author: Landau, J.

text:
    State of Connecticut v. Mary Theriault
    (13046)
    Landau, Spear and Hennessy, Js.

      Argued April 18
    decision released August 22, 1995

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

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John J. Dropick, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics in violation of General Statutes § 21a-277 (a). She claims that the trial court improperly (1) failed to charge the jury that the state’s key witness had three particular prior felonies, (2) denied her motion for judgment of acquittal, (3) charged the jury as to the definition of “sale,” and (4) failed to charge the jury as to the definition of “agent.”

The jury could have reasonably found the following facts. On the evening of December 3, 1991, Nicholas Wassil and David Groleau went to the defendant’s apartment building for the purpose of buying heroin. Wassil, who had had prior dealings with the defendant, went inside and knocked on the door of the defendant’s apartment. When the defendant answered, Wassil stepped just inside the doorway and asked the defendant if she had “any dope.” The defendant, who understood that Wassil meant heroin, answered “No.” An unidentified woman, inside the apartment behind the defendant, said that she had some. In response, Was-sil handed $40 to the defendant, who handed it to the woman. The woman then handed two bags of heroin to the defendant, who handed them to Wassil. Wassil and Groleau returned to Groleau’s house, where they each injected a bag of heroin. Groleau died later that evening from acute combined drug toxicity.

The defendant was charged with manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and sale of narcotics. The jury found the defendant guilty of the lesser included offense of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (l) and sale of narcotics. Following the verdict, the trial court granted the defendant’s motion for judgment of acquittal as to the manslaughter charge, but denied it as to the sale of narcotics charge. This appeal followed.

I

The defendant first claims that the trial court inadequately applied the law to the facts of the case in its charge to the jury. Specifically, she argues that, while the court properly instructed the jury on the principle that a witness’ prior felony conviction may be considered in assessing that witness’ credibility, the court failed to charge that the state’s key witness had been convicted of three specific felonies.

The following additional facts are relevant to this claim. Wassil, who testified on behalf of the state, was the only witness linking the defendant to the sale of the heroin. On direct and cross-examination, Wassil testified that he had felony convictions for larceny in the third degree, possession of narcotics and forgery in the second degree.

The defendant submitted a request to charge that specifically noted WassiTs felony convictions and their relevance to the jury’s assessment of his credibility. The trial court instructed the jury: “Now, there was testimony here of a previous felony conviction on the part of Nicholas Wassil. That evidence was offered and admitted for one purpose only, to address the question of credibility or believability of the witness Nicholas Wassil.” The court then instructed the jury on the general law of how a jury may utilize a witness’ prior felony convictions in appraising the witness’ credibility. Following the charge, the defendant excepted, arguing that the trial court should have referred to and specified Wassil’s three convictions, rather than mentioning a single, undesignated felony. The trial court declined to reinstruct the jury.

While jury instructions “need not be exhaustive, perfect or technically accurate, they must be correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) Felsted v. Kimberly Auto Services, Inc., 25 Conn. App. 665, 668, 596 A.2d 14, cert. denied, 220 Conn. 922, 597 A.2d 342 (1991), quoting Preston v. Keith, 217 Conn. 12, 17, 584 A.2d 439 (1991).

“The primary purpose of the charge is to assist the jury in applying the law correctly to the facts which they might find to be established. Worden v. Francis, 153 Conn. 578, 579, 219 A.2d 442 [1966]; Deutsch v. LaBonne, 111 Conn. 41, 44, 149 A. 244 [1930].” Vita v. McLaughlin, 158 Conn. 75, 77, 255 A.2d 848 (1969). For this reason, “[a] charge cannot be given in the abstract without reference to the evidence sufficient to provide guidance to the jury in arriving at a just result.” State v. Wolff, 29 Conn. App. 524, 531, 616 A.2d 1143 (1992); see also Shelnitz v. Greenberg, 200 Conn. 58, 72, 509 A.2d 1023 (1986). The court’s instructions must “go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven.” State v. Sumner, 178 Conn. 163, 170-71, 422 A.2d 299 (1979); State v. Wolff, supra, 531. The trial court does not properly fulfill the role of giving proper jury instructions by simply laying down the general principles of law applicable to the case and then leaving it to the jury to apply them. State v. Wolff, supra, 531-32. Rather, it is the trial court’s obligation to inform the jury what the law is as applicable to the facts of the case. Id., 532.

“While [t]he degree to which reference to the evidence may be called for lies largely in the discretion of the court . . . reference to the evidence is required sufficient to guide the [jurors] in their application of the stated law to the evidence before them.” (Citation omitted; internal quotation marks omitted.) Mack v. Clinch, 166 Conn. 295, 297, 348 A.2d 669 (1974). If the issues presented to the jury are not complicated, the trial court must, at a minimum, refer to the essential facts surrounding each instruction. Amato v. Sawicki, 159 Conn. 490, 494, 271 A.2d 80 (1970). “Whether the trial court’s charge adequately relates the issues of law to the facts of a case depends on the particular circumstances of that case.” State v. Crosby, 36 Conn. App. 805, 814, 654 A.2d 371, cert. denied, 232 Conn. 921, 656 A.2d 669 (1995).

In this case, the defendant does not contest that the trial court properly presented the general legal principles applicable to the jury’s consideration of a witness’ prior felony convictions. Rather, she argues that the court did not refer the jury to the essential facts surrounding that instruction. She asserts that the court erred by omission as well as by affirmative misstatement. That is, not only did the court fail to specify Was-sil’s three felony convictions, but it also charged the jury that “there was testimony here of a previous felony conviction on the part of Nicholas Wassil.” (Emphasis added.)

The state argues that even if the challenged language in the court’s charge did indirectly indicate to the jury that it should consider only a single, unspecified felony conviction in weighing Wassil’s credibility, the remainder of the charge properly emphasized to the jury that its recollection of the evidence controlled. Consequently, because the jury had heard evidence that Wassil had convictions for larceny, forgery and possession of narcotics, it understood that those convictions could be considered in the assessment of Wassil’s credibility.

Because Wassil was the only witness linking the defendant to the alleged sale of the heroin, the defendant’s attack on Wassil’s credibility was essential to her defense. General Statutes § 52-145 provides that conviction of a crime may be shown for the purpose of attacking a witness’ credibility. Our Supreme Court has held that “ ‘a conviction of a crime, whether or not the crime is denominated a felony, is admissible under § 52-145, only if the maximum permissible penalty for the crime may be imprisonment for more than one year.’ ” State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert. denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985), quoting Heating Acceptance Corp. v. Patterson, 152 Conn. 467, 472, 208 A.2d 341 (1965).

“Under the standards that we have recognized, prior convictions that are admissible for impeachment purposes may be segregated into two general categories. First are those crimes that by their very nature indicate dishonesty or tendency to make false statement. . . . Beyond the obvious violations such as perjury or false statement, we have recognized that crimes involving larcenous intent imply a general disposition toward dishonesty such that they also fall within this category. . . . Convictions of this sort obviously bear heavily on the credibility of one who has been convicted of them. . . . The second category involves convictions for crimes that do not reflect directly on the credibility of one who has been convicted of them. . . . The theory behind the admissibility of these convictions as evidence of credibility posits that conviction of a crime demonstrates a bad general character, a general readiness to do evil and that such a disposition alone supports an inference of a readiness to lie in the particular case .... Convictions of crimes that fall within this second category blemish the character of one so convicted. A juror might reasonably conclude that such a witness lacks to some degree the moral rectitude from which a witness’s oath of honesty derives its credibility.” (Citations omitted; internal quotation marks omitted.) State v. Geyer, 194 Conn. 1,12-13, 480 A.2d 489 (1984).

Wassil’s larceny and forgery convictions fall within the first category of prior convictions that are admissible for impeachment purposes and, therefore, had the potential to weigh heavily in the jury’s assessment of his credibility. While Wassil’s narcotics conviction falls within the second category; see State v. Carter, 34 Conn. App. 58, 73, 640 A.2d 610 (1994), rev’d on other grounds, 232 Conn. 537, 656 A.2d 657 (1995); it was admitted into evidence and had the potential to undermine the jury’s confidence in Wassil’s testimony. That Wassil had not one but three prior felony convictions, two of which directly implicated his veracity, was highly relevant to the defendant’s efforts to undermine Was-sil’s credibility and, consequently, to her defense. We thus conclude that, in this case, the trial court fell short of its duty to refer the jury to the essential facts surrounding the jury instruction regarding use of a witness’ prior felony convictions.

Because this claim is not of constitutional magnitude; see State v. Walton, 227 Conn. 32, 64-65, 630 A.2d 990 (1993); the defendant is required to demonstrate that it is more probable than not that the improper instruction affected the result. See State v. Chapman, 229 Conn. 529, 544, 643 A.2d 1213 (1994). “For an erroneous portion of a charge to be reversible error, this court must consider the whole charge and it must be determined, in appeals not involving a constitutional question, if it is reasonably probable that the jury [was] misled . . . .” (Internal quotation marks omitted.) Id., 545. Because Wassil’s credibility was crucial to the state’s case, we conclude that the defendant has satisfied her burden of showing harmful error.

II

The defendant next claims that the trial court improperly denied her motion for judgment of acquittal as to sale of narcotics. She argues that the state did not present sufficient evidence that she had committed a “sale” as that term is defined by General Statutes § 2 la-240 (50).

“When a claim on appeal challenges the sufficiency of the evidence we first review the evidence in the light most favorable to sustaining the jury’s verdict; next we determine, whether, upon the facts established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . . State v. Holder, 18 Conn. App. 184, 194, 557 A.2d 553 (1989).” (Internal quotation marks omitted.) State v. Ives, 37 Conn. App. 40, 55, 654 A.2d 789 (1995).

The defendant’s claim is premised entirely on her interpretation of the statutory definition of “sale.” In its denial of her motion for judgment of acquittal, the trial court found that § 21a-240 (50) defines sale as “ ‘any form of delivery . . .’ which includes the defendant’s actions in the present case.” The defendant asserts that § 21a-240 (50) requires proof not just of “any form of delivery,” but of “any form of delivery which includes barter, exchange or gift, or offer therefor.” She argues that the “which includes” clause is restrictive rather than descriptive and that, consequently, only those forms of delivery accompanied by a barter, exchange, gift or offer therefor qualify as a sale. In this case, the defendant maintains that she did not make a barter, exchange, gift or offer therefor because she owned neither the heroin nor the $40. Rather, because she merely passed the money and the heroin during the sale between the unidentified woman and Wassil, she did not commit a sale.

The defendant’s argument is unavailing in light of our Supreme Court’s recent decision in State v. Wassil, 233 Conn. 174, 658 A.2d 548 (1995). In that case, the court reviewed the legislative history and concluded that, “under § 21a-240 (50), ‘any form of delivery’ of narcotics constitutes a ‘sale’ of narcotics, whether the delivery is also a ‘barter,'exchange or gift, or offer therefor.’ We thus read the statute as if it contained a comma after the word delivery: ‘ “[s]ale” is any delivery, which includes barter, exchange or gift or offer therefor ....’” Id., 195; see also State v. Mierez, 24 Conn. App. 543, 551, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991); State v. Jackson, 13 Conn. App. 288, 294, 535 A.2d 1327 (1988).

Applying the definition of sale enunciated in State v. Wassil, supra, 233 Conn. 195, we conclude that the jury could have reasonably found that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. The defendant does not contest the fact that she handed two bags of heroin to Was-sil, thereby engaging in a delivery of narcotics. For this reason, we conclude that the trial court properly denied the defendant’s motion for judgment of acquittal.

III

The defendant’s third claim is also controlled by State v. Wassil, supra, 233 Conn. 174. She asserts that the trial court inadequately charged the jury as to the definition of sale by simply reading the statute without explaining that the “which includes” clause is restrictive. Consequently, she contends, the jury could have understood that mere delivery of narcotics is a sale and thus convicted her on an impermissible theory of liability. The Wassil court, faced with a similar claim, concluded that mere delivery of narcotics is a sale pursuant to §§ 21a-240 (50) and 21a-277. Id., 195. For this reason, we conclude that the defendant cannot prevail on this claim.

IV

The defendant’s final claim is that the trial court improperly failed to instruct the jury on an essential element of the crime charged, thereby depriving her of her federal and state due process rights. She argues that the trial court failed to instruct the jury as to the definition of “agent” as that term is used in § 21a-277 (a). The defendant concedes that this claim is unpreserved, but seeks appellate review pursuant to the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We conclude, however, that the defendant’s claim fails to satisfy the second prong of the Evans/Golding test.

“ ‘It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.’ State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). ‘The due process clause of the fourteenth amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) . . . .’ (Citations omitted.) State v. Gabriel, 192 Conn. 405, 413, 473 A.2d 300 (1984). Consequently, the failure to instruct a jury on an element of a crime deprives a defendant of the right ‘ “to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” ’ Id., 414.” State v. Denby, 35 Conn. App. 609, 614, 646 A.2d 909, cert. denied, 231 Conn. 941, 653 A.2d 823 (1994).

An essential element of the crime of sale of narcotics in violation of § 21a-277 (a) is that the defendant commit a sale as that term is defined in § 2 la-240 (50). As noted, § 21a-240 (50) provides that a sale is “any form of delivery . . . and each such transaction made by any person whether as principal, proprietor, agent, servant or employee . . . .” While the trial court read the definition of sale to the jury, it did not define the term “agent.” The defendant argues that the trial court’s failure to do so violated her right to due process because one’s status as an agent is an essential element of the definition of sale and, therefore, of the offense. We conclude, however, that status as an agent is not an essential element of the offense of sale of narcotics.

In considering this claim, we must adhere to “well defined principles of statutory interpretation that require us to ascertain and give effect to the apparent intent of the legislature. ... To determine the intent of the legislature, we first consider whether the statutory language yields a plain and unambiguous resolution. ... If the words are clear and unambiguous, it is assumed that [they] express the intention of the legislature . . . and we need inquire no further. . . . The words of a statute must be interpreted according to their ordinary meaning unless their context dictates otherwise. ...” (Citations omitted; internal quotation marks omitted.) State v. Mattioli, 210 Conn. 573, 576-77, 556 A.2d 584 (1989). Also, General Statutes § 1-1 (a) mandates that “[i]n the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . .”

The plain language of § 21a-240 (50) establishes that a sale is accomplished when “any form of delivery” is made by “any person.” Whether one makes the delivery as principal, proprietor, agent, servant or employee is irrelevant. The statutory definition of “delivery” further supports the determination that the status of the person making the delivery is irrelevant to liability. That definition provides that delivery is “the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship . . . .” (Emphasis added.) General Statutes § 21a-240 (11). Therefore, because it is immaterial whether one is an agent in the course of a sale of narcotics, one’s status as an agent is not an essential element of that offense. For this reason, the defendant did not have a constitutional right to have the jury charged as to the definition of agent. Because the defendant’s claim is not of constitutional magnitude alleging the violation of a fundamental right, we decline to review it.

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

In this opinion the other judges concurred.

       General Statutes § 21a-277 provides in pertinent part: “(a) Any person who . . . sells ... a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned . . . .”

       General Statutes § 53a-55 provides in pertinent part: “(a) A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 53a-56 provides in pertinent part: “(a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person

       In part B of the information, the state also charged the defendant with being a second time narcotics offender. The defendant pleaded guilty to this charge following the jury verdict on the sale of narcotics charge.

       The defendant’s request to charge provided in pertinent part: “In weighing the testimony of witnesses, it must be considered by you that the witness, Nicholas Wassil, is a self-confessed or convicted criminal and everything else being equal, you would not believe the testimony of a person who has committed a crime as readily as you would a person of good character. Nicholas has been convicted of several felonies: larceny, forgery and possession of narcotics.”

       General Statutes § 52-145 provides in pertinent part: “(a) A person shall not be disqualified as a witness in any action because of . . . (3) his conviction of crime.
      “(b) A person’s . . . conviction of crime may be shown for the purpose of affecting his credibility.”

       Although we find the defendant’s first claim dispositive, we must address the sufficiency of the evidence claim since the defendant would be entitled to an acquittal of the charge if she prevails on this claim. See State v. Wolff, supra, 29 Conn. App. 527 n.4.

       General Statutes § 21a-240 (50) provides: “ ‘Sale’ is any form of delivery which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee . . . .”

       As a result of the events giving rise to this case, Wassil was convicted, of sale of narcotics and manslaughter in the first degree. On appeal, Was-sil argued, inter alia, that the trial court should have read to the jury the entire statutory definition of sale, rather than simply defining sale as “any form of delivery.” State v. Wassil, supra, 233 Conn. 192.

       “Delivery” is defined in General Statutes § 21a-240 (11) as “the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship . . . .”

       We address the defendant’s final two claims because they are likely to arise in the retrial. See Konover Development Corp. v. Zeller, 228 Conn. 206, 233, 635 A.2d 798 (1994).

       The court charged in pertinent part as follows: “The word ‘sell’ here has a much broader meaning than it does in ordinary usage. It is not confined to a delivery of narcotics which is paid for by someone else. Sale is a form of delivery which includes barter, exchange, or gift, or offer therefor; each transaction made by any person whether as a principal, proprietor, agent, servant, or employee.”

       “Due process claims under the federal and state constitutions can be treated together because they impose similar constitutional limitations. Keogh v. Bridgeport, 187 Conn. 53, 59-60, 444 A.2d 225 (1982). The defendant offers no argument for separate treatment of [her] state constitutional claim. Accordingly, we will consider only [her] federal constitutional claim. State v. Mercer, 208 Conn. 52, 67 n.9, 544 A.2d 611 (1988).” State v. Flanders, 214 Conn. 493, 500 n.4, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990).

       Under State v. Golding, supra, 213 Conn. 239-40, the defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.”

       “Agent” is defined in General Statutes § 21a-240 (3) as “an authorized person who acts on behalf of or at the direction of a manufacturer, distributor or dispenser. It does not include a common or contract carrier, public warehouseman, or employee of the carrier or warehouseman . . . .”

       We recognize that penal statutes must be construed strictly in favor of the accused. State v. Somerville, 214 Conn. 378, 384, 572 A.2d 944 (1990). While this is true, the strict construction of a penal statute nonetheless “must accord with common sense and commonly approved usage of the language.” State v. Edwards, 201 Conn. 125, 132, 513 A.2d 669 (1986).


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Robert Moore v. Mark Sergi et al.
    (12705)
    Dupont, C. J., and Foti and Spear, Js.

      Argued May 30
    decision released August 22, 1995

      David S. Doyle, for the appellant (plaintiff).

      Max F. Brunswick, for the appellees (defendants).
   Foti, J.

The plaintiff appeals from the judgment of the trial court, rendered on a counterclaim, awarding the defendants damages arising out of the plaintiffs conversion of the defendants’ goods. The plaintiff alleges that the trial court acted improperly by (1) allowing the defendants to amend their counterclaim after the trial, (2) finding that the defendants had offered sufficient competent evidence to prove damages, (3) awarding damages that were not claimed in any of the defendants’ pleadings, and (4) failing to find that the defendants had acted unreasonably in violation of their duty to mitigate their damages. We reverse the judgment in part.

The following facts are relevant to this appeal. The plaintiff is the owner of the premises located at 35 Catherine Street, East Haven. He rented the premises on a month-to-month basis to the defendants, Mark Sergi and Joanna Sergi. On May 25, 1991, the plaintiff served the defendants with two notices to quit for nonpayment of rent. On or about June 13, 1991, the plaintiff served the defendants with a summary process writ, summons and complaint. On July 16, 1991, the defendant Joanna Sergi and the plaintiff appeared in court and entered into a stipulated judgment for a final stay of execution through August 31, 1991. In the stipulation, the defendant acknowledged that she owed the plaintiff $2100, which included use and occupancy through July 31,1991. The defendant promised to pay that arrearage plus $700 for use and occupancy through August 31,1991, with payment to be made on or before August 10,1991. The parties also agreed that there was a $700 security deposit. The plaintiff received $700 of the promised funds, but the defendants failed to pay the remaining $1400 of the $2100 arrearage before July 29,1991, and did not pay $700 for any use and occupancy for the month of August.

During the last week of July, 1991, the defendants partially vacated the premises at 35 Catherine Street. During that same week, but prior to August 1, 1991, the defendants returned to the premises to clean up and remove belongings that they had left behind. On the basis of an encounter that ensued between the defendants and the plaintiff, the defendants concluded that they were prohibited from returning to the property to clean the premises and to remove their belongings. On August 7, 1991, the plaintiff sought and obtained a summary process execution, and evicted the defendants.

This suit was originally brought by the plaintiff to recover back rent, damage to the premises and costs of the summary process action from the defendants. The plaintiff instituted this action by seeking a prejudgment remedy through an application filed on October 10, 1991. The defendants retained counsel, and then answered the plaintiff’s complaint on July 17,1992. On October 12,1992, after this matter was scheduled for trial, the defendants filed a request to amend the pleadings by adding a counterclaim. This request was granted without objection at the first hearing on November 12,1992. The counterclaim alleged that the plaintiff took a large ladder that the defendants stored on the plaintiff’s property and appropriated it for his own use, constituting conversion and theft. The counterclaim stated that the reasonable value of the ladder was $750. The defendants requested treble damages for the theft of the ladder.

On January 13, 1993, after both parties had rested, the defendants submitted a request for leave to amend their counterclaim in order to conform to the proof. The request alleged that the plaintiff had taken the following additional items belonging to the defendants: twenty-five light fixtures, valued at $25 each, an asbestos mask valued at $1000, a tailgate valued at $300 and a bicycle valued at $25. That same day, the trial court granted the defendants request to amend

The trial court awarded the plaintiff $1400 for rent arrearage, $146.40 for summary process fees and costs and $100 for damage to the premises. In reviewing the counterclaim, the trial court found that the plaintiff wrongfully refused access to the defendants when they went to retrieve their belongings and was therefore liable for the damages arising from the conversion of those belongings. Moreover, the court found that the defendants met their burden of proof on the valuation of their goods and awarded the defendants $450 for the lights, $25 for the bicycle, $1000 for the asbestos mask, and $300 for the tailgate. In addition, the court found that the defendants had met their burden on the value of the ladder and had proved by clear and convincing evidence that the plaintiff had stolen the ladder. Hence, the trial court awarded treble damages for the ladder. A net judgment was rendered for the defendants in the amount of $3078.60.

I

The plaintiff first claims that the trial court abused its discretion by allowing the defendants to amend their counterclaim after the trial. On January 13,1993, after the parties had rested, the defendants submitted a motion to amend their counterclaim. The defendants amended their allegation of the time period during which the plaintiffs conversion of the defendants’ goods had taken place from “the period of the defendants’ occupancy” to “the period of the defendants’ occupancy and prior to their completely vacating.” The defendants further amended their counterclaim to include three more items; in addition to the previously claimed ladder, the defendants included the list of property allegedly taken by the plaintiff. In presenting the motion to amend the counterclaim, the defendants’ attorney argued that because the plaintiff had barred the defendants from returning to the premises, the defendants were not aware that the items had been left behind until the trial, when they examined photographs, taken by the plaintiff, showing the outside of the premises after the period of the defendants’ occupancy. It was the defendants’ viewing of the photographs that made them aware of those items. Moreover, he argued that the defendants did not know until the trial that there was evidence that the plaintiff had taken those items. Therefore, the defendants could not possibly have included those additional items of property in their counterclaim at an earlier time and, thus, should be allowed to amend their counterclaim. The trial court accepted this explanation and allowed the amendment.

The plaintiff argues that the trial court’s allowance of the amendment to the counterclaim was an abuse of discretion. The plaintiff contends that the explanation given by the defendants as to why they did not claim damages for unretrieved goods, other than the ladder, in their original pleadings or prior to the commencement of the trial is in direct conflict with the evidence. The plaintiff avers that on December 10,1992, while on the witness stand, the defendant Mark Sergi testified that he had returned to the premises after partially vacating the property specifically to retrieve certain items that he knew were there, including a ladder, a tailgate and fluorescent lights. The plaintiff recounts that the next day, Sergi testified that he knew that these materials were still on the premises, even while the plaintiff was barring him from returning to the property and recovering them. The plaintiff argues that Sergi’s own testimony refutes his claim that he did not remember many of the items that had been left behind. Moreover, the plaintiff argues that when Sergi was asked why he had not previously made any claims for the unretrieved items, other than the ladder, he responded that it was his intention that the matter of the lost possessions would come out in court.

The plaintiff also argues that the explanation given by the defendants to justify the amended counterclaim was directly contradictory to the defendants’ whole theory of defense, which was that they were prevented from recovering their property and cleaning the premises when the plaintiff barred them from the property. The court accepted this defense and denied the plaintiff the damages claimed for removing debris and cleaning the premises. The plaintiff argues that the court cannot simultaneously accept as a defense a claim that the defendants were prevented from recovering their property, and then accept as a justification for amending the counterclaim that the defendants did not know that they had lost property as a result of the actions of the plaintiff.

“The grant or denial of a motion to amend the pleadings is a matter within the discretion of the trial court.” Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 341, 438 A.2d 95 (1980). In the interest of justice, our courts have generally been most liberal in allowing amendments. Id., 341; Henry v. Klein, 15 Conn. App. 496, 500-501, 545 A.2d 575 (1988). Where a sound reason to amend is shown, the trial court must allow the amendment. Refusal under such circumstances constitutes an abuse of discretion. Cook v. Lawlor, 139 Conn. 68, 71-72, 90 A.2d 164 (1952); Clayton v. Clayton, 115 Conn. 683, 686,163 A. 458 (1932). “The essential tests are whether the ruling of the court will work an injustice to either [party] and whether the granting of the motion will unduly delay a trial.” Smith v. New Haven, 144 Conn. 126, 132, 127 A.2d 829 (1956). In the final analysis, the court will allow an amendment unless it will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party or confuse the issues, or if there has been negligence or laches attaching to the offering party. Crowell v. Middletown Savings Bank, 122 Conn. 362,189 A. 172 (1937).

We conclude that it was not an abuse of discretion for the trial court to allow the amended counterclaim offered by the defendants. Where there is a variance between allegations in the complaint and the proof at trial, which is corrected by amendment to the complaint, a judgment based on an amended complaint will not be set aside unless the variance misled, or prejudiced the plaintiff on the merits of the case. Antonofsky v. Goldberg, 144 Conn. 594, 599, 136 A.2d 338 (1957). In this case, the defendants requested the amendment to conform the pleadings to the proof that had been offered. It would have been entirely reasonable for the trial court to find that a variance existed between the allegations in the original counterclaim and the proof presented at trial. The amendment did not mislead or prejudice the plaintiff because both the amendment and the original counterclaim arose from a single group of facts claimed to have been brought about by the plaintiffs unlawful act of precluding the defendants from entering the property. The amendment merely enlarged the claim of conversion by the plaintiff to include additional belongings owned by the defendants and insignificantly altered the time period of the events. The amendment did not inject into the case anything foreign to the issues in the original counterclaim that required proof of facts the plaintiff could not meet through the normal course of the trial.

It was within the discretion of the trial court to assess the credibility of the defendant Mark Sergi’s testimony. Although the parties disagreed as to what specific items, if any, Sergi knew were on the premises when he returned to finish collecting his belongings, it would have been entirely reasonable for the trial court to conclude that he was not aware of the specific items he had left behind until he viewed the photographs at trial.

Despite the plaintiffs arguments to the contrary, it was not inconsistent for the trial court simultaneously to embrace the defendants’ reasons for amending their counterclaim and their defense to the plaintiff’s claim related to cleaning costs. It was reasonable for the trial court to find that the defendants were barred by the plaintiff from returning to the premises. Likewise, it was reasonable for the trial court to find concurrently that the defendants knew they had left goods behind but did not remember the exact items until the time of trial.

The plaintiff cites the test given in Antonofsky v. Goldberg, supra, 144 Conn. 597, to support his claim that the trial court abused its discretion in allowing the counterclaim. In Antonofsky, the court held that the trier of fact is required to consider whether the delay in amending is reasonable, whether allowing the amendment is fair to the plaintiff, and whether the moving party is negligent for failing to raise the claim earlier. Id. In this case, the defendants did not delay in amending, but did so once it became apparent that there was a variance between the proof and the pleadings, refuting any claims of negligence on the part of the defendants. Regarding the fairness to the plaintiff, the plaintiff had ample opportunity at trial, once the request was made to amend the counterclaim, to move for a continuance in the trial to defend against the added claims.

On the basis of our review of the trial court record, we find that the trial court did not abuse its discretion in granting the defendants’ motion to amend their counterclaim.

II

The plaintiff claims that the trial court incorrectly found that the defendants had offered sufficient competent evidence to prove damages. The plaintiff argues that the defendants offered contradictory or subjective evidence on every item that they claimed they lost except the bicycle. He contends that the trial court speculated as to the proper amount of damages.

The plaintiff states that during the course of the trial, the defendant Mark Sergi testified that he was given the ladder in satisfaction of a $1000 debt owed him. The debtor was not produced as a witness to corroborate the value of the ladder. He also stated that he had recently purchased a similar ladder for $600. The defendants’ amended counterclaim valued the ladder at $750. With regard to the tailgate, Sergi offered two monetary values, $400 and $300, and later stated that he was not certain of its value. The amended counterclaim valued the tailgate at $300. Sergi further testified that the fluorescent lights were worth $750 and later acknowledged that he had arrived at that estimate without counting the number of lights that were missing. In addition, Sergi indicated that the lights were not new and had been removed from a job site as partial payment for services performed. Evidence was not presented to show that the value of the lights was related to the services rendered. In subsequent testimony, Sergi stated that the lights were worth approximately $25 each. He arrived at this figure by calculating the price at which he would later attempt to sell the lights. The potential buyers were not specified. The amended counterclaim claimed a loss of twenty-five lights, each valued at $25. Concerning the asbestos mask, Sergi testified first that the asbestos mask was worth $1000 and later, that it was worth $5000.

The plaintiff maintains that in each of these instances the trial court improperly accepted the testimony of Mark Sergi without additional authentication, documentation or verification through receipts, witnesses, and other objective evidence. The plaintiff argues that Sergi’s conflicting testimony failed to remove the question of damages from the realm of speculation and, consequently, the defendants failed to satisfy their burden of proof on the issue of damages.

The law in this state is well settled as to the competency of the owner of property to testify as to its value. “Our cases have ruled that the competence of the witness to testify to the value of property may be established by demonstrating that the witness owns the property in question. . . . The rule establishing an owner’s competence to testify reflects both the difficulty of producing other witnesses having any knowledge upon which to base an opinion especially where the stolen items are never recovered . . . and the common experience that an owner is familiar with her property and knows its worth.” (Citations omitted.) State v. Baker, 182 Conn. 52, 60-61, 437 A.2d 843 (1980). “A party’s testimony as to the value of personal property is proper even if no qualification other than ownership of it is shown.” Sachs v. Sachs, 22 Conn. App. 410, 422, 578 A.2d 649, cert. denied, 216 Conn. 815, 580 A.2d 60 (1990). Although the plaintiff argues that more than the testimony of Mark Sergi is needed to substantiate the value of the defendants’ property, he provides no case law, statute or rule of practice to support his proposition.

In this case, there was no disagreement between the parties that the defendants were the owners of the items listed in the amended counterclaim. The record discloses that the foundation for the value of these items was the testimony of Mark Sergi. An owner’s opinion as to the value of his property goes to the weight of the testimony and not to its admissibility. Shane v. Tabor, 5 Conn. App. 363, 364-65, 497 A.2d 1047 (1985); Perl v. Case, 3 Conn. App. 111, 115, 485 A.2d 1331, cert. denied, 195 Conn. 803, 491 A.2d 1103 (1985).

“This court cannot retry the facts or pass on the credibility of the witnesses.” Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422-23, 446 A.2d 799 (1982). It was not unreasonable for the trial court to weigh the testimony of the defendant Mark Sergi and accept his valuation of the property. Contrary to the plaintiff’s argument, the trial court may have relied on evidence other than the testimony of Sergi. The trial court had the opportunity to view photographs of the defendants’ property that had been introduced into evidence by the plaintiff. These photographs could have provided the court with additional, objective evidence of the condition, quantity and value of these goods.

We conclude that the trial court did not abuse its discretion in finding that the defendants had offered sufficient competent evidence to prove damages.

Ill

The plaintiff claims the trial court improperly awarded damages that were not claimed in any of the defendants’ pleadings. The defendants’ request to amend their counterclaim sought to add several items allegedly converted by the plaintiff, including an asbestos mask valued at $1000. The amended counterclaim, which became a part of the pleadings, recited the same items as had the request to amend, with the exception of the asbestos mask. That item was not included in the amended counterclaim. In its memorandum of decision, the trial court awarded the defendants $1000 in damages for the conversion of the mask by the plaintiff. The plaintiff argues that the trial court improperly awarded damages for an item that was never included in the pleadings.

“Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them.” Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952). “The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.” Francis v. Hollauer, 1 Conn. App. 693, 694-95, 475 A.2d 326 (1984). It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations in his complaint. Id., 695; Kawasaki Kisen Kaisha Ltd. v. Indomar, Ltd., 173 Conn. 269, 272, 377 A.2d 316 (1977); Strimiska v. Yates, 158 Conn. 179, 185, 257 A.2d 814 (1969). “A plaintiff may not allege one cause of action and recover on another. Facts found but not averred cannot be made the basis for a recovery.” Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952).

In this case, evidence was presented during the trial concerning the asbestos mask. “Even though the trial court had admitted evidence upon this subject, as the matter was wholly outside the issues raised by the pleadings, no judgment could have been founded upon it and the court was not required to make any finding based upon such evidence.” Kane v. Kane, 120 Conn. 184, 189-90, 180 A. 308 (1935). The trial court improperly awarded damages to the defendants for an item that was never in issue. Therefore, this court must reverse the judgment of the trial court awarding the defendants $1000 in damages for the conversion of their asbestos mask.

IV

In his final issue raised on appeal, the plaintiff argues that the trial court should have found that the defendants had acted unreasonably in violation of their duty to mitigate their damages. The plaintiff contends that during the last week of July, 1991, when the defendants returned to the premises to retrieve the remainder of their property, there existed a court ordered stipulated judgment that gave the defendants the right to possess and occupy the premises through August 31, 1991. The plaintiff argues that the defendants’ right to occupy the property would not terminate without an execution issued by the court. Therefore, the plaintiff concludes, the defendants had a duty to minimize their damages by returning to the property and collecting all of their belongings.

In its memorandum of decision, the trial court found that the defendants personally left the premises on or before August 1,1991, intended to have their possessions removed on or before that date and were prohibited from doing so by the plaintiff, who wrongfully refused the defendants access to the property. The trial court could reasonably have drawn this conclusion based on testimony by the defendant Mark Sergi and a neighbor of the defendants that the plaintiff told the defendants that he would have them arrested if they ever returned to the property. Despite this finding, the plaintiff now argues that regardless of his improper behavior, the defendants should have ignored the plaintiffs threats and persisted in attempting to retrieve their belongings.

In a breach of contract action, a defendant does have a duty to exercise reasonable conduct to minimize his damages. Willametz v. Goldfeld, 171 Conn. 622, 627, 370 A.2d 1089 (1976). In this case that is precisely what the defendants attempted to do. They returned to the premises, prior to August 1, 1991, to retrieve the remainder of their property. The trial court reasonably concluded that the defendants were precluded from doing so by the plaintiff. The plaintiff cannot now argue that the defendants made no attempts to minimize their damages. The defendant Mark Sergi was on probation at the time of the confrontation between the parties. It was reasonable for him to conclude, and for the trial court to find, that any insistence on his part in returning to the property would cause further legal complications for him.

The judgment is reversed and the case is remanded with direction to render judgment as on file except as modified to reduce the amount of the award by $1000.

In this opinion the other judges concurred.

       The record is insufficient to determine whether Mark Sergi was a party to this agreement.

       It should be noted that pursuant to General Statutes § 52-584 and Practice Book § 168, a defendant may interpose a counterclaim in an action for injury to person or property at any time before the pleadings are finally closed. In this case, the plaintiff initially objected to the late filing of the defendants’ counterclaim but subsequently waived his objection. The trial court allowed the counterclaim to be filed. their counterclaim. The defendants’ amendment reiterated the list of goods previously delineated in their request to amend, with the exception of the asbestos mask.

       The trial court found that the defendants left the premises on or before August 1, 1991, intended to have their possessions removed on or before that date, and were prohibited from returning to the premises to clean up and remove their belongings. Therefore, the trial court did not award the plaintiff any August use and occupancy payments and denied the plaintiff any damages for cleaning charges. In addition, the trial court found that the plaintiff did not sustain his burden of proof for most of the claimed repairs to the premises and awarded only $100 for damage repairs. On appeal, the plaintiff does not challenge any of the trial court’s findings regarding the damages awarded him.

       These photographs were introduced by the plaintiff in order to establish that the defendants had left the premises in a deplorable condition.

       Our rules of practice specifically provide that in all cases of any material variance between allegation and proof, an amendment may be permitted before, during and after trial. Practice Book § 178; Wright v. Coe & Anderson, Inc., 156 Conn. 145, 155-56, 239 A.2d 493- (1968).

       If an amendment is allowed at trial and the opponent wants to raise an abuse of discretion issue on appeal, he should immediately move for a continuance in the trial in order to defend against the new issue. In Smith v. New Haven, supra, 144 Conn. 126, because the defendant failed to move for either a postponement of the trial or a delay, the Supreme Court rejected the abuse of discretion claim.


author: Schaller, J.

text:
    Lois L. Sinert v. Olympia and York Development Company et al.
    (13546)
    Dupont, C. J., and Landau and Schaller, Js.
    Argued April 26
    decision released August 22, 1995

      Constance L. Epstein, with whom, on the brief, was Jack G. Steigelfest, for the appellants (defendants).

      JohnB. Farley, with whom were Richard C. Tynan and, on the brief, John W. Lemega, for the appellee (plaintiff).
   Schaller, J.

The defendants appeal from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Lois L. Sinert, in this negligence action. The defendants claim that the trial court improperly (1) instructed the jury as to the law as stated in Kraus v. Newton, 211 Conn. 191, 558 A.2d 240 (1989), (2) failed to render judgment for the defendants because the only evidence presented was that a storm was in progress at the time of the fall and under Connecticut law there is no duty to remedy the effects of a storm until a reasonable time after the storm ends, (3) denied the defendants’ request for an interrogatory to the jury, and (4) failed to instruct the jury on the issue of notice. We reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On December 28, 1990, a winter storm hit the city of Hartford. Six inches of snow fell from midnight until around 12:15 p.m. At about 1:15 p.m. freezing rain began and continued until the following midnight. The freezing drizzle froze upon contact with the ground.

The plaintiff, a legal secretary at offices located at One Corporate Center, left the building at approximately 3:20 p.m. At that time, the freezing rain was falling. The snow had been cleared from the walkways. The rain was freezing on her glasses as she walked through the courtyard to the sidewalk. The plaintiff watched where she was walking, avoiding areas where she saw ice. She fell on an area where she did not see any ice until after the fall. The freezing rain continued for a period of time after the plaintiffs fall.

One Corporate Center was owned by the defendants Olympia and York Development Company and the Chase Family Partnership, which had contracted with the defendant National Cleaning Contractors, Inc., for interior janitorial services, as well as for snow and ice removal at One Corporate Center. Building Maintenance Corporation (Building Maintenance) was the local division of National Cleaning Contractors, Inc.

Jose Burgos, the Building Maintenance project manager for One Corporate Center had significant quantities of an ice-melt product called Urea, shovels, pellet spreaders, ice choppers and a snow blower on hand. Burgos arranged for seven to eight employees to be on duty in the early morning hours to attend to the snow removal. Throughout the day, Burgos brought on a total of eighteen additional employees in varying shifts.

When the snow stopped, Burgos’ crew finished removing the snow. Burgos then made arrangements for additional help to work through the afternoon and evening hours. During the freezing rain, the employees were to chop any accumulated ice, push it away from the walkway, and apply Urea.

At the conclusion of the plaintiff’s presentation of her case, the defendants moved for a directed verdict, premised on Kraus v. Newton, supra, 211 Conn. 191. The court denied the motion holding that a factual issue remained for the jury’s determination as to whether there was a storm in progress at the time of the plaintiff’s fall. At the close of the evidence, the defendants requested that the court submit to the jury a special interrogatory inquiring as to whether the jury found that a storm was continuing at the time of the plaintiff’s fall. This request was denied.

In their request to charge, the defendants requested that the court direct the jury to return a verdict in favor of the defendants if the jury found the storm was ongoing at the time of the fall. The court rejected this request to charge and, instead, instructed the jury that it could find a duty on the part of the defendants to clear the walk of ice during the continuation of an ongoing storm, if certain circumstances existed.

The jury returned a verdict in the plaintiffs favor, awarding a total of $540,000. The defendants timely filed a motion to set aside the verdict and for judgment notwithstanding the verdict, which the court denied. After a hearing on the setoff for collateral source payments and the correction of a computation error on the part of the jury, the court rendered judgment in the amount of $476,783.46. The defendants filed this appeal.

I

The defendants claim that the trial court improperly instructed the jury as to the law as stated in Kraus v. Newton, supra, 211 Conn. 191. Specifically, the defendants argue that the trial court gave an improper instruction as a matter of law in its definition of “unusual circumstances” as it is used in Kraus. We agree.

The defendants’ request to charge included a request that the court direct the jury to return a verdict in favor of the defendants if the jury found that there was an ongoing storm. The court, instead, gave the following instruction: “Now, absent unusual circumstances, a property owner in fulfilling the duty owed upon his property to exercise reasonable diligence in removing dangerous accumulations of ice and snow may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps. The law does not require the property owner to engage in an impractical effort with the forces that may be uncontrollable while a storm is in progress. The question you must ask yourself is whether there was such a storm in progress at the time the plaintiff fell as to make it impractical to require the owner of the building and their hired maintenance crew to have undertaken to do something about the condition of the sidewalk where the plaintiff fell, keeping in mind those circumstances which I referred to earlier, that is the location of the premises, the use of the premises, the day of the week and the time of day.

“If you conclude that the defendants were in the exercise of due care under all of the circumstances, including the weather which you find existed at the time the plaintiff fell, you would return a verdict for the defendants. If you conclude that the defendants did not exercise due care under all of the circumstances, including the weather which you find existed at the time the plaintiff fell, and if you also find that the plaintiff’s injuries were caused by the icy condition of the sidewalk, you would go on to consider the defendants’ special defense of contributory negligence.”

This claim requires us to consider the meaning of the term “unusual circumstances” as it was used in Kraus v. Newton, supra, 211 Conn. 191. In Kraus, our Supreme Court held that “in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps.” (Emphasis added.) Id., 197-98. While it is true that according to Kraus, if unusual circumstances exist, a landowner may have a duty to remove accumulations of ice and snow from walks and steps before the end of a storm, we conclude that the circumstances that existed in this case do not qualify as unusual.

The court instructed the jury to consider certain circumstances in determining whether the defendants owed the plaintiff a duty to clear the accumulation from the sidewalk. “The question you must ask yourself is whether there was such a storm in progress at the time the plaintiff fell as to make it impractical to require the owners of the building and their hired maintenance crew to have undertaken to do something about the condition of the sidewalk where the plaintiff fell, keeping in mind those circumstances which I referred to earlier, that is the location of the premises, the use of the premises, the day of the week and the time of day.” (Emphasis added.) This instruction is improper because it takes into consideration the status of the defendants as owners and maintainers of a commercial building in determining the duty owed to a plaintiff. Although the Supreme Court made it clear that Kraus v. Newton, supra, 211 Conn. 198, applies to “a landlord or other inviter,” (emphasis added) there is no authority for the proposition that a defendant’s status as the owner of commercial property imposes a different, and higher, duty of care than that imposed on owners of private or residential property. A landowner’s duty of care with respect to others has always been determined on the status of the entrant, i.e., trespasser, licensee, or invitee. Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992).

The factors enunciated by the trial court are not appropriate considerations for a jury with respect to this issue. The status of the defendant has never been relevant in determining the duty owed a person injured on that defendant’s premises. The trial court’s assessment of unusual circumstances in this case would result in a heightened duty of care for some landowners as opposed to others. The standard of care as explicated in Connecticut cases is based on the status of the plaintiff, not the defendant. Unusual circumstances, therefore, do not include those factors that define the status of the defendant. Kraus makes it clear that, absent unusual circumstances, the only factors to be considered are whether a storm was ongoing at the time of the accident and the plaintiffs status as an invitee. Kraus v. Newton, supra, 211 Conn. 197-98.

We conclude that the court’s instruction to the jury was incorrect as a matter of law. The court’s instruction did not conform to the standard as written in Kraus v. Newton, supra, 211 Conn. 191. According to the rule in Kraus, absent unusual circumstances, a landowner’s duty to remedy the effects of a storm does not arise until the end of a storm and a reasonable time thereafter. The trial court improperly instructed the jury that it could find unusual circumstances in this case based on the defendants’ status.

II

The defendants next claim that the trial court improperly failed to render judgment for the defendants because the only evidence presented was that a storm was in progress at the time of the fall and, under Connecticut law, there is no duty to remedy the effects of a storm until a reasonable time after the storm ends. We do not agree.

Connecticut law requires a landowner to use reasonable care to maintain the premises in a reasonably safe condition. Warren v. Stancliff, 157 Conn. 216, 218, 251 A.2d 74 (1968). In Kraus v. Newton, supra, 211 Conn. 197-98, our Supreme Court held “that in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps.” The court found that the rationale behind the rule was that “[t]o require a landlord or other inviter to keep walks and steps clear of dangerous accumulations of ice, sleet or snow or to spread sand or ashes while a storm continues is inexpedient and impractical.” Id., 198.

In this case, the evidence at trial was uncontroverted that freezing rain was falling at the time of the accident. Every witness who testified to the weather conditions on that day stated that, about one hour after the snow stopped, freezing rain fell continuously until after the incident. There was no testimony or other evidence to the contrary.

Although there was no disputed factual issue for the jury as to whether there was a storm in progress at the time of the plaintiffs fall, a question of fact existed concerning whether the ice on which the plaintiff slipped came from the freezing rain. The evidence at trial established that the snow storm ended around 12:15 p.m., and that the freezing rain began approximately one hour later at 1:15 p.m. The evidence was in dispute whether the plaintiff slipped on ice deposited entirely from the freezing rain, or partially accumulated from the snow storm. It is unclear in what manner the jury resolved this factual issue, if at all. Additionally, it was unclear if the freezing rain was a separate storm or a continuation of the original storm. These are questions of fact for the jury to consider in order to determine if there was a duty under Kraus to clear the accumulation of snow. Because there were factual determinations to be resolved by the jury, we conclude that the trial court properly denied the defendants’ request for a directed verdict.

Because we reverse the judgment on the defendants’ first claim, we must remand for a new trial.

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

In this opinion the other judges concurred.

       It is unnecessary to review the defendants’ other claims. With respect to the claim of improper denial of the request to submit an interrogatory to the jury, however, we note that the defendants requested that the following be submitted to the jury: “Did you find that there was an ongoing storm at the time of the plaintiff’s fall?” The court denied this request and the trial culminated in a general verdict. The requested interrogatory would not have been dispositive in this case due to the questions of fact that remained, and might even have been misleading to the jury because of the complicated factual situation of this case.
      The purpose of a jury interrogatory is to elicit a determination of material facts and to furnish the means of testing the correctness of the jury’s verdict. Willametz v. Guida-Seibert Dairy Co., 157 Conn. 295, 301, 254 A.2d 473 (1968). Jury interrogatories have also been utilized in protecting a defendant from the implications of a general verdict. “[Wjhere a complaint is divided into counts and a general verdict is returned, it will be presumed, if the charge and all rulings are correct on any count, that damages were assessed as to that count, and the verdict will be sustained. Ziman v. Whitley, 110 Conn. 108, 112, 147 A. 370 (1930).” Sheeler v. Waterbury, 138 Conn. 111, 114, 82 A.2d 350 (1951); Ross v. Koenig, 129 Conn. 403, 405, 28 A.2d 875 (1942). Because it is within the sound discretion of the trial court whether to submit jury interrogatories; O'Donnell v. Groton, 108 Conn. 622, 623,144 A.2d 468 (1929); it was not improper for the court to refuse to do so in this case. Because of the complicated factual determinations for the jury to consider before it could reach the Kraus analysis, the jury, however, would have been assisted by interrogatories as would have the court and the defendants in this case. See Sheeler v. Waterbury, supra, 114-15; Ziman v. Whitley, supra, 112.


author: Spear, J.

text:
    Debra A. Dionne v. Paul Markie et al.
    (13556)
    Dupont, C. J., and Schaller and Spear, Js.
    Argued May 31
    decision released August 22, 1995

      Mark E. Blakeman, with whom was Justine R. Tobis, for the appellant (plaintiff).

      Lorinda S. Coon, for the appellees (defendants).
   Spear, J.

The plaintiff appeals from the trial court’s judgment, rendered after a jury verdict, in favor of the defendants Paul Markie, Paul Markie doing business as Markie Motors, and T.K. Sales, Inc. The disposi-tive issue is whether the trial court improperly failed to charge the jury on the statutory presumptions of family car use and general authority pursuant to General Statutes § 52-182. We find that the failure to so charge was plain error and reverse the judgment of the trial court. In view of this disposition, it is unnecessary to reach the plaintiff’s remaining claims.

The. jury reasonably could have found the following facts. On May 3, 1992, a car driven by the defendant, Douglas Markie, collided with the plaintiffs car. The car driven by Douglas was owned by his father, Paul Markie doing business as Markie Motors, and T.K. Sales, Inc. On the day of the accident, Douglas drove the car off the lot of the used car dealership owned by his father. The plaintiff sued Douglas as the operator of the car and Paul Markie, alleging an agency theory, as well as the family car doctrine pursuant to § 52-182.

Pursuant to § 52-182, proof that the operator of a motor vehicle was the husband, wife, father, mother, son or daughter of the owner raises a presumption that the motor vehicle was being operated as a family car within the scope of a general authority from the owner. The burden then shifts to the defendant to rebut this presumption.

At trial, the court instructed the jury on the family car doctrine as a basis for the defendants’ liability pursuant to § 52-182. The trial court, however, failed to instruct the jury on the statutory presumption established in § 52-182. Instead, the jury was instructed that the burden was on the plaintiff to prove all elements of the family car doctrine. The plaintiff did not object to this jury instruction at trial. The jury returned a verdict for the plaintiff as against Douglas in the amount of $68,796.17, but found in favor of the other defendants. In response to a special interrogatory, the jury answered no to the following question: “Do you find that Douglas Markie had a general authority to use the car at the time of the accident?”

The plaintiff claims that the trial court should have instructed the jury on the presumption set forth in § 52-182. The defendants assert that the plaintiff did not bring this claim to the trial court’s attention pursuant to Practice Book § 315, and, thus, did not adequately preserve it for appellate review. The plaintiff concedes that she did not comply with § 315, but asserts that she is entitled to plain error review.

“Where a claimed error of a nonconstitutional nature is not brought to the attention of the trial court, appellate review of that claim is available only if it constitutes plain error.” Aksomitas v. Aksomitas, 205 Conn. 93, 97, 529 A.2d 1314 (1987); see also Practice Book § 4185. “Such 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.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980); Smith v. Czescel, 12 Conn. App. 558, 563, 533 A.2d 223, cert. denied, 206 Conn. 803, 535 A.2d 1316 (1987).

We have consistently held that plain error review is necessary where the trial court, in its instruction, overlooks a clearly applicable statute; State v. Hinckley, supra, 198 Conn. 88; State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980); Hartford Federal Savings & Loan Assn. v. Tucker, supra, 181 Conn. 609; In re Jonathan P., 23 Conn. App. 207, 211, 579 A.2d 587 (1990); or where the trial court fails to comply with a relevant statute. State v. Ellis, 32 Conn. App. 849, 853, 632 A.2d 47 (1993). In the present case, the trial court did instruct the jury on the family car doctrine, but failed to instruct the jury on the statutory presumption. The trial court, through its instruction, allocated the burden of proving that Douglas was acting under the general authority of the defendants to the plaintiff without the benefit of the statutory presumption. Pursuant to § 52-182, the plaintiff was entitled to a presumption on the issue of general authority upon proving that Douglas was the son of the owner of the car. The plaintiff, therefore, should have been relieved of the burden of going forward with evidence on the issue. The trial court’s failure to comply with the express statutory language found in § 52-182 necessitates a plain error review.

Our Supreme Court’s decision in Jancura v. Szwed, 176 Conn. 285, 407 A.2d 961 (1978), addresses a fact pattern that is almost identical to the facts here. In Jan-cura, the trial court instructed the jury on the family car doctrine but denied the plaintiff’s request to charge the jury on the statutory presumption. Id., 289. On appeal, the Supreme Court found that the trial “court denied [the plaintiff] the benefit of the statute . . . and that in the absence of a charge on the statutory presumption, it is likely that the jury believed that the plaintiff was required to bear the burden of proof as to the family car issue in the first instance, even if the jury did not believe the defendant’s evidence on the issue.” Id., 290-91. The'Supreme Court held that the failure to charge the jury on the presumption was reversible error. Id., 291. In the present case, we must presume that the jury believed that the plaintiff was required to bear the burden of proof in the first instance because the trial court explicitly charged the jury that “[ujnless the Plaintiff proves all three of these elements then she cannot recover against the defendants, Paul Markie or Markie Motors or T.K. Sales, under the family car doctrine.”

The defendants claim that the trial court’s failure to instruct the jury on the statutory presumption was not plain error. They contend that any error committed was harmless since there was sufficient evidence in the record to rebut the presumption that Douglas was acting under the general authority of the defendants. The defendants principally rely on the jury’s answer to the third special interrogatory relating to the family car doctrine. In response to the question, “Do you find that Douglas Markie had a general authority to use the car at the time of the accident?” the jury answered “No.” The defendants assert that the jury’s answer demonstrates that they offered sufficient evidence to rebut the presumption in § 52-182.

We are unpersuaded by this argument. “[Section 52-182] goes further than merely establishing a presumption, in that it expressly places upon the defendant the burden of introducing evidence to rebut the presumption created by the statute. Moreover, that presumption is not ousted simply by the introduction of any evidence to the contrary. . . . The presumption ceases to be operative [only] when the trier finds proven facts which fairly put in issue the question ... if no evidence relevant to the issue is produced, or, if countervailing evidence is produced but the trier does not believe it, the presumption applies, and the plaintiff is entitled to have the issue found in his favor.” (Citation omitted; internal quotation marks omitted.) Jancura v. Szwed, supra, 176 Conn. 290; see also Cook v. Nye, 9 Conn. App. 221, 227, 518 A.2d 77 (1986).

Without the benefit of the presumption, the jury may have reasonably concluded that the plaintiff failed to offer any evidence to prove that Douglas was acting under the general authority of the defendants, thereby necessitating a verdict for the defendants. The jury may not have even considered the defendants’ evidence in arriving at its verdict. Furthermore, the jury did not know that the presumption required a finding in favor of the plaintiff on this issue if it disbelieved the defendants’ evidence. Although the claim of instructional error here was not properly raised and preserved, as was the case in Jancura, the harm to the plaintiff here was as egregious. We conclude that the error was so obvious and so affected the fairness of the trial that it constituted plain error.

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

In this opinion the other judges concurred.

       Counsel stipulated at trial that the defendants Paul Markie, Paul Markie doing business as Markie Motors, and T.K. Sales, Inc., were to be considered as having the same interests and were to be viewed as one entity.

       General Statutes § 52-182, which codifies the family car doctrine, provides in pertinent part: “Proof that the operator of a motor vehicle . . . was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle . . . was being operated as a family car . . . within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption.”

       The plaintiffs remaining claims are (1) whether the trial court abused its discretion in submitting special interrogatories to the jury when the special interrogatories confused and misled the jury, (2) whether the jury could have reasonably and legally found that Douglas Markie did not have general authority to operate the family vehicle at the time of the accident, (3) whether the trial court erred in failing to set aside the jury verdict when the verdict was contrary to law and against the evidence produced at trial, (4) whether the jury’s responses to the special interrogatories as to the family car doctrine and agency were contradictory, inconsistent, conflicting and irrational as a matter of law, and (5) whether the court erred in failing to set aside the verdict when the jury’s responses to the special interrogatories were contradictory, inconsistent, conflicting and irrational as a matter of law.

       In response to a special interrogatory, the jury found that Douglas was not an agent of the defendants at the time of the accident.

       See footnote 2.

       Our Supreme Court has established that family corporations can be liable under the family car doctrine. Durso v. A. D. Cozzolino, Inc., 128 Conn. 24, 30, 20 A.2d 392 (1941). There is “no valid distinction between a situation where it is owned and maintained by a member of the family and one where, as here, it is owned and maintained by a family corporation for the use of the family . . . .” Id.

       The relevant portion of the jury instruction is: “You’ll see as you look at this issue and I’ll instruct you, that there are really three essential propositions or elements involved in the family car doctrine, each of which must exist if the doctrine is to apply. So when you’re evaluating this question on the family car doctrine, ask yourself the following questions and ask whether or not these elements have been proven. And they are as follows: first, has the plaintiff, Mrs. Kulas, proven that the car was owned by the defendant, Paul Markie . . . and maintained by him for the general use and convenience of one or more members of his family other than himself and including his son, Douglas Markie? The second question — second, at the time of the accident was it being used by Douglas Markie for his pleasure or convenience? And, third, did Douglas Markie have general authority to use the car and was he at the time in question driving it under and within the scope of his general authority? Unless the plaintiff proves all three of these elements then she cannot recover against the defendants, Paul Markie or Markie Motors or T.K. Sales, under the family car doctrine." (Emphasis added.)

       After some deliberation, the jury requested that it be reinstructed on the family car doctrine. The judge reiterated his earlier instruction. Again, the plaintiff did not object to the instruction.

       The special interrogatories to the jury relating to the family car doctrine were presented and answered as follows:
      “1. Do you find that the Defendants Markie Motors dba T.K. Sales, Incorporated or Paul Markie dba Markie Motors owned the vehicle that Douglas Markie was operating at the time of the accident?
      “Yes.
      “2. Do you find that the car was being used by Douglas Markie as a family car for his pleasure and convenience at the time of the accident?
      “Yes.
      “3. Do you find that Douglas Markie had a general authority to use the car at the time of the accident?
      “No.”

       Practice Book § 315 provides in pertinent part: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. . . .”

       Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interest of justice notice plain error not brought to the attention of the trial court. . . .”

       In Jancura, the plaintiff, injured in an automobile accident, obtained a jury verdict against the operator of the automobile, but did not prevail against the operator’s father, the owner of the vehicle. The plaintiff had requested the trial court to charge the jury on the family car statutory presumption provided for in § 52-182. Jancura v. Szwed, supra, 176 Conn. 287. The trial court denied the request and instructed the jury that “the plaintiff had the burden of proof as to all allegations of his complaint . . . .” Id., 290-91.


author: Hennessy, J.

text:
    Norwich Savings Society v. Joseph M. Caldrello II
    (13572)
    Foti, Landau and Hennessy, Js.

      Argued April 28
    decision released August 22, 1995

      Max F. Brunswick, for the appellant (defendant).

      Elizabeth J. Stewart, with whom was Laura E. Evan-gelista, for the appellee (plaintiff).
   Hennessy, J.

The defendant appeals from the judgment of foreclosure by sale and the judgment in favor of the plaintiff bank on the defendant’s counterclaim. The defendant claims that the trial court improperly (1) granted the motions to strike his special defenses, (2) failed to find a violation of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA), and (3) concluded that a secret extension of the terms of a loan did not materially harm the defendant. We affirm the judgment of the trial court.

The trial court found the following facts relevant to this appeal. The defendant’s father, Joseph Caldrello, Sr., is the principal stockholder, director and chief operating officer of Caldrello Motors Groups (Caldrello Motors), a number of corporations owning various retail automobile dealerships in Connecticut, Rhode Island, New Jersey and California. Caldrello Motors had gross annual revenues in excess of $80 million. Caldrello, Sr., and Caldrello Motors had a long-standing relationship with the plaintiff and James R. Brown, its senior vice president and senior lending officer.

In the autumn of 1987, Caldrello Motors was in danger of failing and sought a loan from the plaintiff. Neither Caldrello, Sr., nor Caldrello Motors had sufficient collateral to secure the funding necessary for Caldrello Motors to survive. It was suggested that the defendant, who was the director of operations for Caldrello Motors, use his personal residence as collateral to obtain a personal loan, which would be used to pay off certain pressing liabilities of Caldrello Motors. The defendant was reluctant to sign a note and mortgage to obtain the loan but eventually agreed to the plan. Before executing the note and mortgage, however, the defendant obtained a letter signed by his father confirming the obligation to repay his son. It was expected by all the parties that the loan to the defendant was to be repaid within ninety days by Caldrello, Sr., or Cal-drello Motors either from the sale of a New Jersey dealership or by a refinancing of the mortgage on the defendant’s father’s personal residence. During these negotiations, the defendant was advised by the attorney who represented Caldrello, Sr., and Caldrello Motors.

On November 7, 1988, the defendant executed and delivered the mortgage deed and a ninety day note to the plaintiff in the amount of $500,000. After closing costs and fees, and with the exception of $40,000 that was paid directly to the defendant, the balance of the loan proceeds went to Caldrello Motors and its creditors.

During the ninety day period in which the defendant expected his father or Caldrello Motors to pay off the note, no such action was taken. The New Jersey dealership was never sold, and none of the proceeds from that dealership or from a $500,000 down payment made on the dealership were applied to the defendant’s loan. The loan committee of the plaintiff rejected a proposal to refinance the home of the defendant’s father, and although another bank eventually did refinance that home, none of these funds were applied to the defendant’s loan.

On November 30,1988, Brown agreed with Caldrello, Sr., to extend the time for repayment of the defendant’s loan for an additional year. Brown assumed that the defendant had knowledge of this extension agreement. The defendant maintains that he was never aware of the agreement. Caldrello, Sr., and Caldrello Motors made monthly interest payments on the note through July, 1989. At that time, interest payments ceased. On September 18,1989, the defendant informed the plaintiff that he denied any liability for the loan. The plaintiff responded with a demand for payment in full, and this foreclosure action ensued.

I

The defendant first claims that the trial court improperly granted the motion to strike his special defense of misapplication of funds. The defendant first filed his answer and special defenses on February 22,1990. The plaintiff filed a motion to strike on February 13,1991, which was granted by the trial court on April 17,1991. On April 23, 1991, the defendant filed a new answer, special defenses and counterclaim. The plaintiff moved to strike these special defenses on June 11, 1991, and the trial court ordered the special defenses stricken on September 3, 1991.

The defendant’s argument that his special defense of misapplication of funds was improperly stricken focuses on the trial court’s April 17, 1991 ruling. We do not address this claim. With the filing of a new answer and special defenses on April 23, 1991, the defendant supplanted the original answer and special defenses. As a result, rulings on the original pleading cannot be the subject of appeal. See Wesley v. DeFonce Contracting Corp., 153 Conn. 400, 404-405, 216 A.2d 811 (1966); P & L Properties, Inc. v. Schnip Development Corp., 35 Conn. App. 46, 49, 643 A.2d 1302, cert. denied, 231 Conn. 913, 648 A.2d 155 (1994). Thus, we review only the trial court’s granting of the motion to strike the special defenses filed April 23, 1991.

Turning to the trial court’s order striking the defendant’s special defenses filed April 23, 1991, we find the record inadequate to review this claim. The trial court did not issue a memorandum of decision on the plaintiff’s motion to strike the special defenses. The defendant has not requested an articulation of the basis for the trial court’s denial of this motion pursuant to Practice Book § 4051. In the absence of an adequate record on which to review the defendant’s claim, we decline to address this issue. See Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 154 n.2, 595 A.2d 872 (1991).

II

The defendant next claims that the trial court improperly found that CUTPA had not been violated. The defendant specifically complains of the plaintiff’s issuing a check payable to “Glenn Gordon, attorney for Joseph Caldrello, Sr., and Joseph Caldrello II” and directing Gordon to negotiate the amount of the check, which Gordon did without the defendant’s knowledge and without turning over any of the funds to the defendant. The defendant argues that this conduct constitutes a per se violation of CUTPA.

There is no evidence in the record on appeal that the trial court ever addressed this claim. The defendant’s counterclaim, where violations of CUTPA are alleged, does not contain any reference to the drafting or negotiating of the payment to Gordon. The trial court's comprehensive memorandum of decision contains no reference to any of the facts surrounding the drafting or negotiating of this payment and contains no legal analysis of this claim.

It is not our practice to review claims that were not brought to the attention of the trial court. See Practice Book § 4185. Although Practice Book § 4185 allows this court, in the interests of justice, to review plain error that was not brought to the attention of the trial court, this claim does not warrant such review. “In civil cases, [pjlain error is properly reserved for those extraordinary situations where the error is so obvious that the fairness and integrity of and public confidence in the judicial process would be impaired were we to fail to address an issue that was not raised or preserved at trial.” (Internal quotation marks omitted.) Lynch v. Granby Holdings, Inc., 230 Conn. 95, 98, 644 A.2d 325 (1994). This is not such a case. Accordingly, we decline to review this alleged violation of CUTPA that was not raised in the trial court. See Yale University v. Blumen-thal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993).

Ill

The defendant’s final claim is that the trial court improperly concluded that the plaintiff’s secret extension of the loan term, arranged through the defendant’s father, did not violate CUTPA. We disagree.

General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” The determination of whether an act or practice is unfair in violation of CUTPA revolves around the application of the “cigarette rule.” This rule involves three inquiries: “(1) [WJhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen]. Conaway v. Prestia, [191 Conn. 484, 492-93, 464 A.2d 847 (1983)], quoting FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 245-45 n.5, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972) [Sperry] .... McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 567-68, 473 A.2d 1185 (1984).

“All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three. ...” (Citations omitted; internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 105-106, 612 A.2d 1130 (1992).

In finding that there was no CUTPA violation in the extension of the term to pay off the loan, the trial court, as fact finder, “conclude[d] that the defendant knew that Caldrello, Sr., and Caldrello Motors were unwilling or unable to repay him from either the refinancing or the sale of the New Jersey dealership” and “further conclude^] that the defendant consented to his father’s request for an extension; hence, no concealment was proven.” (Emphasis added.) It was only after making this express finding that the trial court went on to state, “Even if the defendant was in fact unaware of the request for the extension, it is difficult to perceive how this harmed the defendant or caused him ascertainable loss.” (Emphasis added.)

There is nothing offensive to public policy, immoral, unethical, oppressive, or unscrupulous about extending the time for the repayment of a loan. Thus, the defendant’s challenge is to the trial court’s factual finding that the extension of the loan term was effected without his knowledge and consent. “[W]here the factual basis of the court’s decision is challenged, we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Neri v. Neri, 35 Conn. App. 812, 819, 647 A.2d 1, cert. denied, 231 Conn. 916, 648 A.2d 154 (1994); see also Einbender v. Board of Tax Review, 217 Conn. 240, 242, 584 A.2d 1188 (1991) (we review trial court’s findings of fact only to ascertain whether clearly erroneous).

In reaching its conclusion that the defendant knew of and consented to the extension of the loan term, the trial court found that there had been elaborate negotiations between the defendant, his father and the bank. Furthermore, the trial court found that Brown assumed the defendant knew of the extension agreement. The only evidence in the record inconsistent with finding that the defendant knew of and consented to the extension was the defendant’s own testimony. The trial court, as finding of fact, could reasonably have concluded that this testimony was not credible. See Gibson v. Kee-bler Co., 37 Conn. App. 392, 396, 655 A.2d 1172 (1995). We conclude, therefore, that the trial court’s finding that the defendant knew of and consented to his father’s request for an extension was not clearly erroneous. Thus, the first two prongs of the cigarette rule are not satisfied.

The trial court also found that even if the defendant was not aware of the extension agreement he was not harmed thereby. The trial court based this finding on the defendant’s not having requested that the plaintiff make a demand for repayment within the original ninety day loan term and his not having attempted to collect the amount due on the note from his father during or immediately after the original ninety day loan term. The extension of the loan term was not an obstacle to exercising either of these options. Because the extension of the loan agreement to give the defendant more time to pay off the note did not preclude the defendant from paying off the loan at the original time, there was no harm to the defendant by the extension. The extension, whether secret or not, conferred on the defendant the benefit of having more time to meet his obligation. Therefore, the third prong of the cigarette rule is not satisfied.

The trial court properly concluded that there was no violation of CUTPA by the plaintiff’s extension of the term of the loan to the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The banking industry is governed by CUTPA. Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 521, 646 A.2d 1289 (1994).

       The defendant argues that because Ms father was solvent at the time the extension was made but became insolvent and filed for bankruptcy during the one year extension, the trial court abused its discretion in finding no injury to the defendant under the third prong of the cigarette rule. There are no factual findings by the trial court to support this argument, so we do not address this claim. Bank of Boston Connecticut v. Schlesinger, supra, 220 Conn. 154 n.2.