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    PETER BREEN v. SYNTHES-STRATEC, INC.
    (AC 28215)
    Flynn, C. J., and Gruendel and Lavine, Js.

      Argued January 10
    officially released May 27, 2008

      Vincent F. Sabatini, with whom, on the brief, was James V. Sabatini, for the appellant (plaintiff).

      W. Kennedy Simpson, pro hac vice, with whom was Daniel J. Foster, for the appellee (substitute defendant).
   Opinion

FLYNN, C. J.

In this product liability action, the plaintiff, Peter Breen, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the substitute defendant, Synthes (U.S.A.) On appeal, the plaintiff claims that the court improperly (1) instructed the jury on doctrines that were inapplicable to the case, (2) failed to redact portions of the plaintiffs medical records and permitted a witness to testify about those portions of the records, and (3) refused to allow him to use the deposition testimony of a witness during the plaintiffs cross-examination of another defense witness. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 14,2002, the plaintiff broke his left femur and, consequently, entered Hartford Hospital to undergo treatment for that injury. On April 15, 2002, Christopher J. Lena, an orthopedic surgeon, performed an open reduction and internal fixation on the plaintiff. During that procedure, Lena reduced the fracture and secured the area with a 281.98 95° dynamic condylar screw plate (first plate) that was manufactured by the defendant. The plaintiff received postoperative treatment from Lena. Approximately six months after the surgery, the first plate broke. The plaintiff underwent another procedure in which Lena removed the first plate. In order to correct a deformity in the plaintiff, Lena needed to implant a 110° plate instead of a similar 95° plate that was used previously, and, therefore, Lena requested that a representative of the defendant provide him with one. The defendant’s representative modified another 281.98 95° dynamic condylar screw plate, which also was manufactured by the defendant, by bending it to 110° (second plate), and Lena surgically implanted the second plate. Approximately six months after the second surgery, the second plate broke. The plaintiff subsequently underwent a third procedure to remove the second plate, and a different surgeon performed a bone graft and implanted another plate.

Thereafter, the plaintiff brought the underlying product liability action against the defendant pursuant to the Connecticut Product Liability Act (act), General Statutes § 52-572m et seq., alleging that he suffered injuries as a result of the defective first and second plates. In response, the defendant filed an answer and special defenses, two of which alleged that the plaintiffs claims were barred by comment (k) to § 402A of the Restatement (Second) of Torts and by the learned intermediary doctrine. See 2 Restatement (Second), Torts § 402A, comment (k) (1965). The case was tried to the jury and resulted in a defendant’s verdict. The plaintiff subsequently filed a motion to set aside the verdict. The court denied the plaintiffs motion and rendered judgment in favor of the defendant in accordance with the jury verdict. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

We first address the plaintiffs claim that the court improperly charged the jury on comment (k) to § 402A of the Restatement (Second) of Torts and on the learned intermediary doctrine—instructions requested by the defendant. The crux of the plaintiffs claim is that the court should not have instructed the jury with respect to comment (k) and the learned intermediary doctrine because these doctrines are inapplicable to the type of medical device involved in the present case. We disagree.

The plaintiffs claim presents a question of law, and, therefore, our review is plenary. See generally Vitanza v. Upjohn Co., 257 Conn. 365, 368, 778 A.2d 829 (2001) (applicability of learned intermediary doctrine is question of law).

We commence our review by setting forth certain legal principles relating to product liability law. “Manufacturers in Connecticut are strictly liable for defective products under § 402A of the Restatement (Second) of Torts. See Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 233, 429 A.2d 486 (1980) .... A product may be defective due to a flaw in the manufacturing process, a design defect or because of inadequate warnings or instructions. . . .

“According to the Restatement (Second) of Torts, certain products, by their very nature, cannot be made safe. See 2 Restatement (Second), supra, § 402A, comment (k). Prescription drugs generally fall within the classification of unavoidably unsafe products.” (Citations omitted; internal quotation marks omitted.) Vitanza v. Upjohn Co., supra, 257 Conn. 373-75.

“Comment (k) to § 402A of the Restatement (Second) of Torts provides that some products are incapable of being made safe for their intended and ordinary use. Nevertheless, certain unavoidably unsafe products provide such benefits to society that their use is fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. ... 2 Restatement (Second), supra, § 402A, comment (k). Comment (k) provides that a manufacturer of an unavoidably unsafe product should not ... be held to strict liability for unfortunate consequences attending their use, merely because [it] has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.” (Emphasis in original; internal quotation marks omitted.) Vitanza v. Upjohn Co., supra, 257 Conn. 376-77.

“A manufacturer of an unavoidably unsafe product can avoid strict liability if the product is properly prepared, and accompanied by proper directions and warning .... 2 Restatement (Second), supra, § 402A, comment (k). Generally, a manufacturer’s duty to warn of dangers associated with its products pertains only to known dangers and runs to the ultimate user or consumer of those products. See Tomer v. American Home Products Corp., [170 Conn. 681, 689-90, 368 A.2d 35 (1976)]; 2 Restatement (Second), supra, § 388 (c). The learned intermediary doctrine, which is supported by comment (k) to § 402A of the Restatement (Second) of Torts, is an exception to this general rule.” (Internal quotation marks omitted.) Vitanza v. Upjohn Co., supra, 257 Conn. 375.

“The learned intermediary doctrine provides that adequate warnings to prescribing physicians obviate the need for manufacturers of prescription products to warn ultimate consumers directly. The doctrine is based on the principle that prescribing physicians act as learned intermediaries between a manufacturer and consumer and, therefore, stand in the best position to evaluate a patient’s needs and assess [the] risks and benefits of a particular course of treatment.” (Internal quotation marks omitted.) Id., 376.

In his appellate brief to this court, the plaintiff makes numerous arguments to support his claim that comment (k) to § 402A of the Restatement (Second) of Torts is inapplicable under the circumstances of this case. As a threshold matter, we note that the plaintiff does acknowledge that in Vitanza, our Supreme Court adopted comment (k) to § 402A of the Restatement (Second) of Torts. The plaintiff contends, however, that the applicability of comment (k) is limited to situations in which the allegedly defective product is a prescription drug, citing Vitanza. Although Vitanza involved the prescription drug Ansaid, our Supreme Court in Vitanza did not limit expressly the applicability of comment (k) to cases involving prescription drugs. We conclude that, contrary to the plaintiffs assertion, Vitanza does not stand for the proposition that, under Connecticut law, comment (k) applies only to prescription drugs.

The plaintiff further argues that the plates manufactured by the defendant are not drugs, vaccines or experimental drugs and, therefore, do not fall within the ambit of comment (k) to § 402A of the Restatement (Second) of Torts. To support this argument, the plaintiff refers to the language of comment (k), which lists “drugs,” “vaccines” and “experimental drugs” as examples of unavoidably unsafe products. However, our reading of comment (k) reveals that these examples are illustrative but do not comprise an exhaustive list of the types of products that may be characterized as unavoidably unsafe products. Rather, comment (k) provides that “[t]here are some products, which in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the . . . treatment of rabies .... Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs . . . .” (Emphasis added.) 2 Restatement (Second), supra, § 402A, comment (k).

Furthermore, in Hurley v. Heart Physicians, P.C., 278 Conn. 305, 317, 898 A.2d 777 (2006), our Supreme Court applied the learned intermediary doctrine, which is supported by comment (k), in the context of prescription implantable medical devices. Our Supreme Court’s decision in Hurley therefore instructs us that, under Connecticut law, comment (k) is not limited to prescription drugs but also is applicable to medical devices such as the plates implanted in the plaintiffs body. In light of existing case law and the language of comment (k) itself, we conclude that the application of comment (k) is not limited to prescription drugs only.

With respect to the learned intermediary doctrine, the plaintiff contends that there is no binding Connecticut precedent that mandates the application of the doctrine to prescription medical devices. This argument merits little discussion. In Hurley v. Heart Physicians, P.C., supra, 278 Conn. 317, a case involving a pacemaker, our Supreme Court expressed approval of the application of the learned intermediary doctrine to prescription implantable medical devices. In Hurley, our Supreme Court noted that Vitanza had adopted the “learned intermediary doctrine in the context of prescription drugs” but had not decided “whether the policies behind the rule equally were applicable to prescription medical device cases.” Id. The Hurley court, however, went on to state that “[njumerous courts have determined that [the policies behind the rule] are applicable to prescription medical device cases” and that it could see “no principled reason to distinguish between a prescription implantable medical device like a pacemaker and a prescription drug.” Id. In Hurley, our Supreme Court also noted that the parties had failed to cite any cases for the proposition that the learned intermediary doctrine should not be applied in the context of that case. Id. Likewise, the plaintiff here fails to cite any cases for that proposition. In light of Hurley, we therefore conclude that, under Connecticut law, the learned intermediary doctrine properly is applied to cases involving prescription implantable medical devices. See also Desmarais v. Dow Coming Corp., 712 F. Sup. 13, 17-18 (D. Conn. 1989) (breast implants).

Alternatively, the plaintiff argues that although comment (k) to § 402A of the Restatement (Second) of Torts and the learned intermediary doctrine may be applied to certain medical devices, the plates manufactured by the defendant do not fall within the ambit of these doctrines. Specifically, the plaintiff expressly urges this court to draw a distinction, as a matter of law, between the various classes of medical devices as specified in the Medical Device Amendments of 1976 (amendments), 21 U.S.C. § 360c et seq., to the Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq. Under the amendments, medical devices intended for human use are classified as class I, II or III devices, depending on the extent of regulatory control necessary to ensure their safety and effectiveness, with class III devices being subject to the highest level of control. The plates manufactured by the defendant, which were surgically implanted into the plaintiff by Lena, are class II devices. In his appellate brief to this court, the plaintiff contends that comment (k) and the learned intermediary doctrine should be applied only to class III devices and not to class II devices.

We decline, at this juncture, to accept the plaintiffs invitation to draw a bright line distinction between class II and class III medical devices in determining the applicability of comment (k) and the learned intermediary doctrine. The plaintiff has failed to provide any persuasive reason why a blanket rule excepting all class II medical devices from the application of these doctrines is appropriate or necessary. Indeed, beyond the plaintiffs mere reference to the portion of the definition of a class III device, which states that it is a device that is “purported or represented to be for a use in supporting or sustaining human life or for a use which is of substantial importance in preventing impairment of human health or presents a potential unreasonable risk of illness or injury”; 21 U.S.C. § 360c (a) (1) (C) (i) and (ii) (I); the plaintiff has failed to explicate his argument as to why only class III devices should fall within the ambit of comment (k) and the learned intermediary doctrine. Moreover, the plaintiff has not cited any cases in which such a distinction has been applied, and we decline to draw a distinction here. To the extent that the plaintiffs cryptic argument seeks to draw a distinction on the basis of the life sustaining or life supporting qualities of the devices, we find such a contention untenable because class II devices, by definition, also may include some devices that are “purported or represented to be for a use in supporting or sustaining human life . . . .” 21 U.S.C. § 360c (a) (1) (B).

We conclude that the plaintiff has failed to provide a persuasive reason why the rationale underlying the applicability of comment (k) to § 402A of the Restatement (Second) of Torts and the learned intermediary doctrine to prescription drugs and prescription medical devices, such as pacemakers, should not be applied to the plates manufactured by the defendant, which are surgically implanted by physicians. Accordingly, we conclude that the court properly gave the jury an instruction on these applicable doctrines.

II

The plaintiff next contends that the court abused its discretion when it “allowed into evidence portions of Dr. Lena’s medical records and allowed [Lena] to testify from the reports on matters that were opinion . . . .” Specifically, the plaintiff takes issue with Lena’s notation in the July 2, 2002 medical record in which he stated that “[the plaintiff] was instructed regarding the conservative nature of treatment for this and the fact that it is a race between his biology and the plate breaking.” In a similar vein, the plaintiff also takes issue with the following statement in the November 4,2002 record: “It is always a race between biological healing and plate failure since this is a load sharing device. Due to persistent motion at the fracture, the plate has subsequently failed.” The plaintiff argues that because Lena was not an expert witness, the court should have redacted these two portions of the medical records and prohibited Lena from testifying about the contested statements.

The following procedural history and facts are necessary to give context to the plaintiffs claim on appeal. On January 3, 2006, and prior to trial, the plaintiff filed a motion in limine, requesting that the court prohibit the defendant from introducing “evidence by way of fact or opinion testimony from Dr. Lena,” who was not retained as an expert witness, about, inter alia, “causation.” In that motion, the plaintiff, however, did not refer to evidence concerning the “race between biological healing and plate failure,” which statements were contained in the medical report.

On January 17, 2006, the court conducted a preliminary hearing on, inter alia, the plaintiffs January 3, 2006 motion in limine and on the parties’ stipulation of exhibits as well as the objections raised in connection with the exhibits. Prior to this hearing, the plaintiff and the defendant had marked the medical records prepared by Lena as plaintiffs exhibit two and defendant’s exhibit A, respectively. The plaintiff did not object to defendant’s exhibit A, and it was marked as a full exhibit. The defendant filed a response to the plaintiffs exhibit list, and, with respect to the records prepared by Lena, stated that it did not have any objections on the ground of authenticity but reserved the right to object on relevance grounds. At the January 17, 2006 hearing, the plaintiff stated that after his discussion with the defendant, it was his understanding that the defendant did not have any objections to the medical records being admitted as full exhibits. The defendant, agreeing with the plaintiff, then stated “[j]ust so there isn’t any misunderstanding, with regard to [the plaintiffs] exhibits one and two . . . which are the records of . . . Lena, we have no objection to those being admitted.” The court recessed to allow the parties to mark the remaining exhibits. The medical records, including the July 2 and November 4, 2002 records, were admitted as full exhibits.

With respect to the plaintiffs January 3, 2006 motion in limine, the court heard arguments from the parties and ruled generally that the “physicians [including Lena] may testify as to their—as treaters to their treatment, but not as to any opinions that they may have rendered outside of that treatment.” The defendant then sought clarification from the court as to the permissible scope of Lena’s trial testimony. The plaintiff stated that although the court could articulate its ruling, he was going to stand by the court’s ruling. The court then replied that “[t]he immediate cause for concern . . . is in terms of what exactly is in the medical records that have been . . . stipulated to.” The defendant then directed the court’s attention to the July 2 and November 4, 2002 medical records.

With respect to the specific matters addressed in the motion in limine, the court stated, inter alia, that “[t]he court’s ruling is that it’s in the medical record. So that the reason the first and maybe the second failed is nonunion. That’s in the record. [Lena] can say that. Causation ... he can say nonunion. It’s in the record.”

The plaintiff then argued that his motion in limine was directed to any statements of opinion by Lena and that, therefore, the ruling on the motion “would affect the opinions that are in the record and they will be redacted.” Again, the plaintiff did not mention specifically the portions of the medical records relating to the race between biological healing and plate failure. In response to the plaintiffs argument, the defendant asserted that the medical records should not be redacted because the parties already had agreed that the records were full exhibits. The court then ruled that “[the record has] been marked. It’s in evidence. If it’s in the record, it’s coming in.”

The next day, before the commencement of the evidence, the plaintiff raised an objection to portions of the July 2 and November 4, 2002 records prepared by Lena, on the ground that they were opinions, and sought to have them redacted and to preclude Lena from testilying about those matters. After argument from the parties, the court stated: “The court’s ruling will stand on the issue. The court understands the exhibits were marked. The court considers this to be more in the nature of treatment that is in the doctor’s record. . . . It’s part of his treatment record, and the court does not feel that it is an issue of surprise to the plaintiff. Apparently, it has been in the record for a long time. So, the ruling stands.”

Having set forth this procedural background, we now turn to the plaintiffs claim on appeal, in which he challenges the propriety of the court’s denial of his request for the redaction of portions of the medical records and the court’s allowance of testimony by Lena concerning those portions of the medical records. The plaintiff contends that the court abused its discretion in failing to redact the challenged notations in the medical records and in permitting Lena to testify about these notations because the statements had “nothing to do with the care and/or treatment of the plaintiff.” The defendant argues that the court properly denied the request to redact the disputed portions of the July 2 and November 4, 2002 medical records because they constituted statements of fact and were related to Lena’s treatment of the plaintiff. The defendant contends that the court properly permitted Lena to testify that the contested notations appeared in his treatment record for the plaintiff and also argues that Lena, in his testimony, did not offer opinions about the notations. We agree with the defendant and conclude that the court did not abuse its discretion.

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

As we stated previously, the court, in its January 17, 2006 ruling on the plaintiffs motion in limine, held that the treating physicians, including Lena, could testify as to their treatment of the plaintiff but not as to opinions they rendered outside of that treatment. With respect to the plaintiffs redaction request, the court noted that the contested records already had been marked in evidence as full exhibits. The court then concluded that the challenged portions of the medical records were a part of the plaintiffs treatment record and that the contested statements were in the nature of treatment. In so concluding, the court implicitly recognized that the facts surrounding a patient’s treatment inevitably involve statements pertaining to diagnosis, treatment and prognosis. Such facts, memorialized in Lena’s treatment record of the plaintiff, are a part.of the factual matrix surrounding the plaintiffs medical treatment, including the fracture of the first plate implanted in the plaintiffs body. “The distinction between so-called ‘fact’ and ‘opinion’ is not a difference between opposites or contrasting absolutes, but instead a mere difference in degree with no bright line boundary. . . . [I]n a changing world there will constantly be a myriad of new statements to which a judge must apply the distinction. Thus, good sense demands that the trial judge be accorded a wide range of discretion at least in classifying evidence as ‘fact’ or ‘opinion,’ and probably in admitting evidence even where found to constitute opinion.” 1 C. McCormick, Evidence (5th Ed. 1999) § 11, pp. 45-46.

In light of the inherent difficulties in distinguishing between opinions and facts in the context of a patient’s treatment record, we cannot conclude that the court abused its discretion in determining that the challenged portions of the July 2 and November 4, 2002 medical records concerned Lena’s treatment of the plaintiff and, thus, properly were characterized as the facts of treatment. Accordingly, the court properly denied the plaintiffs request to redact the July 2 and November 4, 2002 medical records. Although Lena did testify about the statements in the treatment record, he did not offer any opinions about the notations. The court therefore properly permitted testimony from Lena about how those notations appeared in his treatment record for the plaintiff. Thus, we conclude that the court did not abuse its discretion.

Ill

The plaintiff last claims that the court improperly refused to allow him to cross-examine the defendant’s expert witness, Lyle D. Zardiackas, who has a doctorate in materials science, using the deposition testimony of Lena. We conclude that the record is inadequate for review of the plaintiffs claim.

The following additional facts and procedural history are relevant. Lena, who testified at trial on behalf of the defense, also had given deposition testimony prior to trial. During the plaintiffs cross-examination of Zardiackas, the plaintiff referred to a statement in Lena’s deposition testimony. The defendant objected, and a sidebar conference was held. The court sustained the defendant’s objection. The plaintiff resumed his cross-examination of Zardiackas and, again, sought to refer to a statement made by Lena at his deposition. The defendant objected, and the court sustained the objection.

After Zardiackas was excused from the witness stand, the jury left the courtroom. At that point, the court indicated that the plaintiff “[wanted] to put a few of the court’s rulings and what [he had] proposed to introduce on the record.” The plaintiff then quoted Lena’s deposition testimony and explained that during cross-examination of Zardiackas, he had sought to ask Zardiackas about two statements made by Lena at Lena’s deposition. Several days later and prior to closing arguments, the plaintiff stated: “I’m not sure if I adequately put on the record Your Honor’s sustaining the objection to my allowing cross-examination of Dr. Zardiackas based on excerpts from Dr. Lena’s deposition. I just wanted to make sure that that’s on the record.” The plaintiff then stated: “I think that his deposition is for [identification], defendant’s [exhibit] F, and what I wanted to do is ask Dr. Zardiackas questions from page, the bottom of eighty-nine, line twenty-four, to the top of ninety through line five, and, just for the record, Your Honor sustained the objection.”

On appeal, the plaintiff claims that the court made an improper ruling. Despite the plaintiffs apparent attempts, outside of the juiy’s presence, to perfect the record for our review, we conclude that the record is inadequate to review the plaintiffs claim. Although the plaintiff stated on the record the portions of Lena’s deposition testimony that he had wanted to utilize in his cross-examination of Zardiackas, the plaintiff never asked the court to state on the record the basis of its ruling, in which it had sustained the defendant’s objection. Further, the plaintiff failed to put on the record what had transpired during the sidebar conference or even the ground on which the defendant had objected. The plaintiff also did not file a motion for articulation pursuant to Practice Book § 66-5. In the absence of an articulation, we are unable to discern the basis of the court’s ruling. Accordingly, we are unable to review the plaintiff s claim. See, e.g., Grimm v. Grimm, 276 Conn. 377, 388-89, 886 A.2d 391 (2005) (“As is always the case, the [appellant] . . . bearfs] the burden of providing a reviewing court with an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter. ... In the absence of any such attempts, we decline to review this issue.” [Citations omitted; internal quotation marks omitted.]), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006).

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs initial complaint named the defendant as “Synthes-Stratec, Inc., a/k/a Synthes USA, Synthes USA Ltd., Synthes North America, Inc., and Sythes-Stratec, Inc. U.S." The plaintiff later filed a motion to substitute the defendant, requesting that “the court substitute the defendants named in this action to the defendant Synthes (U.S.A.).” The motion also indicated that the parties had agreed to the substitution of Synthes (U.S.A.) as the party defendant. At a hearing on January 17, 2006, the defendant stated that it did not have an objection to this substitution, and the court orally granted the motion. We refer in this opinion to Synthes (U.S.A.) as the defendant.

       In the event that the plaintiff was awarded a new trial, the defendant presented an adverse ruling of the trial court for our consideration pursuant to Practice Book § 63-4 (a) (1) (B). The defendant claimed that the court improperly prohibited Christopher J. Lena, an orthopedic surgeon, from testifying about expert opinions. Because we affirm the judgment of the trial court, we need not reach this issue. See Travelers Ins. Co. v. Namerow, 261 Conn. 784, 786 n.2, 807 A.2d 467 (2002).

       We note that the plaintiff has preserved this claim for our review by filing a request to charge, by filing an objection to the defendant’s proposed instructions and by taking exceptions to the charge as given, arguing that the instructions on comment (k) and the learned intermediary doctrine should not have been given because they were inapplicable.

       Although the plaintiff contends, in his appellate brief, that the court should not have instructed the jury on comment (k) and on the learned intermediary doctrine, he does not argue that the instructions constituted an inaccurate statement of the law. Specifically, the plaintiff does not claim that the wording or content of the instructions on comment (k) and on the learned intermediary doctrine were in any way improper or inadequate. We therefore do not decide whether the court’s instructions on these issues were accurate. See Kramer v. Petisi, 285 Conn. 674, 680 n.4, 940 A.2d 800 (2008); Puchalsky v. Rappahahn, 63 Conn. App. 72, 81 n.9, 774 A.2d 1029, cert. denied, 256 Conn. 931, 776 A.2d 1147 (2001).
      At oral argument before this court, however, the plaintiff did argue that the court’s charge was improper in that it failed to delineate specifically the special defenses, namely, the learned intermediary doctrine and comment (k) to § 402A of the Restatement (Second) of Torts. We decline to consider this argument because “[i]t is well settled that claims on appeal must be adequately briefed . . . and cannot be raised for the first time at oral argument before the reviewing court.” Grimm v. Grimm, 276 Conn. 377, 393, 886 A.2d 391 (2005), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006).

       Many jurisdictions have extended the reach of comment (k) to § 402A of the Restatement (Second) of Torts to include prescription medical devices. See, e.g., Adams v. Synthes Spine Co., 298 F.3d 1114, 1117 (9th Cir. 2002) (spinal device); Phelps v. Sherwood Medical Industries, 836 F.2d 296 (7th Cir. 1987) (heart catheter); Brooks v. Medtronic, Inc., 750 F.2d 1227, 1230-31 (4th Cir. 1984) (cardiac pacemaker); Harwell v. American Medical Systems, Inc., 803 F. Sup. 1287, 1300 (M.D. Tenn. 1992) (penile prosthesis); Hufft v. Horowitz, 4 Cal. App. 4th 8, 19, 5 Cal. Rptr. 2d 377 (1992) (penile prosthesis); Mele v. Howmedica, Inc., 348 Ill. App. 3d 1, 19-21, 808 N.E.2d 1026 (artificial hip), appeal denied, 211 Ill. 2d 582, 823 N.E.2d 967 (2004); Perfetti v. McGhan Medical, 99 N.M. 645, 649, 662 P.2d 646 (N.M. App.) (mammary prosthesis), cert. denied, 99 N.M. 644, 662 P.2d 645 (1983); Tansy v. Dacomed Corp., 890 P.2d 881, 886 (Okla. 1994) (penile prosthesis); Creazzo v. Medtronic, Inc., 903 A.2d 24, 31 (Pa. Super. 2006) (implantable neurological electrical pulse generator).

       As our Supreme Court noted in Hurley v. Heart Physicians, P. C., supra, 278 Conn. 317 n.10, numerous jurisdictions have recognized the application of the learned intermediary doctrine to prescription medical devices. See, e.g., Figueroa v. Boston Scientific Corp., 254 F. Sup. 2d 361, 370 (S.D.N.Y. 2003) (vaginal sling to combat female urinary stress incontinence); Skerl v. Arrow International, Inc., 202 F. Sup. 2d 748, 753-54 (N.D. Ohio 2001) (surgically implanted morphine pump); Mozes v. Medtronic, Inc., 14 F. Sup. 2d 1124, 1130 (D. Minn. 1998) (cardiac pacemaker); Hansen v. Baxter Healthcare Corp., 309 Ill. App. 3d 869, 881, 723 N.E.2d 302 (1999) (tubing to connect catheter), aff'd, 198 Ill. 2d 420, 764 N.E.2d 35 (2002); Vaccariello v. Smith & Nephew Richards, Inc., 94 Ohio St. 3d 380, 384, 763 N.E.2d 160 (2002) (pedicle screw implanted in spine); Rosci v. Acromed, Inc., 447 Pa. Super. 403, 423, 669 A.2d 959 (1995) (bone plates and screws).

       We note that the November 4, 2002 medical record was authored by James P. Alvarez, a physician’s assistant who was supervised by Lena. The medical record indicates that Lena was present at the November 4, 2002 treatment session.

       The defendant failed to disclose Lena as an expert witness in accordance with Practice Book § 13-4.

       Specifically, the plaintiff, by way of his motion in limine, sought to preclude “evidence by way of fact or opinion testimony from Dr. Lena [who was not retained as an expert witness] that the product in question and the defendant manufacturer meets a ‘gold standard,’ that the product contains adequate warnings, adequate instructions or that the product may be ‘bent’ and causation.”

       The court granted the plaintiffs motion with respect to the preclusion of evidence from Lena about the product being the “gold standard” and whether the product contained “adequate warnings” or “adequate instructions.”

       According to Lena, nonunion occurs when a fractured bone fails to heal properly.

       In his brief to this court, the plaintiff directs us to the portions of the medical records that he claims should have been redacted, namely, the statements from the July 2 and November 4,2002 medical records concerning the race between biological healing and plate failure. The plaintiffs brief, however, is devoid of any specific references to the portions of Lena’s trial testimony that he challenges on appeal. See Practice Book § 67-4 (c); see also Cichocki v. Quesnel, 74 Conn. App. 299,301, 812 A.2d 100 (2002) (“[f]or evidentiary rulings claimed to be improper to be reviewed by this court, they must be set forth in the briefs as required and outlined by the rules of practice” [internal quotation marks omitted]). Rather, the plaintiff makes a general assertion that the court should not have “allowed testimony from [Lena] about these comments.” Nevertheless, our careful review of the record reveals that the defendant’s counsel questioned Lena on two occasions about the challenged portions of the medical records. We note that the plaintiff objected to the questions, but the grounds he raised during trial are different from the ground he raises on appeal and the ground he had raised at the pretrial hearing on his January 3, 2006 motion in limine.
      During the defendant’s direct examination of Lena, the following examination occurred:
      “[The Defendant’s Counsel]: [The July 2, 2002 medical record] says at the end that [the plaintiff] was instructed that it is a race between his biology and the plate breaking. Did you give instructions along those lines to [the plaintiff] at that time?
      “[The Witness]: We always instruct patients with—
      “[The Plaintiff’s Counsel]: Objection, Your Honor, it calls for a yes or no.
      “The Court: Sustained.
      “[The Defendant’s Counsel]: Can you just tell us—
      “[The Witness]: Yes.
      “[The Defendant’s Counsel]:—yes or no whether you did tell [the plaintiff] that at that time?
      “[The Witness]: Yes.
      “[The Defendant’s Counsel]: Okay. And it’s written [in the November 4, 2002 medical record], it is always a race between biological healing and plate failure since this is a load sharing device. Due to persistent motion—
      “[The Plaintiffs Counsel]: Your Honor, I’m going to object to the witness testifying about the document.
      “The Court: Well, I suppose a question is coming.
      “[The Defendant’s Counsel]: I have to read it before I can ask the question, Your Honor.
      “[The Plaintiffs Counsel]: Well, I guess the question could be, what does it say?
      “The Court: I’m going to allow it. Overruled.
      “[The Defendant’s Counsel]: Due to persistent motion at the fracture the plate has subsequently failed. Was that medical finding for this patient that you wrote . . . written in your chart on that day?

        “[The Witness]: Yes.
      “[The Plaintiffs Counsel]: Objection, Your Honor, because the document was not written in his chart. This was a document written by a James P. Alvarez . . . who’s not here. He didn’t write it. Dr. Lena did not write this. And I object.
      “The Court: The question was written in this chart. The question was not whether he wrote it.
      “[The Plaintiffs Counsel]: This is not his chart. This is a report.
      “The Court: Well, can we—
      “[The Defendant’s Counsel]: Let me see—
      “The Court: Can we refer—is it marked as an exhibit? Is this a separate exhibit?
      “[The Defendant’s Counsel]: Yes, sir, this is a—this is tab—what tab is it, doctor? Twenty?
      “[The Witness]: It’s twenty.
      “[The Defendant’s Counsel]: Tab twenty of exhibit A, full exhibit.
      “The Court: All right. All right. You may continue.
      “[The Defendant’s Counsel]: Dr. Lena, is this part of your office record for [the plaintiff]?
      “[The Witness]: Yes.”

       We also reiterate that the medical records in question were admitted as full exhibits, without objection by the plaintiff, as defendant’s exhibit A. Additionally, the plaintiff affirmatively offered and marked another set of the medical records prepared by Lena, in their unredacted version, as plaintiffs exhibit two—also a full exhibit. Although the plaintiff initially agreed to the submission of the unredacted records, he later orally requested that the court redact the portion pertaining to the “race between biological healing and plate failure.”

       Furthermore, the evidence of Lena’s use of the plates to treat the plaintiffs bone and the record of their surgical implantation was relevant to the application of the learned intermediary doctrine’s principle that treating prescribing physicians, as learned intermediaries between the manufacturer and consumer, stand in the best position to evaluate the risks and benefits of a particular course of treatment. In this case, Lena weighed the risks of plate failure against the potential benefits of the use of those very plates to promote healing.

       The deposition testimony of Lena was marked for identification at trial.

       Neither the ground for the objections, nor the ground for sustaining the objections were stated for the record.

       Specifically, the plaintiffs counsel stated: “Just as the offer of proof, I wanted to ask on cross-examination a reference in Dr. Lena’s deposition taken on January 11, 2005, on page eighty-nine—pages eighty-nine and ninety.
      “The question was: ‘But you could not bend it in the operating room.’ Answer: ‘We don’t have the devices available to bend it in the operating room. Quite honesty, I’ve never tried, I don’t think, to bend a plate of this magnitude in the operating room.’
      “That’s what I wanted to ask the expert witness.”

       We further note that the plaintiff has failed to brief his claim adequately. In his brief, the plaintiff merely refers to Lena’s deposition testimony and to excerpts of the trial transcript. The plaintiffs brief is devoid of any meaningful analysis or citation to case law to support his claim that the court’s ruling was improper. See Jettison v. O’Connell, 73 Conn. App. 564, 565-66, 808 A.2d 752 (2002). More importantly, the plaintiffs brief fails to identify the basis of the court’s ruling, in which it sustained the defendant’s objection. See Practice Book § 67-4 (d) (3) (appellant raising claim of evidentiary error required to include in brief “a verbatim statement of the following: the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; and the ruling”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. TALANCE J. STITH
    (AC 27731)
    Bishop, Robinson and Freedman, Js.
    Argued February 19
    officially released May 27, 2008

      Martha Brooke Hansen, special public defender, for the appellant (defendant).

      RaheemL. Mullins, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, Julia K. Conlin, assistant state’s attorney, and Catherine Brannelly Austin, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Talance J. Stith, appeals from the judgment of conviction rendered by the trial court after he entered a guilty plea under the Alford doctrine to threatening in the second degree in violation of General Statutes § 53a-62 and risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the court abused its discretion in denying his motion to withdraw the guilty plea. Specifically, the defendant claims that the plea was not knowingly, intelligently and voluntarily made because (1) he was under the influence of medication at the time it was entered, (2) it was not entered with the effective assistance of counsel and (3) the court did not explain the elements of each offense. We affirm the judgment of the trial court.

The following facts are relevant to the defendant’s appeal. The defendant was arrested and charged, in separate dockets, with threatening in the second degree in violation of § 53a-62 and risk of injury to a child in violation of § 53-21. On April 26, 2005, pursuant to a plea agreement -with the state, the defendant entered a guilty plea to these charges under the Alford doctrine. Under the plea agreement, the defendant was to enter the Daytop facility in New Haven for substance abuse treatment for one year. If the defendant was successful in the program, he would receive a suspended sentence of six years of incarceration with three years of probation. If the defendant was unsuccessful in the program, however, he would receive a sentence of six years to serve.

Prior to accepting the defendant’s plea, the court conducted a canvass of the defendant. In response to the court’s questions, the defendant specifically stated that he had not had any drugs, alcohol or medication within the previous twenty-four hours that would interfere with his judgment. The defendant indicated that his attorney had explained the nature and elements of the offenses charged, as well as the maximum possible penalty if he was convicted of one or both of the offenses. The defendant further stated that he was satisfied with his attorney’s representation of him in the matter. The defendant’s attorney, Brian Pear, stated that in his opinion, the defendant was entering his plea knowingly and voluntarily. The court, in accepting the plea, found that it was knowingly and voluntarily made, with the assistance of competent counsel.

At a hearing on May 31,2005, the state alleged that the defendant had walked away from the Daytop treatment program. The matter was continued to July 12, 2005, at which time Pear explained to the court that there had been a breakdown of his relationship with the defendant. At that time, the defendant indicated that he did not remember agreeing to serve six years in jail and that he was on heavy medication at the time he entered the plea. The defendant sought to withdraw his plea rather than proceed for sentencing. The matter was continued again and defense counsel was instructed to file a motion to withdraw the plea.

At the subsequent hearing on the motion to withdraw the plea, the defendant testified that on the date that he entered the plea, he had taken the medications Seroquel and Lexapro, which he claimed made him unable to comprehend what was going on around him. He testified that he understood that he had told the court at the time of the plea that he had not taken anything, yet he did not remember saying anything to the court or talking to Pear on that date. At the conclusion of the hearing, the court denied the defendant’s motion to withdraw the plea and sentenced the defendant to a total effective term of six years to serve. The defendant then filed this appeal, challenging the denial of his motion to withdraw the plea.

“A . . . plea, once accepted, may be withdrawn only with the permission of the court. . . . The court is required to permit the withdrawal of a guilty plea upon proof of any ground set forth in Practice Book § [39-27]. . . . Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused. . . . The burden is always on the defendant to show a plausible reason for the withdrawal of a plea of guilty.” (Internal quotation marks omitted.) State v. Saunders, 86 Conn. App. 333, 336, 860 A.2d 1265 (2004). We also note that “[t]his court does not retry facts; it can only determine whether competent evidence supports factual determinations made by the trial court. Evidence is presented before the trier of fact, not before this court. The trier of fact has an opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility that we do not. . . . Where . . . factual determinations rested in large measure on credibility assessments, we accept the reasonable credibility determinations made by the trier of fact.” (Citation omitted; internal quotation marks omitted.) State v. Ortiz, 95 Conn. App. 69, 88, 895 A.2d 834, cert. denied, 280 Conn. 903, 907 A.2d 94 (2006).

The defendant first claims that he was under the influence of medication at the time he entered the plea, and therefore the plea was not knowingly, intelligently and voluntarily made. In reviewing this claim, we note that the court, in denying the motion to withdraw the plea, relied on the defendant’s responses to the court’s questions during the plea canvass. In particular, the court noted that when the defendant was asked whether he was under the influence of any alcohol, drugs or medication that might affect his good judgment, he responded in the negative. The court also stated that there was “nothing but bare allegations from the defendant with regard to whether he was, in fact, on any type of medication on the date in question. There has been no offer or proffer of medical documentation to suggest that the defendant was, in fact, on any type of medication on April 26, 2005, other than the bare assertions of the defendant.” “It is well established that [a] trial court may properly rely on . . . the responses of the [defendant] at the time [she] responded to the trial court’s plea canvass . . . .” (Internal quotation marks omitted.) State v. Monk, 88 Conn. App. 543, 552, 869 A.2d 1281 (2005); see also Carey v. Commissioner of Correction, 86 Conn. App. 180, 185-86, 860 A.2d 776 (2004) (upholding habeas court’s finding that plea knowingly and voluntarily given when, although petitioner claimed he had taken medication on date he entered plea and that this made him confused, there was no evidence that described medication or its effect on petitioner), cert. denied, 272 Conn. 915, 866 A.2d 1283 (2005). On the basis of our review of the record, we conclude that the court did not abuse its discretion in denying the defendant’s motion to withdraw his guilty plea on the basis of his assertion that he was under the influence of medication that affected his ability to comprehend the plea process at the time he entered his plea.

The defendant next argues that the plea was not knowing, intelligent and voluntary because it was entered without the effective assistance of counsel. In support of this argument, the defendant refers to his July 12, 2005 unsworn statement to the court that he had asked Pear several times to get his medical records because he was taking medication for schizophrenia. See footnote 2. He also asserts that Pear did not conduct an investigation into this matter. As noted by counsel for the state, however, the defendant failed to present the medical records that Pear allegedly failed to obtain and presented no evidence concerning Pear’s investigation into the matter. All that the court had before it was the “bare allegations from the defendant with regard to whether he was, in fact, on any type of medication on the date in question.” On the basis of the lack of evidence concerning this claim, as well as the defendant’s statement during the plea canvass that he was satisfied with Pear’s representation of him in this matter, we conclude that the defendant has failed to satisfy his burden of proving that the plea was not knowing, intelligent and voluntary because it was entered without the effective assistance of counsel. The court, therefore, did not abuse its discretion in denying the defendant’s motion to withdraw the guilty plea on this basis.

The defendant’s final claim is that the plea was not knowingly and intelligently made because the court did not explain the elements of each offense. The state counters that the record of the plea canvass establishes that Pear had explained the nature and the elements of the charges to the defendant. We agree.

“[0]ur courts have stopped short of adopting a per se rule that notice of the true nature of the charge always requires the court to give a description of every element of the offense charged. . . . Rather, we have held that, [u]nder Henderson v. Morgan, 426 U.S. 637, 647, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976), even without an express statement by the court of the elements of the crimes charged, it is appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit. . . . Thus, unless a record contains some positive suggestion that the defendant’s attorney had not informed the defendant of the elements of the crimes to which he was pleading guilty, the normal presumption applies.” (Citations omitted; internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 783-84, 894 A.2d 963 (2006). On the basis of our review of the record, specifically, the plea canvass, we conclude that the defendant cannot prevail on his claim that his plea was not knowingly and intelligently made because the court failed to explain the elements of the offenses to him. The court, therefore, did not abuse its discretion in denying the defendant’s motion to withdraw the guilty plea on this basis.

The judgment is affirmed.

        “North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), holds that a criminal defendant need not admit his guilt but may consent to being punished as if he is guilty to avoid the risk of proceeding at trial.” State v. Sutton, 95 Conn. App. 139, 140 n.1, 895 A.2d 805, cert. denied, 278 Conn. 920, 901 A.2d 45 (2006).

       The defendant stated: “At the time when all this happened, I was on heavy medication. I was taking antipsychotics and antidepressants, which make . . . me . . . delusive, and I see shadows and hear voices. I talked to my psychiatrist, and she told me that I need to tell you all what was going on that day.
      “The reason why when you—I guess when I was asked if I was on any medications or—or—or any drugs, when I—when I told you no, everything that you asked me, my lawyer told me what to say.
      “I wrote Mr. Pear several times, asking him to get my medical records from—from jail and from the program because I’m schizophrenic. I take schizophrenic medication. I hear voices, and I see shadows. This has been going on before I even went to jail; I was taking medications for it.
      “I don’t remember making a plea for this. I remember coming to court. I don’t remember taking no plea for it. I heard something totally different. I didn’t know I would be spending six years in jail.”

       We note that even if the court had accepted the defendant’s testimony that he was taking Seroquel and Lexapro at the time he entered the plea, there was no offer of proof regarding the effect of such medication on the defendant’s ability to comprehend what was going on around him.

       “[A] claim of ineffective assistance of counsel is generally made pursuant to a petition for a writ of habeas corpus rather than in a direct appeal. . . . Section 39-27 of the Practice Book, however, provides an exception to that general rule when ineffective assistance of counsel results in a guilty plea. A defendant must satisfy two requirements ... to prevail on a claim that his guilty plea resulted from ineffective assistance of counsel. . . . First, he must prove that the assistance was not within the range of competence displayed by lawyers with ordinary training and skill in criminal law. . . . Second, there must exist such an interrelationship between the ineffective assistance of counsel and the guilty plea that it can be said that the plea was not voluntary and intelligent because of the ineffective assistance.” (Internal quotation marks omitted.) State v. Sutton, 95 Conn. App. 139, 145, 895 A.2d 805, cert. denied, 278 Conn. 920, 901 A.2d 45 (2006).

       The transcript of the plea canvass reveals the following:
      “The Court: Has your attorney explained to you the nature and elements of both of these offenses? In other words, what the state would have to prove beyond a reasonable doubt to convict you of one or both of these charges if you chose to go to trial.
      “[The Defendant]: Yes, he has.
      “The Court: And has your attorney also explained to you what the maximum possible penalty would be if you were convicted of one or both of these offenses?
      “[The Defendant): Yes, sir.
      “The Court: Is that correct, counsel? Have you explained all these things to your client?

        “[Defense Counsel]: I have.
      “The Court: In your opinion, is your client entering his plea knowingly and voluntarily?
      “[Defense Counsel]: He is, Your Honor.”


author: DiPENTIMA, J.

text:
    CITY OF NEW HAVEN v. GOD’S CORNER CHURCH, INC., ET AL.
    (AC 28052)
    Flynn, C. X, and DiPentima and Robinson, Js.
    Argued January 7
    officially released June 3, 2008

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

      Philip G. Kent, with whom was Karen Baldwin Kravetz, for the appellee (plaintiff).
   Opinion

DiPENTIMA, J.

The defendant in this foreclosure action, God’s Comer Church, Inc., appeals from the judgment of the trial court dismissing its motion to determine the debt owed to the plaintiff, the city of New Haven. The defendant claims that the court improperly (1) concluded that it lacked subject matter jurisdiction to address the defendant’s motion because the plaintiff had filed a satisfaction of judgment and (2) failed to hold an evidentiary hearing on the defendant’s claim that the plaintiff had been unjustly enriched by the defendant’s overpayment in redeeming the property. We reverse the judgment of the trial court.

The following procedural history is relevant to our disposition of the defendant’s appeal. By amended complaint dated December 20, 2001, the plaintiff sought to foreclose eight municipal tax liens against property owned by the defendant within the city of New Haven at 793-795 Grand Avenue. Alter a series of delays in the proceedings, the court rendered judgment of foreclosure by sale on November 14,2005, and set a sale date of February 18, 2006. On February 14, 2006, the defendant filed a motion to extend the sale date and to determine the debt owed to the plaintiff. On February 17, 2006, the court denied the defendant’s motion as to extending the sale date but deferred ruling on the motion as to the debt, allowing the defendant to reclaim its motion with respect to that issue. After the sale had proceeded as scheduled, the committee filed a motion to approve the sale and the committee’s deed, and the defendant reclaimed its motion to determine the debt. Both motions were scheduled for a hearing on March 13, 2006. Prior to the hearing, however, the defendant paid the plaintiff a sum of money to redeem the property, and, on March 9, 2006, the plaintiff filed a satisfaction of the judgment with the court. On March 13, 2006, the court ordered the parties to brief the issue that the defendant raises on appeal, namely, whether the court retained subject matter jurisdiction to address the defendant’s motion to determine the debt after the plaintiff had filed the satisfaction of the judgment. On August 25, 2006, the court resolved that question in favor of the plaintiff and dismissed the defendant’s motion to determine the debt. This appeal followed.

“A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . .

“Subject matter jurisdiction [implicates] the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The objection of want of jurisdiction may be made at any time . . . [a]nd the court or tribunal may act on its own motion, and should do so when the lack of jurisdiction is called to its attention. . . . The requirement of subject matter jurisdiction cannot be waived by any party and can be raised at any stage in the proceedings.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 802, 925 A.2d 292 (2007).

“The Superior Court is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it and of all other matters cognizable by any law court of which the exclusive jurisdiction is not given to some other court. The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction of that matter. . . . [T]he general rule of jurisdiction ... is that nothing shall be intended to be out of the jurisdiction of a Superior Court but that which specially appears to be so ... . [N]o court is to be ousted of its jurisdiction by implication.” (Citation omitted; internal quotation marks omitted.) Carten v. Carten, 153 Conn. 603, 612-13, 219 A.2d 711 (1966); see also State v. Radzvilowicz, 47 Conn. App. 1, 36, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997).

The plaintiff asserts that the court’s jurisdiction in this matter is revoked expressly by General Statutes § 52-350d (a). That statute provides in relevant part: “For the purposes of postjudgment procedures, the Superior Court shall have jurisdiction over all parties of record in an action until satisfaction of the judgment . . . .” General Statutes § 52-350d (a). As used in § 52-350d (a), a postjudgment procedure is “any procedure commenced after rendition of a money judgment”; General Statutes § 52-350a (15); and a money judgment “means a judgment, order or decree of the court calling in whole or in part for the payment of a sum of money . . . .” General Statutes § 52-350a (13). The primary issue, therefore, is whether a judgment of foreclosure by sale is a “money judgment” within the meaning of § 52-350a (13). If so, we then must decide whether, after a judgment of foreclosure by sale is satisfied, the statute revokes the court’s jurisdiction over the subject matter, as the plaintiff argues, or instead merely revokes the court’s personal jurisdiction over the parties.

“Issues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) Pritchard v. Pritchard, 103 Conn. App. 276, 283, 928 A.2d 566 (2007).

The relevant law concerning foreclosure actions is well settled. “[0]rdinarily [a] money judgment is obtained by an action at law .... [A]n action is to be deemed legal in nature, rather than equitable, where the only relief sought is the collection of money damages.” (Citation omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 80 Conn. App. 436, 442, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004). A foreclosure action, however, is an equitable proceeding. New Haven Savings Bank v. LaPlace, 66 Conn. App. 1, 9, 783 A.2d 1174, cert. denied, 258 Conn. 942, 786 A.2d 426 (2001). “At common law, the term foreclosure meant strict foreclosure. . . . General Statutes § 49-24 appends to that definition the remedy of foreclosure by sale without altering the existing common law definition.” (Citations omitted.) Madison Hills Ltd. Partnership III v. Madison Hills, Inc., 35 Conn. App. 81, 90-91, 644 A.2d 363, cert. denied, 231 Conn. 913, 648 A.2d 153 (1994). “Generally, foreclosure means to cut off the equity of redemption, the equitable owner’s right to redeem the property. . . . The purpose of the judicial sale in a foreclosure action is to convert the property into money and, following the sale, a determination of the rights of the parties in the funds is made, and the money received from the sale takes the place of the property. The vesting of title to a . . . property in the mortgagee [or lienholder] under a foreclosure decree constitutes appropriation of the property to the payment of the . . . debt, and, where the value of the property foreclosed exceeds the amount of the . . . debt, the mortgagee [or lienholder] is entitled to nothing more. . . . Accordingly, when the mortgagee [or lienholder] takes title to the property, the fair market value of which exceeds the amount of the debt, its debt is satisfied by virtue of its ownership of the collateral.” (Citation omitted; internal quotation marks omitted.) Mortgage Electronic Registration Systems, Inc. v. White, 278 Conn. 219, 229-30, 896 A.2d 797 (2006).

“[A]t common law, a mortgagee was required to elect between a foreclosure action or an action on the underlying debt. . . . Thus, even if the value of the property that the mortgagee gained was less than the debt owed to her, the entry of judgment precluded any further common-law proceedings on the note. . . . Consequently, in 1833, the legislature created the remedy of the deficiency judgment in order to make the plaintiff whole when the value of the security did not cover the amount of the debt owed to the plaintiff. ... In contrast, tax lienors, like judgment and condominium lienors, are not barred, under common law, from obtaining a judgment of strict foreclosure and, thereafter, commencing a separate action to recover the balance of any additional debt owed. Cf. General Statutes § 12-172 ([n]o sale of real estate for taxes or foreclosure of any lien shall divest the estate sold of any existing lien for other taxes).” (Citation omitted; internal quotation marks omitted.) Winchester v. Northwest Associates, 255 Conn. 379, 388 n.7, 767 A.2d 687 (2001). The fact, however, that a separate proceeding may result in a personal judgment against the debtor for the amount of the debt unsatisfied by the foreclosed property does not convert that portion of the equitable foreclosure proceedings into an action at law. See Federal Deposit Ins. Corp. v. Voll, 38 Conn. App. 198, 210, 660 A.2d 358, cert. denied, 235 Conn. 903, 665 A.2d 901 (1995).

With these legal principles in mind, we conclude that a judgment of foreclosure does not call in whole or in part for the payment of a sum of money but, rather, it calls for the vesting and divesting of title to real property. Accordingly, a judgment of foreclosure by sale is not a money judgment within the meaning of § 52-350a (13). See Stein v. Hillebrand, 240 Conn. 35, 44, 688 A.2d 1317 (1997) (mortgagee does not have to obtain “money judgment” but could instead institute foreclosure proceedings on property); see also Cooke v. Cooke, 99 Conn. App. 347, 352, 913 A.2d 480 (2007) (marital dissolution judgment that did not order party to pay certain sum for child’s educational expenses cannot fairly be characterized as money judgment); Amresco New England II, L.P. v. Colossale, 63 Conn. App. 49, 55, 774 A.2d 1083 (2001) (because foreclosure is peculiarly equitable action, court may entertain such questions as necessary in order that complete justice may be done). Because a judgment of foreclosure by sale is not a money judgment under § 52-350a (13), the proceedings following a judgment of foreclosure by sale are not postjudgment proceedings for purposes of § 52-350a (15). In turn, § 52-350d, which applies only to postjudgment proceedings as defined by § 52-350a (15), does not limit the court’s jurisdiction to address a party’s claims after a property has been redeemed following a judgment of foreclosure by sale. Thus, we conclude that § 52-350d did not revoke the court’s jurisdiction to reach the merits of the defendant’s motion to determine the debt, and the court improperly dismissed the defendant’s motion on that basis.

Having concluded that the court improperly dismissed the defendant’s motion, we next must determine to what relief, if any, the defendant is entitled. The defendant prays for a remand to the trial court for an evidentiary hearing to determine whether the plaintiff should return any part of the amount paid by the defendant to redeem the property. Specifically, the defendant claims that the plaintiff was unjustly enriched because it improperly had demanded and received payment for (1) approximately $22,000 in settlement of a separate dispute between the parties, (2) a “statutory collection fee” that was not submitted to the court or made a part of the judgment and (3) $3117.05 in excess of the attorney’s fees awarded by the court. The plaintiff, in response, asserts that it was entitled to demand those sums and that, in any event, the defendant has waived its claim of unjust enrichment by knowingly and voluntarily paying the amount demanded without reserving its rights to dispute the amount demanded.

Before we address the defendant’s claim, we note the following additional facts, which are not in dispute. On November 14, 2005, the court found the amount of the debt to be $94,415.59 and awarded the plaintiff, as part of its judgment of foreclosure by sale, $18,850 in attorney’s fees. On March 3,2006, the plaintiffs attorney issued to the defendant’s attorney a payoff letter itemizing the amounts that the plaintiff claimed the defendant owed in order to redeem the property. The total amount in demand, as stated in the payoff letter, was $168,799.69. On March 9, 2006, the defendant paid the full amount of the March 3, 2006 demand.

The parties disagree on whether the defendant, in paying the full amount of the demand, has waived its right to dispute the amount of the debt or whether it has preserved that claim. “Whether a waiver has occurred is a factual question, reviewable under the clearly erroneous standard.” (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn. App. 541, 565, 905 A.2d 1214, cert. denied, 280 Conn. 942, 943, 912 A.2d 479 (2006). The court, however, made no findings with respect to the plaintiffs waiver argument, and it is not clear from the record whether the defendant had made such a waiver. Accordingly, we must remand this case to the trial court for a determination of this threshold issue and, in the event the court finds that no waiver occurred, a decision on the merits of the defendant’s claim.

The order dismissing the named defendant’s motion to determine the debt is reversed and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The plaintiff named as additional party defendants Jerome R. Goldberg and Ina J. Goldberg as trustees of the Ina J. Goldberg Revocable Trust, the water pollution control authority, the South Central Connecticut Regional Water Authority and the Connecticut Community Investment Corporation. None of those additional parties has joined in this appeal. Accordingly, we refer to God’s Corner Church, Inc., as the defendant.

       Because we hold that a judgment of foreclosure by sale is not a money judgment within the meaning of § 52-350d (a), we need not address whether § 52-350d is alimitation on the court’s personal or subject matter jurisdiction.

       We note that in its order dismissing the defendant’s motion to determine the debt, the court stated: “Notwithstanding the defendant’s claim to the contrary, the court finds, under the facts of this case, that the defendant was not prevented by mistake, accident or other reasonable cause from raising its claim, as those terms are intended in A.I. Credit Corp. v. M.A. Gronski, Inc., Superior Court, judicial district of New Haven, Docket No. CV-01-0452088-S (October 3, 2002) (33 Conn. L. Rptr. 216).” We question the propriety of this finding in light of the record, which indicates that the defendant, in fact, had raised its claim on February 14, 2006, prior to redeeming the property on March 9, 2006.


text:
    BESS GILMORE ET AL. v. PUBLIC STORAGE, INC.
    (AC 28148)
    Gruendel, Robinson and Foti, Js.
    Argued March 27
    officially released June 3, 2008

      Douglas Gilmore, for the appellants (plaintiffs).

      James E. Carroll, pro hac vice, with whom were John J. Bogdanski, and, on the brief, Carl Fumarola, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiffs, Bess Gilmore, and her son, Keith Gilmore, appeal from the judgment of the trial court, rendered in favor of the defendant, Public Storage, Inc., on a motion for summary judgment. They make several claims on appeal. The plaintiffs’ first claim asserts that the court improperly granted the defendant’s motion for summary judgment after a hearing for that motion was scheduled on the short calendar in violation of the rules of practice. Their second and third claims assert that the court improperly, granted the defendant’s motion for summary judgment for additional reasons. Their last two claims pertain to the underlying merits of the case. Because we reverse the judgment on the basis of the plaintiffs’ first claim, we do not need to address the remaining claims.

The following procedural history is relevant to our disposition of the plaintiffs’ appeal. The plaintiffs filed their complaint on February 17, 2004. The record discloses that on August 25, 2006, the defendant filed a motion for summary judgment. On September 5, 2006, the plaintiffs filed a timely request for an extension of time to respond to the motion for summary judgment. In their appellate brief, the plaintiffs argue that their request for an extension of time was granted automatically by the clerk pursuant to Practice Book § 17-45, and, therefore, the motion for summary judgment should not have appeared on the short calendar earlier than thirty days from the filing of the request. The motion for summary judgment, however, was first scheduled on September 11,2006, but was subsequently marked off by the defendant. The motion was then scheduled for September 25, 2006, and heard before the court. While the defendant appeared before the court on September 25, 2006, the plaintiffs did not due to the illness of the plaintiffs’ attorney. As a result, the motion was taken on the papers. On October 5, 2006, the court rendered judgment in favor of the defendant.

Practice Book § 17-45 provides in relevant part: “Any adverse party may, within ten days of the filing of the motion with the court, file a request for extension of time to respond to the motion. The clerk shall grant such request and cause the motion to appear on the short calendar not less than thirty days from the filing of the request. . . .’’The plaintiffs’request for an extension of time to respond to the motion for summary judgment was filed on September 5, 2006, which was within the time period specified by the rules of practice. Because the plaintiffs’ request was filed timely, the clerk automatically granted the request pursuant to Practice Book § 17-45, and the motion for summary judgment should not have appeared on the calendar prior to thirty days after the request had been made. The motion for summary judgment, however, was scheduled on the short calendar for September 25, 2006. September 5 to September 25 is a span of only twenty days, which does not comport with Practice Book § 17-45. The court should have scheduled the motion for summary judgment on the short calendar at least thirty days after the filing of the plaintiffs’ request for an extension of time pursuant to Practice Book § 17-45.

The judgment is reversed and the case is remanded for further proceedings in accordance with law.

       The plaintiffs served a complaint against the defendant seeking damages for the losses they incurred as a result of the defendant’s disposal of property the plaintiffs had stored in the defendant’s storage facility.

       Although September 5, 2006, was technically eleven days after the date the defendant filed the motion for summary judgment, August 25, 2006, the plaintiffs’ request nevertheless was timely. Practice Book § 7-17 provides in relevant part: “If the last day for filing any matter in the clerk’s office falls on a day on which such office is not open as thus provided . . . then the last day for filing shall be the next business day upon which such office is open. . . .” August 25, 2006, was a Friday. Ten days from August 25, 2006, was September 4, 2006, which was Labor day, a national holiday on which the court is closed. As a result, the next business day was September 5, 2006, the date on which the plaintiffs filed their request for an extension of time.


author: LAVINE, J. STOUGHTON, J.,

text:
    STATE OF CONNECTICUT v. ROBERT MUCKLE STATE OF CONNECTICUT v. STANLEY SCOTT STATE OF CONNECTICUT v. MARYANN SPRAGUE
    (AC 28108)
    (AC 28109)
    (AC 28110)
    Gruendel, Lavine and Stoughton, Js.
    Argued January 7
    officially released June 3, 2008

      Roger J. Frechette, for the appellants (defendants).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John P. Doyle, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

Each of the defendants in these consolidated appeals, Robert Muckle, Stanley Scott and Maryann Sprague, was convicted, after a trial to the court, of disorderly conduct in violation of General Statutes § 53a-182 (a) (5) in connection with a demonstration at the Planned Parenthood of Connecticut (Planned Parenthood) facility in New Haven. On appeal, each of the defendants claims that the evidence was insufficient to establish that he or she either obstructed or intended to obstruct pedestrian traffic in violation of the statute. We affirm the judgments of the trial court.

These appeals arise out of events that transpired on July 9, 2005, when the defendants were on the sidewalk adjacent to Edwards Street near its intersection with Whitney Avenue in New Haven. The court found, in its oral decision, that “in the morning hours at or near . . . 345 Whitney Avenue in New Haven, [the defendants] by their physical presence, together with the presence of their numerous bulky signs, the carriages with signs placed on them, the bricks holding the carriage in place, and the location of the parties and the property within close proximity on the seven foot sidewalk, intended to cause inconvenience, annoyance or alarm by getting in the way of or blocking pedestrian traffic on the sidewalk of Edwards Street.” The defendants were sentenced on October 3, 2006, and these appeals followed.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Damato, 105 Conn. App. 335, 340-41, 937 A.2d 1232, cert. denied, 286 Conn. 920, 949 A.2d 481 (2008). “When there is conflicting evidence ... it is the exclusive province of the court, as the trier of fact, to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony.” (Internal quotation marks omitted.) Capp Industries, Inc. v. Schoenberg, 104 Conn. App. 101, 116-17 n.11, 932 A.2d 453, cert. denied, 284 Conn. 941, 937 A.2d 696, 697 (2007). “Questions of whether to believe orto disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Felder, 95 Conn. App. 248, 263, 897 A.2d 614, cert. denied, 279 Conn. 905, 901 A.2d 1226 (2006). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Lopez, 280 Conn. 779, 809, 911 A.2d 1099 (2007). “In the absence of evidence to the contrary, [an appellate court] will not assume that a finding adverse to an appellant’s case could only have been the product of a failure by the court to consider all of the evidence presented.” Capp Industries, Inc. v. Schoenberg, supra, 117 n.11.

Following the presentation of evidence from September 5 through 7, 2006, the court rendered its decision orally on September 26, 2006. The court first recited the evidence that had been presented. The court heard testimony from Brian Donnelly, a New Haven police officer, and the defendants. The state also “introduced seventeen exhibits, including a video [from a stationary camera system employed by Planned Parenthood] that partially depicted the events of July 9, 2005, thirteen posters ranging in size from four feet by five feet to two feet by two feet, an umbrella stroller measuring approximately three feet tall by one and one-half feet wide, a baby carriage measuring approximately three and one-half feet tall by two feet wide, and eight bricks, which were contained in the baby carriage. The defendants introduced three exhibits consisting of photographs.” (Emphasis added.)

The court made the following findings of fact, including, most significantly, that Donnelly was a credible witness and that the defendants were not. “[0]n July 9, 2005, in the morning hours at or near . . . 345 Whitney Avenue in New Haven, [the defendants] by their physical presence, together with the presence of their numerous bulky signs, the carriages with signs placed on them, the bricks holding the carriage in place, and the location of the parties and the property within close proximity on the seven foot sidewalk, intended to cause inconvenience, annoyance or alarm by getting in the way of or blocking pedestrian traffic on the sidewalk of Edwards Street.

“And [the court] further finds that by those aforesaid actions, the defendants created a risk of getting in the way of or blocking pedestrian traffic. The court finds that all three defendants were warned several times to move their persons and belongings so as not to impede pedestrian traffic on the sidewalk and that the defendants did not comply. The court further finds that three pedestrians were observed to step off the sidewalk and onto the adjacent grass because of the location of the defendants, their signs and carriages on the sidewalk. Therefore, the court finds that the state has proven beyond a reasonable doubt that each of the defendants is guilty of a violation of . . . General Statutes § 53a-182 (a) (5).”

The substance of the defendants’ claims on appeal is that there was insufficient evidence by which the court could have found them guilty of violating § 53a-182 (a) (5) because there was no credible evidence that any one of them obstructed pedestrian traffic and that the video contradicts the court’s findings. Moreover, the defendants argue that there was no pedestrian traffic. On the basis of our review of the testimony, the defendants’ exhibits and the video, we conclude that there is evidence in the record to support the court’s findings.

The finder of fact must find every element of the statute proven beyond a reasonable doubt to find the defendants guilty of the offense charged, but “each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the [finder of fact] to conclude that a basic fact or an inferred fact is true, the [fact finder] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all of the evidence proves the defendants guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Martin, 285 Conn. 135, 147-48, 939 A.2d 524 (2008).

“[I]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence. . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007).

General Statutes § 53a-182 (a) provides in relevant part: “A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person ... (5) obstructs vehicular or pedestrian traffic . . . .” “[T]o support a conviction for disorderly conduct, the defendant’s predominant intent must be to cause inconvenience, annoyance or alarm, rather than to exercise his constitutional rights.” State v. Indrisano, 228 Conn. 795, 809, 640 A.2d 986 (1994). “[T]he mens rea language of § 53a-182 (a) can be formulated more precisely as follows: the predominant intent is to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm. In order to sustain a conviction for disorderly conduct, the state must begin by demonstrating that the defendant had such a state of mind.” Id., 810-11.

“[P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . Furthermore, [i]n [the] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . Indeed, direct evidence of the accused’s state of mind is rarely available .... Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . [A]ny such inference cannot be based on possibilities, surmise or conjecture. . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence.” (Internal quotation marks omitted.) State v. Aloi, 280 Conn. 824, 842-43, 911 A.2d 1086 (2007).

Our review of the evidence discloses that Donnelly testified that on July 9, 2005, he was familiar with Scott and Muckle. When he arrived at the scene in response to a complaint telephoned to the police department, Donnelly observed several protestors on the sidewalk as well as a number of signs. The defendants’ signs, posters and placards were placed in evidence. The size of them varied from four feet by five feet to two feet by two feet. The photographic and video evidence demonstrated that the signs, stroller and baby carriage secured by bricks were on the sidewalk on Edwards Street adjacent to the Planned Parenthood building. Donnelly estimated that six times he asked the defendants, individually or as a group, not to block the sidewalk. He also testified that Scott stated that he had “a constitutional right to block the sidewalk and to protest.” The court reasonably could have inferred on the basis of the size of the defendants’ belongings and their position on the sidewalk that the defendants intended to cause inconvenience, annoyance and alarm or obstructed the sidewalk.

With regard to the obstruction of pedestrian traffic, Donnelly testified that shortly after he arrived, he informed the defendants that they and their signs were obstructing the sidewalk completely, and that at one point, Scott and Sprague were holding signs standing side by side completely blocking the sidewalk. He also testified that several people could not physically pass on the sidewalk because of where the defendants were standing. Deborah Camerota, a defense witness, testified that she saw the sidewalk blocked one time. Donnelly’s testimony and the photographic and video evidence provided a basis for the court to conclude that pedestrians walked off the sidewalk to get around the signs, stroller and baby carriage on the sidewalk. For these reasons, we conclude that there was sufficient evidence presented by the state to prove beyond a reasonable doubt that the defendants were in violation of § 53a-182 (a) (5).

The judgments are affirmed.

In this opinion GRUENDEL, J., concurred.

STOUGHTON, J.,

dissenting. In my view, the evidence and the inferences reasonably drawn therefrom do not support a conclusion that the defendants, Robert Muckle, Stanley Scott and Maryann Sprague, actually obstructed pedestrian traffic during their demonstration at the Planned Parenthood of Connecticut (Planned Parenthood) building in New Haven. Therefore, I respectfully dissent.

Officer Brian Donnelly of the New Haven police department testified that he saw three pedestrians approaching toward the area where the protesters were with their props and that these three pedestrians stepped off the sidewalk. He further testified that he observed two of the three stop as they approached the area and step onto the grass adjoining the sidewalk. These two were never identified, and Donnelly did not know where they went. He testified that he thought that they stepped onto the grass because they could not proceed through the protestors along the sidewalk. That was never established, however, and Donnelly also testified that they may have simply stepped off the sidewalk and walked into the Planned Parenthood building. The record reveals that no other evidence regarding these two pedestrians was provided to the court. No evidence was presented indicating, for example, whether the two pedestrians were traveling together. More importantly, the record does not indicate the positioning of the defendants at the time when the two pedestrians stepped off the sidewalk. Thus, it is not clear which, if any, of the defendants were even blocking the sidewalk at the time that these pedestrians departed from it. It also is not clear whether any of the defendants noticed the two pedestrians.

The third and final pedestrian referenced by Donnelly, and relied on by the state, was a woman who was walking a dog. Donnelly testified that she continued along the sidewalk and stepped onto the grass with her dog when she reached the spot where Scott and Sprague were standing with some policemen. This episode is shown in a video from a stationary camera system employed by Planned Parenthood that depicted a portion of the events during the demonstration, which we have reviewed. The video is consistent with Donnelly’s testimony of the event. The portion of the sidewalk where the woman with the dog stepped onto the grass was occupied by Donnelly and two other police officers in addition to two of the defendants. To the extent that the sidewalk was blocked, the evidence is insufficient to establish that it was the defendants alone, rather than the defendants and the police officers, who blocked the sidewalk. Additionally, even though this pedestrian stepped onto the grass with the dog, she was hardly inconvenienced even slightly, let alone obstructed in her progress. No one attempted to stop her, and she proceeded past the defendants without incident. The state had to show that while intending to impede a lawful activity, the defendants obstructed pedestrian traffic. See State v. Scott, 83 Conn. App. 724, 730, 851 A.2d 353 (2004). One is not obstructed in this sense simply because one is obliged to step around another person who is also on the sidewalk. See State v. Anonymous (1976-9), 33 Conn. Sup. 93, 98, 363 A.2d 772 (1976).

Whether the other two pedestrians might have been obstructed cannot be determined from the evidence. Where they were headed was never revealed, Donnelly testified that he did not know where they were headed, and there is no evidence that they actually attempted to walk along the sidewalk.

Deborah Camerota, referred to in the majority opinion, was considered by the state to have been among the protesters.

I would reverse the judgment.

       All of the defendants were sentenced to ninety days in the custody of the commissioner of correction, execution suspended. Muckle and Sprague were ordered to pay fines of $250 each, and Scott was ordered to pay a fine of $500. Muckle and Sprague each received a conditional discharge, requiring that they have no contact with Planned Parenthood, stay 100 yards away from any Planned Parenthood office in Connecticut, have no contact with Planned Parenthood employees or visitors and have no new arrests. Scott received one year of probation subject to standard terms, plus he is to stay 100 yards away from any Planned Parenthood office in Connecticut, have no contact with Planned Parenthood employees or visitors, stay ten feet away from any motor vehicle approaching a Planned Parenthood office, make a $250 charitable contribution to the Crime Victims Compensation Fund within three months of sentencing and perform ten hours of community service each week for one year.

       The parties stipulated that the video depicted images captured by a motion detector system mounted on the Planned Parenthood building and that the time the images were captured as shown on the video was accurate as to minutes and seconds, but was “off’ by one hour. The video camera does not record continuously, but only when it detects motion. There are therefore spaces over time in the video. In other words, the video contains seven minutes of imagery over the passage of twenty-five minutes of time. Donnelly testified that the camera’s view encompassed a small portion of the sidewalk on either side of the driveway. It could not observe the full length of the sidewalk where the defendants had placed their signs, stroller and baby carriage. Notwithstanding that the video does not purport to portray all of the events as to which evidence was produced, the defendants argue that the seven minute video “proves with mathematical certainty that not only [was] there ... no intent to cause inconvenience, annoyance or alarm, but there [was] absolutely no obstruction of pedestrian traffic.”

       It does not escape our notice that the defendants failed at trial to move for a judgment of acquittal either after the state’s case-in-chief or at the conclusion of evidence.

       The defendants stated the issue in their brief as: “Did the trial court err when it entered its oral judgment that the defendants were guilty beyond a reasonable doubt of violating ... § 53a-182 (a) (5), which states [that] a person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, such person obstructs pedestrian traffic, but, however, as proven by state’s exhibit one, the [video], which proves that there was not only no intention to obstruct pedestrian traffic, but [that] there was no pedestrian traffic to be obstructed, as there is not a scintilla of credible evidence that the defendants’ obstructed pedestrian traffic?” (Emphasis in original.)

       The defendants did not file a motion for articulation; see Practice Book § 66-5; asking the court to clarify whether it found that they intended to cause inconvenience, annoyance or alarm and on what basis.

       Donnelly testified that he observed three people walk off the sidewalk onto the grass because they could not physically pass on the sidewalk. The defendants testified that they did not intend to block pedestrian traffic and that they did not block the sidewalk. The court found Donnelly’s testimony to be more credible. In their brief, the defendants argue that pedestrian traffic was not blocked because there was no pedestrian traffic. The record does not support this claim.

       The state conceded at trial that no pedestrians were prevented from accessing the Planned Parenthood building.