author: BEACH, J.

text:
    STATE OF CONNECTICUT v. TYRONE BROWN
    (AC 31595)
    Gruendel, Beach and West, Js.

      Argued June 3
    officially released September 6, 2011

      G. Douglas Nash, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Marc R. Durso, assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Tyrone Brown, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (1) and operating a motor vehicle while having an elevated blood alcohol content in violation of General Statutes § 14-227a (a) (2). On appeal, the defendant claims that (1) the trial court erred by failing to sever the two counts of the information, (2) the court erred in admitting certain expert testimony that was cumulatively prejudicial, (3) the court abused its discretion when it excluded certain testimony of his wife pertaining to whether he was under the influence, (4) the court abused its discretion when it admitted certain evidence of the defendant’s refusal to answer questions from the police and (5) there was insufficient evidence to prove under count two of the information that he was operating a motor vehicle while having an elevated blood alcohol content. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to the defendant’s appeal. In the early morning hours of April 9, 2008, Jeffrey Morgan, a state police trooper, was traveling northbound on Interstate 95 when he heard over his radio a report that a slow moving vehicle was being driven erratically in the area of exit twenty-one. Morgan proceeded to that exit and observed a vehicle traveling at approximately thirty miles per hour. The posted speed limit was fifty-five miles per hour. Morgan followed the vehicle and further observed it swerve three times to the right, almost striking a guardrail.

Morgan effectuated a traffic stop at approximately 1:22 a.m. by turning on his vehicle’s lights and siren and then, when the defendant did not stop his vehicle, by driving to the left of the vehicle. After finally successfully stopping the vehicle, he asked the defendant for his license and registration. The defendant informed Morgan that he did not have his license on his person but provided his license number from memory. Morgan noticed that the defendant’s eyes were bloodshot and watery, his speech was slurred and an odor of alcohol emanated from his person and breath. Morgan further observed in the center console of the vehicle a plastic cup containing a tan liquid. When asked about the cup, the defendant did not answer. After asking the defendant to step out of the vehicle, Morgan administered three field sobriety tests. Morgan then arrested the defendant for operating under the influence and then transported him to the state police barracks in Bridgeport.

At the barracks, the defendant was read his Miranda rights and agreed to take two breath tests using an Intoxilyzer 5000. The first test was conducted at 2:24 a.m. and resulted in a blood alcohol content reading of 0.188 percent. The second test was conducted at 2:59 a.m. and measured a blood alcohol content reading of 0.144 percent.

Thereafter, the state charged the defendant with illegal operation of a motor vehicle while under the influence of intoxicating liquor, failure to drive in the proper lane and failure to carry an operator’s license. A part B information charged the defendant with being a second offender under § 14-227a (g) (2). The state then filed a two count substitute information charging the defendant with violations of § 14-227a (a) (1) and (2), known, respectively, as the behavioral offense and the per se offense. On June 5, 2009, the jury returned a verdict of guilty -with respect to both counts. The defendant then entered a plea of nolo contendere to the subsequent offender charge. The court merged the conviction on the two counts in the first part of the substitute information, and, on August 28, 2009, sentenced the defendant to two years incarceration, execution suspended after seven months, of which 120 days was mandatory. The defendant also received three years probation and was required to pay a $1000 fine. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that he was prejudiced by the court’s failure to sever the behavioral and per se offenses. His claim is not properly preserved. “[It is a] fundamental principle that, if the defendant deems an action of the trial court necessary to the fairness of his trial, he has a responsibility to present such a claim clearly to the trial court so that the trial court may consider it and, if it is meritorious, take appropriate action. That is the basis for the requirement that ordinarily a defendant must raise in the trial court the issues that he intends to raise on appeal.” (Internal quotation marks omitted.) State v. Berube, 256 Conn. 742, 747, 775 A.2d 966 (2001). Here, the defendant did not seek severance and accordingly has not preserved his ability to raise this claim before this court.

n

The defendant also claims that he was prejudiced by expert testimony that was presented at trial. Specifically, he argues that the cumulative effect of the expert testimony that was admitted regarding the amount of alcohol in his blood was prejudicial. He relies on § 14-227a (c), which requires that in prosecutions under (a) (1), the behavioral violation, “evidence respecting the amount of alcohol in the defendant’s blood or urine at the time of the alleged offense . . . shall be admissible only at the request of the defendant.” General Statutes § 14-227a (c). We decline to review the defendant’s claim.

The following additional facts and procedural history are relevant. On January 24, 2009, the defendant filed a motion in limine seeking to preclude any testimony of Robert Powers, a toxicologist who testified for the state, about the number of alcoholic drinks that the defendant would have needed to consume to reach the blood alcohol readings on the Intoxilyzer 5000 and the observable signs of intoxication that one with the registered blood alcohol levels would exhibit, including the effects of those levels of blood alcohol on the ability to operate a motor vehicle. The defendant claimed that admitting this evidence would violate § 14-227a (c). On June 1, 2009, the court denied the motion with respect to testimony about the number of drinks and observable signs of intoxication. It granted the defendant’s motion in that the court indicated that it would give the jury a limiting instruction restricting the admissibility of the Intoxilyzer results to only the charge under § 14-227a (a) (2) and not (a) (1). The court noted on the record that the defendant had said that what “he really wanted [was] a limiting instruction to the jury, should, that— the test results come in, that they only come in for purposes of their determination as to count two . . . .” At trial, the court issued a limiting instruction to this effect three times: prior to Powers’ testimony regarding the Intoxilyzer results, prior to cross-examination of Powers and in its final charge to the jury.

The defendant concedes that each subject of Powers’ testimony was individually admissible, but he claims that the cumulative prejudicial effect requires reversal. We first consider whether, as the state claims, the defendant did not properly preserve this claim. The defendant argues that his claim is preserved by his motion in limine, or, alternatively, that reversal is required by the plain error doctrine. The motion in limine did not preserve this claim. The defendant told the court that he was seeking a limiting instruction with respect to the Intoxilyzer results, and the court granted this request. During trial, the defendant did not object to questioning regarding any of the issues he raised in his motion in limine.

Further, the defendant has waived his claim objecting to the limiting instruction as being insufficiently detailed. Waiver is the “intentional relinquishment or abandonment of a known right . . . .” (Internal quotation marks omitted.) State v. Kitchens, 299 Conn. 447, 474, 10 A.3d 942 (2011). Our Supreme Court has held: “[W]hen the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.” Id., 482-83.

Here, the defendant reportedly submitted proposed jury instructions. The court provided counsel with copies of its proposed instructions to the jury and conducted a page-by-page inquiry regarding any objections to the instructions. The court explicitly stated during this review: “[B]e mindful that the new page twenty-eight has the—with regard to this count, you may not consider any testimony or evidence relating to Intoxilyzer results.” The defendant did not object, and the court gave this instruction verbatim to the jury. Accordingly, the defendant has waived this claim. See State v. Kitchens, supra, 299 Conn. 474.

Ill

The defendant also claims that the court erred in excluding testimony from his wife, Carol Brown, regarding whether he was under the influence when she met Mm at the police barracks in order to drive him home. We disagree.

The following additional facts are relevant. At trial, defense witness Carol Brown testified on direct examination that the defendant sometimes did not stay m Ms lane wMle drivmg and that he had a tendency to listen to the radio. During cross-examination, the state elicited testimony that Carol Brown was asleep during the mght of April 9, 2008, at the time the defendant was stopped by the police. On redirect examination, she testified that wMle she was asleep in her bed, she was awakened by a telephone call from the defendant asking her to pick him up at the barracks. Defense counsel then asked Brown on redirect examination: “When you picked him up, was he under the influence?” The state objected, and defense counsel replied: “Lay opimon, Your Honor.” The court sustained the objection without explanation. The defendant did not rephrase the question or make an offer of proof.

“The appropriate standard of review m cases concerning the admissibility of evidence is limited to whether the trial court abused its discretion. ... It is generally accepted that a trial court has broad discretion in ruling on the admissibility of evidence and appellate courts will ordinarily not disturb a trial court’s rulmg on admissibility of evidence unless a clear abuse of discretion is shown. . . . Every reasonable presumption should be given in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. Reversal is required only when an injustice appears to have occurred.” (Mtemal quotation marks omitted.) State v. Wright, 58 Conn. App. 136, 148, 752 A.2d 1147, cert. denied, 254 Conn. 907, 755 A.2d 884 (2000).

The defendant argues that Carol Brown’s testimony should have been admitted as lay opinion. In order for testimony to be admissible, it must be relevant. Relevant evidence is “evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more or less probable than it would be without the evidence.” Conn. Code Evid. § 4-1. Here, the court reasonably could have concluded that the testimony of the defendant’s wife was irrelevant. The defendant was arrested by Morgan at 1:22 a.m. The witness testified that she picked up the defendant “between two and three, I guess.” The second Intoxilyzer test, however, was reportedly administered at 2:59 a.m., and police provided the defendant with a copy of the results at 3:05 a.m. Therefore, it was reasonable for the court to deduce that the witness did not pick up the defendant until some time after 3 a.m.—approximately two hours after the defendant was arrested for operating a motor vehicle under the influence. The court reasonably could have concluded, on the minimal record presented, that an opinion about whether the defendant was “under the influence” at this time was not relevant to whether he was “under the influence” at the time of his arrest. Accordingly, we conclude that the court did not abuse its discretion by excluding Carol Brown’s testimony regarding whether the defendant appeared to be under the influence.

IV

The defendant next claims that his due process rights were violated by the admission into evidence of his refusal to answer certain questions by Morgan after his Miranda rights were given. We disagree.

The following additional facts and procedural history are relevant. On January 26, 2009, the defendant filed a motion in limine to prohibit the admission of a motor vehicle supplemental report, known as the A44, into evidence. He alleged that the introduction of the report would violate his constitutional right against self-incrimination pursuant to Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), because it reflected that the defendant refused to answer certain questions after having been informed of his Miranda rights. The form specified that the defendant declined to answer how much he had drunk, where he had drunk, and when he last had eaten and what he had eaten. The court denied the motion on June 1, 2009, and the issue was reserved for resolution at trial.

At trial, outside the presence of the jury, the state conducted an offer of proof through Morgan regarding the A44 form. The defendant objected to its admission on the grounds of lack of foundation, that it violated his right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and that it constituted hearsay. The court admitted the record, and the defendant has not claimed on appeal that this ruling was erroneous.

During cross-examination of Morgan by the defendant, after the A44 form was in evidence, the following exchange occurred:

“Q. Would you characterize [the defendant] that evening as being cooperative with you?
“A. Yes, he was—
“Q. Okay.
“A. —cooperative.
“Q. Did he obey your instructions?
“A. Yes, he did.
“Q. He wasn’t combative with you, was he?
“A. No, sir.
“Q. He did what he was told?
“A. Yes, sir.”

The defendant also asked Morgan whether he “asked [the defendant] a whole bunch of questions” and proceeded to list several of the questions on the A44 form. On redirect examination, the state asked: “Now, on April 9, 2008—if I may have a moment, did you ask the defendant with regards to this form how much he had to drink?” After responding that he did and being asked what the defendant’s reply was, Morgan testified that the defendant refused to answer. The defendant objected on the ground of Doyle v. Ohio, supra, 426 U.S. 610, and the state responded that the line of questioning had been opened by the defendant. The court agreed and overruled the objection.

“Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Raynor, 84 Conn. App. 749, 766, 854 A.2d 1133, cert. denied, 271 Conn. 935, 861 A.2d 511 (2004). In the Doyle context, a defendant does not have the right to be “ ‘selectively silent’ ” after he receives Miranda warnings. State v. Talton, 197 Conn. 280, 295, 497 A.2d 35 (1985).

“The basic purpose of redirect examination is to enable a witness to explain and clarify relevant matters in his testimony which have been weakened or obscured by his cross-examination. . . . The scope of redirect examination, however, is limited by the subject matter of cross-examination. . . . Furthermore, [t]he extent and scope of redirect examination . . . may be limited within the discretion of the trial judge.” (Internal quotation marks omitted.) Corriveau v. Corriveau, 126 Conn. App. 231, 237, 11 A.3d 176, cert. denied, 300 Conn. 940, 17 A.3d 476 (2011).

In the present case, by asking on cross-examination whether the defendant was cooperative with Morgan, the defendant opened the door to the state’s follow-up question on redirect. Therefore, the defendant, attempting to show that he had been cooperative and obedient, allowed the state to introduce evidence of his unresponsive answers on the A44 form. The defendant cannot reap the benefits of inquiry into one subject and expect the state’s questioning within the same scope to be held impermissible. Accordingly, we find no abuse of discretion in the court’s ruling that the state’s inquiry into the defendant’s refusal to answer certain questions on the A44 form was proper.

V

The defendant finally claims that the evidence adduced at trial was insufficient to prove that he was guilty of operating a motor vehicle with an elevated blood alcohol content under § 14-227a (a) (2). In view of the foregoing analysis, we do not reach the merits of this claim. A finding of guilt under either § 14-227a (a) (1) or (2) is sufficient to sustain the conviction, and here, the jury returned a guilty verdict on both counts. Because we have concluded that the court did not err in its rulings that the defendant challenged, we do not address his insufficiency claim. This court reached a procedurally similar conclusion in State v. Hood, 106 Conn. App. 189,198-99, 941 A.2d 955 (refusing to reach defendant’s challenge to denial of his motion for judgment of acquittal of having violated § 14-227a [a] [1] after upholding evidentiary rulings regarding conviction under § 14-227a [a] [2]), cert. denied, 286 Conn. 921, 949 A.2d 481 (2008).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content. For the purposes of this section, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight . . . .”

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant also claims that the court committed plain error. “As we often have stated, [p]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) Abdullah v. Commissioner of Correction, 123 Conn. App. 197, 210, 1 A.3d 1102, cert. denied, 298 Conn. 930, 5 A.3d 488 (2010). This claim does not present the “ ‘truly extraordinary [situation]’ ” that will result in a “ ‘manifest injustice’ ” such that public confidence in the justice system will be diminished, particularly when a motion for severance was never raised before the court. Id.

       The motion erroneously refers to § 14-227a (d), but the quoted language makes clear that the defendant relied on § 14-227a (c).

       Apparently, the issue had been discussed in chambers.

       The defendant mentions our supervisory powers in his brief in the title of one of the sections on this claim but does not further invoke this claim. Therefore, we do not address it because it is inadequately briefed.

       There are essentially three ways in which Powers’ testimony could be challenged by the defendant. He could claim that the evidence was inadmissible, but here, he failed to object at trial. Second, the defendant could, and does, challenge the sufficiency of the limiting instruction. This fails for the reasons discussed. Finally, the defendant could, and does, argue that the counts should have been severed. As discussed previously; see part I of this opinion; the defendant never moved to sever. Thus, this claim is not preserved.

       The defendant’s request to charge cannot presently be found in the court file, but reference to the request appears in the record.

       The defendant also claims that the court committed plain error. Plain error review is inappropriate in the circumstances of this case. See Abdullah v. Commissioner of Correction, 123 Conn. App. 197, 210, 1 A.3d 1102, cert. denied, 298 Conn. 930, 5 A.3d 488 (2010). “[I]n the absence of an indication to the contrary, the jury is presumed to have followed [the trial court’s] curative instructions.” (Internal quotation marks omitted.) State v. Longo, 106 Conn. App. 701, 710, 943 A.2d 488 (2008). We previously have upheld jury instructions concerning the inadmissibility of chemical evidence with regard to § 14-227a (a) (1) in a trial involving both subdivisions of § 14-227a (a). See State v. Gracia, 51 Conn. App. 4, 14-15, 719 A.2d 1196 (1998). Accordingly, the defendant’s argument lacks merit.

       Though a lay witness may, as a general proposition, testily as to whether someone appeared inebriated; see State v. DiLoreto, 88 Conn. App. 393, 397, 870 A.2d 1095 (2005); the more technical issue of whether a person is “under the influence” may present a more problematic issue, which we need not resolve here.

       The defendant’s argument assumes that Carol Brown’s answer would have been negative. A positive answer presumably would have been relevant. But because the defendant did not make an offer of proof, there is no indication as to what the witness’ answer would have been to the question: “When you picked him up, was he under the influence?” Also, the defendant claims that his sixth amendment right to present a defense was violated by the exclusion of the witness’ testimony. Evidence introduced at trial, however, must still conform to the rules of evidence in order to be admissible, and the defendant’s evidence here failed to do so. Therefore, his constitutional claim lacks merit.

        Doyle v. Ohio, supra, 426 U.S. 610, provides that no unfavorable inference may constitutionally be drawn from the silence of an accused after he has been advised of his right to remain silent.

       Although the defendant has cast his argument in terms of Doyle v. Ohio, supra, 426 U.S. 610, Doyle is not directly applicable. This case is governed by State v. Talton, supra, 197 Conn. 292-96, in which our Supreme Court held that Doyle is not implicated when an accused, having been advised of his right to remain silent, nevertheless answers a number of questions but selectively declines to answer several others, especially where the declination does not invoke a right to remain silent. As in Taitón, we need not “decide the boundaries of intermittent assertion of the right to remain silent . . . .” Id., 295.

       The defendant claims that in light of both experts’ testimony at trial, the Intoxilyzer results are unreliable. We do not address this assertion because we do not reach his insufficiency claim. Further, the limiting instruction given by the court restricted the consideration of the Intoxilyzer results to § 14-227a (a) (2) only, and, accordingly, any alleged unreliability would not have affected the conviction under § 14-227a (a) (1).


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    STEPHEN R. FERRUCCI III v. TOWN OF MIDDLEBURY ET AL.
    (AC 32271)
    Gruendel, Lavine and Bear, Js.

      Argued May 26
    officially released September 6, 2011

      Thomas G. Moukawsher, for the appellant (plaintiff).

      Nicole D. Dorman, for the appellee (named defendant).
   Opinion

GRUENDEL, J.

This appeal concerns the proper interpretation of a municipal retirement plan. The plaintiff, Stephen R. Ferrucci III, appeals from the summary judgment rendered by the trial court in favor of the defendant, the town of Middlebury. He claims that the court improperly concluded that no genuine issue of material fact existed as to (1) his eligibility for a “normal retirement” benefit pursuant to the provisions of the defendant’s retirement plan (plan) and (2) his claim of promissory estoppel. We affirm the judgment of the trial court.

The record, viewed in the light most favorable to the plaintiff; see Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009); reveals the following facts. The plaintiff was bom on November 2, 1949, and was hired by the defendant as a full-time police officer on December 1, 1974. He was a member of a bargaining unit comprised of police officers that negotiated a series of collective bargaining agreements with the defendant, including one effective July 1, 1988, to June 30, 1990. That agreement required, inter alia, the defendant to “maintain in effect for the duration of this [agreement the [plan] dated July 1, 1967, as amended on February 14, 1973.”

The plaintiff retired as a full-time police officer at the age of thirty-eight on October 24,1988. At that time, he had attained almost fourteen years of credited service with the defendant. In his deposition testimony, which was submitted in support of the defendant’s motion for summary judgment, the plaintiff averred that he “left that job [with the defendant] for ... a better working schedule” and further that he had secured a position with “Local 760 of the . . . Service Employees International Union,” with whom he subsequently worked for more than two decades.

Seven years after terminating his employment with the defendant, the plaintiff contacted the defendant’s finance director seeking information about his retirement benefit under the plan. The finance director, in turn, contacted the plan’s actuary, who, in a letter dated December 4, 1995, calculated that the plaintiff would become eligible for a monthly benefit of $658.89 pursuant to the normal retirement provisions of the plan beginning December 1, 2004. Once informed of that calculation, the plaintiff met with a financial advisor, modified certain contributions to a variable annuity contract and made plans to retire from his current employment at a date certain.

In 2002, the defendant’s retirement committee consulted with the plan’s actuary. In response, the actuary prepared a December 12, 2002 letter, a copy of which was provided to the plaintiff, which stated that the plaintiff would not be entitled to a monthly benefit pursuant to the normal retirement provisions of the plan on December 1, 2004. Rather, it stated that the plaintiff could receive a reduced monthly benefit of $263.56 pursuant to the early retirement provisions of the plan on that date and would qualify for the $658.89 normal retirement benefit on December 1, 2014. On October 15, 2004, the plaintiff agreed to receive the reduced benefit while reserving his right to contest the denial of the normal retirement benefit.

The plaintiff commenced the present litigation in 2006. His March 21, 2007 amended complaint contained two counts against the defendant alleging breach of contract and promissory estoppel. On June 8, 2009, the defendant filed a motion for summary judgment, to which it attached in support thereof a copy of the plan and portions of the plaintiff’s deposition testimony. See Practice Book § 17-45. Following argument thereon, the court rendered summary judgment in the defendant’s favor, and this appeal followed.

Before considering the precise claims presented on appeal, we note the well established standard of review. “Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact. . . . Our review of the trial court’s decision to grant a motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Weiner v. Clinton, 106 Conn. App. 379, 382-83, 942 A.2d 469 (2008).

I

The plaintiff first contends that the court improperly concluded that no genuine issue of material fact existed as to his eligibility for a normal retirement benefit under the plan. We disagree.

Resolution of the plaintiffs claim involves interpretation of the plan. “It is axiomatic that a collective bargaining agreement is a contract .’’D’Agostino v. Housing Authority, 95 Conn. App. 834, 838, 898 A.2d 228, cert. denied, 280 Conn. 905, 907 A.2d 88 (2006); see also O’Connorv. Waterbury, 286 Conn. 732, 743-49, 945 A.2d 936 (2008) (interpreting collective bargaining agreement under contract law principles). Similarly, our Supreme Court has held that statements contained in a written retirement plan give rise to an employer-employee contract. See Dolak v. Sullivan, 145 Conn. 497, 503, 144 A.2d 312 (1958).

“The law governing the construction of contracts is well settled. When a party asserts a claim, that challenges the . . . construction of a contract, we must first ascertain whether the relevant language in the agreement is ambiguous. ... A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself. . . . Accordingly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . . When the language of a contract is ambiguous, the determination of the parties’ intent is a question of fact. ... If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . .” (Citation omitted; internal quotation marks omitted.) O’Connor v. Waterbury, supra, 286 Conn. 743-44.

The plan specifies four kinds of retirement: normal retirement, early retirement, automatic retirement and disability retirement. The plaintiff concedes that he is not eligible for either an automatic retirement or a disability retirement. Accordingly, the salient inquiry is whether he qualifies for a normal requirement or early retirement under the plan.

As a preliminary matter, Article II of the plan sets forth various definitions to be used therein. In Article II, § 20, “normal retirement date” is defined in relevant part as follows: “[T]he ‘Normal Retirement Date’ of a policeman means the first day of the month coincident with or next following the later of (l) the date on which he completes twenty-five (25) years of Credited Service or (ii) the date on which he attains age fifty-five (55), but in no event later than (iii) his sixty-fifth (65th) birthday.” (Emphasis added.) The term “normal retirement date” is used in both the normal retirement and early retirement sections of the plan.

The requirements for a normal retirement are set forth in Article V, § 1, of the plan. That section provides in relevant part that “[a]ny [m] ember who on or after the [effective [d]ate (i) shall attain his [n]ormal [retirement [d]ate, (ii) shall have completed at least ten (10) years of [credited [s]ervice and (iii) shall thereafter retire, shall be entitled to receive a monthly normal retirement benefit upon application therefor. . . . Such monthly normal retirement benefit shall be equal to 11/2 [percent] of the [m] ember’s [a]verage [m]onthly [s] alary, multiplied by his years and tenths-of-a-year of [credited [s]ervice, not in excess of thirty (30) years.”

The requirements for an early retirement are set forth in Article V, § 2, of the plan, which provides in relevant part that “[o]n or after the [effective [d]ate, any [m] ember whose employment with the [defendant] terminates prior to his [n]ormal [retirement [d]ate, and who has attained age fifty-five (55) and who has ten (10) or more years of [c]redited [s]ervice may retire .... A member so retired will receive, upon application therefor, a benefit commencing at time of early retirement computed in accordance with [s]ection 1 of this Article V on the basis of his [credited [s]ervice and [a]verage [m]onthly [s] alary at the time of early retirement, but reduced by 1/2 of 1 percent for each complete calendar month by which the date of commencement of such [m]ember’s early retirement benefit precedes his [n]ormal [retirement [d]ate.”

The plaintiffs claim before the trial court, which he renews on appeal, centers on his reading of the definition of normal retirement date contained in Article II, § 20. As he states in his appellate brief, the plaintiff “believed [the definition] meant that normal retirement could happen once a police officer had either [twenty-five] years of service or had reached age [fifty-five]. He believed that for a police officer who leaves after [fourteen] years of service the later date is the date he turns [fifty-five].” For two distinct reasons, the plaintiff is mistaken.

First and foremost, we are mindful that “a contract’s meaning is contextual.” Honulik v. Greenwich, 290 Conn. 421, 453, 963 A.2d 979 (2009); see Levine v. Advest, Inc., 244 Conn. 732, 753, 714 A.2d 649 (1998) (“[t]he individual clauses of a contract . . . cannot be construed by taking them out of context and giving them an interpretation apart from the contract of which they are a part”). Thus, the definition of normal retirement date contained in Article II, § 20, of the plan must be read in context of the provisions delineating what constitutes a normal retirement under Article V, § 1. To secure a normal retirement thereunder, an employee must “attain his normal retirement date” as a condition precedent to his retirement. As Article V, § 1, provides in relevant part: “Any [m] ember who on or after the [e]ffective [d]ate (i) shall attain his [n]ormal [retirement [d]ate . . . and (Hi) shall thereafter retire, shall be entitled to receive a monthly normal retirement benefit upon application therefor. . . .” (Emphasis added.) In the present case, assuming arguendo that the plaintiff is correct that he merely had to attain the age of fifty-five to meet the definition of normal retirement date, his claim nevertheless fails because he did not thereafter retire. Rather, he retired more than sixteen years prior to reaching that milestone. Put simply, the plaintiffs interpretation—that he is free to retire at the age of thirty-eight, reach the age of fifty-five some sixteen years later, and still qualify for a normal retirement benefit—cannot be reconciled with the plain and unambiguous language of Article V, § 1, of the plan.

Apart from that shortcoming, the plaintiffs claim suffers an additional infirmity. “[I]n construing contracts, we give effect to all the language included therein, as the law of contract interpretation . . . militates against interpreting a contract in a way that renders a provision superfluous.” (Internal quotation marks omitted.) Connecticut National Bank v. Rehab Associates, 300 Conn. 314, 322, 12 A.3d 995 (2011). The plaintiff argues that the definition of normal retirement date contained in Article II, § 20, indicates that the normal retirement date of a police officer occurs on either (1) the date on which he completes twenty-five years of credited service or (2) the date on which he attains age fifty-five. His interpretation renders meaningless the critical prefatory language in Article II, § 20, specifying that the normal retirement date of a police officer occurs “following the later of’ those two milestones. In the present case, the plaintiff retired in 1988. At that time, he was thirty-eight years old and had accumulated approximately fourteen years of credited service. Accordingly, when he turned fifty-five in 2004, that milestone was not “the later of’ the two specified milestones contained in Article II, § 20, because he, at that time, had not yet accumulated twenty-five years of service. If, instead of retiring in 1988, the plaintiff had continued working as a full-time police officer for the defendant until 2004, he would have attained twenty-five years of service in 1999, and, thus, when he reached age fifty-five in 2004, that age milestone would qualify as “the later of’ the two milestones set forth in Article II, § 20. Because he did not attain twenty-five years of service, his turning age fifty-five being “the later of’ the two milestones is a legal impossibility.

In sum, under the plain and unambiguous terms of the plan, to be eligible for a normal retirement, the plaintiff had to “attain his [n]ormal [Retirement [d]ate” and thereafter retire. It is undisputed that, at the time of his retirement in 1988, the plaintiff had not attained twenty-five years of service or the age of sixty-five. Rather, his employment with the defendant terminated prior to his normal retirement date, thus qualifying him for an early retirement pursuant to Article V, § 2, of the plan. We therefore conclude that the court properly determined that no genuine issue of material fact exists as to his eligibility for a normal retirement benefit under the plan.

II

The plaintiff also argues that the court improperly concluded that no genuine issue of material fact existed as to his claim of promissory estoppel. In response, the defendant maintains that the court properly determined that the claim was barred by the doctrine set forth in Fennell v. Hartford, 238 Conn. 809, 681 A.2d 934 (1996). We agree with the defendant.

Accordingly, our analysis begins with a review of that doctrine. In Fennell, our Supreme Court rejected a claim that a representation contained in a pension manual that was not “executed in compliance with mandatory conditions prescribed in the [city] charter or statutes”; (internal quotation marks omitted) id., 819; nevertheless gave rise to an implied contract that conferred additional retirement benefits to the municipal employee plaintiffs. Id., 826-27. The court began its analysis “with a review of several general principles regarding municipal charters and municipal corporations and their employees. It has been well established that a city’s charter is the fountainhead of municipal powers .... The charter serves as an enabling act, both creating power and prescribing the form in which it must be exercised. . . . Agents of a city . . . have no source of authority beyond the charter. ... In construing a city charter, the rules of statutory construction generally apply. . . .

“The officer, body or board duly authorized must act [on] behalf of the municipality, otherwise a valid contract cannot be created. Generally the power to make contracts on behalf of the municipality rests in the council or governing body .... Generally, no officer or board, other than the common council, has power to bind the municipal corporation by contract, unless duly empowered by statute, the charter, or authority conferred by the common council, where the latter may so delegate its powers .... It follows that agents of a city, including its commissions, have no source of authority beyond the charter. [T]heir powers are measured and limited by the express language in which authority is given or by the implication necessary to enable them to perform some duty cast upon them by express language. . . . [A]ll who contract with a municipal corporation are charged with notice of the extent of . . . the powers of municipal officers and agents with whom they contract, and hence it follows that if the . . . agent had in fact no power to bind the municipality, there is no liability on the express contract .... Thus, every person who deals with [a municipal corporation] is bound to know the extent of its authority and the limitations of its powers.” (Citations omitted; internal quotation marks omitted.) Id., 813-14.

In addressing the precise claim presented by the municipal employee plaintiffs, our Supreme Court noted that “[c]ourts have consistently refused to give effect to government-fostered expectations that, had they arisen in the private sector, might well have formed the basis for a contract or an estoppel. . . . We believe that implied contract claims in the public sector, based upon pension or employee manuals, would only invite endless litigation over both real and imagined claims of misinformation by disgruntled citizens [and employees], imposing an unpredictable drain on the public fisc. . . .

“On the basis of the above considerations, we cannot superimpose implied contract principles upon the terms of the plaintiffs’ pension based upon a representation in a pension manual. We conclude, as a matter of law, that the pension manual created and distributed by the commission could not confer any additional benefits not provided for by the city’s charter. . . .

“[T]he charter provides that [ejxcept as otherwise provided in this charter all powers vested in the city shall be exercised by the court of common council .... Hartford Charter, c. II, § 8. Pursuant to General Statutes § 7-450, an enabling statute, the Hartford city council adopted chapter XVII, § 3, of the Hartford charter, which created the municipal employees’ retirement fund. Pursuant to the charter and the statute, the power to amend the city’s municipal employees’ retirement fund rests solely with the city council.

“In order for additional retirement or pension benefits to be conferred on the plaintiffs and other city employees, the city council must adopt ordinances in compliance with the statutory and charter mandates. . . . The plaintiffs concede that this was not done. If additional benefits were allowed to be conferred in any other manner, the actions of the [pension] commission would impinge on the city council’s legislative prerogative to oversee the maintenance of the city’s municipal employees’ retirement fund. ... In sum, the commission was without authority to confer additional benefits through the pension manual.” (Citations omitted; internal quotation marks omitted.) Id., 816-18. The court concluded its analysis by declaring that “no ratification or estoppel can make lawful a municipal contract which is beyond the scope of the corporate powers, or which is not executed in compliance with mandatory conditions prescribed in the charter or statutes . . . .” (Internal quotation marks omitted.) Id., 818-19.

This court subsequently rejected an attempt to limit the scope of the doctrine articulated in Fennell, concluding that the doctrine is not “limited to claims of implied contract that are based on pension or employee manuals.” Biello v. Watertown, 109 Conn. App. 572, 583, 953 A.2d 656, cert. denied, 289 Conn. 934, 958 A.2d 1244 (2008). In Biello, the plaintiff accepted the newly created position of assistant superintendent of the water and sewer authority following a restructuring of the public works department. Id., 574. At that time, “[t]he water and sewer authority recommended to the town council that the plaintiffs salary as assistant superintendent be set [at a certain amount] .... Although the town council approved the position of assistant superintendent, it declined to approve the salary recommended by the water and sewer authority. Instead, the town council approved a salary in the same amount that the plaintiff had been receiving in his former position as supervisor.” Id., 574-75. After the defendant municipality refused to pay him the salary recommended by the water and sewer authority, the plaintiff filed a complaint alleging breach of an implied contract, unjust enrichment, quantum meruit and breach of the implied covenant of good faith and fair dealing. Id., 576. On appeal, this court reasoned that, the plaintiffs contentions to the contrary, the Fennell doctrine “is dispositive of the plaintiffs claims.” Id., 582. “[T]he reasoning in Fennell applies under the circumstances of this case. The water and sewer authority simply had no authority to establish the plaintiffs salary. . . . [B]ecause the water and sewer authority lacked the authority to set the plaintiffs salary, and because the town council did not approve the suggested salary, the court properly determined that the plaintiff s wage claims were precluded under the theories of implied contract, unjust enrichment and quantum meruit.” Id., 582-83.

General Statutes (Rev. to 2001) § 7-450 provides in relevant part that “[a]ny municipality or subdivision thereof may, by ordinance establish pension and retirement systems for its officers and employees . . . The court found, and the plaintiff does not dispute, that “[i]n Middlebury, the town meeting, upon recommendation of the board of selectmen, has the sole authority to enact ordinances. See Middlebury Town Charter §§ 304D and 904G. Furthermore, there is no ordinance delegating [that] authority to amend the [plan] or otherwise to confer retirement benefits upon municipal employees or retirees.”

The plaintiffs claim of promissory estoppel rests on the representation made in the December 4,1995 letter by the plan’s actuary, which was shared with the plaintiff by the defendant’s finance director, calculating that the plaintiff would become eligible for a monthly benefit of $658.89 pursuant to the normal retirement provisions of the plan on December 1, 2004. That claim fails under the Fennell doctrine because neither the actuary nor the finance director possessed the authority to modify the terms of the plan.

Under Connecticut law, agents of a municipality “have no source of authority beyond the charter”; (internal quotation marks omitted) Fennell v. Hartford, supra, 238 Conn. 813; and “[a]ll who contract with a municipal corporation are charged with notice of the extent of . . . the powers of municipal officers and agents with whom they contract, and hence it follows that if the . . . agent had in fact no power to bind the municipality, there is no liability on the express contract .... Thus, every person who deals with [a municipal corporation or its agent] is bound to know the extent of its authority and the limitations of its powers.” (Citation omitted; internal quotation marks omitted.) Id., 814; see Keeney v. Old Saybrook, 237 Conn. 135, 149, 676 A.2d 795 (1996). As a result, the plaintiff is charged with notice that neither the actuary who prepared the December 4, 1995 letter nor the finance director who shared its contents had the authority to modify the terms of the plan.

Such notice undercuts the plaintiffs reliance on Chotkowski v. State, 240 Conn. 246, 268-69, 690 A. 2d 368 (1997), in which our Supreme Court noted that “estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency.” (Internal quotation marks omitted.) Because the court found, and the plaintiff on appeal does not contest, that neither the actuary nor the finance director possessed the authority to “confer eligibility for a [normal] retirement benefit upon the plaintiff,” it follows that the plaintiff was not induced by an agent having authority over such matters.

Perhaps unmindful of our decision in Biello, the plaintiff also argues that Fennell is distinguishable because it “was not a promissory estoppel case.” As already discussed, this court has held that the Fennell doctrine is not limited to claims of implied contract, but, rather, it also extends to other claims including unjust enrichment and quantum meruit. Biello v. Watertown, supra, 109 Conn. App. 583-84. Moreover, although the plaintiff pursued an implied contract claim in Fennell, the Supreme Court did not so confine its analysis in dismissing that claim. Instead, it recognized that “[c]ourts have consistently refused to give effect to government-fostered expectations that, had they arisen in the private sector, might well have formed the basis for a contract or an estoppel.” (Emphasis added; internal quotation marks omitted.) Fennell v. Hartford, supra, 238 Conn. 816. Likewise, the court concluded its analysis by noting that “no ratification or estoppel can make lawful a municipal contract which is beyond the scope of the corporate powers, or which is not executed in compliance with mandatory conditions prescribed in the charter or statutes . . . .” (Emphasis added; internal quotation marks omitted.) Id., 818-19. As in Biello, we conclude that the reasoning in Fennell applies under the circumstances of the present case.

Furthermore, the plaintiffs notice that neither the actuary nor the finance director had the authority to modify the terms of the plan renders his promissory estoppel claim untenable in a more basic sense. It is axiomatic that to maintain such a claim, it is not enough that a promise was made; reasonable reliance thereon, resulting in some detriment to the party claiming the estoppel, also is required. See, e.g., D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987) (“a promisor is not hable to a promisee who has relied on a promise if, judged by an objective standard, he had no reason to expect any reliance at all”); Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 205, 520 A.2d 208 (1987) (promissory estoppel requires reasonable reliance on the misleading conduct), overruled in part on other grounds by Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993); 1 Restatement (Second), Contracts § 90 (1) (1981) (“[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise”). Because the law charges the plaintiff with notice that neither the actuary nor the finance director had the authority to modify the terms of the plan, any reliance on the actuary’s December 4,1995 letter cannot be deemed reasonable.

Throughout the course of this litigation, it has been the plaintiffs steadfast position that he is entitled to a normal retirement benefit. In part I of this opinion, we concluded that the plain and unambiguous terms of the normal retirement provisions of the plan required the plaintiff to work for the defendant as a full-time police officer until he either (1) attained the age of fifty-five with twenty-five years of credited service, (2) attained twenty-five years of credited service sometime after turning fifty-five or (3) attained the age of sixty-five. He did not comply with those requirements. Accordingly, to survive the defendant’s motion for summary judgment, the plaintiff had to establish the existence of a genuine issue of material fact as to whether the actuary or the finance director was authorized under the town charter to modify the requirements for a normal retirement benefit under the plan. He failed to do so. We therefore conclude that the court properly rendered summary judgment in favor of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

      Also named as defendants in the plaintiffs original complaint were Michael W. Beldon, Edward G. Asselin and John Dibble. The court thereafter granted a motion to strike all counts against those individuals and rendered judgment in their favor when the plaintiff declined to replead. Accordingly, we refer to the town of Middlebury as the defendant in this appeal.

       Appended to the plaintiffs March 3,2010 memorandum of law in opposition to the defendant’s motion for summary judgment was the March 2, 2010 affidavit of the plaintiff. In that affidavit, the plaintiff avers in relevant part: “When I was deciding to retire from the [defendant] police department as a full time police officer in October, 1988 with about fourteen years of service, I asked the [finance director] how I could obtain the amount of my pension benefit should I retire and when I would start receiving a monthly benefit. . . . [The finance director] later called me and told me the answer to my question had been delivered to him by the actuary. I went to Town Hall and was given a letter by [the finance director] that was marked confidential. . . . The letter . . . informed me that my pension would be $658.89 per month starting the month I reached my fifty-fifth birthday. . . . My decision to retire from the [defendant’s] police department and to accept work in another field of work was based on the calculations I received in the letter given to me by [the finance director].” (Emphasis added.) Those statements contradict the plaintiffs deposition testimony, in which he acknowledges that he contacted the finance director in 1995, and received the actuary’s letter in December, 1995, seven years after his retirement, as well as the actuary’s letter itself, which the defendant submitted in support of its motion for summary judgment and which is dated December 4, 1995. In his appellate brief, the plaintiff likewise disavows the allegations contained in the aforementioned affidavit, stating in relevant part: “[The plaintiff] left the [police department] in 1988 at age thirty-eight. In 1995 while planning his own retirement . . . [h]e asked the [defendant] to confirm his benefits .... [The finance director] gave [him] a calculation showing that ... he would receive his normal retirement benefit of $658.89 at age fifty-five .... The document was prepared for [the defendant] by [the actuary].”

       Although not an issue in light of the plaintiffs election to receive a reduced benefit, as will be explained in part I of this opinion, the plain language of the plan precludes the plaintiff from receiving a normal retirement benefit in 2014, the actuary’s assessment notwithstanding.

         To be clear, under the plain terms of the plan, a full-time police officer with twenty-five years of credited service is eligible for a normal retirement, at the earliest, upon attaining age fifty-five. If that officer does not have twenty-five years of credited service when turning fifty-five, the eligibility requirements for a normal retirement set forth in the plan require him to work until (1) he attains twenty-five years of credited service sometime after turning fifty-five or (2) he attains age sixty-five.

       In opposing the defendant’s motion for summary judgment, the plaintiff neither argued nor provided documentary support indicating that the actuary or the finance director possessed the authority to modify the eligibility requirements for a normal retirement benefit under the plan.


text:
    DOMINIC CACIOPOLI v. JEFFREY LEBOWITZ
    (AC 32103)
    DiPentima, C. J., and Beach and SchaUer, Js.

      Argued May 26
    officially released September 6, 2011

      Frank B. Cochran, for the appellant (defendant).

      David S. Doyle, for the appellee (plaintiff).
   Opinion

BEACH, J.

The defendant, Jeffrey Lebowitz, appeals from the judgment of the trial court in favor of the plaintiff, Dominic Caciopoli, finding that the defendant had trespassed on the plaintiffs land and awarding damages. The defendant claims that the court erred by (1) improperly expanding the tort of trespass, (2) denying his motion for judgment, (3) denying his special defenses of waiver and equitable estoppel, (4) finding that the element of intent with respect to the tort of trespass was satisfied and (5) its award of damages. We affirm the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant. “The plaintiff . . . purchased real property located at 490 Three Comers Road in Guilford, Connecticut, in October, 1978. He chose this property because it was isolated and private. The plaintiffs property was surrounded by forest on all sides, except for the area of the lot through which his driveway passed. In May, 2005, the defendant . . . purchased property located at 480 Three Comers Road, which is adjacent to the property owned by the plaintiff. The property line between the two homes was unmarked. The plaintiffs home is more than 100 yards from the property line between the two lots, and the plaintiffs view of the home located at 480 Three Comers Road was obstructed.

“In August, 2005, the defendant hired Tanner’s Tree Service, LLC [(Tanner’s Tree Service)], to clear standing dead trees from the wooded area between the two homes. The defendant believed these dead trees were on his property because they were in a grassy area located between the two homes that had been maintained by the previous owners of 480 Three Comers Road. The defendant directed Tanner’s Tree Service to remove all dead timber, both standing and on the ground, to remove some small saplings and remove some larger trees to provide more sunlight and enlarge the areas surrounding his house.

“Prior to the commencement of this landscaping work, the defendant failed to determine the actual location of the property line between the two homes. He went to the plaintiffs home to speak with him regarding the property line, but was told to return when the plaintiff was home. He did not consult his warranty deed or documents available at the town hall. The defendant discovered a marker near the plaintiffs mailbox and incorrectly assumed this marked the property line. In actuality, the property line is twenty-five feet from the house. When the plaintiff learned of the removal of the trees, he went to the defendant’s home. The defendant understood that the plaintiff was irate and that the plaintiff pointed out the actual property line. The next day, Tanner’s Tree Service returned to complete the work on the plaintiffs property. The removal of the trees and brush left the plaintiff with an unobstructed view of the defendant’s house.

“On August 30, 2005, the plaintiff sent the defendant a letter, in which he suggested that the plaintiff and the defendant should jointly choose ‘reasonably mature evergreens’ and have them planted to recapture some of the lost privacy. In November, 2005, the defendant paid a nursery to plant three white pine trees on the plaintiffs property to obscure his view of the defendant’s home. These trees did little to create a sense of isolation and privacy that the plaintiff had prior to the defendant’s trespass.

“In the spring of 2007, the plaintiff had the property line marked. On May 30, 2007, the defendant sent the plaintiff a letter in which he admitted he was mistaken in assuming the location of the property line. On November 13, 2007, the defendant sent another letter to the plaintiff. In that letter, the defendant admitted that he had trees removed that were partly on the plaintiffs property. In the fall of 2007, the plaintiff undertook an extensive landscaping project in a failed attempt to restore his lost privacy. During that project, the trees purchased by the defendant were moved closer to the plaintiffs house.”

In 2008, the plaintiff commenced an action alleging trespass. The defendant filed an answer with special defenses. The plaintiff later filed an amended complaint adding a count seeking treble damages pursuant to General Statutes § 52-560. Following a trial to the court, the court in its memorandum of decision found that the plaintiff had proven the elements of an intentional trespass action. The court awarded the plaintiff $150,000 for the diminution in the value of his property caused by the defendant’s trespass, plus taxable costs. The court declined to award any damages for the value of timber removed. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court erred in that its damage award improperly expanded the tort of trespass. We disagree.

The court awarded the plaintiff compensatory damages in the amount of $150,000 for the diminution in the value of his property caused by the defendant’s trespass. The defendant argues that the damage award was improper. He argues that § 52-560 limits the scope of damages recoverable in timber trespass actions, and that diminution in value is not an appropriate measure of damages.

Section 52-560 provides in relevant part: “Any person who cuts, destroys or carries away any trees, timber or shrubbery, standing or lying on the land of another . . . without license of the owner . . . shall pay to the party injured . . . three times the reasonable value of any other tree, timber or shrubbeiy; but, when the court is satisfied that the defendant was guilty through mistake and believed that the tree, timber or shrubbery was growing on his land, or on the land of the person for whom he cut the tree, timber or shrubbery, it shall render judgment for no more than its reasonable value.”

Common law provides at least three remedies for intentional trespass in situations in which trees have been removed. In an action for timber trespass, “[i]t is an appropriate remedy either for the recovery of damages for the mere unlawful entry upon the plaintiffs land; for the recovery of the value of the trees removed, considered separately from the land; or for the recovery of damages to the land resulting from the special value of the trees as shade or ornamental trees while standing on the land. For a mere unlawful entry upon land nominal damages only would be awarded. If the purpose of the action is only to recover the value of the trees as chattels, after severance from the soil, the rule of damages is the market value of the trees for timber or fuel. For the injury resulting to the land from the destruction of trees which, as a part of the land, have a peculiar value as shade or ornamental trees, a different rule of damages obtains, namely, the reduction in the pecuniary value of the land occasioned by the act complained of.” Eldridge v. Gorman, 77 Conn. 699, 701, 60 A. 643 (1905). “This is the common-law rule. Under the facts as disclosed by this record, the proper measure of damages is either the market value of the tree, once it is severed from the soil, or the diminution in the market value of the plaintiffs’ real property caused by the cutting.” (Internal quotation marks omitted.) Canton Village Construction, Inc. v. Huntington, 8 Conn. App. 144, 147, 510 A.2d 1377 (1986). Cases subsequent to Eldridge which allowed for damages for diminution in market value, either in principle or in practice, include Canton Village Construction, Inc. v. Huntington, supra, 146-48, and Stanley v. Lincoln, 75 Conn. App. 781, 787, 818 A.2d 783 (2003) (“[t]he proper measure of damages, therefore, is either the market value of the trees, once they are severed from the soil, or the diminution in the market value of the real property caused by the cutting”). Of particular interest is the case of Palmieri v. Cirino, 90 Conn. App. 841,880 A.2d 172, cert. denied, 276 Conn. 927, 889 A.2d 817 (2005). In that case, damages were not allowed for the replacement cost of arborvitae trees, but this court recognized that damages for the diminution in value of the land may have been available. Id., 850-51.

Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 158-61, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006), raises but does not decide the issue of whether § 52-560 preempts common law. In that case, the cross claim plaintiffs alleged that the cross claim defendants intentionally trespassed on property and cut trees. Id., 158. The cross claim plaintiffs sought treble damages pursuant to § 52-560 based on the replacement cost of the cut trees. Id. No evidence was presented as to the value of the trees or the diminution in value of the land. Our Supreme Court questioned a statement in Stanley v. Lincoln, supra, 75 Conn. App. 788-89, that suggested that the statute provided for remedies other than the value of the trees, and clarified that “although damages for the reduction in pecuniary value of the land—determined by the replacement cost of the trees, if appropriate— were available under the common law, the plain language of § 52-560 authorizes treble damages only for the value of the trees as commodities, not for the reduction in the pecuniary value or for the replacement cost of the trees.” Ventres v. Goodspeed Airport, LLC, supra, 160. In a footnote, however, the Supreme Court stated that no party made a common-law claim in that case, so the court did not need to decide whether § 52-560 preempted the common-law cause of action. Id., 160 n.42.

In the present case, the plaintiff pleaded in his first count intentional trespass pursuant to common law. As noted previously, common law permits the remedy of diminution in value for intentional trespass. Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 90, 931 A.2d 237 (2007). By amplifying the measure of damages for one category of possible damages, § 52-560 does not preempt and thus eliminate other common-law remedies for timber trespass.

The statute does not expressly indicate that it is an exclusive remedy, and a narrow application is given to statutes modifying the common law. See, e.g., Jones v. Mansfield Training School, 220 Conn. 721, 729, 601 A.2d 507 (1992); Nolan v. Morelli, 154 Conn. 432, 439 n.2, 226 A.2d 383 (1967). Additionally, the existence of § 52-560 and its predecessors did not deter our courts from authorizing the diminution in value of the affected premises as a measure of damages for intentional trespass. See Palmieri v. Cirino, supra, 90 Conn. App. 850 (proper measure of damages includes diminution in market value of real property caused by cutting of trees); Stanley v. Lincoln, supra, 75 Corm. App. 785 (same); Canton Village Construction, Inc. v. Huntington, supra, 8 Corm. App. 146-47 (same). Section 52-560 does not preempt the field, but provides enhancement of common-law damages by providing for treble damages in certain circumstances. Accordingly, the court did not err in using diminution in the premises’ market value as a measure of damages.

II

The defendant next claims that the court erred in denying his motion for judgment with respect to his special defense of the statute of limitations set forth in General Statutes § 52-584. We disagree.

In his complaint, the plaintiff alleged the intentional tort of trespass. In his answer the defendant pleaded, inter alia, the special defense of the statute of limitations and claimed that the action was not brought within two years as required by § 52-584. At trial, the defendant filed a motion for judgment seeking, inter alia, judgment on his special defenses. The court denied the defendant’s motion for judgment. The court reasoned that the plaintiffs action was grounded in trespass and that General Statutes § 52-577 applied, rather than § 52-584. The court concluded that the plaintiff brought his action within the three year time frame provided in § 52-577.

“The question of whether a claim is barred by the statute of limitations is a question of law over which we exercise plenary review.” Sinotte v. Waterbury, 121 Conn. App. 420, 431, 995 A.2d 131, cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010). Section 52-584 provides in relevant part: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . . .” This statute, which provides a two year statute of limitations on negligence actions, does not apply in the present case. In his complaint, the plaintiff alleged trespass, an intentional tort, rather than a cause of action grounded in negligence. “The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiffs exclusive possessory interest; (3) done intentionally, and (4) causing direct injury.” (Emphasis added; internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 87. Because § 52-584 did not bar the plaintiffs action, the court did not err in denying the defendant’s motion for judgment regarding his special defense based on § 52-584.

Ill

The defendant next claims that the court erred in denying his special defenses of waiver and equitable estoppel. We disagree.

In connection with these two special defenses, the court found the following facts. On August 30, 2005, the plaintiff sent a letter to the defendant suggesting, as a resolution, that the parties jointly choose “ ‘reasonably matine evergreens’ ” and have them planted to restore the plaintiffs lost sense of privacy. In response to that letter, the defendant, in November, 2005, paid a nursery to plant three evergreen trees on the plaintiffs property, without the plaintiffs input or consent.

A

We first turn to the defendant’s special defense of waiver. The defendant argues that the plaintiff waived any right to bring suit regarding any trespass because the defendant planted trees in response to the plaintiffs August, 2005 letter suggesting that resolution and the plaintiff accepted the trees. Citing Palmieri v. Girino, supra, 90 Corm. App. 850, he argues that the plaintiff was precluded from seeking the cost of replacement trees, yet obtained replacement trees through this resolution.

The court denied the defendant’s special defense of waiver, reasoning that the facts did not support his allegation that the plaintiff waived his right to initiate civil suit against the defendant. The court concluded that in accepting the three trees, the plaintiff was not precluded from asserting a claim under the common-law tort of trespass.

“Waiver involves an intentional relinquishment of a known right. . . . There cannot be a finding of waiver unless the party has both knowledge of the existence of the right and intention to relinquish it. . . . Waiver may be inferred from the circumstances if it is reasonable so to do. . . . Whether conduct constitutes a waiver is a question of fact . . . [and is] dependent on all of the surrounding circumstances and the testimony of the parties. . . . Our review of the trial court’s determination [therefore] is guided by the principle that, because waiver [is a question] of fact ... we will not disturb the trial court’s [finding] unless [it is] clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Esposito v. DiGennaro, 120 Conn. App. 627, 630-31, 992 A.2d 1230 (2010).

The court did not err in finding that the defendant did not meet his burden of proving his special defense of waiver. The plaintiff suggested, via letter, that the parties “resolve this matter amicably” by jointly choosing evergreens to be planted in the plaintiffs yard at the defendant’s expense. The defendant, without input from the plaintiff, chose the number of trees and their location. On these facts, the court did not err in finding that there had been no agreement as to the appropriate planting, and no “waiver” of the action.

B

The defendant also argues that the court erred in denying his special defense of equitable estoppel. We disagree.

“The doctrine of equitable estoppel is well established. [W]here one, by his words or actions, intentionally causes another to believe in the existence of a certain state of things, and thereby induces him to act on that belief, so as injuriously to affect his previous position, he is [precluded] from averring a different state of things as existing at the time. . . . The party claiming estoppel . . . has the burden of proof. . . . Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous. . . . Accordingly, we will reverse the trial court’s legal conclusions regarding estoppel only if they involve an erroneous application of the law.” (Citation omitted; internal quotation marks omitted.) Harley v. Indian Spring Land Co., 123 Conn. App. 800, 826-27, 3 A.3d 992 (2010).

The court concluded that the defendant did not provide evidence sufficient for it to find that the plaintiffs claim was barred by the doctrine of equitable estoppel. The court reasoned that the defendant acted on his own in purchasing the trees and the plaintiff had no input regarding the number, type or placement of the trees purchased. The court’s conclusion that the defendant did not meet his burden of proving his special defense of equitable estoppel was not clearly erroneous. The defendant cannot prevail on this argument.

IV

The defendant next claims that the court erred in finding that the element of intent with respect to the tort of trespass was satisfied. We disagree.

We review the court’s factual findings pursuant to the clearly erroneous standard; to the extent that we review conclusions of law drawn by the court, our review is plenary. Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 87. With respect to trespass, the court found the following. “Evidence submitted by the plaintiff regarding the location of the property line is sufficient for this court to conclude that the plaintiff was the owner of the land in question. The evidence also supports the plaintiffs allegation that the defendant, individually and through Tanner’s Tree Service, entered onto the plaintiffs property. The court notes that the defendant acknowledged his mistake regarding the location of the property and that the trees removed from the property in question were ‘partly’ on the plaintiffs property in his letters to the plaintiff, dated May 30, 2007, and November 13, 2007, respectively. Furthermore, the court finds that the evidence supports the plaintiffs allegation that the acts of the defendant were done intentionally. The defendant hired Tanner’s Tree Service to enter the plaintiffs property to remove trees and brush. Moreover, the defendant did not direct Tanner’s Tree Service to stop its entry upon the plaintiffs property even after the plaintiff informed the defendant that trees had been removed from the plaintiff’s property and pointed out the property line to the defendant. Finally, the plaintiff has proven that he has been injured directly as a result of the defendant’s actions because he no longer enjoys a sense of isolation and privacy, which has caused a diminution in value of his house. Therefore, the plaintiff has met his burden of proving the elements of a trespass action . . . .”

The defendant takes issue with the court’s findings as to the element of intent. He argues that he could not have known the exact location of the property line at the time the tree removal was in progress. The defendant contends that after the first day of tree removal the plaintiff screamed at him regarding the tree removal, but was too angry reasonably to specify the location of the property lines. He further states that although the evidence showed that the defendant wrote a letter to the plaintiff acknowledging that the properties had been surveyed and marked and that some of the trees that had been removed were on the plaintiffs property, the letter was written and the survey conducted in 2007, two years after the tree removal. The defendant argues that, as a result, the letter could not be used to show that he knew the location of the property lines at the time the trees were removed. He also argues that the defendant had no intention to injure the plaintiff. Any trespass, he argues, was negligent rather than intentional.

“The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiffs exclusive possessory interest; (3) done intentionally; and (4) causing direct injury. . . . [I]n order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another’s land.” (Citations omitted; internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 87-88. The intent required is the intent to enter the land in question, and, in this action, to cut the trees, regardless of the defendant’s subjective belief as to the ownership of the land. See, e.g., General Statutes § 52-560 (defendant who cuts trees mistakenly believing they are on his land still liable for damages for trees he cut); Plumb v. Griffin, 74 Conn. 132, 135, 50 A. 1 (1901) (same); 75 Am. Jur. 2d, Trespass § 21 (2007).

The undisputed evidence demonstrates that the defendant entered the plaintiffs land. It does not matter, for purposes of liability, whether the defendant knew at the time of the incident the location of the property lines or whether the defendant intended to injure the plaintiff. There is evidence from which the court could have determined that the defendant intended Tanner’s Tree Service to remove trees which were located on the plaintiffs land. Accordingly, the court’s finding as to intent is not clearly erroneous and does not involve a mistaken application of the law.

V

The defendant finally claims that the court erred in its award of damages. We disagree.

With respect to its award, the court stated: “As of May 15, 2005, the estimated market value of the plaintiffs property was $675,000, according to an appraisal performed by a certified general real estate appraiser. The appraiser opined that prior to May 15, 2005, the market value of the plaintiffs property was $825,000. The court finds the appraisal and the appraiser’s testimony to be credible and objective. Moreover, the defendant had the opportunity to present testimony of a qualified real estate appraiser to contradict the plaintiffs estimates of the fair market value of his property, but failed to do so. Thus, the court accepts the plaintiffs measure of compensatory damages in the amount of $150,000 based upon the diminution in value of the plaintiffs property as a result of the defendant’s actions.”

A

The defendant argues that the court erred in finding that Seana C. Bedard, a real estate appraiser and witness for the plaintiff, was qualified to testify as an expert. We are not persuaded.

Section 7-2 of the Connecticut Code of Evidence incorporates the test for determining the admissibility of scientific evidence set forth in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). Section 7-2 of the Connecticut Code of Evidence provides: “A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.”

“The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) Hutchinson v. Andover, 49 Conn. App. 781, 788, 715 A.2d 831 (1998).

The defendant argues that Bedard was not qualified to give an opinion as to the effect of the removal of certain trees from the plaintiffs property on its market value. He argues that Bedard had no relevant experience or knowledge and that the court erred in finding that she was qualified to testify as an expert simply because she has a real estate appraiser’s license.

In ruling that Bedard was qualified to testify as an expert, the court took into account her training and experience. The court reasoned that Bedard was qualified to testify as to the market value of the property because she was “an appraiser and [has] done 1500 appraisals.” The court asked Bedard if she was able to testify as to the value of the property before and after the removal of the trees, to which question Bedard responded affirmatively. Bedard further testified that she was licensed to appraise commercial and residential real estate in Connecticut and worked for Miller Appraisal. She testified that she had conducted approximately 1500 residential real estate appraisals, approximately 300 of those within New Haven County in the five years prior to her testimony. We conclude that the court did not abuse its broad discretion in admitting Bedard’s testimony.

The defendant also argues that Bedard was not qualified as an expert because she had not met certain requirements specified in General Statutes § 20-504, which provides that the commissioner of consumer protection may adopt reasonable regulations which “shall require any real estate appraiser to comply with generally accepted standards of professional appraisal practice as described in the Uniform Standards of Professional Appraisal Practice issued by the Appraisal Standards Board of the Appraisal Foundation . . . .” (Emphasis added.)

Section 20-504 provides for the regulation of real estate appraisers. The defendant points to no authority which suggests that a real estate appraiser must satisfy the Uniform Standards of Professional Appraisal Practice in a certain manner before a court can admit the appraiser’s expert testimony. The court has wide discretion in admitting expert testimony. See Taylor v. King, 121 Conn. App. 105, 120, 994 A.2d 330 (2010) (witness qualified to testify to diminution in value of property despite not being licensed as real estate appraiser pursuant to General Statutes § 20-501). For the reasons set forth previously, we cannot say that the court abused its discretion in admitting Bedard’s expert testimony.

B

The defendant next argues that there was not a proper foundation for Bedard’s appraisal of the value of the plaintiffs property before and after the tree removal. We disagree.

Section 7-4 (a) and (b) of the Connecticut Code of Evidence provide in relevant part: “An expert may testify in the form of an opinion and give reasons therefor, provided sufficient facts are shown as the foundation for the expert’s opinion. . . . The facts in the particular case upon which an expert bases an opinion may be those perceived by or made known to the expert at or before the proceeding. The facts need not be admissible in evidence if of a type customarily relied on by experts in the particular field in forming opinions on the subject. ...”

“Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) Bunting v. Bunting, 60 Conn. App. 665, 670, 760 A.2d 989 (2000).

The defendant argues that the court made no finding as to whether there was an adequate factual foundation for a “retrospective appraisal,” and that the plaintiff did not ask the court to find that there was an adequate foundation for allowing the opinion evidence. It was, however, the defendant’s burden to object to the testimony on these grounds if he desired a ruling during trial. The defendant, however, following trial and prior to the court’s issuance of its decision, filed a motion to strike, inter alia, Bedard’s opinion evidence on the ground that she had no basis for her opinion. The court denied the motion.

The defendant argues that there is not an adequate foundation for Bedard’s appraisal because she did not personally observe the plaintiffs property prior to the tree removal, but rather relied on the plaintiff s hearsay descriptions of the property. He contends that Bedard did not visit the property until the winter of 2009, after the plaintiff had altered the site and at a time when the deciduous trees were without leaves.

Bedard testified that she personally visited the plaintiffs property in January, 2009, and again in February, 2009. She further testified that she determined the lot enjoyed a high degree of privacy prior to the incident; her conclusion was based on her personally viewing the property in 2009 and on conversations with the plaintiff in which he described the condition of the lot prior to the incident. She also stated that the plaintiff showed her photographs of the lot, which had been taken at some time in the past, but that she did not remember seeing dates on the photographs. After she completed her appraisal, she saw pictures of the lot following the incident and testified that the pictures depicted more clearing of trees than she had imagined and thus, strengthened her opinion as to diminution in value.

The defendant points to no authority to suggest that Bedard’s personal observation of the property, her reliance on the plaintiffs descriptions of the prior conditions of the property and photographs of the property in its prior conditions formed an inadequate factual foundation. The defendant relies on Porter v. Thrane, 98 Conn. App. 336, 908 A.2d 1137 (2006), which is inapposite. In Porter, we determined that an appraiser’s testimony as to value was speculative because the appraiser had not inspected the property, never viewed the house or property and was unfamiliar with the interior of the house. Id., 340-41. In this case, Bedard personally observed the property, albeit a few years after the incident, and was informed by the owner of its conditions at prior relevant times. Bedard also viewed photographs of the property. She testified that one such photograph, apparently depicting the property shortly after the incident, which she viewed after her appraisal, bolstered her opinion as to value. Bedard’s personal observation of the property complemented by the plaintiffs descriptions of the property in its prior conditions, is not impermissibly speculative as determined in Porter. Furthermore, any reliance by Bedard on the plaintiffs description of his property does not render the report incompetent, as the defendant so argues. The plaintiff, as the owner, was familiar with his property. Somers v. LeVasseur, 230 Conn. 560, 566 n.2, 645 A.2d 993 (1994); see also State v. Wilson, 188 Conn. 715, 722-23, 453 A.2d 765 (1982) (jeweler permitted to testify as to valuation based solely on written inventory prepared by owners); Watson v. Watson, 20 Conn. App. 551, 560, 568 A.2d 1044 (1990) (owner of property qualified to render opinion on value of his land including diminished value), rev’d in part on other grounds, 221 Conn. 698, 607 A.2d 383 (1992).

Any argument by the defendant that Bedard’s opinion was based on inadmissible evidence is unavailing. Section 7-4 (b) of the Connecticut Code of Evidence states that experts may base opinions on facts made known to the expert prior to the proceeding and that those facts need not be admissible evidence.

The defendant also argues that Bedard’s opinion “was of no use to the trial court and should have been stricken as incompetent” because, he claims, she could not give a logical explanation for how she arrived at her opinion and did not articulate or apply methodology suitable to determining any diminution in value caused by the clearing of trees. Bedard testified that she examined real estate in the Guilford area, found comparable properties, estimated degrees of privacy and made adjustments, positive or negative, for the differences in the properties in order to “equal everything out.” She also noted that an appraisal is not based on science, but it is an opinion as to value.

Based on the foregoing, we cannot say that the court abused its discretion by admitting her testimony.

C

The defendant also argues that Bedard’s appraisal report contained numerous errors, such as incorrect dates, the inclusion of properties .as “comparable” that should have been excluded and violations of certain standards of professional appraisal practice.

These arguments affect the weight, rather than the admissibility of the evidence. The court, as the trier of fact, was free to determine the weight to be afforded to that evidence. “It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible. . . . On appeal, we do not retry the facts or pass on the credibility of witnesses.” (Internal quotation marks omitted.) In re Rafael S., 125 Conn. App. 605, 611-12, 9 A.3d 417 (2010).

The judgment is affirmed.

In this opinion the other judges concurred.

       To the extent that the defendant contests the court’s finding of liability, we conclude that the court’s finding of liability finds support in the record. We discuss the element of intent in more detail in part IV of this opinion.

       The use of the language “shade or ornamental trees” ought not be considered a limitation on the sorts of fact patterns which may be addressed by the loss of market value of the land. In Eldridge, the claim was that some of the trees which were cut had added value to the land because they served the purposes of shade and ornament; the claimed diminution in value in this specific case was for loss of shade and ornament. Although the claim did not succeed because of technical pleading shortcomings, the court recognized that damages resulting from the reduced pecuniary value of the land were “undoubtedly” a legitimate element of damage if properly alleged. Eldridge v. Gorman, 77 Conn. 699, 701, 60 A. 643 (1906). “The trees might be a highly valuable appendage to the farm, for the purposes of shade or ornament ... or for other reasons they might have a special value as connected with the farm, altogether independent of, and superior to, their intrinsic value for the purposes of building or fuel.” (Internal quotation marks omitted.) Id., 703.

       Cases quite frequently mention the theoretical availability of damages for diminution in value but reject the possibility of such damages in the particular case under discussion because of evidentiary lapses.

       The plaintiff later added, in an amended complaint, a count for treble damages pursuant to § 52-560. The court rejected this claim.

       We do not agree with the defendant’s argument that diminution in value is not an appropriate measure of damages because it is speculative and can involve the use of real estate appraisal evidence. Diminution in value long has been used as a measure of damages in tree cutting cases. See Palmieri v. Cirino, supra, 90 Conn. App. 850. We disagree with any notion that real estate appraisal evidence is per se impermissibly speculative. Such evaluations of the evidence are properly determined by the trial court on a case-by-case basis.
      The defendant also argues that the court erred in that it “converted” a trespass case into a personal iiyury action that compensated the plaintiff for an “emotional injury” of a loss of his sense of isolation or loss of privacy. The court treated the case consistently as one involving trespass and awarded compensatory damages for objective loss of value. As stated previously, diminution in value is a proper measure of damages in a trespass case.

       Seana C. Bedard, a real estate appraiser, testified that she estimated the date of May 15, 2005, in her appraisal report, but that her analysis would not be affected if the cutting of trees occurred at some later point during the summer of 2005.

       The defendant’s motion to strike preserves the issue for appeal. See State v. Smith, 275 Conn. 205, 224 n.10, 881 A.2d 160 (2005).