author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. CHARLES WALTHALL
    (AC 20305)
    Schaller, Zarella and Dranginis, Js.
    Submitted on briefs December 8, 2000
    officially released February 27, 2001

      Richard E. Cohen filed a brief for the appellant (defendant).

      James E. Thomas, state’s attorney, Harry Weller, senior assistant state’s attorney, and Thomas Garcia,
      assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Charles Walthall, appeals from the judgment of conviction, rendered after a jury trial, of arson in the first degree in violation of General Statutes § 53a-lll (a) (3) and attempt to commit larceny in the second degree in violation of General Statutes §§ 53a-123 (a) (2) and 53a-49 (a) (2). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal and (2) allowed a jury to be seated that was prejudicial to him due to its racial composition. We affirm the judgment of the trial court.

The defendant first claims that the court abused its discretion when it denied his motion for a judgment of acquittal on the basis of the insufficiency of the evidence. “The standards by which we review claims of insufficient evidence are well established. When reviewing a sufficiency of the evidence claim, our courts apply a [two-pronged] test. First, we construe the evidence in the light most favorable to sustaining the verdiet. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.” (Internal quotation marks omitted.) State v. Bradley, 60 Conn. App. 534, 540, 760 A.2d 520, cert, denied, 255 Conn. 921, 763 A.2d 1042 (2000). After a thorough review of the record, the trial transcripts and the briefs and arguments of counsel, we conclude that there was sufficient evidence for the jury to have found the defendant guilty of arson in the first degree and attempt to commit larceny in the second degree. We therefore conclude that the court properly denied the defendant’s motion for a judgment of acquittal.

The defendant, who is African-American, next claims that his conviction by a jury that consisted of all white persons violated the equal protection clauses of the constitutions of the United States and Connecticut. We decline to address this unpreserved claim because the record is inadequate for our review.

“The duty to provide this court with a record adequate for review rests with the appellant.” (Internal quotation marks omitted.) Summerbrook West, L.C. v. Foston, 56 Conn. App. 339, 345, 742 A.2d 831 (2000). In this case, however, there is no indication in the record of the racial composition of the jury or whether the racial composition of the jury prejudiced the defendant because of his race. See State v. Griffin, 251 Conn. 671, 697,741 A.2d 913 (1999) (article first, § 8, of constitution of Connecticut encompasses American tradition of trial by impartial jury drawn from cross section of community); see also State v. McDougal, 241 Conn. 502, 517, 699 A.2d 872 (1997) (“[defendants are not entitled to a jury of any particular composition . . . but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof’ [emphasis in original]). We also cannot discern from the record whether the defendant had exhausted his challenges to the jury array. See State v. Griffin, supra, 699 (right to impartial jury guaranteed by rights to challenge jury array and to challenge prospective jurors for cause in addition to rights to individual voir dire and to challenge prospective jurors peremptorily). We therefore decline to review the merits of this claim.

The judgment is affirmed.

       General Statutes § 53a-lll (a) provides in relevant part: “A person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and ... (3) such fire or explosion was caused for the purpose of collecting insurance proceeds for the resultant loss . . . .”
      General Statutes § 53a-100 (a) (1) provides in relevant part: “ ‘Building’ in addition to its ordinary meaning, includes any . . . vehicle . . . .”

       General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds five thousand dollars . . . .”

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOSE E. ALVARADO
    (AC 18284)
    Spear, Mihalakos and Shea, Js.

      Argued December 7, 2000
    officially released February 27, 2001

      Katharine S. Goodbody, special public defender, for the appellant (defendant).

      Joy K. Fausey, deputy assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Richard Colangelo, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Jose Alvarado, appeals from the judgment of conviction, rendered after a jury trial, of one count of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and one count of sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b). The defendant claims that (1) the trial court improperly denied his motion for judgment of acquittal based on insufficient evidence and (2) there was insufficient evidence to support the jury’s conclusion that the defendant was not drug-dependent at the time of the offense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of February 1,1996, officers from the Norwalk police department established a surveillance operation in the area of South Main and Monroe Streets, a hub for illegal drug activity and the source of many citizens’ complaints. Officer Arthur Weisgerber observed the area from the window of a vacant second floor apartment. Weisgerber had a clear, unobstructed view of the intersection, which was well illuminated by streetlights, and conducted his surveillance with the aid of a pair of high powered binoculars.

At approximately 9:25 p.m., Weisgerber observed a maroon car approach the intersection and stop at a red light. As the vehicle came to a stop, a man he recognized and knew by name, later identified as the defendant, walked out from the sidewalk and entered the front passenger side of the vehicle. Weisgerber observed an exchange between the defendant and the driver in which the defendant gave to the driver a small white object and the driver gave to the defendant a piece of green paper currency. The small white object was about the size of a pebble and packaged in plastic. Weisgerber testified that on the basis of his training and experience, the packaging, size, color and shape of the object was consistent with street level packaging of crack cocaine. The exchange took approximately twelve to fifteen seconds and occurred within 1500 feet of a school.

As soon as the transaction was completed, the defendant got out of the vehicle and walked back to the sidewalk. After the vehicle drove away, Weisgerber radioed the arrest team, described what he had seen and said that he suspected it was a drug transaction. He also described the vehicle, the driver and the direction in which the vehicle was headed. Two to four minutes later, the arrest team located the vehicle and arrested the driver after discovering crack cocaine in the right front pocket of his coat. The cocaine was in the same form as the small white object described by Weisgerber. Weisgerber did not see the defendant again that evening, but after completing the surveillance operation, he confirmed the defendant’s identity by means of a photograph in the police department’s identification bureau and prepared a warrant for the defendant’s arrest.

At approximately 8:30 p.m. on February 8,1996, while conducting another surveillance operation, Weisgerber again observed the defendant in the area of South Main and Monroe Streets. Weisgerber radioed the arrest team that there was an active arrest warrant for the defendant, and police arrested the defendant that evening.

Thereafter, the defendant was convicted of sale of narcotics and sale of narcotics within 1500 feet of a school. The court denied the defendant’s motions for a judgment of acquittal made after the close of evidence and after the jury returned a guilty verdict. This appeal followed.

I

The defendant first claims that the court improperly denied his motion for judgment of acquittal because the evidence presented at trial was insufficient to prove beyond a reasonable doubt that he sold narcotics. We disagree.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Robertson, 254 Conn. 739, 783, 760 A.2d 82 (2000).

“[T]he offense of the sale of a narcotic substance requires proof of a sale.” (Internal quotation marks omitted.) State v. Forde, 52 Conn. App. 159, 165, 726 A.2d 132, cert, denied, 248 Conn. 918, 734 A.2d 567 (1999). In State v. Knight, 50 Conn. App. 109, 717 A.2d 274 (1998), we considered a nearly identical factual scenario to the one in the present case in which the defendant was charged with sale of narcotics and sale of narcotics within 1500 feet of a school. In that case, an officer using high powered binoculars observed the defendant exchange a clear plastic bag containing a small white object for paper currency. The recipient of the package was arrested almost immediately thereafter and found to possess a clear plastic bag containing cocaine. The defendant was arrested approximately thirty minutes later. On appeal, the defendant challenged both the credibility of the officer and the sufficiency of the evidence, and we concluded with respect to the sufficiency claim that “the trial court properly determined that there was sufficient evidence from which a trier of fact reasonably could conclude beyond a reasonable doubt that the defendant committed the crimes charged.” Id., 113.

The most noteworthy difference between the facts here and those in Knight is that the buyer in Knight was on foot and remained in sight of the officers between the time of the transaction and the time of his arrest, while the driver of the maroon car in the present case left the scene of the transaction and was not in view of the officers for two to four minutes prior to his arrest. We conclude, however, construing the evidence in the light most favorable to sustaining the verdict, that despite the short delay between the time of the transaction and the time of the driver’s arrest, the jury reasonably could have inferred that the small white object that Weisgerber observed the defendant give to the driver was the same small white object, later determined by a toxicologist to be cocaine, that was found on the driver only two to four minutes later, and that this and other evidence was sufficient to establish the defendant’s guilt beyond a reasonable doubt.

The defendant relies on State v. Davis, 38 Conn. App. 621, 626, 662 A.2d 812, cert, denied, 235 Conn. 919, 665 A.2d 907 (1995), State v. Arbelo, 37 Conn. App. 156,160, 655 A.2d 263 (1995), and State v. Mierez, 24 Conn. App. 543, 553-54, 590 A.2d 469, cert, denied, 219 Conn. 910, 911, 593 A.2d 136 (1991), to support his argument that there was insufficient evidence to permit a finding of guilt. In each of these cases, we concluded that the evidence did not support a finding of guilt beyond a reasonable doubt because no witnesses could identify the objects exchanged in the alleged drug transactions. The defendant argues that the present case is similar because Weisgerber did not testify that the driver actually gave the defendant currency or that the object he saw in the transaction was the same object that the police found on the driver when he was arrested. We conclude, however, that the circumstances in this case are distinguishable from those in Arbelo, Mierez and Davis because here Weisgerber testified that on the basis of his training and experience, he observed what he believed were drugs and money pass between the defendant and the driver, and immediately radioed the arrest team that he suspected that a drug transaction had taken place. Furthermore, the object later found on the driver fit the description of the object that Weisgerber had observed the defendant give to the driver during the transaction.

The defendant also argues that the present case differs from State v. Bowens, 24 Conn. App. 642, 649, 591 A.2d 433, cert, denied, 220 Conn. 906, 593 A.2d 971 (1991), and State v. Baskins, 12 Conn. App. 313, 317, 530 A.2d 663, cert, denied, 205 Conn. 811, 532 A.2d 586 (1987), in which this court found that the evidence was sufficient to support the guilty verdicts. He asserts that the facts in this case are unlike those in Baskins and Bowens because Weisgerber did not see the defendant obtain the object allegedly exchanged in the transaction, the arrest team recovered neither drugs nor money from the defendant and the buyer of the drugs did not confirm any details of the alleged sale by the defendant. We conclude, however, that these distinctions are far less significant than the fact that Weisgerber observed a small white object pass from the hands of the defendant to the driver in exchange for currency, and that a similar object was found shortly thereafter in a pocket of the driver’s coat. We, therefore, remain unpersuaded that the evidence was insufficient to prove beyond a reasonable doubt that the defendant sold narcotics and that the court improperly denied the defendant’s motion for judgment of acquittal.

The defendant maintains that proof beyond a reasonable doubt requires that the evidence exclude every reasonable hypothesis of innocence. In his brief, the defendant cites testimony to the effect that he had not been observed making any narcotics transactions on February 8, 1996, the evening that he was arrested, that drug dealers typically make more than one transaction per night and that Weisgerber observed him allegedly make only one transaction on the night of February 1, 1996. He also points out that the driver never identified the person who sold him the narcotics and that no attempt was made to confirm that the defendant was the seller. He further notes that Weisgerber testified that a narcotics seller typically keeps a “stash” of narcotics in an area close to where he is selling, but that he did not believe that the defendant had such a “stash” on the night of the transaction. We nonetheless reject the defendant’s position because, under our traditional scope of review of a jury verdict, “we give deference not to the hypothesis of innocence posed by the defendant, but to the evidence and the reasonable inferences drawable therefrom that support the jury’s determination of guilt.” State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994). We thus conclude that the jury properly rejected those hypotheses of innocence and reasonably found sufficient evidence of guilt.

II

The defendant next claims that he met his burden of proving, by a preponderance of the evidence, that he was drug-dependent at the time of the offense and that the state failed to rebut this evidence. He claims that a psychiatrist testified at trial that the defendant was drug-dependent on February 1, 1996, and that the testimony of the state’s rebuttal witnesses was insufficient to overcome the psychiatrist’s testimony. We disagree.

“To obtain a conviction under § 21a-278 (b), the state must prove that the defendant possessed narcotics with the intent to sell them. [T]he absence of drug dependency is not an element of the offense .... Rather, [proof of drug dependency provides] an exemption from liability that must be proved by the defendant. ... [A] person charged with sale of narcotics pursuant to § 2 la-278 (b) is presumed not to have been drug-dependent, but may avoid liability under § 21a-278 (b) by proving by a preponderance of the evidence that he was drug-dependent at the time of the offense. . . .

“Whether the defendant met his burden is for the jury to determine. It is without question that the jury is the ultimate arbiter of fact and credibility. ... As such, it may believe or disbelieve all or any portion of the testimony offered. . . .

“A trier of fact is free to reject testimony even if it is uncontradicted . . . and is equally free to reject part of the testimony of a witness even if other parts have been found credible. . . . It is axiomatic, however, that, in rejecting such testimony, a fact finder is not free to conclude that the opposite is true.” (Citations omitted; internal quotation marks omitted.) State v. Bradley, 60 Conn. App. 534, 543-44, 760 A.2d 520, cert, denied, 255 Conn. 921, 763 A.2d 1042 (2000).

The following additional facts are necessary to our resolution of this claim. At trial, the defendant presented the testimony of Jay Berkowitz, a psychiatrist qualified as an expert in drug and alcohol dependency. Berkowitz testified that he had evaluated the defendant on March 7,1997, during an initial “intake examination” for persons entering jail, and again on November 11, 1997, at defense counsel’s request, and that the defendant admitted to extensive and long-term use of marijuana and alcohol. On the basis of these evaluations, Berkowitz offered the opinion that the defendant was drug-dependent on February 1, 1996. Berkowitz conceded, however, that he based his opinion solely on the defendant’s own statements and that he did not inquire further into the defendant’s medical records, did not conduct any medical tests on the defendant and saw no physical signs of alcohol or drug dependency on either day that he evaluated the defendant, despite the defendant’s statement that he smoked five to ten blunts of marijuana and drank about two quarts of vodka daily.

In rebuttal, the state presented the testimony of John Sacco, a certified substance abuse counselor. Sacco testified that he had met with the defendant on August 4, 1995, and that he had observed no physical signs of substance abuse. Sacco also testified that the defendant denied using drugs or alcohol and that a urine sample that the defendant had provided was negative for both substances. Wilma Davidson, the defendant’s probation officer, who was not a certified counselor but who met with the defendant on a monthly basis in 1995 and 1996, also testified for the state that the defendant never appeared to be under the influence of drugs or alcohol and that he denied using those substances.

“The credibility of expert witnesses and the weight to be given to their testimony and to that of lay witnesses ... is determined by the trier of fact. ... In its consideration of the testimony of an expert witness, the trial court might weigh, as it sees fit, the expert’s expertise, his opportunity to observe the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them. . . .

“It is well settled that the trier of fact can disbelieve any or all of the evidence proffered . . . including expert testimony, and can construe such evidence in a manner different from the parties’ assertions.” (Citations omitted; internal quotation marks omitted.) State v. DeJesus, 236 Conn. 189, 201, 672 A.2d 488 (1996). Construing the evidence in the present case in the light most favorable to sustaining the verdict, we conclude that it was not unreasonable for the jury to have found the testimony of Sacco and Davidson more credible and compelling than the testimony of Berkowitz, who had relied exclusively on the defendant’s own statements and had failed to seek corroborating evidence of the defendant’s alleged drug and alcohol abuse. Accordingly, we conclude that it was reasonable for the jury to reject Berkowitz’s opinion and that the defendant did not meet his burden of proving, by a preponderanee of the evidence, that he was drag-dependent at the time of the offense.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance . . . and who is not at the time of such action a drug-dependent person . . . shall be imprisoned not less than five years nor more than twenty years . . . .”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section . . . 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section . . . 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . .”

       Weisgerber testified that the vehicle was apprehended “a couple minutes later,” while another officer who had arrested the driver testified that three or four minutes elapsed between the radio report and the arrest.

       In State v. Arbelo, supra, 37 Conn. App. 160, no state’s witness observed drugs or money pass between the defendant and the buyer. In State v. Mierez, supra, 24 Conn. App. 546,553, police officers observed the defendant exchange small items with pedestrians and passing drivers, but did not observe what the items were and did not see any currency change hands. In State v. Davis, supra, 38 Conn. App. 625, none of the witnesses observed the defendant give drugs to the buyer.

       “A blunt typically is a small cigar that is hollowed out and filled with illy and smoked in the manner of a marijuana cigarette.” (Internal quotation marks omitted.) State v. Billie, 250 Conn. 172,177 n.10, 738 A.2d 586 (1999).


author: SPEAR, J. LAVERY, C. J.,

text:
    RICHARD N. CAFRO ET AL. v. LAWRENCE P. BROPHY ET AL.
    (AC 18478)
    Lavery, C. J., and Spear and Mihalakos, Js.
    Argued April 4, 2000
    officially released March 6, 2001

      Hugh F. Keefe, for the appellants (defendants).

      Matthew J. Collins, for the appellees (plaintiffs).
   Opinion

SPEAR, J.

The defendants appeal from the judgment, rendered after a trial to the court, in favor of the plaintiffs, Richard N. Cairo and Janey L. Cairo, on their claim that the defendants breached certain warranties when they sold a house to the plaintiffs. The defendants’ reviewable claims are that the court improperly (1) allowed rebuttal evidence through an expert witness whom the plaintiffs had not timely disclosed and limited surrebuttal, (2) ruled that the alleged defects were discovered prior to the expiration of the warranties, (3) ruled that a disclaimer of warranties in the sales contract was ineffective and (4) based its award of attorney’s fees under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., on conduct that was not alleged in the complaint. We agree with the defendants’ claim pertaining to improper rebuttal testimony and reverse the judgment of the trial court.

The court found the following facts. The plaintiffs brought this action against the defendants in connection with the construction and sale of a single family home. On October 20,1993, the plaintiffs and the named defendant, Lawrence P. Brophy, signed a sales agreement for the sale of real property at 263 High Street in Coventry for $218,000. Paragraph five of their agreement stated that the “buyer accepts home without any warranty express or implied except for the following: seller shall warranty for a period of one year, the structural integrity of [the] residence and that the major mechanical systems are operational.” When Brophy signed the agreement, he substituted the word “frame” for the word “integrity,” and the change was initialed by all parties so that the express warranty was limited to the “structural frame” of the dwelling rather than to its “structural integrity.” Title was transferred on November 30, 1993.

The parties engaged in a contentious closing because Brophy insisted that the property was being sold in an “as is” condition subject only to the limited express warranty. The plaintiffs believed that the contractual warranty was an additional benefit that merely supplemented the defendants’ obligations that the buyers assumed were naturally implicit in the sale of any new home by a builder to its new owners. Eventually, the closing was completed.

The court found that the defendants had breached the express and implied new home warranties found in General Statutes §§ 47-116 through 47-121. The court ruled that the disclaimer of warranty in paragraph five of the sales agreement was defective in that it did not set out in detail “the warranty to be excluded,” as required pursuant to § 47-118 (d). The court concluded that the plaintiffs were therefore entitled to the protection of the statutory warranties of workmanlike construction and habitability. The court found the testimony of the plaintiffs’ expert, Michael Culmo, to be very credible and discounted that of the defendants’ expert, Barry Steinberg, because he had done so much work for the defendants.

The court found that the house had to be demolished from the second floor upward and replaced with a properly constructed superstructure that meets the requirements of the building code. The court awarded the plaintiffs $180,000 in damages for breach of the warranty and $25,231.50 on the CUTPA claim based on the attorney’s fees that they incurred in prosecuting their claims to judgment. This appeal followed.

I

The defendants claim that the court improperly allowed Culmo, an engineer who was retained by the plaintiffs and disclosed for the first time near the conclusion of the defendants’ case, to testify as an expert witness in the plaintiffs’ rebuttal case. Culmo’s testimony was that the structure was defective, not compliant with the building code, and that it would have to be demolished from the second floor framing upward and rebuilt at a cost of $180,000.

Practice Book § 13-4 (4) provides in relevant part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all parties within a reasonable time prior to trial. ... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection . . . such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party . . . .”

Near the conclusion of the defendants’ case, the plaintiffs disclosed that they intended to call Culmo to testify in their rebuttal case. The defendants objected to that disclosure after the plaintiffs had rested their case-in-chief. The defendants claimed that the allowance of such testimony would be prejudicial to them. The court allowed Culmo to testify in rebuttal to the defendants’ evidence. We agree with the defendants that such testimony should have been precluded.

Whether to admit rebuttal evidence rests within the sound discretion of the trial court. Mezes v. Mead, 48 Conn. App. 323, 331, 709 A.2d 597 (1998). Our standard of review of the defendants’ claim is that of whether the court abused its discretion in allowing this expert testimony. Id., 332. “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... It goes without saying that the term abuse of discretion . . . means that the ruling appears to have been made on untenable grounds. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Whalen v. Ives, 37 Conn. App. 7, 21, 654 A.2d 798, cert, denied, 233 Conn. 905, 657 A.2d 645 (1995).

Whether the house was structurally sound was a hotly contested issue in the trial. It was Culmo’s testimony that the court apparently found persuasive in concluding that the structure would have to be demolished from the second floor upward at a cost of approximately $180,000. That was the exact estimate that Culmo gave in his testimony. That testimony, for which the defendants could not have been properly prepared, literally destroyed their case.

This case is almost on all fours with the facts of Pie Plate, Inc. v. Texaco, Inc., 35 Conn. App. 305, 645 A.2d 1044, cert, denied, 231 Conn. 935, 650 A.2d 172 (1994). In Pie Plate, Inc., the trial court precluded the testimony of the plaintiffs’ expert, Dan Buzea, in the plaintiffs’ case-in-chief because of a late disclosure of Buzea as an expert. “During the defendant’s case-in-chief, one of the defendantf’s] experts, Dennis Waslenchuk, relied on a report prepared by Buzea. On rebuttal, the plaintiffs offered Buzea’s testimony regarding his report and his opinion regarding the source of the contamination on the basis of the report. The trial court again refused to permit Buzea to testify as an expert. The trial court did, however, grant permission for him to testify to the facts underlying his report. . . . The plaintiffs chose not to present Buzea at all.” Id., 310.

Here, dining the defendants’ case-in-chief, the defendants’ expert testified about a report prepared by Culmo. The court then allowed Culmo to testify in rebuttal. In Pie Plate, Inc., we stated that “[t]he policy behind restrictions on the presentation of rebuttal testimony is that a plaintiff is not entitled to a second opportunity to present evidence that should reasonably have been presented in [its] case-in-chief. . . . We conclude that the trial court did not abuse its discretion by preventing Buzea from testifying as an expert on rebuttal. The plaintiffs had not disclosed him as a potential expert witness prior to trial. Thus, absent adequate time in which to prepare, the defendant would have been prejudiced.” (Internal quotation marks omitted.) Id., 310-11.

The plaintiffs’ argument that the court did not abuse its discretion is unpersuasive. The plaintiffs assert that the defendants failed to depose another expert whom the plaintiffs had disclosed and that the defendants’ made a late disclosure of their own expert. Their argument that the defendants’ failure to depose the other expert probably meant that they would not have deposed Culmo is unavailing. It is up to a party to determine whom to depose. The plaintiffs offer no authority in support of their assertion that simply because a defendant makes a late disclosure, the plaintiffs should be allowed a late disclosure for rebuttal. They also point to the fact that the defendants’ expert testified at length regarding Culmo’s report. As in Pie Plate, Inc., that factor is unavailing. The plaintiffs alleged that the structure of the building was defective and had the opportunity to present Culmo’s testimony in support of that claim in their case-in-chief.

We conclude that the court abused its discretion in allowing an expert who was first disclosed near the end of the defense case to testify in rebuttal in support of a claim that was part of the plaintiffs’ case-in-chief. Although we reverse the judgment and order a new trial, we will discuss certain other claims made by the defendants because they are likely to arise in the new trial.

II

The defendants claim that there was no breach of any warranty because the alleged defects in the plaintiffs’ house were not discovered prior to the expiration of the warranties. The defendants assert that the express warranty in the contract was limited to one year, and that the express and implied warranties pursuant to §§ 47-117 and 47-118 had expired before the plaintiffs discovered the alleged defects. That claim is without merit.

The court found that the plaintiffs took title to the house on November 30, 1993. The court also found that counsel for the plaintiffs notified the defendants on July 26, 1994, of the structural defects of their home, and on September 2, 1994, the plaintiffs’ counsel notified the defendants of the plaintiffs’ complaints about the other specific defects in the house. On the basis of those findings, the court properly concluded that the defects were discovered and that the defendants had been advised of the defects within the one year warranty period.

III

The defendants claim that the disclaimer in the sales contract effectively disclaimed all warranties, including the new home warranties pursuant to §§ 47-117 and 47-118. Section 47-117 (c) provides in relevant part: “No words in the contract of sale . . . shall exclude or modify any express warranty made pursuant to subsection (a) of this section. . . .” The defendants offer no authority in support of their claim that the express warranties of § 47-117 were effectively disclaimed. They merely assert that the disclaimer had that effect. The defendants’ claim is obviously without merit on the basis of the clear language of the statute.

General Statutes § 47-118 (d), relating to implied warranties, provides: “Neither words in the contract of sale, nor the deed, nor merger of the contract of sale into the deed is effective to exclude or modify any implied warranties, provided, if the contract of sale pertains to an improvement then completed, an implied warranty may be excluded or modified wholly or partially by a written instrument, signed by the purchaser, setting forth in detail the warranty to be excluded or modified, the consent of the purchaser to the exclusion or modification, and the terms of the new agreement with respect to it.” The defendants claim that all of the requirements for exclusion set out in § 47-118 were met. We disagree.

The court ruled that the disclaimer was deficient in that it did not “set forth in detail ‘the warranty to be excluded’ as required under General Statutes § 47-118 (d). . . .” The defendants concede that they have found no appellate authority in this state with respect to the requirements for a disclaimer pursuant to § 47-118 (d).

We conclude that the legislative intent was clearly expressed in the words of § 47-118 (d). “If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature’s intent.” (Internal quotation marks omitted.) State v. DeFrancesco, 235 Conn. 426, 435, 668 A.2d 348 (1995). Section 47-118 (d) expressly provides that an effective disclaimer must set “forth in detail the warranty to be excluded or modified . . . .” The purported disclaimer here sets forth nothing about the warranties to be excluded. The statement that all warranties are excluded tells the buyer absolutely nothing. The language of the purported disclaimer falls so far short of complying with the disclaimer provisions of the statute that it warrants no further discussion.

IV

The defendants also claim that the court found a CUTPA violation on the basis of claims that the plaintiffs never made. Specifically, the defendants claim that the court’s finding that the “defendants knowingly sold the plaintiffs a house with a number of serious defects” as a basis for the CUTPA violation was improper in that the plaintiffs never made such an allegation.

Our review of the record discloses that in the third count of the plaintiffs’ complaint, they alleged that “prior to and at the time of sale of the property, the defendants knew or should have known said defects existed with the property and yet they continued to falsely represent to the plaintiffs that the property was free from said defects.” (Emphasis added.) We construe that allegation as sufficient to allege that the defendants “knowingly sold the plaintiffs a house with a number of serious defects.”

The judgment is reversed and the case is remanded for a new trial.

In this opinion MIHALAKOS, J., concurred.

LAVERY, C. J.,

dissenting. On the basis of the procedural history of this case, I respectfully dissent from part I of the majority’s opinion. Contrary to the majority’s view, the trial court did not abuse its discretion by permitting the testimony of the plaintiffs expert, Michael Culmo, on rebuttal, and Culmo’s testimony was not prejudicial to the defendants.

The transcript of the trial demonstrates that both counsel for the parties failed to comply timely with the requirements of our rules of practice with respect to amended pleadings and the disclosure of expert witnesses. Apparently, the plaintiffs timely disclosed Timothy Foreman, a builder and an inspector, as an expert witness who testified during the plaintiffs’ case-in-chief. Approximately five weeks before trial, the plaintiffs moved to amend their complaint to allege the defects to the structural frame of the house at issue in this appeal. The defendants did not object to the amendment in a timely fashion. During trial, the defendants disclosed that Barry Steinberg, a structural engineer, would testify as an expert witness. Thereafter, the plaintiffs disclosed Culmo, a structural engineer, to rebut Steinberg’s testimony. Although the defendants objected strenuously, the court permitted Culmo to testify. The court also permitted the defendants to introduce additional testimony from Steinberg in surrebuttal.

“It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling. . . . State v. Orhan, 52 Conn. App. 231, 237, 726 A.2d 629 (1999). Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [appellant] of substantial prejudice or injustice. State v. Hernandez, 204 Conn. 377,390,528 A.2d 794 (1987).” (Internal quotation marks omitted.) Baughman v. Collins, 56 Conn. App. 34, 35-36, 740 A.2d 491 (1999), cert, denied, 252 Conn. 923, 747 A.2d 517 (2000). “[Our courts] will not overturn the trial court’s evidentiary rulings in the absence of a showing that the trial court clearly abused its discretion and that the ruling likely affected the court’s ultimate detemaination.” Connecticut Associated Builders & Contractors v. Hartford, 251 Conn. 169, 190, 740 A.2d 831 (1999).

My view, based on my reading of the transcript, is that the patience of the trial judge was sorely tested by the lack of pretrial preparation on the part of trial counsel. The court accommodated the late disclosure of expert witnesses by both sides, and permitted rebuttal and surrebuttal testimony to avoid prejudice to all concerned. Furthermore, the evidence elicited from Culmo was relevant and was not prejudicial to the defendants.

Prejudicial evidence is not evidence that is merely damaging. Culmo’s testimony was relevant because it pertained to the structural integrity of the house, the central issue in the case. Relevant evidence should be excluded in situations “where the evidence offered and the counterproof will consume an undue amount of time [or] where the defendant, having no reasonable ground to anticipate the evidence, is unfairly smprised and unprepared to meet it. ” State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). In this case, CuJmo’s relevant testimony was permissible because it did not consume an undue amount of time and did not surprise the defendants. Indeed, Culmo’s testimony was no surprise to the defendants because they knew that the structural integrity of the house was at issue.

I also am of the opinion that the majority has confused prejudicial evidence with evidence that is merely damaging. “All evidence adverse to a party is, to some degree, prejudicial. To be excluded, the evidence must create prejudice that is undue and so great as to threaten an injustice if the evidence were to be admitted.” (Emphasis in original.) Chouinard v. Marjani, 21 Conn. App. 572, 576, 575 A.2d 238 (1990). All of the experts testified that the structure of the house was compromised to some degree; the issues concerned the extent of repairs necessary to correct the problems and their related costs. The court heard evidence concerning the cost of the repairs, which ranged from less than $10,000 — Steinberg’s testimony — to more than $200,000. Culmo’s estimate was neither the high nor the low figure before the court. I cannot overlook the fact that the court gave the defendants the opportunity to present surrebuttal evidence on the cost of repairs. I therefore conclude that the defendants’ claim before this court that the trial court abused its discretion with respect to the admission of expert testimony by Culmo is without merit.

For those reasons, I respectfully dissent from part I of the majority’s opinion, and I would affirm the judgment of the trial court.

       Lawrence P. Brophy, John G. Ahem and Frank W. Perrotti, Jr., are the defendants in this action.

       The defendants make the following claims:
      “I. Did the trial court err in holding that the defendants breached the express warranty contained in the sales contract and any implied warranty relating to the structural framework of the house when the purported defects in the plaintiffs’ home were not discovered prior to the expiration of these warranties? . . .
      “II. Did the trial court err in holding that the plaintiffs’ warranty claims concerning the structure of their home were not time-barred when they were first asserted nearly three and a half years following plaintiffs’ purchase of their home? . . .

        “III. Did the trial court err in holding that the warranty disclaimer contained in the sales contract between the parties was legally ineffective when it was clear, conspicuous, signed by the plaintiffs, the result of actual negotiation between the parties, supported by substantial financial consideration and the language was actually provided by the plaintiffs themselves? . . .
      “IV. Even assuming the contractual warranty disclaimer was ineffective, did the trial court err in holding that the defendants breached any implied warranties? . . .
      “V. Did the trial court err in allowing the rebuttal testimony of plaintiffs’ experts Michael Culmo and Timothy Foreman? . . .
      “VI. Having chosen to allow rebuttal testimony by Mr. Culmo and Mr. Foreman, did the trial court err in refusing to permit the defendants to offer surrebuttal evidence rebutting it? . . .
      “VII. Did the trial court err in crediting the testimony of Michael Culmo and Timothy Foreman? . . .
      “VIII. Did the trial court, err in awarding damages based on Mr. Culmo’s admittedly speculative testimony, and in ignoring the testimony of both Mr. Culmo and [the defendants’ expert, Barry] Steinberg that the purported structural defects to which Mr. Culmo testified could be remedied for approximately $4000 rather than the $180,000 awarded by the trial court? . . .
      “IX. Did the trial court err in excluding [the named defendant Lawrence P.] Brophy’s proffered testimony concerning an unconditional offer to replace the plaintiffs’ roof at no cost to them? . . .
      “X. Did the trial court err in finding that the defendants had violated CUTPA?
      “A. Did the trial court err in finding a CUTPA violation on the basis of claims never made by the plaintiffs? . . .
      “B. Did the trial court err in drawing inferences in support of its view that defendants knowingly sold plaintiffs a defective house when those inferences were not reasonable based upon the evidence? . . .
      “C. Did the trial court err in drawing an adverse inference from the defendants’ decision not to call John G. Ahern as a witness when such an inference was factually and legally untenable? . . .
      “D. Did the trial court err in holding that it was immoral, unethical, oppressive or unscrupulous for the defendants to rely on warranty disclaimer language which they reasonably believed to be legally effective?”
      We decline to review claims II and X (D) because the court made no findings with reference to those claims, and the defendants failed to file a motion seeking articulation. See Practice Book § 66-5. The record, therefore, is inadequate for us to review. See Practice Book § 61-10.
      We also decline to review claim IX with respect to Brophy’s testimony. The defendants failed to follow Practice Book § 67-4 (d) (3), which provides:

        “When error is claimed in any evidentiary ruling in a court or jury case, the brief or appendix shall include a verbatim statement of the following: the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; and the ruling.”
      Claims IV, VII, VIII and X (B) involve the court’s credibility determinations and its decision as to breach of warranty and damages. Because we order a new trial, it is obviously unnecessary to address those claims.
      Although we ordered supplemental briefing on claim X (C), we conclude that no review is necessary. It is unlikely that this issue will arise in the same legal and factual posture in the new trial. After the trial in this case, the “missing witness” jury instruction was eliminated in civil cases by General Statutes § 52-216c and precluded in criminal cases by State v. Malave, 250 Conn. 722, 737 A.2d 442 (1999) (en banc), cert, denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000). We do not know if there will be any “missing witness” in the new trial or, if there is, whether the court will draw any adverse inference.
      We address claim V in the first issue we discuss. Because we find claim V dispositive of this appeal, we do not reach claim VI. We also address claims I, III and X (A) because they will likely arise in the new trial.

       The defendants also argue that even if the court did not abuse its discretion in permitting Culmo to testify, the judgment must be reversed because the court thereafter improperly refused to allow them to present surrebuttal testimony. Because we conclude that the court abused its discretion in permitting Culmo to testify, we need not reach the defendants’ claim pertaining to surrebuttal testimony.

       General Statutes §47-117 (d) provides in relevant part: “An express warranty shall terminate: (1) In the case of an improvement completed at the time of the delivery of the deed to the purchaser, one year after the delivery or one year after the taking of possession by the purchaser, whichever occurs first . . .

       General Statutes § 47-118 (e) provides in relevant part: “The implied warranties created in this section shall terminate: (1) In the case of an improvement completed at the time of the delivery of the deed to the purchaser, one year after the delivery or one year after the taking of possession by the purchaser, whichever occurs firsf.....”

       The plaintiffs note in their principal brief that “those jurisdictions which have addressed the issue in terms of either the implied warranty of habitability or a comparable statute have declined to find a waiver absent a conspicuous provision which fully discloses the consequences of its inclusion, but also that such was in fact the agreement reached. Crawford v. Whitaker Construction, Inc., 772 S.W.2d 819, 822 (Mo. App. 1989). See also Pontiere v. JamesDinert, Inc., 426 Pa. Super. 576, 582, 627 A.2d 1204 (1993) (builder-vendor may not exclude the implied warranty of habitability absent particular language which is designed to put the buyer on notice of the rights he is waiving), appeal denied, 537 Pa. 623, 641 A.2d 588 (1994); Starfish Condominium Assn. v. Yorkridge Service Corp., 295 Md. 693, 702, 458 A.2d 805 (1993) (contract asserting that property, appliances and fixtures bought as is lacked statutorily required specificity); Casavant v. Campopiano, 114 R.I. 24, 327 A.2d 831 (1974); Dewberry v. Maddox, 755 S.W.2d 50, 55 (Train. App. 1988) (waiver of implied warranties requires clear and unambiguous language in contract and notice to buyer of warranty protections being waived, and language of acceptance in its existing condition, no warranties or representation having been made by seller deemed insufficient).” (Internal quotation marks omitted.)

       The following colloquy took place on the day trial was to commence:
      “[The Court:] And I understand, [plaintiffs’ counsel, Matthew J.] Collins, that you filed a request to amend your complaint, and I believe it’s the first request that has been made, isn’t it, Mr. Collins?
      “[Plaintiffs’ Counsel]: Yes, it is, Your Honor.
      sk sk sk
      “[The Court:] The objection is dated today and states that the amended complaint adds new allegations of defects to the structural frame. Can you tell me what they are?
      “[Defendants’ Counsel, Allen A. Marko]: The allegations are that the floor is sloping, and the frame of the house has shifted, causing doors no longer to be able to close and causing the floors to crack.
      “This is the first time allegations in the complaint have been made as to the actual structural frame and, therefore, Your Honor, because it is adding an entirely new part of the claim, we are requesting a continuance.
      “This now reopens a part of the pleadings. While the time limit for objecting may have gone by, I still have time to file an answer and special defenses to that, and I’m also requesting time to have a structural engineer investigate this new claim. And the Practice Book section on amendments does allow the court to limit amendments or to add special orders to amendments that are allowed in the interest of justice, and I believe that in this case, where the amendment is coming so close to the trial date, I think that in the interest of justice and equity, it’s required that we be given the time to properly investigate this claim coming out for the first time.
      “The Court: Mr. Collins, first of all, is this the first claim of defects to the structural frame?
      * * *
      “[Plaintiffs’ Counsel]: Yes — that is, in regard to the structure of the roof. . . . [That has] been the big issue in the case.
      “[The Court:] And by the way, who will be your expert with regard to the framing, the same expert? The same expert you will have for the roof?
      “[Plaintiffs’ Counsel]: Yes, yes. In fact, what precipitated this was we went back, he examined the house, and the house appears to be sagging, appears to be obviously in worse condition than it was.
      “The Court: And when did you become aware of that?
      “[Plaintiffs’ Counsel]: It was probably the day or two before I filed the amended complaint.
      “The Court: All right. And were you there in the company of the expert?
      “[Plaintiffs’ Counsel]: Yes, I was.
      “The Court: And would you tell me the name of the expert?
      “[Plaintiffs’ Counsel]: Timothy Foreman.
      “[Defendants’ Counsel]: Your Honor, the plaintiffs had filed a disclosure of expert. In that disclosure, they provided the expert’s opinion. There was no mention made of these issues. These are coming up for the very first time, and there was no amendment to the notice of disclosure or the expert’s report when it’s claimed that this additional information was discovered.
      “The Court: All right. One other problem you have, Mr. Marko, is that we’re not dealing here with anything that’s discretionary. We’re talking now about Practice Book § 176 (c) [now § 10-60 (a)], and this amendment by consent, order of the court, or failure to object, and subsection (c) [now (a) (3)] says, ‘If no objection thereto has been filed by any party within fifteen days from the date of the filing,’ which would have been, I believe . . . April 5th? 'The amendment shall,’ and I read that as mandatory .... And I would indicate that for that reason, and that is the principal reason, the objection is overruled.
      * * *
      “[The Court:] I would indicate, however, it’s without prejudice to request on your part — to make evidentiary objections to the line of questioning, to this line of questioning with regard to structural defects .... Do you have an opposing expert, Mr. Marko?
      “[Defendants’ Counsel]: We have a person who was to come in, an architect, but not on this issue.
      “The Court: Not on this issue?
      “[Defendants’ Counsel]: No.
      “The Court: All right. I would suggest strongly that you advise him or try to obtain a qualified person in that regard. And for that purpose, I assume, Mr. Collins, the structure will be available to anyone that Mr. Marko designates to examine it.
      “[Plaintiffs’ Counsel]: Yes.”

       After several days of evidence, the following colloquy took place:
      “The Court: We’re now resuming the Cafro matter, and I would point out . . . There’s just been filed a disclosure of expert witness. I think you have it, do you not, Mr. Collins?
      “[Plaintiffs’ Counsel]: Yes, I just received it.
      “The Court: All right. And this is in regard to Barry Steinberg. And was that inspection conducted with both attorneys present on Saturday?
      “[Defendants’ Counsel]: It was conducted Monday morning, Your Honor. I was not present. . . :
      * * *

      “[Plaintiffs’ Counsel]: I was not able to be present.
      * * *
      “The Court: All right. . . . Why don’t you just put on the record, Mr. Collins, what you indicated to me about a comparable witness that you had contacted.
      “[Plaintiffs’ Counsel]: Yes, Judge. Mr. Cafro over the weekend had a structural engineer by the name of Culmo, Michael Peter Culmo, do an assessment of the house and he generated a report which I’ve given to counsel, which is very particular in its examination and in its conclusions, and I would ask that—
      “The Court: Let me ask you this, Mr. Collins. I suppose that was in connection with the retention of Mr. Steinberg?
      “[Plaintiffs’ Counsel]: Yes.
      “The Court: As I indicated to counsel in chambers, much of the preparatory work with regard to expert testimony is being accomplished while the trial is going on, and I’m talcing judicial notice of that due to circumstances beyond our control.
      “I would indicate at this point in time that I would at least, I’d like to have counsel review those two reports, and I would also indicate that after you have reviewed them, if counsel believe it will be in the interest of a full airing of all of the critical issues in this case upon which the court will have to rule, the court would be inclined, particularly if counsel can agree, to allow that additional evidence to have been given in spite of the fact that, as I’ve stated to you, the ordinary rules with regard to disclosure of expert witnesses prior to trial have been more [breached than honored] in the observance, as I’ve indicated to you in chambers.”

       I also note that the court viewed the subject premises at the conclusion of testimonial evidence.

       The court explained its reasons for allowing all of the experts to testify in open court:
      “The Court: But it would seem to me in fairness, in order not to — to avoid a proliferation of experts where there weren’t any up until a few days before the trial would not be in the interest of efficiently disposing of this case; you understand that?
      * ** *
      “The confusion in this case has been generated by the conspicuous lack of preparation on the part of two of the three attorneys involved in this case, and I’m stating that now in the presence of your clients.”


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. PATSY RUSSO
    (AC 19709)
    Foti, Schaller and O’Connell, Js.

      Argued October 24, 2000
    officially released March 6, 2001

      Joaquina Borges King, special public defender, for the appellant (defendant).

      RitaM. Shair, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Mark Brodsky, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Patsy Russo, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes (Rev. to 1997) § 14-227a (a) (l). The defendant’s sole claim is that the trial court improperly admitted testimony regarding the results of a horizontal gaze nystagmus (HGN) test without requiring that the state satisfy the criteria for the admission of scientific evidence as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 16, 1998, at approximately 6:45 p.m., Arliss Gamble was sitting in his vehicle, which was parked on the side of Craigmore Road in Bloomfield. Gamble noticed another vehicle, operated by the defendant, traveling toward him. The defendant’s vehicle collided head on with Gamble’s vehicle.

Thereafter, Officer Eric Kovanda of the Bloomfield police department arrived at the accident scene. Kovanda approached the defendant, who was still in his vehicle. After some initial observations, Kovanda suspected that the defendant was intoxicated because his breath emitted a strong odor of alcohol. The defendant’s speech was slurred and his eyes were glassy. When Kovanda asked the defendant for his driver’s license, the defendant had trouble retrieving it from his rear pocket. Kovanda, at that point, requested that the defendant step out of his vehicle. Once out of his vehicle, the defendant had difficulty keeping his balance and swayed back and forth. The defendant admitted that he had been drinking beer and rum since noon.

Kovanda then administered several field sobriety tests. First, he asked the defendant to recite the alphabet from Ato P. Despite those specific instructions, the defendant recited the entire alphabet from A to Z and slurred the letters M, N, O and P. Second, Kovanda instructed the defendant to perform the “four-finger test.” Kovanda twice demonstrated to the defendant how to perform that test. Under the test, the defendant had to touch his thumb to each of his fingers while counting from one to four and back. The defendant, again ignoring Kovanda’s instructions, simply made a fist and counted to four. Third, Kovanda required the defendant to count backward from fifty-seven to forty-eight. Without even attempting to do so, the defendant responded that he could not complete that test.

Finally, Kovanda conducted an HGN test on the defendant. To conduct that test, Kovanda placed an object — his finger — approximately fifteen inches in front of the defendant’s eyes. Kovanda asked the defendant to track the object from side to side as far as his maximum sideways gaze (maximum deviation) would allow without moving his head. While doing so, Kovanda observed the reaction of each eye in three respects: (1) whether the eye exhibited “smooth pursuit”; (2) whether the eye exhibited “jerkiness” at “maximum deviation”; and (3) whether the eye exhibited jerkiness “prior to forty-five degrees” as the object moved toward the maximum deviation point. Kovanda noticed that the defendant’s eyes exhibited “jerkiness.” On the basis of the defendant’s demeanor, and his performance on the HGN test and the other field sobriety tests, Kovanda concluded that the defendant was under the influence of alcohol or drugs.

Thereafter, Kovanda placed the defendant under arrest and transported him to the police department. Upon arriving at the police department, the defendant agreed to take a test on a Breathalyzer machine. The defendant’s attempt at utilizing that machine, however, was unsuccessful because he did not properly follow Kovanda’s instructions. As a result, Kovanda was unable to register an accurate reading on the machine. Kovanda asked the defendant to take a urine test instead, but the defendant refused to take any more tests.

At trial, the state called Kovanda to testify about his observations of the defendant’s demeanor and performance on the sobriety tests, including the HGN test. The defendant, however, objected to the introduction of Kovanda’s testimony regarding the HGN test and its results because the state did not establish the proper foundation for the admission of scientific evidence as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 593-94. Nevertheless, the court permitted the testimony without such a foundation, reasoning that HGN testing was not scientific evidence and stating: “I’m going to allow the officer to testify [about the HGN testing because] I feel that it’s . . . not really, in my book, a really classic scientific test.” The jury found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor, and this appeal followed.

The defendant claims that the court improperly admitted Kovanda’s testimony regarding the HGN test and its results without requiring that the state satisfy the criteria for the admission of scientific evidence as set forth in Daubert. We agree.

As a threshold matter, we note the proper standard of appellate review applicable to a trial court’s determination on evidentiary matters. “Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.

. . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) Bunting v. Bunting, 60 Conn. App. 665, 670, 760 A.2d 989 (2000).

The defendant argues that under State v. Merritt, 36 Conn. App. 76, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995), the court abused its discretion by concluding that HGN testing was not scientific evidence. The state contends that Merritt is no longer valid in light of our Supreme Court’s recent decision in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert, denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). The dispositive issue, therefore, is whether Porter overruled Merritt.

To resolve that issue, a clarification of the relevant case law is necessary. In 1994, this court decided Merritt, the facts of which are similar to those in the present case. In Merritt, the trial court admitted testimony regarding the HGN test and its results without requiring that the state satisfy the criteria for the admission of scientific evidence. We concluded that “the HGN test and its results are based on a scientific principle, namely, that there is a discemable correlation between the increased incidence of and the angle of the onset of nystagmus and alcohol consumption.” State v. Merritt, supra, 36 Conn. App. 90. We further noted that “the HGN test [is] unfamiliar to jurors, and a juror would not be in a position to weigh the testimony concerning the HGN test and its results without abandoning common sense and sacrificing independent judgment to the expert’s assertions, which are based on understanding the technical aspects of the test.” Id., 91. We held that, prior to admission, testimony regarding HGN tests and its results are the type of scientific evidence that must comply with the then prevailing requirements in Connecticut for the admission of scientific evidence derived from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). State v. Merritt, supra, 91.

When deciding Merritt, however, we also recognized that the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 586-89, had adopted as federal law a broader test for the admission of scientific evidence and had held that the rigid rule of Frye no longer governed. State v. Merritt, supra, 36 Conn. App. 79-80 n.2. Nevertheless, we adhered to the Frye test in Merritt because our Supreme Court had not yet addressed the issue of whether Daubert had superseded Frye as a matter of state law. Id.

In 1997, however, our Supreme Court squarely addressed that issue in State v. Porter, supra, 241 Conn. 66-68. It explicitly held that “the Daubert approach should govern the admissibility of scientific evidence in Connecticut.” Id., 68.

Contrary to the state’s argument that Porter overruled Merritt, we view it as having modified Merritt. Although Porter affected the criteria for the admission of scientific evidence reiterated in Merritt, it did not affect the primary holding of Merritt. Testimony regarding HGN testing is still the type of scientific evidence that may mislead a jury in the absence of a proper foundation. Merely changing the criteria for the admission of scientific evidence has no effect on the primary holding of Merritt. Accordingly, we conclude that Porter modified Merritt so that, prior to admission, testimony regarding HGN testing is the type of scientific evidence that must comply with the now prevailing requirements in Connecticut for the admission of scientific evidence derived from Daubert.

Having clarified the law with respect to admission of testimony concerning HGN testing, we now turn our attention to the present case. The court, over the defendant’s objection, allowed Kovanda to testify regarding the results of the defendant’s HGN test without requiring the state to establish the proper foundation for the admission of scientific evidence as set forth in Daubert. Rather than conducting the proper Daubert analysis, the court simply disregarded the primary holding of Merritt by concluding that HGN testing was not scientific evidence. It stated: “I’m going to allow the officer to testify [about the HGN testing because] I feel that it’s . . . not really, in my book, a really classic scientific test.” We conclude, therefore, that the court abused its discretion in admitting Kovanda’s testimony regarding the results of the defendant’s HGN test without requiring that the state satisfy the criteria for the admission of scientific evidence as set forth in Daubert.

Our inquiry, however, does not end with the conclusion that the court abused its discretion in admitting the testimony. We also must determine whether the court’s admission of such evidence constituted harmless error. “Where an evidentiary ruling has been found to be incorrect, but the improper ruling, as here, does not implicate a constitutional right of the defendant, the burden rests on the defendant to establish the harmfulness of the claimed impropriety. State v. Chapman, 229 Conn. 529, 544, 643 A.2d 1213 (1994); State v. Merritt, [supra, 36 Conn. App. 92].

“In order to establish the harmfulness of a trial court ruling, the defendant must show that it is more probable than not that the improper action affected the result. State v. Chapman, supra, 229 Conn. 544. The question is whether the trial court’s error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court’s ruling, though erroneous, likely to affect the result? State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986); see also State v. DePastino, 228 Conn. 552, 567, 638 A.2d 578 (1994).” State v. Grenier, 55 Conn. App. 630, 643, 739 A.2d 751 (1999), cert, granted on other grounds, 252 Conn. 931, 746 A.2d 794 (2000).

In the present case, we cannot conclude that the admission of Kovanda’s testimony regarding the HGN testing and its results affected the outcome of the defendant’s trial. The jury heard other evidence from which it reasonably could have found that the defendant was intoxicated while operating his vehicle. Kovanda testified that prior to the administration of the field sobriety tests, the defendant’s breath smelled of alcohol, his speech was slurred, his eyes were glassy and he was unable to keep his balance. The defendant, according to Kovanda, also admitted to drinking beer and rum since noon. Kovanda testified that in addition to the HGN test, he administered three other field sobriety tests and that, in his opinion, the defendant failed all three. On the basis of his experience, Kovanda concluded that the defendant’s demeanor and failure of the sobriety tests indicated that he was intoxicated while operating his vehicle. The admission of Kovanda’s testimony regarding the HGN test and its results did not impede the jury’s ability to evaluate the credibility of the other evidence he offered. We cannot conclude that, absent the HGN testimony, the result of the defendant’s trial would have been different. Therefore, the court’s improper admission of the HGN testimony was harmless.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence ... if he operates a motor vehicle on a public highway of this state ... (1) while under the influence of intoxicating liquor or any drug or both . . . .”

       “Maximum deviation” represents the farthest limit of one’s sideways gaze.

       Under the rigid Frye test, parties seeking to introduce scientific evidence could do so only if they proved that the scientific methodology has gained “general acceptance” in the scientific community. Frye v. United States, supra, 293 F. 1014.

       The Daubert approach is more flexible and allows the admission of scientific evidence if it is scientifically reliable or valid. Under that approach, the United States Supreme Court enumerated four nonexclusive factors with which courts can determine whether scientific evidence is reliable. Those factors are as follows: “(1) whether [the scientific method] can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error, including the existence and maintenance of standards controlling the technique’s operation; and (4) whether the technique is, in fact, generally accepted in the relevant scientific community.” State v. Porter, supra, 241 Conn. 64, citing Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 593-94.

       Whether the HGN test satisfies the criteria of Daubert is a separate issue. Although our Supreme Court adopted the Daubert approach, it noted that the Frye test was not completely abandoned. Instead, the “general acceptance” test of Frye is “an important factor in a trial judge’s assessment.” State v. Porter, supra, 241 Conn. 84. So important, according to our Supreme Court, that “if a trial court determines that a scientific methodology has gained general acceptance, then the Daubert inquiry will generally end and the conclusions derived from that methodology will generally be admissible.” (Emphasis in original.) Id., 85. Because the court here held that the HGN test is not even subject to the Daubert analysis, we need not address the issue of whether the HGN test satisfies the Daubert criteria and, accordingly, leave that issue for another day.


author: FOTI, J.

text:
    ROGER SAUNDERS ET AL. v. ELLI STIGERS ET AL.
    (AC 20408)
    Foti, Mihalakos and O’Connell, Js.
    Argued December 14, 2000
    officially released March 6, 2001

      Joseph A. Kubic, with whom, on the brief, was James R. Winkel, for the appellant (named defendant).

      David Eric Ross, for the appellees (plaintiffs).
   Opinion

FOTI, J.

The defendant Elli Stigers appeals from the judgment of strict foreclosure, rendered by the trial court on December 20, 1999. On appeal, the defendant claims that the court improperly (1) rendered judgment, (2) granted the plaintiffs’ motion to strike the defendant’s third special defense, (3) admitted evidence of the amount of the debt, and (4) found adequate notice of default and acceleration of the debt. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. On March 28, 1994, the mortgage and note that are the subject of this foreclosure action were assigned to the plaintiffs. The subject property is known as 393 Timberlane Drive in Orange. On May 24, 1996, the plaintiffs filed an action to foreclose the mortgage. They alleged that the defendant had failed to pay real estate taxes due on the property as required under the terms of the note, thereby causing the plaintiffs to declare the balance due and payable. The defendant in her answer admitted that she was the maker of the note and mortgage, and asserted three special defenses, which alleged that the plaintiffs had breached the terms of the mortgage by applying payments toward interest only, that the plaintiffs acted unreasonably in their efforts to seek repayment and that the plaintiffs modified the terms of the note by advising the defendant to stop making tax escrow payments. The defendant also filed a counterclaim alleging (1) violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., (2) intentional infliction of emotional distress and (3) violations of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq.

The plaintiffs filed a motion to strike the special defenses and the counterclaim. The court concluded that the first and second special defenses were not proper because they attacked behavior of the mortgagee rather than attacking the note, and that the third special defense was without merit. The court, therefore, granted the plaintiffs’ motion to strike all of the defendant’s special defenses as well as the second and third counts of the defendant’s counterclaim. Nevertheless, the court denied the plaintiffs’ motion to strike the first count of the defendant’s counterclaim.

The parties thereafter filed cross motions for summary judgment and objections thereto. The court granted the plaintiffs’ motion for summary judgment as to liability only and thereafter rendered a judgment of strict foreclosure. The court denied the plaintiffs’ motion for summary judgment on the defendant’s counterclaim that alleged violations of the Fair Debt Collection Practices Act and the defendant’s motion for summary judgment, which was based on her claim that she had failed to receive proper notice of default and acceleration of the debt.

I

The defendant first claims that the court improperly rendered judgment while her counterclaim was pending. Specifically, she alleges that the court, without bifurcating the matter, improperly rendered a final judgment when it granted the plaintiffs’ motion for a judgment of strict foreclosure while the counterclaim was pending. The defendant does not argue on appeal that there was no final judgment, but rather that the court acted improperly in rendering judgment on the complaint alone without formally bifurcating the proceeding, even though neither party moved to bifurcate. In the absence of a bifurcation order, she appears to argue, the court abused its discretion by not considering the complaint and the counterclaim in the same proceeding. We do not agree.

The defendant conceded during oral argument that the sole issue in her counterclaim, brought pursuant to the Fair Debt Collection Practices Act, involved a claim for damages only and could not have affected the judgment of strict foreclosure. The court, after granting the plaintiffs’ motion for summary judgment, rendered a final judgment of strict foreclosure and allowed the defendant to proceed with her counterclaim pursuant to Practice Book § 17-51. Because the damages sought on the counterclaim were not part of the debt and may, as the court stated, relate to “something else that may have gone on,” the court did not abuse its discretion in rendering judgment on the complaint alone.

II

The defendant next contends that the court improperly granted the plaintiffs’ motion to strike her third special defense, in which she claimed that she was not in default because the plaintiffs advised her to discontinue tax escrow payments and, therefore, that the notice of default sent to her was defective pursuant to paragraph two of the mortgage. We do not agree.

“We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling ... is plenary. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996) [cert, denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed. 2d 308 (1997)]. ... We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); see also Mingachos v. CBS, Inc., 196 Conn. 91, 108-109, 491 A.2d 368 (1985). ... It is fundamental that in determining the sufficiency of a [pleading] challenged by a . . . motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted. . . . Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980).” (Citations omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000).

In granting the motion to strike the defendant’s third special defense, the court noted that the “statute of frauds requires any modification to the note and mortgage to be in writing”; see General Statutes § 52-550; and that the third special defense was legally insufficient because of the express language of paragraph ten of the mortgage and paragraph seven of the note signed by the defendant. Paragraph ten of the open end mortgage states that “[a]ny forbearance by Lender in exercising any right or remedy shall not be a waiver of or preclude the exercise of any right or remedy.” Paragraph 7 (D) of the adjustable rate note states that the defendant acknowledges that “[e]ven if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if I am in default at a later time.”

Our review leads us to conclude that the court properly construed the contractual provisions and found legally insufficient the defendant’s third special defense, which, in essence, alleged that she was not in default because she had been excused from making tax escrow payments.

III

The defendant claims that the court improperly admitted evidence through an affidavit as to the amount of the debt. We do not agree.

The defendant objected to the affidavit of debt filed by the plaintiffs, claiming that because of the counterclaim, the affidavit was improper and was precluded by Practice Book § 23-18 (a). The court construed the language of that section to refer to a setoff or counterclaim “thereto,” which specifically refers to the debt as set forth in the affidavit. Because the defendant’s counterclaim is a separate claim and does not affect the mortgage debt, an affidavit of debt would be allowed. Further, the defendant never amended her answer or special defenses following the court’s striking of those special defenses two and one-half years earlier. At the hearing to establish the debt, the defendant appeared to make no effort to challenge the debt figure. Counsel for the defendant, having previously received debt documentation, responded when asked by the court about an agreement on the debt amount: “Your Honor, I have no documentation to refute the numbers [the plaintiffs are] going to provide to the court.” The defendant’s statement that she could not refute or otherwise challenge the affidavit of debt allowed the court to act as it did in accepting the affidavit of debt to determine the correctness of the amount stated therein.

IV

The defendant finally claims that the plaintiffs failed to provide proper notice of default and acceleration of the debt, and, therefore, that the court improperly granted, in part, the plaintiffs’ motion for summary judgment. We do not agree.

Our standard of review of a court’s decision to grant a motion for summary judgment is well established. “Practice Book § 384 [now § 17-49] provides that summaiy 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. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 145, 727 A.2d 219 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000).

“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. ” (Internal quotation marks omitted.) Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert, denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the court rendered judgment for the plaintiffs as a matter of law, “our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). “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.” 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994).

Although the defendant admits receipt of the notice of default letter dated March 26, 1996, she claims that the notice can be characterized as deficient for two reasons. First, she claims that it failed to identify all of the options available to her to cure the default and, second, that it failed to indicate that failure to cure the default could result in the foreclosure or sale of the property.

We agree with the court’s conclusion that the default letter issued by the plaintiffs complies with the relevant notice provision of the mortgage. Paragraph nineteen of the mortgage provides the terms of the notice necessary to accelerate payments following the default. It states in relevant part: “The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and foreclosure or sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in court the non-existence of a default or any other defense of Borrower to acceleration and foreclosure or sale. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke any of the remedies permitted by applicable law.”

“Notices of default and acceleration are controlled by the mortgage documents. Construction of a mortgage deed is governed by the same rules of interpretation that apply to written instruments or contracts generally, and to deeds particularly. The primary rule of construction is to ascertain the intention of the parties. This is done not only from the face of the instrument, but also from the situation of the parties and the nature and object of their transactions.” (Internal quotation marks omitted.) Citicorp Mortgage, Inc. v. Porto, 41 Conn. App. 598, 602, 677 A.2d 10 (1996).

The notice explicitly indicates that the defendant could cure the default by, inter alia, immediately paying “all outstanding tax arrearages due . . . and [by bringing] the taxes current.” That language satisfies the requirements of paragraph nineteen of the mortgage. It is obviously, as the court noted, “the only remedy available to the defendant which would immediately reinstate the note.”

Although the default notice did not specifically use the words “foreclosure” or “sale of property,” the court concluded, and we agree, that it is apparent from the language of the notice that the defendant was notified of the possibilities of foreclosure as required by the mortgage. The notice, in addition to stating that “further enforcement proceeding^] may be instituted,” also indicated that the plaintiffs retained all defenses regarding acceleration “in any judicial foreclosure of the mortgage.”

Because the default notice that was sent to the defendant, at the least, substantially complied with the requirements of paragraph nineteen of the mortgage, there was no genuine issue of material fact, and summary judgment in the plaintiffs’ favor was warranted as a matter of law.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       In addition to the defendant Elli Stigers, Fleet National Bank also was named as a defendant. Only Elli Stigers has appealed. We therefore refer in this opinion to Elli Stigers as the defendant.

       The plaintiffs are Roger Saunders, Stuart Kellner and Stanley Gallant.

       The plaintiffs’ motion for summary judgment sought a judgment on the foreclosure complaint “in the event the court determines that an issue of material fact exists as to the defendant’s counterclaim . . .

       Practice Book § 17-51 provides: “If it appears that the defense applies to only part of the claim, or that any part is admitted, the moving party may have final judgment forthwith for so much of the claim as the defense does not apply to, or as is admitted, on such terms as may be just; and the action may be severed and proceeded with as respects the remainder of the claim.”
      In its memorandum of decision, the court stated: “Therefore, it appears that there remain questions of fact that this court cannot resolve on the [plaintiffs’] motion for summary judgment. The plaintiffs’ motion for summary judgment [on the counterclaim], accordingly, is denied.”

       The defendant’s pleadings did not claim a setoff.

       The defendant’s third special defense states:
      “1. Prior to the Assignment of the Mortgage to Plaintiffs from Lafayette Bank & Trust Company, Defendant, Elli Stigers, was obligated to malte monthly tax escrow payments pursuant to Paragraph 2 of the Mortgage.
      “2. At the time of the Assignment, Plaintiffs advised Defendant to discontinue tax escrow payments and to make payments to them of interest and principal only.
      “3. Therefore, Defendant, Elli Stigers, is not in default of Paragraph 2 of the Mortgage as claimed in Plaintiffs’ notice attached to Plaintiffs’ Complaint as Exhibit D.
      “4. Pursuant to Paragraph 19 of the Mortgage, Notice to Borrower of Default, is a condition precedent to acceleration and foreclosure of the subject Mortgage.
      “5. As a result of said defective Notice, Plaintiffs have failed to satisfy the condition precedent to the pending foreclosure action and, accordingly, foreclosure in this matter is barred.”

       Because we conclude that the court’s ruling was correct, we need not consider the plaintiffs’ argument that the ruling on their motion for summary judgment provides an alternate ground on which to affirm the striking of the third special defense.

       Practice Book § 23-18 (a) provides: “In any action to foreclose a mortgage where no defense as to the amount of the mortgage debt is interposed, such debt may be proved by presenting to the judicial authority the original note and mortgage, together with the affidavit of the plaintiff or other person familiar with the indebtedness, stating what amount, including interest to the date of the hearing, is due, and that there is no setoff or counterclaim thereto.”

       A third reason argued by the defendant before the court is not argued by the defendant on appeal. The defendant claimed at trial that the notice was deficient because it erroneously claimed a default under paragraph two of the mortgage.