts of the deposition testimony of Rigas, the plaintiffs’ expert, who stated, inter alia, that in October, 2001, the date of the alleged misreading of the chest X ray, (1) the decedent had limited, small cell lung cancer, (2) the two year survival rate for patients - diagnosed with limited stage, small cell lung cancer is 30 percent to 40 percent and survival rates decrease to 10 percent to 20 percent at five years, and (3) had the decedent been diagnosed in October, 2001, with limited, small cell lung cancer, it was less than 50 percent probable that he would have survived two years. The court, adhering to the traditional approach to the loss of chance doctrine that was adopted in LaBieniec v. Baker, supra, 11 Conn. App. 199, concluded that the plaintiffs had “failed to provide the necessary factual predicate to demonstrate the existence of a genuine issue of material fact as to the issue of the decedent’s chance of survival or successful treatment of at least 51 percent.”

The plaintiffs thereafter filed this appeal. After filing this appeal, the plaintiffs filed a motion for articulation, asking the court to specify whether it rendered summary judgment as to their entire complaint or only as to the portion of the complaint that they classify as a lost chance claim, namely, paragraph 22 (c). On May 9, 2007, the court clarified that in granting the defendants’ motion for summary judgment, it intended to dispose of the entire complaint.

On appeal, the plaintiffs do not contest the portion of the court’s decision rendering summary judgment as to paragraph 22 (c). The plaintiffs rather claim that the court improperly granted the defendants’ motion for summary judgment as to the five remaining claims in paragraph twenty-two. Specifically, they argue that the defendants’ motion for summary judgment addressed only the loss of chance claim in paragraph 22 (c) but did not address the remaining claims in that paragraph. The plaintiffs contend that the court improperly characterized the five remaining claims in paragraph twenty-two as “loss of chance” claims and, thereafter, improperly granted the defendants’ motion for summary judgment as to those claims. We agree that the court improperly rendered summary judgment as to the sections of paragraph twenty-two at issue in this appeal.

The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. “[T]he scope of our review of the granting of a motion for summary judgment is plenary. . . . In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . In ruling on a motion for summary judgment, it is customary for the court to review documentary proof submitted by the parties to demonstrate the existence or nonexistence of issues of material fact. Practice Book § 17-45.” (Citation omitted; internal quotation marks omitted.) Drew v. William W. Backus Hospital, supra, 77 Conn. App. 650.

The plaintiffs’ claim requires us to interpret their complaint. “[T]he interpretation of pleadings is always a question of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary. . . . [T]he modem trend, which is followed in Connecticut, is to constme pleadings broadly and realistically, rather than narrowly and technically. . . . [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Citations omitted; internal quotation marks omitted.) Boone v. William W. Backus Hospital, supra, 272 Conn. 559-60.

The plaintiffs’ complaint alleged that Copertino was negligent and careless in the manner in which he reviewed, interpreted, read or reported the results of the October, 2001 chest X ray. The complaint further alleged that as a result of this negligence and carelessness, Copertino, acting on behalf of Ocean Radiology, caused the decedent the injuries set forth in paragraph twenty-two. Sections (a), (b), (d), (e) and (f) of paragraph twenty-two of the complaint alleged, respectively, that the defendants’ negligence directly caused the decedent to suffer pain and mental anguish, to experience a decrease in life expectancy, to fail to experience the palliative benefit of medical treatment, to experience more physically and emotionally disabling medical intervention and to lose enjoyment of life’s activities. Prefacing the plaintiffs’ claims in these sections of paragraph twenty-two is the assertion that the defendants’ alleged failure to diagnose the decedent’s lung cancer in October, 2001, proximately caused these damages to the decedent. Therefore, to be entitled to damages, the plaintiffs must establish on the basis of reasonable medical probability the necessary causal relation between the failure of the defendants to diagnose the lung cancer and the injuries that the plaintiffs claimed the decedent suffered. See LaBieniec v. Baker, supra, 11 Conn. App. 203. “If a plaintiff is proximately harmed by a delay in a definitive diagnosis, a physician may be held hable.” Id.

In their motion for summary judgment, the defendants referred to one undisputed fact, namely, Rigas’ testimony that the decedent had a less than 50 percent chance of survival even if the standard of care had been fohowed. This undisputed fact does not preclude the plaintiffs from establishing on the basis of reasonable medical probability that the failure of the defendants to diagnose the lung cancer in October, 2001, proximately caused the decedent to suffer the injuries set forth in sections (a), (b), (d), (e) and (f) of paragraph twenty-two. Rigas’ testimony, as submitted in connection with the defendants’ motion for summary judgment, did not establish that the defendants were entitled to judgment as a matter of law as to these sections of paragraph twenty-two. His testimony did not establish the lack of a genuine issue of material fact as to proximate causation with respect to these allegations.

In paragraph 22 (a), the plaintiffs alleged that as a result of the defendants’ negligence, the decedent suffered great pain and extreme mental anguish. In order to prove causation with respect to this allegation, the plaintiffs would need to show that the defendants’ alleged negligence in failing to diagnose lung cancer in October, 2001, more likely than not caused the decedent to suffer great pain and extreme mental anguish. Rigas’ testimony that the plaintiffs’ decedent had a less than 50 percent chance of survival did not necessarily affect the causation element as to pain and suffering while the decedent lived.

In paragraphs 22 (d) and (e), respectively, the plaintiffs alleged that as a result of the defendants’ negligence, the decedent failed to experience the palliative benefit of available medical treatment and experienced a more physically and emotionally disabling medical intervention. These claims are similar to the claim in paragraph 22 (a) in that they, in essence, are based on physical or emotional pain allegedly suffered as a result of the defendants’ negligence. To prove causation with respect to this claim, the plaintiffs would have to show that the defendants’ alleged negligence more likely than not caused the decedent to fail to experience the palliative benefit of available medical treatment and caused him to experience a more physically and emotionally disabling medical intervention. Again, Rigas’ testimony regarding the chance of survival of the decedent did not foreclose the issue.

To prove causation with respect to paragraph 22 (b), which alleged that the decedent experienced a decrease in life expectancy as a result of the defendants’ negligence, the plaintiffs would need to show that the defendants’ alleged negligence caused a decrease in life expectancy. Whether the decedent had a less than 50 percent chance of survival in general did not precisely and necessarily establish the lack of a genuine issue of material fact as to proximate causation of a relatively minor decrease in life expectancy. Last, in paragraph 22 (f), the plaintiffs alleged loss of enjoyment of life. Regardless of Rigas’ testimony concerning the chances of survival of the decedent, the plaintiffs perhaps could still prove proximate causation with respect to this allegation.

“On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint.” (Internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn. App. 844, 851, 939 A.2d 1249 (2008). The defendants have not met their burden in this case. Accordingly, we conclude that the court improperly rendered summary judgment as to the entire complaint. The negligence claims set forth in sections (a), (b), (d), (e) and (f) of paragraph twenty-two remain viable.

The judgment is reversed with respect to all subparagraphs of paragraph 22 except subparagraph 22 (c), and the case is remanded for further proceedings. The judgment is affirmed with respect to subparagraph 22 (c).

In this opinion the other judges concurred.

       “[The] traditional approach for proving causation requires that aplaintiff prove that with proper medical treatment, the patient probably would have avoided the injury, harm or condition complained of. To put that approach in some context, a brief discussion of alternative approaches to proving causation in lost chance cases is provided as follows.
      “The relaxed causation or substantial chance approach requires aplaintiff to prove that a substantial or significant chance of survival or better recovery was lost. If [the] plaintiff meets this initial threshold, the causation issue is submitted to the jury, using the tradition[al] proximate cause standard to ascertain whether, in fact, the alleged malpractice resulted in the loss of a substantial or significant chance. Thus, the jury must find by a preponderance of the evidence that the alleged negligence was the proximate cause of the lost chance, but the lost chance itself need only be a substantial or significant chance, for a better result, absent any malpractice, rather than a greater than 50 percent chance of a better result. . . .
      “Under the proportional approach to causation in such cases, the loss of chance is viewed and redressed in its own right. . . . Instead of attempting to determine whether the physical harm was caused by negligence, a court could examine the extent of the victim’s lost chances for cure or improvement and grant a recovery that mirrors the extent of those chances. . . . The relevant inquiry would be whether the defendant probably caused a reduction in the victim’s chances. If causation were found, the court would provide compensation for the lost chance in direct proportion to the extent of the lost chance.” (Citations omitted; internal quotation marks omitted.) Drew v. William W. Backus Hospital, 77 Conn. App. 645, 653 n.1, 825 A.2d 810, cert. granted on other grounds, 265 Conn. 909, 831 A.2d 249 (2003) (appeal withdrawn December 22, 2003).

       See footnote 1 of this opinion.

       “Medical malpractice actions involving diagnosis of cancer differ from other malpractice actions only factually. The legal analysis and elements remain the same. There are four essential elements to a malpractice action. They are: (1) the defendant must have a duty to conform to a particular standard of conduct for the plaintiffs protection; (2) the defendant must have failed to measure up to that standard; (3) the plaintiff must suffer actual injury; and (4) the defendant’s conduct must be the cause of the plaintiffs injury.” LaBieniec v. Baker, supra, 11 Conn. App. 202-203.

       “The traditional standard of the sufficiency of the evidence for submitting a medical malpractice case to the jury has required a plaintiff to adduce evidence of a reasonable medical probability that his injuries were proximately caused by the negligence of one or more of the defendants. This meant demonstrating that it is more likely than not that the injury, harm or condition claimed to have resulted from that negligence, was a substantial factor in causing the injury, harm or condition and without which that injury, harm or condition would not have occurred.” (Internal quotation marks omitted.) Drew v. William W. Backus Hospital, supra, 77 Conn. App. 652-53.

       The resolution of paragraphs 22 (b) and (f) presents a close question. The plaintiffs alleged, respectively, in these sections that as a result of the defendants’ negligence, the decedent experienced a decrease in life expectancy and a loss of enjoyment of life. The nature of these claims suggests that a “lost chance” approach may be warranted. The “lost chance” approach is, after all, nothing more than traditional proximate causation tailored to a situation in which the defendants’ conduct did not directly cause harm. See, e.g., Boone v. William W. Backus Hospital, supra, 272 Conn. 573 n.12 (lost chance claim “is predicated on the defendant’s alleged acts of omission rather than commission” [internal quotation marks omitted]). In the present case, however, summary judgment was not proper because the defendants have not established the lack of a genuine issue of material fact as to the issue of proximate causation with respect to the allegations in these sections of paragraph twenty-two.

       Because the defendants have not met their burden, the plaintiffs need not show that genuine issues of material facts exist. See Baldwin v. Curtis, supra, 105 Conn. App. 851 (“[i]t is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial” [internal quotation marks omitted]). Nevertheless, the plaintiffs attached portions of Rigas’ deposition testimony to their opposition to the summary judgment motion that placed material facts in dispute as to sections (a), (b), (d), (e) and (f) of paragraph twenty-two. Specifically, Rigas testified that had the decedent been diagnosed in October, 2001, and treatment implemented, then it was more than 50 percent probable that he would have experienced a better outcome in that he would have lived longer, the quality of his life would have improved and he would have suffered less pain. Rigas also testified that in October, 2001, the decedent’s cancer was potentially curable, but in March, 2002, when he finally was diagnosed, his cancer was incurable.