author: Lavery, J.

text:
    State of Connecticut v. Robert Busque
    (9727)
    O’Connell, Lavery and Landau, Js.
    Argued September 30, 1992
    decision released April 27, 1993

      Susan M. Hankins, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Rosita M. Creamer, senior assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of four counts of second degree sexual assault in violation of General Statutes § 53a-71 (a) (l), one count of attempted second degree sexual assault in violation of General Statutes §§ 53a-49 (a) and 53a-71 (a) (1) and five corresponding counts of risk of injury to a child in violation of General Statutes § 53-21. A sentence of fifty years incarceration, suspended after twenty-five years, with five years probation, was imposed.

On appeal, the defendant claims that the trial court (1) improperly allowed the defendant to be cross-examined regarding prior, uncharged acts of misconduct and then improperly allowed the state to impeach him with rebuttal evidence of prior, uncharged misconduct, (2) improperly allowed the state to impeach a defense witness with a specific prior act of misconduct, (3) improperly instructed the jury that sexual intercourse was, per se, a violation of General Statutes § 53-21, risk of injury to a child, and (4) violated the defendant’s right against double jeopardy by convicting him four times for second degree sexual assault and risk of injury to a child for the same allocated acts. We reverse the judgment of the trial court on the first issue because the rebuttal testimony was more prejudicial than probative, and remand the case for a new trial. Consequently, we do not reach the merits of the remaining issues because they are unlikely to be encountered in a new trial.

The jury could reasonably have found the following facts. The victim, referred to throughout the trial as Miss Doe, is the defendant’s daughter. On July 2,1988, the victim’s fourteenth birthday, the defendant sexually assaulted her, forcing her to engage in sexual intercourse. The defendant again forced the victim to engage in sexual intercourse on his birthday, July 30, 1988, on an unspecified date in the fall of that year, and again on December 24, 1988.

On January 30,1989, at 6:30 a.m., the defendant told his daughter that she was not going to school, and attempted to assault her sexually. The defendant struck the victim in the face, and dragged her into his bedroom. He pushed her backward onto the bed, and tried to unbutton her pants. The victim told the defendant that she had to use the bathroom, got up, and ran downstairs and out'of the house. The defendant pursued her onto the street, calling after her. The victim went to a neighbor’s house where she telephoned her aunt and a friend, and told them about the incident that had just occurred and about previous incidents of sexual abuse involving her father. A gynecological examination of the victim on February 3,1989, revealed medical evidence consistent with the victim’s allegations.

During the trial, the victim also testified to a pattern of sexual abuse by her father which began when she was five years old and was interrupted for several years while the defendant was stationed abroad with the army and while he was serving a prison sentence for a previous crime. The defendant denied every allegation of sexual abuse made by his daughter.

The following course of events, which took place at the trial, are pertinent to the resolution of this appeal. The victim testified that when she was eight years old she and her father moved to New Britain to stay with D, the defendant’s sister and the victim’s aunt, and with D’s daughter E, the victim’s cousin. The victim told her cousin about the defendant’s previous sexual abuse of her. At trial, the victim testified that the defendant had told her that he used to engage in sexual activity with E, his niece.

When E testified during the state’s case-in-chief, she said that before the defendant and his second wife, Aileen Busque, were married, she warned Aileen that the defendant had demonstrated a violent tendency in the past, and had engaged in sexual activity with her and the victim. The state sought to allow E to testify about the defendant’s sexual abuse of her. During an offer of proof outside the presence of the jury, E described how the defendant had initiated sexual activity with her when she was fourteen, and how that activity had progressed from fondling to oral sex and to intercourse. She told the court that the defendant had threatened to kill her if she told anyone about the sexual activity. E also described an incident in which the defendant had fired a pistol at her and she had been injured by flying glass. The state asked that E be allowed to testify before the jury about the defendant’s prior misconduct with her in order to show that the defendant’s abuse of his niece and daughter showed a common design or plan. The court, following the offer of proof, noted that there was a “strong similarity” between the activities involving the two girls, but ruled that E’s testimony would be more prejudicial than probative, and did not allow it to go before the jury.

During the defendant’s case-in-chief, the defendant testified on his own behalf. Following direct examination, he was cross-examined by the state’s attorney. During cross-examination the following exchange occurred:

“[State’s Attorney:] [I]sn’t it possible that some of the details that your daughter has testified to, those incidents have occurred during periods of time when you were drinking. And that you don’t remember them because you’ve suffered a blackout?

“[The Defendant:] No.

“Q. And why isn’t that possible?

“A. Because I’m not that kind of person. I mean you could say a lot of things about somebody that drinks, but I don’t go around raping little girls.

“Q. You’re not that kind of person?

“A. No.

“Q. And when you say ‘that kind of person,’ what do you mean?

“A. Kind of person that goes around raping women; I don’t rape women. That’s bad.”

Later during the state’s cross-examination of the defendant, the state’s attorney asked the defendant if he had sexually assaulted his niece, E, and the defendant denied that he had.

On the basis of the exchange quoted previously, the state again sought to allow E to testify before the jury regarding the defendant’s prior sexual activity with her. The state asked that E be permitted to testify as a rebuttal witness on the issue of the defendant’s credibility. The court ruled that E would be allowed to testify as to the defendant’s prior misconduct with her, but that the testimony could be considered by the jury only in terms of the defendant’s credibility. The court addressed the jury with a limiting instruction before E testified, reminding the jury that the testimony was being offered only to shed light on the defendant’s credibility. When E took the stand, she testified that the defendant arranged to sleep in the same bedroom with her by fabricating a story about his needing someone else in the room at night because he suffered from nightmares. She went on to describe in graphic detail how the defendant forced her to engage in sexual activity when she was fourteen and fifteen years of age. She described how the activity progressed from fondling to oral sex and to intercourse. E also described physical violence perpetrated against her by the defendant.

The defendant’s first claim involves two issues. First, the defendant claims that the trial court improperly allowed the state to cross-examine him regarding evidence of prior misconduct not related to veracity. Second, he claims that the trial court improperly allowed the state to introduce extrinsic evidence on rebuttal with respect to the alleged prior misconduct. We decline to review the first issue of the defendant’s claim, but agree with the defendant’s position because the rebuttal evidence was more prejudicial than probative.

The defendant initially claims that the trial court improperly allowed the state to cross-examine him with regard to prior acts of misconduct not related to veracity. We choose not to review this claim because it was not properly preserved for appeal.

Our review of the transcript reveals that when defense counsel objected to cross-examination of the defendant about prior misconduct, he did not state that he was objecting because the questions the state asked did not pertain to veracity. Instead, counsel stated that his objection was “based on the argument we had earlier, Your Honor.”

We have carefully examined the earlier argument referred to in the trial transcript. The discussion to which defense counsel referred ensued when he made an oral motion asking the court to define the limits of the state’s cross-examination of the defendant and rebuttal following his testimony. It appears that defense counsel anticipated that his client would testify about the shooting incident involving the defendant and his niece, and was concerned that if testimony by the defendant about that issue would “open the door” to cross-examination about the defendant’s prior sexual misconduct with E. Properly, the trial court refused to speculate on this issue, and told defense counsel that the state could cross-examine the defendant on anything about which he testified. At no time during this colloquy did the issue of cross-examination regarding prior misconduct not pertaining to veracity, which the defendant raises on appeal, arise.

Our rules of practice require that when an objection to the admission of evidence is made “counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had.” Practice Book § 288. We are not bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. Practice Book § 4185. “This court reviews rulings solely on the ground on which the party’s objection is based.” State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971). “In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling.” State v. Braman, 191 Conn. 670, 684-85, 469 A.2d 760 (1983), and cases cited therein. “[OJnce the authority and the ground for an objection are stated, our review of the trial court’s ruling is limited to the ground asserted.” Id.

The ground for objection here was “the argument we had earlier.” Even if we view that argument in the light most favorable to the defendant’s objection, we might conclude that the defendant was objecting because the state was cross-examining beyond the scope of the defendant’s direct testimony, but even that conclusion would be speculative. Because the defendant did not properly preserve the issue of whether the state’s cross-examination was proper, we decline to review that claim.

In the second part of the defendant’s first claim he asserts that the trial court improperly allowed the jury to consider rebuttal evidence of prior uncharged misconduct. Among other grounds, the defendant argues, as he did in the trial court, that the misconduct evidence was more prejudicial than probative. We conclude that even if our rules of evidence allowed the introduction of E’s testimony, the testimony was clearly more prejudicial than probative. We therefore need not reach the merits of the defendant’s other grounds regarding this issue.

Generally, evidence of prior crimes or misconduct is not admissible due to the prejudicial nature of such evidence. State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368 (1970); State v. Harris, 147 Conn. 589, 599, 164 A.2d 399 (I960). Evidence of a defendant’s prior misconduct may be admitted for certain purposes, such as proving intent, identity, malice, motive or a system of criminal activity. State v. Sierra, 213 Conn. 422, 428-29, 468 A.2d 448 (1990). Evidence of prior misconduct will be admitted under these exceptions only if it is relevant to at least one of the circumstances encompassed by the exceptions, and if the value of the evidence outweighs its prejudicial effect.” Id., 429.

We recognize that a trial court has broad discretion in determining whether the probative value of proffered evidence is outweighed by the prejudice that is likely to result from its admission. State v. McGraw, 204 Conn. 441, 449-50, 528 A.2d 821 (1987). We will not overturn the court’s determination of this issue absent an abuse of discretion. Id., 450.

Our Supreme Court recently analyzed the issue of prejudicial effect versus probative value in State v. Baldwin, 224 Conn. 347, 618 A.2d 513 (1993). In that case, the trial court admitted evidence of prior misconduct under the intent exception to the prior misconduct rule. A police officer was permitted to testify that, prior to the defendant’s arrest for narcotics sales, he had observed the defendant engaging in what the officer believed to be the sale of narcotics. While in Baldwin the prior crimes evidence was allowed to show intent, which is an element of the crime charged in that case, in this case the evidence was allowed in order to shed light on the credibility of the defendant as a witness. Credibility, unlike intent in Baldwin, is not an element of the crimes charged in this case.

“Our analysis begins with the general rule excluding [prior crimes] evidence so as to avoid the danger of prejudice against the defendant which may result from the admission of such evidence. . . . State v. Onofrio, 179 Conn. 23, 28, 425 A.2d 560 (1979).” (Internal quotation marks omitted.) Id., 356. “The trial court’s ‘discretion’ to admit other crimes evidence imports something more than leeway in decision-making. Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . When assessing the admissibility of ‘other crimes’ evidence, the application of a mechanical test determining that the proffered evidence fits within some class of exception to the rule of nonadmissibility, may obscure sight of the underlying policy of protecting the accused against unfair prejudice. That policy ought not to evaporate through the interstices of the classification. The problem is thus one of balancing the actual relevancy of the ‘other crimes’ evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence. . . . [State v. Sierra, supra, 435].” (Internal quotation marks omitted.) Id., 356-57.

In this case, the defendant was charged with sexual assault on and risk of injury to his daughter, not his niece. The jury, however, heard lengthy and emotional testimony from two victims when the defendant was charged with crimes against only one of them. The second victim was allowed to testify in order to help the jury determine the defendant’s credibility as a witness.

We turn to the test set out in State v. Baldwin, supra, to determine whether the trial court properly determined whether the probative value of E’s testimony outweighed its prejudicial effect. We must determine whether the trial court properly balanced the “actual relevancy of the ‘other crimes’ evidence in light of the issues and the other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.” Id., 357. Essentially, the state’s argument is that E’s testimony about the defendant’s prior misconduct was admissible because the defendant was untruthful when he denied on cross-examination that he did not abuse E. In order to impeach the defendant’s credibility, his niece was permitted to testify in graphic detail about continued acts of sexual abuse perpetrated by the defendant against her. Again, the defendant’s credibility was not an element of the crimes charged. The testimony was presented on rebuttal, after the state had presented the jury with ample evidence to allow a reasonable jury to conclude that the defendant was guilty. E’s testimony was very likely to rouse the jury. We conclude, therefore, that the trial court abused its discretion in concluding that the probative value of E’s testimony outweighed the prejudice that could result from the jury’s hearing about serious and disturbing prior uncharged crimes of a nature similar to those charged involving incestuous sexual misconduct.

Although we conclude that the trial court improperly admitted the evidence of the defendant’s prior misconduct, we must determine whether the trial court’s decision was harmful. In a case involving an evidentiary ruling, it is the defendant’s burden to show that it is more probable than not that the court’s action affected the result. State v. Sierra, supra, 436-37. We conclude that the defendant has met this burden.

As we have noted, the jury heard testimony about prior, uncharged crimes committed by the defendant against a third party. E’s testimony was more damaging than that of the victim. She described not only sexual abuse, but violence perpetrated against her by the defendant. Despite the curative instructions of the court, it would be difficult for a juror to refrain from seeing the pattern that emerges from the testimony of the defendant’s daughter and niece. The evidence was likely to lead a juror to conclude that the defendant was disposed to commit such crimes. “Any improper evidence that may have a tendency to excite the passions, awaken the sympathy, or influence the judgment, of the jury, cannot be considered as harmless.” Id., 437. .

Because we reverse the judgment of the trial court with regard to the first issue, and because the remaining issues are unlikely to be encountered in a new trial, we decline to review the defendant’s remaining claims.

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

In this opinion the other judges concurred.

       General Statutes § 53a-71 (a) provides in pertinent part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”

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

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       During the state’s cross-examination of the defendant, the following exchange occurred:
      “[State’s Attorney:] Isn’t it a fact that when [E], your niece, was 14 and 15, that you sexually assaulted her?
      “Mr. Weingast [Defense Counsel]: Objection, Your Honor.
      “The Court: Objection overruled.
      “Mr. Weingast: And it’s based on the argument we had earlier, Your Honor.
      “The Court: Yes, yes, Mr. Weingast.
      "Mr. Weingast: May I have an exception?
      “The Court: Exception is noted.”
      The state continued with its cross-examination, and the following exchange occurred:
      “[State’s Attorney:] Isn’t it a fact that for a period of time [E] was required to sleep in that [the defendant’s] room with you?
      “[The Defendant:] No.
      “Mr. Weingast: May I have a standing objection to this line of questioning?
      “The Court: Yes, Mr. Weingast. We went through this in the argument.
      “Mr. Weingast: As long as I have a standing objection. I just want that clear for the record.
      “The Court: I keep telling you, you do, Mr. Weingast.
      “Mr. Weingast: Thank you.”
      Cross-examination by the state resumed, and the defendant denied that he had ever sexually assaulted his niece.

       We note that the state, in response to this claim by the defendant, argues that the defendant “opened the door” to E's rebuttal testimony by his response on cross-examination that he is not the type of person who rapes little girls and women. We also note that the defendant in his brief claims that he did not “open the door” to the testimony. Because, as we have stated, E’s testimony was more prejudicial than probative, even if its introduction were permitted under our rules of evidence, we decline to analyze this claim in terms of the doctrine of “opening the door.”

       Our review of the trial transcript reveals that during closing arguments the state, despite the curative instruction to the jury charging them that they could consider E’s testimony about the defendant’s prior misconduct only in relation to the defendant’s credibility, argued to the jury that the state was permitted to recall E to “rebut the defendant’s claim that he was not that kind of person.” The state reviewed E’s testimony for the jury. Later, the state said: “To believe that [the victim] fabricated these things, you’d also have to disregard the testimony of [E], that she had been an earlier victim of the defendant.” This argument materially connects the charged crime, allegedly committed by the defendant against his daughter, and the uncharged crime, allegedly committed by the defendant against his niece. It is an example of how the jury could be swayed to believe that if the defendant committed the crime previously, he is likely to have done it again.

       We note that when the state, out of the presence of the jury, originally offered E’s testimony regarding the defendant’s prior misconduct in order to show a common design or plan, the trial court, considering the prejudicial impact of the testimony, remarked, “It’s the type of evidence that would almost surely guarantee a verdict of guilt.”


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    Allstate Insurance Company v. Elizabeth Hersey Howe
    (11311)
    Landau, Heiman and Freedman, Js.

      Argued February 10
    decision released April 27, 1993

      Edward F. Czepiga II, with whom was Salvatore C. DePiano, for the appellant (defendant).

      Edward T. Falsey III, with whom was Terence A. Zemetis, for the appellee (plaintiff).
   Freedman, J.

The defendant appeals from the judgment of the trial court granting the plaintiffs application to vacate an arbitration award. On appeal, the defendant asserts that the trial court improperly determined that she was not covered under an automobile insurance policy issued by the plaintiff, which defines an “insured person” for purposes of uninsured motorist coverage, in pertinent part, as “[a]ny person while, in, on, getting into or out of your insured auto with your permission.” We agree and reverse the trial court’s judgment.

The following facts are necessary for a resolution of this appeal. The defendant was a passenger in a car operated by her friend Wendy Bayer and owned by Bayer’s mother. As they were traveling on Bloomfield Avenue in West Hartford, icy road conditions caused the Bayer vehicle to collide with the rear of another car. That accident did not result in any injuries. Both Bayer and the defendant got out of their vehicle to discuss the accident with the occupants of the other car. The defendant was returning to the Bayer vehicle when a third car struck the Bayer car which then struck the defendant, causing her to suffer serious physical injuries. The evidence was in dispute as to whether the defendant was touching the Bayer vehicle at the time of the second accident.

After obtaining benefits under the liability policy of the driver of the third vehicle and under her family’s automobile policy, the defendant made a claim for underinsured motorist coverage against the plaintiff’s policy issued to the Bayers. Under the terms of the plaintiff’s policy, and pursuant to General Statutes § 38a-336, the defendant’s claim for underinsured motorist benefits was subject to arbitration before a three member arbitration panel.

The arbitrators unanimously found the issue of insured status and coverage in favor of the defendant. They also found that the defendant’s injuries and damages were caused solely by the negligence of the underinsured motorist. The arbitrators further found that the defendant “was in the process of getting into the Bayer vehicle” and that she “had physical contact with the Bayer vehicle” at the time of the second accident.

The plaintiff insurer applied to the Superior Court to vacate the arbitration award. The plaintiff claimed that the arbitrators improperly (1) decided that the defendant was an insured person under the policy at the time of the accident and (2) failed to reduce the award by the amount of no-fault insurance benefits received by the defendant from her own automobile coverage.

The trial court concluded that despite “great effort to find some factual evidence in the record on which the arbitrators could base a finding that [the defendant], at the time she was injured, was ‘in, on, getting into or out of the Bayer vehicle,” the court could find no such factual support. Consequently, the trial court concluded that the defendant was not an insured under the plaintiff’s policy and vacated the arbitration award. The trial court, therefore, did not rule on the issue of what credits, if any, properly should be set off against the award. This appeal ensued.

The question presented on appeal is whether the defendant was an insured under the plaintiff’s automobile insurance policy issued by it to the Bayers. The defendant asserts that the trial court improperly concluded that there was insufficient factual evidence in the record from which the arbitrators could have found that the defendant was covered under the policy. She argues that she was an insured under the policy because she was “getting into” the car at the time of the second accident or, alternatively, she was “on” the car at the time of the second accident. The plaintiff argues that the defendant was not an insured under the policy because she was neither “getting into” the automobile nor was she “on” the auto at the time of the second accident.

I

“When reviewing an arbitration panel’s factual findings considering underinsured motorist coverage, our courts’ standard of review is whether the arbitrators’ findings are supported by substantial evidence. Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 21, 615 A.2d 1032 (1992); Chmielewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 660-61, 591 A.2d 101 (1991). The test in this context requires that a court determine whether substantial evidence exists in the ‘record to support the [arbitration panel’s] findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Substantial evidence will be found to exist if the . . . record supplies a substantial basis of fact from which the court reasonably can infer the fact in issue.’ (Internal quotation marks omitted.) Lawrence v. New Hampshire Ins. Co., 29 Conn. App. 484, 490, 616 A.2d 806 (1992), quoting Chmielewski v. Aetna Casualty & Surety Co., supra, 660-61 n.15. A reviewing court must defer to the arbitrators’ right to credit testimony in whole, in part, or not at all. See Chmielewski v. Aetna Casualty & Surety Co., supra, 661 n.15. The fact that a possibility exists that two inconsistent conclusions may be drawn from the evidence does not prevent the arbitrators’ finding from being supported by substantial evidence.” D’Addio v. Connecticut Ins. Guaranty Assn., 30 Conn. App. 729, 733-34, 622 A.2d 609 (1993).

At the arbitration hearing, the following additional facts were brought forth. After the defendant viewed the damage done as a result of the first accident, she walked alongside the Bayer vehicle, intending to enter it through the front passenger door. Because of the icy conditions, she placed her left hand on the handle of the driver's door for balance. The defendant testified that she intended to go around the rear of the car and enter it from the passenger’s side. At that point, the Bayer vehicle was struck by the third automobile. The defendant testified that the last thing she remembered, prior to flying through the air as a result of the accident, was that her hand was on the driver’s door handle. The defendant could not recall how long it was from the time she was holding onto the driver’s door handle to the time she was struck.

On the basis of the record before them, the arbitrators could have reasonably found that the defendant “was in the process of getting into the Bayer vehicle and had physical contact with the Bayer vehicle.” Any evidentiary dispute was for the arbitrators to resolve. In determining whether there was substantial evidence to support the arbitrators’ findings, “[t]he trial court’s role was not to draw inferences from [the] evidence presented to the arbitrators, but rather to discover whether the arbitrators’ findings of fact were reasonable.” D’Addio v. Connecticut Ins. Guaranty Assn., supra, 735. The trial court should not determine whether it would have found as the arbitrators did, but whether the arbitrators’ finding was supported by substantial evidence. Id., 735 n.6. Thus, while the trial court apparently would have found otherwise, it should not have substituted its view of the evidence for that of the arbitrators. Our independent review of the record persuades us that there was substantial evidence to support the critical factual determination that the defendant was in the process of getting into the Bayer vehicle and had physical contact with the Bayer vehicle at the time of the accident.

II

We now turn to the question of whether, under the facts as found by the arbitrators, the defendant was an “insured person” under the plaintiffs policy. To find that the defendant was an insured under the plaintiff’s policy, the arbitrators had to find she was “in, on, getting into or out of” the insured vehicle. “Questions of law decided by arbitrators in compulsory arbitration proceedings pursuant to General Statutes § 38a-336 are subject to de novo review by the [trial] court. . . . [Construction of a contract of insurance presents a question of law for the court which this court reviews de novo.” (Citations omitted.) Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991). The question of whether, under the facts as found by the arbitrators, the defendant was an insured person under the plaintiff’s policy, therefore, is a question of law which we, in our review, address de novo. Id.; American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 191, 530 A.2d 171 (1987).

In Testone v. Allstate Ins. Co., 165 Conn. 126, 328 A.2d 686 (1973), our Supreme Court addressed coverage issues pertaining to two policies which covered, inter alia, persons “in or upon or entering into” the vehicle. In that case, the plaintiff was next to the vehicle. The Testone court held that the plaintiffs proximity to the vehicle was not sufficient to afford coverage under the insurance contract. The court concluded that physical contact was necessary to permit coverage for injury caused while the plaintiff was “upon” the vehicle. Id., 133-34. In fact, the Testone court appears to have cited with approval several cases that have interpreted the phrase “in or upon” as meaning that “actual physical contact with the insured vehicle affords coverage . . . .” Id., 133. In the present case, the defendant’s actual physical contact with the Bayer vehicle at the time of the accident would, therefore, appear to afford coverage.

Moreover, the defendant was in the “process” of getting into the Bayer vehicle. Although the words “in the process of” do not appear in the policy, the use of these words by the arbitrators reflects, in our view, the conclusion that the defendant had an intent to enter the vehicle and was attempting to do so at the time of the accident. Although the Testone court concluded that “intent to enter a vehicle alone is not ‘entering’ a vehicle within the meaning of the insurance policy”; id., 134; the present case involves more than an intent to enter the vehicle, standing alone. The defendant had an intent to reenter the vehicle after a brief interruption in her travels. She was not simply standing by the car. She had exited the car for reasons related to its operation and was returning directly to resume her travels when the accident occurred.

In Ross v. Protective Indemnity Co., 135 Conn. 150, 62 A.2d 340 (1948), the plaintiffs were standing behind the insured vehicle, conversing, after a stop to urinate, when they were struck and injured by another car. The Ross court concluded that it would stretch the policy terms “entering or alighting” too far to permit coverage where the plaintiffs “had gone to the rear of the car and were injured several minutes later while standing there conversing.” Id., 153. We do not read Ross as precluding coverage under the circumstances of this case. In Ross, unlike this case, the injured parties had undertaken an endeavor distinct from the operation of the vehicle and distinct from the reentry of the vehicle when they stood behind the vehicle conversing. Moreover, in Ross, unlike this case, even though “[t]he plaintiffs had no intention of discontinuing their journey . . . when they alighted” from the vehicle; id., 152; there is no indication in the facts of the Ross case that the plaintiffs were in the process of getting into the vehicle, that is, that they were furthering their intent to resume their travels, at the time of the accident. Here, by contrast, the injured party was, at the time of the accident, in the process of reentering the Bayer vehicle in order to resume her travels after a brief interruption in her journey which was directly related to the operation of the vehicle. Cf. United Farm Bureau Ins. Co. v. Pierce, 152 Ind. App. 387, 390, 283 N.E.2d 788 (1972) (observing that cases interpreting “entering or alighting” policy language seem to require “an intent coupled with an overt act necessary to enter or exit the vehicle”).

We are persuaded, then, that the totality of the circumstances in this case are sufficient to permit coverage of the defendant as a person who is injured “while ... on [or] getting into . . . [the] insured auto.” It is clear that coverage is compelled under the circumstances of this case where, at the time of the accident, the defendant was in physical contact with the car and she intended to and was taking steps to reenter the vehicle after only a brief interruption in her travels related to the operation of the vehicle. We do not believe that our conclusion impermissibly “ ‘distorts] [the words] as to accord a meaning other than that evidently intended by the parties.’ ” Ross v. Protective Indemnity Co., supra, 153, quoting Porto v. Metropolitan Life Ins. Co., 120 Conn. 196, 200, 180 A. 289(1935).

Accordingly, we conclude that the trial court improperly determined that the defendant was not covered under the plaintiff’s insurance policy. Because the trial court vacated the arbitrators’ award, it did not have the opportunity to address the plaintiff’s remaining claims regarding what credits, if any, properly should be set off against the arbitration award. On remand, the trial court should address these issues. See D'Addio v. Connecticut Ins. Guaranty Assn., supra, 736.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       We discern no difference between the policy term “upon” in Testone and the term “on” in the present case.

       We discern no difference between the policy term “entering” in Testone and the term “getting into” in the present case.


author: Daly, J. Heiman, J.,

text:
    State of Connecticut v. Paul W. Deptula
    (10956)
    Daly, Foti and Heiman, Js.

      Argued February 24
    decision released April 27, 1993

      William H. Paetzold, deputy assistant public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, and Mark Stabile, deputy assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (l). The defendant also challenges the enhancement of his sentence, rendered after a nolo con-tendere plea to being a persistent serious felony offender in violation of General Statutes § 53a-40 (b). The defendant claims that the trial court improperly (1) failed to instruct the jury on self-defense, (2) accepted the defendant’s plea of nolo contendere to being a persistent serious felony offender, and (3) admitted evidence of the defendant's prior assaul-tive misconduct. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On June 6, 1991, at approximately 9 a.m., the defendant purchased beer and vodka at a Willimantic package store for himself and his wife, the victim. They both consumed the alcohol until 6 p.m., when they began to argue. The defendant’s wife hit the defendant with her hands. After deflecting her blows, the defendant struck her four or five times on the face and chest causing her to fall to the floor. The defendant’s wife had not recovered from her injuries the next day. Finally, on June 8, she was taken to Windham Hospital after the defendant called 911. When rescue personnel arrived on the scene, the defendant claimed that his wife had fallen down some stairs. His wife was suffering from three fractured ribs and a fracture of the right jaw. She had also sustained multiple bruises. After receiving treatment, the wife signed herself out of the hospital and stayed with a friend. During that time, the wife’s condition worsened and she was readmitted to the hospital on June 10. She remained in the hospital for over three weeks.

At approximately 4 p.m. on June 10, the defendant went to the Willimantic police station. After being informed of his Miranda rights; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); the defendant signed a written statement admitting that he had hit his wife. Further facts are set forth as necessary.

I

The defendant first claims that he was entitled to a charge on self-defense. The defendant submitted requests to charge, including one on self-defense that was taken directly out of L. Orland & D. Borden, Criminal Jury Charges § 6.1. Self-defense, as defined in General Statutes § 53a-19, is a justification defense. General Statutes § 53a-16. Negating a defense, other than an affirmative defense, becomes part of the state’s burden of proof once the defense is raised at trial. General Statutes § 53a-12 (a).

The state contends that we should not entertain this issue because the defendant failed to comply with Practice Book § 852, which provides that this court “shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.” We disagree with the state.

“The defendant must provide the trial court with the factual and legal basis for the charge before an appellate court can find error in the court’s refusal to give the charge as requested.” State v. Robinson, 14 Conn. App. 40, 45-46, 539 A.2d 606, cert. denied, 488 U.S. 899, 109 S. Ct. 244, 102 L. Ed. 2d 233 (1988). Practice Book § 854 provides that “[w]hen there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. . . .”

This case differs from State v. Hall, 213 Conn. 579, 569 A.2d 534 (1990), where our Supreme Court determined that the defendant did not deserve a charge on negligent homicide as a lesser included offense because the defendant failed to specify in his request to charge the facts that would have justified the instruction on the defendant’s failure to “perceive a substantial and unjustifiable risk” of the victim’s death. Id., 592. Without such facts, the charge referred to the general events leading to the victim’s death, these events being applicable not only to the crime of negligent homicide but also to the greater offenses of murder, manslaughter in the first degree and manslaughter in the second degree.

Here, the state’s evidence of the assault also indicated that the victim hit the defendant first. This fact went to the issue of self-defense and was not relevant to the basic elements of assault in the second degree as defined in General Statutes § 53a-60 (a) (1). Defense counsel stated during his objection to the introduction of evidence of a previous incident where the defendant had hit the victim that “the statement [that the victim hit the defendant first in this matter] on its face presents a defense. It shows self-defense. It’s up to the jury to determine whether the force used was excessive. But at least that defense is before the court with the state’s evidence that has been presented.” There could be no confusion on the court’s part as to the evidence on which the request to charge was based.

In addition, the defendant excepted to the charge. Notwithstanding the defendant’s exception, the state contends that it was not sufficient to preserve the claim for appellate review. “[A] trial court’s instructions to the jury will not be considered as error on appeal if the exception taken was insufficient adequately to apprise the court of the deficiency in the charge in a manner which would permit the court to make a correction.” (Internal quotation marks omitted.) State v. Cook, 8 Conn. App. 153, 156, 510 A.2d 1383 (1986). We conclude, however, that the defendant’s exception was sufficient adequately to apprise the court of the deficiency in the charge in a manner that would permit the court to make a correction. The defendant made a timely exception to the trial court’s refusal to charge the jury on self-defense.

“The requirement that the claim made by the exception be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked. . . . The purpose of the rule requiring that an exception be taken that distinctly states the objection and the grounds therefor is to alert the court to any claims of error while there is still an opportunity for correction.” (Citations omitted; internal quotation marks omitted.) State v. Utz, 201 Conn. 190, 207, 513 A.2d 1191 (1986). The following timely exception was made by the defendant’s counsel:

“[Defense Counsel]: May I have an exception to the court’s failure to charge my fourth request to charge, self-defense?
“The Court: You may have an exception.
“[Defense Counsel]: Thank you.
“The Court: I don’t feel it was proven.”

It is evident from this exchange, especially in light of defense counsel’s previous statement during the objection to the introduction of evidence of the defendant’s prior misconduct, that the trial court understood that the defendant was objecting because he believed the defense had satisfied its burden of showing that enough evidence to support an instruction on self-defense had been presented to the court. Therefore, while usually counsel must explicitly state the grounds for an exception, the purpose for that rule has been satisfied in this case because the trial court understood the ground for the objection.

Furthermore, Practice Book § 852 does not require that we refuse to address this claim because it states that this court “shall not be bound” to consider this matter if a proper request to charge or timely objection is not properly made. While we would prefer it if the defendant’s counsel had drafted a more thorough request to charge, or if he had made a more specific exception, we will review this claim because the defendant substantially complied with the requirements of Practice Book § 852 and the court understood the grounds for the objection. There is no need to hold the defendant to the strict requirement where, as here, the purpose of the rule has been satisfied.

Turning to the merits of the defendant’s claim, “a defendant is entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . .” (Citations omitted; internal quotation marks omitted.) State v. Belle, 215 Conn. 257, 275, 576 A.2d 139 (1990). “Before an instruction is warranted, however, [a] defendant bears the initial burden of producing sufficient evidence to inject self-defense into the case. ... To meet that burden, the evidence adduced at trial, whether by the state or the defense, must be sufficient to raise a reasonable doubt in the mind of a rational juror as to whether the defendant acted in self-defense.” (Citation omitted; internal quotation marks omitted.) State v. Lewis, 220 Conn. 602, 619, 600 A.2d 1330 (1991). “Once the defense is properly raised, the jury must be instructed that the state bears the burden of disproving it beyond a reasonable doubt. State v. Cassino, 188 Conn. 237, 241, 449 A.2d 154 (1982). The narrow issue before us, therefore, is whether the defendant presented sufficient evidence to ‘raise’ the issue at trial. The threshold is not high. The instruction must be given if there is any foundation in the evidence for the defense theory; State v. Belle, supra, 275; and we must view the evidence in the light most favorable to the defendant. State v. Havican, 213 Conn. 593, 595, 569 A.2d 1089 (1990); State v. Cassino, supra, 239. The jury, however, must have before it enough evidence to raise a question of fact without resorting to guess and speculation.” (Emphasis in original; internal quotation marks omitted.) State v. Tyson, 23 Conn. App. 28, 32-33, 579 A.2d 1083, cert. denied, 216 Conn. 829, 582 A.2d 207 (1990).

The state relied on the defendant’s statement to the police to prove elements of the crime of assault in the second degree. Neither the defendant nor the victim testified at trial. In his statement to the police, the defendant explained that before he hit his wife, she had struck him. This evidence suggests that the victim was the initial aggressor and since they were in their apartment when she hit him, there was no duty for him to retreat. State v. Bailey, 209 Conn. 322, 339-40, 551 A.2d 1206 (1988). Whether the evidence was sufficient to find the defendant was justified pursuant to General Statutes §§ 53a-19 and 53a-16 was a question for the jury to decide. The trial court improperly refused to instruct the jury on the issue of self-defense. Thus, the defendant is entitled to a new trial.

II

The defendant argues, and the state concedes, that the trial court improperly accepted the defendant’s nolo contendere plea to being a persistent serious felony offender under General Statutes § 53a-40 without advising the defendant of the nature of the charge or the constitutional rights relinquished by making such a plea and without ensuring that the plea was knowingly and voluntarily made as required by the Connecticut and federal constitutions and our rules of practice. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Badgett, 220 Conn. 6, 595 A.2d 851 (1991); State v. Childree, 189 Conn. 114, 454 A.2d 1274 (1983); see Practice Book §§711 and 712.

Notwithstanding the agreement of the parties, we need not reach the merits of this claim. “A person accused of being a persistent dangerous felony offender is not charged with a crime separate from the substantive crime which forms the first part of the indictment against him. . . . The only function of the separate judicial proceeding on the defendant’s status as a persistent dangerous felon is to permit an enhanced sentence for conviction of the underlying substantive crime.” (Citations omitted.) State v. Fullwood, 194 Conn. 573, 587, 484 A.2d 435 (1984). Because the defendant’s persistent offender status is dependent on his conviction of assault in the second degree, which we are reversing, we must reverse the determination that the defendant is a persistent serious felony offender as well.

Ill

The defendant finally argues that evidence of his prior assaultive behavior toward the victim was improperly admitted. Although this evidence may be offered against the defendant on retrial, we decline to review this claim because the defendant raises a different claim on appeal than he raised in the trial court.

At trial, the state offered a written statement the defendant gave to the police as evidence of an altercation between the defendant and his wife in May, 1990, which was similar to the one at issue. That evidence was offered to prove the defendant’s intent to inflict serious physical injury. At trial the defendant objected to the admission of his written statement concerning the May, 1990 incident arguing that his due process rights were violated because he was not able to cross-examine his wife about that incident. On appeal, however, the defendant claims that the admission of his written statement was a violation of his right to a fair trial because the evidence was unduly prejudicial as it permitted the jury to speculate that his prior assault on the victim indicated that he was guilty of assault a second time.

Parties challenging on appeal a trial court’s actions are limited to the authority and grounds for objections that were presented at trial. State v. Brice, 186 Conn. 449, 457, 442 A.2d 906 (1982); State v. Anderson, 28 Conn. App. 833, 844, 614 A.2d 438 (1992). “We are not bound to consider claims that are not distinctly raised at trial. Practice Book § 4185. Review of evidentiary rulings is limited to the specific ground raised on the objection.” State v. Anderson, supra. The defendant raised a different claim of admissibility at trial than he does on appeal. Thus, we decline to review this claim because it was not raised before the trial court.

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

In this opinion Foti, J., concurred.

Heiman, J.,

concurring in part and dissenting in part. I respectfully dissent. Although I agree with the majority that the case must be reversed and remanded because of the trial court’s failure to comply with our rules of practice concerning the proper canvassing of a plea of nolo contendere, that the sentence must be vacated because of the sentence enhancement provisions of the persistent offender section of the statute, and that we should not review the defendant’s claim that the trial court improperly admitted evidence of the defendant’s alleged prior assaultive misconduct, I would not reverse the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (1) because of the trial court’s failure to instruct the jury on self-defense.

I disagree with the majority that we should review the defendant’s claim that the trial court improperly refused to instruct the jury on self-defense. I believe that the defendant did not properly preserve this claim for review because his written request for an instruction on the issue of self-defense and his oral objection and exception following the trial court’s denial of his request were substantively inadequate. As an appellate tribunal, either we adhere to the letter of the rules or create judicial anarchy, whereby, on an ad hoc basis, we decide cases, the outcome of which will turn on the mindset of the panel hearing the appeal. See Osborne v. Osborne, 2 Conn. App. 635, 639, 482 A.2d 77 (1984).

Practice Book § 852 provides in pertinent part that we “shall not be bound to consider error as to the giving of, or failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. . . .” Practice Book § 854 delineates the requirements for a proper written request to charge. It provides in pertinent part: “When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law dearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. ...” (Emphasis added.) The majority correctly acknowledges that “ ‘[a] defendant must provide the trial court with the factual and legal basis for the charge before an appellate court can find error in the court’s refusal to give the charge as requested.’ State v. Robinson, 14 Conn. App. 40, 45-46, 539 A.2d 606, cert. denied, 488 U.S. 899, 109 S. Ct. 244, 102 L. Ed. 2d 233 (1988).”

My disagreement with the majority is twofold. My first concern is that the defendant failed to provide in his request to charge a proper factual predicate for the trial court to provide instruction as to self-defense. The request as submitted did not meet the requirements of a proper written request to charge. Our Supreme Court has said that while we should not be unyielding in our adherence to rules of procedure where the ends of justice would be disserved, the “ever increasing refinement of our law justifies cooperation of counsel in stating requests for jury instruction. The minor burden of cooperation imposed by [Practice Book § 854] is neither unreasonable nor novel.” (Internal quotation marks omitted.) State v. Hall, 213 Conn. 579, 593, 569 A.2d 534 (1990). In that case, our Supreme Court held that in the context of a written request to charge on a lesser included offense, the requirement of § 854 is met only if the proposed request contains “such a complete statement of essential facts as would have justified the court in charging in the form requested.” (Internal quotation marks omitted.) Id., 591. The rules of practice require that the defendant provide a complete statement of all the essential facts as would have justified the court charging the jury as requested. State v. Livingston, 22 Conn. App. 216, 224, 577 A.2d 734, cert. denied, 216 Conn. 812, 580 A.2d 63 (1990). I believe that the trial court in this case was not properly apprised of the specific facts that would entitle the defendant to an instruction on self-defense. State v. Wynter, 19 Conn. App. 654, 667-68, 564 A.2d 296, cert. denied, 213 Conn. 802, 567 A.2d 834 (1989) (failure of defendant to provide in his request the facts and propositions of law relied on for an instruction on a lesser included offense justify the court’s decision to deny the request to charge).

My second concern is that defense counsel’s exception did not adequately provide the trial court and this court with an offer that distinctly raised the matter objected to and the factual and legal ground for that objection. While the court seems to take the position that the defendant complied with the spirit of the rule of practice, I think our case law requires a stricter compliance with the letter of the rule. See State v. McIntosh, 199 Conn. 155, 161, 506 A.2d 104 (1986) (concerning proposed instruction on lesser included offense). While we construe the rules of practice liberally; Practice Book §§ 6 and 4187; we do not treat them as abandoned or of no consequence.

Having concluded that the defendant failed to request properly that the trial court charge the jury on self-defense, I also conclude that the defendant cannot prevail on his unpreserved claim that the trial court’s refusal to charge on self-defense amounted to a deprivation of his constitutional rights. The defendant cannot satisfy the third prong of State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989), that the alleged violation of a constitutional right clearly exists and clearly deprived him of a fair trial. The defendant was not precluded from raising a defense. The defendant cannot “wholly ignore established procedures for the protection of [his] rights . . . and hope to receive on appeal the same treatment accorded to those who follow the rules of practice.” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 518, 508 A.2d 415 (1986); Naftzger v. Naftzger & Kuhe, Inc., 26 Conn. App. 521, 525, 602 A.2d 606 (1992). The defendant was afforded the right and opportunity to raise properly the defense of justification or self-defense. He failed, however, to follow the relatively simple rules that set forth the methodology for appropriately raising that defense. Because of this failure, we are free to decline to afford review of the unpreserved claim. State v. Andrews, 29 Conn. App. 533, 537, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993).

I agree that the case needs to be remanded because of the trial court’s failure to canvass properly the defendant’s plea of nolo contendere to the charge of being a persistent serious felony offender. I am also convinced that the claim that the trial court did not act properly in allowing into evidence the prior acts of misconduct by the defendant against the victim should not be reviewed. I am, however, unpersuaded that the action of the trial court in declining to charge the jury on a request to charge that did not satisfy the rules of practice was improper. Accordingly, I would vacate the sentence because the sentence was permitted to be enhanced on the conviction of being a persistent offender, and remand the case for further proceedings as to the charge of being a persistent serious felony offender, and, upon completion of those proceedings, for resentencing on the second degree assault conviction.

       General Statutes § 53a-60 (a) provides in pertinent part: “A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person . . . .”

       General Statutes § 53a-40 (b) provides in pertinent part: “A persistent serious felony offender is a person who (1) stands convicted of a felony, and (2) has been, prior to the commission of the present felony, convicted of and imprisoned under an imposed term of more than one year or of death, in this state or in any other state or in a federal correctional institution, for a crime. . . .”

       The defendant’s statement read: “I, Paul Deptula . . . of . . . Willimantic, Connecticut, telephone none, having been advised of my constitutional rights, without threat or promise, depose and say that on June 6, 1991, at approximately 9:00 a.m., I went to a package store in Willimantic and bought beer and vodka for myself and my wife. I then went back to our apartment . . . [in] Willimantic, Connecticut. That my wife, Robin, and I started drinking and drank to about 6:00 p.m.. We both were very drunk and we started arguing about money and drinking. That Robin started to hit me with her hands and I started blocking her punches and started hitting her back with my fists. I hit her about four or five times with my fists. I hit her in the chest a few times and once in the face which knocked her to the floor. That Robin just laid on the ground and we went to sleep in our beds. That on Friday, 6/7/91 to Saturday, 6/8/91, Robin just stayed in bed and complained of pain in her chest and face. That on Saturday, on 6/8/91, at about 11:00 a.m., I called 911 and had Robin taken to the hospital. I told the police and fire department along with Robin that Robin had fallen down the stairs at the Hotel Hooker and had gotten injured. The truth is that Robin was injured from me punching her during our fight on or about 6/6/91 at the Hotel Hooker, Willimantic Connecticut. That on 6/10/91, at approximately 4:00 p.m., I walked to the Willimantic police department and spoke with detectives Griswold and Winkler about the fight with my wife on or about 6/6/91 and gave this two page written statement. That I also hit her on the side of the body once. I have read the above statement and find it to be the truth to the best of my knowledge. I will testify in court under oath to the facts therein. I understand that I may be criminally charged under the provisions of CGS section 53a-167 for intentionally making a false written statement herein.”

       General Statutes § 53a-19 provides in pertinent part: “[A] person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose . . . .”

       General Statutes § 53a-16 provides: “In any prosecution for an offense, justification, as defined in sections 53a-17 to 53a-23, inclusive, shall be a defense.”

       At the time of the incident in May, 1990, the defendant and the victim were not married.

       The defendant has not asked us to review this claim under State v. Evans, 165 Conn. 61, 372 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and we decline to do so.

       Practice Book § 711 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;

        “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”
      Practice Book § 712 provides: “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his counsel.”
      Practice Book § 713 provides: “The judicial authority shall not accept a plea of guilty unless he is satisfied that there is a factual basis for the plea.”
      As the state concedes, the trial court did not properly canvass the defendant in accordance with the above cited rules of practice. The extent of the canvass was as follows:
      “[Defense Counsel]: First matter we have, Your Honor, is part 2 of the information charging [the defendant] with being a subsequent felony offender and I have a written plea of nolo contendere to that.
      “[The Court]: All right. Is it in proper form, [defense counsel]?
      “[Defense Counsel]: Appears to be, Your Honor.
      “[The Court]: All right. The nolo contendere plea is accepted. Make a finding of guilty.”

       The requirements of Practice Book § 854 apply not only in the context of requests to charge on a lesser offense, but also to requests to charge on defenses. State v. Jacobs, 194 Conn. 119, 128-29, 479 A.2d 226 (1984), cert. denied, 469 U.S. 1190, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985) (defendant must comply with Practice Book § 854 to obtain a request to charge on the defense of intoxication); State v. Hopes, 26 Conn. App. 367, 372, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992) (defendant must comply with Practice Book § 854 to obtain a request to charge on the defense of duress).


text:
    Southern New England Telephone Company v. Board of Tax Review of the Town of Bloomfield
    (11144)
    La very, Landau and Freedman, Js.

      Argued January 15
    decision released April 27, 1993

      Robert K. Ciulla, with whom, on the brief, was Charles R. Andres, for the appellant (plaintiff).

      Marc N. Needelman, town attorney, with whom, on the brief, was W. Herbert Reckmeyer, for the appellee (defendant).
   Lavery, J.

The issue presented by this appeal is whether in a tax appeal pursuant to General Statutes § 12-117a the trial court lacked subject matter jurisdiction because the plaintiff named the “Board of Tax Review, Town of Bloomfield” as the defendant in the citation and served process on the chairperson of the board of tax review instead of on the town clerk. The trial court found that it did not have subject matter jurisdiction and dismissed the appeal. We affirm the trial court’s judgment.

The plaintiff, Southern New England Telephone Company, brought this tax appeal pursuant to General Statutes § 12-117a from the action of the board of tax review of the town of Bloomfield taken on May 6,1991. The citation named as the defendant the “Board of Tax Review, Town of Bloomfield,” and did not name the town of Bloomfield by itself. Service was not made on the town clerk, the statutory agent for service for the town, but rather on the chairperson of the board of tax review. The board of tax review filed a motion to dismiss pursuant to Practice Book § 143. The trial court granted the motion on the basis of the board’s failure to issue and serve a citation to the town to appear before the court. General Statutes § 12-117a provides in pertinent part: “[A]ny person . . . claiming to be aggrieved by the action of the board of tax review in any town or city with respect to the assessment list for the assessment year commencing October 1,1989, October 1,1990 [or] October 1,1991 . . . may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated, which shall be accompanied by a citation to such town or city to appear before said court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action. . . .” (Emphasis added.)

General Statutes § 52-57, entitled “Manner of service upon individuals, municipalities, corporations, partnerships and voluntary associations” provides in pertinent part: “(a) Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.

“(b) Process in civil actions against the following-described classes of defendants shall be served as follows: (1) Against a town, upon its clerk, assistant clerk, manager or one of its selectmen; (2) against a city, upon its clerk or assistant clerk or upon its mayor or manager; (3) against a borough, upon its manager, clerk or assistant clerk or upon the warden or one of its bur-gesses; (4) against a school district, upon its clerk or one of its committee; and (5) against other municipal or quasi-municipal corporations, upon its clerk or upon its chief presiding officer or managing agent. . . .”

In this case the citation named “Board of Tax Review, Town of Bloomfield,” rather than the town of Bloomfield. The plaintiff cites a lengthy string of Connecticut Supreme and Appellate Court cases in which the defendant was the board of tax review of various town and cities, but in none of those cases was the issue of citing the wrongly named defendant brought before the court, raised by the court sua sponte, or decided by the court. In addition, in none of those cases cited was it noted that service was made on anyone other than the town clerk. The plaintiff also cites Zodda v. Stamford, Superior Court, judicial district of Stamford-Norwalk, Docket No. CY87-0078849 (August 11,1987) as authority to support its claim that the town of Bloomfield is the named defendant here. The trial court in Zodda held that the naming of the city of Stamford board of tax review properly cited in the city of Stamford. The cases cited in Zodda as authority were three Supreme Court cases also cited by the plaintiff in this case, in which the naming of the board of tax review of the town or city was not an issue raised in the case. The Supreme Court in Montgomery v. Branford, 107 Conn. 697, 700, 142 A. 574 (1928), ruled, however, that in this type of tax appeal the town or city is the proper and necessary defendant and the board of relief (predecessor entity to the board of tax review) is not. The Montgomery court took note of the “uniform practice of citing in the town or city in all appeals from the board of relief.” Id.; see also B & G Realty v. Windsor Locks, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 392855 (August 22, 1991), 4 Conn. L. Rptr. 571 (1991).

The plaintiff claims not only that the town of Bloomfield is in fact the named defendant in the citation, but also that the failure to serve the town clerk went to the issue of personal jurisdiction, and that the failure to file a motion to dismiss within thirty days of filing an appearance by the defendant was a waiver pursuant to Practice Book §§ 142 and 144. We disagree.

It is a well settled rule that in appeals from administrative decisions, the failure to include the name of a necessary party or defendant in the citation is a jurisdictional defect that renders the appeal subject to dismissal. Simko v. Board of Appeals, 205 Conn. 413, 419, 533 A.2d 879 (1987), aff'd, 206 Conn. 374, 538 A.2d 202 (1988), and cases cited therein.

“Appeals to courts from administrative agencies exist only under statutory authority. . . . A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created. . . . Such provisions are mandatory, and, if not complied with, the appeal is subject to dismissal. ...” (Citations omitted; internal quotation marks omitted.) Raines v. Freedom of Information Commission, 221 Conn. 482, 489-90, 604 A.2d 819 (1992); Miller v. Conservation Commission, 27 Conn. App. 590, 595-96, 607 A.2d 1159 (1992). The plaintiffs tax appeal was therefore properly dismissed.

The plaintiffs final claim is that the defective service of process in this case does not implicate the trial court’s subject matter jurisdiction. The plaintiff bases this claim on the fact that General Statutes § 12-118 does not specify who must be served. That statute states that the appeal must be served “in the same manner as . . . [in] a civil action” thereby directing one to General Statutes § 52-57 to determine whom to serve. The plaintiff reasons that since the statute does not specifically set out whom to serve, that issue implicates personal jurisdiction and is waived unless a motion to dismiss is filed within thirty days of appearance. Practice Book §§ 142,144; see footnote 5, supra. We disagree.

In Brunswick v. Inland Wetlands Commission, 222 Conn. 541, 546-47, 610 A.2d 1260 (1992), our Supreme Court determined that language similar to the § 12-118 reference to § 52-57 set out mandatory requirements for establishing subject matter jurisdiction. The Brunswick court wrote: “The procedures that govern an administrative appeal from the decision of an inland wetlands commission are, by virtue of General Statutes § 22a-43 (a), the procedures specified by the Uniform Administrative Procedure Act, General Statutes § 4-183. Under § 4-183 (b), an administrative appeal must include a proper citation in order to invoke the jurisdiction of the court. ... In administrative appeals, the citation is the writ of summons that directs the sheriff or some other proper officer to seek out the defendant agency and to summon it to a particular sitting of a particular court on a specified day. 1E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970 & Sup.) § 18. The citation, signed by a competent authority, is the warrant which bestows upon the officer to whom it is given for service the power and authority to execute its command. . . . Section 22a-43 (a) provides that an appeal from an inland wetlands commission shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court. A proper citation, in accordance with General Statutes § 52-45a, is a document that, in addition to describing the parties, the court to which it is returnable, the return date and the date and place for filing an appearance, is signed by a commissioner of the superior court or a judge or clerk of the court to which it is returnable.” (Citations omitted; internal quotation marks omitted.) Id.

In this case, the plaintiff named the board of tax review and served its chairperson rather than naming the town and serving the town clerk as required by § 12-118. We hold that the plaintiffs failure to name and serve the statutorily mandated necessary party in the citation is a jurisdictional defect that renders the administrative appeal subject to dismissal.

The circumstances of this case differ significantly from those encountered by our Supreme Court in Demar v. Open Space & Conservation Commission, 211 Conn. 416, 559 A.2d 1103 (1989). In that case, the court held that the plaintiffs failure to serve the commissioner of the department of environmental protection when taking an appeal from a decision of the open space and conservation commission of Rocky Hill did not deprive the Superior Court of subject matter jurisdiction to hear the appeal. The court reasoned that although the statutes that provide for an appeal from an inland wetlands agency require that the commissioner of environmental protection be served notice of the appeal, the statutes do not make the commissioner a party to the appeal. By contrast, the town of Bloomfield is a necessary party to this appeal as we have noted.

We are constrained, however, as was Justice Shea in his concurring opinion in Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 75, 540 A.2d 59 (1988), to express our concern with treating “virtually every deviation from the statutory norm as a defect that deprives a court of subject matter jurisdiction and thus to be unwaivable by the parties or subject to such considerations as lack of prejudice that are applied in other proceedings.” Nevertheless, Justice Shea added that “[w]e have been traveling down this path for too long ... to turn back at this late time without some legislative direction.” Id.

The judgment is affirmed.

In this opinion the other judges concurred.

       In 1989, the legislature passed legislation to create a state appeals board for property tax review and amended General Statutes § 12-118 to apply to appeals from that board. The state tax review board, however, has yet to be established, and the legislature has continued the original provisions of § 12-118 by public act. The present tax appeal is governed by the provisions of Public Acts 1991, No. 91-221, § 4, as it amends Public Acts 1989, No. 89-231, and Public Acts 1990, No. 90-266. Those statutes were codified in 1993 as General Statutes § 12-117a. For the sake of simplicity, the governing statute will be referred to as § 12-117a.

       Practice Book § 143 provides: “The motion to dismiss shall be used to assert (1) lack of jurisdiction of the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record.
      “If an adverse party objects to this motion he shall, at least five days before the motion is to be considered on the short calendar, file and serve in accordance with Sec. 120 a memorandum of law and, where appropriate, supporting affidavits as to facts not apparent on the record.”

       The plaintiff cited the following cases in support of its argument that our appellate courts have “repeatedly sanctioned the practice of citing a municipality in a tax appeal by citing the municipal Board of Tax Review”: Einbinder v. Board of Tax Review, 217 Conn. 240, 584 A.2d 1188 (1991); 84 Century Limited Partnership v. Board of Tax Review, 207 Conn. 250, 541 A.2d 478 (1988); Sachem’s Head Assn. v. Board of Tax Review, 190 Conn. 627, 461 A.2d 995 (1983); Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 438 A.2d 782 (1981); Red Top, Inc. v. Board of Tax Review, 181 Conn. 343, 435 A.2d 364 (1980); Gorin’s, Inc. v. Board of Tax Review, 178 Conn. 606, 424 A.2d 289 (1979); Birchwood Country Club, Inc. v. Board of Tax Review, 178 Conn. 295, 422 A.2d 304 (1979); New Haven Water Co. v. Board of Tax Review, 178 Conn. 100, 422 A.2d 946 (1979); Xerox Corporation v. Board of Tax Review, 175 Conn. 301, 397 A.2d 1367 (1978); White Oak Excavators, Inc. v. Board of Tax Review, 169 Conn. 253, 363 A.2d 134 (1975); O’Brien v. Board of Tax Review, 169 Conn. 129, 362 A.2d 914 (1975); Rolling Hills Country Club, Inc. v. Board of Tax Review, 168 Conn. 466, 363 A.2d 61 (1975); Torrington Water Co. v. Board of Tax Review, 168 Conn. 319, 862 A.2d 866 (1975); New Haven Water Co. v. Board of Tax Review, 166 Conn. 232, 348 A.2d 641 (1974); Lockton v. Board of Tax Review, 162 Conn. 77, 291 A.2d 715 (1971); Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 291 A.2d 715 (1971); Meriden v. Board of Tax Review, 161 Conn. 396, 288 A.2d 435 (1971); Johnson v. Board of Tax Review, 160 Conn. 71, 273 A.2d 706 (1970); Hartford Hospital v. Board of Tax Review, 158 Conn. 138, 256 A.2d 234 (1969); Lathrop v. Board of Tax Review, 18 Conn. App. 608, 559 A.2d 1160, cert. denied, 212 Conn. 812, 565 A.2d 536 (1989); Pepe v. Board of Tax Review, 14 Conn. App. 705, 542 A.2d 756 (1988); Covenant Home, Inc. v. Board of Tax Review, 14 Conn. App. 441, 541 A.2d 130, cert. denied, 208 Conn. 815, 546 A.2d 282 (1988); Executive Square Limited Partnership v. Board of Tax Review, 11 Conn. App. 566, 528 A.2d 409 (1987); Midway Green Corporation v. Board of Tax Review, 8 Conn. App. 440, 512 A.2d 984 (1986); Plunske v. Board of Tax Review, 6 Conn. App. 186, 503 A.2d 631 (1986); Gaming Systems Corporation v. Board of Tax Review, 4 Conn. App. 106, 492 A.2d 530 (1985).

       The trial court in Zodda cited Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 438 A.2d 782 (1981); Xerox Corporation v. Board of Tax Review, 175 Conn. 301, 397 A.2d 1367 (1978), and Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 291 A.2d 715 (1971). See footnote 3, supra.

       Practice Book § 142 provides: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. The motion shall be placed on the short calendar to be held not less that fifteen days following the filing of the motion, unless the court otherwise directs.”
      Practice Book § 144 provides: “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Secs. 112 and 113 and within the time provided by Sec. 142.”


author: Heiman, J.

text:
    A. V. Giordano Company, Inc. v. American Diamond Exchange, Inc.
    (11368)
    O’Connell, IIeiman and Freedman, Js.

      Argued March 31
    decision released May 4, 1993

      Tara L. Knight, for the appellant (defendant).

      Ronald F. Bozelko, for the appellee (plaintiff).
   Heiman, J.

The defendant appeals from the trial court’s granting of the plaintiff’s motion for summary judgment as to liability for services performed by the plaintiff and the subsequent award after a hearing in damages. On appeal, the defendant asserts that the court improperly awarded damages for the value of engineering services rendered when the complaint, on which summary judgment was granted, set forth a completely different basis for recovery and the evidence presented at the hearing in damages demonstrated that the services were rendered prior to the operative time alleged in the complaint. We affirm the judgment of the trial court.

The following facts are necessary for a proper resolution of this case. In paragraph 3 of its complaint, the plaintiff alleged that “[i]n or about December, 1989, plaintiff rendered architectural services to defendant.” (Emphasis added.) The plaintiff also alleged that invoices that were unpaid after thirty days were subject to interest at 18 percent per annum and that the purchaser, here the defendant, would be responsible for all costs of collection. The plaintiff further asserted that the principal, interest and collection costs were unpaid and sought money damages.

In its answer, the defendant admitted the allegations contained in paragraph 3 of the complaint.

The plaintiff filed a motion seeking summary judgment as to liability only. In its supporting affidavit, the plaintiff asserted that “[i]n or about December, 1989, plaintiff rendered engineering services to defendant.” (Emphasis added.) The affidavit also asserted that the invoices stated that unpaid accounts were subject to interest at 18 percent per annum, costs of collection and reasonable attorney’s fees and that the accounts had not been paid. The affidavit also set forth the total damages and costs allegedly owed to the plaintiff.

The defendant objected to the motion for summary judgment as to liability only. In its accompanying affidavit, the defendant, through its president, claimed the following: “3. On or about May 27, 1989, the Defendant contacted the Plaintiff to do some site and investigation work for the Defendant’s business, American Diamond Exchange, Inc. 4. The Defendant to date has never signed a Contract for this work. 5. The Plaintiff has produced no supporting documentation for work allegedly performed. 6. The Defendant has hired the Plaintiff to do similar work in the past, and the amounts charged for the most recent work are excessive and unfair.”

The court granted the plaintiff’s motion for summary judgment as to the defendant’s liability only. At a hearing in damages before a state trial referee, the plaintiff introduced testimony and an exhibit detailing the engineering services rendered and the value of those services. The defendant introduced an exhibit consisting of an hourly workup and the dates between May 27, 1989, and November 15, 1989, that the services were rendered. After the hearing in damages, the court awarded $6500.13 as damages, plus costs taxed at $152.60. This appeal ensued.

The defendant asserts that the state trial referee improperly awarded damages for the value of engineering services when the complaint, on which summary judgment was granted, set forth a different basis for recovery and the evidence presented at the hearing in damages demonstrated that the services were rendered prior to the operative time alleged in the complaint. The defendant’s claim is essentially that the pleadings and proof are at variance. In the defendant’s opinion, the variance between the complaint that alleged in its third paragraph that the plaintiff performed architectural services and the summary judgment affidavit that alleged in its third paragraph that the plaintiff performed engineering services is fatal. We disagree.

Our law provides that a plaintiff’s recovery is limited to the allegations made in its complaint. Tedesco v. Stamford, 215 Conn. 450, 458, 576 A.2d 1273 (1990); Sampiere v. Zaretsky, 26 Conn. App. 490, 492, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992). “A plaintiff may not allege one cause of action and recover upon another.” (Internal quotation marks omitted.) Sampiere v. Zaretsky, supra.

Our courts have followed a liberal policy in passing on claims of variance between pleadings and proof. Francis v. Hollauer, 1 Conn. App. 693, 696, 475 A.2d 326 (1984). “A variance is a departure of the proof from the facts as alleged. Not every variance, however, is a fatal one since immaterial variances are disregarded under our practice. Practice Book § [178] . . . .Only material variances, those which disclose a departure from the allegations in some matter essential to the charge or claim, warrant the reversal of a judgment.” (Internal quotation marks omitted.) Hillman v. Greenwich, 217 Conn. 520, 530-31, 587 A.2d 99 (1991); Strimiska v. Yates, 158 Conn. 179, 183, 257 A.2d 814 (1969).

To set aside a judgment on the basis of a variance between the pleadings and the proof, the variance must be material in a way that is essential to the cause of action claimed. Schaller v. Roadside Inn, Inc., 154 Conn. 61, 65, 221 A.2d 263 (1966). A variance is material if the defendant was prejudiced in maintaining a defense, surprised by the plaintiffs proof or misled by the allegations in the complaint. Strimiska v. Yates, supra, 184.

An immaterial variance is therefore one in which “the difference between the allegations and the proof is so slight and unimportant that the adverse party is not misled as to the charge he is required to meet or prejudiced in maintaining his defense on the merits of the case.” Strimiska v. Yates, supra; DiLieto v. Better Homes Insulation Co., 16 Conn. App. 100, 106, 546 A.2d 957 (1988). Our rules of practice provide that if a variance is immaterial, it “shall be wholly disregarded.” Practice Book § 178. An otherwise valid judgment will thus not be invalidated if a variance does not change the theory of the cause of action and if the party complaining of the variance was, at all times, in a position to know the true state of the facts. Strimiska v. Yates, supra; DiLieto v. Better Homes Insulation Co., supra.

The variance between the complaint that alleged the performance of architectural services and the affidavit that accompanied the summary judgment motion for liability only and alleged the performance of engineering services is immaterial. In its answer to the complaint, the defendant admitted that the plaintiff performed services for it. It also did not contest, in its affidavit accompanying its motion in opposition to summary judgment as to liability only, either that services were performed or its liability for those services. In fact, the defendant contested only the reasonableness of the amount it owed for the services that the plaintiff performed. The affidavit alleged that “[t]he Defendant has hired the Plaintiff to do similar work in the past, and the amounts charged for the most recent work are excessive and unfair.” The defendant admitted its prior dealings with the plaintiff and use of its services. It did not demonstrate that it was prejudiced in maintaining its defense, that it was surprised by the plaintiffs proof, or that it was misled by the allegations in the complaint. See Hillman v. Greenwich, supra, 531. “Justice is not served by accepting a claim of variance from a party who at all times has been in a position of knowing the true state of facts.” Schaller v. Roadside Inn, Inc., supra, 67. Similarly, the variance between the use of the phrase “in or about December, 1989,” and the actual dates of service is immaterial. The variances between the pleadings and proof were thus so slight that the defendant was not prejudiced in maintaining its defense, surprised by the plaintiffs proof or misled by the allegations in the complaint. Strimiska v. Yates, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court refused to order attorney’s fees because the invoice made no mention of them.

       We note, however, that under our liberal rules of pleading, the plaintiff could have avoided this appeal by filing an amended complaint prior to his motion for summary judgment as to liability only when it discovered that its pleading and proof were at odds; Practice Book §§ 175,176; or at any stage of the trial prior to judgment. See Practice Book § 178; see also Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 814 (1969). (“Whenever a disparity between the allegations and the evidence develops, counsel should move to amend the pleadings so that they conform with the evidence. Such an amendment would obviate the possibility of a judgment being reversed owing to the existence of a material variance.”)

       Practice Book § 178 provides: “In all cases of any material variance between the allegation and proof, an amendment may be permitted at any stage of the trial. If such an allegation was made without reasonable excuse, er if the adverse party was actually misled thereby to his prejudice in maintaining his action or defense upon the merits, or if such amendment requires postponement of the trial or additional expense to the adverse party and this is shown to the satisfaction of the court, such amendment shall be made only upon payment of costs or upon such terms as the court may deem proper; but in any other case, without costs. Immaterial variances shall be wholly disregarded. ” (Emphasis added.)

       We note that had the variance in this case been material, the question should have been raised when the evidence was presented, in this case in the objection to the motion for summary judgment as to liability only. See DiLieto v. Better Homes Insulation Co., 16 Conn. App. 100, 106, 546 A.2d 957 (1988). Since this was not done, “no opportunity was given to the plaintiff to make [its] pleading, if insufficient, conform to the proof. The entire evidence was received without any objection on the ground of variance between allegation and proof. . . . It is now too late to raise such a point on appeal.” Winsor v. Hawkins, 130 Conn. 669, 670, 37 A.2d 222 (1944); DiLieto v. Better Homes Insulation Co., supra. The defendant here attempted to raise the issue of the variance at the hearing in damages before the state trial referee. The state trial referee, however, correctly noted that the issue of liability for services rendered by the plaintiff had already been adjudicated.