author: STOUGHTON, J.

text:
    ELIAS JASER v. BRIAN T. FISCHER ET AL.
    (AC 20623)
    Foti, Dranginis and Stoughton, Js.

      Argued February 20
    officially released August 28, 2001

      Dominic J. Caciopoli, with whom was Rocco J. Tirozzi, for the appellant (plaintiff).

      Peter C. Barrett, for the appellees (defendants).
   Opinion

STOUGHTON, J.

The plaintiff, Elias Jaser, appeals from the summary judgment rendered in favor of the defendants, Brian T. Fischer and National Grange Mutual Insurance Company (National Grange). The plaintiff claims that the defendants were not entitled to summary judgment as a matter of law and that there were genuine issues of material fact as to each count. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. Michael Mansi died intestate leaving Raymond Mansi and Lucille Celentano as his heirs. His estate included real property located at 7 Donna Lane in West Haven. On March 24,1992, the Probate Court appointed Fischer as the administrator of the estate.

Previously, on February 14, 1992, the plaintiff had obtained a judgment by default against Raymond Mansi for $24,845.90. On June 29, 1992, the plaintiff filed a judgment lien against the property at 7 Donna Lane. Celentano subsequently offered to purchase the property from the estate. The Probate Court granted an application to sell subject to asuretybondin the amount of $125,000. Fischer then was authorized to sell and convey or mortgage the property. National Grange furnished a bond that was conditioned on the faithful performance of duties and the administration and accounting for all moneys and other properties coming into the hands of the principal.

The bond was filed on September 10, 1992, and the plaintiffs attorney, Rocco Tirozzi, agreed to furnish a limited release of the judgment lien to facilitate the sale. The release, dated October 15,1992, provided that its purpose was to release the lien but to retain its effect as to the proceeds of the sale. On the same date, Fischer wrote a letter to Tirozzi in which he advised him that he would not disburse any funds to Raymond Mansi without the consent of Tirozzi and Laurence Parnoff, Raymond Mansi’s attorney.

On October 16, 1992, Tirozzi wrote a letter to Fischer setting out his understanding of their agreement. The letter contained the following language: “Further, you agree to satisfy said judgment lien from said net funds as soon as your Administrative duties allow you to.” Fischer amended that sentence by adding the words “as agreed between Attorneys Tirozzi [and] Parnoff.” Fischer appended his signature indicating that he had read, agreed to and accepted the contents of the letter. Two sets of initials that appear to be those of Fischer and Tirozzi are written next to the amendment to the letter.

On October 16, 1992, Celentano purchased the premises at 7 Donna Lane. The net proceeds of the sale were $126,370.33. On January 5, 1993, Fischer filed his final accounting with the Probate Court showing a proposed distribution of $54,534.88 each to Celentano and Raymond Mansi. The accounting was allowed and approved on February 8, 1993, and the bond was terminated on that date.

On March 5, 1993, the February 14, 1992 judgment on the default was vacated for lack of jurisdiction and the plaintiffs action against Raymond Mansi was dismissed. See Jaser v. Mansi, 33 Conn. App. 933, 636 A.2d 880 (1994). On or about March 10, 1993, Fischer and Tirozzi met, and Tirozzi confirmed that the February 14,1992 judgment had been vacated. Fischer claims that he told Tirozzi that the security interest had been lost and that he would disburse the funds to Celentano and Raymond Mansi. Tirozzi claims that on March 22, 1993, he wrote to Fischer and informed him that he had filed a motion to extend the time within which to appeal.

On March 26, 1993, Pamoff wrote a letter to Fischer demanding that he disburse the funds to Raymond Mansi and enclosed a copy of the dismissal. In that letter, Pamoff stated that he had been informed by the clerk of the court that no appeal of that judgment had been filed and the appeal period, which had not been extended, had expired. On April 2, 1993, Pamoff again wrote to Fischer demanding payment and informing Fischer that Raymond Mansi would hold him personally responsible for any damages arising from the delay. On April 7, 1993, Fischer distributed Raymond Mansi’s share through Pamoff.

Tirozzi obtained an extension of time within which to appeal and, on April 21, 1993, filed an appeal from the judgment dismissing the action. The trial court’s judgment was ultimately affirmed. Id. The plaintiff then began anew action, and, on September 23,1993, Tirozzi obtained a prejudgment attachment order. Fischer, however, already had disbursed all of the funds by the time the prejudgment attachment order was served on October 28, 1993. On October 30, 1995, the plaintiff obtained a judgment against Raymond Mansi in the amount of $35,008.40.

The Probate Court, on September 21, 1998, authorized the plaintiff to bring an action on the bond as an unpaid creditor of an heir, and the plaintiff instituted this action in four counts against the defendants pursuant to General Statutes § 45a-144. The first count alleges that Fischer breached his fiduciary duties. The second count alleges that Fischer breached the written agreements to pay the plaintiff from the sale proceeds. The third count alleges that Fischer induced the plaintiff to deliver the limited release by falsely representing that he would not distribute proceeds of the sale without the consent of the plaintiffs attorney and Raymond Mansi’s attorney. Finally, the fourth count alleges that Fischer became a constructive trustee of the proceeds of the sale for the benefit of the plaintiff, among others.

The defendants denied the material allegations of the complaint and pleaded several special defenses, one of which was that, pursuant to General Statutes § 45a-202, the defendants were not liable to the plaintiff because the disbursements by Fischer were made in good faith and pursuant to the Probate Court order. The trial court, having considered the pleadings, affidavits and other documents submitted, rendered summary judgment as a matter of law in favor of the defendants on all four counts and on the special defense of good faith, finding that there were no genuine issues of material fact. This appeal followed.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. . . . Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. ... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Citations omitted; internal quotation marks omitted.) Gohel v. Allstate Ins. Co., 61 Conn. App. 806, 809-10, 768 A.2d 950 (2001).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendants] as a matter of law, our review is plenary and we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. ... On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Crystal Lake Clean Water Preservation Assn. v. Ellington, 53 Conn. App. 142, 147, 728 A.2d 1145, cert, denied, 250 Conn. 920, 738 A.2d 654 (1999).

I

The plaintiff first claims that there is a material issue of fact as to whether Fischer breached his fiduciary duties to the plaintiff. Specifically, the plaintiff alleges that he is an unpaid creditor of Raymond Mansi, one of the heirs of Michael Mansi. “[A]n [administrator of an estate] must remain loyal to the estate that she is administering and must not act . . . for the interests of parties other than the heirs, distributees, and creditors of the estate.” (Internal quotation marks omitted.) Hall v. Schoenwetter, 239 Conn. 553, 559, 686 A.2d 980 (1996).

In this case, the plaintiff is neither an heir nor a creditor of Michael Mansi’s estate. The plaintiff is a creditor of Raymond Mansi. The duty of an administrator is to the heirs and creditors of the estate. We agree with the court that Fischer, as the administrator, owed no fiduciary duty to the plaintiff. The plaintiff concedes that the administrator owed him no duty as an administrator and, in his brief, states that this court should ignore the arguments related to fiduciary obligations because this case is about direct voluntary agreements undertaken by Fischer. Accordingly, the trial court properly rendered summary judgment as a matter of law as to the first count.

II

In the second count, the plaintiff alleges that Fischer breached the written agreements to pay the plaintiff out of the proceeds from the sale of the property at 7 Donna Lane. “Whether a contractual commitment has been undertaken is ultimately a question of the intention of the parties. Intention is an inference of fact, and the conclusion is not reviewable unless it was one that the trier could not reasonably make.” (Internal quotation marks omitted.) Biller Associates v. Peterken, 58 Conn. App. 8, 13, 751 A.2d 836, cert, granted on other grounds, 254 Conn. 914, 759 A.2d 506 (2000).

While “summary judgment is ordinarily inappropriate where an individual’s intent and state of mind are implicated . . . [t]he summary judgment rule would be rendered sterile ... if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. . . . Our Supreme Court has held that even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact.” (Citations omitted; internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., 40 Conn. App. 725, 731-32, 673 A.2d 573, cert, denied, 237 Conn. 913, 675 A.2d 885 (1996).

In this case, the plaintiff did not present an adequate factual predicate to raise a genuine issue of material fact. In his objection to the defendants’ motion for summary judgment, the plaintiff attached an order from the Probate Court granting the plaintiff permission to bring an action on the bond; a memorandum of decision by the Superior Court in which the court denied the appeal from the probate decree authorizing the action on the bond and concluding that the Probate Court did not abuse its discretion in issuing that decree; a copy of an order entered by the trial court denying the defendants’ motion to strike the plaintiffs complaint in the action on the bond; a notice of filing of the plaintiffs chronology of events; an affidavit signed by Tirozzi attesting to the accuracy of the exhibits attached to the plaintiffs objection; and a memorandum of law. Our careful examination of the plaintiffs objection and its attachments reveals that the plaintiff failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.

III

In the third count, the plaintiff alleges that Fischer induced the plaintiff to deliver the limited release by falsely representing that he would not distribute the funds without consent and that, relying on that representation, he signed the limited release of the judgment hen. “The essential elements of a cause of action in [fraudulent misrepresentation] are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be -untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury.” (Internal quotation marks omitted.) Citino v. Redevelopment Agency, 51 Conn. App. 262, 275, 721 A.2d 1197 (1998).

“Allegations such as misrepresentation and fraud present issues of fact. . . . Moreover, [w]hether evidence supports a claim of fraudulent or negligent misrepresentation is a question of fact. . . . It is . . . well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions .... Nevertheless, it remains incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined as a matter of law, that a genuine issue of material fact exists.” (Citations omitted; internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn. App. 491, 497-98, 613 A.2d 292, cert, denied, 223 Conn. 927, 614 A.2d 825 (1992).

Once again, the plaintiff did not present an adequate factual predicate to raise a genuine issue of material fact. Our careful examination of the plaintiffs objection and its attachments reveals that the plaintiff failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.

IV

In the fourth count, the plaintiff alleges that Fischer became a constructive trustee of the proceeds of the sale of the property at 7 Donna Lane for the plaintiffs benefit. “A constructive trust arises contrary to intention and in invitum, against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy. ... A constructive trust arises whenever another’s property has been wrongfully appropriated and converted into a different form . . . [or] when a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” (Citations omitted; internal quotation marks omitted.) Spatola v. Spatola, 4 Conn. App. 79, 81, 492 A.2d 518 (1985).

In this case, it was conceded that Fischer distributed the funds to Michael Mansi’s heirs and did not retain those funds. Further, there is no allegation in the complaint that Fischer was unjustly enriched. We therefore agree with the trial court that a constructive trust was not established. Because no genuine issue of material fact exists, the court properly rendered summary judgment as a matter of law as to the fourth count.

V

The plaintiffs final claim is that Fischer’s special defense that he was not liable to the plaintiff because he made the payment to the heirs in good faith and pursuant to probate law raised an issue of material fact that was not properly decided on a motion for summary judgment. “[Good faith] is a subjective standard of honesty of fact in the conduct or transaction concerned, taking into account the person’s state of mind, actual knowledge and motives. . . . Whether good faith exists is a question of fact to be determined from all the circumstances.” (Citation omitted.) Kendzierski v. Goodson, 21 Conn. App. 424, 430, 574 A.2d 249 (1990). As we stated in part II of this opinion, however, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of material fact, even with respect to motive, intent or good faith. Reynolds v. Chrysler First Commercial Corp., supra, 40 Conn. App. 732.

The plaintiff did not present an adequate factual predicate to raise a genuine issue of material fact. Our careful examination of the plaintiffs objection and its attachments reveals that the plaintiff failed to provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant National Grange, which issued the bond required of the defendant Brian Fischer in connection with the sale of the real estate in question, did not participate in the administration of the estate and release of the sale proceeds in dispute. Therefore, we limit our discussion to the defendant Brian Fischer.

       We note that the trial court found that the plaintiff was not aggrieved under § 45a-144 and, notwithstanding this finding, discussed the merits of the case. The trial court applied the analysis set forth in Urrata v. Izzillo, 1 Conn. App. 17, 467 A.2d 943 (1983), which involved General Statutes § 45-288, now § 45a-186. Section 45a-186 (a) provides in relevant part that “[a]ny person aggrieved by any order ... of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the Superior Court . . . .” (Emphasis added.) Urrata held that a creditor of an heir cannot be aggrieved under § 45-288, now § 45a-186, because such a person has only an indirect interest in the estate. Here, the trial court found that “it would be incongruous to find that a different aggrievement standard applied to the two statutes [§ 45a-144 and § 45a-186]” and, pursuant to Urrata, concluded that the plaintiff was not aggrieved under § 45a-144. Section 45a-144, however, differs from § 45a-186 because the former provides that “[a]ny person claiming to be aggrieved by the breach of a probate bond” may bring an action in the Superior Court. (Emphasis added.) General Statutes § 45a-144 (a). In this case, the plaintiff had standing based on his claim that he was aggrieved.

       General Statutes § 45a-202 provides: “(a) Any person, acting as a fiduciary as defined by section 45a-199 or in any other fiduciary capacity, who in good faith makes payments or delivers property or estate pursuant to the order of the court of probate having jurisdiction before an appeal has been taken from such order, shall not be liable for the money so paid, or the property so delivered, even if the order under which such payment or delivery has been made is later reversed, vacated or set aside.
      “(b) This section shall not prevent a recovery of such money or property by the person entitled to it from any person receiving it or in possession of it.”

       The plaintiff, in his brief, states that “[t]his court should totally ignore defendant’s arguments related to fiduciary obligations of attorney Fischer. This case is about direct voluntary agreements, representations, etc., which attorney Fischer voluntarily took on.”


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. PATRICK WALSH
    (AC 20231)
    Foti, Schaller and O’Connell, Js.

      Argued April 25
    officially released August 28, 2001

      Dawne Westbrook, with whom, on the brief, was Norman A. Pattis, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Kathleen E. McNamara, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, J.

The defendant appeals from the judgments of the trial court ordering the destruction of weapons that had been seized from him pursuant to search warrants that were executed at his home and place of business. He claims that the order was improper because there was no finding that the weapons had been used in an illegal act and because the court had dismissed the charges that had been brought against him. We reverse the judgments only as to the destruction order and remand the cases to the trial court with direction to issue an order to turn the firearms over to the state police bureau of identification pursuant to General Statutes § 54-366.

The genesis of the defendant’s appeal is the investigation of him as a suspect in a murder case. In the course of that investigation, police obtained a search warrant for the defendant’s place of business in New Britain and a second search warrant for his apartment in Bristol. Pursuant to the search of the defendant’s business, the police seized a rifle, two handguns and several boxes of ammunition. Because the defendant had been previously convicted of assault in the third degree, he was arrested and charged with criminal possession of a pistol in violation of General Statutes § 53a-217c. Pursuant to the search warrant for his apartment, the police found seven handguns and five rifles. As a result of that search, the defendant was charged, in a separate information, with seven counts of criminal possession of a pistol in violation of § 53a-217c.

In addition to those two cases involving firearms, the investigation also yielded evidence causing the state to charge the defendant with murder. The state elected to try the murder case first. That resulted in a conviction and a sentence of fifty-five years in prison. Because of the murder conviction, the state indicated that it would enter a nolle prosequi as to both of the weapons cases. When the defendant objected to the nolles, the state said that it did not intend to prosecute the cases, and the court, therefore, dismissed them pursuant to General Statutes § 54-56b.

At the time of the dismissals, the defendant requested that the court give the weapons to his father or to a friend. The court denied the defendant’s request and ordered the weapons destroyed. The court stated that there was no “reason to return the weapons to a convicted murderer receiving fifty-five years in prison.”

It is not disputed that those firearms, with the exception of the stolen rifle, were the defendant’s property and that he was a person who had been convicted of a class A felony (murder) and who previously had been convicted of assault in the third degree in violation of General Statutes § 53a-61. General Statutes § 53a-217c specifically prohibits a person who has been convicted of assault in the third degree from possessing any firearm, and 53a-217 prohibits a person who has been convicted of a felony from possessing a pistol or revolver.

We recognize that the defendant did not ask that the court order the weapons delivered to him at his place of incarceration. Instead, he seeks to make a gift of them to either his father or to a friend who he designated. That attempted gift does not help the defendant’s appeal for two reasons. First, there is no statute that permits a convicted felon to assign his interest in firearms, which he is barred from possessing, to another person. Second, two of the firearms constitute assault weapons, which the prospective donees could not legally possess. Moreover, neither the defendant nor his donees could possess the rifle that was listed as stolen property.

Furthermore, common sense dictates that we consider the totality of circumstances confronting the trial court. In addition to the weapons charges, the defendant has an extensive criminal history that includes the conviction of assault in the third degree and the conviction of murder, for which he is serving a fifty-five year sentence. “It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom”; (internal quotation marks omitted) Gazo v. Stamford, 255 Conn. 245, 266, 765 A.2d 505 (2001); and “[cjourts will not pretend to be more ignorant than the rest of mankind.” (Internal quotation marks omitted.) Masline v. New York, N.H. & H.R. Co., 95 Conn. 702, 709, 112 A. 639 (1921). It exceeds the bounds of reason to suggest that in this case, the court should have ordered a cache of weapons returned to the owner, who is a convicted felon and, a fortiori, legally unable to possess them. See General Statutes § 53a-217c. It is clear that the court appropriately refused to turn this arsenal over to the defendant or to his donees.

A question remains, however, whether it was proper to order the weapons destroyed. Section 54-36e provides that the court shall order contraband destroyed. General Statutes § 54-36a (a) (1) defines “contraband” as “any property, the possession of which is prohibited by any provision of the general statutes . . . .” General Statutes § 54-36e provides in relevant part that “firearms, adjudged by the court to be contraband pursuant to subsection (c) of section 54-36a . . . shall be turned over to the Bureau of Identification of the Connecticut Division of State Police within the Department of Public Safety for destruction or appropriate use or disposal by sale at public auction.” Although the court did not make an express finding to that effect, it is clear that it considered the weapons to be contraband. Under those circumstances, the court should not have ordered them destroyed, but should have ordered them turned over to the state police bureau of identification pursuant to § 54-36e.

The judgments are reversed only with respect to the order to destroy the weapons and the cases are remanded with direction to order that the weapons be disposed of in accordance with § 54-36e.

In this opinion the other judges concurred.

       General Statutes § 54-36e (a) provides: “Except as provided in sections 26-85 and 26-90, firearms, adjudged by the court to be contraband pursuant to subsection (c) of section 54-36a, or adjudicated a nuisance pursuant to section 54-33g, shall be turned over to the Bureau of Identification of the Connecticut Division of State Police within the Department of Public Safety for destruction or appropriate use or disposal by sale at public auction.” (Emphasis added.)

       General Statutes § 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver when such person possesses a pistol or revolver . . . and (1) has been convicted of [inter alia, assault in the third degree] . . . .”

       Two of the pistols are classified as assault weapons pursuant to General Statutes § 53-202a, and one of the rifles was stolen in a robbery for which the defendant was awaiting trial in an unrelated case.

       None of the firearms was used to commit the murder.

       General Statutes § 54-56b provides in relevant part: “A nolle prosequi may not be entered as to any count in a complaint or information if the accused objects to the nolle prosequi and demands either a trial or dismissal . . . .”

       General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and (1) has been convicted of a felony . . . .”

       General Statutes § 53-202a (a) provides in relevant part: “[AJssault weapon means ... (1) Any selective-fire firearm capable of fully automatic, semiautomatic or burst fire at the option of the user . . . .” (Internal quotation marks omitted.)

       See footnote 1.


author: DUPONT, J.

text:
    ROCCO MUSOROFITI ET AL. v. JUDITH A. VLCEK ET AL.
    (AC 19677)
    Foti, Dranginis and Dupont, Js.

      Argued March 27
    officially released August 28, 2001

      Thomas M. DeLillo, with whom, on the brief, was James E. Mattem, for the appellants (plaintiffs).

      Keith S. McCabe, for the appellees (defendants).
   Opinion

DUPONT, J.

The plaintiff Rocco Musorofiti (plaintiff husband) appeals from the judgment rendered following the denial of his motion for an additur or to set aside as to damages only a jury verdict in his favor against the defendants, Judith A. Vlcek and Ralph Vlcek, on his negligence claim. The plaintiff Barbara Musorofiti (plaintiff wife) appeals from the judgment in favor of the defendants as to her loss of consortium claim. On appeal, the plaintiff wife claims that the trial court improperly refused to charge the jury on the loss of consortium claim. Both plaintiffs claim that the court improperly admitted an exhibit pursuant to the learned treatise exception to the hearsay rule and that such admission prejudiced the plaintiffs, and they claim that the court improperly granted the defendants’ motion in limine, which precluded the plaintiffs from cross-examining the defendants’ expert concerning a medical malpractice action against that expert. We reverse the judgment for the defendants on the loss of consortium count and affirm the judgment for the plaintiff husband as to the amount on the negligence count.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff husband and the defendant Judith A. Vlcek were two drivers involved in an automobile accident on February 27, 1996, in East Lyme. As a result of the accident, the plaintiff husband allegedly suffered injuries to his spine and temporomandibular joint (TMJ). The plaintiffs filed a two count complaint against the defendants. Count one alleges negligence by the defendants with respect to the plaintiff husband’s injuries from the automobile accident. Count two alleges that the plaintiff wife suffered a loss of consortium as a result of the defendants’ negligence. The defendants’ answer contains a general denial.

At trial, the court refused to charge the jury on count two, the loss of consortium claim. On April 7,1999, the jury returned a verdict in favor of the plaintiff husband on count one in the amount of $10,000 ($3000 for economic damages and $7000 for noneconomic damages). On April 12, 1999, the defendants filed a motion for a collateral source reduction, claiming entitlement to certain setoffs pursuant to General Statutes § 52-225a. The court granted the defendants’ motion and ordered an offset in the amount of $2962. On April 16, 1999, the plaintiff husband filed a motion for additur or to set aside the verdict as to damages only. Thereafter, on May 17, 1999, the court denied the plaintiff husband’s motion and rendered judgment in his favor on count one in the amount of $7038. On August 18, 1999, the plaintiffs filed a motion to complete the record and to render a judgment as to count two, the loss of consortium claim. On September 10, 1999, the court granted the motion and rendered judgment for the defendants as to that count. We will provide additional facts as necessary to the specific claims.

I

We first address the court’s refusal to charge the jury on the plaintiff wife’s loss of consortium claim. The plaintiff wife argues that she presented sufficient evidence to support the claim and, therefore, the law required the court to charge the jury on her cause of action. The plaintiff wife asserts that the proper remedy for the failure to charge is a retrial of both the husband’s negligence claim and her loss of consortium claim. According to her, the “inextricably intertwined” nature of the two causes of action requires a retrial of both claims.

The defendants claim that the plaintiff wife has failed to supply this court with an adequate record for review of the failure to charge. The defendants argue, in the alternative, that if this court finds that the record is adequate for appellate review and that the plaintiff wife was entitled to a charge on her cause of action, the proper remedy is a hearing in damages limited to the wife’s damages relating to her loss of consortium claim. We agree with the plaintiff wife that the court should have charged the jury as to her loss of consortium claim, but agree with the defendants as to the remedy.

A

The following additional facts are relevant to our resolution of this issue. At trial, the plaintiff husband testified concerning certain changes that his marriage had undergone since the accident. Specifically, he testified that the injuries he sustained in the accident had “put a strain on my marriage. My wife — as I sit here today I realize just how much I’ve put her through, I went through periods of grouchiness, uncooperative, just downright nasty, which is really not my regular persona. I’m not really like that. And I’ve really put her through an awful lot .... I can’t do a lot of things that I used to do that I would even like to do.” The plaintiff husband also testified that he experienced difficulty and inability in helping with certain tasks around the house.

The plaintiff wife also offered testimony concerning the effect her husband’s injuries had on their marriage. According to her testimony, their vacations changed and became nearly nonexistent because her husband’s injuries made airplane travel impossible and road travel very difficult. The travel difficulties altered their retirement plans, according to her testimony. They had intended to “travel . . . enjoy life, do things together. We both worked, and it was time to retire and enjoy a little, and it’s really difficult.” She and her husband no longer take walks together. Moreover, according to her testimony, they would both lose their tempers and argue about household chores, such as cooking. The plaintiff wife testified that her husband’s behavior made her “nervous, scared. I worried, very much so.”

On April 5,1999, the plaintiff wife filed a preliminary request to charge concerning count two, the loss of consortium claim. The court refused to charge on that count, and the plaintiff wife took exception to that denial. The record does not indicate the court’s reason for denying the request to charge, and the plaintiffs did not file a motion for articulation.

Upon deliberation, the jury received one verdict form to complete. The verdict form was phrased in the singular, referring to only one plaintiff, and did not refer to either count one or to count two. The form reads in relevant part: “What sum of money do you award to justly compensate plaintifffor the plaintiffs economic damages, if any? . . . What sum of money do you award to justly compensate plaintiff fox the plaintiffs noneconomic damages, if any? . . . Total Damages for the plaintiff” (Emphasis added.) The verdict form preeluded the jury from returning a verdict for the plaintiff wife on the loss of consortium claim.

Although the record does not indicate whether the defendants filed a motion for a directed verdict on count two, the loss of consortium claim, or that the court ordered one on its own motion, we determine that the lack of a charge to the jury on loss of consortium, coupled with the verdict form referring to only one plaintiff, was tantamount to a directed verdict. See Borkowski v. Sacheti, 43 Conn. App. 294, 312, 682 A.2d 1095 (denial of request to charge amounted to sua sponte directed verdict), cert, denied, 239 Conn. 945, 686 A.2d 120 (1996). Accordingly, we invoke the standard of review applicable to directed verdicts.

“Our standard of review of a directed verdict is well settled. A trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, a jury could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail.” Harewood v. Carter, 63 Conn. App. 199, 202, 772 A.2d 764 (2001). We believe the jury reasonably could have reached the conclusion that the plaintiff wife was entitled to prevail.

To avoid a directed verdict on the loss of consortium claim, the plaintiff wife in the present case needed to present evidence from which a reasonable jury could conclude, more probably than not, that (1) her husband sustained injuries, (2) she suffered damages due to those injuries and (3) the defendants were hable for those injuries. See 41 Am. Jur. 2d 166, Husband and Wife § 250 (1995).

“Loss of consortium is defined as the loss of services, financial support, and the variety of intangible relations that exist between spouses living together in marriage. . . . The ‘intangible’ components of consortium are the ‘constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage.’ ” (Citation omitted.) Shegog v. Zabrecky, 36 Conn. App. 737, 751, 654 A.2d 771, cert, denied, 232 Conn. 922, 656 A.2d 670 (1995). “By such services is meant not so much earned wages as assistance and helpfulness in the relations of conjugal life according to the station of the parties. In addition, there is the exclusive right in each to the society, companionship and conjugal affection of the other. To damages for the loss of these rights may be added recovery for mental anguish and injured feelings.” Keyes v. Churchward, 135 Conn. 115, 118, 61 A.2d 668 (1948). “Damages awarded for loss of consortium include future as well as past suffering, and are measured by the extent of the loss incurred, to the extent that money can measure it. . . . Since loss of consortium is incapable of precise measurement, considerable latitude is allowed a jury in estimating damages.” (Citation omitted.) Shegog v. Zabrecky, supra, 751.

In the present case, the defendants do not dispute that the plaintiff husband sustained injuries in the automobile accident, and they concede liability as to the loss of consortium claim, recognizing that that claim is derivative in nature and that a jury already has established liability on the underlying negligence claim. The last remaining element, therefore, is damages. As previously discussed, the plaintiffs presented some evidence, although hardly overwhelming, that their marital relationship changed after the accident and that the plaintiff wife suffered harm as a result. We cannot say with conviction that, viewing the evidence in a light most favorable to the plaintiffs, a reasonable jury could not have returned a verdict for the plaintiff wife on her loss of consortium claim. The plaintiff wife was entitled to have her evidence considered by a jury because “[a]s we have noted before, ‘[a] party has the same right to submit a weak case as he has to submit a strong one ....’” Somma v. Gracey, 15 Conn. App. 371, 375, 544 A.2d 668 (1988). We therefore determine that a retrial is necessary as to count two. See Borkowski v. Sacheti, supra, 43 Conn. App. 315. The scope of that retrial presents a different issue.

B

The plaintiff wife argues that the retrial should embrace both the husband’s negligence count and her loss of consortium count because the two claims are interdependent. The defendants, on the other hand, argue that we should limit the retrial to a hearing in damages on the loss of consortium claim because a jury already has found both liability and damages as to the plaintiff husband’s primary claim. We agree with the defendants.

This court recently addressed a very similar issue in Harewood v. Carter, supra, 63 Conn. App. 199. In Harewood, the plaintiff sustained injuries as a result of a car accident with the defendant. The plaintiff thereafter commenced a negligence action against the defendant in two counts. Count one alleged negligence, and count two alleged statutory violations that, if proved, could have entitled the plaintiff to double or treble damages. The jury returned a verdict for the plaintiff on her negligence claim, but the court directed a verdict for the defendant on count two due to insufficient evidence. On appeal, this court determined that the directed verdict was improper and a retrial was necessary. The scope of the retrial thus became a central issue in that case.

At the outset of our discussion in Harewood, we recognized that the cases concerning an order limiting retrial to specific issues typically involve “one cause of action where the issue is whether the liability and damages issues are inextricably woven together so as to require a trial de novo of both issues and do not involve, as the present case does, two separate causes of action arising out of the same incident.” Id., 204-205. We concluded that “[t]he jury already found the proper amount to award the plaintiff for her injuries. It remains for a jury to decide only whether there was a statutory violation and, if so, whether it should double or treble the award because of that statutory violation.” Id., 207. We therefore limited the retrial to count two and did not require relitigation of the negligence count.

In Harewood, we relied on Murray v. Krenz, 94 Conn. 503, 109 A. 859 (1920), in which our Supreme Court resolved the issue of when it is appropriate for a court to order a retrial as to both liability and damages rather than as to damages only. “Where the error as to one issue or issues is separable from the general issues, the new trial may be limited to the error found, provided that such qualification or limitation does not work injustice to the other issues or the case as a whole.” Id., 507.

Cases after Murray have determined that an inadequate award is typically “so interwoven with liability that justice cannot be done without a new trial on the whole case.” Harewood v. Carter, supra, 63 Conn. App. 205; see also Fazio v. Brown, 209 Conn. 450, 456-57, 551 A.2d 1227 (1988). Moreover, at least one case after Murray has concluded that where the verdict is ambiguous as to what the jury found on the issue of liability, a new trial as to both liability and damages is necessary. See Malmberg v. Lopez, 208 Conn. 675, 683, 546 A.2d 264 (1988). We must, therefore, decide whether the plaintiff husband’s negligence claim is so interwoven with the plaintiff wife’s loss of consortium claim that justice requires a remand so that their claims may be tried together. We conclude that justice does not so require.

Loss of consortium is a derivative cause of action, meaning that it is dependent on the legal existence of the predicate action. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 555-56, 562 A.2d 1100 (1989). “Loss of consortium, although a separate cause of action, is not truly independent, but rather derivative and inextricably attached to the claim of the injured spouse.” Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 312, 524 A.2d 641 (1987). The two claims are “inextricably attached” in that ordinarily they are mirror images of one another. That is to say, if an adverse judgment or a settlement bars the injured spouse’s cause of action, any claim for loss of consortium necessarily fails as well. Hopson v. St. Mary’s Hospital, 176 Conn. 485, 494, 408 A.2d 260 (1979). Damages awarded for loss of consortium are subject to the same assessment of comparative responsibility as is the predicate claim. Champagne v. Raybestos-Manhattan, Inc., supra, 555.

The attached nature of the two claims is further evidenced by case law suggesting that the derivative spouse may not recover more than the injured spouse. Id. Our Supreme Court recently determined that a non-injured spouse cannot maintain a derivative cause of action for loss of consortium where the injured spouse has not pursued a claim. Jacoby v. Brinckerhoff, 250 Conn. 86, 95, 735 A.2d 347 (1999). Jacoby is an outgrowth of Hopson in that it bars the spouse seeking damages for loss of consortium from pursuing an independent action, not only when an action brought by the injured spouse has been settled or adversely concluded, but when the injured spouse has declined to bring an action against the tortfeasor.

Connecticut precedent, therefore, conclusively establishes the interdependency of the predicate action and the derivative action. That interdependency arises, however, at the outset of litigation. When our Supreme Court first sanctioned loss of consortium as a cause of action in Hopson, it recommended joinder of the two claims. The necessity of combining the two claims stems principally from a concern that a jury will render improper verdicts. “So far as damages are based on intangible losses of society and affection, there is some risk that a jury hearing the husband’s claim will consciously or not, include something in the verdict for the wife’s loss as well, and vice versa.” W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 125, p. 933. Joinder also preserves judicial resources in that if the predicate action fails, the derivative action similarly fails. Moreover, joinder in Connecticut is a particularly sound practice where the noninjured spouse’s award also is subject to a comparative responsibility assessment.

We are unaware of any Connecticut appellate case or any appellate case from another jurisdiction that analyzes the severability of the loss of consortium claim and the predicate negligence claim in the event of a retrial necessitated solely by the improper treatment of the derivative claim. Some authority exists, however, for our decision in the present case that the two causes of action are indeed severable. In Creem v. Cicero, 12 Conn. App. 607, 533 A.2d 234 (1987), the named plaintiff sought to recover damages for personal injuries in a motor vehicle accident caused by the defendant’s alleged negligence. The plaintiffs wife joined in the action, seeking to recover for loss of consortium. The defendant stipulated to liability and the court submitted the matter to a hearing in damages. The jury returned a general verdict for the named plaintiff only four cents greater than the amount he claimed as special damages and returned a general verdict for the plaintiff wife, but awarded no damages. The plaintiffs filed a motion to set aside the verdict, which motion the court granted unless the defendant filed additurs with the court.

On appeal, this court determined that the trial court had improperly set aside the verdict for the named plaintiff, but had not abused its discretion with respect to the verdict for the plaintiff wife on her loss of consortium claim. Consequently, we ordered a reinstatement of the jury verdict as to the negligence claim and affirmed the trial court’s order for a new trial or an additur as to the loss of consortium claim. Although Creern does not discuss the issue of severability, it provides authority for our decision in the present case.

Other state courts have, without discussion as to the appropriateness of severability after judgments as to both the impaired and deprived spouses’ claims, reached similar results as this court did in Creem. In Casey v. Pohlman, 198 Ill. App. 3d 503, 555 N.E.2d 1221 (1990), the impaired spouse challenged the trial court’s refusal to direct a verdict or to render a judgment notwithstanding the verdict in his favor, and the deprived spouse challenged the failure to award her any damages following a judgment in her favor on her loss of consortium claim. The appellate court affirmed the judgment as to the impaired spouse’s negligence claim, but reversed as to the loss of consortium claim. “[T]he evidence adduced at trial supported the award . . . reduced . . . for [the impaired spouse’s] contributory negligence. We therefore find it unnecessary to provide another jury with the opportunity to reexamine [the impaired spouse’s] award. . . . [T]hat portion of the judgment concerning [the deprived spouse’s] consortium claim is reversed, and the cause is remanded for a new trial . . . .” Id., 512; see also Bradshaw v. State Farm Automobile Ins. Co., 714 So. 2d 620 (Fla. App. 1998) (affirming finding of comparative negligence and damage award as to impaired spouse, but determining that jury’s failure to award any damages for loss of consortium required reversal and remand for new trial on issue of damages as to that claim only); Albritton v. State Farm Mutual Automobile Ins. Co., 382 So. 2d 1267 (Fla. App. 1980) (affirming judgment of impaired spouse’s negligence claim, but reversing zero dollar award on deprived spouse’s loss of consortium claim and remanding for new trial on issue of damages); Sims v. Winn Dixie Louisiana, Inc., 638 So. 2d 716 (La. App.) (affirming judgment in favor of wife on negligence claim, but remanding husband’s loss of consortium claim because certain colloquy during trial may have affected counsel’s presentation of defense concerning consortium claim), cert, denied, 644 So. 2d 1062 (La. 1994); Hodges v. Oberdorfer Motors, Inc., 634 S.W.2d 205 (Mo. App. 1982) (affirming jury’s finding of defendant’s liability to impaired spouse, which also resolved issue of defendant’s liability to deprived spouse, thereby leaving the sole unresolved issue of damages); Davis v. Tripp, 338 S.C. 226, 525 S.E.2d 528 (S.C. App. 1999) (affirming judgments for impaired spouses, but determining that court improperly refused to submit loss of consortium claims to jury and remanding for trial as to those claims).

The Restatement (Second) of Torts and cases from other jurisdictions that discuss joinder provide further guidance for us in the present case. In 3 Restatement (Second), Torts § 693, comment (g), p. 498 (1977), there is discussion, as there is in Hopson and Jacoby, that the absence of joinder is sometimes excusable. Although the facts of this case do not present a situation given in the Restatement as an example of a justifiable failure to join the two actions, the comment in the Restatement concludes by stating: “There are no doubt other possible situations.” Id.

Freestanding claims for loss of consortium are not categorically impermissible. If, for example, both claims were originally brought in one action, but the primary claim was dismissed for lack of standing to bring an action, the claim for loss of consortium remains viable. Kubian v. Alexian Bros. Medical Center, 272 Ill. App. 3d 246, 651 N.E.2d 231, cert, denied, 163 Ill. 2d 560, 657 N.E.2d 623 (1995). Where mandatory joinder is impossible because the impaired spouse settled the primary claim and the tortfeasor had fuU knowledge that an independent action for loss of consortium was pending, the deprived spouse may stiU pursue the latter action. See Letasky v. United States, 783 F. Sup. 451 (D. Alaska 1992); see also Buckley v. National Freight, Inc., 90 N.Y.2d 210, 681 N.E.2d 1287, 659 N.Y.S.2d 841 (1997) (discussing possible situations of excusable failure to join two claims).

The reasons for joining the two claims, derivative and primary, do not necessarily support a retrial on aH issues after a jury has determined liability and damages on the predicate claim, and an appeUate court has upheld the liability and award of damages. Once the predicate judgment has been upheld, it is legaHy impossible for joinder of the actions to continue on retrial unless both causes of action are retried. In the present case, either the plaintiff wife must try her cause of action alone so that the involuntary deprivation of her cause of action does not penalize her or issues already tried, decided and upheld as to the plaintiff husband’s cause of action must be needlessly relitigated.

A new trial in the present case solely on the issue of damages as to the loss of consortium claim does not implicate any of the concerns for which courts have determined that the underlying impaired spouse’s claim must accompany the deprived spouse’s claim. The defendants presented no evidence of comparative responsibility. The plaintiff husband neither lost in his action nor settled his claim, so neither settlement nor adverse judgment bars the plaintiff wife’s claim. Furthermore, no reason exists for concern that the jury will improperly award damages to the plaintiff wife for the husband’s injuries or vice versa.

The parties already have litigated the plaintiff husband’s claim without any argument to the trial court or to this court that the jury charge was incorrect as to his claim. Had the court given a charge on the plaintiff wife’s loss of consortium claim, the defendants’ liability or the amount of the plaintiff husband’s award would in all likelihood have remained the same. The absence of a charge on the loss of consortium claim affects only the loss of the plaintiff wife, not the damages of the plaintiff husband. We conclude that a retrial limited to the entitlement to the amount of damages arising from count two will not work an injustice to the parties in this case. Upon remand for a hearing in damages as to the plaintiff wife’s claim, the trial court must, by appropriate instructions, exclude those economic damages attributable to the plaintiff husband’s claims. See Brown v. Metzger, 104 Ill. 2d 30, 39, 470 N.E.2d 302 (1984); 41 Am. Jur. 2d 174-76, supra, § 263.

II

The plaintiffs also claim that the court improperly admitted into evidence an exhibit pursuant to the learned treatise exception to the hearsay rule. This claim relates to the plaintiff husband’s appeal from the denial of his motion to set aside the verdict for him as to damages only. Basic to determining whether the denial was improper is whether a jury fairly could reach the verdict it did, given the evidence heard. Vetre v. Keene, 181 Conn. 136, 138, 434 A.2d 327 (1980). Unless the verdict does a manifest injustice or is palpably against the evidence so as to shock the court’s conscience, it should stand. Marchetti v. Ramirez, 40 Conn. App. 740, 750, 673 A.2d 567 (1996), aff d, 240 Conn. 49, 688 A.2d 1325 (1997).

In this case, the plaintiffs impliedly argue that if the court had not admitted the treatise, the jury would have awarded materially greater damages, both economic and noneconomic. We do not speculate as to whether that claim is true because we conclude that the court did not abuse its discretion in admitting the exhibit.

The following additional facts are necessary to place this claim in proper context. At trial, the plaintiff husband testified that he suffered injuries to his spine and to his TMJ as a result of the automobile accident. The plaintiffs also offered the testimony of the husband’s treating physician, I. L. Cantner. Cantner testified that the whiplash to the plaintiff husband’s neck during the accident caused his TMJ injury. On cross-examination, counsel for the defendants attempted to impeach Cantner’s conclusion concerning the source of the TMJ injury. Counsel offered an article entitled, “Whiplash and Temporomandibular Disorders: A Critical Review,” which was published in the December, 1998 edition of the Journal of the American Dental Association. Cantner testified that he was a member of the American Dental Association, that he was familiar with the journal, and that it was widely read, recognized and accepted in the dental profession as authoritative. At that point, counsel for the defendants sought to introduce only the article as a learned treatise, not the entire journal. Counsel for the plaintiffs objected to the admission of the article as hearsay. The court overruled the objection and admitted the article pursuant to the learned treatise exception to the hearsay rule.

Our standard of review of evidentiary rulings is well settled. Evidentiary rulings “will be overturned on appeal only where there was an abuse of discretion and a showing by the [party raising the challenge] of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Pacific Land Exchange v. Hunts, 52 Conn. App. 362, 364, 727 A.2d 1281 (1999).

Connecticut permits the introduction of professional and scientific treatises and journals on cross-examination of an expert witness to impeach the expert’s testimony if the expert has either relied on the work in direct examination or acknowledged the work as accepted by the profession. Conn. Code Evid. § 8-3 (8). “The rule in this jurisdiction regarding the use of learned treatises is that if a ‘treatise is recognized as authoritative by an expert witness and if it influenced or tended to confirm his opinion, then relevant portions thereof may be admitted into evidence in the exercise of the trial court’s discretion.’ ” Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 651, 514 A.2d 352, cert, denied, 201 Conn. 809, 515 A.2d 378 (1986). Cantner did not rely on the article during direct examination, so the question becomes whether Cantner acknowledged the article when he testified that the journal itself, in which the article was published, was accepted by the dental profession.

The plaintiffs argue that Cantner’s acceptance of the journal that contained the article was insufficient to qualify the article contained therein as a learned treatise. The plaintiffs cite several federal cases as support for that argument. “We add that in any event we would not accept plaintiffs argument that the contents of all issues of a periodical may be qualified wholesale under [Federal Rule of Evidence] 803 (18) by testimony that the magazine was highly regarded. In these days of quantified research, and pressure to publish, an article does not reach the dignity of a ‘rehable authority’ merely because some editor, even a most reputable one, sees fit to circulate it. Physicians engaged in research may write dozens of papers during a lifetime. Mere publication cannot make them automatically reliable authority.” Meschino v. North American Drager, Inc., 841 F.2d 429, 434 (1st Cir. 1988); see also Twin City Fire Ins. Co. v. Country Mutual Ins. Co., 23 F.3d 1175, 1184 (7th Cir. 1994).

We do not disagree with the Meschino court. We, too, would not accept that all articles in a periodical may be qualified as learned through the mere demonstration that the periodical itself is highly regarded. A recent federal case aptly explains that limitation. “We do not, however, read Meschino to say that the reputation of the periodical containing the proffered article is irrelevant to the authoritativeness inquiry. Publication practices vary widely, and an article’s publication by an esteemed periodical which subjects its contents to close scrutiny and peer review, obviously reflects well on the authority of the article itself. Indeed, because the authoritativeness inquiry is governed by a ‘liberal’ standard, good sense would seem to compel recognizing some periodicals — provided there is a basis for doing so — as sufficiently esteemed to justify a presumption in favor of admitting the articles accepted for publication therein.” Costantino v. Herzog, 203 F.3d 164, 172 (2d Cir. 2000). It was not an abuse of the trial court’s discretion to determine that because Cantner viewed the journal as authoritative, it made “good sense” to “justify a presumption in favor of admitting the [article] accepted for publication therein.” Id.

Ill

The plaintiffs also argue that the court improperly granted the defendants’ motion in limine, thereby precluding the plaintiffs from cross-examining the defendants’ expert as to a malpractice action against that expert. It is problematic as to whether that ruling had a significant effect on the amount of damages to which the plaintiff husband was entitled. We review the issue to make certain that the court did not abuse its discretion, thereby affecting the fair and just damages to which the plaintiff husband was entitled.

The following additional facts pertain to this issue. The defendants filed a disclosure of an expert witness, Paul A. Bocciarelli, an expert in the area of TMJ dysfunction, who intended to testify as to the plaintiff husband’s TMJ injuries. During Bocciarelli’s discovery deposition, he testified that he had a malpractice claim filed against him about ten years ago. That malpractice claim involved a patient with an underlying bone marrow disorder who sought treatment from Bocciarelli. After treatment, the patient began to bleed and required hospitalization. The patient brought an action against Bocciarelli for malpractice, and a jury found in favor of the patient in that case. Bocciarelli appealed and, during the pendency of the appeal, the parties settled.

On March 23, 1999, the defendants filed a motion in limine to preclude questioning at trial about the malpractice claim against Bocciarelli. The plaintiffs opposed the motion and argued that the line of inquiry regarding the malpractice claim went to the expert’s general qualifications as a dentist, that is, “whether he is someone who is fit to give an opinion based upon the fact that he has made mistakes in the past.” At the March 31,1999 hearing on the motion, the court granted the defendants’ motion on the grounds that the line of questioning was prejudicial, irrelevant and that a settlement during the appeal did not give rise to any judicially determined liability. We agree with the court’s decision to preclude the questioning.

As we discussed in part II, we review evidentiary rulings for an abuse of discretion. Pacific Land Exchange v. Hunts, supra, 52 Conn. App. 364. The plaintiffs argue that because the opinions of the experts were contradictory and the jury needed to decide which expert to believe, the issues of competency and qualification became critical. As such, according to the plaintiffs, evidence tending “to contradict or diminish the qualifications of a doctor, such as evidence of a prior finding of malpractice, is clearly relevant, and that relevance far outweighs any prejudice.” We disagree on the facts of this case.

It was not an abuse of the court’s discretion to conclude that a malpractice claim made against Bocciarelli ten years ago concerning a bleeding complication is not relevant to the credibility of his opinion concerning the cause of the plaintiff husband’s TMJ injuries. We previously have allowed cross-examination of an expert relating to a malpractice action where that line of inquiry went to motive and bias; see Hayes v. Manches ter Memorial Hospital, 38 Conn. App. 471, 474-75, 661 A.2d 123, cert, denied, 235 Conn. 922, 666 A.2d 1185 (1995); but we know of no authority that any expert who testifies as to his or her qualifications opens the door to an unfettered cross-examination of any malpractice claims made against that expert, however old, that are wholly unrelated to the proposed testimony and serve no purpose but to show that the expert “has made mistakes in the past.”

Moreover, even if we were to conclude that the court improperly restricted the scope of the plaintiffs’ cross-examination, the plaintiffs must also demonstrate that the ruling was harmful. Id., 475. A harmful evidentiary ruling is one that likely affected the result of the trial. Id. Here, the claim as to harm is that the juiy awarded inadequate damages. The plaintiffs have failed to substantiate that claim. The plaintiffs argue that if the jury had heard testimony regarding the malpractice claim, it might well have decided to discredit Bocciarelli’s opinion. The jury then would have been left with the conflicting opinion of the plaintiffs’ expert, which in turn, would somehow have increased the plaintiff husband’s damages. That type of speculation is insufficient to establish harm. It is impossible to determine whether the juiy did not award greater damages for pain and suffering because it disbelieved the plaintiff husband’s testimony or because it credited the testimony of one expert over another.

The judgment for the defendants on count two as to the plaintiff wife is reversed and the case is remanded for a hearing in damages as to that count. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Although Ralph Vlcek was not operating the automobile at the time of the accident, the plaintiffs alleged his liability pursuant to the family car doctrine. See General Statutes § 52-182. Ralph Vlcek and Judith A. Vlcek, husband and wife, jointly own the automobile.

       A verdict may be set aside on the ground that damages are inadequate. General Statutes § 52-228b.

       We note that the caption of the verdict form was in the plural, “Plaintiffs’ Verdict.”

       A plaintiff claiming loss of consortium is not entitled to economic damages, so the reference to economic damages necessarily indicates that the plaintiff to whom the form refers was the husband.

       The defendants argue that because the record does not reveal the court’s reason for not charging the jury on loss of consortium and because this court should not speculate as to that reason, we should not reach the merits of the claim. The defendants suggest several reasons for which the court may have declined to charge. Those reasons are that (1) the testimony was neither credible nor reliable, (2) the plaintiffs failed to present evidence concerning the marriage relationship prior to the accident to provide a comparative reference, (3) the plaintiffs did not present a prima facie case or (4) the plaintiff wife’s requested charge was improper. We disagree that any of those reasons precludes our review. First, we will not presume that the court improperly usurped the function of the jury and determined issues of credibility and reliability. Second, there is no authority in Connecticut that a loss of consortium claim requires the presentation of evidence concerning the marriage relationship prior to the accident for purposes of comparative reference. We, therefore, do not presume that the court refused to charge on that basis. Third, as we discuss in more detail, the plaintiff wife presented a prima facie case of loss of consortium. Fourth, if a court determines that a plaintiffs requested charge should not be given at all, although the requested charge pertains to a count of the plaintiffs complaint, the court should direct a verdict against the plaintiff on that count. See Borkowski v. Sacheti, supra, 43 Conn. App. 312. The present case does not involve a requested charge that misstated the law and was not therefore improper.

       If the damages due the plaintiff husband were determined to be inadequate as a matter of law, as argued by him in the trial court and in this court, the retrial of the plaintiff wife’s claim would of necessity include the claims of both. See Jacoby v. Brinckerhoff, 250 Conn. 86, 93, 735 A.2d 347 (1999). For purposes of the discussion in part I B, we assume that the plaintiff husband’s judgment remains unaltered.

       That recognition is consistent with General Statutes § 52-266, which provides: “If several issues are presented by the pleadings and, on the trial of one or more of such issues, an error or ground for a new trial intervenes which does not affect the legality of the trial or disposition of the other issue or issues, judgment shall not be arrested or reversed, nor a new trial granted, except so far as relates to the particular issue or issues in the trial of which such error or ground for a new trial intervened.”

       “Analytically, the derivative action is dependent upon the legal existence of the predicate action, i.e., that action which can be brought on behalf of the injured spouse himself or herself. Conceptually and logically, it foEows from that that the derivative action cannot afford greater reHef liability-wise than would be permitted under the predicate action.” (Emphasis added.) Champagne v. Raybestos-Manhattan, Inc., supra, 212 Conn. 555-56. That statement, however, is dictum, and our Supreme Court has not yet squarely determined whether, in some cases, the damages of a noninjured spouse may exceed the damages of an injured spouse for the latter’s noneconomic damages.

       In Jacoby v. Brinckerhoff, supra, 250 Conn. 86, our Supreme Court did not definitively close the door on the viabihty of a loss of consortium claim in the absence of a predicate cause of action, suggesting that another factual scenario may have led to another result. In Jacoby, the plaintiff husband faded to present evidence that his wife’s mental impairment was the reason she did not bring a negEgence case in her own behalf.

       Some sister courts have made similar recommendations while others mandate joinder. See Jacoby v. Brinckerhoff, supra, 250 Conn. 102-103 (Berdon, J., dissenting) (listing positions taken by other jurisdictions). Jacoby comes close to mandating joinder.

       We employ the terminology of 3 Restatement (Second), Torts § 693, comment (a) (1977), which labels the physically ipjured spouse as the “impaired” spouse and the spouse with the loss of consortium claim as the “deprived” spouse.

       Comment (g) of § 693 of 3 Restatement (Second), Torts, provides in relevant part: “There will be situations in which it is not possible to join the causes of action for the single trial. Thus the impaired spouse’s cause of action may have been abated by death. Or the action of the impaired spouse may be barred by a [workers’] compensation act, which does not bar the deprived spouse’s action. Or the impaired spouse may have settled and released the claim for bodily harm without the knowledge of the deprived spouse. Or the impaired spouse may simply refuse to sue.” Id., p. 498.

       Connecticut Code of Evidence § 8-3 (8) provides: “To the extent called to the attention of an expert witness on cross-examination or relied on by the expert witness in direct examination, a statement contained in a published treatise, periodical or pamphlet on a subject of history, medicine, or other science or art, recognized as a standard authority in the field by the witness, other expert witness or judicial notice.”


author: FREEDMAN, J.

text:
    HEIDI SCHIMMELPFENNIG v. JARRED CUTLER ET AL.
    (AC 20711)
    Foti, Spear and Freedman, Js.
    Argued April 23
    officially released August 28, 2001

      ChristopherP. Anderson, for the appellant (plaintiff).

      Joseph M. Musco, for the appellee (named defendant et ai.).

      Patty G. Swan, with whom, on the brief, was Jon S. Berk, for the appellee (defendant Cargill Chevrolet Company, Inc.).

      John H. Hanks, for the appellee (defendant Tobey J. Falco).
   Opinion

FREEDMAN, J.

The plaintiff, Heidi Schimmelpfennig, appeals from the judgment of the trial court rendered on a directed verdict in favor of the defendant Cargill Chevrolet Company, Inc. (Cargill), and on the jury verdict in favor of the defendants Jarred Cutler, Robert R. Stalsburg and Stalsburg Express, Inc. On appeal, the plaintiff claims that the court improperly (1) directed a verdict in favor of Cargill, and (2) allowed the plaintiff to be questioned concerning prior bad acts or misconduct when the defense counsel did not have a good faith basis for inquiring about such issues, and such issues were highly prejudicial in relation to their probative value. We affirm the judgment of the trial court.

The following facts are relevant to the plaintiffs appeal. The plaintiff filed an amended complaint alleging that on June 15, 1995, she was a passenger in a vehicle owned by Cargill and operated by the defendant Tobey J. Falco, which was involved in an accident with a vehicle owned by Stalsburg and operated by Cutler. The plaintiff alleged that at the time of the accident, the vehicle operated by Falco had been rented to the defendant Jeffrey Stachura. The plaintiff alleged that Falco was using the vehicle with the express or implied permission of Cargill and the express permission of Stachura. The plaintiff alleged that the accident was caused by the negligence of Falco or Cutler or both in the operation of their motor vehicles.

At trial, the plaintiff presented evidence to establish the following facts. Prior to the accident in question, Falco and Stachura, Falco’s former fiance, had purchased a 1991 Subaru Loyale motor vehicle from Cargill with an extended warranty. When the timing belt broke on that vehicle, Stachura called Cargill and was told that he could get a “loaner” vehicle, a 1995 Geo Prizm. On June 14, 1995, Stachura obtained the Prizm from Cargill. Stachura later told Falco that, according to Car-gill, he was the only person authorized to drive the vehicle. Falco called Brandon Walsh, the salesman at Cargill who had sold them the 1991 Subaru Loyale. Walsh told Falco that if the vehicle was insured to her, she was authorized to drive it.

On June 15,1995, Falco drove the Prizm to an appointment in Norwich. The plaintiff and her son were passengers in Falco’s vehicle. After the appointment, as Falco was traveling on Interstate 395, she was involved in an accident with a vehicle owned by Stalsburg and operated by Cutler.

At the conclusion of the plaintiffs case, the court granted Cargill’s motion for a directed verdict. The jury subsequently found in favor of the plaintiff as against Falco and awarded her $40,000 in damages. The jury further found in favor of the defendants Cutler and Stalsburg. The court denied the plaintiffs motion for additur or to set aside the verdict and the plaintiff filed the present appeal.

I

The plaintiff first claims that the court improperly directed a verdict in favor of Cargill. We disagree.

The following facts are necessary to our resolution of the plaintiffs claim. With regard to Cargill, the plaintiff alleged liability pursuant to General Statutes §§ 52-183 and 14-154a. In granting Cargill’s motion for a directed verdict, the court stated that it was not considering Cargill’s liability under § 52-183 because of the plaintiffs concession that Falco was not an employee or agent of the owner. The court further held that Cargill was not liable pursuant to § 14-154a. The plaintiff challenges that ruling.

“Our standard of review of a directed verdict is well settled. A trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, a jury could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail. ... In assessing the evidence, the court should weigh both direct and circumstantial evidence, including all reasonable inferences to be drawn therefrom.” (Citations omitted.) Harewood v. Carter, 63 Conn. App. 199, 202-203, 772 A.2d 764 (2001).

We first consider whether the court properly refused to impose liability on Cargill pursuant to § 52-183 on the basis of the concession made by counsel for the plaintiff during oral argument on Cargill’s motion. “Section 52-183 creates a rebuttable presumption that the operator of a motor vehicle is the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The presumption ceases to operate, however, when the trier finds proven facts which fairly put in issue the question, and the burden of proving that the car . . . was operated by an agent of the owner . . . then rests upon the plaintiff . . . .” (Internal quotation marks omitted.) Felsted v. Kimberly Auto Services, Inc., 25 Conn. App. 665, 670, 596 A.2d 14, cert, denied, 220 Conn. 922, 597 A.2d 342 (1991). At oral argument on Cargill’s motion, counsel for the plaintiff stated that he was not claiming that Falco was an employee or agent of Cargill under the statute. Counsel indicated that he was claiming only that Falco was operating the vehicle with the express permission of the owner. Counsel for Cargill then proceeded to address his argument with regard to § 14-154a. That concession was not withdrawn during the remainder of the argument on Cargill’s motion. In rendering its oral decision, the court stated that “§ 52-183 is out because there is a concession that she was not — it has not been proven that [Falco] was an employee or servant of the owner, and that’s the requirement here.” On the basis of the record before us, and considering the representations made by counsel for the plaintiff to the court, we conclude that the court properly determined that Cargill could not be held liable to the plaintiff pursuant to § 52-183.

We next consider whether the court properly granted Cargill’s motion with respect to § 14-154a. That statute provides that “[a]ny person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner.” Our Supreme Court has “consistently construed the statute as imposing on one who rents or leases a motor vehicle to another the same liability as that of its operator, provided the vehicle, at the time in question, is being operated by one in lawful possession of it pursuant to the terms of the contract of rental.” (Emphasis in original; internal quotation marks omitted.) Pedevillano v. Bryon, 231 Conn. 265, 268, 648 A.2d 873 (1994). The court in Pedevillano “rejected the plaintiffs contention that § 14-154a imposes unlimited liability on any lessor for injuries caused by a person who uses the vehicle with the permission of an authorized lessee. . . . Pedevillano makes clear that the lessor is not liable under the statute even when the lessee allows another party to drive the vehicle.” (Citation omitted.) Blackwell v. Bryant, 45 Conn. App. 26, 31, 692 A.2d 862 (1997).

The rental agreement in the present case, for the 1995 Geo Prizm, was signed only by Stachura. Falco is not listed as an additional authorized user under the contract. The contract prohibited the use of the vehicle by additional drivers except under limited circumstances that do not exist in this case. The court, therefore, properly concluded that Falco was not an authorized driver under the express terms of the rental contract between Stachura and Cargill.

The court considered the further issue of whether Falco was an authorized driver of the vehicle on the basis of the testimony that Walsh, the salesman employed by Cargill, had told Falco that she could drive the vehicle if it was covered by her insurance. The court phrased the issue as follows: “Was there a modification or a subsequent lease agreement made by the conversation that Tobey Falco said occurred?” In holding that there was no such modification, the court stated that no evidence had been presented that Walsh had express or apparent authority to lease vehicles for Cargill. We agree with the court’s conclusion.

“Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses. . . . Consequently, apparent authority is to be determined, not by the agent’s own acts, but by the acts of the agent’s principal. . . . The issue of apparent authority is one of fact to be determined based on two criteria. . . . First, it must appear from the principal’s conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority. . . . Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent’s action.” (Citations omitted; internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 734-35, 629 A.2d 333 (1993).

The only evidence presented by the plaintiff to support her claim was the testimony of Falco. Falco testified that when she called Cargill, Walsh told her that “if the car was insured to [her], [she] had every right to drive it.” The plaintiff did not call any individuals associated with Cargill to testify at trial. We agree with the court that without such evidence, the plaintiff failed to establish that Walsh had express or apparent authority to lease vehicles or to modify the rental agreement entered into by Cargill and Stachura.

On the basis of the foregoing, we conclude that the court properly granted Cargill’s motion for a directed verdict.

II

After the court granted the directed verdict in favor of Cargill, the jury returned a verdict in favor of the plaintiff as against Falco in the amount of $40,000. The jury also returned a verdict in favor of Cutler and Stalsburg. The plaintiffs second issue on appeal is that the court improperly allowed her to be questioned concerning prior bad acts or misconduct when the defense counsel did not have a good faith basis for inquiring about such issues, and such issues were highly prejudicial in relation to their probative value. We disagree.

The following facts are necessary to our resolution of the plaintiffs claim. Prior to the start of evidence, the plaintiff filed a motion in limine, seeking to preclude the admission of evidence that she had ever engaged in shoplifting. The court denied the motion. Cutler and Stalsburg filed a pleading titled, “Motion Regarding Questioning of Heidi Schimmelpfennig,” in which they requested permission to question the plaintiff on cross-examination regarding her involvement in a larceny that occurred on June 15, 1995. The court granted that motion and indicated that the defendants would not be allowed to introduce extrinsic evidence in that regard. During cross-examination of the plaintiff at trial, counsel for Cutler and Stalsburg asked the plaintiff whether merchandise found in the trunk of the car driven by Falco had been shoplifted. The plaintiff denied that the merchandise had been shoplifted, and counsel proceeded to question her on issues unrelated to shoplifting. No curative instruction was requested, and none was given. The plaintiff argues on appeal that she suffered “harmful prejudice” by that line of questioning because the basis for it was unreliable and because prejudice was planted in the jurors’ minds concerning her allegedly bad character. We disagree with the plaintiff.

“The right to cross-examine a witness concerning specific acts of misconduct is limited in three distinct ways. First, cross-examination may only extend to specific acts of misconduct other than a felony conviction if those acts bear a special significance upon the issue of veracity .... Second, [wjhether to permit cross-examination as to particular acts of misconduct . . . lies largely within the discretion of the trial court. . . . Third, extrinsic evidence of such acts is inadmissible.” (Internal quotation marks omitted.) State v. Chance, 236 Conn. 31, 60, 671 A.2d 323 (1996); see also Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964) (“[i]n an attack on [an adversary’s] credit, inquiry may be made, in the discretion of the court, as to particular acts of misconduct tending to show a lack of veracity, even though such evidence might be irrelevant to the issues in the case”); Conn. Code Evid. § 6-6 (b). “It is generally held that larcenous acts tend to show a lack of veracity. ... It does not follow, however, that if the acts inquired about are indicative of a lack of veracity, the court must permit the cross-examination. Whether to permit it lies largely within the court’s discretion.” (Citations omitted; internal quotation marks omitted.) State v. Martin, 201 Conn. 74, 87, 513 A.2d 116 (1986).

In the present case, on the basis of deposition testimony of Stachura, counsel for Cutler and Stalsburg had a good faith basis for inquiring into the possibility that the plaintiff had shoplifted just prior to the accident on June 15, 1995. Stachura had stated in his deposition that he believed that the plaintiff and Falco had been shoplifting on the date of the accident. Although the plaintiff claims that she was prejudiced by that questioning, she did not request a curative or limiting instruction, and there was no further mention of shoplifting. Further, although the plaintiff claims that the inquiry tainted her credibility in the eyes of the jury, the jury awarded her $40,000 in damages. We conclude, therefore, that the court did not abuse its discretion in permitting counsel for Cutler and Stalsburg to question the plaintiff on prior misconduct reflecting on her credibility.

The judgment is affirmed.

In this opinion the other judges concurred.

       For purposes of this opinion, we refer to Robert R. Stalsburg and Stalsburg Express, Inc., as Stalsburg.

       The action against Stachura subsequently was withdrawn.

       Although Cargill referred to the motion as a motion for judgment of dismissal pursuant to Practice Book § 15-8, the parties and the court treated it as a motion for a directed verdict.

       General Statutes § 52-183 provides: “Presumption of agency in motor vehicle operation. In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption.”

       General Statutes § 14-154a provides: “Liability of owner for damage caused by rented or leased car. Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner.”

       The following colloquy in relevant part occurred between the court and counsel:
      “The Court: Well, let me just ask. Attorney Anderson, are you pursuing that claim that Tobey Falco was an agent or employee of Cargill Chevrolet—
      “[Plaintiffs Counsel, Christopher P. Anderson]: No, Your Honor.
      “The Court: — under § 52-183? You’re not—
      “[Plaintiffs Counsel]: There’s no claim that Tobey Falco is an employee or agent under that statute. Only that Tobey Falco was operating it with the express permission of the owner.
      “The Court: Okay. Go ahead.

        “[Defendant Cargill’s Counsel]: In that regard, then, I’ll move on to my § 14-154a argument.”

       The contract states in relevant part:
      “3. Use:
      “(a) You agree that the vehicle will NOT be used by any person except you and persons who are at least 25 years of age and are:
      “(i) members of your immediate family who permanently reside in your household; or
      “(ii) your employer, partner, executive officer or regular employee of your employer; or
      “(iii) listed as the other driver on this agreement.”

       In light of our conclusion that the court properly granted Cargill’s motion for a directed verdict, we need not address Cargill’s claim that in the event that a new trial is ordered, the court improperly denied its motion to amend its answer and assert a cross claim against Falco for indemnification.

       The questioning on the topic of the shoplifting was as foEows:
      “Q. Isn’t it a fact that after this accident, the trunk of that car was cleaned out and merchandise was found in that trunk that was not in bags, and it had the tags still attached and it was merchandise that you had shoplifted? “A. Absolutely not. No.
      “Q. You deny that?
      “A. I definitely deny that.”


author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. GLENN STONE
    (AC 21429)
    Foti, Landau and Flynn, Js.
    Submitted on briefs June 13
    officially released August 28, 2001

      James M. Fox, special public defender, filed a brief for the appellant (defendant).

      Scott J. Murphy, state’s attorney, Susan C. Marks, supervisory assistant state’s attorney, and Terri Sonnemann, assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Glenn Stone, appeals from the trial court’s judgment, rendered pursuant to General Statutes § 53a-32, revoking his probation and committing him to the custody of the commissioner of correction to serve thirty-two months, the remaining suspended portion of his previously imposed sentence. On appeal, the defendant asserts that the trial court improperly denied him the right of allocution after it found that he had violated the terms of his probation and before it imposed his sentence. We agree. Therefore, we reverse the court’s judgment and remand the matter to the trial court for a new dispositional hearing.

In 1995, the defendant, after pleading guilty to a violation of General Statutes § 14-227a, operating a motor vehicle while under the influence, received a total effective sentence of three years, execution suspended after 120 days, followed by four years probation. On February 23, 1999, the defendant pleaded guilty to a violation of § 14-227a. As a result of the conviction, he was charged with a violation of probation. Following a hearing, the court found that the defendant was in violation of the terms of his probation. Thereafter, the court revoked his probation and imposed his sentence. The defendant did not have an opportunity to allocute prior to sentencing. The court declined to hear remarks by the defendant or the witnesses presented on his behalf.

We review the defendant’s unpreserved claim under the plain error doctrine. Practice Book § 60-5; see State v. McDuffie, 51 Conn. App. 210, 216-17, 721 A.2d 142 (1998), cert, denied, 247 Conn. 958, 723 A.2d 814 (1999).

A defendant has the right personally to address the court at the time of sentencing in the dispositional phase of a probation revocation hearing. See State v. Strickland, 243 Conn. 339, 354, 703 A.2d 109 (1997); see also Practice Book § 43-10 (3).

The judgment is reversed only as to the imposition of the sentence and the case is remanded for further proceedings, before a different judge. At that time, the court should allow the defendant to exercise his right of allocution prior to the court’s imposition of sentence. The judgment is affirmed in all other respects.

       On appeal, both parties seek resentencing before a different judicial authority. See State v. Hedman, 62 Conn. App. 403, 415, 772 A.2d 603, cert, granted on other grounds, 256 Conn. 909, 772 A.2d 602 (2001).