author: FOTI, J.

text:
    STATE OF CONNECTICUT v. JOHNNY JOE MARTINEZ
    (AC 16941)
    Foti, Lavery and Daly, Js.
    Argued June 2
    officially released August 11, 1998

      JohnE. Doran, special public defender, for the appellant (defendant).

      Peter A. McShane, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Courtney Hewes, certified legal intern, for the appellee (state).
   Opinion

FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). The trial court sentenced the defendant to an effective term of imprisonment of eighteen years, suspended after twelve years, followed by a five year probationary period. On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress evidence seized during a search of his apartment and (2) instructed the jury on the law of self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the early morning hours of December 2, 1995, the defendant and his wife, Sharymar Martinez, were at the Cheerio Tavern in Norwich. While they were there, Martinez’ nephews, Darren Hazzard and Daryl Hazzard, arrived at the bar. A short time later, the defendant and Martinez got into an altercation, after which Martinez became upset and began to cry. In response to seeing Martinez upset, the Hazzard brothers approached her and the defendant. When Darren Hazzard questioned the defendant’s behavior, the defendant swore at him, telling him that it was none of his business. Following that exchange, the defendant left the bar and walked to his home a few blocks away. After the defendant left the bar, Carol Vars, an employee there who had witnessed the incident, sat with Martinez for approximately fifteen to twenty minutes and then offered to drive her home.

Vars drove Martinez and both Hazzard brothers to Martinez’ apartment, where both the defendant and Martinez resided. Darren Hazzard testified that he and his brother accompanied Martinez to her apartment because “she was upset.” When they arrived, the defendant was standing on the sidewalk in front of the apartment. Darren Hazzard then exited Vars’ vehicle and crossed the street toward the defendant. As he reached the sidewalk, the defendant struck him in the head with a baseball bat, knocking him unconscious. Upon witnessing his brother being hit, Daryl Hazzard crossed the street “to see what happened.” As Daryl Hazzard was checking on his brother, he, too, was struck in the head with the baseball bat by the defendant. During this time, Martinez, who had also crossed the street, was pushed to the ground by the defendant.

A short time later, Robert Smith, a Norwich police officer, arrived. He found both Hazzard brothers, as well as Martinez, in need of medical attention and called three ambulances. Smith then spoke to the defendant who stated, “I fucked him up with my hands. I did not use a baseball bat. I’m a martial artist.” The defendant was then arrested. While Smith was transporting the defendant to police headquarters, the defendant told him, “If you don’t have a bat, you can’t prove anything.” The police searched the area outside the defendant’s apartment for the baseball bat, but it was not found.

I

The defendant first claims that the trial court improperly denied his motion to suppress evidence seized during a search of his apartment. Specifically, the defendant claims that the police did not obtain voluntary consent from Martinez prior to their search of his apartment. We disagree.

The following additional facts, which were adduced at the suppression hearing, are necessary to our resolution of this claim. A short time after the incident, at approximately 3 a.m., Martinez went to police headquarters to give a statement about what had occurred. After giving her statement, she was driven home by a Norwich police officer. Then, at around 5 a.m., a Norwich police officer observed Martinez walking on the side of the street outside her apartment. The officer thought that she appeared upset and took her to William W. Backus Hospital in Norwich, where she was examined and discharged shortly thereafter. Martinez then returned home.

At 6:30 a.m., Sergeant Raymond Chabotte and Investigator Todd Maikshilo, both of the Norwich police department, returned to Martinez’ apartment to search for the baseball bat. Although Chabotte had gone to the Martinez apartment following the original incident, Maikshilo had not, and he was unaware of the specific circumstances surrounding that morning’s events. Upon arriving, Chabotte and Maikshilo were greeted by Martinez, who invited them into her apartment. Although Maikshilo was not dressed in uniform, he identified himself as an investigator with the Norwich police department.

Once inside, Chabotte and Maikshilo explained to Martinez that they were there to obtain her consent to search her apartment, specifically to find the weapon that had been used earlier in the morning. Martinez was presented with a consent form, which Maikshilo read to her “line by line,” and was told that she had the right to refuse to consent to a search. Martinez then reviewed the consent form and signed it. At no time prior to signing did Martinez ask questions about the consent form or indicate that she had any difficulty understanding its contents.

Chabotte testified at the suppression hearing that although Martinez appeared upset over what had happened earlier that morning, she was very cooperative and asked several times how her nephews were doing. In addition, he testified that Martinez appeared to understand what was going on even though he was aware that she probably “had been awake all night long.” Chabotte also testified that while he knew that Martinez had been drinking earlier that morning at the Cheerio Tavern, by the time she signed the consent form at around 6:30 a.m., she appeared sober. In addition, at no time during the search did Martinez block Chabotte’s or Maikshilo’s access to any room or otherwise attempt to limit the scope of their search. During the search, Chabotte found a baseball bat behind some cardboard boxes in the pantry. It was photographed and seized as evidence.

It is axiomatic that “ ‘searches and seizures inside a home without a warrant are presumptively unreasonable.’ Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Guertin, 190 Conn. 440, 446, 461 A.2d 963 (1983). A warrantless search or entry into a house is not unreasonable, however, under the fourth amendment to the United States constitution or article first, § 7, of the Connecticut constitution when a person with authority to do so has freely consented. State v. Reagan, 209 Conn. 1, 7, 546 A.2d 839 (1988).” State v. MacNeil, 28 Conn. App. 508, 513, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). “The question of whether a defendant has given voluntary consent to enter or search his or her premises is a question of fact to be determined by the trial court by considering the totality of the circumstances surrounding the entry or search. State v. Ortiz, 17 Conn. App. 102, 103, 550 A.2d 22, cert. denied, 209 Conn. 828, 552 A.2d 1216 (1988).” State v. Vargas, 34 Conn. App. 492, 496, 642 A.2d 47, cert. denied, 230 Conn. 907, 644 A.2d 921 (1994).

“The voluntariness of the consent is normally decided by the trial court based on the evidence it deems credible along with the reasonable inferences that can be drawn therefrom. State v. Reddick, 189 Conn. 461, 469, 456 A.2d 1191 (1983).” State v. Ortiz, supra, 17 Conn. App. 103-104. “Whether there was valid consent to search is a factual question that will not be lightly overturned on appeal. United States v. Sanchez-Jaramillo, 637 F.2d 1094, 1098 (7th Cir.), cert. denied, 449 U.S. 862, 101 S. Ct. 166, 66 L. Ed 2d 79 (1980).” State v. Zarick, 227 Conn. 207, 226, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993). “The ultimate question ‘is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice.’ State v. Cobbs, 7 Conn. App. 656, 659, 510 A.2d 213 (1986).” State v. MacNeil, supra, 28 Conn. App. 514.

In this case, the trial court made specific findings regarding Martinez’ consent to search. In its memorandum of decision on the defendant’s motion to suppress, the trial court found that while there was evidence that Martinez had been drinking alcohol earlier in the evening, there was no evidence presented as to how much she had consumed. In addition, there was no evidence of any lingering effects of the alcohol at 6:30 a.m. when the police obtained Martinez’ consent. While the trial court found evidence that Martinez had gotten little sleep on the morning of December 2, 1995, there was nothing in the record that indicated any impairment of her mental faculties. Further, the court found that although Martinez was taken to Backus Hospital by a Norwich police officer sometime following the incident because she “was not acting right,” it noted that she was discharged shortly thereafter.

Additionally, Martinez appeared to follow what was going on and her responses to Chabotte and Maikshilo were not inappropriate. Although Martinez was scared and upset, the court found that her emotional state was due to her concern for the condition of her nephews. Further, Martinez had taken the consent form from Chabotte and Maikshilo and appeared to read it. At no time did she indicate that she had any difficulty reading or understanding the contents of the consent form. The court noted that Maikshilo read the consent form to Martinez. Finally, the trial court credited the testimony of Chabotte and Maikshilo, both of whom testified that it was their opinion that Martinez fully understood their request and consented to the search of the premises. On the basis of these factors, the trial court found that under the totality of the circumstances, Martinez had voluntarily consented to the search.

Notwithstanding the court’s finding, the defendant asserts that Martinez’ consent was not voluntary and points to the fact that during their conversation Maikshilo told Martinez that if she did not want to sign the consent form, “a search warrant would be applied for.” The defendant cites Dotson v. Warden, 175 Conn. 614, 621, 402 A.2d 790 (1978), for the proposition that “the intimation that a warrant will automatically issue is as inherently coercive as the announcement of an invalid warrant.” In Dotson, the court found that the representation by police that they could get a warrant, which might be “embarrassing” to the owner of the home, was improper. Id. In Dotson, the court faulted the police for failing to convey to the owner “that the issuance of a search warrant involves the exercise of discretion and judicial power, and is not a mere ministerial act.” Id.

Here, however, Maikshilo’s statement that he would “apply for a warrant” is not inherently coercive. At no time did Maikshilo imply that a search warrant for the Martinez home would or could automatically issue, or that Martinez’ refusal to consent to the search would be futile. In fact, Martinez was informed specifically by both Chabotte and Maikshilo that she had the right to refuse consent. The consent form itself, which was read and signed by Martinez, also informed her of her right to refuse consent. Maikshilo’s statement, when viewed as one factor in the totality of the circumstances, was not sufficient to render Martinez’ consent involuntary.

While it is true that Martinez testified at the suppression hearing and claimed that she never consented to the search and that she didn’t know what she was signing, the trial court chose not to credit her testimony. “ ‘This court does not retry the case or evaluate the credibility of the witnesses.’ State v. Amarillo, [198 Conn. 285, 289, 503 A.2d 146 (1986)].” State v. Taylor, 23 Conn. App. 426, 429, 580 A.2d 1004 (1990). “Rather, we must defer to the [trier of fact’s] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . State v. Mejia, [233 Conn. 215, 224, 658 A.2d 571 (1995)].” (Internal quotation marks omitted.) State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). In its memorandum of decision, the trial court expressed “real doubts” about Martinez’ credibility. The court found that “her recollection of events was questionable and perhaps colored.” This court will not second-guess the trial court’s findings.

On the basis of these facts, the trial court’s finding that under the totality of the circumstances, Martinez voluntarily consented to a search of her home was not clearly erroneous. It therefore properly denied the defendant’s motion to suppress.

II

The defendant next claims that the trial court improperly instructed the jury on self-defense. Specifically, the defendant argues that the court’s instruction failed to give the jury the option of applying the subjective-objective test to the defendant’s use of nondeadly force. We disagree.

“It is a fundamental element of due process that a defendant charged with the commission of a crime be permitted to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).” State v. Scarpiello, 40 Conn. App. 189, 204, 670 A.2d 856, cert. denied, 236 Conn. 921, 674 A.2d 1327 (1996). “This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified.” (Internal quotation marks omitted.) State v. Anderson, 227 Conn. 518, 526, 631 A.2d 1149 (1993). “The standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. State v. Hall, 213 Conn. 579, 587, 569 A.2d 534 (1990); State v. Corchado, [188 Conn. 653, 660, 453 A.2d 427 (1982)].” State v. Anderson, supra, 526-27.

When reviewing such a charge, however, it is clear that it “is to be read as a whole and that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Suggs, 209 Conn. 733, 755, 553 A.2d 1110 (1989); State v. Washington, 15 Conn. App. 704, 713, 546 A.2d 911 (1988).” State v. Miller, 36 Conn. App. 506, 511, 651 A.2d 1318, cert. denied, 232 Conn. 912, 654 A.2d 357 (1995). “The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).

In general, “[t]he Connecticut test for the degree of force in self-defense is a subjective-objective one.” State v. DeJesus, 194 Conn. 376, 389 n.13, 481 A.2d 1277 (1984). The crux of the defendant’s argument is that the court’s initial instruction on self-defense “linked” this “subjective-objective standard exclusively to deadly physical force.” He claims that this “removed from the jury’s consideration the subjective-objective standard as applied to ‘nondeadly’ physical force under [General Statutes] § 53a-19 (a).” This was important, according to the defendant, because “whether the defendant used physical force or deadly physical force was clearly an issue” before the jury. The defendant argues that “the court’s instruction diluted the state’s burden of disproving self-defense beyond a reasonable doubt.”

What the defendant overlooks, however, is that the trial court gave the jury a curative instruction at the request of the defendant. In that instruction, the court essentially recharged the jury on the appropriate subjective-objective standard and, in doing so, made no mention of deadly physical force as it applied to the defendant’s case. Therefore, to the extent that the court’s initial instruction may have linked the subjective-objective standard exclusively to deadly physical force, the court’s subsequent instruction stated correctly the subjective-objective test as it applies to all uses of force. As such, the instruction, as a whole, enabled the jury properly to apply the subjective-objective standard to the defendant’s actions, even if it determined that the defendant had, in fact, used nondeadly physical force.

In addition to stating the subjective-objective test properly, the court also took steps to de-emphasize its earlier remarks on deadly physical force. Prior to the court’s curative instruction, defense counsel had objected to the court’s references to deadly physical force. When asked how to cure the problem, defense counsel suggested: “Well, certainly there’s the standard verbiage to the effect to the degree which I appear to have mentioned something more than once or mentioned it or putting it first or put it last—or . . . that I did not intend to put greater emphasis on that than any other portion of my charge. I would suggest that. . . .”

In response, the court explained to the jury: “Also, in my instructions, there may have been parts that I repeated on more than one occasion. That was not meant to mean that that instruction or those instructions that I repeated were more important than some others. It just means that as I was speaking to you, the thought of this point came out and I perhaps lost awareness that I had already told you about.” Therefore, in addition to instructing the jury properly on the correct subjective-objective test, the court attempted to remedy any prejudicial effect that its previous references to deadly physical force may have had on the jury.

Our review of the charge leads us to conclude that there is no reasonable possibility that the jury was misled. When we view the instruction as a whole, it appears that the trial court correctly charged the jury on the subjective-objective standard as it applied to the defendant’s use of force.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury acquitted the defendant of assault of a victim sixty or older in the third degree in violation of General Statutes § 53a-61a.

       There was no claim by the defendant that Martinez, with whom he shared the Central Avenue apartment, lacked standing to consent to the search of the apartment.

       The trial court’s instruction on self-defense stated in relevant part: “Therefore, on self-defense, our statute says, use of physical force in the defense of person, that’s the title of the statute. A person is justified in using reasonable physical force upon another person to defend himself from what he reasonably believes to be the use of or imminent use of force. And he may use such degree of force which he reasonably believes to be necessary for such person, except that deadly physical force may not be used unless the actor reasonably believes that such other person is using or [is] about to use deadly physical force or inflicting or [is] about to inflict great bodily harm.
      “In this case, you may consider and determine whether there was the use of deadly physical force by the defendant. If you determine that the force he used was deadly physical force, I’m going to consider again what I have just said. Deadly physical force may not be used unless the actor, that is the defendant, reasonably believes that such other person, that is either Daryl or Darren, was using or was about to use deadly physical force or about to inflict or was inflicting great bodily harm on the defendant. Deadly physical force means physical force that can reasonably be expected to cause death or serious physical injury. Serious physical injury means injury that creates a substantial risk of death or that causes serious disfigurement, serious impairment of health or serious loss or impairment of a bodily function. Great bodily harm is not limited by the definition of serious physical injury and may encompass other acts of the victim. The term has its ordinary meaning and connotes a bodily harm that is substantially more than minor or inconsequential harm.

        * * *
      “Now, in self-defense, the focus is on the defendant, the person claiming self-defense. The focus is on what he reasonably believed under the circumstances and presents a question of fact for you, the jury. In other words, what’s important is what the defendant reasonably believed under the circumstances. The test for the degree of force in self-defense is a subjective/ objective test, meaning it has some subjective aspects and some objective aspects. Self-defense thus requires the jury to measure the justifiability of the defendant’s action from a subjective perspective, that is what the defendant reasonably believed under the circumstances presented in this case, and on the basis of that and on the basis of what the defendant perceived those circumstances to be.
      “The statute, however, requires that the defendant’s belief must have been reasonable, and not irrational or unreasonable or be unreasonable under the circumstances. That is, would a reasonable person in the defendant’s circumstances have reached that belief? That’s the objective aspect . . . of the case. It is both the question of what his belief was and whether that belief was reasonable. Now, considering that objective tests are, once— whether whatever belief the defendant had come to in determining whether it was a reasonable belief for him to come to under all the circumstances, the test is what a reasonable person would come to, what conclusion would come to. Intoxication is not a factor there.
      ❖ 4= 4=
      “Therefore, if you find proof beyond a reasonable doubt that neither Daryl nor Darren was about to use deadly physical force or inflict great bodily harm upon the defendant, and if you further find proof beyond a reasonable doubt that the defendant had no reasonable belief that the victim was using or about to use deadly physical force or inflict great bodily harm upon the defendant, then the defendant would not be justified in using deadly physical force upon either Daryl and/or Darren.”

       The trial court’s curative instruction on self-defense stated in relevant part: “Finally, in talking to you about self-defense . . . there’s a subjective aspect and also an objective aspect. And the first part, the subjective, is: What was the person who perceives himself in need of exerting self-defense, what’s going on in his mind subjectively? And, what did he, the person in this case, the defendant, what did he perceive as the danger or apparent danger? And that is to be determined from the defendant’s standpoint. At the time of the events and under all the circumstances then existing. What led to the defendant’s belief, if he had one, that he needed to defend himself, need not be an actual threat or an assault. The test is not what the other persons, Daryl and/or Darren, intended, but what their actions were, words or conduct or gestures caused the defendant to believe. In other words, there need not have been actual danger to the defendant, but the defendant— if he reasonably believed that the danger was actual, real, imminent or unavoidable—so the focus is on what the defendant perceived and believed in the first instance.
      “And then, we get the objective aspects of that as well. He may have believed that, but was it reasonable under the circumstances? That’s the objective standpoint. Now, in judging the defendant and trying to determine whether or not the defendant’s belief was proper under the circumstances, we don’t require a defendant or a person in such circumstances to act with infallible judgment. Because ordinarily, a person in a position where self-defense is deemed necessary is required to act instantly without the time to deliberate or investigate. And thus, under such circumstances, it’s often possible for a person to misperceive what’s actually going on. So, you judge first whether he, in fact, had a belief that he was in danger, such danger that he was required to act in self-defense. But then step back and look at all the circumstances, and would a reasonable person in such circumstances think he was in such danger?”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    LEVESQUE BUILDERS, INC. v. CADWELL HOERLE
    (AC 16530)
    Lavery, Schaller and Spear, Js.
    Argued April 28
    officially released August 11, 1998

      Leslee B. Hill, with whom, on the brief, was Robert A. Ziegler, for the appellant (defendant).

      Maureen M. Lovejoy, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant appeals from the judgment of the trial court awarding damages to the plaintiff for the defendant’s breach of contract between the parties for the sale of real property. The defendant claims that the trial court improperly (1) determined that the contract was enforceable, (2) determined that the contract language satisfied the statute of frauds, (3) awarded attorney’s fees to the plaintiff under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., (4) denied the defendant’s motion in limine and (5) denied the defendant’s motion for a mistrial. We affirm the judgment of the trial court in part, and set aside the judgment with respect to the award of attorney’s fees.

The following facts are relevant to the resolution of this dispute. In May, 1991, the parties signed a contract that provided that the defendant would sell a thirty-six acre parcel and two building lots in New Hartford to the plaintiff for $110,000. The plaintiff paid a deposit of $1000 and received a copy of the September, 1990 map referenced in the contract. The plaintiff was told that the thirty-six acre parcel included all of the property located to the right of a red line drawn on the map.

In January, 1993, the plaintiff, with permission from the defendant, arranged for the sale of one of the building lots to a third party. The defendant was paid $45,000, thus reducing the amount owed by the plaintiff to $64,000 for the remaining lot and the thirty-six acre parcel. In February, 1993, the defendant asked the plaintiff to sign a second contract, which allegedly contained only minor changes from the original contract, and which acknowledged the sale of the lot. The map referenced in this second contract, however, was different from that referenced in the original contract. The plaintiff never received a copy of the new map, and the trial court determined that the map did not exist. The plaintiff signed this second contract, assuming that it would be purchasing the same thirty-six acres referred to in the September, 1990 map.

In the spring of 1993, the plaintiff purchased the remaining lot from the defendant for $35,000, leaving a balance of $29,000 owing on the thirty-six acre parcel. In September, 1993, the plaintiff purchased a third lot from the defendant under a separate contract. At that time, the defendant indicated that the plaintiff could close on the thirty-six acre parcel in December, 1993. In January, 1994, however, the plaintiff was informed that the defendant did not intend to convey the parcel, and that he was claiming that there was an ambiguity in the description of the property. The defendant, meanwhile, had begun developing the parcel in April, 1993, and had mortgaged the property to Shawmut Bank in April, 1994, which mortgage was being foreclosed at the time of trial.

On August 17, 1994, the plaintiff brought a complaint in four counts, seeking specific performance and money damages for breach of contract, and alleging fraudulent or negligent representation and a violation of CUTPA. The defendant filed a special defense, claiming that the contract was unenforceable because it failed to comply with General Statutes § 52-550, the statute of frauds. He also filed a counterclaim, alleging that the plaintiff brought the action without probable cause and with malicious intent, and alleging a violation of CUTPA. A trial to the court was held on the matter for six days during the period of June 6 through July 6, 1996. On October 9,1996, the trial court released a thirteen page memorandum of decision and an order that judgment enter for the plaintiff in the amount of $151,000 for damages on the contract and $2500 in attorney’s fees, plus costs. This appeal by the defendant followed.

I

The defendant’s first claim is that the trial court improperly determined that an enforceable contract existed. We are not persuaded.

In its memorandum of decision, the trial court found that “[t]here is no question that the parties agreed that the plaintiff would purchase and the defendant would sell to [it] the two lots plus 36 [plus or minus] acres for the sum of $110,000 and that the plaintiff did in fact pay to the defendant a down payment of $1000, plus $80,000 for the two lots.” The defendant, however, claims that no contract existed because there was no meeting of the minds between the parties.

“Whether a contract exists is a question of fact for the court to determine. ” (Internal quotation marks omitted.) Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn. App. 559, 563, 559 A.2d 241 (1989). “It is not within the power of this court to find facts or draw conclusions from primary facts found by the trial court. As an appellate court, we review the trial court’s factual findings to ensure that they could have been found legally, logically and reasonably.” (Internal quotation marks omitted.) Lembo v. Schlesinger, 15 Conn. App. 150, 154, 543 A.2d 780 (1988). Thus, the trial court’s factual determination that a contract existed must stand unless we conclude that it was clearly erroneous. See Buddenhagen v. Luque, 10 Conn. App. 41, 44, 521 A.2d 221 (1987).

“Appellate review under the clearly erroneous standard is a two-pronged inquiry: [W]e first determine whether there is evidence to support the finding. If not, the finding is clearly erroneous. Even if there is evidence to support it, however, a finding is clearly erroneous if in view of the evidence and pleadings in the whole record [this court] is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Nelson v. Nelson, 13 Conn. App. 355, 359, 536 A.2d 985 (1988).

In the present case, the trial court found that an enforceable contract existed between the parties. The trial court based its holding on careful consideration of the written contracts, the maps referenced therein, surveys prepared by the parties, and the testimony of the parties and their expert witnesses. In light of the evidence and the pleadings in the record as a whole, we cannot say that the trial court’s finding that the parties intended that there be a sale of the thirty-six acre parcel and, therefore, that an enforceable contract existed, was clearly erroneous.

II

The defendant’s second claim is that the trial court improperly determined that the contract language satisfied the statute of frauds under § 52-550. Specifically, the defendant asserts that the description of the disputed parcel in the contract is not sufficiently specific. We disagree.

We first consider whether the plaintiffs part performance of the contract removes the case from the purview of the statute of frauds. “The statute of frauds requires contracts for the conveyance of realty to be in writing. . . . We have repeatedly recognized that a contract is enforceable, despite the statute, when, subsequent to the making of the contract, there has been conduct that amounts to part performance. . . . [T]he acts of part performance generally must be such as are done by the party seeking to enforce the contract, in pursuance of the contract, and with the design of carrying the same into execution, and must also be done with the assent, express or implied, or knowledge of the other party, and be such acts as alter the relations of the parties. . . . The acts must also be of such a character that they can be naturally and reasonably accounted for in no other way than by the existence of some contract in relation to the subject matter in dispute . . . .” (Citations omitted; internal quotation marks omitted.) McNeil v. Riccio, 45 Conn. App. 466, 470, 696 A.2d 1050 (1997).

In the present case, the plaintiff contends that its payment of $81,000 on the contract is an act of part performance and, therefore, the contract is enforceable regardless of the statute of frauds. We do not agree with this argument. Our Supreme Court has stated that “[i]t is generally held that partial or even full payment of the purchase price for the sale of land under an oral contract does not take the case out of the statute of frauds.” Breen v. Phelps, 186 Conn. 86, 94, 439 A.2d 1066 (1982).

Nevertheless, we find that the statute of frauds is not violated by the contract description of the thirty-six acre parceLWe have previously determined that “[t]he description of land contained in a contract of sale or any option to purchase is sufficiently definite to satisfy the requirements of the Statute of Frauds whenever it is reasonably certain from the contract itself, or can be made certain through reference to record, contract, map or fact, by resort to extraneous evidence thereof, whether oral or written.” (Emphasis added; internal quotation marks omitted.) Foley v. Huntington Co., 42 Conn. App. 712, 735, 682 A.2d 1026, cert. denied 239 Conn. 931, 683 A.2d 397 (1996).

In its memorandum of decision, the trial court found that “[a] description of the 36 [plus or minus] acres has been made sufficiently definite through reference to the two contracts, the map attached to the first contract, other maps and descriptions, plus the testimony placed in evidence at trial.” Because the determination of whether a contract is sufficiently definite to satisfy the statute of frauds is a question of fact, the trial court’s findings in this regard must stand unless they are clearly erroneous. See Buddenhagen v. Luque, supra, 10 Conn. App. 44. Upon review of the evidence at trial and the whole record, we conclude that the trial court’s finding that the contract satisfied the statute of frauds was not clearly erroneous.

III

The defendant next claims that the trial court improperly awarded attorney’s fees under CUTPA. We agree.

This court has stated that “[o]nce liability has been established under CUTPA, attorney’s fees and costs may be awarded at the discretion of the court. . . . We will not interfere with the trial court’s exercise of this discretion unless there is manifest abuse or injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Jacques All Trades Corp. v. Brown, 42 Conn. App. 124, 131, 679 A.2d 27 (1996), aff'd, 240 Conn. 654, 692 A.2d 809 (1997).

In the present case, the trial court found that the defendant had violated CUTPA and awarded the plaintiff $2500 in attorney’s fees, plus costs. The defendant argues that the award of attorney’s fees was improper because the plaintiff abandoned the CUTPA claim prior to trial. In the alternative, the defendant claims that the award was improper because the plaintiff failed to present evidence of the alleged CUTPA violation or to support an award of attorney’s fees. We will address each of these claims in turn.

A

The defendant first claims that the award of attorney’s fees under CUTPA was improper because the plaintiff abandoned the CUTPA claim prior to trial by failing to request attorney’s fees in its amended claim for relief. We disagree.

The following additional facts are necessary for the resolution of this claim. The plaintiff claimed a CUTPA violation by the defendant in the fourth count of its August 17,1994 complaint. In that complaint, the plaintiff claimed money damages and “fees and costs” pursuant to the relevant statutes. On July 9,1996, the plaintiff filed an amended claim for relief, along with a response brief to the defendant’s motion to dismiss. The claim for relief sought specific performance and an alternative claim for damages that arose out of the alleged contract, but did not specifically request money damages or attorney’s fees pursuant to CUTPA.

This court has stated that “[w]hen prosecuting a civil matter, the general rule is that a prayer for relief must articulate with specificity the form of relief that is sought. ... A party who fails to comply with this rule runs the risk of being denied recovery.” (Internal quotation marks omitted.) Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 129, 133-34, 619 A.2d 863 (1993). We conclude that the plaintiffs specific prayer for fees and costs under CUTPA, as stated in its complaint, satisfied the rule in Solomon. While the plaintiffs amended claim for relief did not request attorney’s fees, there was no indication that the claim for relief was intended to replace the prayer for relief in the original complaint. Further, the plaintiffs response brief, filed the same day as the amended claim for relief, asserted CUTPA violations by the defendant. It is apparent, therefore, that the plaintiff did not abandon the CUTPA claim prior to trial. Under these circumstances, we refuse to elevate form over substance by holding that the plaintiff abandoned its claim for attorney’s fees. See Southington ’84 Associates v. Silver Dollar Stores, Inc., 237 Conn. 758, 768-69, 678 A.2d 968 (1996).

B

We next turn to the defendant’s alternative claim that the trial court’s award of attorney’s fees was improper because the plaintiff did not present evidence of a CUTPA violation or to support an award of attorney’s fees at trial. We agree with the latter assertion.

In the memorandum of decision, the trial court clearly determined that the defendant had violated CUTPA “by encroaching on the property subject to the first contract, by referring to a nonexistent map in the second contract, by proceeding to subdivide the property when he knew he had contracted to sell it to the plaintiff and by placing a mortgage on the property.” Our review of the whole record confirms that the evidence presented at trial supports this finding.

Nevertheless, we conclude that the trial court’s award of attorney’s fees was improper because the award was made without affording the parties the opportunity to present evidence and to be heard on the issue of reasonable attorney’s fees. Our Supreme Court has stated that a party seeking attorney’s fees must satisfy the “ ‘undisputed requirement that the reasonableness of attorney’s fees and costs ... be proven by an appropriate evidentiary showing.” (Internal quotation marks omitted.) Barco Auto Leasing Corp. v. House, 202 Conn. 106, 121, 520 A.2d 162 (1987), quoting Hartford Electric Light Co. v. Tucker, 183 Conn. 85, 91, 438 A.2d 828, cert. denied, 454 U.S. 837, 102 S. Ct. 143, 70 L. Ed. 2d 118 (1981). This protects the opposing party’s right to litigate fully the reasonableness of the attorney’s fees. Barco Auto Leasing Corp. v. House, supra, 121. In the present case, no hearing was held, and neither the plaintiff nor the defendant presented any testimony or other evidence concerning the claim of reasonable attorney’s fees. The issue of attorney’s fees must be fully addressed at a further hearing. See Family Financial Services, Inc. v. Spencer, 41 Conn. App. 754, 772, 677 A.2d 479 (1996).

IV

The defendant’s fourth claim is that the trial court improperly denied his motion in limine. We disagree.

On the first day of trial on June 5,1996, the defendant filed a motion in limine, seeking to exclude the testimony of the plaintiffs appraiser because of the plaintiffs alleged discovery abuses and failure to comply with Practice Book (1998 Rev.) § 13-4, formerly § 220. Specifically, the defendant asserted that the plaintiff failed to produce the appraiser’s report to him in a timely manner, and the plaintiffs disclosure of experts failed to state the substance of the facts and opinions to which the experts were expected to testify or the grounds for those opinions. The trial court denied the motion, but offered to grant the defendant a continuance from June 5, 1996, until July 2, 1996, to provide the defendant with more time for his appraiser to prepare and to depose the plaintiffs appraiser. The defendant declined the continuance.

A trial court may “entertain a motion in limine made by either party regarding the admission or exclusion of anticipated evidence. . . . The judicial authority may grant the relief sought in the motion or such other relief as it may deem appropriate, may deny the motion with or without prejudice to its later renewal, or may reserve decision thereon until a later time in the proceeding.” Practice Book (1998 Rev.) § 42-15. “This court has said that ‘[t]he motion in limine . . . has generally been used in Connecticut courts to invoke a trial judge’s inherent discretionary powers to control proceedings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial.’ Richmond v. Longo, 27 Conn. App. 30, 36, 604 A.2d 374, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992).” State v. Pharr, 44 Conn. App. 561, 580-81, 691 A.2d 1081 (1997).

Our courts have also held, however, that “[a] continuance is ordinarily the proper method for dealing with a late disclosure. State v. Villafane, 171 Conn. 644, 669, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977) .... State v. Barrett, 205 Conn. 437, 455, 534 A.2d 219 (1987). A continuance serves to minimize the possibly prejudicial effect of a late disclosure and absent such a request by the party claiming to have been thus prejudiced, appellate review of a late disclosure claim is not warranted. Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 748, 535 A.2d 1287 (1988); State v. Miner, 197 Conn. 298, 305-306, 497 A.2d 382 (1985).” (Internal quotation marks omitted.) Giardini v. Supermarkets General Corp., 24 Conn. App. 9, 12-13, 585 A.2d 110 (1991).

In the present case, the defendant never requested a continuance nor did he accept the trial court’s offer to grant him one. This court has stated that “[t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) State v. Marsala, 44 Conn. App. 84, 91, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). Here, the trial court denied the defendant’s motion in limine because it determined that a continuance would best protect the defendant from undue prejudice caused by the plaintiffs alleged disclosure violations. Accordingly, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion in limine.

V

The defendant’s final claim is that the trial court improperly denied his motion for a mistrial. We disagree.

In his motion for a mistrial, the defendant asserts that the trial court was unduly biased in favor of the plaintiff. Specifically, the defendant points to the trial court’s (1) denial of the defendant’s motion in limine, (2) admission into evidence of the plaintiffs tracing of a land survey and (3) request that the defendant’s attorney not stare at her during his cross-examination of the plaintiffs appraiser. The defendant’s claim of undue prejudice and error in the denial of his motion for a mistrial is unavailing. “ [A] mistrial is only warranted if, as a result of some occurrence, ‘it is apparent to the court that ... a party cannot have a fair trial and the whole proceedings are vitiated.’ ” Patrick v. Burns, 5 Conn. App. 663, 673, 502 A.2d 432 (1985), cert. denied, 198 Conn. 805, 504 A.2d 1059 (1986), quoting Ferino v. Palmer, 133 Conn. 463, 466, 52 A.2d 433 (1947).

We have already determined that the trial court’s denial of the defendant’s motion in limine was not an abuse of the court’s discretion and, therefore, did not deny the defendant a fair trial. The trial court’s admission into evidence of the plaintiffs tracing of a land survey, as an evidentiary ruling, is also governed by the clear abuse of discretion standard. See State v. Marsala, supra, 44 Conn. App. 91. Upon review of the exhibits, transcripts and the record, we find that the trial court did not abuse its discretion in admitting the tracing. Finally, we are not persuaded that the trial court’s request for the defendant’s counsel to stop staring at her demonstrated any unfair prejudice by the trial court. The request was made during the following colloquy on July 3, 1996:

“The Court: You don’t have to keep staring at me every time [the plaintiffs expert] talks, just keep going.
“[Defense Counsel]: I didn’t mean to stare at you, I’m sorry.
“The Court: Okay.”

We do not find that those comments give any indication that the trial court was biased or prejudiced against the defendant. We conclude that the defendant has failed to establish that he was prejudiced by the trial court’s actions and failed to establish that the trial court abused its discretion in denying his motion for a mistrial.

The judgment is reversed with respect to the award of attorney’s fees only and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”
      General Statutes § 42-110g (d) provides in relevant part: “In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. . . .”

       General Statutes § 52-550 (a) provides in relevant part: “No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged .... (4) upon any agreement for the sale of real property or any interest in or concerning real property . . . .”


author: SULLIVAN, J.

text:
    IN RE LAUREN R.

    (AC 17334)
    O’Connell, C. J., and Schaller and Sullivan, Js.

      Argued March 16
    officially released August 11, 1998

      John M. Andreini, with whom, on the brief, was Janis C. Jerman, for the appellant (respondent).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

       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 records 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

SULLIVAN, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her daughter. The respondent claims that the trial court improperly concluded that the petitioner, the department of children and families (department), proved by clear and convincing evidence the statutory grounds for termination under General Statutes (Rev. to 1995) § 17a-112. Specifically, the respondent claims that the trial court improperly (1) concluded that the respondent failed to achieve a degree of personal rehabilitation as would encourage the belief that she could assume a responsible position in her daughter’s life pursuant to § 17a-112 (b) (2), (2) concluded that the respondent’s daughter was denied, by reason of the respondent’s acts of commission or omission, the care necessary for her well-being pursuant to § 17a-112 (b) (3), (3) concluded that the department made reasonable efforts to reunify the respondent with her daughter under § 17a-112 (d) (2) and did not prevent the respondent from maintaining a meaningful relationship with her daughter under § 17a-112 (d) (7), (4) refused to draw an adverse inference against the petitioner for failing to call a witness and (5) refused to permit the respondent to call the minor child as a witness. We affirm the judgment of the trial court.

The trial court found the following facts. The respondent is the mother of Lauren, who was bom on September 9, 1985. Lauren’s father never maintained a relationship with Lauren, and he consented to the termination of his parental rights on August 16,1996. In 1992, the respondent commenced a relationship with Jeff L., who is an alcoholic. The respondent was placed in foster care during her youth and was herself a victim of sexual abuse.

On October 26,1992, one of the respondent’s coworkers informed Jodi Boebert, an officer of the East Hartford police department, that the respondent told her that Jeff had sexually assaulted her six year old daughter, Lauren. The following day, Boebert and an investigator from the department interviewed Lauren at her school. At that time, Lauren had recently turned seven years old. She stated that she told her mother that her private area hurt and that her mother told her to take a bath, but Lauren did not disclose any sexual abuse. Boebert also interviewed the respondent at her home. The respondent denied having made a statement to a coworker that Jeff had assaulted Lauren and refused to reveal Jeffs name or address. On November 3, 1992, Boebert returned to the respondent’s home to request that Lauren undergo a physical examination. At this time, the respondent told Boebert that she did not want Jeff to know that the police were questioning Lauren. She explained that she was pregnant with Jeffs child and that she did not want to alienate Jeff.

Subsequently, Boebert received Lauren’s medical report, which failed to confirm any sexual abuse. The police department closed its investigation until March 25, 1993, when the parents of one of Lauren’s friends reported to Boebert that Jeff had sexually assaulted their daughter in October, 1992. Wendy, an eleven year old friend of Lauren, told her parents that while she was at the respondent’s home, Jeff had inserted his finger into her vagina and asked her to go to bed with him. Jeff also told Wendy that the respondent knew everything and not to worry.

On March 31,1993, Boebert and an investigator from the department again interviewed Lauren at her school. Lauren disclosed that Jeff had “licked her private part and made her pee,” inserted his finger into her buttocks and put his private part on her private part. This occurred in her mother’s bedroom while her mother was at work and while her siblings were asleep. She stated that this contact occurred more than once over a period of one week. Lauren stated that she had told her mother and older sister what had happened, and that her mother told her not to talk to anyone about it. On April 1, 1993, Boebert informed the respondent of Lauren’s statements. The respondent stated that Lauren was lying and that she did not believe her daughter’s allegations or those of Wendy. The respondent again refused to reveal Jeffs name. The department removed Lauren from the respondent’s home on that date. On April 5, 1993, the department obtained an order of temporary custody of Lauren and filed a petition alleging neglect. The trial court entered a finding of neglect on October 21, 1993.

On April 16, 1993, the police arrested the respondent for risk of injury to a child in violation of General Statutes § 53-21, and the criminal court issued a protective order prohibiting the respondent from having any unsupervised contact with Lauren. On January 30, 1996, the petitioner filed a petition for the termination of the respondent’s parental rights pursuant to § 17a-l 12. After a hearing on the matter, the court entered an order terminating the respondent’s parental rights on April 28, 1997.

“The hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. See Practice Book § 1043.1 et seq. [now Practice Book (1998 Rev.) § 33-5]. In the adjudicatory phase, the trial court determines whether the statutory ground for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether the termination of parental rights is in the best interests of the child. In re Maximina V., 44 Conn. App. 80, 82-83, 686 A.2d 1005 (1997).” In re Drew R., 47 Conn. App. 124, 127, 702 A.2d 647 (1997).

“The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995).” In re Eden F., 48 Conn. App. 290, 309, 710 A.2d 771, cert. granted on other grounds, 245 Conn. 917, 717 A.2d 234 (1998). “On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached .... Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) Id.

I

We first address the respondent’s claim that the trial court improperly concluded that the respondent failed to achieve such a degree of personal rehabilitation as would encourage the belief that she could assume a responsible position in her daughter’s life. The respondent claims that this finding by the trial court was not legally correct or factually supported in light of certain evidence in the record. Specifically, the respondent relies on a report by Farah Ibrahim, a psychologist, and the testimony of Dena Rosenbloom, a clinical psychologist. The respondent also points out that she attended eight sessions of a support group for survivors of sexual abuse in 1995.

Ibrahim met with the respondent and Lauren during family counseling sessions in 1993 and 1994. Ibrahim’s report, dated February 8, 1994, states that Lauren should eventually be reunited with the respondent, that Lauren and her mother desperately missed each other and that significant progress was made in therapy. The report states Ibrahim’s belief that the respondent would benefit from individual therapy and from a course on parenting and appropriate protection of her children. The report also indicates, however, that the respondent ignored Ibrahim’s recommendation for individual counseling for two years while Lauren was in foster care. In addition, at a hearing in March, 1994, concerning revocation of the April 16, 1993 protective order, Ibrahim testified that the respondent had acknowledged the possibility that Lauren was molested, but not to the extent indicated on the police report. Ibrahim did not testify at trial, although the respondent introduced a copy of her report.

The respondent also relies on the testimony of Rosenbloom, whom the respondent claims expressed optimism regarding her rehabilitation. We note, however, that the trial court found that the respondent initiated counseling with Rosenbloom four years after Lauren’s placement in foster care and two weeks after the commencement of the termination proceedings in this case. Furthermore, Rosenbloom did not testify that the respondent was rehabilitated and could not provide an opinion concerning how long it would be before the respondent could constructively act as a parent to her daughter.

Robert H. Neems, a psychologist who has worked with the respondent and Lauren since 1995, testified that the respondent had not achieved rehabilitation. He stated that until September, 1996, the respondent expressed her belief that Lauren fabricated the molestation story. Neems also testified to other examples of behavior that indicated a lack of rehabilitation. He testified that the respondent failed to support Lauren emotionally, blamed Lauren and the department for Lauren’s placement in foster care, failed to take responsibility for the course of events over the last four years and disrupted Lauren’s adjustment in foster care. He stated that the respondent’s continued relationship with Jeff was destructive to Lauren. According to Neems, the respondent’s behavior shows that she has not acknowledged that it was her own actions at the time of the molestation that led to Lauren’s placement in foster care. He also testified that he has seen no indication that the respondent is able to empathize with Lauren’s feelings and that the respondent has no understanding of what Lauren’s needs are. He concluded that the respondent was not likely to change her behavior significantly.

In addition to Neems’ testimony, the trial court heard testimony from two of the department’s caseworkers. One of the caseworkers testified that the respondent revealed to her that she had been sexually abused by her foster parents, that it did not bother her and that she believed that Lauren had fabricated the molestation story. The other caseworker testified that, although the respondent entered counseling sessions for survivors of sexual abuse, the respondent told the caseworker that she attended the sessions because only her attorney instructed her to do so and that the classes were not helping her. This caseworker testified that the respondent denied any need for individual counseling.

Section 17a-112 “requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time.” (Internal quotation marks omitted.) In re Christina V., supra, 38 Conn. App. 221. “A determination by the trial court . . . that the evidence is clear and convincing that the parent has not rehabilitated herself will be disturbed only if that finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous.” (Internal quotation marks omitted.) Id.

The trial court’s finding with respect to the respondent’s rehabilitative status is supported by the evidence. The evidence at trial showed that the respondent has failed to believe Lauren’s account of the molestation, continues her relationship with Lauren’s molester and lacks an understanding of Lauren’s needs. The trial court gave credence to Neems’ testimony that the respondent is not rehabilitated. “Courts are entitled to give great weight to professionals in parental termination cases.” Id. The court also found persuasive Rosenbloom’s testimony that she could not estimate how long it would take the respondent to gain insight into her denial that Lauren was molested and to cope with her own feelings of anger. The trial court noted that Lauren has been in foster care for four years and determined that any farther delay in Lauren’s status would be unreasonable. On the basis of the record before the trial court, we conclude that the court’s finding was supported by clear and convincing evidence and was not clearly erroneous.

II

The respondent next claims that the trial court improperly found that she had denied Lauren, by reason of acts of commission or omission, the care, guidance or control necessary for her physical, educational, moral or emotional well-being under § 17a-112 (b) (3). The respondent contends that she protected Lauren by preventing Jeff from visiting her home between the time of the October, 1992 incident and the time that Lauren was placed in foster care, and that she believed Lauren’s account of sexual contact.

The trial court concluded that the respondent’s failure to believe Lauren when confronted with Lauren’s account of the incidents of abuse as well as with Jeffs admission of abuse, her failure to protect Lauren from further abuse, her failure to avail herself of reunification services and her failure to cooperate with the police and the department to ensure Lauren’s protection constituted acts violative of § 17a-112 (b) (3). See In re Felicia D., 35 Conn. App. 490, 502, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994).

The record supports the court’s findings. Neems testified that the respondent’s actions “have been very emotionally abusive of Lauren and very, very destructive to Lauren’s welfare for many years now. At least the four years that Lauren has been in foster care. So to say that [the respondent] feels guilty about the situation and would like to repair it is not reflected in any of the behavior that I have certainly seen since that point in time. . . . She has not shown a willingness to make the changes that would repair this relationship.” Neems also testified that he had a conversation with Ibrahim in 1995, after the date of her report, in which Ibrahim stated that she terminated the therapy sessions between the respondent and Lauren because of the impact of the respondent’s act of blaming Lauren and her assertions that Lauren was lying. Furthermore, Rosenbloom testified that the act of not believing a child can be more traumatic to the child than the abusive event itself. One of the department caseworkers testified that the respondent never acknowledged that Lauren was molested and that Lauren was aware that her mother did not believe her.

Section 17a-112 authorizes the termination of parental rights where specific acts of parental commission or omission have caused serious physical or emotional injury to a child. Id., 502. We conclude that the trial court’s determination that grounds existed under § 17a-112 to terminate the respondent’s parental rights was not clearly erroneous.

III

The respondent next claims that the trial court’s conclusion under § 17a-112 (d) (2) and (7) that the department made reasonable efforts to reunify the respondent and Lauren, and that the department did not prevent reunification, was improper and violated her right to a familial relationship guaranteed by the state and federal due process clauses. The respondent contends that the department prevented reunification and that the state may not terminate parental rights where the state has created the condition under which termination is sought.

The procedural facts relevant to the respondent’s claim are as follows. On May 23, 1994, the trial court granted the respondent’s motion to revoke the order of commitment and entered an order of protective supervision for one year. On June 15, 1994, however, the criminal court again entered a protective order prohibiting the respondent’s contact with Lauren as a result of the respondent’s arrest for multiple violations of the April 16, 1993 protective order. On June 27, 1994, on a motion by the department, the trial court modified the prior order of protective supervision and committed Lauren to the protective custody of the commissioner of the department. Thereafter, the respondent filed a motion to dissolve or modify the protective order. The trial court heard oral argument on August 12,1994, and found that the protective order was entered because the respondent had failed to protect Lauren from sexual abuse by threatening to punish her if she told anyone about it, harassed and threatened to kill the coworker who reported the abuse to the department and flagrantly violated the earlier protective order. The trial court denied the respondent’s motion, and there was no contact between Lauren and the respondent from June 15, 1994, through June 19, 1995.

“The right to the integrity of the family is among the most fundamental rights guaranteed by the fourteenth amendment.” State v. Anonymous, 179 Conn. 155, 162, 425 A.2d 939 (1979). With respect to the respondent’s claim that the department prevented reunification, we note that “a state may not, consistent with due process of law, create the conditions that will strip an individual of an interest protected under the due process clause.” In re Valerie D., 223 Conn. 492, 534, 613 A.2d 748 (1992). In this case, however, the record does not support the respondent’s contention.

The respondent claims that Lauren’s foster mother and the department thwarted reunification, and precipitated the lack of ongoing contact between the respondent and Lauren. She refers to the foster mother’s report to the police that the respondent was violating the protective order by repeatedly trying to contact Lauren, and to the department’s report of these contacts to the prosecutor, which led to the revocation of the May 23, 1994 order. The respondent fails to recognize that the trial court issued the May 23, 1994 protective order because of the respondent’s own actions in violating the earlier protective order and in threatening a witness. The respondent created the conditions under which the department sought termination in this case.

The trial court found that the respondent’s decision to protect Jeff, to deny or disregard the effects of sexual abuse on Lauren and to refuse counseling services prevented the respondent from having a relationship with Lauren. The department offered various counseling services to assist the respondent in addressing her problems and to facilitate reunification with Lauren, but the respondent failed to avail herself of them.

We conclude that the record supports the trial court’s factual findings under § 17-112 (d).

IV

The respondent next claims that the trial court improperly refused to draw an adverse inference against the petitioner for failing to call as a witness Robert Meier, a psychologist who performed a court-ordered psychological evaluation of the respondent and Lauren for purposes of the termination hearing. The respondent requested that the trial court draw an adverse inference against the petitioner under Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960), which the trial court refused to do.

“The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.” (Internal quotation marks omitted.) Id., 675. “To take advantage of this rule permitting an adverse inference, the party claiming the benefit must show that he is entitled to it.” (Internal quotation marks omitted.) State v. Oliver, 48 Conn. App. 41, 45, 708 A.2d 594, cert. denied, 244 Conn. 930, 711 A.2d 729 (1998). “That is, the party claiming the benefit of the ruling must show that the witness is available and that the witness is one whom the party would naturally produce.” (Internal quotation marks omitted.) Id., 46; see Secondino v. New Haven Gas Co., supra, 147 Conn. 675. “A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Secondino v. New Haven Gas Co., supra, 675.

“Appellate courts will not disturb a trial court’s Secondino ruling absent a clear abuse of the trial court’s discretion. See State v. Grant, 221 Conn. 93, 106, 602 A.2d 581 (1992). In reviewing claims that the trial court abused its discretion, great weight is attached to the trial court’s decision and every reasonable presumption is given in favor of its correctness. State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985).” State v. Barnes, 47 Conn. App. 590, 594, 706 A.2d 1000 (1998).

The respondent has failed to establish that she was entitled to an adverse inference because she has failed to demonstrate that Meier was a witness who, by reason of his relationship to the petitioner or to the issues in the petitioner’s case-in-chief, the petitioner would naturally be expected to call. As noted by the trial court, Meier’s evaluation reports were ordered by the trial court and were available to both parties. The respondent could have subpoenaed Meier to testily but did not. “The failure of a party to call as a witness a person who is available to both parties and who does not stand in such a relationship to the party in question or to the issues that that party would naturally be expected to produce him if his testimony was favorable affords no basis for an unfavorable inference.” Secondino v. New Haven Gas Co., supra, 147 Conn. 676. In addition, the respondent failed to establish that Meier was available to testify during the petitioner’s case-in-chief or that Meier’s testimony would not have been cumulative of other evidence in the record.

The respondent claims that the petitioner’s failure to produce Meier as a witness deprived the court of an opportunity to consider the results of his examination in ruling on the petition. A review of the transcript in this case debunks the respondent’s claim. In oral argument before the trial court on April 4,1997, counsel for the respondent stated that he did not want Meier’s report to come into evidence, but did want an opportunity to talk to Meier before resting his case. When asked by the trial court why he wanted to talk to Meier if he did not want his report to come into evidence, counsel responded that there was new information regarding the case since the date of the report. The trial court pointed out that Meier’s report was written in June, 1996, and counsel had nine months prior to the termination hearing to talk to Meier. On April 7, 1997, the trial court declined to draw an adverse inference against the petitioner for not calling Meier, noting that the petitioner had no obligation to do so if it felt it had proven its case.

We conclude that the trial court was within its discretion in refusing to draw an adverse inference against the petitioner for'failing to call Meier.

V

The respondent’s final claim is that the trial court improperly refused to allow her to call Lauren as a witness, thereby violating her statutory right of confrontation under General Statutes § 46b-135 (b). See In re Noel M., 23 Conn. App. 410, 421, 580 A.2d 996 (1990) (respondent’s rights to confrontation and cross-examination in parental termination case statutory, not constitutional in nature). The respondent claims that Lauren was a necessary witness because she was a party to all of the allegations that led to the termination proceeding.

“It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 92, 709 A.2d 14 (1998). This court has held that cases involving the testimony of abused children require special consideration. In re Noel M., supra, 23 Conn. App. 421. “The United States Supreme Court has recognized that competing interests may warrant dispensing with confrontation at trial.” (Internal quotation marks omitted.) Id., quoting State v. Jarzbek, 204 Conn. 683, 693, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).

The court’s decision not to question Lauren in camera is supported by our decision in In re Wayne A., 25 Conn. App. 536, 595 A.2d 373 (1991). In that case, the respondent father claimed that the trial court violated his rights under § 46b-135 (b) by not allowing him to call as witnesses two employees of the department. We held that § 46b-135 (b) was inapplicable because it was within the trial court’s discretion to deny the request on the basis of relevance or cumulative evidence. Id., 542. In the present case, the trial court found that Lauren’s testimony was not necessary based on “all of the evidence” in the case and that requiring Lauren to testify would victimize her. The court stated: “I have a distinct disinclination to have children participate in these proceedings because it sort of victimizes them again, and I don’t want a child to think that they made the decision. . . . The child gets placed in the position of divided loyalty, and I don’t think, based upon all of the evidence that’s here, that that’s a necessary bit of information.” In addition, Neems testified that in his opinion, requiring Lauren to testify would be destructive to her.

The trial court’s decision not to question Lauren in this matter was a proper exercise of its discretion and was rendered “ ‘with regard to what [was] right and equitable under the circumstances and the law ....’” New London Federal Savings Bank v. Tucciarone, supra, 48 Conn. App. 92.

The judgment is affirmed.

In this opinion the other judges concurred.

       On November 13, 1992, Boebert received a sworn statement from the coworker that the respondent told her and two other workers that she believed Jeff had sexually assaulted Lauren and that she told Lauren not to talk to anyone about it.

       In March, 1993, the trial court suspended family therapy pursuant to Ibrahim’s report. Although the trial court recommended that the respondent participate in individual counseling, she attended only one counseling session, after which the therapist discontinued the sessions because the respondent was not “self-motivated” and because the respondent stated that she attended the session only at the insistence of the department.

       At the trial in this case, which commenced in March, 1997, the respondent testified to the events of the night that Jeff molested Lauren and her friend Wendy. The respondent stated that she awoke from a nap and saw Jeff sitting on the living room couch with Lauren and Wendy. She walked into the kitchen to get a drink and Jeff followed her. He then told the respondent that he put his hand down the girls’ pants and fondled them, but that he did not penetrate them with his finger. The respondent testified that the girls then asked Jeff to read them a Halloween story, which he did. The respondent claims to have been confused by the girls’ continued interest in Jeff in light of the sexual contact that Jeff told her had just occurred. The next morning, Jeff denied having admitted to this conduct.
      Neems testified that the respondent’s recent acknowledgment that Lauren was molested left unexplained her continued relationship with Jeff and her constant disruption of Lauren’s placement in foster care. One of the department caseworkers testified that although the respondent ultimately acknowledged that Jeff molested Lauren, she did not believe the extent of the molestation that took place, namely digital penetration, oral sex and contact between Jeffs penis and Lauren’s vagina.

       General Statutes (Rev. to 1995) § 17a-112 (d) provides in relevant part:
      “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall malte written findings regarding ... (2) whether the department of children and families has made reasonable efforts to reunite the family. . . and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct ... of any . . . person . . . .”

       “The due process provision of the Connecticut constitution has the same meaning and imposes similar constitutional limitations as that of the federal constitution.” State v. Anonymous, 179 Conn. 155, 162 n.4, 425 A.2d 939 (1979), citing McKinney v. Coventry, 176 Conn. 613, 616, 410 A.2d 453 (1979).

       General Statutes § 46b-135 (b) provides: “At the commencement of any proceeding on behalf of a neglected, uncared-for or dependent child or youth, the parent or parents or guardian of the child or youth shall have the right to counsel, and shall be so informed by the judge, and that if they are unable to afford counsel, counsel will be provided for them, and such counsel and such parent or guardian of the child or youth shall have the rights of confrontation and cross-examination.”

       The scope of the proposed inquiry the respondent presents to this court on appeal varies widely from the scope of the inquiry the respondent presented to the trial court in its motion to compel Lauren’s testimony. In her brief to this court, the respondent asserts that Lauren’s testimony was relevant to the following issues: the events of the abuse; Jeffs presence at her home after the alleged sexual contact; her efforts to protect Lauren; Lauren’s feelings of safety; Lauren’s feelings toward her; what it was like for Lauren to live in her house with her brothers and sisters; what it was like for Lauren to visit with her in the presence of therapists and social workers; and what it was like for Lauren to live with her foster family.
      In arguing the motion to the trial court, counsel stated: “The areas that we would be interested in knowing about is just the love and affection that [Lauren] holds for her mother, where she desires to live and the reasons why in the child’s own words.” Later in the proceedings, counsel for the respondent stated: “We still would like to have [Lauren] talk to the court in private in chambers without lawyers present, without parties present and to have a discussion regarding Lauren’s intentions, her wishes, in accordance with findings that the court—and the relationship she might have with her mother. ... I would request an in chambers, private discussion with the child ... to get her intentions and wishes free from any influence . . . .” The trial court asked counsel: “Mr. Andreini, it’s my understanding that you want me to talk to the child so that I can get a sense of what the child wants to do?” Counsel replied: “Yes, Your Honor.”


author: SPEAR, J.

text:
    JOHN C. HUTCHINSON ET AL. v. TOWN OF ANDOVER
    (AC 16859)
    Speax, Sullivan and Freedman, Js.
    Argued April 2
    officially released August 11, 1998

      Julia Morris Paul, with whom was Stanley Falkenstein, for the appellant (defendant).

      Mitchel E. Kallet, for the appellees (plaintiffs).
   Opinion

SPEAR, J.

The defendant, the town of Andover, appeals from the judgment of the trial court enjoining the town from causing drainage of surface water from a public road onto the plaintiffs’ property in violation of General Statutes § 13a-138 (a). The defendant claims that the trial court improperly (1) refused to weigh equitable considerations, including the cost to the defendant to remedy the drainage problem, in determining whether the drainage system caused the least amount of damage to the plaintiffs’ property, (2) relied on outdated tests in finding unacceptably high levels of sodium in the plaintiffs’ well water and (3) allowed the plaintiffs’ expert to testify as to the value of the subject property and awarded a fee for his services when the expert was not a licensed real estate appraiser. We affirm the judgment of the trial corut.

The trial court made the following findings of fact. On August 29,1959, the plaintiffs acquired several acres of property on Bunker Hill Road, a road maintained by the town. The plaintiffs’ property abuts the southern edge of Bunker Hill Road for a distance of 2300 feet to the road’s intersection with the Hop River. The town has periodically resurfaced Bunker Hill Road using a material known as chip seal. In addition, during winter storms, the town spreads sand mixed with salt on Bunker Hill Road.

Prior to 1959, the town created six drainage sites on Bunker Hill Road that have caused surface water on Bunker Hill Road to drain onto the plaintiffs’ property. The velocity and volume of this flow has caused the removal of topsoil, and further soil erosion by scouring and channeling the land. In addition, portions of the road surface, chip seal and road sediment have been carried by this surface flow more than 400 feet into the plaintiffs’ property. The water discharged onto the plaintiffs property also causes the property to the rear of their house to be wet and diminishes its use for recreation.

The plaintiffs’ household water is supplied by a 140 foot deep well. The well water had been infiltrated as a result of runoff of road salt. This salt, which is carried off by surface water into drainage culverts, ditches and pools constructed by the town, mixes with the bedrock causing a leaching out of iron and manganese. As a result, the household water contains unacceptably high levels of iron, manganese and sodium.

I

The defendant first claims that the trial court improperly failed to weigh equitable considerations, including the cost of remediation, in determining whether the drainage from Bunker Hill Road was done in such a way as to do the least damage to the plaintiffs’ property. We disagree.

At trial, the plaintiffs conceded that drainage onto their property was necessary, but contended that the present drainage system was not constructed or maintained to do the least amount of damage to their property. The plaintiffs proposed that the surface water be captured at the easternmost drainage site and piped under the road in a westerly direction to the lowest portion of the Hutchinson property and discharged into a sediment basin on the property.

The trial court concluded that “the construction of the leak off at [the easternmost drainage cite] and the construction of cross culverts draining onto the plaintiffs’ property was done for the ease of construction and not for the purpose of causing the least damage to the plaintiffs’ property.” The trial court issued an injunction prohibiting the town from constructing or maintaining any drainage onto the plaintiffs’ property east of [one of the drainage sites]. In doing so, the court stated that “it would be improper for the court to consider the relative cost to the town of the plaintiffs’ and the defendant’s remedial proposals if the execution of one of the proposals would cause less damage to the plaintiffs’ property.” The defendant maintains that § 13a-138 (a) should be interpreted to require a balancing between the least property damage and other equitable considerations, such as cost.

“Our Supreme Court recently set forth the governing principles for our standard of review as it pertains to a trial court’s discretion to grant or deny a request for an injunction: ‘A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. ... A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the parpóse of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. . . . Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion . . . the trial court’s decision must stand.’ . . . Advest, Inc. v. Wachtel, 235 Conn. 559, 562-63, 668 A.2d 367 (1995).” Raph v. Vogeler, 45 Conn. App. 56, 62-63, 695 A.2d 1066, cert. denied, 241 Conn. 920, 696 A.2d 342 (1997).

The trial court properly construed § 13a-138 (a). “The purpose of statutory construction is to give effect to the intended purpose of the legislature. Dos Santos v. F. D. Rich Construction Co., 233 Conn. 14, 20, 658 A.2d 83 (1995); Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 390, 618 A.2d 1340 (1993); Rose v. Freedom of Information Commission, [221 Conn. 217, 225, 602 A.2d 1019 (1992)]. If the language of a statute is plain and unambiguous, we need look no further than the words actually used because we assume that the language expresses the legislature’s intent. Dos Santos v. F. D. Rich Construction Co., supra, 20; American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).” Office of Consumer Counsel v. Dept. of Public Utility Control, 234 Conn. 624, 642, 662 A.2d 1251 (1995). The language of § 13a-138 (a) is clear and unambiguous. It provides that the drainage “shall be done in such way as to do the least damage to such land.” The statute does not provide for a balancing test that weighs the least damage against the least expense and other considerations that the town claims. The defendant cites no authority that requires such a balancing test when the issue is the least damage to the land, and we decline to interpret the statute to require such a test.

Alternative drainage systems and the facts attendant thereto are considered with respect to whether it is necessary for a municipality to divert water onto a private owner’s land. Our Supreme Court has said that the statute “permits drains to be built only when necessary, and if there is a reasonable alternative course open, that course must be taken.” (Emphasis added.) Postemski v. Watrous, 151 Conn. 183, 188, 195 A.2d 425 (1963). Here, there is no dispute that it is necessary for the town to divert some water onto the plaintiffs’ land, and the only issue is which system will cause the least damage to the land.

In applying the least damage aspect of the statute, we are also mindful that “statutes in derogation of private rights should be strictly construed . . . .” Spring v. Constantino, 168 Conn. 563, 570, 362 A.2d 871 (1975). The common-law rule provides that a person cannot gather surface water on his or her own land in an artificial volume and turn it onto a neighbor’s land in an increased volume to the neighbor’s injury. This rule also applies to governmental agencies engaged in highway maintenance. Section 14a-138 (a) limits the liability for such water diversion only where the party charged with maintaining the highway complies with the statute by draining the water in a manner that causes the least damage to the affected land. Postemski v. Watrous, supra, 151 Conn. 187-88.

The trial court properly applied the plain language of § 13a-138, and the court’s findings support its decision to grant injunctive relief. Therefore, we conclude that the trial court did not abuse its discretion.

II

The defendant next claims that the trial court improperly found that the plaintiffs’ well water contained unacceptably high levels of sodium caused by the road salt in the runoff. We disagree.

The trial court found that the plaintiffs’ “well water has been infiltrated as a result of runoff of road salt spread by the town on Bunker Hill Road during winter storms. . . . While the duration of this problem is uncertain, the court finds that the presence of the unacceptably high levels of these minerals in the plaintiffs’ water supply is a direct consequence of the town’s use of salt, the gathering of the salt in road surface water runoff, and the collection of this runoff at drainage sites constructed by the town.” The defendant claims that the 1990 and 1993 tests relied on by the trial court could not support a finding of excessive sodium in the well water as of the time of trial in 1996, especially in view of the evidence of reduced use of road salt during the three years preceding the trial.

“ ‘The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Crowell v. Danforth, 222 Conn. 150, 156, 609 A.2d 654 (1992); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980).’ . . . United Components, Inc. v. Wdowiak, 239 Conn. 259, 263, 684 A.2d 693 (1996).” Tyler’s Cove Assn., Inc. v. Middlebury, 44 Conn. App. 517, 527-28, 690 A.2d 412 (1997).

It is axiomatic that the credibility of witnesses, the weight to be given to evidence and the inferences to be drawn from the evidence are all matters for the trier of fact. SFP Tisca v. Robin Hill Farm, Inc., 244 Conn. 721, 731, 711 A.2d 1175 (1998); Goodrich v. Diodato, 48 Conn. App. 436, 442, 710 A.2d 818 (1998); Suarez-Negrete v. Trotta, 47 Conn. App. 517, 520, 705 A.2d 215 (1998). The evidence showed that the town used road salt during the winter months, and the trial court had the right to draw reasonable inferences from all of the evidence with respect to the road salt infiltration in the plaintiffs’ well water.

The trial court’s finding is supported by the record, and we are not left with a firm and definite conviction that a mistake has been committed.

III

Finally, the defendant claims that the trial court improperly allowed the plaintiffs’ expert witness to testify as to the value of the plaintiffs’ property and improperly awarded the witness a fee because the witness was not a licensed real estate appraiser. These claims are without merit.

The trial court allowed Gene Sammartino, a real estate developer and broker, to testify as to the diminution in value of the plaintiffs’ property caused by the drainage of surface water through the property. The defendant objected on the ground that General Statutes § 20-501 prohibits an unlicensed individual from acting as a real estate appraiser. The trial court allowed the witness to testify, finding that the witness was competent to testify as an expert based on his education, training and experience. The court further found that nothing in § 20-501 prohibited the court from hearing the witness’ testimony.

“ ‘The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. . . . Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.’ . . . State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986).” Eisenbach v. Downey, 45 Conn. App. 165, 177, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997).

Section § 20-501 (a) provides in relevant part that “[n]o person shall act as a real estate appraiser or provisional appraiser or engage in the real estate appraisal business without the appropriate certification, license, tenured license or provisional license issued by the commission . . . .” General Statutes § 20-500 (11) defines “real estate appraiser” as “a person engaged in the business of estimating the value of real estate for a fee or other valuable consideration.”

Section 20-501 is a licensing statute and does not preclude a witness from testifying as to his opinion of the diminution in value of the plaintiffs’ property, where the trial court found that the witness’ education, training and experience qualified him to testify as an expert and the defendant points to no evidence that showed that Sammartino was engaged in the business of real estate appraising as defined in § 20-500 (11).

Consequently, we conclude that the trial court did not abuse its discretion in allowing the testimony. Because the allowance of the testimony was not improper, the trial court properly allowed the expert witness fee.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13a-138 provides in relevant part: “(a) Persons authorized to construct or to repair highways may make or clear any watercourse or place for draining off the water therefrom into or through any person’s land so far as necessary to drain off such water and, when it is necessary to make any drain upon or through any person’s land for the purpose named in this section, it shall be done in such way as to do the least damage to such land.
      (b) Nothing in this section shall be so construed as to allow the drainage of water from such highways into, upon, through or under the yard of any dwelling house . . .

       The defendant claims that, the court should have considered the defendant’s public safety responsibilities, prudent alternative drainage systems, environmental damage, and the health and welfare of the town residents.