author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. EDWARD B.

    (AC 20715)
    Lavery, C. J., and Foti and Schaller, Js.
    Argued January 15
    officially released September 17, 2002

      Gerald E. Bodell, special public defender, for the appellant (defendant).

      Melissa L. Streeto, special deputy assistant state’s attorney, with whom, on the brief, were Mary M. Gal-vin, state’s attorney, and Kevin D. Lawlor, assistant state’s attorney, for the appellee (state).

       In accord with court policy to protect the privacy rights of victims in matters concerning sexual abuse, we decline to use the names of individuals involved in this appeal. See General Statutes § 54-86e.

   Opinion

SCHALLER, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2). On appeal, the defendant claims that he was denied his constitutional rights to due process and to a fair trial because (1) the court improperly denied his motion to suppress his written statement to the police and (2) the evidence adduced at trial was insufficient to support his conviction of sexual assault in the first degree. The defendant also claims that the court improperly admitted the testimony of (3) a physician and (4) certain police officers, and (5) improperly instructed the jury. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the issues on appeal. The defendant sexually abused his daughter, B, several times in the family home. B was between six and seven years of age at the time the abuse occurred. The abuse took place between March, 1997, and March 24, 1998. The defendant was unemployed at the time that the abuse occurred, and had assumed responsibility for caring for B and her younger sister during the day while their mother, the defendant’s wife, was at work. On March 26, 1998, social workers for a rape crisis center distributed pamphlets to the students at B’s school, which described the difference between a “good touch” and a “bad touch.” Upon returning home from work that day, B’s mother saw the pamphlet and asked B if anyone had ever touched her in a bad way. B replied that the defendant had been touching her “private areas” on her chest, and below her waist “in the front and in the back.” B stated that the touching happened “a lot” of times and probably began when she was attending kindergarten. B’s mother confronted the defendant that evening, and he admitted that he had been molesting their daughter and that he had been touching her in a sexual way.

The following day, B’s mother went to work and contacted the employee assistance program provided through her employer. Acting on the advice of the employee assistance program, B’s mother and the defendant met with one of its representatives. After the meeting, they returned to their home separately. At approximately 3 p.m., two employees from the department of children and families (department) and two Milford police department officers arrived at the defendant’s home. The defendant told one of the department employees that he had sexually abused his daughter.

Detective Robert Nash of the Milford police arrived later, interviewed the defendant and, on the basis of what the defendant and B’s mother had told the department, advised him that he was a suspect in a crime. After the defendant stated that he was contemplating harming himself, Nash decided to send him to Milford Hospital for a psychological evaluation under a seventy-two hour emergency committal.

The defendant agreed to give a voluntary statement at the police station before being transported to the hospital. The police transported the defendant to their youth bureau office where officers informed him of his Miranda rights. The defendant signed a waiver of rights form at that time and gave a written statement. The defendant described in some detail the abuse and when it occurred. After giving the statement, the defendant was transported by ambulance to the hospital.

Later on March 27, 1998, Alicia Ricks, a social work investigator for the department, took B to Yale-New Haven Hospital (Yale-New Haven) for a full medical examination. B described the contact between the defendant and herself to Daniel Campbell, a clinical social worker at Yale-New Haven. At trial, B testified as to the abuse through a videotape that was played for the jury. She was nine years old and in the fourth grade at the time she testified. Additional facts will be set forth where necessary.

I

We first address the defendant’s claim that the court improperly denied his motion to suppress his written statement to the police, thus violating his rights under the fifth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. Specifically, the defendant argues that the court should have found that the circumstances surrounding his statements at his home tainted the statement taken at the police station, despite the fact that the police in the interim had informed him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We are not persuaded.

The following additional facts and procedural history are necessary for the resolution of the defendant’s claim. At approximately 3 p.m. on March 27,1998, Ricks and another employee from the department, and Officers Jeffrey Matchett and Todd Richards of the Milford police arrived at the defendant’s home. The defendant told Ricks that he had been abusing his daughter for more than one year.

Nash arrived later on March 27, 1998. Matchett and Richards advised him that the defendant had touched B inappropriately. Matchett also informed Nash that the defendant had made threats against his own welfare. Nash questioned the defendant about whether he had touched B inappropriately, and the defendant responded that he had. Nash then advised him that he was a suspect in a crime. Nash advised the defendant that he had a right not to speak with him. The defendant indicated that he still wanted to speak with him. Nash proceeded to interview the defendant for approximately ten to fifteen minutes. During the interview, Nash asked the defendant whether he made any threats against his own safety, which the defendant confirmed. Because the defendant was contemplating harming himself, Nash decided to send him to Milford Hospital for a psychological evaluation under a seventy-two hour emergency committal. Nash advised the defendant that he was not under arrest. He also advised him that he was not free to leave.

The defendant agreed to give a voluntary statement at the police station before being transported to the hospital. The police transported the defendant to their youth bureau office where officers gave him Miranda warnings. The defendant signed a waiver of rights form at that time and gave a written statement. The defendant admitted to sexually abusing his daughter. After giving the statement, the defendant was transported by ambulance to the hospital.

In his motion to suppress, the defendant claimed that his statements at home and at the police station were taken in violation of Miranda. The court agreed with the defendant, in part, and suppressed his initial oral statements because he was in custody at the time he made them and had not been given Miranda warnings prior to making those statements. The court denied the motion with respect to the written statement that was given at the police station, ruling that that statement was admissible because it was made after the defendant was given Miranda warnings and after he had given written consent to waive his rights pursuant to Miranda.

On appeal, the defendant argues that he made his initial oral statements to the police involuntarily due to coercion inherent at the scene in his home. In his motion to suppress, he asserted that the statements were taken in violation of his fifth amendment privilege against self-incrimination and his sixth amendment right to the assistance of counsel. At the hearing on the motion, the defendant argued that the circumstances at his home inherently were coercive because of the presence of three police officers and two social workers. He also appears to have argued that the fact that he was not free to leave added to the coercive atmosphere at his home. The defendant further argues that the “taint” from the scene at his home rendered the written statement at the police station a violation of Miranda, notwithstanding the fact that he had received Miranda warnings prior to giving the written statement.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001).

Citing State v. Corbeil, 41 Conn. App. 7, 11-12, 674 A.2d 454, cert. granted, 237 Conn. 919, 676 A.2d 1374 (1996) (appeal dismissed September 18, 1996), the defendant argues in his principal brief that the written statement should have been suppressed because “[t]here was no real break in the stream of events” between the oral statements that he made to the police at his home and the written statement that he gave later at the police station such that “[t]he Miranda, warnings at the police station continued to be a product of the same coercion that existed at the house.” That argument is misplaced because the defendant’s initial statement to the police was voluntary.

Where an initial statement to police is inadmissible because a defendant was not given Miranda warnings, the standard for admitting a post-Miranda statement depends on whether the initial statement was given voluntarily. If the initial statement was voluntary, admission of the second statement does not violate the fifth amendment if it was given voluntarily and the Miranda waiver was effective. See Oregon v. Elstad, 470 U.S. 298, 308-309, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985); State v. Roseboro, 221 Conn. 430, 444, 604 A.2d 1286 (1992). If the first statement actually was coerced in violation of the fifth amendment, however, the second statement is inadmissible “unless it can be shown that due to the ‘break in the stream of events’ the taint from the earlier prewarning confession has been removed from the subsequent postwarning confession. . . . See Westover v. United States, decided with Miranda v. Arizona, [supra, 384 U.S. 494-97].” State v. Corbeil, supra, 41 Conn. App. 12. Accordingly, our initial inquiiy is whether the pre-Miranda oral statements were voluntary. We conclude that they were.

“[T]he test of voluntariness is whether an examination of all the circumstances discloses that the conduct of law enforcement officials was such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined .... The ultimate test remains .... Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). . . . State v. Shifflett, [199 Conn. 718, 727-28, 508 A.2d 748 (1986)].” (Internal quotation marks omitted.) State v. Hafford, 252 Conn. 274, 299, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000); see also State v. Williams, 65 Conn. App. 59, 70, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001). “[W]e review the voluntariness of a confession independently, based on our own scrupulous examination of the record.” (Internal quotation marks omitted.) State v. Hafford, supra, 299.

“We make such a determination by examining the totality of the circumstances surrounding the confession, and determining whether the confession [was] the product of an essentially free and unconstrained choice by the maker. . . . Factors that may be taken into account, upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.” (Internal quotation marks omitted.) State v. Williams, supra, 65 Conn. App. 71.

Here, the facts support the court’s determination that the defendant made the statements in his home voluntarily. The court granted the motion to suppress with respect to those statements because it found that the defendant was in custody while at his home and because he had not been given Miranda warnings at that time. When Nash arrived at the home, the defendant confirmed that he had touched his daughter inappropriately. Although Nash then advised him that he was a suspect in a crime and that he had the right not to talk with him, the defendant decided to continue to talk. Nash subsequently decided to commit the defendant to a hospital for a psychological evaluation after learning from the defendant that he was contemplating harming himself. Nash questioned him for a brief time before the defendant was transported to the youth bureau. His detention was equally brief. The defendant does not claim, nor did the court make any findings, that he endured physical punishment or sleep deprivation that would support his contention that the suppressed statements were coerced.

The fact that Nash informed the defendant that he was not free to leave out of concern that he would harm himself does not automatically render the statements coerced. Similarly, the fact that there were at least three police officers at the defendant’s home, in addition to the two department workers, does not, alone or in light of the circumstances, give rise to a presumption of coercion. Although the defendant argues that his detention for a committal served as a pretext for custody, he further requests that this court conclude that there was overbearing conduct by implication from the circumstances. On the facts, however, we discern no police conduct such that the defendant’s will was overborne. We note that although the pretext argument may have served to support his assertion to the court that he was in custody at his home, the bare assertion that custody equals coercion is unavailing. See State v. McLucas, 172 Conn. 542, 557, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977), citing United States v. Watson, 423 U.S. 411, 424, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976). Accordingly, after careful review of the record, we conclude that the defendant made his oral statements at his home voluntarily, notwithstanding the court’s determination that they were taken in violation of Miranda.

“Having concluded that the defendant’s initial statements to the police were voluntary, although procured in violation of his Miranda, rights, the trial court was justified in concluding that the Miranda violations did not taint the admissibility of his subsequent statements. As long as all of the statements were voluntarily made, the fact that the police procured those statements in violation of the defendant’s Miranda rights does not create a presumption that the police acted coercively.” State v. Roseboro, supra, 221 Conn. 444.

Here, the defendant challenges the court’s denial of his motion to suppress the written statement that he gave at the police station solely on the basis of his contention that the oral statements that he made earlier at his home had been coerced. Because we conclude that the statements at his home were not the product of coercion, the court properly refused to suppress the later statement. Accordingly, we conclude that the court’s ruling on the motion was legally and logically correct.

II

We turn next to the defendant’s claim that the evidence adduced at trial was insufficient to support his conviction of sexual assault in the first degree. Count one of the information charged him with sexual assault in the first degree in violation of § 53a-70 (a) (2) in that on different dates between March, 1997, and March 23, 1998, he engaged in sexual intercourse with another person under thirteen years of age and that he was more than two years older than such person at the time. Count two of the information charged the defendant with violating § 53a-70 (a) (2) on or about March 24, 1998. The defendant argues specifically that the state did not meet its burden of proof to establish that he had penetrated the victim, and he claims that there was “absolutely no proof’ that sexual intercourse took place between March, 23, 1997, and March 23, 1998, or on March 24, 1998. We are not persuaded.

The following additional facts are relevant to our resolution of the defendant’s claim. B was born on June 22, 1990, and was between six and seven years of age during the period when the abuse took place. The defendant was born on August 1, 1960, and was between thirty-six and thirty-seven years of age during that period.

B’s mother testified that B told her that the defendant had been touching her “private areas” on her chest and below her waist “in the front and in the back,” and that B had stated that the touching happened “a lot” of times and probably began when she was attending kindergarten. B’s mother also testified that the defendant told her that the incidents had occurred “a couple of times,” the last two times being March 23 and March 24, 1998, when B was home from school because of sickness.

Ricks testified that the defendant told her that he had been fondling B’s breast and vaginal areas for more than one year and that he had placed his penis on the outside of B’s vagina. In his written statement to the police, the defendant stated that he had been touching B “in her vagina area” and that he “might have touched her breasts,” that “[t]his has been going on for about a year, but the amount of times was about 5 or 6 times at my house . . . .’’He stated that when he first began touching B, he did so under her clothes, that the last time he touched her was March 24,1998, and that during that incident, he “never put [his] penis in her, [but that] possibly [his] penis might have slipped between the lips of her vagina.”

Later on March 27, 1998, Ricks took B to Yale-New Haven for a full medical examination where B described the contact between the defendant and herself to Campbell, the clinical social worker there. Campbell testified at trial and, in the report that he wrote after his examination of B, stated that she had told him that “[m]y father put his private in my private.” Nash also interviewed B at Yale-New Haven and, in a report that he wrote, stated that she had told him that “daddy took off her clothes and put his private into her private.”

B testified on videotape that the defendant on more than one occasion, including in the final incident on March 24, 1998, had touched her with his hand both on top of and below her clothes on her private parts, in particular, below her waist and on her chest. That touching made her feel uncomfortable, and the defendant hurt her when he moved his hands while touching her.

“In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Lara-cuente, 57 Conn. App. 91, 95, 749 A.2d 34, 253 Conn. 923, 754 A.2d 798 (2000).

We also note that in contemplating the evidence, “[t]he jury is entitled to draw reasonable and logical inferences .... [T]he jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . [I]n considering the evidence introduced in a case, [j]uries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citation omitted; internal quotation marks omitted.) State v. Hollby, 59 Conn. App. 737, 743, 757 A.2d 1250, cert. denied, 254 Conn. 947, 762 A.2d 905 (2000).

The defendant’s sole challenge to his conviction under § 53a-70 (a) (2) is that the state failed to prove that he engaged in sexual intercourse with B. “Sexual intercourse” is defined by statute to include “vaginal intercourse [or] anal intercourse . . . between persons regardless of sex. . . . Penetration, however slight, is sufficient to complete vaginal intercourse [or] anal intercourse . . . and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body.” General Statutes § 53a-65 (2).

A

The evidence is sufficient to support the conviction as to the first count of sexual assault in the first degree during the period between March 23, 1997, and March 23, 1998.

The juiy heard testimony from B that the defendant had touched her private parts “a lot” of times. She testified that it happened more than once and on different days. The jury also heard testimony from Ricks that the defendant had stated that he had been fondling B’s breast and vaginal areas for more than one year. In his written statement to the police, the defendant stated that he had been touching B “in her vagina area” for about one year and had been touching her vagina under her clothes from the first instances of abuse.

Significantly, B testified that the defendant hurt her when he placed his hands under her clothes below her waist and moved his hands. Although that testimony initially was elicited with reference to the last time that the defendant had touched B, she stated that the touching occurred on previous occasions. B stated further that the defendant “did the same thing” when she was asked by the prosecutor what the defendant had done on the previous occasions. That testimony constitutes evidence from which a reasonable jury could infer that B also experienced pain on the other occasions when the defendant touched her.

Citing its decision in State v. Albert, 252 Conn. 795, 805, 750 A.2d 1037 (2000), our Supreme Court has noted that it has “concluded that, for purposes of first degree sexual assault by vaginal intercourse, the state need not prove penetration of the vagina, but, rather, penetration of the labia majora. ... In so concluding, we explained that a touching of the labium majora satisfies the penetration requirement of §§ 53a-70 and 53a-65 (2) because penetration of the labia majora constitutes penetration of the body . . . .” (Emphasis added; citation omitted; internal quotation marks omitted.) State v. Scott, 256 Conn. 517, 534, 779 A.2d 702 (2001). In Albert, the court rejected the defendant’s claim that he must put his finger “ ‘beyond the labia majora’ ” to fall within the definition of intercourse. State v. Albert, supra, 813. Significantly, the court then noted that even if it were to accept the defendant’s interpretation, the fact that the victim stated that the defendant’s touches hint her presented evidence from which a reasonable jury could have concluded that the defendant had put his finger beyond the victim’s labia majora. Id.

In this case, construing the evidence in the light most favorable to sustaining the jury’s verdict, the fact that the defendant hurt B, together with his admissions that he had been touching B in her vaginal area for more than one year and B’s statements to that effect, presented the jury with evidence from which it could conclude beyond a reasonable doubt that the defendant had penetrated B such that he committed vaginal intercourse, as that term is defined by our statutes and has been interpreted by our Supreme Court, on at least one occasion between March 23, 1997, and March 23, 1998. See id.; State v. Laracuente, supra, 57 Conn. App. 97. Accordingly, we conclude that the cumulative effect of the evidence was sufficient to allow the jury to find beyond a reasonable doubt that the defendant did, in fact, sexually assault the victim between March 23,1997, and March 23,1998.

B

The evidence also is sufficient to support the defendant’s conviction as to the second count of sexual assault in the first degree. With regal'd to that count, the state refutes the defendant’s contention that there is “absolutely no proof that sexual intercourse took place on a specifically referenced day” by referring to his written statement to the police. We agree with the state that the record reveals a very different quantum of evidence. Indeed, the jury heard evidence supporting the conclusion that the defendant had penetrated B on March 24, 1998, with his penis and while touching her with his hand.

The jury was entitled to believe the defendant when he stated to the police that his penis might have slipped between the lips of B’s vagina the last time that he “touched” her. The defendant stated that the date of that occurrence was March 24, 1998, at about 11 a.m. B’s mother also related the defendant’s statement describing March 24, 1998, as the last day that he had touched B. Further, Campbell and Nash testified that B had stated that the defendant put his private “in her private.” See State v. Albert, supra, 252 Conn. 813 (victim’s testimony that defendant touched “inside” her crotch presented evidence from which jury could have concluded defendant penetrated her vagina). Finally, as previously mentioned, B stated that on the last day of the abuse, when she was sick and home from school, the defendant “hurt” her when he touched her private parts. We conclude that the cumulative effect of the evidence was sufficient to allow the jury to find beyond a reasonable doubt that the defendant did, in fact, penetrate B and commit sexual assault in the first degree on March 24, 1998.

Ill

We next address the defendant’s claim that the court improperly admitted the testimony of John M. Leven-thal, a pediatrician and professor of medicine at Yale Medical School. Specifically, the defendant asserts that (1) Leventhal never was qualified as an expert witness and that he improperly testified as such, (2) the court improperly allowed him to testify as to his opinion on the ultimate issue in the case, namely, that penetration had occurred, (3) his testimony regarding the absence of physical injury was more prejudicial than probative and (4) his testimony regarding B’s statements to Ricks was inadmissible hearsay. The defendant has failed to brief adequately any of those arguments in support of his claim. Claims that are inadequately briefed are deemed abandoned, and we are not bound to review them. State v. Vicente, 62 Conn. App. 625, 632, 772 A. 2d 643 (2001). Accordingly, we decline to address those claims.

Practice Book § 67-4, entitled “The Appellant’s Brief; Contents and Organization,” requires the appellant to include several specific elements in his brief. The appellant must provide “[a] concise statement setting forth, in separately numbered paragraphs, without detail or discussion, the principal issue or issues involved in the appeal, with appropriate references to the page or pages of the brief where the issue is discussed, pursuant to subsection (d) hereof. ...” Practice Book § 67-4 (a). The appellant also must divide the argument “under appropriate headings . . . with appropriate references to the statement of facts or to the page or pages of the transcript or to the relevant document. ...” Practice Book § 67-4 (d). Further, “[t]he argument on each point shall include a separate, brief statement of the standard of review the appellant believes should be applied.” Practice Book § 67-4 (d). Additionally, “[w]hen 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.” Practice Book § 67-4 (d) (3).

The defendant has complied with none of those requirements with respect to his claims. First, in what he refers to as “Point I” in his principal brief, the defendant claims in one sentence that due process violations resulted from “the admission in evidence of unlawful testimony from police officers, social workers, a child abuse physician and [the] defendant that were incriminating and prejudicial . . . .” Second, the defendant failed to set forth a standard of review for any of the claims raised, let alone the claim at hand. Third, with regard to the specific evidentiary claims raised with respect to Leventhal’s testimony, the defendant failed to state separately and specifically for each adverse ruling the question, the objection and grounds therefor, the grounds for admissibility or the court’s ruling.

Moreover, the defendant failed to provide any meaningful analysis of the facts under the applicable constitutional provisions, and statutes, case law and evidentiary rules and rules of practice. Rather, he simply cites to them. “We are not required to review issues that have been improperly presented to this court through an inadequate brief.” (Internal quotation marks omitted.) State v. St. Pierre, 58 Conn. App. 284, 296, 752 A.2d 86, cert. denied, 254 Conn. 916, 759 A.2d 508 (2000). In light of the fact that the defendant has briefed his claims inadequately, we decline to afford review.

IV

The defendant also claims that the court improperly admitted portions of the testimony of Matchett, Nash and Richards. The defendant failed to object at trial in a timely manner to the admission of the testimony by Matchett and Richards, and does not on appeal request review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5. We “will not consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial and was ruled upon and decided by the trial court . . . .” (Internal quotation marks omitted.) Skrzypiec v. Noonan, 228 Conn. 1, 13, 633 A.2d 716 (1993). Additionally, with respect to Nash’s testimony, the defendant failed to brief the claim adequately. Not only did the defendant again fail to articulate his argument in accordance with the mies of appellate practice, but he also failed to provide the relevant portions of the record. Finally, he provides no legal analysis under, nor does he even refer us to, relevant legal authority. Accordingly, we decline to address his claim.

V

Last, we address the defendant’s claim that the court instructed the jury improperly with respect to the charge of sexual assault in the first degree, thereby depriving him of his due process rights. Specifically, the defendant argues that in marshaling the evidence, the court improperly (1) commented on Leventhal’s testimony and (2) lessened the state’s burden to prove every element of the charges beyond a reasonable doubt.

The defendant has failed to provide a record adequate for our review of his claim. Practice Book § 67-4 (d) (2) provides in relevant part: “When error is claimed in the charge to the jury, the brief or appendix shall include a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge. . . . Evidence relevant to the claimed error shall be recited in narrative form with appropriate references to the page or pages of the transcript.” Although the defendant has provided in the appendix to his brief the portions of the court’s instruction relevant to his claim, he does not provide the record of any relevant exceptions that he took to the charge, nor does he make the appropriate references to the transcript. Accordingly, we decline to review his claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with anolher person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Bev. to 1997) § 53-21 provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, shall be guilty of a class C felony.”

       For organizational clarity, we address the claims in an order different from that in which the defendant raised them.

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant cites to both the federal and state constitutions, but because he has “offered no separate and independent analysis of his claim under the state constitution, we confine our analysis to the United States constitution.” State v. Reed, 56 Conn. App. 428, 436, 742 A.2d 1285, cert. denied, 252 Conn. 945, 747 A.2d 524 (2000).

       A fourth officer also was at the defendant’s home during the interview.

       The courted ruled on the defendant’s motion to suppress, stating in relevant part: “I’m going rule that [the defendant] was in custody at the time that he was accosted by the police at [his home], that he was in custody while transported to the police department [and] that he was in custody while at the police department. I rule then that any statement that he made at the house is stricken as being improper and improperly taken because he wasn’t advised of his rights.
      “I’ll rule, however, that his consent and his waiver rights, the forms that he signed at the police department, were formally taken, were valid waivers and consent by him that he was fully [made aware under Miranda of] his rights at that lime so that any written statement that he gave from that point on . . . [was] a proper statement, and the court would rule that in.”

       Although the defendant claims three police officers were at the scene, Nash recalled that four officers were at the defendant’s home during the interview.

       Citing State v. Owen, 40 Conn. App. 132, 669 A.2d 606, cert. denied, 236 Conn. 912, 673 A.2d 114, cert. denied, 237 Conn. 922, 676 A.2d 1376 (1996), the defendant appears to argue that the evidence discussed could not be used to establish the date that the act or acts took place because constancy of accusation testimony cannot be used for that purpose. That argument is misplaced, as none of the testimony was admitted for constancy of accusation purposes.

       Practice Book § 67-4 provides in relevant part: “The appellant’s brief shall contain the following:
      “(a) A concise statement setting forth, in separately numbered paragraphs, without detail or discussion, the principal issue or issues involved in the appeal, with appropriate references to the page or pages of the brief where the issue is discussed, pursuant to subsection (d) hereof. The court, may refuse to receive a brief not complying with this requirement. Such statement, shall be deemed in replacement of and shall supersede the preliminary statement of issues.
      “(d) The argument, divided under appropriate headings into as many parts as there are points to be presented, with appropriate references to the statement of facts or to the page or pages of the transcript or to the relevant document. The argument on each point shall include a separate, brief statement of the standard of review the appellant believes should be applied.
      “(3) 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. . . .’’

       Even if we were to attempt to review his claim on the basis of the record provided, we would conclude that the defendant did not brief the claim adequately. In support of each argument in his claim, the defendant cited one case and provided no analysis whatsoever as to how those cases bear on the issues presented.
      Further, in his reply brief, the defendant appears to request, for the first time, plain error review regarding the court’s comment on Leventhal’s testimony. “[I]t is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 48 n.42, 717 A.2d 77 (1998).


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    JOSEPHINE BILLERBACK v. GREGORY CERMINARA ET AL.
    (AC 21618)
    Foti, Mihalakos and Flynn, Js.
    Argued May 6
    officially released September 17, 2002

      James K. Smith, for the appellant (plaintiff).

      J. Kevin Golger, for the appellees (defendants).
   Opinion

MIHALAKOS, J.

The plaintiff, Josephine Billerback, appeals from the summary judgment rendered by the trial court in favor of the defendants, Gregory Cermi-nara and Palma Cerminara. The issue presented is whether the court properly granted the defendants’ motion for summary judgment when it determined that the plaintiff could not bring her action under General Statutes § 52-593 after her first action had been dismissed for dormancy. The court concluded that the plaintiff could not bring a new action under § 52-593 because a judgment of dismissal for dormancy is not within the category of judgments in § 52-593 that permits her to avail herself of the statute’s savings clause. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of the plaintiffs appeal. On April 7, 1998, the plaintiff filed a complaint against Phil Cerminara and Nancy Cerminara, alleging that on May 4, 1996, she slipped and fell on their property. On September 10, 1998, while the April 7, 1998 complaint was pending, the plaintiff filed a separate complaint naming the defendants and alleging the same operative facts. The plaintiff contended that the second complaint could be brought under the savings clause of § 52-593 because Gregory Cerminara and Palma Cer-minara were, in fact, the proper defendants, and Phil Cerminara and Nancy Cerminara were named improperly in the original complaint. On June 18, 1999, more than nine months after the filing of the second complaint, the April 7, 1998 complaint was dismissed for dormancy pursuant to Practice Book § 14-3.

On November 13,1998, the defendants filed a motion for summary judgment in the second action, asserting that the plaintiff could not avail herself of the protection afforded under § 52-593 because she had not received a judgment of dismissal for the initial action founded on the failure to name the correct defendant. The plaintiff responded by explaining that she had filed the second complaint shortly after she discovered that the wrong defendants had been named in the initial complaint. The plaintiff, however, admitted that instead of waiting for a judgment in the original case, she brought a second action to control unnecessary costs and avoid possibly vexatious litigation. On January 23, 2001, the court granted the defendants’ motion for summary judgment. Finding no genuine issue of material fact, the court concluded that the claim was time barred by the statute of limitations embodied in General Statutes § 52-584 and, therefore, that the defendants were entitled to judgment as a matter of law. Further, the court concluded that the plaintiff could not avail herself of § 52-593 because the dismissal of her case was not for “failure to name the right person as defendant”; General Statutes § 52-593; but for dormancy, which does not fall into the category of judgments required by the statute. This appeal followed.

The plaintiff claims that the court improperly concluded that § 52-593 was inapplicable and thereby improperly granted the defendants’ motion for summary judgment. We disagree.

We begin by setting forth our standard of review. “The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary 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. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Citations omitted; internal quotation marks omitted.) Kronberg v. Peacock, 67 Conn. App. 668, 671, 789 A.2d 510, cert. denied, 260 Conn. 902, 793 A.2d 1089 (2002). This court must decide, on review, “whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the trial court rendered judgment for the [defendants] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Citation omitted; internal quotation marks omitted.) Isidro v. State, 62 Conn. App. 545, 548-49, 771 A.2d 257 (2001). In accordance with that standard, we must determine whether the court’s interpretation of § 52-593 was legally correct.

We now turn to the issue raised by the plaintiff in this appeal. Section 52-593 provides in relevant part that “[w]hen a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto ... [if] the new action is made within one year after the termination of the original action. ...” (Emphasis added.) The language of the statute means that once the plaintiff discovered that she had filed a complaint against an improper party, she could file the claim against the correct party, and not be barred by the statute of limitations, only “after the termination of the original action” for “failure to name the right person as defendant” in the first action.

According to the plaintiff, § 52-593 should have been interpreted broadly to encompass situations in which a plaintiff in an original action named the wrong defendant by mistake, but failed to obtain the necessary judgment in that action before filing a second action. In other words, the plaintiff argues that § 52-593 may be applied to benefit cases in which the plaintiff in the original action mistakenly named the wrong defendant and, instead of acquiring the required judgment “by reason of failure to name the right person as defendant,” began a second action before the first action concluded. We are not persuaded.

The plaintiff concedes, and we agree, that if her action is not saved by § 52-593, it is time barred by § 52-584, the statute of limitations. The plaintiff does not challenge the fact that the court dismissed the first action for dormancy on June 18, 1999, and the fact that she did not make any effort to open that judgment. Further, the plaintiff agrees that she commenced the second action on September 10, 1998, more than four months after the statute of limitations had run on her cause of action and more than nine months before she obtained judgment on the April 7, 1998 complaint. Finally, the plaintiff concurs that the judgment rendered in the first action was not the appropriate judgment required by § 52-593.

First, the plaintiff argues that she could not continue litigating the original action to secure the appropriate judgment because if she had, she would have been responsible for Phil Cerminara’s and Nancy Cerminara’s court costs as well exposing herself to a possible vexatious litigation action. Next, the plaintiff, relying on Parrott v. Meacham, 161 Conn. 573, 290 A.2d 335 (1971), asserts that she believed she could not withdraw the original action voluntarily and still initiate an action under § 52-593. See id., 575 (discussing effect of voluntary withdrawal in relation to General Statutes § 52-592). Although the plaintiff was aware that allowing the first action to be dismissed for dormancy would undermine her ability to enforce § 52-593, she did so regardless. See Vessichio v. Hollenbeck, 18 Conn. App. 515, 520, 558 A.2d 686 (1989) (holding that trial court did not err in concluding that § 52-593 was inapplicable to action for dismissal for failure to prosecute with due diligence). The plaintiff in the interim filed a new action against the proper defendants. Nevertheless, the plaintiff did not meet the requirements to enable her to apply § 52-593 to save her cause of action.

“The plaintiffs interpretation is contrary to our Supreme Court’s interpretation of the statute. Our Supreme Court has recognized that § 52-593 applies only in circumstances in which the plaintiffs original action failed by reason of naming, in fact, the wrong defendant; that is, in cases in which the naming of the wrong defendant was the product of a reasonable and honest mistake of fact as to the identity of the truly responsible individual.” Isidro v. State, supra, 62 Conn. App. 549-50; see also Perzanowski v. New Britain, 183 Conn. 504, 507, 440 A.2d 763 (1981); Vessichio v. Hollenbeck, supra, 18 Conn. App. 520. Here, that is not the case. The plaintiff was free to pursue the original action to obtain a judgment for failure to name the proper defendants and then, after the judgment was rendered, make the second claim. In the alternative, the plaintiff could have sought to open the judgment for dormancy, receive the proper judgment and then pursue the second claim. Whether the plaintiff made a tactical choice or not, she did not pursue either opportunity. Further, we have stated that “following the plaintiffs logic would undermine the statute of limitations because a plaintiff could unilaterally extend the limitation period simply by filing an action against a defendant who could not be liable based on a legal theory.” Isidro v. State, supra, 62 Conn. App. 550-51. We hold that applying the exception offered by the plaintiff would render the statute meaningless and circumvent the purposes of the doctrine itself. “To allow [such an] action to continue at this time would defeat the basic purpose of the public policy that is inherent in statutes of limitation, i.e., to promote finality in the litigation process. ... In the course of interpreting a similar- statute that provides refuge from the statute oflimitations, we noted that [although [General Statutes] § 52-592 is a remedial statute and must be construed liberally ... it should not be construed so liberally as to render statutes of limitation virtually meaningless.” (Citation omitted; internal quotation marks omitted.) Isidro v. State, supra, 551. Similarly, we conclude that the same logic applies to § 52-593 and that the court properly determined that § 52-593 did not apply to the plaintiffs case.

We conclude that the court was correct in determining that there was no genuine issue as to any material fact and that the defendants were entitled to judgment as a matter of law. The plaintiff has failed to satisfy all the criteria in § 52-593 and, therefore, her action is time barred and her claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-593 provides in relevant part,: “When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after the termination of the original action. If service of process in the original action has been made upon an agent of the defendant named in the new action . . . notice of any claim for damage shall be sufficient il' given in the original action, pursuant to statutory provisions, to any officer or agent of the defendant in the new action.”

       Practice Book § 14-3 (a) provides in relevant part: “If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action ... or on its own motion, render a judgment dismissing the action with costs. . . .”

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       We recognize that the result reached today is rather draconian. Nevertheless, we are constrained by the language of the statute as interpreted by our precedent. We agree with Justice Shea in his concurring opinion in Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 75, 540 A.2d 59 (1988) (Shea, J., concurring), in which he explained that the Supreme Court “took the wrong course many years ago when we began to treat virtually every deviation from the statutory norm as a defect .... We have been traveling down this path for too long ... to turn back at this late time without some legislative direction.” Nevertheless, Justice Shea stated that “[s]ince these procedures are commonly set forth in imperative language, it has not been wholly unreasonable to give them mandatory import and thus to regard any nonconformity as fatal to the appeal even though . . . such a result was far from inevitable.” Id. Thus, Justice Shea concluded that “much as I deplore the jurisprudential path we have taken, I am constrained to continue upon it until such time as we may be directed otherwise by legislative authority.” Id., 76. Accordingly, we also are limited here by the language of General Statutes § 52-593 until the legislature chooses to remedy the situation.


author: PETERS, J.

text:
    DOCTOR'S ASSOCIATES, INC. v. DANIEL KEATING ET AL.
    (AC 21995)
    Lavery, C. X, and Spear and Peters, Js.
    Argued March 20
    officially released September 17, 2002

      Brenden P. Leydon, for the appellants (defendants).

      Kevin M. Kennedy, with whom, on the brief, was Jonathan W. Haray, for the appellee (plaintiff).
   Opinion

PETERS, J.

This case concerns the authority of the Superior Court to enforce an arbitration clause in a franchise agreement. As part of the arbitration clause, the parties agreed that arbitration would take place in Bridgeport, Connecticut. The franchisor brought four applications in the Superior Court to compel the franchisees to arbitrate. All but one of the franchisees are residents of Florida. The principal question in this case is whether the trial court properly concluded that the selection of Connecticut as the arbitral forum is sufficient to confer on a Connecticut judicial forum personal jurisdiction over the franchisees. The franchisees have appealed from the court’s granting of the franchisor’s applications for orders requiring the franchisees to proceed with arbitration in Bridgeport. We affirm the judgments of the court.

The plaintiff, Doctor’s Associates, Inc., is the franchisor of numerous Subway sandwich shops around the country. It is a Florida corporation that has its principal place of business in Fort Lauderdale. The defendant Daniel Keating is a present or former Subway franchisee in this state. The defendants Ruth Reed, Dennis M. DeSpain, Terry L. DeSpain and Charles Smith III (Florida defendants) are or have been Subway franchisees in Florida.

Having filed a proper demand for arbitration with the American Arbitration Association, the plaintiff sought court orders compelling the defendants to proceed with arbitration. See General Statutes § 52-410; 9 U.S.C. § 2. In accordance with the forum selected in each of the franchise agreements, it asked the court to designate Bridgeport as the venue for the arbitration.

In response, the defendants filed two motions. The Florida defendants filed motions to dismiss in which they asserted that the court lacked personal jurisdiction over them. All the defendants filed motions for stay in which they urged the trial court to stay its hand because of ongoing proceedings in Illinois.

The trial court denied the motions to dismiss and declined to order a stay. The defendants appeal from the orders directing them to proceed with arbitration. We have examined each of their contentions and find them unpersuasive.

I

We first address the jurisdictional issues raised by the Florida defendants. Pursuant to Practice Book § 10-30, each of these defendants filed a motion to dismiss the plaintiffs complaint for lack of personal jurisdiction over them. “A motion to dismiss admits all facts well pleaded and invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts. ... A ruling on a motion to dismiss is neither a ruling on the merits of the action . . . nor a test of whether the complaint states a cause of action. . . . Motions to dismiss are granted solely on jurisdictional grounds.” (Citations omitted; internal quotation marks omitted.) Olson v. Accessory Controls & Equipment Corp., 54 Conn. App. 506, 515, 735 A.2d 881 (1999), aff'd, 254 Conn. 145, 757 A.2d 14 (2000). The Florida defendants denied having any connections with this state that would warrant the exercise of personal jurisdiction over them. The court denied the motions to dismiss.

On appeal, as at trial, “[i]n ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410-11, 722 A.2d 271 (1999); Tooley v. Metro-North Commuter Railroad Co., 58 Conn. App. 485, 491, 755 A.2d 270 (2000). It nonetheless is the law that the plaintiff has the burden to prove facts pertaining to personal jurisdiction. Knipple v. Viking Communications, Ltd., 236 Conn. 602, 607, 674 A.2d 426 (1996); Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 53-54, 459 A.2d 503 (1983); Gaudio v. Gaudio, 23 Conn. App. 287, 298, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990).

The court applied these standards in denying the Florida defendants’ motions to dismiss. It concluded that, in light of the express terms of the franchise agreement, the plaintiff had established the necessary predicate for personal jurisdiction. In the franchise agreements, each of the Florida defendants had agreed that “ [a]ny controversy or claim arising out of or relating to this contract or the breach thereof shall be settled by Arbitration in accordance with the Commercial Arbitration Rules of the American Association at a hearing to be held in Bridgeport, Connecticut . . . .” The defendants also had agreed that Connecticut law would govern the interpretation and applicability of the franchise agreement. The court held that consent to those provisions manifested consent to the jurisdiction of a Connecticut court.

The Florida defendants acknowledge that it is possible to consent to personal jurisdiction in a state in which they do not reside. They maintain that they did not do so. Their principal contention is that, without an express condition of consent, the forum selection clause is ambiguous and therefore must be construed against the plaintiff, which drafted it. See Mongillo v. Commissioner of Transportation, 214 Conn. 225, 231, 571 A.2d 112 (1990); Rund v. Melillo, 63 Conn. App. 216, 222, 772 A.2d 774 (2000). They argue that the court’s enforcement of the forum selection clause is unfair to defendants who, as Florida residents, had no reason to expect that a Florida corporation would sue them in Connecticut and force them to incur additional expenses in defending themselves in a foreign forum.

We agree with the trial court and the plaintiff that the defendants’ arguments cannot be sustained. We do not understand how an arbitration can be expected to go forward in this state if there is no way to compel both parties to appear in this state. As the United States Court of Appeals for the Second Circuit aptly has held: “To hold otherwise would be to render the arbitration clause a nullity.” (Internal quotation marks omitted.) Doctor’s Associates, Inc. v. Stuart, 85 F.3d 975, 979 (2d Cir. 1996). Although a forum selection clause may be ambiguous, this one is not.

Our construction of the arbitration clause finds support in federal and state court cases interpreting language identical to or closely resembling that contained in the franchise agreement that is at issue here. Illustrative cases include We Care Hair Development v. Engen, 180 F.3d 838 (7th Cir. 1999); Subway Equipment Leasing Corp. v. Forte, 169 F.3d 324 (5th Cir. 1999); Doctor’s Associates, Inc. v. Distajo, 107 F.3d 126 (2d Cir.), cert. denied, 522 U.S. 948, 118 S. Ct. 365, 139 L. Ed. 2d 284 (1997); Doctor’s Associates, Inc. v. Stuart, supra, 85 F.3d 975; Gilbert v. Burnstine, 255 N.Y. 348, 174 N.E. 706 (1931).

The defendants cite only one case to the contrary. See Jackson v. Kentucky River Mills, 65 F. Sup. 601 (E.D. Ken. 1946). That case is distinguishable because there the arbitration agreement provided that the parties “consent that the arbitration shall be enforceable under and pursuant to the laws of the State, Country or Government having jurisdiction . . . .’’Id., 602. By contrast, the agreement that is before us specifies that Connecticut law, and only Connecticut law, would govern the interpretation and application of the franchise agreement. Jackson, therefore, does not assist our resolution of this case.

In light of the unequivocal language of the forum selection clause and the interpretation that this clause has uniformly received in other courts, we conclude that all of the defendants had consented to the exercise of personal jurisdiction in a court in this state. It is not unfair to expect contracting parties to live up to the terms of a franchise agreement to which they agreed. The court resolved this issue properly.

One of the Florida defendants raises a related but different jurisdictional claim. The defendant Terry DeSpain argues that the trial court did not have personal jurisdiction over her because she was not properly served with process. She relies on General Statutes § 52-410 (a), which provides that service be made “in the manner provided by law.” She claims that service on her counsel did not suffice.

In its memorandum of decision, the court observed that, on October 4, 2000, DeSpain had been notified of the pending proceedings through her attorney, the attorney presently representing all the defendants. The attorney filed an appearance on her behalf six days later. The court observed that “[the] defendants do not question that notice was given regarding the statutory proceeding to compel arbitration.” Only thereafter did the court address the rules governing service of process of an application for enforcement of an arbitration agreement.

The principal focus of the defendants’ brief concerning personal jurisdiction over DeSpain is the absence of service on her personally. She discounts the significance of service on her attorney. This argument seems to confuse the necessity of proper service, which is undisputed, with the alleged necessity of personal service. Pursuant to Practice Book § 10-12 (a), “[w]hen a party is represented by an attorney, the service shall be made upon the attorney . . . .”

In discussing personal service in the reply brief, DeSpain argues, for the first time, that service on her attorney was untimely. She maintains that the issue of timeliness had not been on the table before it was raised by the plaintiffs brief as appellee. That contention overlooks the fact that the trial court expressly stated the dates of service and appearance. If there was a question about timeliness, it could and should have been raised earlier. As has been noted on many occasions, a reply brief is not the proper vehicle for curing an omission in the appellant’s brief. See, e.g., Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 659 n.2, 594 A.2d 958 (1991); Kelley v. Tomas, 66 Conn. App. 146, 163, 783 A.2d 1226 (2001).

II

At trial, the defendants moved the court for a stay because of pending proceedings that they had initiated in Illinois. The court declined to grant a stay. On appeal, we must decide whether the court abused its discretion in so doing. The defendants’ motion is premised on the hypothesis that an Illinois court would have jurisdiction to enforce an agreement to arbitrate that designates Connecticut as the arbitral forum. That is not so.

The defendants’ appendix contains the text of some of the provisions of the Uniform Arbitration Act, which Illinois has codified as 710 Ill. Comp. Stat. 5/1 et seq. The cited provisions describe the validity of arbitration agreements and the mies governing judicial enforcement of such agreements. The defendants seem to have overlooked a subsequent provision in the same act. Section 5/16 provides: “Court, jurisdiction. The term ‘court’ means any circuit court of this State. The making of an agreement described in Section 1 providing for arbitration in this Stale confers jurisdiction on the court to enforce the agreement under this Act and to enter judgment on an award thereunder.” (Emphasis added.)

The defendants argue that we should ignore this statute because the plaintiff first brought it to judicial attention in its oral argument in this court. This argument is disingenuous at best. Having included the text of 710 Ill. Comp. Stat. 5/1 and 5/2 in their appendix, the defendants were on notice of other provisions of the Uniform Arbitration Act.

Looking to related statutes to give guidance to the scope of a particular' statute is a common practice in the courts of this state. For example, in Common Fund v. Fairfield, 228 Conn. 375, 636 A.2d 795 (1994), our Supreme Court considered a corporation’s eligibility for a charitable exemption under General Statutes §§ 12-81 (7) and 12-89a. Section 12-89a cites Internal Revenue Code § 501 (c) and (d) of title 26 of the United States Code as establishing the criteria for such an exemption. The court held that the determinative federal statute was § 501 (f). Common Fund v. Fairfield, supra, 381-83. In support of its holding, the court relied on the principle that, “[b]ecause the legislature is always presumed to have created a harmonious and consistent body of law, the proper construction of any statute must take into account the mandates of related statutes governing the same general subject matter.” Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 575, 522 A.2d 763 (1987); Felia v. Westport, 214 Conn. 181, 187, 571 A.2d 89 (1990); State v. West, 192 Conn. 488, 494, 472 A.2d 775 (1984); Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 422, 426 A.2d 1324 (1980). Illinois courts adhere to the same principle. See, e.g., Maiter v. Chicago Board of Education, 82 Ill. 2d 373, 389, 415 N.E.2d 1034 (1980), cert. denied, 451 U.S. 921, 101 S. Ct. 2000, 68 L. Ed. 2d 312 (1981); Chicago School Reform Board of Trustees v. Illinois Educational Labor Relations Board, 309 Ill. App. 3d 88, 94, 721 N.E.2d 676 (1999), appeal denied, 188 Ill. 2d 562, 729 N.E.2d 494 (2000).

In light of the Illinois statute, a stay of Connecticut proceedings would have served no purpose other than delay because Illinois courts could not mandate arbitration in Connecticut. The court’s denial of the defendants’ motion was not an abuse of its discretion.

The judgments are affirmed.

In this opinion the other judges concurred.

       At oral argument, the parties agreed that, as a matter of substance, the arbitration must proceed according to federal law as it is set out in the Federal Arbitration Act, 9 U.S.C. § 1 et seq. See Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996); Southland Corp. v. Keating, 465 U.S. 1, 104 S. Ct. 852, 79 L. Ed. 2d 1 (1984). They also agree that the issues before us are procedural and thus governed by state law.

       This contention strikes us as anomalous in light of the action that they themselves initiated in Illinois.

       At oral argument, the attorney for the defendants was unable to point to any language in the arbitration clause that was ambiguous.

       The defendants do not claim that the forum selection clause was unconscionable.

       We note that the Florida Arbitration Act, which does not allow Florida courts to compel arbitration in another state, is to the same effect. See Acton CATV, Inc. v. Wildwood Partners, Ltd., 19 Conn. App. 235, 236-37 n.1, 561 A.2d 976 (1989); Acton CATV, Inc. v. Wildwood Partners, Ltd., 508 So. 2d 1274, 1275 (Fla. App.), review denied, 518 So. 2d 1273 (Fla. 1987).


text:
    VINCENT J. DOUTHWRIGHT ET AL. v. NORTHEAST CORRIDOR FOUNDATIONS ET AL.
    (AC 21988)
    Mihalakos, Flynn and Peters, Js.
    Argued May 3
    officially released September 17, 2002

      Janet M. Helmke, with whom, on the brief, was Joshua L. Milrad, for the appellants (named defendant et al.).

      Matthew Shafner, with whom, on the brief, was Amy M. Stone, for the appellees (plaintiffs).
   Opinion

PETERS, J.

This case concerns the applicability of the doctrine of accord and satisfaction, a common-law doctrine that, for negotiable instruments such as checks, has now been codified in article three of the Uniform Commercial Code, General Statutes § 42a-3-311. Invoking this doctrine, a debtor maintains that its belated payment of the principal amount of a debt discharged it of any obligation to pay interest on the debt because its payment check was accompanied by a letter stating that the check was tendered as an accord and satisfaction.

A precondition of an enforceable accord and satisfaction is that the tender of payment occur in the context of a good faith dispute about the amount of an unpaid debt. This was the rule at common law and, for checks, it is now the rule of § 42a-3-311 (a). See Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 764-65, 674 A.2d 1313 (1996); see also County Fire Door Corp. v. C. F. Wood ing Co., 202 Conn. 277, 282 n.3, 520 A.2d 1028 (1987); Munroe v. Emhart Corp., 46 Conn. App. 37, 42-43, 699 A.2d 213, cert. denied, 243 Conn. 926, 701 A.2d 658 (1997). The trial court found that the debtor did not prove that it had satisfied this precondition because, at the time when the check was sent, the amount of the debt, both as to principal and as to interest, was liquidated and therefore not subject to a good faith dispute.

In its appeal, the debtor contests the validity of the court’s refusal to apply the doctrine of accord and satisfaction. We, however, are persuaded that the court’s decision is amply supported by the facts of record at trial. Accordingly, we affirm the judgment of the court ordering the payment of interest for the time between the accrual of the debt and the acceptance of the check.

On February 13,2001, the plaintiff Vincent J. Douthwright filed a motion pursuant to General Statutes § 52-195c for a default judgment arising out of the failure of the named defendant et al. to pay their full share of an oral settlement agreement. The agreement entitled the plaintiff to recover $3.2 million as settlement of his tort action to recover damages for serious injuries that he received when concrete pylons rolled off a truck and crushed his leg. Pursuant to the agreement, the defendants were obligated to pay $2.5 million of that sum. Although the defendants’ primary insurer had paid $1 million, the defendants’ excess insurance carrier had refused to pay the remaining $1.5 million.

The plaintiff sought a default judgment in the amount of $1.5 million plus interest. In response, on March 13, 2001, the defendants denied that the settlement agreement imposed upon them an obligation to pay the plaintiff immediately.

On March 26, 2001, the parties appeared before the court for an initial hearing on the motion for default. Subsequent to that hearing, the defendants sent the plaintiff a check in the amount of $1.5 million, accompanied by a cover letter. The amount of the check represented the principal sum then due. It did not include any payment of interest.

On May 8, 2001, after an evidentiary hearing, the trial court rendered judgment in favor of the plaintiff in the amount of $40,931.45. That amount represented interest at the rate of 12 percent per year as specified in § 52-195c (d) for the period between February 2,2001, when the defendants’ payment became due, and April 25, 2001, when the defendants paid $1.5 million.

As the basis for its judgment, the court made two central findings of fact. One concerned the terms of the settlement agreement and the other concerned the date when the defendants’ obligation to pay became due. The defendants’ appeal challenges the propriety of these findings as they relate to their claim of accord and satisfaction.

Our review of the defendants’ appeal is governed by the well established principle that an appellate court will overturn the factual findings of a trial court only if these findings are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). “A finding is clearly erroneous 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. In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence.” (Internal quotation marks omitted.) Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985); see also Practice Book § 60-5; Place v. Waterbury, 66 Conn. App. 219, 222, 783 A.2d 1260 (2001); Nelson v. Nelson, 13 Conn. App. 355, 359, 536 A.2d 985 (1988).

To support their claim of accord and satisfaction, the defendants maintain that the trial court improperly determined the terms of an oral settlement agreement to which the parties had agreed on December 15, 2000. The court found that the agreement unconditionally entitled the plaintiff to receive $3.2 million in full settlement of his claims against the defendants and New England Pipe Corporation. On an interim basis, the agreement allocated $2.5 million of this payment to the defendants. Further, the agreement provided that the ultimate allocation of payments between the defendants and New England Pipe Corporation would be decided by a subsequent arbitration. The court’s final and most significant finding was that the settlement agreement entitled the plaintiff to immediate payment and that this payment was not conditioned on the execution of the contemplated arbitration agreement. The defendants disagree with the finding that the plaintiff should have been paid immediately.

The court based its finding on the testimony of all the participants in the settlement proceedings. The defendants’ counsel testified that, at the time of the settlement negotiations, he had made it clear that the settlement was contingent upon the execution of the contemplated arbitration agreement between the defendants and New England Pipe Corporation. This testimony was flatly contradicted by the testimony of the other four attorneys who participated in the mediation that led to the settlement agreement. One of these attorneys was the mediator. The court expressly found that, even though the defendants’ counsel believed his testimony to be accurate, the testimony was not credible.

“It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . Where testimony is conflicting the trier may choose to believe one version over the other ... as the probative force of the evidence is for the trier to determine.” (Citation omitted; internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 327, 796 A.2d 516 (2002), citing State v. Santiago, 245 Conn. 301, 318, 715 A.2d 1 (1998). We, therefore, defer to the trial court’s credibility assessments and conclude that there was ample evidence in the record to support its findings about the terms of the settlement agreement.

Having determined that the settlement agreement entitled the plaintiff to immediate payment, the trial court found that the defendants’ debt matured upon the plaintiffs delivery of the appropriate releases and the withdrawal of his complaint. See General Statutes § 52-195c (a). The plaintiff fulfilled his responsibilities on January 2, 2001. Accordingly, the defendants’ debt became due and payable on February 2,2001. The defendants’ only challenge to this finding is their aforementioned contention that the settlement agreement was not unconditional. That claim we have already rejected.

The court’s finding that the plaintiff was unconditionally entitled to payment on February 2, 2001, knocked out the underpinnings of the defendants’ claim that their obligation to pay interest was discharged by their tender and payment of a check in the principal amount of their indebtedness. In order to obtain such a discharge, the defendants bore the burden of proving not only that there was “a dispute” between the parties, but also that the amount of the plaintiffs claim was “unliquidated or subject to a bona fide dispute . . . .” General Statutes § 42a-3-311 (a) (ii).

After February 2, 2001, there was no basis for a good faith dispute about the defendants’ indebtedness to the plaintiff. Likewise, there was no basis for a good faith dispute about the amount of the defendants’ indebtedness for interest. Section 52-195c unequivocally required the defendants to pay interest at the rate of 12 percent per year after February 2, 2001. Under these circumstances, the court found that the defendants’ letter stating that the check was tendered as full satisfaction of its indebtedness had no legal effect.

We are persuaded that the court’s findings must be sustained. The defendants did not satisfy the burden of proof assigned to them by § 42a-3-311 (a) or by the common law. We conclude, therefore, that the defendants have not provided any sustainable basis for their argument that the trial court’s judgment should be set aside. None of the court’s findings of fact was clearly erroneous.

In a last ditch effort to avoid their obligation to the plaintiff, the defendants maintain that the court lost jurisdiction over the plaintiffs claim for relief once the plaintiff withdrew its motion for default judgment. This argument would be difficult to sustain in light of § 52-195c (a), to which the defendants do not refer. We need not consider its merits, however, because it was never presented to the trial court. See Practice Book § 60-5.

The court properly rendered a judgment entitling the plaintiff to recover interest in the amount of $40,931.45.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although there are differences between the statute and the common law, those differences are not relevant under the circumstances of this case.

       General Statutes § 42a-3-311 provides in relevant part: “Accord and satisfaction by use of instrument, (a) If a person against whom a claim is asserted proves that (i) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (ii) the amount of the claim was unliquidated or subject to a bona fide dispute, and (iii) the claimant obtained payment of the instrument, the following subsections apply.
      “(b) Unless subsection (c) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim. . . .
      “(d) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.”

       The plaintiffs wife, Sandra Douthwright, also was named as a plaintiff. She claimed a right to recover for loss of consortium resulting from her husband’s injuries. For present purposes, her right to recover depends upon the viability of her husband’s cause of action. For the sake of convenience, we will refer to Vincent Douthwright as the plaintiff.

       General Statutes § 52-195c provides in relevant part: “Time period for payment of settlement amount, (a) When an action to recover damages has been settled, any settling defendant shall tender all sums due from such settling defendant to any settling plaintiff or such plaintiffs agent not later than thirty days after receipt by the person or office designated in writing to the settling plaintiff or such plaintiffs agent by the settling defendant at the time of settlement of a duly executed release and a withdrawal discontinuing any court action, if any such action is pending, that are tendered by such settling plaintiff or plaintiffs agent and are executed by or on behalf of the settling plaintiff. . . .
      “(c) In the event that a settling defendant or insurer fails to promptly tender all sums as required by subsection (a) of this section, a default judgment shall be entered by the court on behalf of any unpaid plaintiff against such defendant twenty days after such plaintiff files a motion for a default judgment with the court and serves such motion upon the representative of the insurer with whom the settlement was reached or the defendant with whom the settlement was reached. Such motion shall be accompanied by an affidavit executed by the plaintiff or the plaintiff’s attorney setting forth the terms of such settlement with supporting documentation attached.
      “(d) Any insurer or defendant with whom the settlement was reached that fails to tender settlement proceeds within the time limit set forth in this section shall be liable for interest at a rate of twelve per cent a year on the amount of such settlement proceeds computed from the date such time limit expired.”

       Northeast Corridor Foundations is a consortium that includes other defendants named in this action, Balfour Beatty Construction, Inc., Mass Electric Construction Co., Inc., and J.F. White Construction Co., Inc. David Gilman is an additional defendant who is not part of the consortium, but who was an employee of J.F. White Construction Co., Inc. We refer in this opinion to the Northeast Corridor Foundations consortium and Gilman as the defendants. The codefendant New England Pipe Corporation is not involved in the plaintiffs’ motion for default or the court’s order to pay interest. We refer to New England Pipe Corporation by name.

       At that time, the defendants indicated that they would issue a check to the plaintiff for $1.5 million. The plaintiff reasserted his right to interest on the delayed payment.

       See footnote 4.

       The check was accompanied by a letter, dated April 24, 2001, stating: “As you know, it is our position that any settlement of the above-referenced matter [Douthwright v. Northeast Corridor Foundations, Docket No. X04CV-98-0119322S] was expressly contingent upon the defendants reaching an agreement with respect to arbitration. We understand you disagree with that position and, as a result, seek interest on the settlement amount to be paid by my clients. We dispute that any interest is owing.
      “Despite our dispute, we hereby enclose American Alternative Insurance Corporation’s check # 0018404361 on behalf of defendants Northeast Corridor Foundations, Balfour Beatty Construction, Inc.., Mass Electric Construction, Inc., J.F. White Corporation and David Gilman in the amount of $1.5 million made payable to “Matthew Shafner, Esq. Attorney for Vincent & Sandra Douthwright” in full and final settlement of the referenced matter.”
      The plaintiffs counsel responded on May 1, 2001, in a letter stating: “I received the check for Mr. and Mrs. Douthwright in the amount of $1,500,000 on Wednesday, April 25, 2001 by Federal Express delivery. While I cannot agree that this is a full and final settlement in view of the pending motion, I do thank you for sending the check at this time.”

       General Statutes § 42a-3-311 (b) further conditions a discharge on the debtor’s proof of “a conspicuous statement to the effect that the instrument was tendered as full satisfaction” of the disputed debt. The court found that the letter sent by the defendant did not communicate its intent to seek discharge of its principal obligation as well as of its indebtedness for interest. Presumably, this failure of communication means that the requirements of subsection (b) were also not met.


author: WEST, J.

text:
    JOHN SEMRAU v. JULIE A. HERRICK
    (AC 21709)
    Lavery, C. J., and Mihalakos and West, Js.
    Argued May 29
    officially released September 17, 2002

      Anita M. Varunes, with whom, on the brief, was Nicholas C. Varunes, for the appellant (defendant).

      Michael G. Rigg, for the appellee (plaintiff).
   Opinion

WEST, J.

The defendant, Julie A. Herrick, appeals from the trial court’s judgment ordering a new trial in the negligence action filed by the plaintiff, John Semrau. The court ordered an additur to the jury verdict in favor of the plaintiff following a hearing in damages. On appeal, the defendant claims that the court improperly granted the additur on the basis of an improper conclusion that the verdict was inadequate as a matter of law. Because we conclude that the defendant, having accepted the additur, lacks standing to challenge that order, we dismiss the appeal.

The following facts are relevant to our resolution of the defendant’s appeal. The plaintiff filed an action against the defendant in connection with injuries that he sustained in a motor vehicle accident that occurred on March 2, 1998. He alleged that as a result of the defendant’s negligence, he was injured when her automobile struck his car from behind. The plaintiff filed a motion for summary judgment as to the issue of liability, which motion the court granted on September 14,1999. A hearing in damages subsequently was tried to the jury on December 8 and 12, 2000. The jury returned a verdict awarding the plaintiff $3200 in economic damages for medical expenses that he incurred as a result of the accident. The jury did not award any noneconomic damages for pain and suffering.

The plaintiff thereafter filed a motion to set aside the verdict and for the court to order an additur in an amount that the court deemed reasonable and commensurate with fair, just and reasonable damages. In response, the defendant filed an objection to the plaintiff’s motion to set aside verdict and for an additur, arguing that the jury’s verdict was supported by the evidence and that there was no basis on which to order an additur. The court ordered an additur in the amount of $5000 for the pain and suffering that the plaintiff had experienced between March 2, 1998, and May 30, 2000, the date of a subsequent car accident in which he was involved. The plaintiff did not accept the additur, but instead requested a new trial. The defendant filed a motion to reargue her previous objection to the motion for an additur and for the court to reconsider its judgment ordering the additur, which motion the court denied. In the alternative, the defendant accepted the additur for a total verdict of $8200. The court denied the defendant’s motion to reargue. This appeal followed.

After oral argument of this appeal, we ordered the parties to file supplemental briefs to address whether the defendant has standing to appeal from the granting of the plaintiffs motion for an additur. Specifically, we ordered the parties to address the following issue: “Is a party who agrees to the granting of an additur aggrieved for puiposes of appeal from the granting of the additur?”

We first address the question of whether the defendant, having accepted the additur, has standing to appeal from the order of the court granting the plaintiffs motion for additur. We conclude that the defendant does not have standing and, therefore, we do not reach the merits of her argument.

“Where a party lacks standing to appeal, the court is without subject matter jurisdiction. ... A possible absence of subject matter jurisdiction must be addressed and decided whenever the issue is raised. . . .' [W]henever a lack of jurisdiction to entertain a particular proceeding comes to a court’s notice, the court can dismiss the proceeding upon its own motion.” (Citation omitted; internal quotation marks omitted.) Marine Midland Bank v. Ahern, 51 Conn. App. 790, 797, 724 A.2d 537 (1999), appeal dismissed, 252 Conn. 151, 745 A.2d 189 (2000).

The question of the defendant’s standing to bring this appeal requires us to consider the relationship between General Statutes §§ 52-228a and 52-228b. General Statutes § 52-228b provides that before the court can set aside a jury verdict and order a new trial, it must provide the parties with an opportunity to accept or to reject any court-ordered additur to the jury verdict. Section 52-228a provides an aggrieved party with the right to appeal an order of additur.

We note, as an initial matter, that although our courts have not squarely addressed the issue of appellate standing following acceptance of an additur, there are several cases resolving the question of appellate standing following acceptance of a remittitur. Because § 52-228a, providing for the right of appeal, makes no distinction between the right to appeal from an order of additur and the right to appeal from an order of remittitur, we find the case law regarding remittitur persuasive and equally applicable to appeals involving an additur. Our review of those cases reveals that the clear weight of authority supports the conclusion that a party, having accepted an additur, lacks standing to appeal from that order of additur.

In Civiello v. Owens-Corning Fiberglass Corp., 208 Conn. 82, 544 A.2d 158 (1988), the plaintiff filed an acceptance of the remittitur reserving without prejudice the right to appeal from that order. After reviewing the legislative history of § 52-228a, our Supreme Court concluded that “[t]here is no indication that the statute was intended to remove the necessity of a new trial entirely or to permit a party to accept a remittitur or additur while also challenging its propriety.” Id., 84-85 n.3. The court reiterated its earlier conclusion that “an order of remittitur [presents] a plaintiff with a choice of two alternatives: The plaintiff is not compelled to remit the sum suggested by the trial court, but may elect either to submit to a new trial, or to seek, by an appeal to this court ... to have the order of new trial reversed and judgment rendered for the full amount of the verdict.” (Internal quotation marks omitted.) Id., 85-86. The court found additional support for its determination in “[a] line of [federal court] decisions stretching back to 1889 holding that a plaintiff cannot, by accepting the order under protest, appeal the propriety of a remittitur order to which he has agreed. Donovan v. Penn Shipping Co., 429 U.S. 648, 649, 97 S. Ct. 835, 51 L. Ed. 2d 112 (1977).” Civiello v. Owens-Corning Fiberglass Corp., supra, 86.

More recently in Stern v. Allied Van Lines, Inc., 246 Conn. 170, 717 A.2d 195 (1998), our Supreme Court, in analyzing the interplay between § § 52-228a and 52-228b, concluded that the right to appeal from an order of additur under § 52-228a and the right to reject an order of additur under § 52-228b were alternative remedies and that the aggrieved party had the right to choose either option. Id., 180. We disagree with the defendant’s inteipretation of Stem to mean that because the right to reject the additur is posited as an alternative to the right to appeal, the right of appeal will necessarily follow a party’s acceptance of the additur. Rather, the specific language used by the court in Stem suggests that the court interpreted the right to appeal from the order of additur as an alternative remedy to submitting to a new trial, which is the default consequence of rejecting the order of additur, rather than an alternative to the mere rejection of the additur in the first instance. “The fact that aparty may appeal, as § 52-228a provides, does not compel the conclusion that the legislature intended such an appeal to be the only recourse available to the plaintiff. To the contrary, we find support for the notion that the legislature sought to provide an aggrieved party with the option either to appeal the additur, or to reject the additur and move to have the verdict set aside and a new trial ordered. ” (Emphasis added.) Id.

Thus, where a party has rejected the additur, it has the choice of submitting to a new trial on the merits or of challenging the court’s order by way of a direct appeal. If the paity’s appeal is successful, the original verdict will be reinstated. If the party’s appeal is unsuccessful, then the case will proceed to a new trial.

That was the route followed by the defendant in Weiss v. Bergen, 63 Conn. App. 810, 779 A.2d 195, cert. denied, 258 Conn. 908, 782 A.2d 1254 (2001). In Weiss, the court granted the plaintiffs motion for an additur to the juiy verdict. The defendant rejected the proposed additur, and the court set aside the verdict and ordered a new trial. Id., 812. In response, the defendant appealed, claiming that the granting of the plaintiff’s motion for an additur was improper. Id., 811. This court agreed and remanded the case to the trial court with direction to reinstate the juiy’s verdict and to render judgment thereon. Id., 814.

In the present case, the defendant argues that her acceptance of the additur was for “purely economic reasons, namely, avoiding the expense of further litigation.” One of the policies quoted in support of barring appeals following acceptance of a remittitur, however, is avoiding “[t]he proliferation of appeals [that] would be the inevitable consequence of permitting a plaintiff, who would have nothing to lose after guaranteeing himself a minimum verdict, to appeal under protest in an attempt to restore the original verdict . . . .” (Internal quotation marks omitted.) Civiello v. Owens-Corning Fiberglass Corp., supra, 208 Conn. 86, quoting Donovan v. Penn Shipping Co., 536 F.2d 536, 537 (2d Cir. 1976), aff'd, 429 U.S. 648, 97 S. Ct. 835, 51 L. Ed. 2d 112 (1977); see also Cohen v. Yale-New Haven Hospital, 260 Conn. 747, 758-60, 800 A.2d 499 (2002). Here, the defendant’s action may be seen as an attempt to fix the maximum amount for which she can be held liable while seeking to restore the original, lesser verdict. The defendant, however, cannot have it both ways. If she had wanted to contest the additur, § 52-228a provided her with the explicit right to do so. If she was unsuccessful, however, the consequence would be that she has exposed herself to the inherently uncertain outcome of a new trial. Indeed, that is the only interpretation that is consistent with the goal of encouraging parties to accept a court-ordered additur to avoid the expense and risk of further litigation.

We conclude, therefore, that the defendant, having accepted the additur, lacks standing to appeal from the order granting that additur. Accordingly, we lack subject matter jurisdiction to decide the claim raised on appeal.

The appeal is dismissed.

In this opinion the other judges concurred.

       Pursuant to General Statutes § 52-572h (a), “(1) ‘Economic damages’ means compensation determined by the trier of fact for pecuniary losses including, but not limited to, the cost of reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or earning capacity excluding any noneconomic damages; (2) ‘Noneconomic damages’ means compensation determined by the trier of fact for all nonpecuniary losses including, but not limited to, physical pain and suffering and mental and emotional suffering . . .

       Pursuant to General Statutes § 52-228b, “[n]o verdict in any civil action involving a claim for money damages may be set aside . . . solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as 1he court deems reasonable.”

       In her supplemental brief, the defendant argues that she never formally accepted the additur. Despite that assertion, the defendant previously admitted to having accepted the additur, albeit “for purely economic reasons.” The pleadings filed by the defendant also support the conclusion that she accepted the additur. The defendant’s “Motion to Reargue and/or Defendant’s Statement Regarding Additur” explicitly states that “pursuant to General Statutes § 52-228b, the defendant herein, Julie Herrick, hereby accepts the court’s additur of $5000 in noneconomic damages for a total verdict of $8200.”

       General Statutes § 52-228a provides in relevant part that “[i]n any jury case where the court orders a decrease in the amount of the judgment or an increase in the amount of the judgment, the party aggrieved by the order of remittitur or additur may appeal as in any civil action. . . .”

       We note that the Civiello court found that the general rule barring appeals from remittitur orders that have been accepted by a plaintiff was not applicable in the particular circumstances of that case because the remittitur was based on a previous partial settlement of the claim and not on the court’s finding that the jury award was excessive under General Statutes § 52-228b.

       Of course, that result can be achieved only if the plaintiff also accepts the additur because General Statutes § 52-228b gives either party the right to reject the order of additur and to seek a new trial.

       “The purpose of [General Statutes] § 52-228b is to ensure that if a trial court determines that an award is inadequate as matter of law, before setting aside the verdict and ordering a new trial, that court must first offer an additur to the parties, i.e., the plaintiff and the defendant. This offer provides the opportunity to remedy the inadequate verdict in a way that is acceptable to both parties, without the expense of another trial.” (Internal quotation marks omitted.) Stern v. Allied Van Lines, Inc., supra, 246 Conn. 182-83.