author: FOTI, J.

text:
    DAVID DUBINSKY v. CITICORP MORTGAGE, INC.
    (AC 16790)
    Foti, Dupont and Daly, Js.

      Argued December 11, 1997
    officially released March 10, 1998

      Kerry M. Wisser, with whom, on the brief, were Nathan A. Schate and Gail P. Ferris, for the appellant (plaintiff).

      Matthew D. Gordon, for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, David Dubinsky, appeals from the trial court’s granting of summary judgment in favor of the defendant, Citicorp Mortgage, Inc. The issue presented in the appeal is whether the trial court properly granted the defendant’s motion for summary judgment on the ground that the defendant, a potential lender, was under no duty to supply the plaintiff, a loan applicant, with an accurate appraisal. We affirm the judgment of the trial court.

This is an action for breach of contract arising out of the defendant’s alleged failure to supply the plaintiff with an accurate real estate appraisal in connection with a mortgage loan transaction between the parties. The defendant moved for summary judgment, conceding for purposes of the motion that the appraisal was inaccurate. The defendant contends that it was under no duty to supply the plaintiff with an accurate appraisal either under Connecticut law or pursuant to the agreement between the parties. The trial court agreed and granted the motion.

On or about September 2, 1988, the plaintiff applied to the defendant for a mortgage loan of $168,750 in connection with his proposed purchase of property located in East Hartford. On September 9, 1988, the defendant obtained an appraisal of the property for purposes of justifying the loan. Later that month, the defendant issued a mortgage loan commitment to the plaintiff. A portion of the commitment form informed the plaintiff that pursuant to Public Acts 1987, No. 87-6, he was entitled to receive a copy of the appraisal used by the defendant to support his loan application. Thereafter, the plaintiff signed the commitment and, as security for the loan, granted the defendant a first mortgage on the property. In October, 1988, the defendant sent a copy of the appraisal to the plaintiff and, in its transmittal letter, informed the plaintiff as follows: “In compliance with Connecticut Public Act 87-6, we are providing you with a copy of the property appraisal used in connection with your mortgage application to Citicorp Mortgage, Inc. This appraisal was used solely for the purpose of substantiating asset value in support of your application. Information, estimates and opinions furnished to Citicorp and contained in the report, were obtained from sources considered reliable and believed to be true and correct. However, no responsibility for accuracy of such items furnished Citicorp can be assumed by Citicorp.” The plaintiffs signature appears on the transmittal letter confirming his receipt of the document.

In his complaint, the plaintiff alleged that he relied on the defendant’s inaccurate appraisal and, as a result, was induced to purchase, invest in and repair the property. In addition, the plaintiff alleged that because of the overvaluation of the property, he received a larger mortgage than he should have. The trial court determined that no genuine issue of material fact existed regarding the plaintiffs claim that the defendant owed him a duty, contractual or otherwise, to supply an accurate appraisal. We agree.

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving parly is entitled to judgment as a matter of law. . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450, 627 A.2d 1329 (1993). In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn. App. 569, 575, 626 A.2d 1306 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Johnson v. Meehan, 225 Conn. 528, 535, 626 A.2d 244 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. . . . Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990).” (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn. App. 150, 158, 698 A.2d 938 (1997).

Because the trial court rendered judgment for the defendant as a matter of law, “our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995).

The parties do not dispute that the appraisal performed by the defendant did not induce the plaintiff to submit his loan application. In fact, the plaintiffs application was submitted before the defendant ordered the appraisal. Furthermore, it was the plaintiffs application that necessitated the appraisal. The parties also agree that the plaintiff was free to have his own appraisal performed at his own expense. The plaintiff argues, however, that the defendant breached the express terms of their contract by failing to perform an accurate appraisal. The plaintiff claims that the mortgage loan commitment form signed by both parties expressly obligated the defendant to provide the plaintiff with an appraisal of the real estate used to secure the loan and, therefore, the defendant was obligated to perform the appraisal in a skillful manner.

“Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. ... It is the general rule that a contract is to be interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties. . . . When the intention conveyed by the terms of an agreement is clear and unambiguous, there is no room for construction. ... [A] court cannot import into [an] agreement a different provision nor can the construction of the agreement be changed to vary the express limitations of its terms. . . . The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. . . . The circumstances surrounding the making of the contract, the purposes which the parties sought to accomplish and their motives cannot prove an intent contrary to the plain meaning of the language used. . . . It is axiomatic that a party is entitled to rely upon its written contract as a final integration of its rights and duties. . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Citations omitted; internal quotation marks omitted.) Levine v. Massey, 232 Conn. 272, 277-79, 654 A.2d 737 (1995).

The penultimate paragraph of the mortgage loan commitment form provides in relevant part: “Connecticut Public Act 87-6 entitles you to a copy of the property appraisal performed to support your loan application. Citicorp will provide this to you at the closing or sooner if you require it.” This language did not create an obligation on the part of the defendant to perform an accurate appraisal for the benefit of the plaintiff. Rather, it clearly and unambiguously informed the plaintiff that he was entitled to receive a copy of the appraisal performed by the defendant for its own benefit in determining whether to approve the plaintiffs loan application. The defendant fulfilled the express terms of the contract when it provided the plaintiff with a copy of the appraisal.

We conclude, therefore, that pursuant to the express terms of the parties’ agreement, the defendant had no duty to perform an accurate appraisal for the benefit of the plaintiff.

The plaintiff next claims that even if the defendant’s failure to supply him with an accurate appraisal did not breach the express terms of the contract, such failure breached the contract’s implied covenant of good faith and fair dealing. The plaintiff argues that under the circumstances, the defendant had a common-law duty to perform the appraisal with reasonable care, which duty became part of the parties’ contract by way of the implied covenant of good faith and fair dealing. The plaintiff reasons that it is the defendant’s breach of the implied covenant that gives rise to a cause of action for breach of contract.

Even if we were to assume, arguendo, that the implied covenant of good faith and fair dealing can be used to incoiporate a negligence concept, i.e., duty, into the plaintiffs breach of contract claim, we do not agree that the defendant was under a common-law duty to perform the appraisal with reasonable care.

“A duty to use care may arise from . . . circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.” (Internal quotation marks omitted.) Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994). “Thus, initially, if it is not foreseeable to a reasonable person in the defendant’s position that harm of the type alleged would result from the defendant’s actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff. A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. . . . The final step in the duty inquiry ... is to make a determination of ‘the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results.’ ” (Citations omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 385-86, 650 A. 2d 153 (1994). The determination of whether a duty exists is a question of law. Jaworski v. Kiernan, 241 Conn. 399, 404, 696 A.2d 332 (1997). “Only if a duty is found to exist does the trier of fact determine whether the defendant violated that duty in the particular instance.” Field v. Kearns, 43 Conn. App. 265, 278, 682 A.2d 148, cert. denied, 239 Conn. 942, 684 A.2d 711 (1996).

The record discloses no relationship between the defendant, a potential lender, and the plaintiff, a loan applicant, on which to predicate a duty to perform an accurate appraisal for the benefit of the loan applicant. On the contrary, the transmittal letter that accompanied the copy of the appraisal sent to the plaintiff, which was signed by the plaintiff, clearly indicated that the appraisal was conducted solely for use by the defendant in evaluating the collateral for purposes of making a determination whether to enter into the loan and mortgage transaction. In addition, the transmittal letter contained a clause disclaiming the defendant’s liability for information, estimates and opinions contained in the appraisal. Thus, it was not reasonably foreseeable that the plaintiff, in negotiating the purchase of the property, would rely on the appraisal prepared by the defendant for its own benefit. Under the circumstances, the plaintiff should be expected to know that the appraisal was intended to assist the defendant in determining whether to make the loan, and was not intended to ensure that the plaintiff had made a good investment.

We conclude that the record fails to disclose that the defendant was under a statutory, contractual or common-law duty to perform an accurate appraisal for the benefit of the plaintiff. The trial court, therefore, properly rendered judgment for the defendant as a matter of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       Public Acts 1987, No. 87-6, codified at General Statutes § 36a-755, provides in relevant part: “(b) Any financial institution which directly or indirectly imposes a fee on any applicant for an appraisal on real property to secure a mortgage loan shall make available to such applicant at no charge a copy of the appraisal report promptly after the financial institution’s receipt of the applicant’s written request for a copy of the appraisal report, provided the financial institution receives the written request not later than ninety days after the financial institution has provided the applicant with notice of action taken on the applicant’s application or not later than ninety days after the application is withdrawn by the applicant, as applicable.
      “(c) Any financial institution which directly or indirectly imposes a fee on any applicant for an appraisal shall either (1) notify such applicant in writing of the availability of a copy of the appraisal report or (2) provide such applicant with a copy of the appraisal report at no charge, such notice or copy to be provided not later than ten days after receipt of the appraisal report, but in any event not later than the date on which the sale of such property is to be consummated.
      “(d) Any person who prepares such appraisal report shall not be hable to any person with whom the preparer has not contracted to make such appraisal report for opinions or facts stated in or omitted from such appraisal report, unless such statement or omission results from intentional misrepresentation. . . .”

       During oral argument before this court, the parties conceded that the appraisal performed by the defendant to support the plaintiffs loan application was paid for by the defendant. Because the plaintiff was not charged a fee, either directly or indirectly, for the appraisal, § 36a-755 did not obligate the defendant to provide the plaintiff with a copy of the appraisal.

       The plaintiff relies on our Supreme Court’s decision in Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984), for the proposition that where a party to a contract has a common-law duty, that duty becomes part of the contract as part of the implied covenant of good faith and fair dealing. We do not agree that the Magnan case stands for such a proposition. In Magnan, the court declined a plaintiff s invitation to apply the implied covenant of good faith and fair dealing to “enlarge the circumstances under which an at-will employee may successfully challenge his dismissal beyond the situation where the reason for his discharge involves ‘impropriety . . . derived from some important violation of public policy.’ ” Id., 572.

       We note that the parties have not identified, nor have we found, any Connecticut appellate decision specifically addressing whether a lender has a duty of care to a borrower in appraising the borrower’s collateral to determine if it is adequate security for a loan.


source: Caselaw Access Project

author: LAVERY, J. LANDAU, J.,

license: Public Domain

text:
    EARL BEEBE v. TOWN OF EAST HADDAM
    (AC 16943)
    Lavery, Landau and Hennessy, Js.

      Submitted on briefs November 13, 1997
    officially released March 10, 1998

      Bruce W. Diamond filed a brief for the appellant (plaintiff).

      David J. Mathis filed a brief for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, Earl Beebe, appeals from the summary judgment rendered by the trial court in favor of the defendant town of East Haddam (town). The sole issue on appeal is whether the statute of limitations was tolled during the time the plaintiff was incapacitated due to illness. We hold that the statute of limitations was not tolled during the plaintiffs illness and affirm the summary judgment of the trial court.

The following facts are relevant to this appeal. On September 11, 1993, the plaintiff was walking on the sidewalk adjacent to East Lane in the town. The plaintiff alleges that defects in the sidewalk caused him to fall and sustain certain personal injuries. By letter dated October 19, 1993, the plaintiffs attorney gave notice of the defects and the plaintiffs injury to the town clerk, pursuant to General Statutes § 13a-149. On May 19, 1995, the plaintiff was stricken with a life threatening illness and was hospitalized from that date until June 21, 1995, when he was transferred to a rehabilitation facility where he remained as an inpatient until some date in July, 1995. The plaintiff claims that from May 19 until July 5,1995, he was incompetent to confer with his attorney and to make decisions for himself. During that time, the plaintiffs wife made all decisions for him.

Prior to his becoming ill, the plaintiff, his attorney, and a representative of the town’s insurance carrier had scheduled a meeting to discuss settlement of the plaintiffs claims against the town. The meeting was canceled due to the plaintiffs illness. The record reveals that the plaintiffs attorney sent the insurance carrier a demand letter dated August 28,1995, which was modified by letter dated August 29, 1995. The insurance carrier apparently did not respond to the demand letter because the plaintiffs attorney sent a letter of inquiry dated October 9,1995. By letter dated October 18,1995, a representative of the insurance carrier informed the plaintiffs attorney that no settlement offer would be made because the statute of limitations had expired and the plaintiff had not commenced a lawsuit against the town.

The plaintiff commenced this lawsuit on October 25, 1995, when a deputy sheriff served the summons and complaint on the town clerk. The single count complaint is based on § 13a-149. It does not allege that the plaintiff was incompetent at any time. The town filed an answer and two special defenses to the complaint. The first special defense alleges that the plaintiffs claim is barred by “the applicable statute of limitations,” and the second special defense alleges that the plaintiffs injuries and loss were due to his own carelessness and negligence. By motion dated July 29, 1996, the town moved for summary judgment based on the statute of limitations defense. The plaintiff filed both an objection to the motion for summary judgment on September 6, 1996, and a single general denial in response to the town’s special defenses on November 18,1996. On February 10, 1997, after hearing oral arguments at short calendar-, the trial court granted the town’s motion for summary judgment. This appeal followed.

On appeal, the plaintiff claims that the statute of limitations was tolled for forty-seven days from May 19 until July 5, 1995, because he was incompetent during that time. Because of his claimed incompetence, the plaintiff argues, the statute of limitations should be extended forty-seven days from the two-year anniversary date of his injury, September 11,1993, until October 28, 1995. The plaintiff also claims that the trial court should have denied the town’s motion for summary judgment because the question of his competency is a genuine issue of material fact. We disagree.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established.” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). Practice Book § 384 requires that judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A “material fact” is a fact that will make a difference in the result of the case. See Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The facts at issue are those alleged in the pleadings. See Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 489, 280 A.2d 359 (1971). The party seeking summary judgment “has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.” (Internal quotation marks omitted.) D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ 380 and 381. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A motion for summary judgment “is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985).

I

Before we address the issue regarding the tolling of the statute of limitations, we examine the question of the applicable statute of limitations. The complaint is in one count alleging in part that pursuant to § 13a-149, the town is liable for the injuries the plaintiff sustained. In its first special defense, the town alleges only that the plaintiffs cause of action “is barred by the applicable statute of limitations.”* ** The town’s motion for summary judgment also does not identify by number the statute on which the town relies in claiming that the plaintiffs action is time barred. The memorandum of law accompanying the town’s motion for summary judgment, however, does identify General Statutes § 52-584 as the applicable statute of limitations. The trial court granted the town’s motion for summary judgment pursuant to Lopez v. United Nurseries, Inc., 3 Conn. App. 602, 605-606, 490 A.2d 1027 (1985). The statute of limitations at issue in Lopez was § 52-584.

In his brief to this court, the plaintiff notes for the first time that § 52-584 does not apply to a cause of action brought pursuant to § 13a-149 because § 13a-149 contains its own limitation of action provision. In its reply brief, the town agrees that § 13a-149 is the controlling statute, but points out that both statutes require a cause of action to be brought within two years.

“[Wjhere a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right . . . .” DeMartino v. Siemon, 90 Conn. 527, 528-29, 97 A. 765 (1916). Section 13a-149 is in derogation of the common law, and the limitation of time contained in the statute is controlling. “ ‘The conclusions reached by the court must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case.’ . . . Lonergan v. Connecticut Food Store, Inc., 168 Conn. 122, 124, 357 A.2d 910 [1975].” (Emphasis in original.) Morris v. Costa, 174 Conn. 592, 597, 392 A.2d 468 (1978).

“Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.” Id., 597-98. For the reasons given in part II, the case before us falls within the ambit of this rule of law.

II

We now turn to the central issue on this appeal: whether the illness that befell the plaintiff on May 19, 1995, and rendered him incapable of conducting his affairs until July 5,1995, tolled the statute of limitations for the intervening forty-seven days.

The relevantportion of § 13a-149 provides: “No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. . . .” A lawsuit commences when a proper officer serves the plaintiffs summons and complaint on the defendant. See Lacasse v. Burns, 214 Conn. 464, 475, 572 A.2d 357 (1990). The plaintiff sustained injuries on September 11, 1993. To state a valid cause of action, the plaintiff had to commence his suit on or before September 10, 1995, unless the statute of limitations were tolled for some reason. Because we find no reason, in fact or law, for the statute of limitations to have been tolled, the plaintiffs claims against the town are time barred.

The purpose of the statute of limitations is well settled in our law. “There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose.” (Internal quotation marks omitted.) Sanborn v. Greenwald, 39 Conn. App. 289, 305, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). “[T]he policy of statutes of limitation includes promoting repose by giving security and stability to human affairs.” (Internal quotation marks omitted.) Beckenstein v. Potter & Carrier, Inc., 191 Conn. 150, 159, 464 A.2d 18 (1983). “[W]e will not deprive the defendants of the ‘finality, repose and avoidance of stale claims and stale evidence’ for which the statute of limitations was designed. Connecticut Bank & Trust Co. v. Winters, 225 Conn. 146, 157 n.20, 622 A.2d 536 (1993).” McNeil v. Riccio, 45 Conn. App. 466, 473, 696 A.2d 1050 (1997).

The plaintiff claims that the statute of limitations should have been tolled while he was hospitalized and unable to make decisions for himself. “ ‘The rule that the court will not read exceptions into [the] statute of limitations applies in the case of persons non compos mentis. Generally if there is no exception in favor of incompetents, the statute will run against claims in their favor the same as against claims of others not expressly mentioned in the exceptions of the statute.’ 51 Am. Jur. 2d, Limitation of Actions § 186.” Lopez v. United Nurseries, Inc., supra, 3 Conn. App. 605. Section 13a-149 makes no exception for minors or insane persons. We note that “[o]ther Connecticut statutes of limitations do provide exceptions [for incompetence]. General Statutes §§ 52-575, 52-576, 52-579 and 52-594.” Id., 605 n.2.

While the absence of a tolling provision in § 13a-149 “may work hardship, it is not the function of this court to pass upon the merit of legislation. . . . Suffice it to say that the omission of a tolling provision in [this section] of the General Statutes is highlighted by the inclusion of tolling provisions in [other sections]; hence, we must assume that the differences were intentional and that the legislature did not intend [incompetence] necessarily to toll the Statute of Limitations.” (Citation omitted.) Kirwan v. State, 168 Conn. 498, 501, 363 A.2d 56 (1975). Thus, this court is without authority to extend by forty-seven days the time in which the plaintiff could have commenced an action against the town.

The plaintiffs second claim is that his illness and claimed incompetence raise genuine issues of material fact, and that the trial court should have denied the town’s motion for summary judgment. Because the court may not extend the statute of limitations even if there was evidence to support the plaintiffs claim of incompetence, we need not address the plaintiffs second claim.

The judgment is affirmed.

In this opinion HENNESSY, J., concurred.

LANDAU, J.,

concurring. I agree with the result reached by the majority. I write separately, however, because I believe the following additional analysis is necessary to reach the majority’s conclusion.

The plaintiff claims, in part, that his illness and claimed incompetence raise a genuine issue of material fact. This claim is unfounded for the following reasons.

“If the plaintiff were legally incompetent to sue or his access to the courts were impaired, the statute could not commence the limitations period running until he regained his legal competency; otherwise, through no fault of his own, he could be barred from any redress and thus become a legally helpless and vulnerable target for any careless or malicious person. See Hobart v. Connecticut Turnpike Co., 15 Conn. 145, 148 [1842], Furthermore, in no case does the law deprive an insane person or a person under a disability of access to the courts in order to seek redress, but a court may make provision to insure that such person’s interests are well represented. See, e.g., General Statutes §§ [17a-524] (habeas corpus), [45a-655] (conservators), [45a-132] (guardian ad litem), 52-175 (evidence) . . . .” Kirwan v. State, 168 Conn. 498, 502-503, 363 A.2d 56 (1975). “[0]ne whose thought processes are impaired to the extent of being insane has a legal capacity to sue or be sued, provided he has not been formally adjudicated an incompetent and placed under the guardianship of another. . . . The court may, as the circumstances warrant, appoint a guardian ad litem to ensure that the interests of the person who may be incompetent are adequately protected.” (Citations omitted.) Ridgeway v. Ridgeway, 180 Conn. 533, 539, 429 A.2d 801 (1980).

The facts in the record clearly demonstrate that the plaintiff retained counsel to represent his interests against the town approximately one month after he was allegedly injured. The attorney knew of the plaintiffs illness just prior to the scheduled meeting with a representative of the town’s insurance carrier. In his affidavit in support of his objection to the town’s motion for summary judgment, the plaintiff attested that his wife made all decisions for him during the time in which he was unable to make them for himself. The plaintiffs wife attests in her affidavit, also in support of the objection to summary judgment, that she is a registered nurse with extensive experience, that she recognized the seriousness of her husband’s illness and that she made all decisions for her husband during his illness. The record contains no evidence that the plaintiffs wife or attorney took any steps to have the plaintiff adjudicated incompetent and to have a guardian appointed to protect his rights.

The plaintiff further claims that the affidavits filed in support of his objection to the town’s motion for summary judgment raise a genuine issue of material fact and that the trial court should have held a hearing on the issue. See Ridgeway v. Ridgeway, supra, 180 Conn. 538. The plaintiff fails to distinguish pleadings from facts raised in an affidavit. “Affidavits are not pleadings, however, and a plaintiff cannot, under the guise of fortifying the complaint, present an entirely new cause of action or expand the scope of his cause of action by means of [an affidavit]. . . . The issue must be one which the party opposing the motion is entitled to litigate under his pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment.” (Citation omitted.) Shuster v. Buckley, 5 Conn. App. 473, 477, 500 A.2d 240 (1985). Under the facts of this case, we need not decide whether the statute of limitations would have been tolled if the plaintiff had pleaded incompetency in his complaint or as a reply to the town’s first special defense alleging that the action was time barred.

Regardless of the plaintiffs claimed incompetence between May 19 and July 5, 1995, he makes no claim of incompetence for the two months immediately preceding the tolling of the statute of limitations. He was represented by an attorney who first acted on his behalf in October, 1993, and, in fact, signed a demand letter in August, 1995. There are no facts to explain why the plaintiff did not commence an action against the town on or before September 10,1995. Therefore, there exists no genuine issue as to any material fact and the motion for summary judgment was properly granted.

       The plaintiff was represented by the same attorney for all matters relevant to and including this appeal.

       General Statutes § 13a-149 provides in relevant part: “Damages for injuries by means of defective roads and bridges. Any person ipjured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town . . . unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to ... the clerk of such town . . . .” (Emphasis added.)

       The plaintiffs affidavit contains two different dates of discharge as an inpatient from the rehabilitation center. The discrepancy is irrelevant to the issue before us.

       Although it is not mandatory, we note that the preferred manner of pleading is to identify specifically the number of the statute relied on; see Practice Book § 109A (a); so that the issue will be clarified for the benefit of all interested parties, including the court. See Federal Deposit Ins. Corp. v. Bombero, 37 Conn. App. 764, 768 n.9, 657A.2d 668 (1995), appeal dismissed, 236 Conn. 744, 674 A.2d 1324 (1996); see also Rowe v. Godou, 209 Conn. 273, 275, 550 A.2d 1073 (1988).

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained . . . .”


text:
    STATE OF CONNECTICUT v. JAMES DUKE
    (AC 17541)
    Foti, Hennessy and Sullivan, Js.
    Argued January 28
    officially released February 17, 1998

      Peter B. Prestley, with whom was Louis W. Flynn, Jr., for the appellant (defendant).

      Toni M. Smith-Rosario, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Mary Rose Flaherty, assistant state’s attorney, for the appellee (state).

       February 17, 1998, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

FOTI, J.

The defendant, James Duke, appeals from the denial of his motion to dismiss the charges of two counts of sexual assault in the second degree in violation of General Statutes § 53a-71. In his motion, the defendant argued that his continued prosecution would violate his rights, under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut, not to be placed twice in jeopardy for the same offense.

The criminal charges are based on allegations that on or about May 1 and May 2, 1996, the defendant, a licensed respiratory therapist at the Hospital for Special Care in New Britain, sexually assaulted a patient suffering from amyotrophic lateral sclerosis, a progressive and debilitating disease that attacks the central nervous system. Following the defendant’s arrest, the department of public health (department) began an administrative review pursuant to General Statutes § 20-162p. On October 13,1996, the defendant was notified that the department planned to commence formal disciplinary proceedings pursuant to General Statutes § 19a-14. On January 31, 1997, the defendant entered into a consent order with the department’s bureau of regulatory services. Pursuant to the consent order, the defendant was (1) placed on probation for a period of four years, (2) required to undergo a psychiatric evaluation at his own expense and (3) required to pay a civil penalty of $1000. The conditions of the defendant’s probation specify that the defendant may not provide care to any patient who has restricted sensory perception, moderate to severe cognitive impairments or who is unable to communicate either verbally, in writing, by sign, computer or letter board modality, except in the presence of another licensed practitioner.

On February 14, 1997, the defendant filed a motion to dismiss the criminal char ges, claiming that the conditions to which he had agreed under the consent order constituted “punishment” for his alleged conduct and, therefore, he could not be prosecuted on the basis of the same conduct. In its memorandum of decision, the trial court held that the administrative sanctions imposed under the consent order served a legitimate remedial purpose and were rationally related to that purpose. The trial court also concluded that the fine imposed, which was far below the maximum fine that could have been imposed, was primarily compensatory and remedial, rather than punitive, hi denying the defendant’s motion, the trial court held that because the administrative sanctions imposed served compensatory and remedial purposes and were not intended to punish the defendant, the continued criminal prosecution would not violate his double jeopardy protections. We agree that the continued criminal prosecution and punishment of the defendant would not violate the double jeopardy protections of the United States and Connecticut constitutions.

I

The defendant claims that his constitutional rights under the fifth and fourteenth amendments to the United States constitution would be violated if the state is allowed to prosecute him criminally. The defendant’s claim is predicated on the constitutional protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). “Because the issue of whether an administrative sanction constitutes punishment for purposes of double jeopardy is a question of law, [our] review [is] de novo.” State v. Tuchman, 242 Conn. 345, 350-51, 699 A.2d 952 (1997).

It is well settled that Congress may impose both a criminal and a civil sanction with respect to the same act or omission. Whether a civil sanction may preclude a subsequent criminal prosecution depends on whether it was intended to be, or by its nature necessarily was, punitive or remedial. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 362, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984). Among the factors that are indicative of whether a sanction is punitive or remedial in nature are whether (1) it involves an affirmative disability or restraint, (2) it has historically been regarded as a punishment, (3) it comes into play only on a finding of scienter, (4) its operation will promote the traditional aims of punishment, i.e., retribution and deterrence, (5) the behavior to which it applies is already a crime, (6) an alternative purpose to which it may rationally be connected is assignable for it, and (7) it appears excessive in relation to the alternative purpose assigned. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963). If the indication is that Congress intended the sanction to be remedial, then further inquiry is made to determine whether “the clearest proof’ has been shown that the statutory scheme is so punitive as to negate that intention. United States v. One Assortment of 89 Firearms, supra, 365; United States v. Ward, 448 U.S. 242, 249, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980).

In 1989, the United States Supreme Court held that the imposition of a civil penalty following a criminal prosecution constitutes multiple punishment for the same offense if the civil penalty “bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as ‘punishment’ in the plain meaning of the word . . . .” United States v. Halper, 490 U.S. 435, 449, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989). The court subsequently rejected any notion that Halper stands for the proposition that a civil sanction must be deemed to be punitive unless it is “solely remedial.” United States v. Ursery, 518 U.S. 267, 284-85 n.2, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996).* ***

On December 10, 1997, the court issued its decision in Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 138 L. Ed. 2d 549 (1997), in which it stated: “Our opinion in United States v. Halper [supra, 490 U.S. 435] marked the first time we applied the Double Jeopardy Clause to a sanction without first determining that it was criminal in nature. . . . The analysis applied by the Halper Court deviated from our traditional double jeopardy doctrine in two key respects. First, the Halper Court bypassed the threshold question: whether the successive punishment at issue is a ‘criminal’ punishment. . . . The second significant departure in Halper was the Court’s decision to ‘asses[s] the character of the actual sanctions imposed’ . . . rather than, as Kennedy [v. Mendoza-Martinez, supra, 372 U.S. 144] demanded, evaluating the ‘statute on its face’ to determine whether it provided for what amounted to a criminal sanction ....

“We believe that Halper’s deviation from longstanding double jeopardy principles was ill considered. As subsequent cases have demonstrated, Halper’s test for determining whether a particular sanction is ‘punitive,’ and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable. We have since recognized that all civil penalties have some deterrent effect. . . . If a sanction must be ‘solely’ remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause.” (Citations omitted.) Id., 100-102.

Applying traditional federal double jeopardy principles to the facts of the present case, we hold that the criminal prosecution of the defendant would not violate double jeopardy. It is evident that our legislature intended the administrative sanctions imposed on the defendant to be civil in nature. Furthermore, the sanctions serve a legitimate remedial purpose. The terms and conditions of the defendant’s probation restrict his actions so as to protect other patients in situations similar to that of the alleged victim. In addition, the maximum fine that could have been imposed on the defendant is $10,000. The defendant, however, was fined $1000 and, while the consent order does not specifically state the basis for that amount, the legislative history of General Statutes § 19a-17 shows that subsection (a) (6), which permits the imposition of a fine, was intended to provide the department with flexibility in disciplining professional misconduct and that fines should be commensurate with the seriousness of the misconduct. Finally, because our legislature conferred the power to sanction on an administrative agency, we consider it prima facie evidence that the sanctions were intended to be civil rather than criminal in nature. See Helvering v. Mitchell, 303 U.S. 391, 402, 58 S. Ct. 630, 82 L. Ed. 917 (1938).

Turning to the second stage of the test as reestablished by Hudson v. United States, supra, 522 U.S. 93, we find that there is little, if any, evidence, let alone the required “clearest proof,” that the civil sanctions imposed on the defendant are so punitive in form and effect as to render them criminal despite our legislature’s clear intent to the contrary. We note that the types of sanctions imposed in this case have not historically been viewed as punishment. In fact, the payment of money is a sanction that has “been recognized as enforceable by civil [rather than criminal] proceedings since the original revenue law of 1789.” Helvering v. Mitchell, supra, 303 U.S. 400.

We conclude, therefore, that under the fifth and fourteenth amendments to the United States constitution, the civil sanctions imposed on the defendant were intended by our legislature to be civil in nature and that no evidence exists, let alone the clearest proof, that they are so punitive in form and effect as to render them criminal despite the legislative intent to the contrary.

II

The defendant also contends that his continued prosecution and punishment would violate the double jeopardy protection implied under article first, §§ 8 and 9, of the constitution of Connecticut.

The defendant contends that the double jeopardy protection provided by the Connecticut constitution exceeds that provided by the United States constitution as interpreted in Hudson v. United States, supra, 522 U.S. 93. The defendant recognizes that in State v. Tuchman, supra, 242 Conn. 360, our Supreme Court stated that “the absence of an explicit constitutional double jeopardy provision strongly suggests that the incorporated common law double jeopardy protection mirrors, rather than exceeds, the federal constitutional protection.” The defendant argues, however, that Tuchman was addressing the state of affairs subsequent to United States v. Halper, supra, 490 U.S. 435, and State v. Hicham, 235 Conn. 614, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996), “and hence is not indicative as to whether Connecticut may in the future substantially reverse itself and adopt the Hudson approach.”

We do not agree with the defendant that the United States Supreme Court’s decision in Hudson in any manner affects our Supreme Court’s analysis and conclusion in Tuchman as to the double jeopardy protection afforded by our state constitution. In State v. Tuchman, supra, 242 Conn. 360-62, the absence of an explicit constitutional double jeopardy provision in our state constitution was merely one of six factors relied on by our Supreme Court in rejecting the defendant’s claim that our state constitution provides more expansive double jeopardy protection than does the federal constitution. While Tuchman set forth the law that “[sanctions that are not exclusively remedial do not necessarily constitute punishment for state constitutional double jeopar dy purposes”; id., 362; the language therein makes it clear that our state constitution does not afford greater double jeopardy protection than does its federal counterpart.

“As an intermediate appellate court, we must follow the precedent of our Supreme Court along the path which our considered reading of that precedent lays out for us.” Burton v. Planning Commission, 13 Conn. App. 400, 409, 536 A.2d 995 (1988), aff'd, 209 Conn. 609, 553 A.2d 161 (1989).

The trial court properly denied the defendant’s motion to dismiss.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s motion was brought pursuant to Practice Book § 815 (6) and (9). The trial court’s denial of the motion is an appealable final judgment. See State v. Moeller, 178 Conn. 67, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed. 2d 320 (1979).

       On November 21, 1997, we granted the state’s motion to expedite the appeal.

       The alleged victim is a fifty-five year old woman who is afflicted with what is commonly known as Lou Gehrig’s disease. At the time of the alleged assaults, she was paralyzed from the neck down, unable to move her body, to breathe independently or to speak. She communicated by blinking her eyes to indicate yes and turning her head left to right to indicate no.

       General Statutes § 20-162p provides in relevant part: “The commissioner may take any action set forth in section 19a-17 if the license holder fails to conform to the accepted standards of the respiratory care profession, including, but not limited to, the following: Conviction of a felony . . . illegal conduct; negligent, incompetent or wrongful conduct in professional activities .... Notice of any contemplated action under said section, of the cause therefor and the date of hearing thereon shall be given and an opportunity for hearing afforded as provided in regulations adopted by the commissioner.”

       General Statutes § 19a-14 (a) provides in relevant part: “The Department of Public Health shall have the following powers and duties with regard to the boards and commissions listed in subsection (b) which are within the Department of Public Health. The department shall . . .
      “(10) Conduct any necessary review, inspection or investigation regarding . . . possible violations of statutes or regulations, and disciplinary matters. In connection with any investigation, the Commissioner of Public Health or said commissioner’s authorized agent may administer oaths, issue subpoenas, compel testimony and order the production of books, records and documents. If any person refuses to appear, to testify or to produce any book, record or document when so ordered, a judge of the Superior Court may make such order as may be appropriate to aid in the enforcement of this section;
      “(11) Conduct any necessary investigation and follow-up in connection with complaints regarding persons subject to regulation or licensing by the department . . . .”

       The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb . . . .”

       The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”

       In United States v. Halper, supra, 490 U.S. 452, the sanction of over $130,000 was determined to be punitive rather than compensatory because it was “sufficiently disproportionate” to the loss sustained by the government. The matter, however, was remanded to the District Court to provide the government an opportunity to demonstrate that the District Court’s initial assessment of its injuries was erroneous. Id.

       Our Supreme Court has also declined to adopt the “solely remedial” standard; State v. Tuchman, supra, 242 Conn. 361-62; and has utilized a two-pronged approach for determining whether an administrative action constitutes punishment for purposes of double jeopardy. See State v. Hickam, 235 Conn. 614, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996). “Under that approach ... [the court must] assess: (1) the purpose the sanction is designed to serve; and (2) the nature of the particular sanction as applied to the defendant.” State v. Tuchman, supra, 352.

       General Statutes § 19a-17 (a) provides in relevant part: “Each board or commission established under chapters 369 to 376, inclusive, 378 to 381, inclusive, and 383 to 388, inclusive, and the Department of Public Health with respect to professions under its jurisdiction which have no board or commission may take any of the following actions, singly or in combination, based on conduct which occurred prior or subsequent to the issuance of a permit or a license upon finding the existence of good cause . . .
      “(6) Assess a civil penalty of up to ten thousand dollars . . .

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law . . . .”

       Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.” The defendant refers to article first, § 9, in his reply and supplemental briefs. Neither his motion to dismiss nor his original brief addressed § 9.

       We note that the parties were given permission to file supplemental briefs addressing this issue.

       Our Supremo Court stated that “[w]hen determining whether our state constitution affords Connecticut citizens greater individual liberties than does its federal counterpart, we consider, to the extent applicable, six factors: (1) the text of relevant constitutional provisions; (2) historical insights into the intent of our constitutional forebears; (3) related Connecticut precedents; (4) persuasive federal precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic and sociological norms.” State v. Tuchman, supra, 242 Conn. 360.


author: FOTI, J. CRETELLA, J.,

text:
    ALAN SOLOMON ET AL. v. WILLIAM C. GILMORE ET AL.
    (AC 16087)
    Foti, Spear and Cretella, Js.
    Argued November 10, 1997
    officially released March 10, 1998

      William C. Gilmore, pro se, the appellant (named defendant).

      Frank S. Marcucci, with whom, on the brief, was Lawrence S. Hillman, for the appellee (named plaintiff).

      Christopher J. McCarthy, for the appellee (plaintiff Mary Ellen Torneo).
   Opinion

FOTI, J.

The defendant, William C. Gilmore, appeals from the judgment of strict foreclosure, rendered following the granting of the motions for summary judgment filed by the plaintiffs, Alan Solomon and Mary Ellen Torneo. Although the defendant has raised twelve separate issues on appeal, the primary issue to be addressed is whether the trial court properly granted the plaintiffs’ motions for summary judgment. We affirm the judgment of the trial court.

The plaintiffs commenced this action by a complaint alleging that they had loaned the defendants $55,000, which loan was memorialized by a promissory note dated May 30,1989, and was secured by a second mortgage encumbering property known as 44 Bradford Corner Road in the town of Woodstock. The plaintiffs alleged that the defendants failed to (1) pay monthly installments on the loan after May 5, 1993, (2) keep the property insured and (3) pay property taxes. As a result of these alleged breaches of the mortgage agreement, the plaintiffs accelerated payment of the debt.

The defendants filed an answer denying that any money was owed to the plaintiffs. The defendants also filed seven special defenses* * and a six count counterclaim. Pursuant to General Statutes § 52-97,* 1*** the trial court granted a motion to bifurcate the trial. Thereafter, the plaintiffs filed separate motions for summary judgment. Solomon submitted a supplemental affidavit in support of his motion for summary judgment. On April 26,1996, the trial court, Sferrazza, J., issued a memorandum of decision granting, in part, both plaintiffs’ motions. On June 3, 1996, the issues not disposed of by way of summary judgment were tried to the court, Loiselle, J., and a judgment of strict foreclosure was rendered.

As a preliminary matter, we note that the first issue raised by the defendant on appeal is not one that may be properly addressed on its merits. The defendant claims that the trial court improperly allowed the foreclosure action to proceed because the action was brought by Steven Torneo, who the defendant claims had been his attorney and to whom he had gone for assistance in obtaining the mortgage sought to be foreclosed. The defendant alleges that Torneo had a conflict of interest because his wife, the plaintiff Mary Ellen Torneo, and Solomon, who was also an attorney, furnished the mortgage. Steven Torneo is not a party to this action; therefore, we cannot address any claim alleging his adverse representation or unethical behavior.

The defendant further alleges that the trial court improperly granted summary judgment based on an affidavit submitted in bad faith by one of the plaintiffs for the obvious purpose of misleading the court. The following facts are necessary for the proper disposition of this claim.

On April 1,1996, Solomon filed a supplemental affidavit in which he stated: “At the time of the making of the loan which is the subject of this foreclosure action, I was exempt from the license requirement of C.G.S. § 36a-511 (formerly § 36-224b) because I granted fewer than five secondary mortgage loans in the twelve consecutive months prior to the making of this loan, and I granted fewer than five secondary mortgage loans in the twelve months following the making of this loan. I did not make any loans in any twelve consecutive months where the aggregate of said loans exceeded $100,000.”

General Statutes § 36a-512 provides that the following persons are exempt from the licensing requirements for secondary mortgage lenders: “(5) persons granting five or fewer secondary mortgage loans within any twelve consecutive months, provided (A) the aggregate total of such loans does not exceed one hundred thousand dollars, (B) each individual loan does not exceed twenty thousand dollars and (C) such loans are written in compliance with section 36a-521 . . . (Emphasis added.) The affidavit of the plaintiff Solomon, who is an attorney, conveniently omitted that part of the statute that excludes him from the exemption from the licensing requirements, i.e., the loan involved exceeded $20,000.

We are aware that “[a]n action of foreclosure is peculiarly equitable and the court may entertain all questions which are necessary to be determined in order that complete justice may be done between the parties. ” Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 175, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). We cannot, however, speculate as to whether the court would have acted differently in the exercise of its equitable powers had afull and accurate supplemental affidavit been filed.

We are bound by the law as applicable to this appeal. We note the standard of review of a trial court decision granting a motion for summary judgment. “Practice Book § 384 mandates that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Mullen v. Horton, 46 Conn. App. 759, 763, 700 A.2d 1377 (1997). “A material fact is a fact that will make a difference in the result of the case.” (Internal quotation marks omitted.) Budris v. Allstate Ins. Co., 44 Conn. App. 53, 56, 686 A.2d 533 (1996) , quoting Sylvestre v. United Services Automobile Assn. Casualty Ins. Co., 42 Conn. App. 219, 222, 678 A.2d 1005 (1996), aff'd, 240 Conn. 544, 692 A.2d 1254 (1997) . While there exists a genuine issue of fact as to whether the plaintiffs were exempt from the licensing requirements for lenders of secondary mortgage loans, the question remains as to whether this fact is material. In other words, does the fact that the plaintiffs may not have been properly licensed to issue secondary mortgage loans pursuant to § 36a-511 transform the transaction into either a nullity or an illegal act so as to relieve the defendants of their obligations under the note and mortgage?

Our review of the relevant statutes discloses that administrative sanctions and certain civil actions are available for violations of the license requirement statute. See, e.g., General Statutes § 36a-50 (b). The defendant can provide no legal authority to support his claim that noncompliance with the licensing statute precludes a foreclosure action by rendering the loan or the mortgage illegal or unenforceable. Since the absence of a license on the part of the plaintiffs would make no difference in the result of the case, it is not a material fact for purposes of summary judgment. “Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]. . . . Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984).” (Internal quotation marks omitted.) Barrett v. Danbury Hospital, 232 Conn. 242, 255, 654 A.2d 748 (1995).

We have thoroughly reviewed the record and briefs as to the defendant’s other claims and have considered the oral arguments made by the defendant. We find these claims to be without merit.

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

In this opinion SPEAR, J., concurred.

CRETELLA, J.,

dissenting. I must dissent from the majority on one determinative issue. In my opinion, the plaintiffs were not entitled to a judgment of strict foreclosure as a matter of law. I agree that there were no material issues of fact in dispute. Furthermore, there was no dispute, material or not, that the plaintiffs were not exempt from the licensing requirements of General Statutes § 36a-511 since the loan of $55,000 exceeded $20,000 and thus required that the plaintiffs, as second mortgage lenders, be licensed. The issue of law to be determined is whether a second mortgage may be foreclosed when the mortgagee has violated § 36a-511.

In deciding the plaintiffs’ motions for summary judgment, the trial court considered each count of the complaint and each count of the special defenses. In its discussion of the defendants’ third special defense, the court discussed only that portion of it relating to the issue of agency and the fiduciary relationship of attorney Steven Torneo. The court ignored and did not rule on the allegations of paragraphs twelve and thirteen of the third special defense, which alleged that the plaintiffs were not licensed to give second mortgages. General Statutes § 36a-511 (formerly General Statutes § 36-224b). Appellate review of a matter of law is de novo, and we may therefore consider the plaintiffs’ lack of a license as raised in the third special defense. See Squeglia v. Squeglia, 234 Conn. 259, 263, 661 A.2d 1007 (1995); Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 396, 655 A.2d 759 (1995). It is on the licensing violation that I base my dissent. If the lack of a license rendered the second mortgage unenforceable as a matter of law, summary judgment in favor of the plaintiffs cannot be affirmed.

The license issue was raised again on appeal, with the defendants arguing that the plaintiffs failure to be licensed rendered the mortgage unenforceable. The majority opinion concludes that the plaintiffs’ mortgage is good and enforceable and that there exists no authority to support the claim of the defendants that any foreclosure is precluded. The majority states that the loan is not illegal or unenforceable and with that statement I agree. It is not the loan that is illegal or unenforceable, but rather the security for that loan, which the plaintiffs hold as second mortgagees.

The licensing provisions of § 36a-511 were established by the legislature to protect the public. The statute carries no remedy on its face that provides for the unenforceability of a second mortgage that is received by an unlicensed mortgagee, although there are possible sanctions and penalties that might be enforced against the mortgagee, Alan Solomon, an attorney. His actions, and more specifically, his erroneous affidavit alleging exemption from the license requirements of General Statutes § 36a-512 might be the subject of a grievance committee action or the insurance commissioner might take action against both mortgagees pursuant to General Statutes § 36a-50 (3) (b). Such issues are not before us in this appeal.

This case is most like DiBiase v. Garnsey, 103 Conn. 21, 130 A. 81 (1925). In that case, a statute required that any car repair bill over $50 be the subject of written authority to make the repairs, the penalty for violation being a fine against the repairman. The statute in DiBi-ase made no mention as to whether an oral contract for repairs could be enforced. The court held, nevertheless, that when a contract violates a statute the contract itself may become void even where the statute does not so provide. Id., 26-28. This case and its holding were approvingly cited in Barrett Builders v. Miller, 215 Conn. 316, 324, 576 A.2d 455 (1990). “Connecticut law has long recognized that restitution is not available for performance rendered pursuant to a contract that is unenforceable on public policy grounds.” Id., 323-24. When a court finds that an express public policy has been violated, it must take such steps as are available to provide protection and relief to the public. Not to do so in this case would mean that the court would thwart the legislative purposes of § 36a-511.

Accordingly, I would set aside the judgment of foreclosure.

       In addition to the named defendant, Cheryl A. Gilmore was also a defendant in the underlying foreclosure action; she is not a party to this appeal. We refer in this opinion to William C. Gilmore as the defendant.

       The statement of issues in the defendant’s brief recites:
      “1. Did the court err in allowing the foreclosure to proceed?
      “2. Did the court err in granting summary judgment on [the defendants’] special defenses?
      “3. Did the court err in granting summary judgment [based on a] bad faith affidavit and misleading arguments?
      “4. Did the court err in not addressing the issue that the plaintiffs were in violation of the law?
      “5. Did the court err in not addressing the legality of the mortgage, which was made in violation of the law?
      “6. Did the court err in exempting the mortgage transaction from usury statutes by not addressing whether this was actually a ‘bona fide’ mortgage? “7. Did the court err in finding that the plaintiffs did not have a fiduciary duty to the defendants?
      “8. Did the court err in finding the only issue of material fact centered on whether the defendants paid all that was owed?
      “9. Did the court err in granting bifurcation?
      “10. Did the court err in granting strict foreclosure based upon the memorandum of decision [granting, in part, the plaintiffs’ motions for] summary judgment?
      “11. Did the court err in granting strict foreclosure based upon an illegal mortgage contract?
      “12. Did the court err in granting strict foreclosure where the plaintiffs breached the [mortgage] contract?”

       By way of special defense, the defendants alleged (1) payment of the obligation, (2) violation of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., (3) breach of a fiduciary duty, (4) reinstatement of the mortgage, (5) usury, (6) breach of an implied covenant of good faith and fair dealing, and (7) violation of General Statutes § 42a-l-203, concerning the obligation to act in good faith with respect to the performance or enforcement of a negotiable instrument.

       The defendants’ counterclaim parallels the allegations contained in their special defenses and includes a claim that the plaintiffs’ conduct violates the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. Pursuant to their counterclaim, the defendants sought, inter alia, (1) rescission of the transaction, (2) termination of the plaintiffs’ security interest in the defendants’ property, (3) a refund of sums previously paid, (4) 1 ermination of the mortgage, (5) a declaratory judgment that the defendants’ obligations, pursuant to the note and mortgage, are discharged, (6) actual and punitive damages, and (7) costs and attorney’s fees.

       General Statutes § 52-97 provides in relevant part: “In any civil action the plaintiff may include in his complaint both legal and equitable rights and causes of action, and demand both legal and equitable remedies .... [I]n any case in which several causes of action are joined in the same complaint, or as matter of counterclaim or set-off in the answer, if it appears to the court that they cannot, all be conveniently heard together, the court may order a separate trial of any such cause of action or may direct that any one or more of them be expunged from the complaint or answer.”

       Substituted appearances were subsequently filed on behalf of the plaintiffs, in lieu of those of Torneo.

       General Statutes § 36a-511 (a) provides in relevant part: “No person shall engage in the secondary mortgage loan business in this state as a lender or a broker unless such person has obtained a license under sections 36a-510 to 36a-524, inclusive. For the purposes of said sections, a person shall be deemed to be engaged in the secondary mortgage loan business if such person advertises, causes to be advertised, solicits, offers to make or makes a secondary mortgage loan, either directly or indirectly. . .

       General Statutes § 36a-50 (b) provides: “Whenever it appears to the commissioner that any such person has violated, is violating or is about to violate any such provision, regulation, rule or order, the commissioner may, in the commissioner’s discretion and in addition to any other remedy authorized by law: (1) Bring an action in the superior court for the judicial district of Hartford-New Britain to enjoin the acts or practices and to enforce compliance with any such provision, regulation, rule or order. Upon a proper showing, a permanent or temporary injunction, restraining order or writ of mandamus shall be granted and a receiver or conservator may be appointed for such person or such person’s assets. The court shall not require the commissioner to post a bond; (2) seek a court order imposing a penalty not to exceed seven thousand five hundred dollars per violation against any such person found to have violated any order issued by the commissioner; or (3) apply to the superior court for the judicial district of Hartford-New Britain for an order of restitution whereby such person shall be ordered to make restitution of any sums shown by the commissioner to have been obtained by such person in violation of any such provision, regulation, rule or order, plus interest at the rate set forth in section 37-3a. Such restitution shall, at the option of the court, be payable to the receiver or conservator appointed pursuant to this subsection, or directly to the person whose assets were obtained in violation of any such provision, regulation, rule or order. Whenever the commissioner prevails in any action brought under this subsection, the court may allow to the state its costs.”

       It may well be that the plaintiffs have a cause of action to allow suit on the note. That is not before us here.


author: LANDAU, J.

text:
    NEW LONDON FEDERAL SAVINGS BANK ET AL. v. THOMAS J. TUCCIARONE ET AL. WALTER R. SOLOMONS ET AL. v. THOMAS J. TUCCIARONE ET AL.
    (AC 16262)
    (AC 16263)
    Landau, Spear and Daly, Js.

      Argued November 12, 1997
    officially released March 17, 1998

      William R. Moller, with whom were Janet P. Sistare, Stuart G. Blackburn and Anthony F. DiPentima, for the appellants (plaintiffs).

      Michael D. O’Connell, with whom, on the brief, were Julia B. Morris and J. Preston Ruddell, for the appel-lees (named defendant et al.).
   Opinion

LANDAU, J.

These appeals are from the judgments rendered following defendants’ verdicts after a jury trial. These consolidated appeals, which are identical, involve cases consolidated in the trial court. We affirm the judgments of the trial court.

On appeal, the plaintiffs, numerous tenants of commercial real estate and their respective insurance carriers, raise several claims, but only two of the claims are reviewable: (1) that the trial court improperly allowed an expert witness for the defendant owners’ to testify beyond the scope of direct examination and to render an opinion not disclosed prior to trial; and (2) that the trial court failed to set aside the verdict, which the plaintiffs claim was against the evidence with respect to their nuisance count.

The jury reasonably could have found the following facts. The plaintiffs conducted their various professions and businesses as tenants on the premises known as Flanders Plaza located at 15 Chesterfield Road in East Lyme, which is owned by the defendants Thomas J. Tucciarone, Michael J. DiProspero, Kaj Snellman and the Snellman Limited Partnership (owners). On September 30, 1988, a fire started in a light fixture on the second floor and spread throughout the premises, causing damage to the property and businesses of the plaintiffs.

To recover the various losses they sustained, the plaintiffs sued several entities; the owners, however, were the only defendants remaining at the time of trial. The two relevant complaints each contain two counts, one alleging numerous acts of negligence and carelessness against the owners with respect to the construction and maintenance of the premises, and one alleging that those acts or omissions also created a nuisance. The cases were tried to a jury in the late spring and early summer of 1996. After the jury answered interrogatories in favor of the owners and rendered defendants’ verdicts in all cases, the plaintiffs moved to set aside the verdicts and for a new trial. The trial court denied the motions and rendered judgments in favor of the owners. These appeals followed.

I

The plaintiffs’ first claim concerns the trial court’s evidentiary rulings. “It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion.” Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990). “Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... State v. Williams, 195 Conn. 1, 8, 485 A.2d 570 (1985).” (Internal quotation marks omitted.) Hall v. Burns, supra, 455. “In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling. State v. Weidenhof, 205 Conn. 262, 278, 533 A.2d 545 (1987).” Curry v. Burns, 33 Conn. App. 65, 69, 633 A.2d 315 (1993).

The plaintiffs’ claim concerns the testimony of the owners’ expert witness, Beth Anderson, an electrical engineer, who was called to render her opinion as to the cause of the subject fire. Anderson’s deposition was taken on numerous days prior to trial. In their briefs and at oral argument, the plaintiffs’ claim that Anderson’s trial testimony was inconsistent with her deposition testimony and the owners’ expert witness disclosure made pursuant to Practice Book § 220 (D). The record reveals, however, that the plaintiffs’ claim is really an evidentiary one.

The owners, pursuant to § 220 (D), disclosed Anderson as an expert witness on April 3, 1991, stating, “Anderson will testily with respect to the facts and circumstances of the fire on September 30, 1988 . . . leading [to] her conclusion that the fire was caused within a fluorescent light fixture. . . .’’The owners supplemented their disclosure on April 10, 1996, stating, “Beth Anderson will offer expert opinions, substantially in conformity with her deposition testimony, rendered on October 30, 1995, October 31, 1995, November 1, 1995, and December 18, 1995, as supplemented by the information and opinions set forth in the attached letter, of even date.” In the subject letter, Anderson stated that the fire was due to a defect in the light ballast. Anderson made no mention of insulation in her letter.

Anderson testified on behalf of the owners at trial. On direct examination, defense counsel asked Anderson if she had an opinion about whether there was insulation on top of the light fixture.1 ** The plaintiffs did not object to the question or testimony at the time it was given. On cross-examination, however, the plaintiffs sought to impeach the credibility of Anderson with a prior inconsistent statement. On redirect, counsel for the owners attempted to rehabilitate Anderson.* **** The plaintiffs objected to the questioning as being outside the scope of prior examination. The trial court heard the arguments of counsel and overruled the objection. We agree with the trial court and find no abuse of discretion.

Direct examination is conducted by the party who calls a witness, and is limited to the substantive facts of the case and then is followed by cross-examination, if any. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) §§ 3.4.2, 3.4.3, pp. 43^8. “While it is settled Connecticut law that inquiry upon cross-examination is limited by the scope of the direct examination; Grievance Committee v. Dacey, 154 Conn. 129, 150, 222 A.2d 339 (1966), appeal dismissed, 386 U.S. 683, 87 S. Ct. 1325, 18 L. Ed. 2d 404, reh. denied, 387 U.S. 938, 87 S. Ct. 2048, 18 L. Ed. 2d 1006 (1967); that scope is determined by all of the evidence offered during direct examination.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn, 518, 525, 457 A.2d 656 (1983). “The court could properly allow the proponents to inquire as to any facts which would tend to rebut or modify any material conclusion or inference resulting from the facts elicited on the [cross-examination].” State v. McCarthy, 197 Conn. 247, 260, 496 A.2d 513 (1985). A party who initiates discussion of an issue, whether on direct or cross-examination, is said to have ‘opened the door’ to inquiry by the opposing party, and cannot later object when the opposing party so questions the witness. See State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986). “The basic function of a redirect examination is to enable a witness to explain and clarify relevant matters in his testimony which have been weakened or obscured by his cross-examination. . . . Where evidence is introduced showing an apparent [contradiction in testimony, the party offering the testimony] is entitled to explain the circumstances so that the trier can properly evaluate it.” (Citation omitted; internal quotation marks omitted.) Kucza v. Stone, 155 Conn. 194, 198, 230 A.2d 559 (1967).

Here, the owners elicited testimony about insulation from Anderson on direct examination. If the plaintiffs wanted to prevent Anderson from testifying about insulation over the light fixture because such testimony was beyond the scope of the expert witness disclosure made pursuant to § 220 (D), the time to object was during direct examination. Instead, the plaintiffs chose the strategy of impeaching Anderson’s credibility. In doing so, they invited further testimony on redirect examination when the owners attempted to rehabilitate their expert. “[A] party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.” (Internal quotation marks omitted.) Somers v. LeVasseur, 230 Conn. 560, 565, 645 A.2d 993 (1994).

Under the circumstances, the court exercised its sound discretion in permitting Anderson to testify about the insulation on redirect examination. The plaintiffs questioned Anderson about insulation on cross-examination, and, as the trial court noted, Anderson’s opinion, or lack of an opinion, about the insulation was not related to the cause of the fire.

We also agree with the trial court’s ruling regarding Anderson’s opinion on the issue of moisture in the ballast. On cross-examination, the plaintiffs asked Anderson if she knew that the roof leaked and whether moisture would cause a ballast to malfunction. On redirect, the owners asked Anderson if she had an opinion concerning moisture and the ballast in question. The plaintiffs objected to the question claiming the owners had not disclosed Anderson’s opinion concerning moisture. The trial court overruled the objection because, again, the owners had opened the door to the issue of moisture on cross-examination.

II

The plaintiffs’ second claim, which concerns the sufficiency of the evidence, is that the trial court improperly failed to set aside the verdict with respect to their nuisance count because the jury failed to consider the nuisance count and because there was a preponderance of evidence that the owners breached their duties to the tenants by violating applicable building and safety codes, which created a dangerous condition. We disagree.

A

An examination of the procedural posture of the case is necessary for our review of the first of the plaintiffs’ sufficiency claims. When the jurors retired to deliberate, they were asked to answer four sets of interrogatories, one set for each case, in reaching their verdict. Two sets of interrogatories contained questions only about negligence. The other two sets of interrogatories contained questions concerning negligence and nuisance. While the clerk was reading the jury’s verdict, the trial court realized that the jury had not answered the questions addressed to nuisance. Upon reviewing the interrogatories, the trial court and counsel for the parties noted a directional error on the interrogatory form.* 123***** The trial court then instructed the jury to return to its deliberations and to answer the interrogatories concerning nuisance. The jury retired and answered the interrogatories.

On appeal, the plaintiffs claim that the juiy deliberated on the nuisance interrogatories for only five minutes and therefore could not have considered the claim of nuisance. Although the record and the transcript do not reflect the amount of time the jury deliberated, the amount of time is not relevant. The plaintiffs did not object to the form of the interrogatories or to the trial court’s instructions to the jury to answer the interrogatories concerning nuisance. Therefore, the plaintiffs failed to preserve their claim of error. Practice Book § 315. Furthermore, the trial court instructed the jury to answer the interrogatories concerning the nuisance count. A jury is presumed to follow the instructions it is given. See Eisenbach v. Downey, 45 Conn. App. 165, 181, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997). Therefore, in the absence of evidence to the contrary; see State v. Sivri, 46 Conn. App. 578, 583, 700 A.2d 96, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997); we must presume that the jury followed the trial court’s instructions and properly considered the nuisance claim.

B

The plaintiffs’ second sufficiency claim is that the trial court improperly failed to set aside the verdict on the nuisance count because the allegations of the claim were proved by a fair preponderance of the evidence. This claim lacks merit.

To prevail on their nuisance claim, the plaintiffs had to prove not only that they had an ownership interest in the real property; see Webel v. Yale University, 125 Conn. 515, 525, 7 A.2d 215 (1939); but also that the condition complained of had a natural tendency to create a continuing danger, that the defendants’ use of the land was unreasonable or unlawful, and that the condition was the proximate cause of their injuries. See Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978). In addition, the plaintiffs also had to prove that the owners had control over the area that was the source of the nuisance; see State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 184, 527 A.2d 688 (1987); and that the owners intended to bring about the condition that was a nuisance. See DeLahunta v. Waterbury, 134 Conn. 630, 633-34, 59 A.2d 800 (1948). “Whether any of those essentials exist is ordinarily a question of fact. Chazen v. New Britain, 148 Conn. 349, 355, 170 A.2d 891 [1961].” Filisko v. Bridgeport Hydraulic Co., supra, 36.

The substance of the plaintiffs’ nuisance claim against the owners is that there was paperbacked insulation over the light fixture where the ballast failed and that there were no fire walls in the attic of the premises, both of which constituted violations of applicable building and fire codes. Building and fire codes are themselves not evidence of negligence, but only evidence of the standard of care. See Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 181, 439 A.2d 954 (1981).

“ ‘In determining whether a verdict should be set aside, the court is obligated first to review the evidence giving it a construction most favorable to sustaining the jury’s verdict. ... In addition, the trial court’s refusal to disturb the jury verdict is entitled to great weight, and every reasonable presumption should be given in favor of its correctness. ... In reviewing this issue, our sole responsibility is to decide whether, on the evidence presented, the jury could fairly reach the conclusion [it] did.’ ” (Citations omitted.) Lester v. Resort Camplands International, Inc., 27 Conn. App. 59, 68-69, 605 A.2d 550 (1992). “ ‘It is the province of the jury to weigh the evidence and determine the credibility and the effect of testimony; and we must decide the question whether on the evidence presented, the jury could have fairly reached [its] verdict . . . Id., 69.

Our review of the trial transcript reveals that the evidence on all of the elements of nuisance was well controverted. Jurors are the arbiters of fact and credibility. They are free to believe all, some or none of a witness’ testimony. We will not disturb a jury’s verdict where the record reveals that the factual issues were in dispute. Therefore, the trial court properly refused to set aside the verdict.

Ill

A number of the plaintiffs’ claims are not amenable to appellate review. “In order for this court judiciously and efficiently to consider claims of error raised on appeal”; Karanian v. Maulucci, 185 Conn. 320, 321, 440 A.2d 959 (1981); the parties must clearly and fully set forth their arguments in their briefs. “We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed.” (Internal quotation marks omitted.) Krondes v. O’Boy, 37 Conn. App. 430, 436, 656 A.2d 692 (1995).

A

The plaintiffs claim that the trial court failed to provide them with a fair and impartial trial. Their initial brief merely contains a list of references to the transcript of the trial that allegedly support their claim of impartiality, but cites no legal authority for their claim. In their reply brief, the plaintiffs cite a series of legal principles. The plaintiffs did not, however, analyze the relationship between the facts of this case and the law cited. Therefore, we will not review this claim. See Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn. App. 426, 439 n.12, 680 A.2d 1350, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996); see also Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 593-94 n.26, 657 A.2d 212 (1995) (arguments cannot be raised for first time in reply brief).

B

Regarding the plaintiffs’ claim that the court improperly permitted the owners’ expert witness, Anderson, to testify, the plaintiffs cite to the record and to the transcript, but they cite no law in support and provide no analysis of that claim. We will not review such claims, absent law and analysis. See Middletown Commercial Associates Ltd. Partnership v. Middletown, supra, 42 Conn. App. 439 n.12.

C

With respect to the plaintiffs’ claim that the trial court permitted the owners to elicit prior consistent statements from Norm Maxon, the owners’ property manager, that were not in dispute, “ ‘[assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.’ . . . Fitzgerald v. Fitzgerald, 16 Conn. App. 548, 554, 547 A.2d 1387, cert. denied, 210 Conn. 802, 553 A.2d 615 (1988).” Fromer v. Freedom of Information Commission, 36 Conn. App. 155, 156, 649 A.2d 540 (1994). Therefore, we will not review the claim.

D

The plaintiffs also claim that the trial court improperly admitted into evidence their superseded complaints and failed to admit into evidence the owners’ corresponding answers. Our review of the record reveals a lengthy colloquy between the trial court and the parties concerning whether copies of pleadings should go to the jury. The record also discloses that the plaintiffs never offered the pleadings they wanted admitted as evidence for the trial court to rule on their admissibility, and they did not object to the trial court’s admission of the superseded complaints as evidence.

“Our rules of practice make it clear that counsel must object to a ruling of evidence [and] state the grounds upon which objection is made ... to preserve the grounds for appeal. . . . These requirements are not simply formalities. . . . We consistently have stated that we will not consider evidentiary rulings where counsel did not properly preserve a claim of error by objection .... State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986). Because of the [plaintiffs’] failure to comply with the rules of practice, the claim concerning the admissibility of this particular evidence was not properly preserved for appeal. State v. Pecoraro, 198 Conn. 203, 206, 502 A.2d 396 (1985).” (Internal quotation marks omitted.) State v. Ulen, 31 Conn. App. 20, 30, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993). For these reasons, we will not disturb the trial court’s rulings concerning the pleadings admitted or not admitted in evidence.

The judgments are affirmed.

In this opinion the other judges concurred.

       Four cases were tried to the jury; plaintiffs’ appeals were taken in these two cases only.

       The tenant who leased the space where the fire started, the electrician who installed the lighting fixture in that space and the manufacturer of the ballast in the lighting fixture also were defendants prior to trial.

       Practice Book § 220 (D) provides in relevant part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to a trial list. Each defendant shall disclose the names of his or her experts in like manner . . .

       The colloquy was as follows:
      “Q. And what is your opinion as to the cause of the fire?
      “A. It is my opinion that the capacitator in ballast number three failed and caused the fire. . . .
      "Q. Are you aware that Mr. Haynes has offered an opinion that there was insulation physically on top of this fixture?
      “A. Yes, I am.
      “Q. Have you in your analysis and investigation . . . been able to determine whether or not there was insulation on top of the fixture?
      “A. At times during my investigation I have thought that there was; today, I don’t know for sure.”

       The colloquy was as follows:
      “Q. At this time I wish to offer lines five through eight, page 52 of the deposition of Beth Anderson of October 30, 1995, as an exhibit. . . .
      ”Q. Now, do you have an opinion one way or the other as to whether there was insulation directly on top of fixture number three?
      “A. I think there probably was.”

       The colloquy was as follows:
      “Q. Now, in response to questions by [the plaintiffs’ attorney], you again indicated that previously you had made statements to the effect that there was [probably] insulation on the fixture, do you recall that testimony?
      “A. Yes.
      “Q. And I think you also previously testified that you don’t hold that opinion today, is that correct?
      “A. That is correct.
      “Q. And why did you change?
      “A. More information became available.
      “Q. And what information was that?”

       The trial court excused the jury and heard further argument from the parties. During argument, the plaintiffs incorporated a different argument, as they did in their briefs to this court, i.e., that Anderson’s opinion concerning paperbacked insulation was an opinion different from that disclosed by the owners pursuant to § 220 (D). This disclosure argument obscures the evidentiary issue that arose during direct, cross- and redirect examination of Anderson.

       “The Court: I am going to allow it because ... I think there has been a lot of questioning on it and the door has been opened. Whether or not it should have been kept closed on direct examination or some other stage is something that this court is not going to be concerned with right now. It has been cross-examined on. And so I am going to allow direct examination in that particular area. I haven’t gotten the impression at this time that it is a reversal of her opinion as to causation . . . .”

       The uncorrected interrogatories and verdict form contained the following language:
      “SECTION A: NEGLIGENCE
      1. Have the Plaintiffs in this case proven by a preponderance of the evidence that the Defendant Landlords breached one or more of their duties?
      Yes No
      If your answer is ‘Yes,’ please go on to Question 2.
      If your answer is ‘No,’ you have found that the Defendant Landlords are not liable on the Plaintiffs’ Negligence Count. Please go to Section C.
      2. If your answer to Question 1 is ‘Yes,’ have the Plaintiffs in this case proven by a preponderance of the evidence 1hat the breach of one or more duties of the Defendant Landlords was a proximate cause of the Plaintiffs’ damages?
      Yes No
      Please go to Section B.
      SECTION B: NUISANCE
      3. Have the Plaintiffs in this case proven by a preponderance of the evidence that the Defendant Landlords created a nuisance?
      Yes No
      If your answer is ‘Yes,’ please go on to Section C.
      If your answer is ‘No,’ you have found that the Defendant Landlords are not liable on the Plaintiffs’ Nuisance Count.
      Please go to Section C.
      SECTION C:
      You have completed your deliberations. Please have the foreperson sign and date this form . . . .”