author: SHEA, J.

text:
    DREW FRIEDMAN v. MILLPIT CORPORATION ET AL.
    (AC 16753)
    Spear, Hennessy and Shea, Js.
    Argued March 24
    officially released July 7, 1998

      Richard J. Shapiro, for the appellants-appellees (defendants).

      Hale C. Sargent, for the appellee-appellant (plaintiff).
   Opinion

SHEA, J.

The defendants, Millpit Corporation (Mill-pit), Bernice Miller and Jeff Miller, appeal from a judgment awarding the plaintiff, Drew Friedman, doing business as Library Associates, damages with interest and attorney’s fees for breach of a commercial lease. The plaintiff cross appeals to contest the trial court’s calculation of damages. We affirm the judgment on liability as to the defendants Millpit and Bernice Miller but reverse the judgment against Jeff Miller. We sustain the cross appeal and remand the case for further proceedings with respect to damages.

On March 23, 1987, Friedman, the landlord, and Mill-pit, the tenant, executed a lease for a portion of a building in the town of Westport for use as a retail shoe store for a term of ten years commencing April 1, 1987, and ending March 31,1997. The rent of $6000 per month was subject to yearly increases based on the consumer price index. Bernice Miller, who signed the lease as president of Millpit, also signed a guarantee of performance for the tenant’s obligations under the lease. Mill-pit was required to pay the expenses of the landlord, including attorney’s fees, in enforcing the tenant’s obligations under the lease. The guarantee imposed a similar obligation on Bernice Miller.

In late 1990, Friedman commenced a summary process action against Millpit to obtain possession of the premises because of a substantial rent arrearage. He filed a separate action for the delinquent rent against both Millpit and Bernice Miller. Millpit claimed that it had withheld the rent justifiably because of a leaky roof, a dispute over the calculation of the yearly rental increases based on the cost of living adjustment clause and the landlord’s placement of a dumpster in front of the shoe store. On February 7, 1991, before trial' of the summary process action, the parties agreed to settle the two lawsuits and the various disputes between them. Millpit, acting through Jeff Miller, who had replaced Bernice Miller, his mother, as president of the corporation, signed a stipulation with Friedman for that purpose. Bernice Miller, who had participated in the negotiations, refused to sign the stipulation.

The stipulation provided that the lease was reinstated and that the back rent of $19,060.80 would be paid into an escrow account until the landlord made arrangements to relocate the dumpster. It gave the landlord an option to terminate the reinstated lease that would expire on March 15,1991, and gave the tenant an option to terminate the lease if the landlord did not relocate the dumpster by June 30, 1991. The stipulation also provided that the eviction action would be withdrawn on March 19, 1991, if Millpit had paid the back rent to the escrow account and had also paid the February and March, 1991, rent installments by that date.

Neither option to terminate the lease was exercised, and the pending lawsuits were withdrawn. Millpit, however, paid only $17,534.83 of the $19,060.80 arrearage, leaving a balance of $1525.97. Later, the arrearage for rent began to increase. On October 24, 1991, Friedman wrote a letter to Millpit in which he claimed that Millpit would owe $15,617.74 as of November, 1991. On November 12, 1991, Millpit wrote a letter to Friedman, stating that it had to reduce its monthly rental payment to $5000 and that it would not pay the escrow balance. In December, 1991, Millpit sent a monthly rental payment of $5000 to Friedman and continued to do so through November, 1993. On January 30, 1992, Friedman sent a letter claiming that Millpit was in arrears by $8729.95 and requesting payment of that sum before any discussion of “possible relief for [Millpit] in the future.”

Friedman continued to dun Millpit with letters concerning the rent arrearage, which had grown to $94,844.57 by November 18, 1993, to which Millpit responded with a request to revise the lease. Finally, in December, 1993, Friedman brought an eviction action that resulted in a stipulated judgment of possession with a stay of execution through March 31,1994. Millpit did not vacate the premises, however, until about April 15, 1994. It did, however, pay a use and occupancy charge of $6000 per month for February and March, 1994.

Friedman brought the present action against Millpit, Bernice Miller and Jeff Miller in May, 1994, to collect the unpaid rent with accumulated interest in the total sum of $111,700.88 for the period, April 1,1991, through January 31, 1994. The complaint sought an additional $30,743.96 for the loss of rent for the months of April, May, June and July, 1994.

The trial court rendered judgment against the defendants for $54,527.21 plus interest of $39,134.21 and attorney’s fees of $14,447.02. The court held that the notice to quit served on Millpit when the first summary process action began in late 1990 effectively terminated the lease and that Millpit became a tenant at sufferance thereafter. It regarded as ineffective the declaration in the stipulation of February 7, 1991, that “the lease and its terms and guaranty shall be reinstated and in full force and effect, and shall be binding on the parties hereto” because Bernice Miller had refused to sign the stipulation, despite the finding that the stipulation did not increase the guarantor’s exposure. The court concluded that Millpit became liable to pay a reasonable charge for use and occupancy of the premises while it continued to remain in possession as a tenant at sufferance. It found that the amount set forth in the stipulation of February 7, 1991, $6888.49 per month for use and occupancy, was the fair rental value of the premises during the period, February, 1991, through February, 1994, and used that figure in calculating the award of damages.

I

We disagree with the trial court’s conclusion that Friedman’s service of a notice to quit in the summary process action that led to the stipulation of February 7, 1991, terminated the lease and that the refusal of the guarantor to sign the stipulation prevented its provision for reinstatement of the lease from being effective. The court incorrectly equated a notice of intent to terminate a lease with actual termination of the lease. In Bridgeport v. Barbour-Daniel Electronics, Inc., 16 Conn. App. 574, 582-85, 548 A.2d 744, cert. denied, 209 Conn. 826, 552 A.2d 432 (1988), this court held that a notice to quit containing a statement that a lease was terminated did not effectuate such a termination because untimely service of the notice rendered it invalid and, therefore, a nullity. “Indeed, it is self-evident that if the notice is invalid, then the legal consequence of ‘termination’ arising from the service of a valid notice does not result.” Bargain Mart, Inc. v. Lipkis, 212 Conn. 120, 134, 561 A.2d 1365 (1989). In Bargain-Mart, Inc., a case similar to this appeal, that principle was applied when the tenant in a summary process action had raised special defenses contesting the right of the landlord to terminate the lease for nonpayment of rent, but the issues raised by those defenses were never adjudicated because the suit was settled by a stipulated judgment agreeable to the parties. Id., 134. “Because the trial court in the summary process action did not determine whether the notices to quit were valid, we have no basis for concluding that those notices terminated the [lease].” Id., 135.

We reach a similar conclusion in this case. Because there never was any determination of the right of the landlord to terminate the lease in the summary process action begun in 1990, which Millpit contested, the lease remained in effect and the agreement to reinstate it contained in the stipulated judgment was superfluous. As the lease was not terminated until Friedman brought another summary process action in December, 1993, the finding of the trial court that when the stipulation of February 7,1991, was signed by Friedman and Millpit, there was “no meeting of the minds with respect to the reinstatement of the lease” is of no consequence. We conclude that the lease remained in effect until it was terminated by the notice to quit in the second summary process action.

II

In calculating the award of damages, the trial court relied on the stipulation of February 7, 1991, in which Friedman and Millpit agreed that the back rent, including assessments, was $19,060.80. The court also decided that a reasonable charge for use and occupancy of the premises after that date was $6888.49 per month, the amount set forth in the stipulation for use and occupancy during the four month period following a possible exercise of the landlord’s option to terminate the lease. Our conclusion in part I of this opinion that the lease remained in effect until the second summary process action in December, 1993, necessitates a recalculation of the damages accruing after February 7, 1991, using rental charges calculated pursuant to the terms of the lease.

On the appeal, the judgment against Jeff Miller is reversed; on the cross appeal, the judgment against Millpit and Bernice Miller is reversed as to damages only, and the case is remanded for further proceedings regarding damages in accordance with this opinion.

In this opinion the other judges concurred.

       The defendants claim in their reply brief that the judgment should be reversed as to Jeff Miller because no cause of action was pleaded against him. We agree. He is not named as a defendant in the revised complaint filed by the plaintiff, and the record does not otherwise disclose the basis for imposing liability on him.

       Although the judgment file indicates that the award of $14,447.02 was for interest and the award of $39,134.21 was for attorney’s fees, the transcript of the court’s decision, which was rendered orally, provides that $39,134.21 was for interest and $14,447.02 was for attorney’s fees.

       A modification of the obligation between the principal obligor and the obligee does not discharge the secondary obligor or surety unless “the modification creates a substituted contract or imposes risks on the secondary obligor fundamentally different from those imposed pursuant to the transaction prior to modification . . . Restatement (Third), Suretyship and Guaranty § 41 (b) (i), p. 184 (1996); see American Oil Co. v. Valenti, 179 Conn. 349, 353-54, 426 A.2d 305 (1979).

       We recognize that the stipulation did modify the lease by giving both the lessor and lessee options to terminate that expired without being exercised, and settling disputes over the back rent and the location of the dumpster. None of the provisions of the stipulation, however, affected the judgment or imposed additional risks on the surety.

       Our conclusion that the lease remained in force until the second summary process action in December, 1993, makes it unnecessary to discuss the remaining claims raised by the defendants.

       This option to terminate was never exercised and it expired on March 15, 1991.

       The trial court reduced its damages calculation by $6000, the amount of the security deposit given by Millpit at the time the lease was executed on March 23, 1987. Friedman testified that the deposit was applied to the rent accruing during the period May 15, 1987, to June 15, 1997, and this testimony was not controverted at trial. The court made no express finding on this subject, but simply credited the security deposit against the damages for unpaid rent and use and occupancy charges. This court cannot decide this issue on the record before us and will leave it to be determined in the further proceedings that we have ordered.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE TODD G.

    (AC 17596)
    Schaller, Sullivan and Dupont, Js.
    Considered May 6
    officially released July 7, 1998

      Patricia Johnson, in support of the motion.

      Andrew M. Haynes, in opposition.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book (1998 Rev.) § 79-3, the names of the parties involved in this appeal are not disclosed. The record and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

PER CURIAM.

This appeal raises the question of whether a trial court’s granting of an extension of a commitment of a minor child to the commissioner of the department of children and families (commissioner) pursuant to General Statutes § 46b-129 (e) is a final judgment for purposes of appellate review. We hold that such an action by the trial court is immediately appealable.

On March 3, 1997, the commissioner filed a petition for extension of the minor child’s commitment to the petitioner’s care. The commitment was due to expire on April 11,1997. An extension for an additional twelve months was sought, based on allegations that the child was in need of a therapeutic foster home and that his natural mother was unable to provide the structure and care he required. On March 24, 1997, the trial court ordered the commitment continued until further order of the court. On August 25, 1997, the court ordered the commitment extended retroactively from April 11,1997, and placed restrictions on the respondent mother’s contact and visitation with the child. Thereafter, the respondent mother filed this appeal.

The petitioner filed a motion to dismiss the respondent’s appeal on the ground that this court lacks subject matter jurisdiction because the order appealed from is interlocutory in nature and does not satisfy the test for review established in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

The respondent opposes the motion to dismiss on the ground that orders extending commitments are analogous to pendente lite custody orders, which are immediately appealable. See Madigan v. Madigan, 224 Conn. 749, 753-57, 620 A.2d 1276 (1993).

In determining whether a decision by a trial court is a final judgment for purposes of appellate review, we rely on the standard articulated in State v. Curcio, supra, 191 Conn. 31. That standard permits the immediate appealability of an order “in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id.

Before discussing the applicability of Madigan, we first note that the case of In re Elisabeth H., 40 Conn. App. 216, 669 A.2d 1246 (1996), is not applicable to the present case. We held in In re Elisabeth H. that an order adjudicating children neglected and committing them to the care of the department of children and families was not an appealable final judgment unless dispositional orders had also been entered at the time of the appeal. Id., 219. Unlike the situation in In re Elisabeth H., in this case we are dealing with a dispositional decision. Practice Book (1998 Rev.) § 33-9, formerly § 1045.1 (1), provides in relevant part that extension petitions are “dispositional in nature based on the prior adjudication . . . .”

In Madigan, our Supreme Court recognized the importance of the parent-child relationship and the irreparable consequences of a temporary custody order on the relationship. The court concluded that, therefore, such orders satisfy the second prong of the Curcio standard. “To deny immediate relief to an aggrieved parent interferes with the parent’s custodial right over a significant period in a manner that cannot be redressed by a later appeal.” Madigan v. Madigan, supra, 224 Conn. 756. The Madigan court concluded that an order of temporary custody in a dissolution action is immediately appealable “because an immediate appeal is the only reasonable method of ensuring that the important rights surrounding the parent-child relationship are adequately protected.” Id., 757.

In a more recent case, which relies on the reasoning of Madigan, a court order that precluded parents in a custody dispute from filing motions regarding custody or visitation for a period not less than one year was held to be immediately appealable because it satisfied the second Curdo standard. Taff v. Bettcher, 243 Conn. 380, 386, 703 A.2d 759 (1997). As in Madigan, an immediate appeal was necessary to protect the rights involved in the parent-child relationship. Id.

The parent-child relationship in the present case would be equally disrupted for a significant period of time if no appeal were possible. There are no further proceedings in the underlying action brought pursuant to § 46b-129 (d) that will affect the commitment order until the petitioner either moves to extend the commitment again or to terminate the respondent’s parental rights. We conclude that the order extending the child’s commitment to the petitioner satisfies the second prong of Curdo and, therefore, hold that the order is a final judgment for purposes of appellate review.

The petitioner’s motion to dismiss the respondent’s appeal is denied.

       General Statutes § 46b-129 (e) provides in relevant part: “Ninety days before the expiration of each twelve-month commitment made in accordance with the provisions of subsection (d) of this section and each extension made pursuant to the provisions of this subsection, the Commissioner of Children and Families shall petition the court either to (1) revoke such commitment, in accordance with the provisions of subsection (g) of this section, or (2) terminate parental rights in accordance with the provisions of section 17a-112, or (3) extend the commitment beyond such twelvemonth period on the ground that an extension is in the best interest of the child. . . .”

       Although this court has previously reviewed an extension of a commitment order in In re Corey E., 40 Conn. App. 366, 671 A.2d 396 (1996), as though it were appealable, the issue was not raised by either party and we did not discuss whether there was a final judgment for purposes of appeal in that case.

       The child was originally placed in the petitioner’s noncommitted treatment program. In March, 1993, he was committed to the petitioner as an uncared for child with special needs and the commitment has been extended since that time.

         The order appealed from, which extended the child’s commitment to the petitioner, expired on April 11, 1998. On March 23, 1998, the commitment was extended for a period not to exceed twelve months from April 11, 1998. We conclude that this case is not moot in light of the continuing commitment of the child. The extension allows this court to grant practical relief to the appellant should it be warranted on the merits. See In re Corey E., 40 Conn. App. 366, 369, 671 A.2d 396 (1996); cf. Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995).

       General Statutes § 46b-129 (d) provides in relevant part: “Upon finding and a<ijudging that any child or youth is uncared-for, neglected or dependent, the court may commit him to the Commissioner of Children and Families for a maximum period of twelve months, unless such period is extended in accordance with the provisions of subsection (e) of this section, provided such commitment or any extension thereof may be revoked or parental rights terminated at any time by the court, or the court may vest such child’s or youth’s care and personal custody in any private or public agency which is permitted by law to care for neglected, uncared-for or dependent children or youth or with any person found to be suitable and worthy of such responsibility by the court. ...”
      General Statutes § 46b-129 (d) was amended by No. 97-319, § 19, of the 1997 Public Acts, but the language quoted herein was not changed.


author: SPEAR, J.

text:
    THOMAS F. BROWN v. WILLIAM VILLANO ET AL., COCONSERVATORS (ESTATE OF RUTH VILLANO)
    (AC 16199)
    O’Connell, C. J., and Spear and Stoughton, Js.

      Argued January 28
    officially released July 14, 1998

      Thomas F. Brown, the appellant-appellee (plaintiff).

      Charles D. Ray, with whom, on the brief, were William H. Narwold and John P. McKinney, for the appellees-appellants (defendants).
   Opinion

SPEAR, J.

The plaintiff, Thomas F. Brown, an attorney who was appointed by the Probate Court to represent Ruth Villano, appeals from the judgment of the trial court that approved an accounting of one of the defendants, William Villano, for the period of time that William acted pursuant to a power of attorney from Ruth. The plaintiff claims, inter alia, that the trial court improperly applied the fair preponderance of the evidence standard of proof to the matters at issue rather than the clear and convincing standard that is applicable to fiduciary dealings. The defendants cross appeal, claiming that the trial court improperly denied their motion to dismiss, which challenged the plaintiffs right to appeal the action of the Probate Court, where the plaintiff was neither Ruth’s guardian ad litem nor her next friend and where the trial court made no finding that the appeal was in Ruth’s best interests. We agree with the plaintiff and reverse the judgment of the trial court.

The record discloses the factual and procedural history. The plaintiff had been associated in the practice of law with Vincent Villano, who died in 1991, leaving Ruth Villano as his surviving spouse. Prior to Vincent’s death, William Villano, the son of Vincent and Ruth, began assisting them by writing their checks and helping them to manage family affairs. Ruth had a stroke later in 1991 and, at the time of trial, was in a convalescent home.

Prior to Vincent’s death, the plaintiff told William that, because of his mother’s problems, a conservator could be appointed for her or she could execute a power of attorney. William and the family chose the power of attorney, which was executed on August 6, 1990, naming William as attorney in fact.

The plaintiff applied to be appointed conservator for Ruth in April, 1993. After a hearing, the Probate Court appointed William Villano and Sandra Villano coconservators of the person and estate of Ruth, and appointed the plaintiff as the attorney for Ruth. The Probate Court granted the plaintiffs request that William be ordered to account for all money that he had expended from the date of Vincent Villano’s death to the date of his appointment as coconservator. William filed an accounting that the Probate Court approved. The plaintiff appealed from the decree of the Probate Court, and the Superior Court, after a trial de novo, approved the accounting. This appeal and cross appeal followed.

I

The plaintiff challenges the trial court’s legal conclusion that the fair preponderance of the evidence standard of proof applies where a power of attorney accounting is at issue. “When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct . . . .” (Internal quotation marks omitted.) Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 14, 664 A.2d 719 (1995). We agree with the plaintiff that the trial court improperly applied the fair preponderance of the evidence standard of proof.

The power of attorney created a principal-agent relationship between William and Ruth, and agency is a fiduciary relationship. Long v. Schull, 184 Conn. 252, 256, 439 A.2d 975 (1981). “[A] fiduciary relationship has always demanded a high degree of scrutiny. For example, we have held . . . that [p]roof of a fiduciary relationship . . . imposes a twofold burden upon the fiduciary. Once a [fiduciary] relationship is found to exist, the burden of proving fair dealing properly shifts to the fiduciary. . . . Furthermore, the standard of proof for establishing fair dealing is not the ordinary standard of fair preponderance of the evidence, but requires proof ... by clear and convincing evidence . . . .” (Internal quotation marks omitted.) Andrews v. Gorby, 237 Conn. 12, 21, 675 A.2d 449 (1996); Konover Development Corp. v. Zeller, 228 Conn. 206, 228-30, 635 A.2d 798 (1994).

The trial court cited Andrews v. Gorby, supra, 237 Conn. 12, in support of its utilization of the fair preponderance of the evidence standard of proof. In so doing, the trial court relied on a statement in Andrews that “the burden rests on the attorney to prove the reasonableness of the compensation requested by a preponderance of the evidence.” Id., 23. In this case, there was no request for attorney’s fees as there was in Andrews, where the Supreme Court concluded that reference to an attorney’s fee schedule in a will is irrelevant as a matter of public policy. Id., 22. Such fee requests are matters for the court’s consideration. See Miller v. Kirshner, 225 Conn. 185, 201, 621 A.2d 1326 (1993). In Andrews, the court reversed the trial court’s affirmance of the Probate Court’s refusal to award attorney’s fees and remanded the case for a new trial on the issue of reasonable fees. Id., 25. On remand, the trial court was asked to review, inter alia, a request for attorney’s fees where there was no issue of unfair dealing, overbearing or improper conduct by the attorney who had drafted both the will and the fee schedule. In the absence of any claim of breach of fiduciary duty, an attorney who is seeking fees in the Probate Court would normally request compensation and have the ordinary burden of proving the reasonableness of such compensation by a fair preponderance of the evidence.

The defendants contend that the application of the wrong standard here was harmless because of the undisputed and persuasive evidence. The short answer to this claim is that it is the trial court, the fact finder, that must initially determine whether evidence satisfies any particular standard of proof. We cannot make that determination, regardless of how persuasive the evidence may appear to us on review. Santosky v. Kramer, 455 U.S. 745, 757, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Schaffer v. Lindy, 8 Conn. App. 96, 105, 511 A.2d 1022 (1986); Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 297, 478 A.2d 257 (1984).

As an alternative, the defendants suggest that we remand the case to the trial court for articulation as to whether the evidence satisfied the clear and convincing standard. We decline to do so. It is true that in State v. Treat, 38 Conn. App. 762, 768-70, 664 A.2d 785, cert. denied, 235 Conn. 920, 665 A.2d 907 (1995), where the trial court did not state the standard of proof that it used in a probation violation hearing, we remanded the case for articulation of the standard. In other violation of probation cases, however, where we were satisfied that the trial court had, in fact, applied a previously overruled standard of proof, we reversed and ordered new probation hearings. See State v. Paul, 35 Conn. App. 201, 203-204, 644 A.2d 969 (1994); State v. Torres, 35 Conn. App. 107, 110-11, 644 A.2d 384 (1994); State v. Willis, 34 Conn. App. 931, 932, 643 A.2d 318 (1994); In re Marius M., 34 Conn. App. 535, 536, 642 A.2d 733 (1994). Because the trial court here clearly stated that it applied the fair preponderance of the evidence standard, we conclude that a new hearing is required.

II

We now turn to the two evidentiary claims that are raised by the plaintiff, as they will most likely recur in the new trial. The plaintiff claims that the trial court improperly admitted (1) hearsay testimony as to Ruth’s directions to William and (2) testimony from William that he, without Ruth’s approval, made certain expenditures that were consistent with Ruth’s past treatment of her children and grandchildren.

A

The plaintiff claims that General Statutes § 52-175 precludes William from testifying as to the directions that Ruth gave him regarding expenditures. Section 52-175 (a) provides that “[i]n the trial of any civil action in which any party is, at the time of the trial, mentally ill or unable to testify by reason of incurable sickness, failing mind, old age, infirmity or senility, the entries and memoranda of the party, made while he was sane and which are relevant to the matter in issue, may be received as evidence.” (Emphasis added.) The plaintiff claims that the admission of oral statements is not authorized by § 52-175.

In this appeal from the Probate Court, Brown is the plaintiff and William Villano and Sandra Villano, coconservators, are the defendants. Because Ruth is not a party, § 52-175 does not apply. Even if the word “party” could be construed to include Ruth; see Cross v. Hudon, 42 Conn. App. 59, 64-65, 677 A.2d 1385, cert. denied, 239 Conn. 932, 683 A.2d 400 (1996); the evidentiary requirements of subsection (c) of § 52-175 were not met. Although the plaintiff asserts in his brief that “[c]learly [Ruth] Villano was incapacitated and unable to testify,” he offered no evidence in support of the § 52-175 claim, and the trial court made no such finding.

We conclude that the trial court’s ruling was not improper under the circumstances here, where the only claim was that the court’s ruling violated § 52-175.

B

The plaintiff claims that William should not have been permitted to testify that “he made payments to himself and other members of the family . . . based on [Ruth’s] past treatment of her children and grandchildren.” The plaintiff cites no authority in support of this proposition and simply states in his brief that “[t]he plaintiff has not been referred to any law that permits a fiduciary to make payments on behalf of his principal based on the prior gift giving habits or practices of the principal.”

We decline to review this issue because it is inadequately briefed. See State v. Rodriguez, 44 Conn. App. 818, 823-24, 692 A.2d 846, cert. denied, 242 Conn. 902, 697 A.2d 363 (1997).

III

In their cross appeal, the defendants claim that this case should be dismissed for lack of standing because the plaintiff is not Ruth’s guardian ad litem or next friend. In the alternative, the defendants claim that the case should be remanded to the Probate Court for a hearing to determine whether the appeal from probate is in Ruth’s best interests.

After the motion to dismiss was denied, our Supreme Court decided Newman v. Newman, 235 Conn. 82, 663 A.2d 980 (1995). In Newman, the Supreme Court held that in a marriage dissolution case “the lack of a guardian or next friend does not deprive the children of standing to appeal.” Id., 102. The Supreme Court noted that such a defect was an amendable irregularity and did not implicate subject matter jurisdiction. Id. On the basis of Newman, we conclude that the trial court was not required to dismiss the case for lack of subject matter jurisdiction. As regards standing, our Supreme Court has recognized that “the legal disability of an incompetent is analogous to that of a minor.” Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 264, 398 A.2d 307 (1978); see also Buchholz’s Appeal from Probate, 9 Conn. App. 413, 420, 519 A.2d 615 (1987).

Newman v. Newman, supra, 235 Conn. 82, is also instructive for purposes of our remand. In Newman, our Supreme Court determined that the minor children could appeal without a guardian ad litem or next friend if they “first [persuaded] the trial court that such an appeal [would be] in their best interests.” Id., 100. In this case, we do not agree with the defendants that the Probate Court, on remand, should first determine whether the appeal from the decree of the Probate Court is in Ruth’s best interests. As a practical matter, no record was made of the Probate Court hearing, and there is nothing for the Probate Court to review to determine whether an appeal from its decree would be in Ruth’s best interests. To provide sufficient information for the Probate Court to determine that issue, evidence that is similar to that required for the accounting would have to be produced. From a legal perspective, any ruling of the Probate Court would be subject to an appeal, which could be de novo, and the trial court would then hear the same evidence on the appeal. Considerations of judicial economy militate against a remand to the Probate Court in the circumstances of this case. In the interest of judicial economy and pursuant to our supervisor power; see Practice Book (1998 Rev.) § 60-2; we direct the trial court, on remand, to hold a hearing to determine whether the appeal from probate is in the best interests of Ruth Villano. Upon a determination that the appeal from probate is in her best interests, the trial court shall proceed with the appeal. Upon a determination that the appeal is not in her best interests, the case shall be dismissed.

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

In this opinion the other judges concurred.

       The plaintiff makes five other claims. Two of the claims are evidentiary and may arise in the new trial. We address only one of them here because the other evidentiary claim is inadequately briefed and, therefore, we decline to review it. The claims that the court was not fair and impartial and that two of its factual conclusions are erroneous need not be discussed because the partiality claim cannot arise in the new trial and we do not know what factual conclusions the new trial judge will reach. See General Statutes § 51-183c, which provides in relevant part: “No judge of any court who tried a case without a jury in which a new trial is granted . . . may again try the case. . . .”

       The plaintiff was named as executor in Ruth’s will.

       In State v. Davis, 229 Conn. 285, 302-303, 641 A.2d 370 (1994), our Supreme Court held that the state must establish a violation of probation by a fair preponderance of the evidence, rather than the previously used lesser standard of “reasonable satisfaction.” A number of cases subsequently arose challenging the use of the lesser standard.

       The plaintiff also claims that the trial court improperly found that the plaintiff had acted as attorney for William in drawing the original power of attorney. We fail to see the relevance of this claim, even if it is correct. At oral argument, the plaintiff was unable to state any reason why we should review this claim. We therefore decline to do so.

       General Statutes § 52-175 (c) provides: “The court shall determine, upon competent evidence, as a preliminary question of fact, whether the provisions of this section apply to any party or parties to any action on trial before it.”

       The defendants have filed what they denominated a cross appeal. Because they prevailed in the trial court, they are not aggrieved and have no standing to file a cross appeal. We will, therefore, consider their claim that this case should have been dismissed by the trial court as an alternative ground for affirmance under Practice Book § 4013, now Practice Book (1998 Rev.) § 63-4. See Sekor v. Board of Education, 240 Conn. 119, 121 n.2, 689 A.2d 1112 (1997).

       A motion to reconsider that denial was granted, but the court again denied the motion to dismiss.


author: SCHALLER, J.

text:
    NANCY EMONDS v. LUMBERMAN’S MUTUAL CASUALTY COMPANY
    (AC 17048)
    Lavery, Schaller and Sullivan, Js.
    Argued February 27
    officially released July 14, 1998

      Patrice S. Noah, for the appellant (defendant).

      Nancy Emonds, pro se, the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Lumberman’s Mutual Casualty Company, appeals from the judgment of the trial court vacating an arbitration award in its favor. The principal issue on appeal is whether the trial court properly applied an “appearance of bias” standard to the appointment of an arbitrator instead of requiring proof of a specific impropriety. The appeal was heard on the basis of the defendant’s brief and oral argument, the plaintiff having failed to file a brief. We reverse the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. The plaintiff brought an uninsured motorist claim against the defendant. The plaintiff, who was represented in the arbitration by an attorney, selected attorney R. Bartley Halloran as her arbitrator. Because the defendant admitted insurance coverage, the only issue before the arbitrators at the April 23,1993 hearing was the amount of damages. No record was made of the hearing. The plaintiff submitted medical reports and bills, and testified on her own behalf. The arbitration panel denied the plaintiffs claim. The record contains no further information about the arbitration proceeding or the arbitrators’ decision.

On July 7, 1993, the pro se plaintiff moved to vacate the award. In that motion, the plaintiff did not raise any claim of impropriety on the part of any of the arbitrators, but instead claimed that the award was not complete because no reasons were stated for its conclusion. The defendant filed an objection to the motion to vacate. The case was dismissed for dormancy and later opened on April 17, 1995. In her motion to open, filed nearly two years after the original motion to vacate, the plaintiff asserted for the first time, in an amendment to the original motion to vacate, an allegation that Halloran had earlier reviewed her case file on a referral basis from Ebenstein and Ebenstein, P.C. (Ebenstein), and “evidently elected not to handle the file in his office.” The plaintiff went on to speculate that “[p]erhaps his review of the file made him privy to inappropriate information or led him to a conclusion on the case’s merits, which would have inappropriately predetermined his decisional thought process.” The defendant objected to the “amended” motion to vacate on various grounds.

In 1996, a hearing was held before the Superior Court on the motion to vacate. The plaintiff conceded that her attorney had selected Halloran and argued that she believed that Halloran had reviewed the file but was not sure. The plaintiff indicated that she did not recognize Halloran at the arbitration proceeding, but that her husband made a comment after the hearing about him. Halloran stated in an affidavit that although he had handled some Ebenstein files, he did not recall the plaintiff or her file, and that it was unlikely that he had reviewed it. No evidence was presented that Halloran had familiarity with or prejudged the matter. There was no proof of bias or impropriety on Halloran’s part. In particular, there was no evidence that he remembered anything about the case or how he evaluated the case if, in fact, he had previously reviewed it. The trial court, however, vacated the award, finding that Halloran had “met with the plaintiff to review the case.” The trial court relied exclusively on one case cited by the plaintiff, Gaer Bros., Inc. v. Mott, 144 Conn. 303, 308, 130 A.2d 804 (1957), in concluding that arbitrators must be completely impartial and must have no connection with the parties that might give the appearance of their being other than impartial.

The defendant claims that the trial court improperly applied the appearance of bias standard to the arbitrator in question. We agree. The party attacking an arbitration award on the ground of arbitrator bias must produce sufficient evidence to invalidate it. Schwarzschild v. Martin, 191 Conn. 316, 327, 464 A.2d 774 (1983). Where the plaintiff cannot produce sufficient evidence to support a finding of partiality, the court should not overturn the award. Id.; Von Langendorff v. Riordan, 147 Conn. 524, 528, 163 A.2d 100 (1960). The mere appearance of bias does not disqualify an arbitrator. See Schwarzschild v. Martin, supra, 327. The burden of establishing a disqualifying interest rests on the party seeking disqualification. Id. That party must demonstrate actual bias, rather than mere potential bias, to overturn an arbitration award. Petrowski v. Norwich Free Academy, 199 Conn. 231, 237, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S. Ct. 42, 93 L. Ed. 2d 5 (1986); Clisham v. Board of Police Commissioners, 223 Conn. 354, 361-62, 613 A.2d 254 (1992) (“ ‘mere appearance of bias that might disqualify a judge will not disqualify an arbitrator’ ”). To vacate an arbitration award, the trial court must find a specific impropriety of the arbitrator. See Allstate Ins. Co. v. Link, 35 Conn. App. 338, 344, 645 A.2d 1052, cert. denied, 231 Conn. 924, 648 A.2d 161 (1994).

Applying these principles, we conclude that the trial court improperly applied the appearance of bias standard and that the plaintiff failed to meet her burden of proving actual bias. Despite the plaintiffs own uncertainty about whether Halloran had reviewed her file, the trial court found that Halloran had met with the plaintiff. The trial court made no additional findings of fact concerning any prior relationship between Halloran and the plaintiff. The record contains no evidence whatsoever suggesting bias or predetermination of the matter on the part of Halloran. No evidence was produced concerning the arbitration proceedings. The trial court’s decision, therefore, was clearly erroneous.

The judgment is reversed and the case is remanded with direction to render judgment denying the plaintiffs application to vacate the arbitration award.

In this opinion the other judges concurred.

       The defendant also claims that the trial court improperly allowed the plaintiff to proceed on a motion to vacate. Because we reverse the judgment on the basis of the defendant’s first claim, we need not address this claim. We note that the claim of bias was not raised until approximately two years after the award. See Clisham v. Board of Police Commissioners, 223 Conn. 354, 367, 613 A.2d 254 (1992); Henderson v. Dept. of Motor Vehicles, 202 Conn. 453, 462, 521 A.2d 1040 (1987).

       In the interest of judicial economy, we will review the evidence under the proper standard rather than remand the case to the trial court. See Almeida v. Liberty Mutual Ins. Co., 234 Conn. 817, 826, 663 A.2d 382 (1995).


author: HEALEY, J.

text:
    TRACI CONSTANTINE ET AL. v. LOREN T. SCHNEIDER
    (AC 16454)
    Foti, Landau and Healey, Js.

      Argued January 26
    officially released July 14, 1998

      Steven E. Arnold, for the appellants (plaintiffs).

      Robert F. Kappes, for the appellee (defendant).
   Opinion

HEALEY, J.

This is a medical malpractice case instituted by the plaintiffs, Traci Constantine and her husband Michael Constantine, against the defendant, Loren J. Schneider, a podiatrist, arising out of injuries to Traci Constantine’s right foot. The jury returned a plaintiffs’ verdict of $114,000, which the trial court refused to set aside or to increase with an additur.

On appeal, the plaintiffs claim that the trial court improperly (1) refused to allow them to amend and conform their complaint to their proof of damages and (2) ruled that the defendant’s surveillance videotape of Traci was inadmissible because it was a privileged work product. We affirm the judgment of the trial court.

I

A

The facts relating to the claim concerning the proposed amendment are as follows. After an accident in May, 1990, Traci Constantine consulted the defendant. His initial diagnosis in May, 1990, was tibial sesamoiditis with possible fracturing of the right foot. When he initially took X rays, the defendant showed them to Traci and with a pen circled the tibial sesamoid bone to show which bone was the problem. In August, 1990, he diagnosed her right front tibial sesamoid bone as chronically fractured. After a period of conservative treatment, the defendant recommended that Traci undergo a surgical removal of the tibial sesamoid bone of her right foot. She agreed and the defendant performed the surgery. In doing so, however, he removed the fibular sesamoid bone and not the tibial sesamoid bone.

After the surgery, Traci continued to have much pain. Her mobility was quite difficult even though she was receiving physiotherapy and attempting to wear an orthotic device on her right foot as prescribed by the defendant. On September 21, 1990, she returned to the defendant’s office and saw the defendant’s associate. Among other things, the associate took X rays of her right foot, which revealed the absence of the fibular sesamoid. She visited the defendant’s office several times thereafter, including December 17, 1990, when the defendant took X rays. Some time later, Traci went to the defendant’s office and picked up the rest of her file as well as the original X rays of. her foot taken by the defendant. On January 1, 1991, Traci went through her file and paperwork, including the consent forms, and looked at the picture that the defendant had drawn of the bones of the foot. She noticed that the defendant had circled the outside bone, which was the fibular sesamoid, and he had written that this was the bone removed. She believed that the wrong bone had been removed. The next day she had an appointment for physical therapy at the defendant’s office, and she planned to confront the defendant. The defendant, however, was not present, and Traci spoke to the defendant’s associate about her concerns. At that time, she showed the associate, inter alia, the original X rays of May, 1990. The next day the defendant telephoned Traci, acknowledged that he had made a mistake and apologized. At that time, he told her that if she wanted to have the correct bone removed, he would to do it free of charge. That was the last conversation that Traci had with the defendant.

Shortly thereafter, Traci contacted Peter Barnett, a Hartford orthopedic surgeon, to discuss her case, and she brought him her file and X rays to see if he would perform the surgery to remove the tibial sesamoid bone. Barnett performed the surgery and, according to Barnett, after that surgery Traci had very little pain, except at the surgical site. She still experienced difficulty with her mobility in her daily activities, and she was prescribed handmade orthotics to wear in both shoes. Barnett treated Traci until January, 1992.

Traci saw two orthopedic surgeons and one podiatrist at various times after she discontinued treatment with Barnett. From August 18, 1992, until August 31, 1995, Traci did not receive either medical or podiatric treatment. The podiatrist was treating her at the time of trial and testified as her expert witness. He testified about his treatment, her pain, her potential for future surgery, the type of employment she could expect to perform and her mobility.

B

We turn now to the plaintiffs’ request to amend their original complaint (1992 complaint) on July 16, 1996, the first day of trial. The 1992 complaint alleged, inter alia, that the causes of Traci’s postsurgical right foot pain and discomfort and the February 8, 1991 surgical removal of the tibial sesamoid bone by an orthopedic surgeon were the defendant’s (1) diagnosis that Traci was suffering from tibial sesamoiditis with a possible fracture of the right foot, (2) recommendation after a period of conservative treatment that she undergo a surgical procedure known as a tibial sesamoidectomy, (3) performance of surgery on September 18, 1990, (4) informing her on January 3,1991, that he had mistakenly removed the fibular sesamoid bone instead of the tibial sesamoid bone and (5) improper removal of the fibular sesamoid bone. The original complaint specifically alleged the following in paragraph nine: “The Plaintiffs injuries, losses and damages were proximately caused by the carelessness and negligence of the Defendant, Loren J. Schneider, in one or more of the following ways:

“a. In that he removed the fibular sesamoid instead of the tibial sesamoid from the Plaintiffs right foot, which necessitated a second surgical procedure resulting in the complete removal of both sesamoid bones;
“b. In that he failed to perform an adequate and thorough inspection of the operative site during surgery to ensure that the correct bone would be removed;
“c. In that he failed in his continuing duty as a podiatrist to advise the Plaintiff in a timely fashion of the cause of the Plaintiffs persistent postsurgicai complaints of right foot pain and discomfort.” The complaint then alleged her claims as to the damages sustained as the result of the carelessness and negligence of the defendant.

The proposed amended complaint (1996 complaint) substantially tracked the negligence allegations of the 1992 complaint. The allegations of negligence in the 1996 complaint were, however, not only greater in number but also more expansive. Those allegations were set out in paragraph ten as follows: “The Plaintiffs injuries, losses and damages were proximately caused by the carelessness and negligence of the Defendant, Loren J. Schneider, his agents, servants and/or employees, in one or more of the following ways:

“a. In that he failed to provide the Plaintiff with additional and alternative medical care and treatment to resolve or minimize her right foot pain;
“b. In that he failed to seek or obtain expert radiological and other medical opinions to assist him with determining the correct and proper diagnosis and treatment of her right foot pain;
“c. In that he failed to perform an adequate and thorough review of her medical chart and X rays in preparation for and prior to the surgery that he had recommended be performed;
“d. In that he removed the fibular sesamoid bone instead of the tibial sesamoid bone from the Plaintiffs right foot;
“e. In that he failed to perform an adequate and thorough inspection of the operative site during and at the surgery to ensure that the correct sesamoid bone was to be removed;
“f. In that he failed to perform an adequate and thorough inspection of the postsurgical interoperative X ray that he took of her right foot immediately after his surgery to discover that he had removed the wrong sesamoid bone from her right foot;
“g. In that he failed in his continuing duty as a podiatrist to discover and disclose to the Plaintiff in a timely fashion his surgical malpractice as being the resultant cause of the Plaintiffs persistent postsurgical problems with her right foot pain, discomfort and disability;
“h. In that after he had discovered his surgical malpractice, he failed to timely disclose to the Plaintiff that he had removed the wrong sesamoid bone from her right foot; and
“i. In that his failure to timely disclose to the Plaintiff his surgical malpractice prevented her from timely receiving the medical care and treatment required because of the further injury he had caused to her right foot.” The allegations as to Traci’s damages, as set out in her 1996 complaint, essentially tracked her damages allegations in the 1992 complaint.

The plaintiffs sought to file the 1996 complaint “to make their allegations more specific and more complete.” The plaintiffs argued in the motion to amend that the allegations of negligence contained in the proposed paragraph ten of the 1996 complaint make more specific that which was alleged in paragraph nine of the 1992 complaint, which indicated that it was not exclusive in its allegations. The plaintiffs maintain that it was only during voir dire that defense counsel acknowledged that the defendant unintentionally took out the incorrect bone and that therefore there was no prejudice to the defendant from the proposed amendment.

Defense counsel objected to the amendment and argued, “I’m going to admit liability. I’m going to admit that ... in the original complaint the first allegation of negligence, that my client is responsible for removing the wrong bone. And for that wrong bone. And on that basis, I’d ask that the motion be denied.”

At the outset of the trial, the court denied the motion to amend, stating that “since [the defendant was] admitting liability ... I don’t think it’s necessary to allege any more about negligence,” and “[i]nsofar as any of these statements made in your amended complaint, any evidence you can put in that would be relevant to damages, you certainly will be allowed to do that.” This ruling proscribed the allegations of any negligence other than those contained in the 1992 complaint and held that the 1992 complaint was general enough to allow the plaintiffs to present evidence of damages as to the allegations of negligence made in that complaint.

As the trial proceeded, the plaintiffs urged a construction of the 1992 complaint to which the defendant objected as asserting a new cause of action on a matter not within the allegations of the 1992 complaint. The plaintiffs’ counsel argued that the defendant was negligent in recommending the second surgery to remove the tibial sesamoid bone and that Traci relied on the defendant in undergoing that second operation. He stressed Traci’s reliance on the defendant’s advice concerning the second surgery by Barnett. This reliance claim is also developed at some length in the plaintiffs’ brief.

The defendant argued at trial and in this court that this reliance claim is nowhere alleged in either the 1992 complaint or the 1996 complaint. The defendant argues that the plaintiffs, in advancing their reliance claim, were calling on the defendant to defend against an entirely new claim, which would have been extremely unfair and prejudicial to him.

The reliance claim does introduce a new claim of negligence that is not evident, even on a liberal reading of the 1992 complaint. The plaintiffs argue that it can hardly be said to work any surprise or prejudice on the defendant because he had notice of their “more specific damage claims from the parties’ alternative mediation and numerous pretrial conferences.” The defendant’s answer to this claim is that if this were so, the plaintiffs could quite easily have amended their complaint long before the presentation of evidence was to begin.

We are aware that liability was admitted and that this new claim goes to the scope of the evidence that could come in on damages. Because it was a new claim and first raised at trial, the matter of surprise and prejudice, if any, to the defendant must be considered. “The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.” Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557, 525 A.2d 954 (1987); see Francis v. Hollauer, 1 Conn. App. 693, 694, 475 A.2d 326 (1984). “As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496, 646 A.2d 1289 (1994); O’Brien v. Coburn, 39 Conn. App. 143, 147, 664 A.2d 312 (1995). Ballentine defines “surprise” as “[t]he condition in which a party to an action finds himself, contrary to his reasonable expectation, through no fault or neglect of his own, and to his probable injury.” Ballentine’s Law Dictionary (3d Ed. 1969).

It would have been quite unfair and prejudicial to have required the defendant to defend against this new claim. We can hardly overlook the circumstance that although the defendant did not admit liability until the trial, he had admitted to Traci over five years earlier that he had removed the wrong bone. The plaintiffs cannot, at the time of trial, inject a claim of negligence into this action without having pleaded it. We recognize that “ ‘[a] change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action. ... It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated.’ ” (Citations omitted.) Sharp v. Mitchell, 209 Conn. 59, 71-72, 546 A.2d 846 (1988), quoting Gallo v. G. Fox & Co., 148 Conn. 327, 330, 170 A.2d 724 (1961); Gurliacci v. Mayer, 218 Conn. 531, 547, 590 A.2d 914 (1991); Connecticut National Bank v. D’Onofrio, 46 Conn. App. 199, 208, 699 A.2d 237, cert. denied, 243 Conn. 926, 701 A.2d 657 (1997). Our courts have “faced claims that certain new amendments alleged new causes of actions with varying outcomes.” Sharp v. Mitchell, supra, 74.

The reliance claim advanced by the plaintiffs does affect the quality of the notice given by the fact situation as pleaded in the 1992 complaint. That claim was simply not pleaded. Even if we assume that such reliance sounds in malpractice, it would require that the defendant, to defend against it, gather different facts, witnesses and evidence. See generally Gurliacci v. Mayer, supra, 218 Conn. 548-49; Sharp v. Mitchell, supra, 209 Conn. 72-73. It would probably have required the testimony of Barnett, who performed the second surgery, even though his records were already in the case. At the trial, the defendant suggested that if evidence of damages were allowed on the reliance claim, he might have to bring in an expert witness.

Further, we have already said that the reliance claim was not pleaded, and we have great difficulty in concluding that there is a fair factual nexus between the reliance evidence and the allegations of the 1992 complaint. This was a case in which the plaintiffs sought to inject matters “foreign to the issues in the original complaint, which required proof of facts which the defendant could not meet during the normal course of the trial.” Wright v. Coe & Anderson, Inc., 156 Conn. 145, 156, 239 A.2d 493 (1968). The plaintiffs claim on appeal that the trial court abused its discretion in refusing to allow them to amend and conform their complaint to their proof. We disagree.

“Under the statutes and rules of practice, the court may in its discretion, in a proper case, allow the filing of amendments to pleadings before, during and after trial.” Id., 155; see Moore v. Sergi, 38 Conn. App. 829, 835-37, 664 A.2d 795 (1995). “Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.” (Internal quotation marks omitted.) Connecticut National Bank v. Voog, 233 Conn. 352, 364, 659 A.2d 172 (1995). A trial court's ruling on a motion of a party to amend its complaint will be disturbed only on the showing of a clear abuse of discretion. See Antonofsky v. Goldberg, 144 Conn. 594, 597, 136 A.2d 338 (1957); Connecticut Bank & Trust Co. v. Wilcox, 3 Conn. App. 510, 510, 490 A.2d 95 (1985), aff'd, 201 Conn. 570, 518 A.2d 928 (1986). “ ‘The essential tests are whether the ruling of the court will work an injustice to either [party] and whether the granting of the motion will unduly delay a trial.’ ” Moore v. Sergi, supra, 836, quoting Smith v. New Haven, 144 Conn. 126, 132, 127 A.2d 829 (1956). Again, such discretion may be exercised as to amendments that involve matters pleaded in the complaint sought to be amended. “It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations in his complaint. Kawasaki Kisen Kaisha, Ltd. v. Indomar, Ltd., 173 Conn. 269, 272, 377 A.2d 316 (1977) .... ‘Facts found but not averred cannot be made the basis for a recovery.’ Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952) . . . .” (Citations omitted.) Francis v. Hollauer, supra, 1 Conn. App. 695; see Normand Josef Enterprises, Inc. v. Connecticut National Bank, supra, 230 Conn. 496; Seymour Housing Authority Tenants Assn. v. Housing Authority, 18 Conn. App. 393, 404 n.10, 558 A.2d 1002 (1989). “ ‘The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case.’ ” Wassell v. Hamblin, 196 Conn. 463, 466-67, 493 A.2d 870 (1985); Tedesco v. Julius C. Pagano, Inc., 182 Conn. 339, 341-42, 438 A.2d 95 (1980); Eisenbach v. Downey, 45 Conn. App. 165, 181, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997). The trial judge has a unique vantage point in ruling on such a motion, which entitles the decision to great weight on appeal. See Bielaska v. Waterford, 196 Conn. 151, 154, 491 A.2d 1071 (1985); Antonofsky v. Goldberg, supra, 599.

The plaintiffs presented the trial court with a motion to amend their complaint to conform with proof of allegations that they had not originally pleaded. The court denied that motion and did not abuse its discretion in so ruling.

The plaintiffs also claim that the trial court’s initial ruling that their 1992 complaint was sufficient to permit proof of all their damages claims should have permitted admission of evidence of the plaintiffs’ reliance argument. The plaintiffs claim that the trial court improperly excluded that evidence. The plaintiffs are incorrect. The trial court allowed evidence of damages that was within the allegations of the 1992 complaint. It excluded only the reliance evidence. The plaintiffs’ claim that this was “inconsistent with its initial rulings” is without merit. Accordingly, there was no abuse of discretion in denying the plaintiffs’ motion to amend their complaint to conform with their proof and in excluding the plaintiffs’ damages proof on their reliance claim.

II

The plaintiffs next claim that the trial court improperly ruled that the defendant’s surveillance videotape of Traci, which the plaintiffs offered as evidence, was privileged work product of the defense and, therefore, inadmissible. The defendant made a videotape of Traci when she walked in high-heel shoes outside her home and at church. The plaintiffs claim that they sought to have the videotape admitted into evidence at the trial because it would demonstrate the true nature and extent of Traci’s right foot condition and disabilities, and would assist Traci’s expert in explaining to the jury the nature, extent and future medical requirements of Traci’s right foot caused by the defendant’s malpractice. After a lengthy argument, the trial court found that the videotape was the work product of the defendant’s counsel and that there had been no waiving of confidentiality by the defendant’s counsel in allowing the plaintiffs’ counsel to view it. The plaintiffs claim on appeal that the trial court’s improper ruling prevented them “from rehabilitating Traci’s credibility regarding the truthfulness and seriousness of her right foot injuries with the unimpeachable videotape surveillance.” (Emphasis added.) They also claim that because of the exclusion of this evidence, “the jury was permitted to accept the defendant’s counsel’s arguments attacking the [plaintiffs’] damages claims without the unimpeachable videotape evidence obtained by the defendant’s own representative, which corroborated the [plaintiffs’] damages claims.” (Emphasis added.)

“To be reversible, evidentiary error must be both wrong and harmful. Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 142, 491 A.2d 389 (1985) . . . .” (Citation omitted.) Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 282, 587 A.2d 1056 (1991); see Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982); Saphir v. Neustadt, 177 Conn. 191, 201, 413 A.2d 843 (1979). “The appellant bears the burden of establishing the specific harmfulness of the error. See Braun v. Edelstein, 17 Conn. App. 658, [661] 554 A.2d 1102, cert. denied, 211 Conn. 803, 559 A.2d 1138 (1989).” Sokolowski v. Medi Mart, Inc., supra, 282. In a civil case, where the appellant has the burden of proving that the evidentiary ruling is both wrong and harmful, the standard to be used for determining harmfulness is whether the evidentiary ruling “ ‘would likely affect the result’ ”; Swenson v. Sawoska, 215 Conn. 148, 153, 575 A.2d 206 (1990); Manning v. Michael, supra, 611; DeCarufel v. Colonial Trust Co., 143 Conn. 18, 21, 118 A.2d 798 (1955); and the determination of that issue is to be found in the record. Swenson v. Sawoska, supra, 153; see DeCarufel v. Colonial Trust Co., supra, 21.

We turn first to the question of whether the exclusion of the videotape was “wrong” under the first prong of the wrong and harmful test. The plaintiffs claim that the videotape was to be used for “rehabilitating” Traci’s credibility, that it contained “unimpeachable” evidence that “corroborated” the plaintiffs’ evidence, that it was “a very important piece of credible evidence,” and that even if it was attorney work product, the defendant had waived the confidentiality of it. The defendant objected to its admissibility on the ground that it was his work product and that its confidentiality had not been waived.

We believe that the videotape did not qualify as the defendant’s work product in this case. In making that determination, we note that “the work-product rule only applies in pretrial disclosure. It is not an exclusionary rale of evidence.” Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 97, 230 A.2d 9 (1967); see generally 1 E. Stephenson, Connecticut Civil Procedure (2d Ed. 1970 & Cum. Sup. 1982) § 138 (g), pp. 598-99. Any objection to the admissibility of evidence as work product “is not an appropriate objection at the trial stage.” Stanley Works v. New Britain Redevelopment Agency, supra, 98. Therefore, we conclude that the trial court’s excluding the videotape on the ground that it was the work product of an attorney was wrong.

This, however, does not end the inquiry. There remains the issue of whether the exclusion was harmful, that is, whether it “ ‘would likely affect the result.’ ” Swenson v. Sawoska, supra, 215 Conn. 153; Manning v. Michael, supra, 188 Conn. 611; DeCarufel v. Colonial Trust Co., supra, 143 Conn. 21. Our courts have stressed that “[t]o be harmful, an error must be so fundamental and material that it may work an injustice.” Bell v. Bihary, 168 Conn. 269, 273, 362 A.2d 963 (1975).

In arguing for the admission of the videotape, the plaintiffs insisted that the work product rule applies only to pretrial discovery and is not an exclusionary rale of evidence. It is significant that the plaintiffs never moved before the trial for production of the videotape. Moreover, the plaintiffs do not claim that the defendant was under any duty to have produced it voluntarily. It is true that the plaintiffs were apparently unaware of the existence of the videotape until several months before trial. Even then, however, they did not move to obtain it by discovery. It had been handed over before the trial to their counsel by the defendant’s counsel, but at the trial they argued that the work product rule was confined to pretrial disclosure and, in any event, that the defendant’s counsel had waived any confidentiality attached to it. It seems to us that it is not now wholly fair or just for the plaintiffs to be advantaged by their failure to utilize the pretrial discovery rules to obtain the videotape.

We also address the representations of the plaintiffs’ counsel in making the initial offer of the videotape during Traci’s direct testimony when he referred to the videotape as “unimpeachable” evidence that “corroborated” the plaintiffs’ damages claims, “verified” Traci’s foot disabilities and her pain and suffering, and was “a very important credible piece of evidence.” “It is well settled that representations of counsel are not, legally speaking, ‘evidence.’ ” Cologne v. Westfarms Associates, 197 Conn. 141, 154, 496 A.2d 476 (1985); Evans v. Warden, 29 Conn. App. 274, 278, 613 A.2d 327 (1992); State v. Carsetti, 12 Conn. App. 375, 379, 530 A.2d 1095, cert. denied, 205 Conn. 809, 532 A.2d 77 (1987). Moreover, despite their representations about the reliability and value of the videotape as evidence, the plaintiffs do not explain why they did not ever move the trial court to view the videotape in the absence of the jury before ruling on its admissibility. We also note that the jury never heard any evidence of the existence of the videotape, let alone its contents.

Additionally, the videotape was offered by the plaintiffs at a time when Traci had not even finished her direct examination. The plaintiffs claimed that it would “rehabilitate” her credibility. Her credibility had not yet been impeached. For the trial court to admit it at that time would have been akin to permitting a prior consistent statement to enhance her testimony before any impeachment had taken place. That, of course, is not generally allowed. See State v. McCarthy, 179 Conn. 1, 18, 425 A.2d 924 (1979); Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 315-16, 268 A.2d 639 (1970); 4 J. Wigmore, Evidence (Chadbourn Rev. 1972) § 1124, p. 255; 81 Am. Jur. 2d, Witnesses §§ 1011 and 1012 (1992). “[T]he general rule is that a party cannot strengthen the testimony of his own witness by showing that he has made previous statements to the same effect as his testimony . . . .” Palmer v. Hartford Dredging Co., 73 Conn. 182, 188, 47 A. 125 (1900); see State v. Brown, 187 Conn. 602, 607-608, 447 A.2d 734 (1982); Mei v. Alterman Transport Lines, Inc., supra, 316; State v. Suckley, 26 Conn. App. 65, 72, 597 A.2d 1285, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991).

As stated above, the standard to be used for determining whether an improper evidentiary ruling was harmful is whether the ruling “ ‘would likely affect the result.’ ” Swenson v. Sawoska, supra, 215 Conn. 153. In this case, liability was admitted, so the improper ruling could not affect that branch of the case. That leaves its effect, if any, on the issue of damages. It is possible that admission of the videotape might have affected the damages in the plaintiffs’ favor by demonstrating more forcefully their damages claims. We, however, cannot rely on counsel’s statements that the videotape contained “unimpeachable evidence” that “corroborated” their damages claims, that it “verified” Traci’s foot disabilities and her pain and suffering, and that it was “a very important piece of credible evidence.” “Representations by counsel are not ‘evidence’ upon which an appellate court can rely when reviewing the findings of the trial court.” (Emphasis added.) State v. Carsetti, supra, 12 Conn. App. 379.

On the other hand, we also cannot say that admitting the videotape might have resulted in a verdict lower than the $114,000 verdict that the jury returned. Again, the plaintiffs did not move or suggest that the trial court view it. Also, it is puzzling that the defense counsel would voluntarily, as he did, turn over before the trial such apparently damaging evidence. An appellate court, in deciding whether an improper evidentiary ruling is likely to affect the result reached, must use common sense when reviewing the record. See DeJesus v. Yogel, 404 Mass. 44, 48, 533 N.E.2d 1318 (1989). In a case such as this, whether such a ruling is likely to affect the result reached should be based on whether it is likely to affect the result adversely to the party against whom the improper ruling was made. It would be speculative for this court on this record to conclude how the admission of the videotape was “likely to affect the result.” Under the circumstances in this record, we conclude that on appeal, the plaintiffs have not sustained their burden of showing the harmfulness of the improper ruling and, therefore, justice does not require a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original complaint, dated September 16,1992, contained two counts. The first count alleged the malpractice claim of Traci Constantine and the second count alleged the loss of consortium claim of Michael Constantine.

       The jury verdict awarded Traci Constantine damages of $112,000 and Michael Constantine damages of $2000.

       The tibial sesamoid and fibular sesamoid are two small bones located just beneath and just behind the great toe joint.

       At the trial, the plaintiffs counsel conceded that there was no claim that the defendant had fraudulently withheld information from Traci.

       Barnett did not testify at the trial, nor was he deposed.

       Of those, only the podiatrist testified at the trial. The reports of the others were in evidence as exhibits.

       These claims included the pain, discomfort and swelling of her right foot, the course and type of her treatment, her ability to use her right foot properly, the risk of future surgery, permanency, future physical, mental and emotional pain, impairment of her earning capacity and employment opportunities, and the curtailment of her ability to carry on life’s activities.

       The plaintiffs did not file any prior motion to amend their original 1992 complaint.

       The defendant’s brief concedes the similarity of the 1992 and 1996 complaints: “There is no substantial difference between the original complaint and the proposed amended complaint.”

       The jury had been selected and sworn before the plaintiffs offered the 1996 complaint.

       In ruling on the motion to amend, the trial court also stated: “All right. As I stated in chambers, since [the defendant is] admitting liability I don’t think it’s necessary to allege any more about negligence. Insofar as any of these statements made in your amended complaint, any evidence you can put in that would be relevant to damages, you certainly will be allowed to do that. But I don’t think it’s necessary to amend the complaint, and I sustain the objection.”

       During a colloquy between the court and counsel, plaintiffs’ counsel stated: “I’m claiming that Dr. Schneider should never have recommended its surgical removal, that Traci relied on his medical expertise and recommendation, and requested an orthopedic surgeon to remove it because she at least wanted what she thought was a more trained doctor. . . .”
      Later, during the same colloquy, the following occurred:
      “[Plaintiffs’ Counsel]: I’m claiming that Dr. Schneider, the only doctor involved in this case, was negligent in recommending the surgical removal of the tibial sesamoid and that Traci has suffered extreme emotional distress to know that it may never have had to have been taken out in the first place. And she relied on Dr. Schneider in the first place to take out the one he said he should take out when he took out the wrong one and he—
      “The Court: It’s not in the case.
      “[Plaintiffs’ Counsel]:—relied on Dr. Schneider in the second place to ask a doctor to take out what he said should be taken out. It most certainly is in the case and I—
      “The Court: I’m sorry. I disagree with you.”

       Specifically, the plaintiffs’ counsel stated: “And in reliance on his medical advice and opinion it led [Traci] to believe that it was necessary to have it taken out. She went to an orthopedic surgeon and said, 'Please, take it out,’ because she was under the impression she had to have it taken out.
      “The Court: You mean—do you mean to tell me that the orthopedic surgeon would just take out a bone because [Traci] said so?
      “[Plaintiffs’ Counsel]: Yup.”

       The plaintiffs’ brief does not state that the reliance claim, as spelled out at trial and on appeal, was specifically made at those times.

       This admission in January, 1991, was also well over one year before this action was instituted.

       An examination of Barnett’s records indicates that he stated: “Apparently, the lateral [fibular] sesamoid was inadvertently removed and the symptoms were over the medical [tibial] sesamoid.” His records fail to mention the defendant. They also do not suggest that Traci ever told him that the defendant “recommended” the second surgery. Barnett did not testily at the trial. Traci testified that at the end of her treatment with Barnett, he told her to come back if she needed him and to call him if she wanted to see him. She never went back to see him after January, 1992, and part of her reason for that was that she was “somewhat” dissatisfied with him.

       There was lengthy argument outside the presence of the jury as to how this videotape came to be made. Defense counsel insisted that he authorized the tapes to be made in preparation of his defense of the case, that neither the defendant’s insurance carrier, adjuster nor “anybody else” but he made the arrangements to have the videotape made, that he told the plaintiffs’ counsel that he had such a tape, that if the plaintiffs’ counsel wanted to see it he would allow him to do so, that the plaintiffs’ counsel said that he did want to see it and that defense counsel did “hand” it to him to do so. The defense counsel further stated that he did so “as a common courtesy from one lawyer to another” and that he “never waived its confidentiality.”
      The plaintiffs’ counsel maintained that the “defendant’s insurance carrier in Seattle . . . authorized him as plaintiffs’ counsel to, in fact, obtain [the] videotape and to view it. And . . . specifically to view it with his client . . . .’’Theplaintiffs’counselstatedthatthedefendant’sinsurancerepresentative in Seattle “authorized [defense counsel] to deliver the original videotape ... [to be given to the plaintiffs’ counsel] so that [he] could view it.” He did view it with Traci and her expert, the podiatrist.
      Defense counsel responded that he had made the decision to give the plaintiffs’ counsel the tape and that, insofar as he knew, the plaintiffs’ counsel never asked the approbation of the Seattle representative to do so and that the defendant’s counsel never gave his permission to show the tape to Traci or her expert.
      There was apparently no motion filed by defense counsel for a protective order as to the videotape. There is also no claim made by the plaintiffs that they ever filed any pretrial motion for discovery for the disclosure and production of any such evidence. The trial court file does not reveal that the plaintiffs ever filed any motion for disclosure and production in this case.

       The defendant’s sole objection to its admission was that the videotape was a work product. See Stanley Works v. New Britain Redevelopment Agency, 155 Conn. 86, 98, 230 A.2d 9 (1967); Salvatore v. Hayden, 144 Conn. 437, 443, 133 A.2d 622 (1957).

       The defendant’s counsel argues that given the plaintiffs’ stated position that the work product rule applies only to pretrial disclosure matters, the trial court’s ruling excluding it is not subject to appellate review. In so arguing, he reasons that because there was no pretrial discovery request and, thus, no record of any granting or denial of any such motion, the plaintiffs have not discharged their duty, as appellants, to provide an adequate record for review under Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5. See Carpenter v. Carpenter, 188 Conn. 736, 739, 453 A.2d 1151 (1982). We do not agree with the defendant. We believe that fairness requires that we consider the claim and that the plaintiffs’ failure to seek pretrial disclosure is an element to be taken into account in deciding the harmfulness of the exclusion.

       At the very end of the case, after the plaintiffs and the defendant had put on all of their evidence and just before both parties rested, plaintiffs’ counsel said to the court: “And in light of all the evidence having been presented, now I, one last time, move that the videotape be allowed as a full exhibit.” No new claims for its admission were made nor were earlier ones fleshed out in the light of what may have happened at the trial since the original offer. This was the only other time that the plaintiffs offered the videotape at the trial. The court adhered to its earlier exclusion of the videotape. This brief offer by the plaintiffs can hardly be said to have alerted the trial court that the exhibit was again claimed on the grounds initially stated.