author: Landau, J.

text:
    Robert L. Vezina et al. v. Nautilus Pools, Inc.
    (10314)
    Norcott, Lavery and Landau, Js.

      Argued March 26
    decision released June 16, 1992

      John C. Monroe, for the appellants (plaintiffs). Brian Thomas Walsh, for the appellee (defendant).
   Landau, J.

This is an appeal by the plaintiffs from a judgment of the trial court, rendered after a trial to the court, awarding them damages in the amount of $250. The plaintiffs claim that the trial court improperly (1) failed to apply the parol evidence rule, (2) found that the plaintiffs failed to sustain their burden of proving a breach of any warranties and any violation of the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; (3) failed to award attorney’s fees, disbursements, or punitive damages, and (4) computed damages. We agree with the plaintiffs’ fourth claim only.

The following facts are necessary to our resolution of this appeal. In 1986, the plaintiffs responded to an advertisement placed by the defendant for the sale of a swimming pool for $988 and were visited by one of the defendant's sales representatives, Scott Zirkus. As a result of this meeting, the plaintiffs purchased an aboveground pool from the defendant at a cost of over $7000. The parties entered into a sales contract that contained an integration clause stating that “this contract and agreement contains the entire agreement between the parties hereto, and all prior negotiations, representations, agreements and understandings of every name, nature and description have been merged into or superseded by this brief.” Subsequent to the installation of the pool, the plaintiffs instituted an action against the defendant alleging (1) violation of CUTPA, (2) breach of contract, (3) breach of implied warranties, and (4) negligence in the installation of the pool. The trial court found in favor of the defendant on the first, third and fourth counts of the plaintiffs’ complaint and in favor of the plaintiffs on the second count of their complaint, and awarded them $250.

I

The plaintiffs’ first claim involves the applicability of the parol evidence rule. In relation to this claim, the plaintiffs allege that Zirkus, in his capacity as the defendant’s representative, made several representations to induce them to purchase the pool. Specifically, they allege that he represented that (1) the pool would be installed with a “bowled center,” (2) the metal decking would contain an air coolant system, (3) the pool wall would accommodate a standard twenty-four foot pool cover, (4) the defendant would provide a “showplace installation,” (5) service calls would be made within forty-eight hours, and (6) the written contract would contain a twenty year, transferable, prorated limited manufacturer’s warranty. The plaintiffs claim that the trial court improperly concluded that the parol evidence rule did not apply to the representations made by Zirkus relating to the installation of the pool, the pool decking, the pool cover and the forty-eight hour service. We disagree.

It often has been noted that the parol evidence rule is not a rule of evidence, but a substantive rule of contract law. Security Equities v. Giamba, 210 Conn. 71, 77-78, 553 A.2d 1135 (1989); Damora v. Christ-Janer, 184 Conn. 109,113, 441 A.2d 61 (1981); Cohn v. Dunn, 111 Conn. 342, 346, 149 A. 851 (1930); see also 2 Restatement (Second), Contracts § 213, comment (a); 3 A. Corbin, Contracts § 573. The rule “provides that ‘[w]hen two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.’ 3 Corbin, Contracts § 573.” Greene v. Scott, 3 Conn. App. 34, 36, 484 A.2d 474 (1984). The rule is premised on the idea that “ ‘when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing. After this, to permit oral testimony, or prior or contemporaneous conversations, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme.’ ” TIE Communications, Inc. v. Kopp, 218 Conn. 281, 288, 589 A.2d 329 (1991), quoting Glendale Woolen Co. v. Protection Ins. Co., 21 Conn. 19, 37 (1851). Whether there is a complete integrated agreement is “to be determined by the court as a question preliminary ... to application of the parol evidence rule.” 2 Restatement (Second), Contracts §§ 209 (2), 210 (8); Suburban Sanitation Service, Inc. v. Millstein, 19 Conn. App. 283, 287, 562 A.2d 551 (1989).

“The general rule with regard to appeals of this nature is that the judgment appealed from will not be reversed in matters of fact unless it clearly appears to be erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).” Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 345-46, 525 A.2d 57 (1987). In its memorandum of decision, the trial court stated that “any inaccurate representations of Mr. Zirkus were not material in view of the express provisions of the parties’ contract.” Thus, the parol evidence rule is not in issue because once the trial court made the determination that the representations were not material nothing to which the parol evidence rule could apply remained. Only where the representations are deemed to be material by the trial court, and the remaining requirements for the admission of parol evidence have been satisfied, will such evidence be admitted. The trial court thoroughly reviewed the sales contract before reaching its conclusion. There is nothing in the record to indicate that the trial court was clearly erroneous in concluding that the representations were not material.

II

The plaintiffs next challenge the trial court’s finding that they failed to meet their burden of proof on the breach of any warranties and the CUTPA claims. They argue that Zirkus’ representations relating to the installation of the pool and the manufacturer’s warranty constituted express warranties. They further argue that the installation of the pool skimmer breached an implied warranty of merchantability and that that breach and the defendant’s failure to provide a bowled center to the pool, a special deck coolant system, forty-eight hour service, and a transferable prorated warranty satisfy all three requirements for a CUTPA cause of action. We disagree.

“Whether a plaintiff sustains [the] burden of proof is a question of fact for the trier. Capmar Construction, Inc. v. Coyle, 4 Conn. App. 579, 580, 495 A.2d 1115 (1985). We are limited to an examination of the record to determine if it contains sufficient evidence to support the decision of the trial court. Northeast Gunite & Grouting Corporation v. Chapman, 20 Conn. App. 201, 203-204, 565 A.2d 256 (1989). This court is entitled to presume that the trial court properly considered all of the evidence that was before it. Chomko v. Patmon, 19 Conn. App. 483, 563 A.2d 311, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989).” Dorsey v. Mancuso, 23 Conn. App. 629, 632-33, 583 A.2d 646 (1990) , cert. denied, 217 Conn. 809, 585 A.2d 1234 (1991) .

A

EXPRESS WARRANTY

We next consider the plaintiffs’ claim that the court should have found a breach of an express warranty. According to the plaintiffs, the defendant’s representative made various oral statements relating to the installation of the pool and a manufacturer’s warranty that amounted to an express warranty under General Statutes § 42a-2-313 (1) (a). That section provides that an express warranty is created by “[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain . . . .” Subsection (1) (b) provides that “[a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods conform to the description.”

The plaintiffs bear the burden of proving the existence of an express warranty. Because the question of whether an express warranty exists is one of fact, we will not reverse a court’s finding on this matter unless it is clearly erroneous. Superior Wire & Paper Products, Ltd. v. Talcott Tool & Machine, Inc., 184 Conn. 10, 17, 441 A.2d 43 (1981). Here, we cannot find that the court’s conclusion was clearly erroneous. See Web Press Services Corporation v. New London Motors, Inc., supra.

The Uniform Commercial Code recognizes that some statements of sellers are merely “puffing” and do not create express warranties. Drawing the line between puffing and the creation of a warranty is often difficult, but several factors have been identified as helpful in making that determination. See generally J. White & R. Summers, Uniform Commercial Code (2d Ed.) § 9-3. One such factor is the specificity of the statements made. Another factor to be considered in determining whether a statement creates an express warranty is whether it was written or oral, the latter being more likely to be considered puffing. J. White & R. Summers, supra; Web Press Services Corporation v. New London Motors, Inc., supra, 352.

We interpret the challenged statements to be more akin to mere “puffing,” as opposed to an affirmative fact or promise that can form the basis of a warranty. See Web Press Services Corporation v. New London Motors, Inc., 205 Conn. 479, 483, 533 A.2d 1211 (1987). “Such ‘favorable comments by sellers with respect to their products are universally accepted and expected in the market place . . . ’ and do not give rise to liability. ...” (Citation omitted.) Gold v. University of Bridgeport School of Law, 19 Conn. App. 379, 384-85, 562 A.2d 570, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989).

In concluding that there was no express warranty as to the installation of the pool and that there had been no breach of the promise to provide a twenty year prorated limited manufacturer’s warranty, the trial court relied on the testimony of all of the witnesses and its review of the sales contract. The defendant presented testimony that it never agreed to any special showcase installation, deck coolant system or service within forty-eight hours. Moreover, the plaintiffs signed a completion certificate after the pool had been installed and they had been afforded the opportunity to inspect the pool. Additionally, a review of the sales contract and the trial testimony demonstrates that the plaintiffs were provided with the requested twenty year prorated warranty from the pool manufacturer and that the warranty was to be honored by the defendant as to subsequent owners of the pool. Under the facts of this case, the trial court’s failure to find an express warranty as to the installation of the pool and that there had been no breach of the agreement to provide a manufacturer’s warranty cannot be considered clearly erroneous.

B

IMPLIED WARRANTIES

The plaintiffs similarly failed to establish the existence of implied warranties. They have pointed to no evidence that would persuade the trial court that the seller had reason to know of the particular purpose for which the goods are required and that they were relying on the seller’s skill or judgment; General Statutes § 42a-2-315; or that the goods are not fit for the ordinary purpose for which such goods are used. General Statutes § 42a-2-314. Thus, they have not proven an implied warranty of fitness pursuant to General Statutes § 42a-2-315, nor an implied warranty of merchantability pursuant to General Statutes § 42a-2-314. The factual conclusions of the trial court were not clearly erroneous. See Superior Wire & Paper Products, Ltd. v. Talcott Tool & Machine, Inc., supra.

The testimony revealed that the pool was functional and free of defects, that the skimmer was properly installed and that the pool wall was not corroded or damaged. On the basis of this credible evidence, the trial court concluded that “the subject pool was and is essentially serviceable and functional.” The trial court, as the finder of fact, is in the best position to assess the credibility of the witnesses testifying before it. “ ‘It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of [proof as to his] claim. We decide only whether the determination of the trial court constituted clear error.’ ” Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152,157, 595 A.2d 872 (1991); Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., 218 Conn. 162, 166, 588 A.2d 185 (1991); see also Dow & Condon, Inc. v. Anderson, 203 Conn. 475, 479-86, 525 A.2d 935 (1987); Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985). We find nothing in the record to demonstrate that this finding was clearly erroneous.

C

CUTPA

The defendant also claims that the trial court should have found that the defendant’s conduct was a violation of CUTPA. General Statutes § 42-110b provides in part that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” It is well settled that in determining whether a practice violates CUTPA, the following criteria are to be employed: “ ‘(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [(competitors or other businessmen)].’ Conaway v. Prestia, [191 Conn. 484, 492-93, 464 A.2d 847 (1983)], quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244-45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972) . . . .” McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 568, 473 A.2d 1185 (1984); see also Mead v. Burns, 199 Conn. 651, 664-65, 509 A.2d 11 (1986); Sportsmen’s Boating Corporation v. Hensley, 192 Conn. 747, 756, 474 A.2d 780 (1984). Thus, a violation of CUTPA may be established by showing either an actual deceptive practice or a practice amounting to a violation of public policy. See, e.g., Sportsmen’s Boating Corporation v. Hensley, supra.

The “substantial injury” factor is itself subject to a three part test. “ ‘The independent nature of the consumer injury criterion does not mean that every consumer injury is legally “unfair,” however. To justify a finding of unfairness the injury must satisfy three tests. It must be substantial; it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and it must be an injury that consumers themselves could not reasonably have avoided.’ ” McLaughlin Ford, Inc. v. Ford Motor Co., supra, 569-70, citing a letter from the Federal Trade Commission to United States Senators Wendell H. Ford and John C. Danforth (Dec. 17, 1980), reprinted in N. Averitt, “The Meaning of ‘Unfair Acts or Practices’ in § 5 of the Federal Trade Commission Act,” 70 Geo. L.J. 225, 291 (1981).

At trial, the plaintiffs attempted to show that Zirkus’ statements and the defendant’s conduct regarding the installation of the pool skimmer, the failure to provide a bowled center, a special deck coolant system, forty-eight hour service, and a transferable prorated warranty amounted to a CUTPA violation. The trial court disposed of the plaintiffs’ claim summarily by finding that the plaintiffs had failed to sustain their burden of proof as to the CUTPA violation. On appeal, the plaintiffs argue that the above conduct satisfies all three requirements needed to prove a CUTPA violation. The plaintiffs present numerous arguments in support of their claim that the defendant’s acts offended public policy, were immoral, unethical, oppressive and unscrupulous, and were substantial, none of which merit significant review.

The plaintiffs ask that we overturn the factual findings of the trial court. “Whether a practice is unfair and thus violates CUTPA is an issue of fact.” DeMotses v. Leonard Schwartz Nissan, Inc., 22 Conn. App. 464, 466, 578 A.2d 144 (1990); see also Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 238, 520 A.2d 1008 (1987). The question here is whether Zirkus’ representations and the defendant’s installation of the pool constitute an unfair or deceptive trade practice. See A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 343, 576 A.2d 464 (1990); Edart Truck Rental Corporation v. B. Swirsky & Co., 23 Conn. App. 137, 144-45, 579 A.2d 133 (1990). The trial court determined that, under the facts found, the plaintiffs did not sustain their burden of proving a CUTPA violation. We are warranted in overturning the factual findings of the trial court only when such findings are clearly erroneous in light of the evidence and the pleadings in the record as a whole. Pandolphe’s Auto Parts, Inc. v. Manchester, supra. After examination of the facts in light of the above criteria, we agree with the trial court that there is no proper evidentiary support for the plaintiffs’ assertion of a CUTPA violation. Sanghavi v. Paul Revere Life Ins. Co., 214 Conn. 303, 311-12, 572 A.2d 307 (1990). We find nothing in the record to indicate that the trial court’s finding was clearly erroneous.

III

The plaintiffs’ next claim is that the trial court improperly failed to award attorney’s fees, disbursements, or punitive damages. This claim merits little discussion in light of our conclusion in part II C of this opinion. It is conceded that these awards are premised on the plaintiffs’ CUTPA claim. The moving party must prevail on the CUTPA cause of action before such fees and damages must be awarded. See Connelly v. Housing Authority, 213 Conn. 354, 360, 567 A.2d 1212 (1990). Because we conclude that the trial court correctly found for the defendant on the CUTPA claim, the plaintiffs’ claim for these additional awards is without an anchor.

IV

The plaintiffs’ final claim is that the trial court failed to apply the proper standard for calculating damages. “The general rule of damages in a breach of contract action is that the award should place the injured party in the same position as he would have been in had the contract been performed. Vespoli v. Pagliarulo, 212 Conn. 1, 3, 560 A.2d 980 (1989); West Haven Sound Development Corporation v. West Haven, 207 Conn. 308, 317, 541 A.2d 858 (1988); Danpar Associates v. Somersville Mills Sales Room, Inc., 182 Conn. 444, 446, 438 A.2d 708 (1980); Johnson v. Healy, 176 Conn. 97, 105, 405 A.2d 54 (1978); Bachman v. Fortuna, 145 Conn. 191, 194, 141 A.2d 477 (1958); see also 3 Restatement (Second), Contracts §§ 344 (a), 347 (a) and (b), and comments contained therein.” Rametta v. Stella, 214 Conn. 484, 492-93, 572 A.2d 978 (1990). Where, however, expectation damages greatly exceed the diminished value of the property, the award of damages is limited to the diminished value of the property. Levesque v. D & M Builders, Inc., 170 Conn. 177, 181, 365 A.2d 1216 (1976). “The purpose of this rule is to avoid unreasonable economic waste. Spera v. Audiotape Corporation, 1 Conn. App. 629, 633, 474 A.2d 481 (1984).” Marron & Sipe Building & Contracting v. Flor, 22 Conn. App. 689, 707, 580 A.2d 508 (1990).

“Levesque involved a buyer who wanted to relocate a house misplaced on a building lot. [The Supreme Court] refused to permit relocation costs of $10,800 to be awarded for breach of contract and warranty, when the original contract price had been $22,600. [Levesque v.D & M Builders, Inc., supra,] 182. Levesque adopts a rule that limits damages to the diminished value of the building whenever the cost of repairs is dramatically larger than is the difference in value. Id., 180-82. Although the costs of repair may more precisely place the injured party in the same physical position as full performance, policy dictates limitation to diminution of value to avoid unreasonable economic waste.” Johnson v. Healy, supra, 105. In Johnson, the plaintiff had sought $27,150 as costs in constructing a new foundation for a house originally purchased for $17,000. In concluding that the proper test for damages was the difference in value between the property had it been as represented and the property as it actually was, the Johnson court noted that the price discrepancy between reconstruction cost and contract price was even larger than it was in Levesque. Barnicoat v. Edwards, 1 Conn. App. 652, 655, 474 A.2d 808 (1984).

Here, the trial court concluded that the defendant’s failure to install the plaintiffs’ pool with a bowled center constituted a breach of contract; The defendant offered testimony that the cost of providing a bowled center at the time the pool was installed would have been approximately $200 to $300. The plaintiffs offered evidence that to create a bowled center in the existing pool would cost $5694.78. No evidence was presented regarding the value of the pool with a bowled center and the value of the pool without a bowled center. In this case, the cost of repair was nearly the same as the purchase price of the pool. The award of such damages clearly involves an unreasonable economic waste. Levesque v.D & M Builders, Inc., supra. Because the cost of rectifying the defendant’s omission is so great in comparison to the cost of the purchase of the pool itself, the proper measure of damages is the diminished value of the plaintiffs’ pool. We, therefore, remand the case to the trial court to conduct a hearing to determine the proper award of damages based on the diminished value of the plaintiffs’ pool. See Bleau v. Ward, 221 Conn. 331, 341-43, 603 A.2d 1147 (1992) (Berdon, J., dissenting).

We are cognizant of the trend toward remanding a case for a new trial as to liability as well as damages; DeLaurentis v. New Haven, 220 Conn. 225, 268, 597 A.2d 807 (1991); Fazio v. Brown, 209 Conn. 450, 455-58, 551 A.2d 1227 (1988); Malmberg v. Lopez, 208 Conn. 675, 681-82, 546 A.2d 264 (1988); and also note that an order restricting a new trial to specific issues is the exception, not the rule. Fazio v. Brown, supra, 455; Niles v. Evitts, 16 Conn. App. 696, 699, 548 A.2d 1352 (1988). Such restriction is not warranted where the two issues are “inextricably interwoven.” See DeLaurentis v. New Haven, supra; Sauerwein v. Bell, 17 Conn. App. 697, 704-705, 556 A.2d 613, cert. denied, 211 Conn. 804, 559 A.2d 1158 (1989). Here, however, the two issues are not “inextricably interwoven.” We see no reason why this case should not be remanded for a determination as to the appropriate measure of damages only. See West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 514 A.2d 734 (1986).

The judgment is reversed as to the award of damages only and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       In the original action, the plaintiffs included Robert L. Vezina and Frances Vezina. During the course of the proceedings in the trial court, Robert Vezina died and the action was continued by Frances Vezina.

       A bowled center is deeper than the outer edge of the pool.


source: Caselaw Access Project

author: Per Curiam:.

license: Public Domain

text:
    Henry Friedlander v. Saul Kwartin et al.
    (10521)
    O’Connell, Norcott and Foti, Js.
    Argued February 21
    decision released March 10, 1992

      Henry Friedlander, pro se, the appellant (plaintiff).

      Saul Kwartin, with whom was Garie J. Mulcahey, for the appellees (defendants).
   Per Curiam:.

The judgment is affirmed.


author: Per Curiam.

text:
    Thomas P. Roman v. Mary J. Roman
    (10476)
    Daly, Norcott and Lavery, Js.
    Argued February 20
    decision released March 10, 1992

      David P. Ball, for the appellant (plaintiff).

      James Ryan Mulvey, with whom, on the brief, was Mark Korotash, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Saybrook Point Marina Partnership v. Mark A. Coyne
    (10225)
    Norcott, Lavery and Freedman, Js.
    Argued February 20
    decision released March 10, 1992

      James M. S. Ullman, for the appellant-appellee (defendant).

      Joseph F. McVerry, for the appellee-appellant (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Colleen Aliano v. Ronald Aliano
    (10267)
    Norcott, Foti and Lavery, Js.
    Argued February 21
    decision released March 10, 1992

      Raynald B. Cantin, for the appellant (defendant). C. Michael Budlong, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Connecticut Bank and Trust Company, N.A. v. John J. Daley, Jr., et al.
    (10371)
    Dupont, C. J., Foti and La very, Js.
    Argued February 19
    decision released March 10, 1992

      BrianS. Cantor, for the appellant (named defendant).

      Barbara F. Green, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Ann Campion et al. v. Kathleen S. Shields et al.
    (10123)
    Daly, Landau and Heiman, Js.
    Argued February 25
    decision released March 17, 1992

      William F. Gallagher, with whom, on the brief, were Richard L. Goldhlatt and Cynthia C. Bott, for the appellant (named plaintiff).

      Terence A. Zemetis, with whom, on the brief, was Edward T. Falsey, for the appellee (named defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Da-Laur Associates v. Maurice Clos-Versailles
    (10047)
    Daly, Landau and Heiman, Js.
    Argued February 25
    decision released March 17, 1992

      Peter M. Ryan, for the appellant (defendant).

      Paul L. McCullough, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    North American Investment Corporation v. James A. Pabilonia et al.
    (10328)
    Foti, Lavery and Freedman, Js.
    Argued February 25
    decision released March 17, 1992

      James J. Devine, for the appellants (defendants).

      Gary D. Lavigne, with whom was Leslee B. Ives, legal intern, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Linda Ebrahimi v. Mohammed Ebrahimi
    (9623)
    Norcott, Landau and Heiman, Js.
    Argued February 25
    decision released March 17, 1992

      Robert P. Cardone, for the appellant (defendant).

      Helen C. Bruno, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Francisco Munoz v. Richard Surface Construction Company et al.
    (9901)
    Dupont, C. J., Norcott and Landau, Js.
    Argued March 26
    decision released April 14, 1992

      Kevin J. Maher, with whom, on the brief, was Maureen E. Driscoll, for the appellant (named defendant et al.).

      Christopher B. Carveth, for the appellee (plaintiff).

      Robin L. Wilson, assistant attorney general, with whom were Robert W. Murphy, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (defendant Second Injury and Compensation Assurance Fund).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. John Riddle
    (10183)
    Norcott, Foti and Landau, Js.
    Submitted on briefs March 24
    decision released April 14, 1992

      M. Leonard Caine III filed a brief for the appellant (defendant).

      RitaM. Shair, assistant state’s attorney, John Con-nelly, state’s attorney, Eva Lenczewski, assistant state’s attorney, and Russell L. Case, law student intern, filed a brief for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Federal Deposit Insurance Corporation v. Landhold Corporation et al.
    (10522)
    O’Connell, Norcott and Freedman, Js.
    Argued March 25
    decision released April 14, 1992

      William H. Cashman, with whom, on the brief, was Tara L. Knight, for the appellant (named defendant).

      Barry K. Stevens, with whom, on the brief, was Matthew M. Hausman, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    O’Connell, Flaherty, Attmore and Forsyth v. Nelson Gilyanna
    (10491)
    Foti, Landau and Freedman, Js.
    Argued March 27
    decision released April 14, 1992

      Nelson Gilyanna, pro se, the appellant (defendant).

      Beverly Johns, with whom, on the brief, was Stephen J. Sinatro, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    New Connecticut Bank and Trust Company, N.A. v. Millington Green Land Associates et al.
    (10571)
    Foti, Lavery and Heiman, Js.
    Argued March 25
    decision released April 14, 1992

      Richard F. Paladino, for the appellants (defendants Donald Bergeron et al.).

      David S. Hoopes, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Central Transport, Inc. v. Edward Ochman
    (10201)
    Dupont, C. J., Daly and Foti, Js.
    Argued March 23
    decision released April 14, 1992

      Edward Ochman, pro se, the appellant (defendant).

      Thomas L. Kanasky, Jr., for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Elizabeth DeCiantis v. John DeCiantis
    (10698)
    Daly, Laveey and Heiman, Js.
    Argued March 27
    decision released April 14, 1992

      John W. Roberts, for the appellant (defendant).

      Raymond L. Baribeault, Jr., with whom, on the brief, was Thomas A. Bishop, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Elaine M. Torello v. Mutual of Omaha Insurance Company
    (10614)
    Foti, Landau and Freedman, Js.
    Argued March 27
    decision released April 14, 1992

      William J. Nulsen, with whom, on the brief, was James F. Cirillo, Jr., for the appellant (plaintiff).

      Deborah L. Bradley, with whom, on the brief, was John W. Lemega, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Donald E. Bryant, Jr. v. Helen V. Bryant
    (10289)
    O’Connell, Norcott and Heiman, Js.
    Argued March 30
    decision released April 14, 1992

      Donald E. Bryant, Jr., pro se, the appellant (plaintiff).

      Theodore L. Freedman, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Coastal Savings Bank v. Eastern Connecticut Development Company et al.
    (10567)
    Dupont, C. J., Foti and Lavery, Js.
    Argued March 30
    decision released April 14, 1992

      B. Paul Kaplan, for the appellant (named defendant).

      Joseph A. Cipparone, with whom, on the brief, was Meredith E. Russell, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Margaret A. Gagan v. Joseph L. Gagan
    (10390)
    O’Connell, Norcott and Freedman, Js.
    Argued March 25
    decision released April 14, 1992

      Joseph Gagan, pro se, the appellant (defendant).

      Margaret Ann Gagan, pro se, the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    City of Hartford v. Stanley Tucker et al.
    (9831)
    O’Connell, Lavery and Heiman, Js.
    Argued March 31
    decision released April 21, 1992

      Stanley V. Tucker, pro se, the appellant (named defendant).

      Helen Apostolidis, assistant corporation counsel, with whom, on the brief, were Michael Collins, assistant corporation counsel, and Lisa Silvestri, assistant corporation counsel, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded to the trial court to reset date of the foreclosure sale.


text:
    E. James MacLelland v. LER Associates
    (10520)
    O’Connell, Norcott and Heiman, Js.
    Argued April 6
    decision released April 21, 1992

      Philip R. Mancini III, for the appellant (defendant).

      Frank S. Marcucci, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Jacqueline M. Wanta v. Robert J. Wanta
    (10300)
    Daly, Foti and Lavery, Js.
    Argued April 2
    decision released April 21, 1992

      Robert J. Wanta, pro se, the appellant (defendant).

      Roberta S. Friedman, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Lula Ford, Administratrix (Estate of Rodney Campbell) v. Kunjathan Thankappen et al.
    (9752)
    Foti, Landau and Freedman, Js.
    Argued April 28
    decision released May 19, 1992

      Bruce W. Diamond, with whom were Richard M. Maraño and, on the brief, Richard D. Casella, for the appellant (plaintiff).

      Thomas L. Brayton, with whom, on the brief, was Thomas L. Brayton III, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Anthony Bimonte et al. v. Water Pollution Control Authority of the City of New Haven
    (10554)
    Daly, Landau and Heiman, Js.
    Argued April 30
    decision released May 19, 1992

      Richard M. Franchi, for the appellants (plaintiffs).

      Barry J. Waters, with whom, on the brief, was Gregory C. Davis, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Lincoln Savings Bank, FSB v. 770 Boston Post Road, Guilford, Limited Partnership et al.
    (10695)
    Daly, Norcott and Lavery, Js.
    Argued May 1
    decision released May 19, 1992

      Roy H. Scharf for the appellants (defendant James D. Hennessey et al.).

      Peter S. Gummo, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Liberty Bank v. Louis J. Soboleski et al.
    (10629)
    Foti, Lavery and Freedman, Js.
    Argued May 4
    decision released May 19, 1992

      Frank C. White, Jr., for the appellant (named defendant).

      I. Milton Widem, with whom, on the brief, was Gerald B. Goldberg, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Stanley V. Tucker v. Connecticut Natural Gas Company
    (10528)
    Foti, Landau and Freedman, Js.
    Argued April 28
    decision released May 19, 1992

      Stanley V. Tucker, pro se, the appellant (plaintiff).

      George M. Purtill, with whom, on the brief, was Dana M. Gillard, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Linda Christopherson v. Hallmark Cards, Inc.
    (10699)
    Landau, Heiman and Freedman, Js.
    Argued May 5
    decision released May 26, 1992

      Paul A. Scholder, for the appellant (named plaintiff).

      John W. O’Meara, with whom, on the brief, was Kenneth J. Mulvey, for the appellee (defendant).

      Lawrence R. Pellet, for the appellee (intervening plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    John H. Grady et al. v. Robert A. Schmitz et al.
    (10494)
    Lavery, Heiman and Freedman, Js.
    Argued May 8
    decision released June 2, 1992

      Robert A. Schmitz, pro se, with whom was Marion B. Schmitz, pro se, the appellants (named defendant et al.).

      Philip R. McKnight, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Denise Travisano v. City of New Haven et al.
    (10377)
    Daly, Lavery and Freedman, Js.
    Argued May 11
    decision released June 2, 1992

      Judith A. Sarathy, assistant corporation counsel, for the appellants (defendants).

      Mary Beattie Schairer, with whom, on the brief, was Steven J. Errante, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Rosalie Benny Zanoni v. St. Patrick’s Manor
    (10392)
    Norcott, Landau and Freedman, Js.
    Argued April 3
    decision released June 2, 1992

      Rosalie Benny Zanoni, pro se, the appellant (named plaintiff).

      Gale K. Busemeyer, with whom, on the brief, was George A. Dagon, Jr., for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Ronald Wislocki v. Town of Prospect et al.
    (10783)
    Norcott, Landau and Heiman, Js.
    Argued May 11
    decision released June 2, 1992

      Ross Lessack, with whom, on the brief, was Edward T. Dodd, Jr., for the appellant (plaintiff).

      Ralph A. Russo, for the appellee (named defendant).

      Brewster Blackall, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend and Ernie R. Walker, assistant attorneys general, for the appellee (defendant Second Injury and Compensation Assurance Fund).
   Per Curiam.

The judgment is affirmed.


text:
    Yellow Cab Company et al. v. Greater Hartford Transit District et al.
    (10705)
    Norcott, Landau and Heiman, Js.
    Argued May 11
    decision released June 2, 1992

      Julia Morris Paul, with whom was Robin Murdock-Meggers, for the appellant (plaintiff).

      Glenn E. Brace, with whom, on the brief, was M. Katherine Bertini, for the appellee (named defendant).

      Morton W. Appleton, for the appellee (defendant Professional Wheelchair Transportation, Inc.).
   Per Curiam.

The judgment is affirmed.


text:
    Fleet Bank of Connecticut v. Peter Lawler et al.
    (10543)
    Norcott, Foti and Lavery, Js.
    Argued May 8
    decision released June 2, 1992

      Peter J. Sterling, for the appellants (named defendant et al.).

      AnnR. Stravalle-Schmidt and Melvin A. Simon, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Gary Pipkin v. Madeleine Winans et al.
    (10544)
    Norcott, Freedman and Maloney, Js.
    Argued May 12
    decision released June 2, 1992

      JohnR. McLain, for the appellant (named defendant).

      William E. McCoy, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Laura Marselle, Executrix (Estate of Henry Marselle) v. Inez Horton Gay et al.
    (10725)
    Daly, Norcott and Heiman, Js.
    Argued May 12
    decision released June 16, 1992

      Inez Horton Gay, pro se, the appellant (named defendant).

      Gerald J. Sullivan, for the appellee (plaintiff).
   Per Curiam.

After carefully reviewing the record and briefs in this matter, we conclude that the trial court’s refusal to open the default judgment and the judgment of foreclosure by sale was not improper.

The judgment is affirmed and the case is remanded to the trial court to reset the date of the foreclosure sale.


text:
    Patricia Kane v. James D. Parry
    (10773)
    Daly, O’Connell and Norcott, Js.
    Argued June 1
    decision released June 16, 1992

      Philip M. French, with whom, on the brief, was Patricia Kane, for the appellant (plaintiff).

      Sperry A. DeCew, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    In re Judicial Inquiry No. 85-01
    Dupont, C. J., Daly, O’Connell, Norcott, Foti, Lavery, Landau and Heiman, Js.
    Remanded April 14
    decision released June 16, 1992

      Henri Alexandre, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellants (petitioners).

      Roger J. Frechette, for the appellee (investigatory grand jury panel).
   Per Curiam.

The petition for review is dismissed pursuant to Inre Judicial Inquiry No. 85-01, 221 Conn. 625, 605 A.2d 545 (1992).


text:
    Exeter Energy Limited Partnership v. Office of Policy and Management of the State of Connecticut
    (10700)
    Norcott, Foti and Lavery, Js.
    Argued May 8
    decision released June 16, 1992

      Denise Rodosevich, with whom, on the brief, were William H. Narwold and William H. Bright, Jr., for the appellant (plaintiff).

      David H. Wrinn, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph Rubin, assistant attorney general, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the judgment of the trial court dismissing this case pursuant to Practice Book § 251 for the failure of the plaintiffs counsel to appear at an administrative appeals scheduling calendar. On appeal, the plaintiff also challenges the trial court’s postjudgment denial of his motion to restore the case to the docket, which motion was filed within the appeal period.

We note that at the time of the dismissal the pleadings were not yet closed in this case. It was not a case “appearing on an assignment list for final adjudication,” and, therefore, it should not have been dismissed without a hearing on the matter, as required by Practice Book § 251. Since a review of the record indicates that no hearing was held prior to dismissal of the case, the trial court’s judgment of dismissal cannot stand.

The judgment of dismissal is reversed and the case is remanded with instructions to restore the case to the docket.


author: Foti, J.

text:
    Nancy Zarembski et al. v. Leslie B. Warren et al.
    (10353)
    Dupont, C. J., Foti and La very, Js.
    Argued March 30
    decision released June 23, 1992

      George W. Ganim, Jr., with whom, on the brief, was George W. Ganim, for the appellants (plaintiffs).

      Ronald D. Williams, Jr., with whom, on the brief, was Ronald D. Williams, for the appellees (defendants).
   Foti, J.

The plaintiffs appeal from the judgment rendered for the defendants on this action for a declaratory judgment, a writ of mandamus, an order to show cause, and a temporary and permanent injunction. The plaintiffs challenge certain findings of the trial court, including its finding that article IV, § 4.2:9, of the zoning regulations of the town of Easton is constitutional. We affirm the judgment of the trial court.

The plaintiffs, Darryl and Nancy Zarembski, seek to prevent the enforcement of a zoning regulation that bars Darryl’s parents from occupying a caretaker’s house located on the plaintiffs’ property.

The trial court found the following facts. The plaintiffs filed an application for a building permit to erect a caretaker’s house on their property. At the time of their application, they were aware of the restrictions relating to a family member residing in an accessory building, and they represented on their application that two persons, unrelated to them, would occupy the accessory building as caretakers. Upon completion of the caretaker’s house, Stanley and Beverly Zarembski, parents of the plaintiff Darryl Zarembski, occupied the building.

Section 4.2.9 of article IV of the Easton zoning regulations allows the use under certain circumstances of an accessory building as a residence. The regulation is limited in application to accessory buildings that are located with a principal residence on a lot of not less than ten acres. The regulation permits up to three persons to use that building as a residence if the persons are employed full-time by the principal resident in positions customarily related to the residential use of the principal residence. The regulation further provides that members of the family of the current occupant of the principal residence are prohibited from occupying the accessory building as full-time employees.

The building inspector and zoning enforcement officer refused to issue a certificate of occupancy and zoning compliance when they learned that the elder Zarembskis were using the accessory building as their residence. The plaintiffs then unsuccessfully applied to the zoning board of appeals for a variance. Thereafter, the zoning enforcement officer issued a cease and desist order.

After an evidentiary hearing, the trial court found that neither parent was employed full-time on the premises. Stanley Zarembski commutes five days a week to Stamford where he manages a tree and landscaping business. He spends about three hours a day caring for his son’s property. He is not paid for his caretaking services, but lives in the caretaker’s house rent free. His wife is employed five days a week in Stamford.

The trial court ruled that the failure to satisfy the regulation by full-time employment was dispositive of the matter, and that the plaintiffs were not entitled to an accessory permit. The trial court, however, also addressed the plaintiffs’ constitutional challenge, holding that § 4.2.9 constituted a valid exercise of the zoning power of the town of Easton and, in the alternative, that the plaintiffs had failed to exhaust their administrative remedies.

The plaintiffs first claim that the trial court should not have found that Darryl Zarembski’s parents were not full-time employees. When the factual basis of a trial court’s decision is challenged, it is our function to “determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); United Electrical Contractors, Inc. v. Progress Builders, Inc., 26 Conn. App. 749, 752, 603 A.2d 1190 (1992). We do not, however, retry the facts. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988). The factual finding of a trial court on any issue is reversible only if it is clearly erroneous. Practice Book § 4061. “ ‘The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . . .’ Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982).” Sportsmen’s Boating Corporation v. Hensley, 192 Conn. 747, 750, 474 A.2d 780 (1984). It is not our function to examine the record to see if the trier of fact could have reached a contrary conclusion. Rodriguez v. New Haven, 183 Conn. 473, 477, 439 A.2d 421 (1981). “In short, we are not permitted to reject a factual finding on appeal merely because we, as a reviewing court, might disagree with the conclusion or would have reached a different result had we been sitting as the factfinders. Lupien v. Lupien, 192 Conn. 443, 446, 472 A.2d 18 (1984).” Biggs v. Warden, 26 Conn. App. 52, 56, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991).

Our review of the record indicates that the factual findings challenged by the plaintiffs are clearly supported by the evidence. The trial court found that Stanley Zarembski commuted five days a week to Stamford where he managed a business, and worked only approximately three hours a day on his son’s property. Therefore, the court concluded that he did not qualify as a full-time employee on the property within the meaning of § 4.2.9.

The plaintiffs argue that because the term “full-time employee” is not defined by the regulation, it is vague and, therefore, unenforceable. We do not agree. “ ‘[WJords employed in zoning ordinances are to be interpreted in accord with their natural and usual meaning.’ Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 153, 543 A.2d 1339 (1988) . . . .’’ Silitschanu v. Groesbeck, 208 Conn. 312, 315, 543 A.2d 737 (1988). The court reasonably could have concluded that, in conformity with the definition in our state statutes, the term “full-time employee” means an employee holding a position that averages a minimum of thirty-five hours per week. General Statutes §§ 5-196 (l) and (q), 32-9j (f). Furthermore, the court heard evidence without objection on the meaning of that term. Philip Luckhardt, a member of the commission, testified that the term “full-time” within the meaning of § 4.2.9 meant a forty hour minimum work week. “[I]t is the well established practice of this court to ‘accord great deference to the construction given [a] statute by the agency charged with its enforcement.’ Corey v. Avco-Lycoming Division, 163 Conn. 309, 326, 307 A.2d 155 (1972) . . . Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). “This principle applies with even greater force to an agency’s interpretation of its own duly adopted regulations.” Id., 497. Because we cannot say that the trial court’s factual finding was as a matter of law unsupported, incorrect, or mistaken, it is not clearly erroneous. Practice Book § 4061. We must, therefore, affirm the trial court’s conclusion that the plaintiffs were not entitled to a variance.

It is unnecessary to review the plaintiffs’ constitutional challenge to the regulation because it is nonjusticiable in that there is no practical relief available to the plaintiffs. “ ‘Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ... (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result in practical relief to the complainant.’ State v. Nardini, 187 Conn. 109, 111-12, 445 A.2d 304 (1982).” Pellegrino v. O’Neill, 193 Conn. 670, 674, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984).

The plaintiffs claim that article IV, § 4.2.9, of the town of Easton’s zoning regulations should be declared illegal, unconstitutional and unenforceable because it “limits and forbids the occupancy of such accessory building to only those persons unrelated to members of the family currently occupying the principal residence.” The plaintiffs do not claim that the regulation is unconstitutional because it requires occupancy of the accessory residence by a full-time employee. Even if we were to agree with the plaintiffs that they are entitled to a declaratory judgment because of the claimed unconstitutionality of a portion of the regulation, they cannot obtain any practical relief because they have not employed full-time employees under § 4.2.9 so as to qualify for an accessory permit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the zoning enforcement officer, Leslie B. Warren, the planning and zoning commission of the town of Easton, and the building inspector, Carelton Maring.

       Article IV, § 4.2.9 provides: “On any lot having not less than 10 acres and on which there is located a residence, an accessory building also located on said lot may be used in whole or in part for residential purposes solely for the housing of no more than three full-time employees of the resident occupant who are employed on the premises in positions customarily relating to any permitted residential use of the premises, provided that members of the family of the current occupant of the principal residence shall not occupy the accessory building as full-time employees. The occupant of the principal residence shall file with the zoning enforcement officer in January of each year such evidence as he may reasonably require to substantiate the employment of the occupant of the accessory building by the occupant of the principal residence. Nothing in this Section shall be construed to permit the use of an accessory building for any residential purpose other than as stated above.”

       The trial court found that the property potentially could be approved for three lots or could be divided into two lots without subdivision approval. The trial court stated that if the land was subdivided, one lot could be used for the parents’ house and the other for the children’s house. The trial court reasoned that because the plaintiffs had not exhausted the administrative remedies available to them under the Easton zoning regulations, their claim that the town denied them the right to equal protection was meritless.

       General Statutes § 5-196 provides in relevant part: “(Z) ‘Full-time employee’ means an employee holding a position normally requiring thirty-five hours or more of service in each week. . . . (q) ‘Part-time employee’ means an employee holding a position normally requiring less than thirty-five hours of service in each week.”

       General Statutes § 32-9j (f) provides: “ ‘Full-time employee’ means an employee who works a minimum of thirty-five hours per week.”

       We neither agree nor disagree with the trial court’s finding that article IV, § 4.2.9, of the Easton zoning regulations is constitutional. We leave that determination for another day.


text:
    National Iron Bank v. James F. Gelormino et al.
    (10823)
    Landau, Heiman and Freedman, Js.
    Argued May 5
    decision released June 23, 1992

      Kerry M. Wisser, with whom, on the brief, was Jennifer Jaff, for the appellants (named defendant et al.).

      John W. Pickard, for the appellees (plaintiffs).
   Per Curiam.

The named defendant and the defendant Irene B. Gelormino appeal from the decision of the trial court denying their motion to open a judgment of foreclosure by sale claiming that the trial court abused its discretion and committed an error of law. We disagree.

In May, 1991, the plaintiff bank instituted foreclosure proceedings against the Gelorminos. The Gelorminos failed to file responsive pleadings and the trial court rendered a default judgment against them. The Gelorminos subsequently sought to open the default judgment pursuant to General Statutes § 52-212. “To qualify under § 52-212, the movant must meet a two-prong test: (1) there must be a showing that a good defense, the nature of which must be set forth, existed at the time judgment was rendered; and (2) the party seeking to set aside the judgment had to have been prevented from making the defense because of mistake, accident or other reasonable cause. Cholewinski v. Conway, 14 Conn. App. 236, 241, 540 A.2d 391 (1988). The decision to grant or deny this relief rests within the trial court’s discretion. Id.” A. Secondino & Sons, Inc. v. Loricco, 19 Conn. App. 8, 13, 561 A.2d 142 (1989). Unless the moving party demonstrates an abuse of discretion or some error of law, the denial of the motion to open must stand. Id.

The Gelorminos argue that the trial court’s memorandum of decision indicates that the trial court improperly relied on representations of counsel in making its factual determinations. We disagree with their interpretation of the trial court’s memorandum of decision. The Gelorminos have failed to demonstrate that the trial court abused its discretion, that its findings were clearly erroneous or that its decision was otherwise erroneous in law. Practice Book § 4061; see also U.S. Fidelity & Guaranty Co. v. K.J. Enterprises, Inc., 19 Conn. App. 806, 563 A.2d 1386, cert. denied, 212 Conn. 818, 565 A.2d 538 (1989), cert. denied, 493 U.S. 1088, 110 S. Ct. 1155, 107 L. Ed. 2d 1058 (1990).

The judgment is affirmed.

       The Gelorminos moved the court “to reopen the judgment of foreclosure” which had been rendered in the matter. Although the nomenclature is found in the title to General Statutes § 52-212 and in some decisions of our courts; see e.g., Bartlett v. Bartlett, 220 Conn. 372, 599 A.2d 14 (1991); Sasso v. Aleshin, 197 Conn. 87, 495 A.2d 1066 (1985); D’Occhio v. Connecticut Real Estate Commission, 189 Conn. 162, 455 A.2d 833 (1983); Northeast Savings, F.A. v. Hopkins, 22 Conn. App. 396, 578 A.2d 136 (1990); Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 478 A.2d 257 (1984); unless the judgment has been opened previously, the appropriate appellation is a motion to open. “Reopen” is defined in Webster’s Third New World Dictionary as “to open again” or “to take up again.” (Emphasis added.) Thus, we will treat the motion as a motion to open.


author: Foti, J. Freedman, J.,

text:
    State of Connecticut v. Ralph Lago, Sr.
    (9866)
    Foti, Lavery and Freedman, Js.

      Argued February 21
    decision released June 23, 1992

      Wesley W. Horton, with whom were Robert M. Shields, Jr., David B. Harting, and, on the brief, Richard J. Joseph, for the appellant (defendant).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Edward Ricciardi, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of arson in the second degree in violation of General Statutes § 53a-112 (a), and insurance fraud in violation of General Statutes § 53a-215 (a) (l). On appeal, the defendant raises three claims. He contends that the trial court improperly (1) permitted unreliable identification testimony, (2) instructed the jury on the defendant’s failure to call a witness, and (3) found sufficient evidence to convict the defendant of insurance fraud and, therefore, denied his motion for a new trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 20, 1989, a fire destroyed the house of Diana Lago at 48 East Street in Wolcott. She had been awarded sole possession of the house after her divorce from the defendant. The defendant resented her possession of the house and had threatened her life, telling her she would never enjoy the house and that she was not going to keep it. After the fire, the defendant indicated that if she rebuilt the house with insurance proceeds, it would “go up again,” with her in it. In February, 1989, Diana Lago had changed the locks of the house and found that on March 8 the defendant had entered the house and that all the locks had been removed. The following day, Diana Lago discovered that new locks had been installed on the doors. She called the police. Upon their arrival, she entered the house to find all the lights on and the thermostats turned all the way up. The defendant called Diana Lago later that evening and told her that he had left a key on a table. The key fit only the door leading to the basement exit. Subsequently, only she and the defendant had keys to the house. A few days prior to the fire, she discovered that someone had dismantled the fire alarm system in the house.

On the night of the fire, Diana Lago left the house at approximately 6:05 p.m. Her friend picked her up to go bowling, as they had done every Thursday evening for ten years. She locked the house with her dog inside. Soon after leaving the house, Diana Lago and her friend observed the defendant driving his Ford van in the direction of the house on a road that intersects with East Street. At approximately 6:30 p.m., an acquaintance of the defendant observed him driving his van away from East Street. At the time, the defendant was wearing a red plaid jacket. Between 6:20 and 6:30 p.m., a neighbor saw Diana Lago’s dog outside, but did not observe anything unusual or any indication of smoke or fire.

At approximately 7:45 p.m., Robert Trerice, a lieutenant of the Waterbury fire department, drove by the Lago house. He observed heavy smoke and flames shooting out of the back of the house. He watched a man step out of the front door and appear to try to lock it. The man was approximately 5 feet 8 inches tall with a husky build, and dark hair which was gray or white around the ears. He was approximately forty to fifty years old. The man was wearing blue or green industrial type work clothes. Trerice also observed two cars in the driveway, one of which was medium sized and similar to a Datsun or Toyota. Trerice proceeded to the firehouse and returned shortly thereafter with the fire department. He did not see the man at the scene upon his return.

At approximately the same time that Trerice passed the house, a neighbor witnessed flames and smoke at the Lago house from her backyard. She also heard screeching tires and observed a small brown car pull out of the Lago driveway and proceed north toward Wolcott center. She described the car as similar to a Toyota Corolla or small Mustang, with dark windows seemingly covered in dark plastic. The vehicle did not appear to have any chrome or bumpers. The screeching tires reminded her of the way that the defendant’s son, Ralph Lago, Jr., drove when he lived at the house.

Shortly thereafter, Larry Thomas, a fireman, was driving south on County Road. He observed a small orange-brown Toyota type car proceed at a high rate of speed through the stop sign at County Road and East Street. A few minutes later he saw a large column of black smoke coming from the area of the Lago residence. He later identified a car sitting in the driveway of the defendant’s son’s house as the one he had seen go through the intersection.

When the firefighters arrived at the Lago house, they found all of the doors locked. Although the fire had not been burning long, the house was fully in flames. Firefighters were able to detect the presence of an accelerant. On the following day, it was determined that the fire had been ignited intentionally and that an accelerant had been used. The living room, which had sustained the most damage, smelled of gasoline. Tests indicated the presence of gasoline and number two fuel oil or diesel fuel. Typically, gasoline is combined with fuel oil and used as an accelerant because gasoline is easier to ignite, and number two fuel oil causes the accelerant to burn longer than if gasoline alone is used. The defendant’s oil truck, which was parked in the Lago driveway, contained number two fuel oil. According to Christine Bosco and John Korab, attendants at two different gas stations in Wolcott, a man fitting the defendant’s description purchased gasoline in a container from them on the day of the fire.

I

The defendant first claims that the trial court improperly permitted the introduction of unreliable testimony that was the result of unnecessarily suggestive identification procedures. The following additional facts are pertinent to our analysis of this claim.

A

TESTIMONY OP ROBERT TRERICE

At trial, Trerice described the height, build and clothing of the man he had observed at the scene of the fire. In particular, Trerice described the man’s hair. At the time he observed the man, it was daylight and Trerice got a good look at the individual’s back and side. He did not view the man’s face straight on. Trerice observed the man from approximately 120 feet.

As a result of the defendant’s motion to suppress identification, the court held a hearing in the absence of the jury at which the following facts came to light. The defendant had been videotaped without his knowledge at the police station the day after the fire while speaking to Lieutenant Joseph Forte. Later that day, Trerice viewed the videotape and indicated that the man in the tape was very similar to the man he had seen at the house and that the hair of each was identical. He could not, however, make a positive identification.

Trerice offered to testify before the jury as to the similarity between the man he had seen in the videotape and the man he had seen at the scene. The court did not treat this proffered testimony as an identification but distinguished it as “resemblance” testimony. Although the court found that the police had used an unnecessarily suggestive procedure in showing Trerice the videotape, the court admitted Trerice’s testimony on the basis that Trerice was not making an identification nor was his testimony leading to an identification of the defendant. The court explicitly prohibited Trerice from making any comparison before the jury between the defendant and what he had seen. The court refused to admit the videotape itself into evidence on the basis that it was unnecessarily suggestive. In the jury’s presence, Trerice testified as to the similarities between the man he had seen at the house and the man he had viewed on the videotape, specifically as to hair, age and build. The defendant took an exception. Later in the trial, Forte identified the person on the videotape as the defendant. He indicated that at the time of the taping, the defendant wore blue work pants, dark shoes, a red plaid wool or flannel hip length jacket and a red shirt.

We agree that Trerice’s testimony was not identification testimony. Whether resemblance testimony is the same as identification testimony in each case in which there has been an improper identification procedure is an issue of first impression in our state. We note that there is disagreement among the federal courts that have had occasion to pass on this issue. Compare United States v. Brooks, 449 F.2d 1077 (D.C. Cir. 1971) with Patler v. Slayton, 503 F.2d 472 (4th Cir. 1974). In United States v. Brooks, the District of Columbia Circuit Court of Appeals stated that “[wjhile ‘resemblance’ testimony projects some uncertainty on the part of the witness, it is part of the evidence which the jury may consider to constitute a basis for a guilty verdict, and a defendant’s rights would be violated if such testimony had been obtained by the Government e.g., by an arrantly suggestive confrontation.” United States v. Brooks, supra, 1083. We find the view articulated by the Fourth Circuit in Patler v. Slayton, supra, to be more compelling, however. In that case the Fourth Circuit held that although the line between resemblance and identification testimony may be thin, it is a “line worth drawing.” Id., 476. This view has also been adopted by the Appellate Division of the New York Supreme Court. See People v. Moss, 172 App. Div. 2d 856, 569 N.Y.S.2d 457, appeal granted, 78 N.Y.2d 1079, 583 N.E.2d 954, 577 N.Y.S.2d 242 (1991); People v. Sanders, 108 App. Div. 2d 316, 489 N.Y.S.2d 348, aff'd, 66 N.Y.2d 906, 489 N.E.2d 743, 498 N.Y.S.2d 774 (1985).

While we agree with the trial court that Trerice’s resemblance testimony was not identification testimony because it neither identified nor led to an identification of the defendant, this determination does not conclude our review. In this case, the police display of the videotape to Trerice was unnecessarily suggestive. See State v. Findlay, 198 Conn. 328, 338, 502 A.2d 921, cert. denied, 476 U.S. 1159,106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). “Although the failure of a witness to make a positive, in-court identification cannot be used by the state to insulate its improper identification procedures from scrutiny, it is entirely possible . . . for a skilled trial judge to separate tainted matter from what the witness actually observed at the scene of the crime and thus avoid an unnecessarily blunt application of the exclusionary rule . . . .” Patler v. Slayton, supra. Here, the trial court limited Trerice’s testimony to similarities between the man in the videotape and the man Trerice saw at the house. The court prohibited Trerice from making a comparison with the defendant to ensure that the thin line between resemblance and identification testimony was not crossed.

Because Trerice’s resemblance testimony was predicated on an impermissibly suggestive procedure, we must establish a standard by which to determine its admissibility. We note that the standard we adopt today need not be employed in all cases involving resemblance testimony, but merely in those cases in which an improper identification procedure has occurred. We choose to adopt a standard identical to that applied to identification testimony that is the product of improper police procedure, the test being whether the testimony was nevertheless reliable based on an examination of the totality of the circumstances. See State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980).

An in-court identification must be excluded as violative of the defendant’s due process rights only if it is the product of an unconstitutional pretrial identification procedure. State v. Tatum, 219 Conn. 721, 726-27, 595 A.2d 322 (1991). “In determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the ‘totality of the circumstances.’ ” State v. Theriault, supra; State v. Howard, 221 Conn. 447, 453, 604 A.2d 1294 (1992).

“To determine whether an identification resulting from an unduly suggestive procedure is nevertheless reliable, [we] must weigh the corrupting effect of the suggestive procedure in light of the following factors: ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.’ ” State v. Howard, supra, quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

We recognize that “the Manson reliability inquiry contemplates a series of factbound determinations, which a trial court is far better equipped than [an appellate court] to make. . . .” State v. Howard, supra, 454. Because the trial court in this case did not make such findings, the record must be sufficient for us to review that prong of the required constitutional test, See State v. Tatum, supra, 727 n.11 (the defendant failed to file a motion to suppress regarding a challenged identification procedure); Williams v. Bronson, 21 Conn. App. 260, 265-66, 573 A.2d 330 (1989) (a habeas corpus proceeding wherein no challenge to the identification was made). We find that the record in this case is sufficient for us to determine whether Trerice’s resemblance testimony was reliable.

Although we agree with the trial court’s conclusion that Trerice’s testimony was not identification testimony, we also conclude that the trial court properly admitted his testimony, as it was reliable. Even though the procedure employed was unnecessarily suggestive, the resemblance testimony satisfies the five factor reliability test enunciated in Manson v. Brathwaite, supra.

Turning to the facts of this case, we first note that Trerice had a good opportunity to view the man at the scene of the fire. Trerice testified that it was “very light” at the time he made his observations. He testified that he viewed the man from the side for approximately four or five seconds as the man stepped out of the front door and that he got a longer look from the back. Although Trerice viewed the man from a distance of 120 feet, he testified that he has good eyesight and that he got a “good look” at the back of the man through his open car window. Our Supreme Court has stated that “a good hard look will pass muster even if it occurs during a fleeting glance.” State v. Ledbetter, 185 Conn. 607, 615, 441 A.2d 595 (1981). Furthermore, he testified that he was familiar with the area and that he travels on East Street approximately once a week and sometimes more.

Trerice’s degree of attention was high during his observation given the fact that there were heavy smoke and flames coming from the back of the house. His degree of attention was further heightened given his position as a lieutenant firefighter in a nearby town. Furthermore, he was struck by the sight of a person exiting a burning building in what he described as a calm, deliberate manner, appearing to take the time to lock the front door.

Trerice was able to provide the police with a description of the length and distinctive color of the man’s hair, as well as an approximation of his height, build and age. Trerice also provided the police with a description of the man’s clothing.

Although Trerice could not positively identify the defendant, his uncertainty in and of itself does not render the testimony unreliable. “[ Admissibility of identification testimony requires a judgment about reliability that is derived from a matrix of factors in which the relative certainty of the identification is only one component.” State v. Perez, 198 Conn. 68, 76, 502 A.2d 368 (1985); Manson v. Brathwaite, supra, 114. Absent a very substantial likelihood of irreparable misidentification, “ ‘[w]e are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.’ ” State v. Ramsundar, 204 Conn. 4, 13, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987), quoting Manson v. Brathwaite, supra, 116. Any uncertainty on Trerice’s part goes toward the weight of the evidence rather than the admissibility. State v. Mayette, 204 Conn. 571, 584, 529 A.2d 673 (1987). “The weaknesses of identifications can be explored on cross-examination and during counsel’s final arguments to the jury.” State v. Kemp, 199 Conn. 473, 478, 507 A.2d 1387 (1986). It was a matter for the jury to determine, after cross-examination, what weight to accord Trerice’s testimony.

Finally, Trerice gave his description of the man to the police only one day after he had made his observation at the scene. This factor strongly supports the reliability of the resemblance testimony. See State v. Cubano, 203 Conn. 81, 96, 523 A.2d 495 (1987) (only nine days between the crime and the identification); State v. Arroyo, 13 Conn. App. 687, 690, 539 A.2d 581, cert. denied, 208 A.2d 805, 545 A.2d 1103 (1988) (only eighteen days between the crime and the identification). Trerice’s testimony as to what he saw at the scene was, therefore, not tainted by the unnecessarily suggestive display of the videotape. We conclude that despite any impermissibly suggestive identification procedure used by the police, Trerice’s resemblance testimony was nevertheless reliable. Thus, the court properly admitted Treriee’s resemblance testimony as circumstantial evidence, leaving the jury to determine what weight it should be accorded.

B

TESTIMONY OF CHRISTINE BOSCO

We next examine the admissibility of the testimony of Christine Bosco, an attendant at Norm’s A-l Citgo station in Wolcott. The day after the fire, the police canvassed area gasoline station attendants about people who purchased gas in containers on the previous day. Bosco testified in the presence of the jury that she transacted three such sales. Specifically, she sold gas pumped into a container to an older man who was driving a van or small truck. She described the man whom she saw face-to-face as being of medium height, a little bit stocky and with salt and pepper hair, wearing a red plaid “kind of shirt-jacket.” She testified that the man, who was about forty-five or fifty years old, pumped gasoline into a five gallon container and paid her. This transaction occurred sometime between 5 and 7 p.m.

The next day, Officer Brian Morrone of the Wolcott police department showed Bosco a photograph of five people including the defendant. Bosco pointed out the defendant and indicated that he resembled the man who had purchased gas in a container from her the previous day. She testified that the build, size, age, and especially the hair of the man in the photograph resembled the person who had purchased the gas. She testified that there was a “general resemblance” between the two. She characterized the resemblance as “very close.” She also testified that she viewed a videotape at the police station and that the man in the tape “very much resembled” the man who had purchased gas the previous day and also resembled the person in the photograph. She testified that she was absolutely certain that the man’s jacket in the tape was the same as that worn by the customer who had purchased the gasoline. She then pointed out the defendant, who was seated at counsel table, as a man who “closely resembles” the man who purchased gas from her on April 20.

The trial court treated Bosco’s testimony as identification testimony. Although the court found that the procedures used by the police were unnecessarily suggestive, the court held that her identification, to the extent that she could make one, was nonetheless reliable.

As discussed earlier, when a witness has made a pretrial identification, the analysis of whether the witness should be permitted to identify the defendant at trial requires a two step inquiry. State v. Howard, supra, 453. The first question is whether the pretrial identification procedures were unduly suggestive of the suspect’s guilt. State v. Milner, 206 Conn. 512, 534, 539 A.2d 80 (1988). If so, the second inquiry is whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. Id. “ ‘Reliability is the linchpin in determining the admissibility of identification evidence.’ ” State v. Chapman, 16 Conn. App. 38, 43, 546 A.2d 929, cert. denied, 209 Conn. 827, 552 A.2d 433 (1988), quoting Manson v. Brathwaite, supra, 114. Although Bosco did not witness the actual crime, the five factor test enunciated in Manson can still be applied to the facts of this case to determine reliability. State v. Ramsundar, supra, 11. “We must examine the circumstances that did exist and determine on the whole whether any suggestiveness in the identification procedure created a very substantial risk of misidentification.” Id.

Because the analysis of reliability under Manson v. Brathwaite, supra, rests on a series of factual determinations that are normally within the province of the trial court, we will not dismiss the factual findings of the trial court unless there is “clear and manifest error.” State v. Howard, supra, 454. After careful examination of the record with an eye toward the constitutional rights of the accused; see id; we conclude that the facts found by the trial court are adequately supported by the evidence. Although the police in this case used an impermissibly suggestive identification procedure, we agree with the trial court that, under the totality of the circumstances, Bosco’s identification of the defendant was nevertheless reliable.

Bosco had a very good opportunity to view the customer who purchased gas in a container from her and who she testified resembled the defendant. The customer came into the store sometime between 5 and 7 p.m. while it was daylight. Bosco testified that she generally paid particular attention to customers who pumped gas into containers because those customers do not pay for their gas until after it has been pumped. Bosco was able to recall the man’s height, build, clothing and especially his hair. Bosco emphasized that she was “absolutely certain” that the customer was wearing the same jacket that the defendant wore in the videotape she viewed. In addition, only one day had passed between her encounter with the customer and her description of the man to the police.

The fact that Bosco was not absolutely certain that the defendant was the man she saw in the store did not render her testimony unreliable. Again, any uncertainty on her part goes to the weight of the evidence rather than its admissibility and thus was a matter for the jury to decide. State v. Mayette, supra. In this case, the trial court could have reasonably found that any suggestiveness in the identification procedure did not result in a substantial likelihood of misidentification and that Bosco’s identification of the defendant was sufficiently reliable to be submitted to the jury.

c

TESTIMONY OF JOHN KORAB

We next turn to the admissibility of the testimony of John Korab, an attendant at the Getty Mart in Wolcott. He testified that a man bought gas in a container from him on April 20,1989. The day after the fire, the police showed Korab the same photograph shown to Bosco. Korab pointed out the defendant and said, “That’s the man, unless he’s got a twin.” At trial, Korab testified that the customer came in between 4 and 5 p.m., paid Korab for the gas in advance, went to the pump farthest from the building and pumped $1 or $2 worth of gas into a plastic container that did not say “gasoline” on it. Korab testified that he was uneasy because an attendant is not supposed to let a customer pump gas into a container that does not say “gasoline” on it. Korab also viewed the tape shown to Bosco and Trerice. He testified that the man in the tape was the same man who had bought gas in a plastic container from him. The man in the tape had the same face and hair as the customer, but his body appeared bigger than the customer’s. Korab testified that the customer was between 5 feet 6 inches and 5 feet 8 inches tall, with a medium build and in his late thirties and was wearing “something like a gray tweed jacket.”

The court treated Korab’s testimony as identification testimony. Although the court found that the identification procedures used by the police were unnecessarily suggestive, it found that the testimony was nonetheless reliable under the totality of the circumstances test. Although Korab’s out-of-court identification did not identify the defendant outright, he told the police, “That’s the man, unless he’s got a twin.” This testimony is clearly identification testimony.

When analyzed under the totality of the circumstances test as enunciated in Manson v. Brathwaite, supra, Korab’s testimony is reliable. Korab had a good opportunity to view the face of the customer alleged to be the defendant. The customer came into his store between 4 and 5 p.m. while it was daylight, and Korab saw him face to face. Korab’s degree of attention was high due to his uneasiness because the customer pumped gas into an improper container. Only one day passed between Korab’s transaction with the customer and his description of him to the police.

Any discrepancy in Korab’s testimony between the size and age of the customer and the defendant’s size and age goes toward the weight of the evidence rather than its admissibility. State v. Williamson, 206 Conn. 685, 694, 539 A.2d 561 (1988). Thus, we conclude that the trial court reasonably could have found that Korab’s testimony was reliable on the basis of the totality of the circumstances, despite any impermissibly suggestive identification procedure that occurred.

II

The defendant next claims that the trial court improperly instructed the jury that an adverse inference could be drawn against the defendant from his failure to call a certain witness.

Although the defendant was convicted as a principal to the crime of arson in the second degree, he had also been charged with arson in the first degree and being an accessory to arson in both the first and second degrees. The court permitted the accessory charges to go to the jury because evidence had been presented that an automobile matching one owned by the defendant’s son had been observed at or near the fire and that this automobile had been driven away from the scene in a manner similar to the way the defendant’s son drove.

The defendant’s son, Ralph Lago, Jr., testifying for the defense, indicated that he worked in Farmington until approximately 5 p.m. on the day of the fire. He then went to a package store and a softball game. Shortly after 7 p.m., he went to the Southington home of a coworker, Greg Prislow, arriving at approximately 7:45 p.m. Prislow’s house is only a short distance from East Street in Wolcott. Ralph Lago, Jr., left Prislow’s at 10 or 10:30 p.m. and arrived at his house at 11 p.m. During closing arguments, the state asserted that the evidence suggested that the defendant and his son were at the Lago house at the time the fire was set. The state pointed out that despite evidence implicating Ralph Lago, Jr., in the crime, Prislow was never called to support his testimony that he was at Prislow’s house at the time of the fire.

The state filed a request to charge the jury with a missing witness instruction, a Secondino charge. The defendant did not object, and, therefore, the state argues that this claim is not properly preserved. State v. Anderson, 212 Conn. 31, 561 A.2d 897 (1989). We note that the court file indicates that the state’s request was granted on November 13 and that the charge was given on November 15. There was no argument or advance ruling noted in open court. An advance ruling was filed by the court prior to the commencement of oral arguments. Oral arguments began on November 13. When the court gave the requested Secondino instruction on November 15, the defendant noted his exception. We therefore conclude that this case is unlike State v. Anderson, supra, where the trial court expressed its intent to grant the state’s motion in response to a request made prior to the commencement of oral argument and the defendant did not object. Here, the court granted the state’s request, and the defendant was aware of that action prior to oral arguments and the defendant failed to object. Our Supreme Court has indicated that “[a]lthough the defendant objected to the court’s instructions during the state’s final argument and after the Secondino charge was given to the jury, objection to such an instruction should have been made by the defendant when he learned that the state had requested it and prior to its being brought up in arguments. ” (Emphasis added.) State v. Anderson, supra, 43.

As in Anderson, the state here followed the proper procedure in requesting a Secondino charge. The state intended to argue to the jury that an unfavorable inference could be drawn from the absence of a witness, and, therefore, obtained an advance ruling from the court by its request to charge, a copy of which was given to the defendant. While the state did not, as in Anderson, orally ask the court for a ruling on the requested Secondino charge, such was not required because the court granted that request prior to oral arguments. It would serve no purpose for the state to request something that had already been granted. “[I]t was incumbent on the defendant to interpose a proper objection before the issue of the missing [witness] was brought to the attention of the jury.” (Emphasis added.) State v. Anderson, supra. The defendant’s claim was not properly preserved. “A party who fails to make a timely objection to the giving of a Secondino charge will be deemed to have waived the issue for appeal. The giving of a Secondino charge is purely an evidentiary issue and is not a matter of constitutional dimensions.” Id., 41-42.

Even if we were to reach the merits of this question, we are not persuaded that the trial court committed plain error in giving a Secondino charge, and even if error was committed, it was harmless because the jury convicted the defendant as a principal rather than an accessory. Any adverse inference from Prislow’s absence played a minimal role at most in the jury’s deliberations. The defendant has failed to meet his burden of demonstrating that the charge was likely to have affected the verdict. State v. Shashaty, 205 Conn. 39, 44, 529 A.2d 1308 (1987), cert. denied, 484 U.S. 1027, 108 S. Ct. 753, 98 L. Ed. 2d 766 (1988).

Ill

Finally, the defendant claims that the evidence produced by the state was insufficient to sustain a conviction for insurance fraud in violation of General Statutes § 53a-215. Specifically, the defendant claims that the state failed to prove that (1) there was a claim for payment within the meaning of the statute, and (2) the Lladro figurines, which the defendant alleges were destroyed in the fire, had in fact been taken from the house.

The jury reasonably could have found the following facts relevant to this claim. Both the defendant and Diana Lago submitted claims to the Aetna Insurance Company for losses incurred in the fire. Gloria Wood-well, a senior claims adjustor for the Aetna Insurance Company, examined the remains of the house a number of times after the fire to determine the overall damage and the contents of the home, as well as to discover any salvageable items. She went through the rubble of the entire house, measured each room starting with the basement, and looked in every section. Although she discovered stoneware in the remnants of the upstairs back bedroom, she saw no traces of the Lladro figurines at the scene. She was aware that Lladro figurines are made of porcelain and have a higher melting point than stoneware. During her inspections, Woodwell knew of the defendant’s claim that Lladro figurines had been lost in the fire. The estimated value of the figurines ranged from $100 to $15,000.

Aetna’s claims procedures allow anyone filing a claim to submit a written list of what was lost on forms provided by the company. As part of this procedure Aetna requires that claims be accompanied by receipts, canceled checks, or other documentation to prove the amount of the loss. On June 14, 1989, the defendant submitted a signed contents claim worksheet, as required by Aetna, which contained a list of Lladro figurines. This claim sheet is kept by Aetna as a permanent record of a claim made on the policy. The defendant also provided Aetna with over eighty photographs of items he owned that he claimed were destroyed in the fire, including the Lladro figurines. A sworn statement of the defendant’s proof of loss was also submitted. Additionally, attached to the seventeen pages of the contents worksheets was an oath page that stated that they were true and accurate to the best of the defendant’s knowledge. There were many conversations between the defendant and Woodwell wherein the defendant expressed his interest in settling his claim.

The defendant’s Lladro collection had been kept in his room at 48 East Street prior to his moving out. Brian Haylette, a former boyfriend of the defendant’s daughter, testified that sometime in late 1988, he assisted the defendant and the defendant’s daughter, Therese Collela, in removing certain items from the defendant’s room at the house at 48 East Street. He testified that, among other things, they moved Lladro figurines to the defendant’s parents’ house in Waterbury. Collela testified, however, that the figurines had not been moved from the house but had been stored in the attic. Diana Lago testified that as of March 22, 1989, all items belonging to the defendant had been removed from his room. The room was bare, without light fixtures, telephone jacks or closet doors. Collela later told her mother that she had removed the figurines, and the defendant himself admitted removing some figurines from the house. The photographs of the Lladro figurines submitted to Aetna by the defendant were not taken at 48 East Street. They were taken sometime between December 1, 1988, and the day of the fire, and included figurines that had never been at 48 East Street, and belonged to Collela and the defendant’s mother.

When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the jury’s verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Hopes, 26 Conn. App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).

The defendant first alleges that there was no evidence of a demand or claim for any monetary amount and, therefore, the requirements of General Statutes § 53a-215 were not met. This claim is without merit. Neither the statute nor Aetna requires that a claim be filed for a specified monetary amount. Aetna merely seeks information known to the claimant relative to the original cost, the cost to replace, clean or repair the items. The term “claim for payment or other benefit” as contained in § 53a-215 is followed by the words “pursuant to such policy of insurance.” Thus, the claim for payment is dependent on the procedures of the insurer to establish a payment for a claimed loss. A claimant who knowingly supplies false statements as part of or in support of a claim for payment violates this statute and is guilty of insurance fraud, even absent an actual demand or claim for a specific monetary amount.

The defendant also claims that the evidence submitted to the jury was insufficient to sustain his conviction because it failed to establish that the Lladro figurines had been taken from the house before the fire. While there was contradictory evidence introduced at trial concerning the location and alleged removal of the figurines, it is within the province of the jury to determine credibility and assess weight to be given the evidence submitted. State v. Reyes, 19 Conn. App. 179, 191, 562 A.2d 27 (1989). “ ‘[When the conclusion is one that is dependent on the resolution of conflicting testimony, it should ordinarily be left to the jury for its judgment. State v. Torello, 100 Conn. 637, 647-48, 124 A. 375 (1924).’ ” State v. Bewry, 26 Conn. App. 242, 246, 600 A.2d 787 (1991), cert. denied, 221 Conn. 911, 602 A.2d 11 (1992). The evaluation of testimony is the sole province of the trier of fact. State v. Johnson, 26 Conn. App. 553, 557, 603 A.2d 406 (1992). The verdict indicates that the jury chose to credit the testimony of Woodwell, Haylette, and Diana Lago, and reject the contradictory testimony of Collela.

The defendant asserts that Woodwell’s testimony that she found no evidence of porcelain during her survey deserves little weight because she “did not see an attic or ceiling above the second floor” and the attic is where the defendant claims the figurines were stored. Again, the jury had before it all of the evidence and chose not to believe that the Lladro figurines were in the attic and had been destroyed. The record shows that Woodwell had examined the entire upstairs, consisting of two bedrooms and storage areas, and a bathroom. The record further indicates that as a result of the fire she could see directly to the roof from the second floor, and that there was no attic separate and distinct from this area. Wliat once was an attic had been converted into two bedrooms, the bathroom and walkway or storage area off the stairs. Further, as a result of the fire, there was no ceiling between the second floor and the roof because the ceiling had burned and fallen. When Woodwell stood on the second floor of the Lago residence, she looked up directly at the roof. Thus, the defendant’s claim that Woodwell never went into the attic and, therefore, may have missed the remnants of the Lladro figurines, is without merit.

After a review of the record, we conclude that there was legally sufficient evidence presented at trial for the jury to find the defendant guilty of insurance fraud.

The judgment is affirmed.

In this opinion Lavery, J., concurred.

Freedman, J.,

concurring. While I agree with the result reached by the majority, I fail to see the logic in engaging in a discussion of the distinction between resemblance testimony and identification testimony in this case when the majority concludes, as it does, that the standard for determining the admissibility of both types of testimony, when an unnecessarily suggestive procedure is involved, is exactly the same.

If a distinction between resemblance and identification testimony is a distinction worth making, there must be some reason for it. The United States Court of Appeals for the Fourth Circuit, in one of the cases relied on by the majority, recognized the reason for the distinction when it said: “Aside from police deterrence, the spirit of [the exclusionary rule] is to prevent the conviction of those who may be innocent when a susceptible witness is unfairly allowed to conclude, ‘he is the guilty one.’ It is far less dangerous to admit testimony, as was done here, that the malefactor was ‘dark haired’ and ‘had a brown coat on’ and ‘looked something like [the defendant],’ which was the gist of [the witness’] testimony.” Patler v. Slayton, 503 F.2d 472, 476-77 (4th Cir. 1974). In other words, because resemblance testimony is potentially less damaging to a defendant than identification testimony, since it is not as likely to lead to a conviction, there is less reason to suppress resemblance testimony, even though an unnecessarily suggestive procedure may have been involved.

Given this reason for the distinction between resemblance and identification testimony, it does not logically follow, as the majority in this case has concluded, that the test for determining the admissibility of resemblance testimony when an unnecessarily suggestive procedure is involved is identical to the test used to determine the admissibility of identification testimony derived from the same unnecessarily suggestive procedure. I would suggest that its admissibility might hinge on some lesser showing of reliability than that required for identification testimony, leaving to the jury the weight to be afforded such testimony if admitted into evidence.

It is not necessary, however, in this case to reach the issue of what such lesser threshold might be for the admissibility of resemblance testimony in conjunction with an unnecessarily suggestive procedure. I would conclude that because Robert Trerice’s testimony satisfies the stricter scrutiny of the test used for identification testimony, the trial court properly admitted his testimony into evidence in this case.

With the exception stated above, I agree with all other aspects of the majority opinion.

       The jury found that the defendant was the actual perpetrator of the arson; the defendant was found not guilty of the crime of arson in the first degree in violation of General Statutes § 53a-lll (a).

       The trial court’s recognition of the thin line between resemblance and identification testimony is evidenced by its distinction between the testimony of Trerice and the testimony of Christine Bosco and John Korab, which was treated as identification testimony.

       “ ‘The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ ” Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).