author: BEACH, J.

text:
    NANCY E. DOYLE, ADMINISTRATRIX (ESTATE OF JOHN A. DOYLE), ET AL. v. HAROLD J. KAMM ET AL.
    (AC 31566)
    Beach, Robinson and Espinosa, Js.

      Argued October 13, 2011
    officially released January 17, 2012

      David M. Bernard, with whom was Joshua D. Koskoff for the appellants (plaintiffs).

      Kevin M. Tepas, with whom, on the brief, was Ryssa H. Kelson, for the appellees (defendants Harold J. Kamm and New Milford Medical Group, LLC).
   Opinion

BEACH, J.

The plaintiff, Nancy E. Doyle, individually and as administratrix of the estate of John A. Doyle, appeals from the judgment of the trial court rendered on the jury’s verdict in her wrongful death action after the court denied her motion to set aside the verdict in favor of the defendants, Harold J. Kamm and New Milford Medical Group, LLC. On appeal, the plaintiff claims that the court erred by (1) excluding certain testimony of her expert pursuant to Practice Book (2008) § 13-4 (4) (now § 13-4 [b] [1]) and (2) prohibiting her from using a certain document to refresh the recollection of and to impeach the defendants’ expert pursuant to Connecticut Code of Evidence § 9-1. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to the plaintiffs appeal. On or about May 7, 2004, Kamm, a physician specializing in internal medicine, began treating Doyle for issues related to weight loss. This treatment continued with visits on August 10, 2004, and November 1, 2004. In the early morning hours of March 25, 2005, Doyle experienced chest pain and went to the New Milford Hospital emergency room, where he was examined for several hours. After being released, but before he reached his home, Doyle suffered a heart attack and died.

On April 9,2009, the plaintiff filed and served a second amended complaint on the defendants. The plaintiff alleged that Kamm’s treatment of Doyle did not conform to the applicable standard of care by failing: to adequately and properly care for, to treat, to monitor, to diagnose and to supervise Doyle; to order a stress test; to recheck Doyle’s abnormal lipid profile; and to initiate proper pharmacological treatment for Doyle. The plaintiff claimed that, collectively, these actions resulted in the death of Doyle. The plaintiff further alleged that she, individually, was deprived of the companionship and society of her husband as a result of Kamm’s negligence. She also alleged negligence and loss of companionship and society as to New Milford Medical Group, LLC.

Following ten days of trial and two days of deliberations, the jury returned its verdict in favor of the defendants on May 6, 2009. The plaintiff thereafter filed a motion to set aside the verdict based on several grounds, including the two issues before this court, namely, that the trial court erred by excluding certain testimony of the plaintiffs expert and by prohibiting the plaintiffs counsel from refreshing the recollection of and impeaching an expert witness for the defendants. The court denied the motion. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first argues that the court erred by precluding certain testimony of her expert, Jay B. Krasner, an internist, pursuant to Practice Book (2008) § 13-4 (4). We agree, but we conclude that the erroneous ruling does not warrant relief because we conclude that the error was harmless.

The following additional facts are relevant. On September 12,2008, the plaintiff filed a disclosure regarding Krasner’s expected testimony in which she stated that Krasner would testify as to issues relating to the standard of care, deviation from the standard of care and causation. The plaintiff further asserted that Krasner would testify that Doyle had several cardiac risk factors, including elevated triglycerides, obesity and low high-density lipoprotein, and that Kamm did not properly address these issues.

On November 21,2008, the plaintiff produced Krasner for a deposition. Krasner testified that the disclosure was an accurate recitation of the opinions he expected to articulate in the case and noted: “The only small change I would make is on the second page. We’re talking about cardiac risk factors, including elevated triglycerides, obesity, and low [high-density lipoprotein], and basically what I would have said, had I redone this, was that he had metabolic syndrome, which is what those things add up to, and additionally, that his [low-density lipoprotein] cholesterol needed to be properly addressed.” (Emphasis added.) The defendants’ counsel thereafter questioned Krasner about the definition of metabolic syndrome, and Krasner testified as to how the treatment goals for someone with metabolic syndrome, which is a coronary heart disease equivalent, differ from goals as to someone without a coronary heart disease equivalent. Specifically, Krasner testified, inter alia, that “[i]n order to have metabolic syndrome you have to have three of these five criteria: elevated blood pressure, low [high-dénsity lipoprotein], obesity, high triglycerides and elevated fasting glucose. Mr. Doyle meets all five of those criteria, by his labs and by his visit of May 7.” Krasner also produced as an exhibit a 2005 article from the Journal of the American Heart Association that addressed the diagnosis and management of metabolic syndrome.

At trial, on April 21,2009, the plaintiffs counsel asked Krasner on direct examination: “What is metabolic syndrome?” The defendants’ counsel objected to any questioning concerning metabolic syndrome on the basis that it exceeded the scope of the disclosure of Krasner’s testimony. Outside the presence of the jury, the defendants’ counsel stated that the disclosure did not reference metabolic syndrome and that he had no prior knowledge of it until he took the deposition of Krasner. The defendants’ counsel also pointed out that the plaintiff never amended the disclosure, and, therefore, he had concluded that the plaintiff did not intend to ask Krasner about metabolic syndrome at trial. The plaintiffs counsel admitted that the disclosure did not explicitly state “metabolic syndrome” but argued that because the subject was “fully flushed out” at Krasner’s deposition, there would be no prejudice from any subsequent questioning about it at trial. Further, the plaintiffs counsel asserted that the defendants’ counsel should have asked that the deposition be continued if he felt prejudiced. The court sustained the objection of the defendants’ counsel and allowed the jurors to return to the courtroom.

“[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Even if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm.” (Internal quotation marks omitted.) Szczycinska v. Acampora, 125 Conn. App. 474, 478, 10 A.3d 531 (2010). “The court’s decision on whether to impose the sanction of excluding the expert’s testimony . . . rests within the sound discretion of the court.” (Internal quotation marks omitted.) McVerry v. Charash, 96 Conn. App. 589, 594, 901 A.2d 69, cert. denied, 280 Conn. 934, 909 A.2d 961 (2006).

A

The plaintiff argues that the court should have permitted Krasner to testify about metabolic syndrome and that the disclosure encompassed such testimony. We agree and conclude that the court abused its discretion by excluding Krasner’s testimony on metabolic syndrome.

The plaintiff filed her disclosure on September 12, 2008. At that time, Practice Book (2008) § 13-4 (4) required a party, inter alia, to “disclose the name of [the] 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 . . . .” Our Supreme Court has observed that our case law requires a disclosure to include “the basic details of the plaintiffs claim.” Wexler v. DeMaio, 280 Conn. 168, 187, 905 A.2d 1196 (2006). The purpose of the provision is “to assist the defendant in the preparation of his case and to eliminate unfair surprise by furnishing the defendant with the essential elements of a plaintiffs claim.” Id., 188.

The court concluded that the subject matter, namely, metabolic syndrome, was not contained in the relevant disclosure, and, therefore, it excluded the testimony so as to eliminate unfair surprise. We conclude that this ruling was erroneous. The language of the disclosure of Krasner provided: “Dr. Krasner will further testify that Mr. Doyle had cardiac risk factors including elevated triglycerides, obesity and low [high-density lipoprotein], and that Dr. Kamm did not properly address these issues.” The plaintiff argues that this provided adequate notice to the defendants that she planned to present testimony at trial about metabolic syndrome. We agree.

Practice Book (2008) § 13-4 required, inter aha, disclosure of the subject matter and the substance of the facts and opinions as to which the expert would testify. The dispositive determination, then, is whether metabolic syndrome constitutes a new and distinct subject matter or whether it is reasonably contemplated by the disclosure. Outside the presence of the jury, on request from the court, Krasner testified that metabolic syndrome “is considered a coronary risk equivalent” and is a diagnosis given when a patient has three of the following five criteria: “blood pressure, [high-density lipoprotein] cholesterol, triglycerides, measure of obesity and the measure of glucose tolerance.” The disclosure stated that he would testify about cardiac risk factors, including elevated triglycerides, obesity and low high-density lipoprotein, and that Kamm did not properly address these issues. Metabolic syndrome, as described by Krasner, is shorthand for a constellation of risk factors, including those listed in the disclosure, and it is the presence of these risk factors that affects the treatment goals of a patient. See Berkowitz v. Demaine, 89 Conn. App. 589, 595-96, 874 A.2d 326 (2005) (holding there was adequate description of subject matter in disclosure when disclosure stated “ ‘nature and extent of the injuries’ ” and expert witness described plaintiffs condition as “ ‘carpal pedal spasm’ ’’ and noting that it was “inconsequential that the witness used medical terms”). A disclosure is not required to include every subordinate detail of an expert’s testimony; rather only the “essential elements”; Wexler v. DeMaio, supra, 280 Conn. 188; and “basic details” of the claim are necessary. Id., 187. Accordingly, we conclude that testimony about metabolic syndrome, as described, was sufficiently contemplated by the terms of the disclosure.

Further, we cannot conclude that it was reasonable for the court to conclude that exclusion of the testimony was necessary in order to avoid unfair surprise to the defendants. Although the disclosure did not include the term “metabolic syndrome,” it did include the general term “cardiac risk factors” and explicitly named three of the factors that can constitute metabolic syndrome. Also, counsel for the defendants questioned Krasner about metabolic syndrome at his deposition. There, Krasner testified as to multiple issues related to metabolic syndrome including: its definition; each cardiac risk factor and how each related to Doyle; that in Krasner’s opinion, Doyle had metabolic syndrome; that a diagnosis of metabolic syndrome changes the treatment goals of a patient because it is a coronary heart disease equivalent; when metabolic syndrome was first introduced in the medical community; and whether the guidelines had changed. Further, three days after the deposition of Krasner, counsel for the defendants sent a letter to one of his experts, Philip Podrid, a cardiologist, in which counsel informed Podrid that “ [i]t appears to be Dr. Krasner’s view that Mr. Doyle had ‘metabolic syndrome’ in May 2004 and since this constitutes a [coronary heart disease] equivalent, it changed the requirement for management of the patient.” Additionally, at Podrid’s deposition, less than one month before trial, the plaintiffs counsel asked Podrid: “What is metabolic syndrome?” The plaintiffs counsel further asked Podrid to elaborate on the metabolic abnormalities that it encompasses and inquired whether Doyle had metabolic syndrome. If the defendants believed that they did not have adequate notice of the subject matter about which Krasner would testify, they could have requested the opportunity to depose Krasner a second time, limited to the issue of metabolic syndrome. Based on the disclosure of Krasner, the deposition of Krasner, the letter from the defendants’ counsel and Podrid’s deposition, we conclude that the court erred in precluding testimony about metabolic syndrome so as to eliminate unfair surprise.

B

Not every evidentiary error, however, requires reversal. The error must be harmful. The plaintiff argues that the court’s ruling precluding Krasner from testifying as to metabolic syndrome was harmful because it prevented him from explaining the basis for his opinions, which preclusion damaged his credibility. We disagree.

“The harmless error standard in a civil case is whether the improper ruling would likely affect the result. . . . Generally, a trial court’s ruling will result in a new trial only if the ruling was both wrong and harmful.” (Citation omitted; internal quotation marks omitted.) Wiseman v. Armstrong, 295 Conn. 94, 106, 989 A.2d 1027 (2010). “Moreover, an evidentiary impropriety in a civil case is harmless only if we have a fair assurance that it did not affect the jury’s verdict.” (Internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 161, 971 A.2d 676 (2009). “[B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) Klein v. Norwalk Hospital, 299 Conn. 241, 254, 9 A.3d 364 (2010). “In those instances wherein a party claims that the trial court improperly excluded testimony, we undertake a review of the relationship of the excluded evidence to the central issues in the case and whether that evidence would have been merely cumulative of admitted testimony.” Id., 255.

After the court prohibited Krasner from answering the question by the plaintiffs counsel regarding the definition of metabolic syndrome, the plaintiffs counsel posed a hypothetical question based on Doyle’s medical records. The plaintiffs counsel elicited from Krasner that the standard of care under these circumstances was that the patient had a coronary risk equivalent and that Kamm needed either to order a stress test or to refer Doyle to a cardiologist to conduct such a test. Krasner further testified that Kamm had more than enough information, based on the presence of multiple cardiac risk factors, including high-density lipoprotein, low-density lipoprotein, triglycerides, weight and blood pressure, to conclude that Doyle was at risk of having coronary artery disease. Krasner, therefore, was able to testify, and did, in fact, testify as to the various risk factors that can constitute metabolic syndrome and that these factors indicated that Doyle had a coronary risk equivalent. That Krasner stated in his testimony that there was “the thing, which I guess, I’m not allowed to mention” does not change the fact that he testified that Doyle had a coronary risk equivalent and that this altered the standard of care. The factors to which Krasner testified were relevant to the central issue of the applicable standard of care, and the trier of fact was not prohibited from hearing that testimony.

We note also that in concluding that the error was harmless, we have carefully considered the plaintiffs argument that the credibility of Krasner was damaged. Although establishing an expert’s credibility is undoubtedly important, we conclude that the court did not improperly damage Krasner’s credibility by its rulings. The court sustained the defendants’ objection to a question asking for the definition of metabolic syndrome. Krasner was still able to testify, and did testify, as to the cardiac risk factors that Doyle exhibited and as to Krasner’s determination that Doyle had a coronary risk equivalent. The plaintiff suggests that the statements by Krasner that there was something to which he was not allowed to testify damaged his credibility. These statements by Krasner were not required by the court’s ruling; rather Krasner volunteered reference to a prohibited area. We therefore conclude that the plaintiff has not shown that the error was harmful and likely affected the verdict. While the excluded testimony was related to a central issue in the case, namely, the applicable standard of care, Krasner nonetheless was allowed to testify about cardiac risk factors and that Doyle had a coronary risk equivalent.

II

The plaintiff next argues that the court erred by prohibiting her counsel from using a certain document to refresh the recollection of and, ultimately, to impeach an expert witness for the defendants. Specifically, the plaintiff claims that the court erroneously ruled that a document used to refresh a witness’ recollection must be authenticated. We agree. We do not agree with the plaintiff that the erroneous ruling warrants relief, however, because there is no adequate record on which to determine whether the error was harmful.

The following additional facts are relevant. The court’s ruling applied to two lines of questioning. On cross-examination, the plaintiffs counsel asked the defendants’ expert witness, Podrid, whether a prior myocardial infarction could cause flattened T waves. Podrid responded: “Generally, it causes inverted T waves.” The plaintiffs counsel repeated his question, and Podrid repeated his answer. When the plaintiffs counsel asked Podrid a third time, Podrid testified: “I don’t know that you make a diagnosis of a prior [myocardial infarction] with just flattened T waves.” The plaintiffs counsel then asked whether Podrid recalled testifying in a case called Plourde, to which Podrid answered that he did not. The plaintiffs counsel then attempted to provide Podrid with a purported copy of his deposition testimony from Plourde and directed his attention to a specific part of the testimony purportedly relevant to whether a myocardial infarction could cause flattened T waves. The defendants’ counsel objected on the ground that it was not clear that the document was a certified copy of the deposition transcript. After the jury was excused from the courtroom, the plaintiff’s counsel responded that he intended to use the deposition testimony to impeach Podrid on the basis of a prior inconsistent statement and that there need not be any authentication. The court sustained the objection.

On direct examination, Podrid had testified that Doyle’s May 7, 2004 electrocardiogram (EKG) was within normal limits and that the T waves were “sort of flattened . . . .’’He further testified that the EKG did not demonstrate that Doyle had suffered an old inferior wall myocardial infarction. On cross-examination, the plaintiff’s counsel attempted to elicit an admission from Podrid that ST segments are more important than T waves in detecting cardiac ischemia. Upon being asked whether this was true, Podrid responded that he was not aware of any data supporting that, and upon further questioning, he stated that he could not recall saying anything inconsistent with his testimony. The plaintiffs counsel then attempted to provide Podrid with what counsel purported to be the deposition transcript from Plourde. He directed Podrid to a specific section of the testimony in regard to the question as to whether he had ever stated that flattened ST segments were more indicative of ischemia than flattened T waves. Counsel for the defendants objected “for the same reason that I raised before,” and the court sustained the objection.

“While evidentiary determinations are usually reviewed for abuse of discretion . . . the type of decision made by the trial court does not, in isolation, determine the appropriate standard for appellate review. To the contrary, [r]ather than invoke a rule based strictly on a category, we conclude that the better approach is . . . [to] examine the nature of the ruling at issue in the context of the issues in the case.” (Citation omitted; internal quotation marks omitted.) Klein v. Norwalk Hospital, supra, 299 Conn. 250 n.9. “[Plenary review is appropriate . . . only when an evidentiary ruling involves a clear misconception of the law.” (Internal quotation marks omitted.) State v. Saucier, 283 Conn. 207, 215 n.7, 926 A.2d 633 (2007). “To the extent a trial court’s admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary.” Id., 218.

A

The plaintiff argues in her brief that the court’s ruling prohibiting her counsel from using the deposition transcript from Plourde to impeach Podrid and to refresh his memory was based on an erroneous conclusion that the document must be authenticated pursuant to Connecticut Code of Evidence § 9-1. Our review of the record reveals that the substance of the argument at trial was whether the deposition transcript was required to be certified before the plaintiffs counsel could give it to Podrid during his testimony to read a specific section to himself. In her brief, the plaintiff frames the issue as one of refreshing recollection but often conflates refreshing the recollection of the witness with impeaching the witness. To the extent that the issue is one of refreshing recollection, the court clearly erred because the law is well established that authentication is not required to refresh a witness’ recollection. Our code of evidence allows any object or writing to be used to refresh a witness’ recollection, regardless of its admissibility, and authentication is a condition precedent only for admissibility. Conn. Code Evid. § 6-9 (allowing any object or writing to refresh witness’ recollection); Conn. Code Evid. § 6-9 (a), commentary (“[a]ny party may introduce into evidence the object or writing used to stimulate the witness’ recollection if the object or writing is otherwise admissible under other provisions of the Code”); Conn. Code Evid. § 9-1 (authentication is condition precedent to admissibility). Because the item that the plaintiffs counsel attempted to use to refresh recollection was not immediately being introduced into evidence, authentication was not required at that time. Insofar as the questioning was part of laying a foundation to impeach the witness by asking whether he had made the statement, authentication was not required unless the plaintiffs counsel later sought to introduce the document as a full exhibit. Conn. Code Evid. § 9-1 (requiring authentication as a condition precedent to admissibility). In the présent case, the document was marked as an exhibit for identification only, and the plaintiffs counsel made no attempt to introduce it as a full exhibit. Accordingly, the court erred by ruling that the deposition transcript had to be certified before the plaintiffs counsel could show it to Podrid during his testimony.

B

The plaintiff further argues that the error was harmful because it deprived her of the ability to impeach the credibility of the defendants’ expert about a material issue in the case, namely, the interpretation of EKGs. We cannot agree because there is not an adequate record on which to make this determination.

There was no offer of proof made by the plaintiffs counsel to show a substantial inconsistency between Podrid’s statements at trial and his purported statements at the deposition in Plourde. See United States v. Hale, 422 U.S. 171, 176, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975) (impeachment of witness by prior inconsistent statement is proper only if two statements at issue are in fact inconsistent); State v. Richardson, 214 Conn. 752, 763, 574 A.2d 182 (1990) (inconsistency must be substantial and relate to material matter). We do not know how, if at all, Podrid’s testimony would have been impeached had the defendants’ objection not been sustained. There is no way to tell from the record whether Podrid would have admitted or denied making the statements, or whether his recollection would have been refreshed about whether he made the statements. There additionally is no way to tell whether the context of the statements would have had a bearing on the degree of any inconsistency. “The absence of an offer of proof may create a gap in the record that would invite inappropriate speculation on appeal about the possible substance of the excluded testimony.” (Internal quotation marks omitted.) Dinan v. Marchand, 279 Conn. 558, 583, 903 A.2d 201 (2006); see also In re Alison M., 127 Conn. App. 197, 224, 15 A.3d 194 (2011). Accordingly, the plaintiff has failed to provide an adequate record for this court’s review, and we therefore cannot conclude that the error was harmful. See Vasquez v. Rocco, 267 Conn. 59, 64, 836 A.2d 1158 (2003) (affirming judgment of trial court because, inter alia, “record on appeal is inadequate for our determination of the extent to which the plaintiff may have been harmed by the court’s improper ruling”); Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984) (“[i]t is the appellant’s burden to ensure that we are provided with an adequate appellate record to support his claims of error”).

The judgment is affirmed.

In this opinion the other judges concurred.

       We refer in this opinion to Nancy E. Doyle in both capacities as the plaintiff and to the decedent, John A. Doyle, as Doyle.

       The original complaint, which was filed on October 11, 2006, included claims against Richard J. Goccia, an emergency room physician, and New Milford Hospital, which were withdrawn on October 24, 2007, and April 7, 2009, respectively. The operative second amended complaint alleges four counts — two against Kamm and two against his employer, New Milford Medical Group, LLC. We therefore refer to Kamm and New Milford Medical Group, LLC, collectively as the defendants.

       Relying on our Supreme Court’s decision in Wexler v. DeMaio, 280 Conn. 168, 181, 906 A.2d 1196 (2006), the plaintiff argues that the standard of review in the present case is plenary. Her reliance on Wexler for the standard of review, however, is misplaced. That case addressed whether a disclosure itself was sufficiently detailed to satisfy the requirements of Practice Book (2003) § 13-4 (4). Id., 182. In contrast, in the present case, the challenge is whether the disclosure encompasses certain expert testimony, and this determination necessarily depends on the individual facts of the case. Cf. Klein v. Norwalk Hospital, 299 Conn. 241, 250 n.9, 9 A.3d 364 (2010) (applying plenary standard of review because court’s exclusion of expert testimony not based on individual facts of case but rather was legal conclusion).

       In 2008, Practice Book § 13-4 did not include subsection (b) (1). Since 2008, § 13-4 has been amended. These amendments, however, do not apply to cases filed prior to January 1, 2009. See Practice Book § 13-4 (i). The current version of the rules of practice requires in the disclosure “the field of expertise and the subject matter on which the witness is expected to offer expert testimony; the expert opinions to which the witness is expected to testify; and the substance of the grounds for each such expert opinion. . . .” Practice Book § 13-4 (b) (1).

       Whether “metabolic syndrome” is a distinct disease or a description of symptoms is of little moment. In part IB of this opinion, we note that Krasner testified that Doyle’s symptoms amounted to a coronary risk equivalent to a prior heart attack and that this altered the standard of care.

       When asked to identify the evidence that supported his conclusion that Doyle was at risk of having coronary artery disease, Krasner identified Doyle’s abnormal electrocardiogram, abnormal lipid parameters and “the thing, which I guess, I’m not allowed to mention.” On cross-examination, when asked whether the standard of care would require Kamm to order a stress test based solely on the risk factors present, Krasner responded that answering would require him to “ge[t] into an area which I was already instructed I’m not allowed to comment on.”

       The plaintiff also argues that the court erroneously prohibited the plaintiffs counsel from making an offer of proof as to the issue of metabolic syndrome. In denying an offer of proof by the plaintiffs counsel, the court noted that the offer of proof was not timely. The objection regarding metabolic syndrome occurred during the morning session, and the plaintiffs counsel attempted to make the offer of proof at the beginning of the afternoon session. “An offer of proof, properly presented, serves three purposes. First, it should inform the court of the legal theory under which the offered evidence is admissible. Second, it should inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility. Third, it thereby creates a record adequate for appellate review.” (Internal quotation marks omitted.) State v. Zoravali, 34 Conn. App. 428, 433, 641 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994). It follows from these purposes that to be proper, an offer of proof should be presented at or around the time of the offered evidence so that the court may make an informed ruling regarding its admissibility. Under the circumstances, for reasons stated previously, we conclude that the error, if any, was harmless.

       Myocardial infarction is a synonym for heart attack and is defined as an “[infarction] of a segment of the heart muscle, usually as a result of occlusion of a coronary artery.” Stedman’s Medical Dictionary (27th Ed. 2000) p. 895. Infarction is defined as a “[s]udden insufficiency of arterial or venous blood supply . . . Id., p. 894.

       A “T” wave is a type of deflection in an electrocardiogram. Stedman’s Medical Dictionary (27th Ed. 2000) p. 1984.

        Plourde v. Hartford Hospital, Superior Court, judicial district of Hartford, Docket No. CV-02-0814180-S.

       Ischemia is defined as inadequate circulation of blood. Stedman’s Medical Dictionary (27th Ed. 2000) p. 924.

       This does not mean, of course, that counsel is entitled to read aloud from anything other than a full exhibit in the presence of the jury.

       Ordinarily, a witness may be asked if he or she made a prior statement, without a showing of authentication, so long as there is a good faith basis for the question. See State v. Grant, 89 Conn. App. 635, 640, 874 A.2d 330 (“[a] good faith basis on the part of examining counsel as to the truth of the matter contained in questions propounded to a witness on cross-examination is required” [internal quotation marks omitted]), cert. denied, 275 Conn. 903, 882 A.2d 678 (2005). If the witness denies making the statement, further evidentiary hurdles must be met before the inconsistent statement may be entered as a full exhibit. See State v. Valentine, 240 Conn. 395, 403, 692 A.2d 727 (1997) (“[ajs a general rule, extrinsic evidence of a prior inconsistent statement may not be admitted to impeach the testimony of a witness on a collateral matter”); State v. Butler, 207 Conn. 619, 626, 543 A.2d 270 (1988) (“[wjhere the witness denies having made the statement or is unable to recall having done so, extrinsic evidence may be admitted to show it was made”).


source: Caselaw Access Project

license: Public Domain

text:
    KATHLEEN M. SANZO’S APPEAL FROM PROBATE

    (AC 32663)
    DiPentima, C. X, and Beach and Foti, Js.

      Argued October 21, 2011
    officially released January 17, 2012

      William H. Clendenen, Jr., with whom was Elizabeth R. McKenna, for the appellant (plaintiff).

      Stephen E. Pliakas, with whom was Robert Nastri, Jr., for the appellee (defendant David Sanzo).

       The appeal in this case was originally filed with the caption KATHLEEN M. SANZO v. APPEAL FROM PROBATE. The caption has been changed to reflect that the Appeal from Probate is not a party. It should be noted that the microfiche version of the Appellate Court Record and Briefs in this case will be found under the original title.

   Opinion

BEACH, J.

The plaintiff, Kathleen M. Sanzo, appeals from the judgment rendered following a jury verdict against the admission to probate of the will of her mother, Catherine D. Sanzo (Sanzo), and from the denial of her motion to set aside the verdict. On appeal, the plaintiff claims that the trial court erred by (1) permitting a lay witness to offer an opinion in response to a hypothetical question concerning testamentary capacity and (2) denying her motion to set aside the jury verdict. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to the plaintiffs appeal. Sanzo died on July 22, 2005. She had made a mark on a document entitled “Last Will and Testament of Catherine D. Sanzo” dated July 17, 2005. The document was witnessed by Kristie Strollo, a social worker at Elim Park, a continuing care retirement community, where Sanzo was residing, and by Jennifer Pitts, also an employee of Elim Park. The writing provided specific bequests of $40,000 to each of her three sons— David Sanzo, Patrick Benedetto and Frank Nettinger, Jr. — and the residue to her daughters — the plaintiff and Karen Sanzo. Following a hearing, the Probate Court refused to admit the purported will to probate on the ground that the proponents, Sanzo’s daughters; failed to establish Sanzo’s testamentary capacity: Sanzo’s daughters appealed separately to the Superior Court, where a trial before a jury was held. The jury returned a verdict in favor of the defendant contestants, David Sanzo and Benedetto, on the ground that Sanzo, at the time of execution, did not have the testamentary capacity to execute a will. The plaintiff and Karen Sanzo then filed motions to set aside the verdict and for a new trial, which the court denied. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first argues that the court erred by permitting Strollo, a lay witness, to answer a question calling for an opinion regarding a hypothetical question. We disagree.

The following additional facts are relevant. At trial, Strollo testified on direct examination as follows. While working at Elim Park as an admitting social worker, Strollo was asked to go to Sanzo’s room. An attorney in the room, Bonye Wolf Barone, asked if Strollo and Pitts, also in the room, would witness the signing of a will by Sanzo. Sanzo made a mark on the purported will in the presence of Strollo and Pitts. Strollo then signed her name on the will in two places, attesting, inter alia, that the will was subscribed, published and declared by Sanzo to be her last will and testament, and that at the time of the execution, Sanzo appeared to be of sound mind and memory and “not in any respect incompetent to make a Will disposing of real and personal property . . . .”

On cross-examination, Strollo testified that she did not recall whether she understood at the time she was asked to be a witness that she would be witnessing a will. She further testified that while she was present in the room, Barone did not review the provisions of the document with Sanzo, nor did Sanzo read the document. Strollo then testified that contrary to the language appearing on the purported will, Sanzo did not: declare to Strollo that that was her last will and testament, ask Strollo to sign her name on the document or request Strollo to make the affidavit that she signed. Strollo also testified that she could not recall whether Barone took her oath or asked her to swear to the truth of the affidavit’s contents. In response to specific questions by defense counsel, Strollo testified that while she was present in the room, there was no discussion about the size of Sanzo’s estate, who Sanzo’s children were, what time it was, what day it was or who the president was.

Strollo was then asked: “You didn’t receive any information from . . . Sanzo, that day in her room, from which you could conclude that she was of sound mind and memory, did you?” Strollo replied, without objection: “No.” Strollo was next asked: “So, if you had been asked to sign this affidavit, in which you would have been asked to swear that she was of sound mind and memory, you just didn’t have enough information?” The plaintiffs counsel objected, and the court excused the jury from the courtroom. The plaintiffs counsel explained that the basis for his objection was that “[Strollo] was specifically asked whether or not when she was signing the affidavit whether she was sworn to sign the affidavit” and that a layperson should not be permitted to answer the posed hypothetical question. The court concluded that it was a proper question and summoned the jury to return to the courtroom. Defense counsel then asked Strollo: “I’m going to try to repeat the question as closely as I can. Given the information, or the lack of information you received from . . . Sanzo on July 17, if you had been asked to swear under oath that she was of sound mind and memory, would you have done so?” The plaintiffs counsel objected on the grounds of irrelevance and immaterialness, the court overruled the objection and Strollo replied: “No.”

“Unless an evidentiary ruling involves a clear misconception of the law, the [t]riai court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling .... The harmless error standard in a civil case is whether the improper ruling would likely affect the result. . . . When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it. ... In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless.” (Citation omitted; internal quotation marks omitted.) Dinan v. Marchand, 279 Conn. 558, 567, 903 A.2d 201 (2006).

The plaintiff argues that the court erred by permitting a lay witness to offer speculative opinion testimony in response to a hypothetical question. She claims that the “opinion” was not based on personal observation and that the expression of “opinion” required Strollo to assume details that she could not recall. The plaintiff is correct in her assertion that lay witnesses are allowed in some circumstances to provide testimony, including opinion testimony, based on their personal observations. See State v. Watson, 50 Conn. App. 591, 600, 718 A.2d 497 (lay witnesses may testify as to observed facts), cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S. Ct. 1373, 143 L. Ed. 2d 532 (1999), cert. dismissed, 255 Conn. 953, 772 A.2d 153 (2001). The plaintiffs argument fails, however, because Strollo’s testimony was, in fact, based on personal observation.

Immediately prior to the question to which defense counsel objected, Strollo testified without objection that she had no information from Sanzo that day in the room from which Strollo could conclude that Sanzo was of sound mind and memory. This question followed testimony of Strollo concerning her recollection that Sanzo did not read the document, Barone did not read the document to Sanzo, Sanzo did not declare the document to be her last will and testament or request that Strollo witness and sign the document, and that there was no discussion about the size of Sanzo’s estate or whether she knew who her children were. The arguably hypothetical nature of the question in dispute did not change the fact that the answer was based on Strollo’s personal observation of what transpired in Sanzo’s room. See Cimino v. Robinson, 6 Conn. App. 680, 685, 507 A.2d 486 (lay. witness may provide opinion to hypothetical question if based on personal observation), cert. denied, 200 Conn. 802, 509 A.2d 517 (1986); Conn. Code Evid. § 7-1 (conditioning opinion testimony by lay witness on whether rationally based on perception of witness and helpful to clear understanding of testimony of witness or determination of fact in issue). Further, the July 17 writing already had been introduced into evidence at the time Strollo was asked the question in dispute, and, accordingly, the door was open for defense counsel to ask questions about the attestations that Strollo’s signature affirmed. Strollo’s answer to whether she would have sworn that Sanzo was of sound mind and memory was marginally relevant, especially in light of the attestation on the document previously admitted into evidence, which, on the surface, indicated that Strollo had sworn that Sanzo was of sound mind and memory. Strollo’s answer was based on her observations while in Sanzo’s room and is supported by the self-evident proposition that one likely would not swear to that which is false.

In further support of her argument that the court erred by allowing into evidence Strollo’s testimony in question, the plaintiff contends that the court erred by allowing lay testimony on an ultimate issue in the case, namely, testamentary capacity. She acknowledges that case law recognizes an exception with regard to testamentary capacity to the general rule that lay opinion testimony on ultimate issues is prohibited, but she argues that these cases predate Code of Evidence § 7-3 and were therefore overruled when § 7-3 was promulgated. We are not persuaded.

As the plaintiff asserts, case law supports the proposition that lay witnesses may testify as to a testatrix’ mental condition. See, e.g., Nichols v. Wentz, 78 Conn. 429, 439-40, 62 A. 610 (1905); Turner’s Appeal, 72 Conn. 305, 316, 44 A. 310 (1899). Our Supreme Court has stated that “the [C]ode [of Evidence] was not intended to displace, supplant or supersede common-law evidentiary rules or their development via common-law adjudication . . . .” State v. DeJesus, 288 Conn. 418, 455, 953 A.2d 45 (2008). The Code of Evidence also explicitly states that because it “was intended to maintain the status quo, i.e., preserve the common-law rules of evidence as they existed prior to adoption of the Code, its adoption is not intended to modify any prior common-law interpretation of those rules.” Conn. Code Evid. § 1-2 (a), commentary. Accordingly, we reject the plaintiffs argument that the code overruled prior case law holding that lay witnesses may testify as to their belief regarding a testatrix’ mental condition, and we conclude that the court did not err in allowing such testimony of Strollo.

II

The plaintiff next argues that the court erred by denying her motion to set aside the verdict. She bases her argument on the grounds that (1) the court erred by allowing certain opinion testimony of Strollo and (2) the jury verdict was against the weight of substantial evidence. In part I of this opinion, we rejected the plaintiffs argument regarding the opinion testimony of Strollo, and we similarly are not persuaded by the plaintiffs weight of the evidence claim.

“[Our] review [of a trial court’s denial of a motion to set aside the verdict] involves a determination of whether the trial court abused its discretion, according great weight to the action of the trial court and indulging every reasonable presumption in favor of its correctness . . . since the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. ... [A trial court may] set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict.” (Internal quotation marks omitted.) Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 276, 828 A.2d 64 (2003).

“Any person eighteen years of age or older, and of sound mind, may dispose of his estate by will.” General Statutes § 45a-250. “What constitutes testamentary capacity is a question of law. ... To make a valid will, the testatrix must have had mind and memory sound enough to know and understand the business upon which she was engaged, that of the execution of a will, at the very time she executed it. . . . Whether she measured up to this test is a question of fact for the trier.” (Citations omitted.) City National Bank & Trust Co.’s Appeal, 145 Conn. 518, 521, 144 A.2d 338 (1958). “The burden of proof in disputes over testamentary capacity is on the party claiming under the will. . . . While there is a presumption of sanity in the performance of legal acts, the party that presents a will still bears the burden of going forward with his proof, and only then does the burden shift to the opponents to prove incapacity.” (Citations omitted.) Stanton v. Grigley, 177 Conn. 558, 564, 418 A.2d 923 (1979).

The plaintiff argues that the weight of the evidence demonstrates that Sanzo possessed the necessary testamentary capacity to execute a will on July 17, 2005. In denying the plaintiffs motion to set aside the verdict, the court rejected the plaintiffs argument that the jury verdict was against the weight of the evidence. The court reasoned: “Before the jury was evidence that the [testatrix] was nonverbal, the will’s contents were not read aloud to her, the [testatrix] had lung cancer that had metastasized to her brain, and Strollo testified that she did not believe the [testatrix] had capacity to make a will. While Strollo’s testimony was in conflict with her previously signed oath, Strollo’s credibility, as well as the impact and veracity of all the evidence, were questions for the jury, and this court should not act to overturn their judgment unless justice requires it.” While there may have been some evidence supporting a finding that Sanzo possessed testamentary capacity, we cannot conclude that the court abused its discretion by finding that the jury could have reasonably and legally reached its verdict that the plaintiff failed to meet her burden to establish testamentary capacity.

The judgment is affirmed.

In this opinion the other judges concurred.

       Nettinger was not a party to the action.

       Karen Sanzo is an appellee in this matter, but her attorney has submitted a letter to this court stating that “It]he interests of Karen and Kathleen are identical in this matter, and Karen Sanzo supports the position that is urged by Kathleen Sanzo . . . .”

       Barone testified at trial that she “merely stated to [the witnesses] that by signing they were stating that they witnessed [Sanzo] making her mark on the paper.” She further testified that the witnesses were not duly sworn and that she did not take their oaths. Thus, there was no evidence, other than the document itself, indicating that Strollo knew she was confirming testamentary capacity.

       Strictly speaking, the question and answer provided little new evidence and was largely cumulative. Once it was established that Strollo had no information on which she could form an opinion as to testamentary capacity, the follow-up question as to what she would have sworn to, had the question been presented to her, is largely academic.

       Ordinarily, a hypothetical question about what one would have sworn to on a certain set of facts is problematical and usually logically redundant, as the witness is under oath when testifying. The circumstances of the present case are, however, unusual. The jury had before it evidence that the witness had previously sworn that Sanzo was of sound mind and memory. At trial, facts were introduced to show that Strollo had intended to make no such assertion and, passively or actively, had been misled into signing the writing making such assertion. Under these circumstances, the court did not abuse its discretion by allowing the question.

       The observation of the court as to Strollo’s testimony regarding testamentary capacity appears to be the result of deduction by the court rather than a literal recollection of her testimony.


author: ALVORD, J.

text:
    GEORGIA COTTRELL v. RICHARD COTTRELL
    (AC 31756)
    Alvord, Espinosa and Bishop, Js.
    Argued October 18, 2011
    officially released January 17, 2012

      Daniel J. KLau, for the appellant (defendant).

      Gary I. Cohen, for the appellee (plaintiff).
   Opinion

ALVORD, J.

The defendant, Richard Cottrell, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Georgia Cottrell. The defendant claims that the court improperly (1) found that the marital estate included four properties that the parties did not own at the time of the dissolution and (2) determined that he fraudulently conveyed his interest in several properties that otherwise would have been subject to claims of equitable distribution. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The court dissolved the parties’ twelve year marriage on November 17, 2009. At the time of the dissolution, the parties had two minor children. The court found that the marriage had broken down irretrievably and attributed fault to both parties. As part of the dissolution judgment, the court incorporated the parties’ agreement regarding custody and parenting access. The court also entered orders with respect to, inter alia, the defendant’s obligation to pay alimony and child support, medical insurance, the division of personal property and the disposition of real property in the marital estate. The disposition of certain real property is at issue in this appeal. The court ordered the defendant to “buy the plaintiffs legal and equitable interest in the marital properties within ninety (90) days of this judgment by paying her $200,000 by certified check or bank check.” The defendant was to retain possession of the marital home and his interest in the rental properties acquired before and during the marriage.

The defendant appealed from the dissolution judgment on December 4, 2009. On February 22, 2010, he filed a motion for articulation requesting that the trial court “articulate its findings concerning each specific piece of real property that [it] determined constituted marital property at the time of dissolution, including the fair market value of each property and the defendant’s equity interest in each property.” In the court’s articulation filed October 8, 2010, it stated that it “relied on the sworn financial affidavits of the parties filed at the time of the dissolution” and then proceeded to list seven properties that it determined to be marital property. The court did not indicate the value of each property nor did it articulate the percentage of the defendant’s equity interest in any of the listed properties. The defendant did not file a motion for review of the trial court’s articulation with this court.

I

The defendant’s first claim on appeal is that the court improperly included four properties in the marital estate, which “resulted in an overvaluation of the economic value of the defendant’s interest in the marital estate.” Specifically, the defendant claims that the court’s findings were clearly erroneous because it listed 2 Fallo Court in Hampton Bays, New York and 204 Point Beach Drive, unit 3B, in Milford as marital property when neither party had ever owned those properties, and also listed 53 Ferry Court in Stratford and 208 Point Beach Drive, unit 3C, in Milford as marital property when those properties had been foreclosed or sold prior to the dissolution judgment. Because the property award was but one part of a carefully crafted mosaic; see Brooks v. Brooks, 121 Conn. App. 659, 672, 997 A.2d 504 (2010); the defendant claims that a new trial is required with respect to all of the financial issues. We disagree.

“The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . [T]o conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Tracey v. Tracey, 97 Conn. App. 122, 124-25, 902 A.2d 729 (2006). “That standard of review reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties.” (Internal quotation marks omitted.) Desai v. Desai, 119 Conn. App. 224, 237-38, 987 A.2d 362 (2010).

General Statutes § 46b-81 (c) directs the court to consider numerous separately listed criteria in distributing marital property at the time of the dissolution judgment. “A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. . . . Generally, we will not overturn a trial court’s division of marital property unless it misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was [its] duty to regard. . . . We must, however, consider the paramount purpose of a property division pursuant to a dissolution proceeding [which] is to unscramble existing marital property in order to give each spouse his or her equitable share at the time of dissolution.” (Citation omitted; internal quotation marks omitted.) Rozsa v. Rozsa, 117 Conn. App. 1, 4, 977 A.2d 722 (2009).

In the present case, the defendant claims that four of the seven properties that the court included in the marital estate either had never been owned by the parties or had been disposed of by foreclosure or sale prior to the dissolution judgment. Before examining the status of each of the properties, it is necessary to set forth additional facts as were found by the court or that were undisputed by the parties. The defendant acquired several properties before and during the marriage. Title to all of these properties was held by the defendant. The plaintiff never held record title to any of the properties. As early as 1999, the plaintiff consulted with attorneys regarding divorce. The defendant testified that he and the plaintiff had discussed separating after the first year of the marriage and “many, many times throughout [the] marriage.” In September, 2005, the defendant transferred a partial interest in several of these properties to his children, who were then five and three years of age. In April, 2006, he conveyed his entire interest in the marital home at 3 Packer Brook Road in Redding to his young children. The plaintiff filed her dissolution complaint on September 7, 2006.

As a result of the foregoing transfers to his children, the defendant Usted fractional interests in various rental properties and no ownership interest in the marital home on his most recent financial affidavit filed with the court on June 15, 2009. The plaintiffs financial affidavit, also filed with the court on June 15,2009, indicated that she had equitable interests in aU of the seven properties identified in the trial court’s articulation. At trial, she testified that she compiled the property Ust at the time she commenced the dissolution action after reviewing certain information that she retrieved from the defendant’s computer. After finding that the defendant’s proffered explanation for transferring his interests in the properties was “unpersuasive,” the court concluded that the deeds were executed in anticipation of the dissolution action. With that background in mind, we now turn to the defendant’s claims with respect to each of the four disputed properties.

A

2 Fallo Court, Hampton Bays, New York

The defendant claims that neither party ever owned an interest in the New York property, and, therefore, it was clearly erroneous for the court to have included it in the marital estate. He testified that the New York property was owned by his father and that he had intended to purchase it at one point in time during the marriage. According to the defendant, he gave his father a $50,000 deposit toward the purchase, but his father returned that money to him when he changed his mind and decided not to buy the property.

The New York property was listed on the defendant’s first financial affidavit filed with the court on November 28, 2006. He stated that he had a 100 percent equitable interest in that property. The plaintiff listed an equitable interest in the New York property on all of the financial affidavits that she filed with the court. She testified that she included the New York property because she saw it on the defendant’s computer. Although the defendant testified that his father returned his $50,000 deposit, the plaintiff testified that she did not receive any portion of the deposit that was allegedly returned to the defendant.

In its articulation, the court expressly stated that it had relied on the financial affidavits filed at the time of the dissolution. It is undisputed that the plaintiffs most current financial affidavit did include the New York property. It also is undisputed that the defendant included the New York property in two financial affidavits filed with the court during the dissolution of his marriage. Although he claimed that he no longer had an equitable interest in the property because his $50,000 deposit had been returned to him, the court was not obligated to credit that testimony. In light of his own testimony that he continued to use the property, and given the fact that the court found that he had fraudulently conveyed interests in other properties to prevent the plaintiff from acquiring her equitable share in the dissolution judgment, the court reasonably could have concluded that the defendant continued to have a presently existing, enforceable and therefore distributable interest in the New York property. “[Presently enforceable rights, based on either property or contract principles, are sufficient to cause property to be divisible. . . . [T]here is a spectrum of interests that do not fit comfortably into our traditional scheme and yet should be available in equity for courts to distribute.” (Citation omitted.) Mickey v. Mickey, 292 Conn. 597, 625, 974 A.2d 641 (2009).

Accordingly, we cannot conclude that the court’s inclusion of 2 Fallo Court in Hampton Bays, New York as marital property was clearly erroneous.

B

204 Point Beach Drive, Unit 3B, Milford

The defendant also claims that neither party ever owned an interest in 204 Point Beach Drive, unit 3B, in Milford (unit 3B), and that it was clearly erroneous for the court to have included it in the marital estate. This property was not listed on any of the defendant’s financial affidavits, nor was there any testimony at trial with respect to its ownership. The property was included on all of the plaintiffs financial affidavits, however, because she obtained her marital property information from the defendant’s computer.

We have carefully reviewed the record in this appeal, an arduous process, as the plaintiff was excluded from record ownership of each one of these properties and the defendant conveyed partial interests in several condominium units to his children. Additionally, one of the rental units was owned by the defendant and a friend, and they shared the expenses and income equally between them. From this review, it is reasonable to assume that the court either (1) determined that the defendant had an interest in unit 3B because his computer records included it as his property or (2) misidentified that unit and meant to reference 208 Point Beach Drive, unit 2C, in Milford (unit 2C), which was another condominium unit owned by the defendant.

In that regard, we note that all of the financial affidavits filed by the defendant and the plaintiff included unit 2C. The defendant’s most current affidavit, filed with the court on June 15, 2009, indicated that he still held a one-third interest in that unit. He had transferred two thirds of his interest in that unit to his children in September, 2005, which the court found to be a fraudulent conveyance. The court mentioned unit 2C in its initial memorandum of decision and did not indicate that the property had been sold or disposed of prior to the dissolution. Furthermore, the defendant never testified that unit 2C was no longer part of the marital estate, and his financial affidavit filed at the time of the dissolution confirms that it was still part of the marital estate. Nevertheless, the court’s articulation did not include unit 2C as one of the seven properties in the marital estate. Instead, it listed unit 3B as one of the seven properties. In light of the fact that both parties agreed that unit 2C was part of the marital estate and that there was no testimony at trial to the contrary, it is likely that the court’s failure to include it as real estate in the marital estate was mere inadvertence.

The defendant’s claim on appeal is that the court “overvalued the economic value of the defendant’s interest in the marital [property]” by including unit 3B as one of the properties in the estate. In the dissolution judgment, the court simply ordered the defendant to “buy the plaintiffs legal and equitable interest in the marital properties within ninety (90) days of this judgment by paying her $200,000 by certified check or bank check.” In its articulation, the court specified the seven properties that it considered to be in the marital estate, but the court listed no value for any of them. Because the articulation is silent in this regard, we cannot, without speculation, determine whether the court overvalued the defendant’s interest absent information as to the value, if any, it ascribed to unit 3B. Thus, assuming arguendo that the court erroneously included unit 3B as one of the real properties in the marital estate, that determination would be harmless given the defendant’s failure to demonstrate how the court’s $200,000 award to the plaintiff was inflated because of its inclusion. See Reizfeld v. Reizfeld, 125 Conn. App. 782, 796-98, 40 A.3d 320, cert. denied, 300 Conn. 915, 13 A.3d 1103 (2011). It is the appellant’s responsibility to provide this court with an adequate record for review. Accordingly, the defendant’s claim fails with respect to 204 Point Beach Drive, unit 3B, in Milford.

C

53 Ferry Court, Stratford

The defendant claims that the court improperly determined that 53 Ferry Court in Stratford was part of the marital estate because that property had been sold at a foreclosure sale prior to the rendering of the dissolution judgment. Although the defendant listed the Ferry Court property in his financial affidavits filed with the court on November 28, 2006, through January 7, 2009, none of his subsequent financial affidavits included that property as one of his assets. At trial, the defendant testified on January 16, 2009, that a foreclosure sale had been ordered and scheduled for late February or early March of that year. On April 15, 2009, he testified that the property had been sold and the proceeds from the sale were being held in a trust account by counsel for the minor children.

Although the real estate was no longer part of the marital estate, the proceeds from the foreclosure sale of that property had not been distributed. The defendant had transferred a partial interest in the Ferry Court property to his children in September, 2005, for no consideration. The court determined that the transfer was a fraudulent conveyance. The monetary proceeds from that sale clearly constituted marital property subject to equitable distribution. The fact that the court simply referred to the real estate rather than the monetary proceeds being held in an escrow account is harmless error. Accordingly, the defendant’s claim fails.

D

208 Point Beach Drive, Unit 3C, Milford

The defendant claims that the court improperly determined that 208 Point Beach Drive, unit 3C, in Milford (unit 3C), was part of the marital estate because that condominium unit had been sold at a foreclosure sale prior to the rendering of the dissolution judgment. The defendant’s most current financial affidavit filed with the court on June 15, 2009, indicates that “[a] foreclosure auction on [unit 3C] occurred on June 6, 2009.” The only testimony at trial regarding the impending foreclosure was the defendant’s statement on April 15, 2009, that the property “is in foreclosure.”

Again, it is apparent from the defendant’s financial affidavit that the property was to be foreclosed by sale. Because this property, as several others, was one of the properties conveyed to his children in September, 2005, it is reasonable to assume that any proceeds from that sale also would be held in an escrow account. In that event, it would be harmless error, as previously discussed, for the court to have referenced the real estate rather than the monetary proceeds from the sale. If there were no proceeds from the sale, the defendant nevertheless has failed to demonstrate how the court’s $200,000 award to the plaintiff was inflated because of the inclusion of unit 3C as one of the properties in the marital estate. We cannot, without speculation, determine whether the court overvalued the defendant’s interest absent information as to the value, if any, it ascribed to unit 3C. Therefore, the defendant’s claim must fail.

II

The defendant’s final claim is that the court improperly determined that he fraudulently conveyed his interest in several properties to his children prior to the commencement of the dissolution action. He argues that the court’s determination was made on the basis of its “flawed chronology of events.” Specifically, he claims that the court erroneously found that the defendant consulted attorney Timothy Aspinwail in late 2005 to prepare a settlement agreement when, in fact, he had not consulted him about obtaining a divorce until August, 2006. The defendant contends that the court’s erroneous finding led to its conclusion that he transferred the interests in those properties in 2005 in anticipation of the filing of the divorce action because the parties’ marriage was troubled at that time.

“The question of whether a fraudulent conveyance took place is solely a question of fact to be determined by the trier. . . . We will not disturb the trial court’s factual findings unless they are clearly erroneous and unsupported by the record.” (Internal quotation marks omitted.) Jacobowitz v. Jacobowitz, 102 Conn. App. 332, 340, 925 A.2d 424 (2007). “A fraudulent conveyance must be proven by clear and convincing evidence . . . .” (Internal quotation marks omitted.) Id., 342.

In the present case, the court made several factual findings about the conveyances of the properties and the state of the parties’ marriage before the dissolution action was commenced. The court found: (1) the plaintiff consulted with attorneys in 1999 regarding a divorce; (2) the defendant’s alleged reasons for transferring the properties to his children in September, 2005, were not persuasive; (3) the conveyances to the children were made without sufficient consideration; (4) the conveyances to the children deprived the court of the ability to utilize sufficient resources to effectuate an equitable distribution; (5) the deeds were executed in anticipation of the dissolution action because the marriage was troubled at that time; and (6) the defendant sought to prevent the plaintiff from obtaining any interest in the real properties in the event of a dissolution.

The court did not state that it concluded that the parties’ marriage was troubled in September, 2005, because the defendant consulted Aspinwall about a separation agreement. In its memorandum of decision, the court did indicate that Aspinwall was consulted in late 2005 and that the defendant requested him to draft a proposed settlement agreement. The record reflects that the referenced settlement agreement was dated August, 2006. Nevertheless, the court’s conclusion that the marriage was troubléd in September, 2005, is not dependent on that one finding.

The court found that the plaintiff contemplated a divorce action as early as 1999, when she was pregnant with the parties’ first child. That testimony was corroborated by the defendant’s testimony that they had discussed separating after the first year of marriage and had discussed separation and divorce “many, many times throughout [the] marriage.” During the trial, the plaintiff repeatedly testified that the marriage was troubled in August or September, 2005, when the defendant told her that he wanted her “out of the house,” that the marriage “wasn’t working” and that he no longer loved her. It is axiomatic that “the trial court is free to accept or reject, in whole or in part, the evidence presented by any witness, having the opportunity to observe the witnesses and gauge their credibility. . . . This court defers to the trial court’s discretion in matters of determining credibility and the weight to be given to a witness’ testimony. ... We cannot retry the matter, nor can we pass on the credibility of a witness.” (Internal quotation marks omitted.) Rozsa v. Rozsa, supra, 117 Conn. App. 10. We conclude that the court’s findings are supported by the record and are not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       He also included the New York property on his financial affidavit filed with the court on March 26, 2007.

       The defendant acknowledged at trial that he still vacations at the New York property with his children and his girlfriend and admitted expending money in that area of New York through the use of his credit cards.

       In a dissolution action, marital property is to be valued as of the date of the dissolution. See Tobey v. Tobey, 165 Conn. 742, 748-49, 345 A.2d 21 (1974); Wendt v. Wendt, 59 Conn. App. 656, 661-62, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000).

       “[T]he trial court is free to accept or reject, in whole or in part, the evidence presented by any witness, having the opportunity to observe the witnesses and gauge their credibility. . . . This court defers to the trial court’s discretion in matters of detemining credibility and the weight to be given to a witness’ testimony. . . . We cannot retry the matter, nor can we pass on the credibility of a witness.” (Internal quotation marks omitted.) Rozsa v. Rozsa, supra, 117 Conn. App. 10.

       As previously discussed, the defendant requested that the court articulate the value of each property, but the court failed to do so in its articulation. The defendant did not file a motion for review of that articulation with this court. With respect to unit 3B, we cannot speculate as to the court’s reasoning or the evidence on which it relied. See Keith E. Simpson Associates, Inc. v. Ross, 125 Conn. App. 539, 543-44, 9 A.3d 394 (2010).

       “It is axiomatic . . . that not every error is harmful. . . . [W]e have often stated that before a party is entitled to a new trial ... he or she has the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 448, 782 A.2d 87 (2001).

       In its memorandum of decision, the court expressly stated that it found by clear and convincing evidence that the transfers were fraudulent conveyances.


text:
    MUSLUM AYNA v. GRAEBEL/CT MOVERS, INC., ET AL.
    (AC 32559)
    Beach, Alvord and Dupont, Js.

      Argued November 8, 2011
    officially released January 17, 2012

      John T. Bochanis, for the appellant (plaintiff).

      Timothy D. Ward, for the appellees (defendants).
   Opinion

ALVORD, J.

The plaintiff, Muslum Ayna, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner for the fourth district (commissioner) approving two form 36 notices submitted by the defendants, Graebel/CT Movers, Inc., and Liberty Mutual Insurance Company. On appeal, the plaintiff argues that the board improperly affirmed the commissioner’s decision (1) that the plaintiff was capable of light duty work and had reached maximum medical improvement, (2) that the plaintiff had a work capacity, (3) denying the plaintiffs motion to correct and (4) denying the plaintiffs request for sanctions against the defendants pursuant to General Statutes § 31-300. We affirm the decision of the board.

The following facts, as determined by the commissioner, and procedural history are relevant to the plaintiffs appeal. The plaintiff was employed by Graebel/CT Movers, Inc. On or about April 6, 1998, the plaintiff sustained a compensable neck injury and, subsequently, the parties reached a voluntary agreement regarding the injury. Patrick P. Mastroianni, a neurosurgeon, and Robert Nolan, an orthopedic surgeon, performed neck surgery on the plaintiff in September, 1999, and November, 2001. On September 22, 2003, Wilham S. Lewis, an orthopedic surgeon, examined the plaintiff and reported that X rays of the plaintiffs cervical spine showed excellent fusion. Mastroianni examined the plaintiff on December 1, 2003, reporting that the films suggested that a complete fusion had taken place. On January 15, 2004, Mastroianni reported that the plaintiff remained totally temporarily disabled for an undetermined period of time. On February 10,2004, Mastroianni reported that it did not appear that there was an indication for further surgical intervention. On December 2, 2004, Mastroianni reported that the films showed that a complete consolidation had not taken place.

On July 24, 2003, and August 31, 2004, Michael E. Kamasiewicz, a neurosurgeon, examined the plaintiff at the request of the defendants. According to Kamasiewicz: “[The plaintiff] has had two cervical fusions and he appears to have successfully fused at both levels. His major complaint is axial pain with upper extremity pain in a nonspecific pattern. It is my feeling that he has reached his point of maximum medical improvement and that he is capable of light work. ... I would estimate [the plaintiffs] ability to lift is in the [thirty] to [twenty] pound range.” Kamasiewicz reported that he continued to believe that the plaintiff had a light work capacity following the additional examination on August 31,2004. Kamasiewicz testified that the plaintiff had reached maximum medical improvement as of July 24, 2003, with a light duty capacity. After reviewing Mastroianni’s operative report and the plaintiffs X rays, Kamasiewicz indicated that the plaintiff had received a successful fusion.

The plaintiff testified that he did not perform any work subsequent to 2001. He also testified that he received checks from Louisiana state Senator Cleo Fields, but that he had cashed them for Ibrahim Cayir. He further testified that he acted only as an interpreter for the senator’s tile job in Louisiana. The plaintiffs former wife, Charlotte Ayna, also testified. Charlotte Ayna testified that the plaintiff had gone to Louisiana to do work for Fields. She also testified that the plaintiff had worked servicing vending machines and that she had gone with the plaintiff to load and unload the vending machines at various times between 2003 and 2006. The plaintiffs cellular telephone records indicated that he had traveled extensively throughout the country between 2003 and 2006, including periods of time in Louisiana.

The commissioner did not find the plaintiff credible, nor did he find the opinions and reports of Mastroianni to be fully credible and persuasive. The commissioner did, however, find the testimony, opinions and reports of Kamasiewicz to be fully credible and persuasive. Similarly, the commissioner credited the testimony of Charlotte Ayna. Accordingly, the commissioner approved both form 36 notices and denied the plaintiffs request for sanctions against the defendants pursuant to § 31-300.

The plaintiff filed a petition for review with the board on April 17, 2009. On June 1, 2009, the plaintiff filed a motion to correct the findings of the commissioner. On June 2, 2009, the commissioner denied the motion to correct. On July 21, 2010, the board affirmed the findings of the commissioner and dismissed the plaintiffs appeal, concluding that the commissioner’s decision was based on the weight of the evidence. This appeal followed.

“The standard of review in workers’ compensation appeals is well established. When the decision of a commissioner is appealed to the board, the board is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. . . . The commissioner has the power and duty, as the trier of fact, to determine the facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . .

“[0]n review of the commissioner’s findings, the [review board] does not retry the facts nor hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether or not the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) Shepard v. Wethersfield Offset, Inc., 98 Conn. App. 682, 685-86, 910 A.2d 993 (2006), cert. denied, 281 Conn. 911, 916 A.2d 51 (2007). “Our scope of review of the actions of the board is similarly limited. . . . The role of this court is to determine whether the . . . [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Parisi v. Yale University, 89 Conn. App. 716, 722, 874 A.2d 852 (2005).

I

The plaintiff first contends that the board improperly affirmed the commissioner’s decision that the plaintiff was capable of light duty work and had reached maximum medical improvement. We disagree.

In support of his argument, the plaintiff asserts that the commissioner improperly ignored the previous decision of former Commissioner George A. Waldron, in which decision he found the plaintiff to be totally disabled. He further argues that, in determining that the plaintiff was not totally disabled and had reached maximum medical improvement as of 2003, the commissioner ignored the plaintiffs need for surgery in 2007 and 2008. The plaintiff also disagrees with the decision of the commissioner to credit Kamasiewicz over Mastroianni. Ultimately, the plaintiff disputes the commissioner’s weighing of the evidence and determination of the credibility of witnesses.

It is within the discretion of the commissioner alone to determine the credibility of witnesses and the weighing of the evidence. “It is . . . immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable, and [the commissioner’s choice], if otherwise sustainable, may not be disturbed by a reviewing court.” (Internal quotation marks omitted.) Biasetti v. Stamford, 123 Conn. App. 372, 382, 1 A.3d 1231, cert. denied, 298 Conn. 929, 5 A.3d 489 (2010). Kamasiewicz testified that the plaintiff had reached maximum medical improvement as of 2003, that there was no correlation between a successful fusion and pain and the ability to work, and that the plaintiff was capable of light duty work with a twenty to thirty pound lifting restriction. Therefore, the plaintiff has made no showing that the board’s decision affirming the commissioner’s decision resulted from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.

II

The plaintiff next asserts that the board improperly affirmed the decision of the commissioner that the plaintiff had a work capacity. We disagree.

The plaintiff contends that the commissioner improperly credited the testimony of the plaintiffs former wife, Charlotte Ayna, that the plaintiff had worked loading and unloading vending machines and that he performed work for Senator Fields in Louisiana during the time that he claimed to be totally disabled. Once again, the plaintiff disputes the commissioner’s credibility determinations and weighing of the evidence. There was ample evidence to support the commissioner’s finding that the plaintiff had a work capacity, including the testimony of Charlotte Ayna and Kamasiewicz, and the plaintiffs cellular telephone records placing him out of state during the relevant time periods. In addition to crediting the testimony of Charlotte Ayna and Kamasiewicz, the commissioner specifically found that the plaintiff was not credible. The commissioner also did not credit the opinion of Mastroianni. We cannot conclude, therefore, that the board’s decision resulted from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.

Ill

The plaintiff next argues that the board improperly affirmed the commissioner’s denial of the plaintiffs motion to correct the findings. We disagree.

“The finding of the commissioner cannot be changed unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. ... It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . and a fact is not admitted or undisputed merely because it is uncontradicted. ... A material fact is one that will affect the outcome of the case.” (Internal quotation marks omitted.) Shepard v. Wethersfield Offset, Inc., supra, 98 Conn. App. 686. “Thus, a motion to correct is properly denied when the additional findings sought by the movant would not change the outcome of the case.” Testone v. C. R. Gibson Co., 114 Conn. App. 210, 222, 969 A.2d 179, cert. denied, 292 Conn. 914, 973 A.2d 663 (2009). The plaintiffs motion to correct sought to conform the commissioner’s findings to the plaintiffs version of the facts. “It is the commissioner, however, who has the discretion to determine the facts.” Id. “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it.” (Internal quotation marks omitted.) Rodriguez v. E.D. Construction, Inc., 126 Conn. App. 717, 726, 12 A.3d 603, cert. denied, 301 Conn. 904, 17 A.3d 1046 (2011).

In making his argument, the plaintiff asserts that the commissioner neglected to include in his findings the material fact that the plaintiff required additional surgeries on January 26, 2007, and August 15, 2008. It is undisputed that the plaintiff had two additional surgeries. It was within the commissioner’s discretion, however, to determine: if the two later surgeries were relevant to the plaintiffs capacity for light duty work, whether he reached maximum medical improvement or whether he had a work capacity as of 2003. Karnasiewicz specifically testified at his deposition: “There’s not necessarily a one-to-one correlation between a successful fusion and pain and the ability to work. . . . The two don’t go hand in hand. I testified that, yes, I believe, based on the information I have in reviewing Dr. Mastroianni’s operative note and the review of X rays presented to me, that he had received — had a successful fusion, and he also had a limited work capacity. The two don’t correlate. I’ve seen patients who haven’t had a successful fusion, who are able to work and had very little pain.” The commissioner found Kamasiewicz’ testimony and opinions to be fully credible. Kamasiewicz testified that the two later surgeries were not relevant to whether the plaintiff was capable of light duty work, had reached maximum medical improvement or had a work capacity as of 2003. Therefore, the commissioner was not required to correct his findings because the fact that the plaintiff had surgery in 2007 and 2008 was not an uncontested material fact that would have affected the outcome of the case.

The plaintiff also challenges the commissioner’s decision to credit the testimony of Charlotte Ayna and Karnasiewicz. Additionally, the plaintiff challenges the decision of the commissioner not to credit Mastroianni or the plaintiff. “We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) ED Construction, Inc. v. CNA Ins. Co., 130 Conn. App. 391, 406, 24 A.3d 1 (2011). The findings of the commissioner were supported by the evidence and included all material facts as determined by him. We therefore conclude that the board properly affirmed the commissioner’s denial of the plaintiffs motion to correct. Testone v. C. R. Gibson Co., supra, 114 Conn. App. 221-22.

IV

Finally, the plaintiff argues that the board improperly affirmed the commissioner’s denial of his request for sanctions against the defendants pursuant to § 31-300. We disagree.

Section 31-300 provides in relevant part: “In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include ... a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in the award in the case of undue delay in payments of compensation ... a reasonable attorney’s fee. ... In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee. ...”

“It is well established that the decision to award attorney’s fees is within the commissioner’s discretion and dependent on the findings of fact.” (Internal quotation marks omitted.) DiBlase v. Logistec Connecticut, Inc., 123 Conn. App. 753, 759, 3 A.3d 128, cert. denied, 299 Conn. 908, 10 A.3d 524 (2010). Based on his findings that the plaintiff was capable of light duty work, had reached maximum medical improvement and had a work capacity as of 2003, the commissioner approved both form 36 notices submitted by the defendants. For the reasons set forth in this opinion, we conclude that there is no reason to disturb the commissioner’s findings. Accordingly, it was not improper for the commissioner to deny the plaintiffs request for § 31-300 sanctions.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       “Form 36 is a notice to the compensation commissioner and the claimant of the intention of the employer and its insurer to discontinue compensation payments. The filing of this notice and its approval by the commissioner are required by statute in order properly to discontinue payments. General Statutes §§ 31-296, 31-296a, 31-300.” (Internal quotation marks omitted.) Testone v. C. R. Gibson Co., 114 Conn. App. 210, 212 n.3, 969 A.2d 179, cert. denied, 292 Conn. 914, 973 A.2d 663 (2009).