author: Foti, J.

text:
    George S. Harkins, Trustee v. Girouard Estates, Inc., et al.
    (11260)
    Dupont, C. J., Foti and Lavery, Js.
    Argued March 22
    decision released June 1, 1993

      Ridgely W. Brown, with whom, on the brief, were Heather M. Brown and Benjamin Gershberg, for the appellant (defendant Darien Asphalt Paving, Inc.).

      Alexander H. Schwartz, for the appellee (plaintiff).
   Foti, J.

This appeal arises out of an action in which the plaintiff sought to foreclose a mortgage he held on five subdivision lots. The named defendant and the defendant James R. DeVito were defaulted for failure to disclose a defense. Darien Asphalt Paving, Inc., and Darien Asphalt Paving, Inc., doing business as F.G.B. Paving and Excavating Company (hereafter referred to as Darien) were permitted to intervene as defendants by virtue of their allegation that a mechanic’s lien they held on the rights of access to the five lots had priority over the plaintiff’s mortgage.

Darien now appeals from the trial court’s judgment finding that the mechanic’s lien in question does not encompass the property covered by the mortgage and, therefore, has no priority over it. Darien claims that the trial court (1) improperly extended the scope of its foreclosure judgment to include property interests either not mortgaged to the plaintiff or not included in the plaintiff’s lis pendens, (2) improperly permitted the plaintiff to amend his complaint at trial to allege an easement by way of necessity, and (3) incorrectly found that an easement of necessity existed. We affirm the judgment of the trial court.

The record reveals the following facts. On March 29, 1989, the plaintiff loaned $750,000 to the defendants Girouard Estates, Inc. (Girouard), and James R. DeVito. As security for repayment of the note, Girou-ard granted the plaintiff a mortgage on five lots in the Girouard Estates subdivision in Norwalk. A mortgage deed was filed on the Norwalk land records on March 29, 1989. Along with the mortgage on the five lots, the plaintiff was explicitly granted the “right to pass and repass the roadways” that are shown on two maps recorded in the Norwalk land records. The maps describe the Girouard Estates subdivision, including the five lots mortgaged to the plaintiff, as well as the streets laid out to service the subdivision. Of the five mortgaged lots, three have no independent access to public roads outside the subdivision and, therefore, must gain such access through the roadways shown on the subdivision maps.

Following a default by the defendants Girouard and DeVito on payment of the loan, the plaintiff began an action to foreclose his mortgage on the five lots. The plaintiffs lis pendens, filed on the Norwalk land records on January 4, 1990, described the same five lots listed in his mortgage deed but did not describe any easements appurtenant to the lots. At the time the complaint was filed, Darien was not named as a defendant. The trial court later granted Darien’s motion to be made a party defendant, however, based on Darien’s alleged priority interest in the property mortgaged to the plaintiff by virtue of a mechanic’s lien Darien had recorded before the plaintiff filed the lis pendens.

On March 19, 1992, the trial court granted a judgment of strict foreclosure in favor of the plaintiff. In its memorandum of decision, the court stated that, while the mortgage deed makes specific reference to the rights of access in which Darien claimed an interest, “there is no such provision in the mechanic’s lien.” Rather, the lien appeared “to have been filed on the whole subdivision with certain lots including those covered by the mortgage excluded.” The court noted that while Darien claimed that the rights of access are an integral part of the fee interest in each of the lots, this very argument defeated its claim. We agree.

The dispositive issue in this appeal is whether Darien’s mechanic’s hen encompassed property covered by the plaintiff’s mortgage. Darien claims that the trial court improperly extended the scope of its judgment of strict foreclosure to include property interests either not mortgaged to the plaintiff or not included in the plaintiff’s lis pendens. Darien bases this claim on its contention that the plaintiff is only entitled to foreclose the five lots specifically described in the mortgage deed and the lis pendens. Darien claims that although the lots were explicitly excepted from its mechanic's lien, the rights of access to the lots were not so excepted, and the trial court “purported to grant strict foreclosure over ways of access or over the roads themselves” without recognizing Darien’s “priority as to the roads and access and easements.”

The plaintiff, on the other hand, contends that he never sought to foreclose any interest he held in the roadways and that, contrary to Darien’s assertion, the trial court did not grant the plaintiff strict foreclosure of any property other than the five lots themselves. Darien, in its reply brief, counters that the plaintiff did not pursue direct foreclosure of its rights of access granted in the mortgage deed because the roads were properly liened, and that to avoid the priority of the lien, the plaintiff claimed, instead, an easement of necessity.

Some additional background information is necessary to better comprehend the parties’ competing claims. In May, 1988, Girouard conveyed by mortgage deed twenty-six of the subdivision lots, together with roadways shown on map Nos. 10612 and 10613, to Norwalk Savings Society (bank) to secure a $2.5 million loan. That mortgage deed was recorded on May 31, 1988.

On March 14, 1989, Darien signed a contract with Girouard to build roads and other improvements in the Girouard Estates subdivision. The work began on March 20, 1989, and ended in August, 1989. Darien recorded its mechanic’s lien on the Norwalk land records on October 13, 1989. The effective date of that lien related back to March 20, 1989.

When Darien placed its lien on the property, however, Norwalk Savings had a priority interest in twenty-three of the subdivision lots, as well as the roadways, by virtue of its previously recorded mortgage deed. On March 23,1989, the bank quitclaimed its interest in the five lots that were later mortgaged by Girouard and DeVito to the plaintiff.

In September, 1990, following a default by Girouard and DeVito, the bank instituted an action to foreclose its mortgage. On July 22,1992, the Superior Court in Stamford rendered a judgment of strict foreclosure in favor of the bank. Darien was defaulted in that action for failure to disclose a defense, the law days passed, and title to the property became absolute in the bank. As part of the judgment in that action, the trial court ordered that, in accordance with a stipulation between the bank and Darien, the “judgment entered in that action does not affect access to or the right to pass and re-pass over the roadways for all legal purposes” of the five lots that are the subject of the present action. Both parties agree that this stipulation did nothing to diminish the fee interest of the bank in the roads themselves; its only purpose was to “preserve” whatever interests Darien might have in the rights of access to those roads. Darien did not appeal from that judgment and now concedes that it has no interest in those eighteen lots or the roadways, themselves, absolute title to which is now held by the bank.

Darien intervened in the present action, however, to claim that it still has a viable lien with respect to property covered by the plaintiffs mortgage on the five lots. Because Darien’s mechanic’s lien was prior in time to the plaintiff’s mortgage, the validity of its lien depends on whether the lien properly covers the property covered by the mortgage. To resolve this, we look first to the language of the lien itself.

Our review indicates that the first page of Darien’s mechanic’s lien states that Darien “furnished material and performed excavation, grading, paving, hauling and other related services in the lateration, improvement and addition to the site, buildings, and structure and site development located at Murray Street and Cranbury Road, being the same premises as appear on Map No. 10612 and Map 10613 in the land records of the Town of Norwalk . . . .” More detailed descriptions of the property are contained in an attached Schedule A.

Schedule A contains metes and bounds descriptions of the Girouard Estates subdivision. A clause following these property descriptions explicitly excepts from the scope of the lien certain of the subdivision lots, including the five lots that were subsequently mortgaged to the plaintiff. At the beginning of trial, Darien conceded that the lots themselves were excepted from the scope of the lien, and contended only that its lien encompassed certain rights of access to the subdivision roads which were appurtenant to these lots. After the plaintiff was permitted to amend his complaint, however, Darien amended its own position, to make the novel claim that its lien on the plaintiffs rights of access extended to the lots, themselves, because the right to pass and repass the roadways is an integral part of the lots. At oral argument before this court, however, Darien retreated to its former position, stating that the only interests subject to its mechanic’s lien were the rights of access. In its memorandum of decision, the trial court found that “[wjhile the access roads appear on the maps for the whole subdivision and the defendant claims they are an integral part of the fee interest in each of the lots, the exclusion of the numbered lots from the land would seem to include the access roads as integral parts of the fee interest. In other words, the very argument made by the defendant to claim the land not as priority applies as well to the excepted lots.” We agree that Darien’s claim must fail.

There is no question that the subdivision improvements that Darien performed were lienable. Pomarico v. Gary Construction, Inc., 5 Conn. App. 106, 497 A.2d 70, cert. denied, 197 Conn. 816, 499 A.2d 1336 (1985). There is also no question that Darien could have placed a lien on the entire subdivision, including the five lots in question here, even though the five lots were quitclaimed before Darien actually recorded its lien. Id., 109-10. Such a lien would have attached to all of the lots in the subdivision and would have been prior to any subsequent encumbrances. In Pomarico v. Gary Construction, Inc., supra, 109-10, we noted that “[w]hen General Statutes § 49-33 was amended in 1974, the mechanic’s lien was extended to encompass claims for materials furnished or services rendered ‘ “in the improvement of any lot or in the site development or subdivision of any plot of land . . . .” ’ Camputaro v. Stuart Hardwood Corporation, [180 Conn. 545, 553-54, 429 A.2d 796 (1980)].” The contractor in Pomarico recorded a lien on March 14,1983, covering site development work performed between September, 1982, and January, 1983. A blanket lien had been placed on thirteen lots, some of which had been sold before the lien was recorded. The trial court determined that the lien was invalid because it failed to conform to the “lienable unit” requirement and failed to identify the particular premises against which the lien was claimed. We reversed, holding that the statute, as amended, eliminated the lienable unit requirement and finding that the lien fell “within the site development purview of General Statutes § 49-33 as amended.” Id., 111. Had Darien, like the contractor in Pomar ico, filed a blanket lien on the entire subdivision, there would have been a mechanic’s lien attached to the five lots which was prior in time to the plaintiff’s mortgage.

Darien, instead, explicitly excepted the plaintiff’s five lots from the coverage of its lien. The validity of its lien, therefore, depends on whether it can properly claim an interest in the plaintiff’s property by virtue of a lien covering only the rights of access to the lots. While the language of General Statutes § 49-33 (a) makes the roadwork Darien performed on the Girou-ard Estates subdivision lienable, § 49-33 (b) describes specifically the property that may be subject to such a lien.

The plain language of the § 49-33 (b) specifies that a lien for lot improvements or site development work performed by a contractor is a claim “on the .. . lot or . . . on the plot of land” (Emphasis added.) Elimination of the “lienable unit” requirement simply means that it is no longer necessary to lien a particular lot in a subdivision; the whole plot may be liened. Elimination of that requirement did nothing, however, to change the general rule that “[t]he real property against which a mechanic’s lien may be enforced is any property which can be assigned, transferred, mortgaged, or sold under execution as a separate and distinct entity.” 53 Am. Jur. 2d 777, Mechanics’ Liens § 252 (1970). Rights of access to subdivision roadways fall into none of these categories. By explicitly excluding the five lots, Darien removed both the lots and any rights of access appurtenant to them from the scope of its lien. Those access rights, if they existed at all, were not independently lienable.

Rights of access are, by nature, easements appurtenant to the land. “[A]n easement appurtenant . . . attaches to the land and every part of it.” Murphy, Inc. v. Westport, 131 Conn. 292, 306, 40 A.2d 177 (1944). “An easement appurtenant lives with the land. It is a parasite which cannot exist without a particular parcel of realty. An appurtenant easement is incapable of existence separate and apart from the particular land to which it is annexed. . . . [An easement appurtenant] inheres in the land and cannot exist separate from it nor can it be converted into an easement in gross.” 2 G. Thompson, Real Property (1980) § 322, pp. 63-64. An appurtenant easement cannot be conveyed by the party entitled to it separate from the land to which it is appurtenant. Id. Further, because of the incorporeal nature of an easement appurtenant, its owner cannot be dis-seized or otherwise ousted of it; he can only be disturbed or obstructed in its enjoyment. Waterbury Trust Co. v. G. L. D. Realty Co., 121 Conn. 50, 53, 182 A.2d 466 (1936).

Whatever access rights the plaintiff had to roads in the Girouard Estates subdivision were appurtenant to his five lots. We need not decide whether the plaintiff had an express right to pass and repass the subdivision roads by virtue of the quitclaim deed from Girou-ard, or an implied easement over the roads by reference to maps, or an implied easement of necessity because some of the lots are landlocked. In any case, such an easement cannot be not subject to a mechanic’s lien independent of a lien on the land to which it is appurtenant.

The mechanic’s lien filed by Darien explicitly removed from its scope a number of lots in the Girouard Estates subdivision, including the five lots mortgaged to the plaintiff. We strongly agree with Darien that the provisions of the mechanic’s lien statute “ ‘should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials. . . . Our interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of liberal construction.’ (Citations omitted.) Nickel Mine Brook Associates v. Joseph E. Sakal, P.C., 217 Conn. 361, 364, 585 A.2d 1210 (1991).” First Constitution Bank v. Harbor Village Limited Partnership, 31 Conn App. 15, 18, 622 A.2d 1063 (1992). We therefore conclude that the trial court properly found that the lien in question did not encompass any property covered by the plaintiff’s mortgage.

Because our resolution of this issue is dispositive of Darien’s appeal, we need not address its remaining claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       The mortgage deed describes the property as “Lot Nos. 2, 8, 15, 17 and 24, on those certain maps entitled ‘Subdivision of GIROUARD ESTATES Norwalk Connecticut’ . . . which maps are on file in the Office of the Town Clerk of the City of Norwalk as Map Nos. 10612 and 10613. Reference hereto being made and had for a more particular description of said premises. TOGETHER WITH right to pass and repass the roadways as shown on said maps, for all legal purposes.”

       At trial, the plaintiff was permitted to amend his complaint to make explicit the claim that his right to traverse the subdivision roadways was founded not only in the express easement contained in the mortgage deed but by virtue of an easement by necessity and an easement by reference to maps.

       “Although General Statutes § 49-34 allows a mechanic’s lienor a ninety day grace period within which to file in the town clerk’s office, General Statutes § 49-33 (b) expressly provides that the priority of the lien relates back to the date the work commenced or material was brought to the work site.” Farmers & Mechanics Savings Bank v. Garofolo, 219 Conn. 810, 817, 595 A.2d 341 (1991).

       The bank had previously released three of the twenty-six lots covered by its mortgage in June, 1988.

       The memorandum of decision stated: “The court . . . finds that the plaintiff, Norwalk Savings Society, released certain lots which were a part of the property known as Girouard Estates and which were initially secured by the mortgage which is being foreclosed in this action. These lots, being numbered 2, 8, 15, 17, and 24, were released together with the right to pass and repass the roadways as shown on Map Nos. 10612 and 10613 on file in the City of Norwalk Land Records for all legal purposes. The court finds that the release was effected by a quitclaim deed filed on March 29, 1989, in the city of Norwalk land records at volume 2318 at page 117. In accordance with the Stipulation between [Norwalk Savings Society] and the defendant, Darien Asphalt, Inc., d/b/a/ F.G.B. Paving and Construction Company, stated on the record at the time of the judgment hearing herein, Norwalk Savings Society acknowledges and the court orders that the judgment being entered in this action does not affect access to or the right to pass and repass over the roadways for all legal purposes enjoyed by the released Lots Nos. 2, 8, 15, 17 and 24.”

       At oral argument on March 22,1993, the following colloquy took place between Darien’s counsel and this court:
      “[Defense Counsel]: In addition to the briefing of this case, two motions to dismiss have been brought by the appellee, Harkins, because in the meantime the Norwalk Savings Society, which had a mortgage prior to each of the parties over the rest of the subdivision and the roadways, foreclosed by way of strict foreclosure its mortgage rights. . . .
      “The Court: Including the roads?
      “[Defense Counsel]: Including the roads, Your Honor, but specifically excluding any interest that we had in the roads that we constructed for which we filed a mechanic’s lien.
      “The Court: If Norwalk Savings Society executed a deed to the . . . city of Norwalk, conveying the roads to them, what’s left?
      “[Defense Counsel]: The rights that we have in the roads as to any interests that were outstanding and not included in the Norwalk Savings Society title. The Norwalk Savings Society title foreclosed the roads. It did not foreclose all the aspects of use of those roads, and some of those aspects relate to the lots in question. Those lots, in order to have access to public roads, have to go over these private roads.”

       We note that a separate action against the plaintiff is still pending in the Superior Court in Stamford, in which Darien has directly sought a foreclosure of its mechanic’s lien.

       The clause reads as follows: “Also excepting those certain pieces or parcels of land, situated in the City of Norwalk, County of Fairfield, and State of Connecticut and designated as Lot 1, Lot 2, Lot 3, Lot 4, Lot 5, and Lot 6, Lot 8, Lot 15, Lot 17 and Lot 24 as shown on map entitled ‘Subdivision of GIROUARD ESTATES Norwalk, Connecticut Scale 1"=40' June 17, 1986’ . . . which maps are on file in the Office of the Town Clerk of the City of Norwalk as Map Nos. 10612 and 10613.”

       After the trial court permitted the plaintiff to amend his complaint to allege an easement of necessity and an easement by implication with respect to the rights of access, the following discussion occurred between Darien’s counsel and the court:
      “[Defense Counsel]: I would like to make it clear on the record that we are claiming a direct interest in these lots that he’s got here. So that—
      “The Court: To what extent?
      “[Defense Counsel]: To the full extent that the law permits. And—
      “The Court: To what extent?
      “[Defense Counsel]: To the extent that we have given a broad property description in our foreclosure action. That property . . . description could be construed to include these lots in question. . . . Now that they’re claiming an easement by way of necessity and claiming that they are going to have a right to pass and repass over our property—
      “The Court: Uh-huh.
      “[Defense Counsel]: — we don’t want to hang our hats simply on the access-way

       “The Court: Your claim is over an access or easement way, right?
      “[Defense Counsel]: Well, access, easement, and right to hook up to utilities that we created, Your Honor.
      “The Court: But [Norwalk Savings Society] own[s] the title to the roads.
      “[Defense Counsel]: They own the fee and we have a mechanic’s lien . . .
      “The Court: . . . You’re claiming a priority on the easement outside the boundaries of the lots.
      “[Defense Counsel]: Yes, Your Honor.”

       General Statutes § 49-33 (a) provides in pertinent part: “If any person has a claim for more than ten dollars for materials furnished or services rendered ... in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with . . . or by the consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring labor or materials . . . the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim.”

       It is unclear why Darien elected to exclude these lots from the scope of its lien. Our decision in Pomarico v. Gary Construction, Inc., 5 Conn. App. 106, 497 A.2d 70, cert. denied, 197 Conn. 816, 499 A.2d 1336 (1985), indicates that a contractor who performs site development services may properly lien an entire subdivision even though individual subdivision lots are conveyed between the time the contractor’s work commences and its lien is recorded. The reason for this rule is obviously to prevent the developer from conveying all the lots in the subdivision during that period and thereby extinguishing the lien.

       In his second motion to dismiss this appeal on mootness grounds, the plaintiff pointed out that Norwalk Savings Society recently quitclaimed to him the right to pass and repass the over the subdivision roads, to which Norwalk Savings Society holds absolute title. While this quitclaim did not render the present appeal moot, it does mean that even if the plaintiff previously had acquired no express or implied access rights over the roads, he has acquired them now.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    State of Connecticut v. Stephen P. Battista
    (10999)
    Daly, O’Connell and Freedman, Js.
    Argued February 16
    decision released June 1, 1993

      Otto P. Witt, for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Steven Preleski, assistant state’s attorney for the appellee (state).
   Daly, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of sexual assault in a spousal or cohabiting relationship in violation of General Statutes § 53a-70b, unlawful restraint in the second degree in violation of General Statutes § 53a-96, reckless endangerment in the second degree in violation of General Statutes § 53a-64, and threatening in violation of General Statutes § 53a-62.

The defendant claims that (1) the evidence was insufficient to sustain the guilty verdicts, (2) General Statutes § 53a-70b, sexual assault in a spousal or cohabiting relationship, is unconstitutionally vague, (3) the prosecutor’s summation amounted to prosecutorial misconduct, (4) he was deprived of his right to effective assistance of counsel at trial, (5) the trial court improperly admitted expert testimony regarding battered women’s syndrome, and (6) the trial court improperly admitted the testimony of the victim’s father because it was unduly prejudicial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim were married on August 28, 1987, and resided in the defendant’s condominium in Plainville. The victim had two children by a prior marriage: one daughter who was ten years old at the time of trial, and another daughter who was eight years old at the time of trial. The defendant adopted both girls in 1988. A son was born to the couple on February 16,1989. The defendant worked at two jobs until he quit one to open his own landscaping business in 1989. In 1990, the domestic situation became volatile. During this year, the defendant ordered the victim and their children out of the condominium on approximately five occasions.

One such incident occurred when the victim and her daughters were boiling eggs for Easter and the defendant came home and started harassing the children. The victim defended the children and the defendant ordered them to leave but would not let them take anything with them, including the checkbook. When the defendant placed the victim’s neck in a choke hold, she bit him on the arm, told the girls to go to the car, took the baby and left the condominium. The victim and her children stayed at a hotel for a week and then stayed at her aunt’s house. During this time, the victim contacted an outreach advocate. She also called the police but, after being told that she also could be arrested, the victim decided not to pursue the complaint. Meanwhile, the defendant was phoning the victim every day at work promising that they would resolve their difficulties. Thereafter, she and the children returned to the condominium.

In August, 1990, the victim and the children were again ordered out of the condominium by the defendant because the victim had paid $50 to find out if her credit application for a new car would be approved. The victim expressed her desire to return later the same day, and her parents escorted her back to the condominium. The defendant and the victim’s parents argued. The victim’s parents left, but the victim decided to stay.

The charges stem from two incidents that occurred on September 21 and October 3, 1990. On September 21, the victim was sitting in the living room watching television when the defendant returned home from a stag party between 10 and 11 p.m. She was annoyed because she had not known that the defendant would be attending a stag party that evening. After an argument, the defendant left the condominium and returned an hour later. The defendant made sexual advances, and, when the victim refused to remove her clothing, he threw her to the floor and threatened to break her legs. The victim resisted in vain as the defendant forced her to have sexual intercourse with him. Their older daughter was in the process of going downstairs to get a glass of water when she saw the defendant on top of her mother, hitting her and pulling her clothes off. The victim and the three children remained in the condominium after this incident. The victim testified that she did not report the incident to the police immediately because she was afraid the defendant would kill her and because she was ashamed. The following Monday, the older daughter came home from school with a note from the school social worker who wanted to meet with the victim because the daughter had written in her creative writing journal, “my daddy beats my mommy up.” The victim met with the school social worker that Friday.

On October 3, 1990, the defendant returned from work at approximately 9 p.m. When the victim told the defendant she had ordered a newspaper at a special price, the defendant became enraged, and cursed the victim. The victim picked up the phone to cancel the order, but the defendant grabbed the phone and cursed her again. She slapped him and told him not to speak to her in that manner. The defendant again began to yell but soon left the premises. The victim took the baby upstairs to bed with her. An hour later the defendant returned and berated her, grabbed the baby and took him to his crib, which was located in the girls’ bedroom. There was conflicting evidence as to whether the defendant threw the baby into his crib. Believing that the baby was in danger, the victim tried to intercede but the defendant pushed her onto the floor. When she attempted to call the police from a downstairs phone, he grabbed her and dragged her back upstairs. Once in the master bedroom, he threw her about, held her up by her hair, pushed her onto the bed and threatened to kill her.

Subsequently, the defendant went to the girls’ room and woke them up, asking who their mother had been seeing. The older daughter replied that her mother had spoken to the school counselor, referring to the school social worker. The defendant, still angry, returned to the master bedroom and pulled the victim onto the bed. She submitted to his sexual advances and had intercourse with him to avoid any further conflict and to avoid disturbing the children further. The following day she filed a complaint with Officer Patrick Buden of the Plainville police department.

The defendant was arrested on October 12,1990. He was charged with eight counts and acquitted of four. This appeal ensued.

I

The defendant claims that the state’s evidence was insufficient to sustain his convictions. We do not reach the merits of this claim because the defendant failed to preserve it.

The trial court denied the defendant’s motion for judgment of acquittal made at the completion of the state’s case. Practice Book § 864. The defendant presented a defense but failed to move for a judgment of acquittal a second time. “Under the existing rules, when a defendant elects to put on evidence after a denial of his motion for judgment of acquittal at the end of the state’s evidence, he is deemed to have waived his right to appellate review as to the sufficiency of the evidence at the completion of the state’s case. State v. Booker, 28 Conn. App. 34, 41-42, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992); State v. Kari, 26 Conn. App. 286, 291, 600 A.2d 1374 (1991), appeal dismissed, 222 Conn. 539, 608 A.2d 92 (1992).” State v. Wolff, 29 Conn. App. 524, 527, 616 A.2d 1143 (1992). This rule is still accepted by Connecticut courts despite the criticism leveled at it. See State v. Simino, 200 Conn. 113, 118 n.5, 509 A.2d 1039 (1986); State v. Lizzi 199 Conn. 462, 464-65, 508 A.2d 16 (1986); State v. Rutan, 194 Conn. 438, 444, 479 A.2d 1209 (1984); State v. Duhan, 194 Conn. 347, 352, 481 A.2d 48 (1984); State v. Wolff, supra, 527-28 n.5; State v. Booker, supra. Furthermore, the defendant has not asked that this claim be reviewed under State v. Evans, 165 Conn. 61, 69-71, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1990). Therefore, we will not address the defendant’s insufficiency argument because the motion was not renewed and as such the claim was not preserved.

II

The defendant next claims that General Statutes § 53a-70b is unconstitutional because it is vague as applied to the facts of this case. The defendant maintains that the statute’s definition of “use of force” would permit a conviction solely because the defendant’s physical strength was superior to that of the victim. Before addressing the merits of this claim, we must first consider the threshold question of reviewa-bility.

The state maintains that the defendant’s claim is not reviewable because it was not distinctly raised at trial and because the defendant has not requested that we review it under Evans and Golding. Notwithstanding this procedural default, our courts have considered whether to review unpreserved claims of unconstitutional vagueness utilizing the criteria set forth in Evans and Golding. State v. Jones, 215 Conn. 173, 179, 575 A.2d 216 (1990); State v. Jones, 29 Conn. App. 683, 686, 617 A.2d 918 (1992).

“State v. Golding, supra, establishes that a defendant cannot prevail on an unpreserved constitutional claim unless all four conditions are met, any one of which may be considered first. State v. Shaw, 24 Conn. App. 493, 497, 589 A.2d 880 (1991). Under the third Golding condition, the defendant can prevail only if the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. State v. Golding, supra, 240.” State v. Mezrioui, 26 Conn. App. 395, 400-401, 602 A.2d 29 (1992).

A claim of unconstitutional vagueness normally “implicates the fundamental due process right to fair warning and the record is adequate to facilitate review.” State v. Schriver, 207 Conn. 456, 459, 542 A.2d 686 (1988). “The constitutional injunction that is commonly referred to as the void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement. Smith v. Goguen, 415 U.S. 566, 572-73, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974); Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 (1975).” State v. Schriver, supra, 459-60. “In order to surmount a vagueness challenge, ‘a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.' McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979). The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties. Winters v. New York, 333 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 840 (1948).” State v. Schriver, supra, 460.

“As a general rule, the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue. ... To do otherwise, absent the appearance that the statute in question intrudes on fundamental constitutional guarantees, particularly first amendment freedoms, would be to put courts in the undesirable position of considering every conceivable situation which might possibly arise in the application of complex legislation.” (Citations omitted.) State v. Pickering, 180 Conn. 54, 57, 428 A.2d 322 (1980).

The defendant maintains that because no credible evidence was offered showing that violence was involved in either altercation between the defendant and the victim, the defendant was convicted solely because of his physical strength. Thus, according to the defendant, because the “superior physical strength” definition of “use of force” is vague as applied to the facts of this case, his constitutional rights have been infringed. This claim does not clearly implicate the defendant’s constitutional rights because it is predicated on the credibility of the evidence before the jury.

“[I]t is within the province of the jury to determine credibility and assess weight to be given the evidence submitted. State v. Reyes, 19 Conn. App. 179, 191, 562 A.2d 27 (1989). [W]hen the conclusion is one that is dependent on the resolution of conflicting testimony, it should ordinarily be left to the jury for its judgment. State v. Torello, 100 Conn. 637, 647-48, 124 A. 375 (1924). State v. Bewry, 26 Conn. App. 242, 246, 600 A.2d 787 (1991), cert. denied, 221 Conn. 911, 602 A.2d 11 (1992). The evaluation of testimony is the sole province of the trier of fact. State v. Johnson, 26 Conn. App. 553, 557, 603 A.2d 406 (1992).” (Internal quotation marks omitted.) State v. Lago, 28 Conn. App. 9, 31, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992).

The defendant was charged under § 53a-70b (b) in that he compelled the victim to engage in intercourse “by the use of force . . . .’’The jury was instructed that “use of force” may be defined as “use of actual physical force or violence or superior physical strength against the victim.” General Statutes § 53a-70b (a) (2) (B). As in State v. Jones, supra, the defendant was charged by a short form information and did not request a bill of particulars or a statement of essential facts. “The burden rests on the defendant to request a bill of particulars and a statement of essential facts. State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984); State v. Osman, 21 Conn. App. 299, 310, 573 A.2d 743 (1990), rev’d on other grounds, 218 Conn. 432, 589 A.2d 1227 (1991); see also Practice Book §§ 625 and 831.” State v. Jones, supra, 689. There was evidence relating to the conviction under § 53a-70b before the jury that the defendant pinned the victim to the floor, ripped off her clothes, threatened her, and hit her. Furthermore, the jury’s return of a general verdict of guilty prevents us from knowing on which of the definitions of “use of force” the jury based its finding of guilty. See State v. Toth, 29 Conn. App. 843, 863, A.2d (1992), cert. denied, 225 Conn. 908, 621 A.2d 291 (1993). Thus, we do not know whether the jury found the defendant guilty specifically on the “superior physical force” definition of use of force because the jury was instructed on all three definitions of “use of force.” Because it is not clear from the jury’s verdict on which definition of use of force, General Statutes § 53a-70b (a) (2) (B), the jury based the defendant’s conviction, he has not satisfied his burden of showing a clear constitutional violation under Golding.

Ill

The defendant next claims that the prosecutor’s argument to the jury constituted misconduct and deprived him of his right to a fair trial. Specifically, the defendant claims that the prosecutor misstated the testimony given by the older daughter regarding her observations on the night of September 21, and improperly explained the testimony given by the victim relating to the injuries her husband inflicted on her. We agree with the state’s position that the defendant’s claim is not reviewable because it has not been preserved for appellate review. The defendant “took none of the appropriate measures to alert the trial court to a potential problem . . . .” State v. Williams, 204 Conn. 523, 535, 529 A.2d 653 (1987). The defendant did not object to the remarks he now claims prejudiced him, nor did he move for a mistrial on the basis of the prosecutor’s statement.

The defendant argues that this claim is reviewable under the “exceptional circumstances” doctrine of State v. Evans, supra. We disagree because in this case, in contrast to the cases the defendant relies on, the record does not demonstrate “a pattern of repeated, strident and serious misconduct.” State v. Rodgers, 207 Conn. 646, 653, 542 A.2d 1136 (1988). “In the cases in which we have denied Evans review, the claimed misconduct consisted of isolated and brief episodes, and did not reveal a pattern of conduct repeated throughout the trial. Moreover, the misconduct was not blatantly egregious. State v. Williams, supra, 537. . . .” (Citations omitted; internal quotation marks omitted.) State v. Rodgers, supra, 653-54; State v. O’Brien, 29 Conn. App. 724, 727-28, 618 A.2d 50 (1992), cert. denied, 225 Conn. 902, 621 A.2d 285 (1993). This claim relates only to two isolated portions of the state’s closing argument.

The defendant argues that the following comments were egregious in that they suggested that the older daughter testified that she saw the defendant rape her mother when, in fact, she did not actually testify that she had seen the defendant rape her mother. The state’s attorney stated, with reference to the September 21 altercation, that the victim “testified that they had an argument and he left and that he came back, told her he was horny, and at that point grabbed her about the front of her shirt sending the buttons flying, exposing her bra then ripping her bra and a few seconds later made some comments to her. ‘You are not going to get away with them.’ She then testified he threw her to the floor in the living room and ripped the bra. She indicated that it hurt. He pinned her to the floor and managed to get her pants off. She made a statement, ‘You are not going to do this to me. You’ll have to break my legs.’ His response was, ‘Which one do you want me to break first?’ She indicated he eventually got her pants down and forced her to have sexual intercourse and that after that, he indicated it was fun. She said she screamed and cried throughout that incident. But you know what? There was someone who saw this happen. There was someone who was sitting on the stairs that night who saw what happened and you saw her testify, and that upset her. It upset her so much that the very next school day, a Monday, she started telling people about it. And her recollection . . . was that she saw the defendant on top of her mother. The mother was screaming and trying to get him off. . . . What he doesn’t know is there was someone watching what happened and that was [the older daughter]. Do you think she made that all up? Is she such a good actress that she would make that up?”

The defendant also argues that the state’s attorney misled the jury when he tried to explain why other witnesses did not remember seeing bruises that the victim testified she sustained from her husband’s actions. The state’s attorney stated that the defendant’s counsel “argued that well, while Officer Buden didn’t see any bruises on October 4th. Well, most of the testimony, if you recall, with respect to bruises concerned the September 21st incident, not the October 4th incident. It’s her bosses that said when she came back to work in late September, that’s when they saw the bruises. Well, by October 24th, those bruises would have been gone. They would have been three weeks old or two weeks old. And [the victim] testified that on October 4th, she was sore, but he didn’t strike her. She probably wouldn’t have any bruises.”

Even if we were to find these two segments of the closing argument misleading, they did not rise to the level of misconduct that constitutes a denial of the right to a fair trial. State v. Rodgers, supra. Therefore, we conclude that the remarks of the prosecutor do not constitute the “exceptional circumstance” necessary for us to entertain this unpreserved claim. Id.; State v. Golding, supra; 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 12.

IV

The defendant next claims that he was denied the effective assistance of counsel at trial. Our Supreme Court has emphasized in other cases that a claim of ineffective assistance of counsel is more properly pursued on a petition for a new trial or on a petition for a writ of habeas corpus rather than on direct appeal. State v. Walker, 215 Conn. 1, 9, 574 A.2d 188 (1990); State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986). Accordingly, we will not review this claim.

V

The defendant also challenges the trial court’s decision to allow into evidence expert testimony relating to the general characteristics of a person suffering from battered women’s syndrome. Specifically, the defendant argues that the prejudicial effect of this testimony outweighed its probative value.

The state argues that we should not entertain this claim because it was not preserved in the trial court. “We are not bound to consider claims that are not distinctly raised at trial. Practice Book § 4185. Review of evidentiary rulings is limited to the specific legal ground raised on the objection.” State v. Anderson, 28 Conn. App. 833, 844, 614 A.2d 438, cert. denied, 224 Conn. 908, 615 A.2d 1048 (1992); see also Practice Book § 288. At trial, the state offered the testimony of a psychiatric social worker and an outreach advocate to testify to the general characteristics of a battered woman. The testimony was offered to explain why the victim did not immediately report the sexual assault of September 21, to the police. The defendant objected to this testimony during an offer of proof relating to the psychiatric social worker’s testimony on the ground that the evidence was overly prejudicial because its introduction would lead the jury to believe that the victim was a battered woman. The trial court overruled this objection. Exceptions were taken on this ground during the testimony of each of the expert witnesses. Thus, the claim that the testimony’s probative value is outweighed by its prejudicial effect has been properly preserved.

The defendant argues that the introduction of the testimony concerning battered women’s syndrome led the jury to conclude the victim was battered. The defendant contends that because there was no evidence before the jury that the victim was a battered woman, this testimony greatly prejudiced the defendant and that its probative value was minimal.

Before the experts’ testimony was admitted, counsel for the defendant attempted to impeach the credibility of the victim on cross-examination by questioning her about her failure to notify the police immediately of her husband’s actions. The testimony of both witnesses was limited to the characteristics of a woman suffering from this syndrome and neither expert was permitted to proffer their opinions as to whether the victim actually suffered from the syndrome or as to whether it was surprising that the victim did not immediately contact the authorities. The outreach advocate testified that women suffering from that syndrome often do not report their abusers to the police. Engelhardt testified that a woman suffering from the syndrome is unlikely to leave her abuser because she is often emotionally and financially dependent on him.

The trial court found that the testimony was probative with regard to the credibility of the victim’s testimony. In weighing the probative value of evidence against its prejudicial effect, the trial court enjoys broad discretion. State v. Ouellette, 190 Conn. 84, 94, 459 A.2d 1005 (1983). A trial court also enjoys broad discretion in ruling on the admissibility of the opinions of expert witnesses. State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986); State v. Christiano, 29 Conn. App. 642, 649, 617 A.2d 470, cert. granted, 225 Conn. 906, 621 A.2d 288 (1992). “ ‘On appeal, we are limited in our review to a determination of whether, under the circumstances of the case, in exercising its broad discretion, the trial court could legally act as it did, and not whether we, under the same circumstances, would make the same ruling.’ State v. Aspinall, 6 Conn. App. 546, 554, 506 A.2d 1063 (1986).” State v. Millstein, 8 Conn. App. 581, 594, 513 A.2d 1253, cert. denied, 201 Conn. 814, 518 A.2d 72 (1986). We find that the trial court properly admitted the testimony on battered women’s syndrome for rehabilitative purposes.

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, supra]; see also State v. Spigarolo, 210 Conn. 359, 376, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); State v. Watson, 26 Conn. App. 151, 153, 599 A.2d 385 (1991), cert. denied, 221 Conn. 907, 600 A.2d 1362 (1992).” (Internal quotation marks omitted.) State v. Christiano, supra, 649-50. The defendant’s claim is related to the third criterion, which addresses the relevance of the testimony.

“[E]vidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. . . .” (Citations omitted; internal quotation marks omitted.) State v. Millstein, supra, 596. “[T]he test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and in assessing the probative value of the direct testimony.” (Internal quotation marks omitted.) State v. Hernandez, 224 Conn. 196, 207, 618 A.2d 494 (1992). The victim’s failure to report the September 21,1990 incident in a timely manner was repeatedly pressed by the defense and the victim herself was questioned on this by the defense on cross-examination. To repudiate the defense’s suggestions that the victim was not credible because she did not immediately contact the police, the prosecution offered the description of battered women’s syndrome to explain the victim’s actions.

Contrary to the defendant’s assertions, the state had presented evidence of an abusive relationship warranting the testimony on battered women’s syndrome. The relationship of the victim and the defendant was stormy, the defendant having thrown the victim out of the house on five occasions in 1990. There was testimony that the defendant verbally abused the victim, placed her neck in a choke hold, ordered her out of the house, threatened her, held her down, threw her about the house, and sexually assaulted her. We have previously found that rehabilitative evidence used to explain the victim’s delay in disclosing abuse provides “the jurors with a relevant insight into the victim’s behavior that they might not otherwise bring to its evaluation of the victim’s credibility.” State v. Christiano, supra, 654; see State v. Spigarolo, supra, 380 (“where defense counsel has sought to impeach the credibility of a complaining minor witness in a sexual abuse case, based on inconsistency, incompleteness or recantation of the victim’s disclosures pertaining to the alleged incidents, the state may offer expert testimony that seeks to demonstrate or explain in general terms the behavioral characteristics of child abuse victims in disclosing alleged incidents”). Thus, the trial court did not abuse its discretion in determining that the evidence is relevant to the issue of credibility.

Furthermore, we find that trial court also properly concluded that the prejudicial effect of the testimony did not outweigh its probative value, especially given the trial court’s limiting instruction. See State v. Ouellette, supra, 94-97. “Prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous.” State v. DeMatteo, 186 Conn. 696, 703, 443 A.2d 915 (1982). “There are situations where the potential prejudicial effect of relevant evidence would suggest its exclusion. These are: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” Id., 702-703. It is also important that the defense, on cross-examination of the victim, sought to impeach her credibility by questioning her as to her delay in accusing the defendant. The experts’ testimony was offered for the rehabilitative purpose of explaining the victim’s failure to report the assault. The court’s instructions on credibility made it very clear that the jury should utilize the expert testimony solely for purposes of considering the credibility of the victim.

Even if the evidence were not admissible, its admission was harmless because the limiting instruction vitiated any potential prejudice on the limited purpose of the evidence of the expert’s testimony concerning battered woman’s syndrome. The defendant does not claim now, nor did he at trial, that the trial court’s decision to admit the testimony concerning battered women’s syndrome violated his constitutional rights. The defendant, therefore, bears the burden of proving harmfulness by showing that it is more probable than not that the decision of the trial court affected the result of the trial. State v. Payne, 219 Conn. 93, 102, 591 A.2d 1246 (1991). This burden has not been satisfied.

VI

The defendant’s final claim relates to the admissibility of the testimony of the victim’s father. He testified about an incident that occurred after he brought the victim and the children back to the Battistas’ condominium in August, 1990. The defendant was extremely hostile to them upon their arrival, and, after mistreating them, ordered the victim to leave. The victim and the children remained in the condominium with the defendant nevertheless.

The defendant’s argument that this evidence imper-missibly tried the defendant on his character was not properly preserved in the trial court. Practice Book § 288; State v. Anderson, supra. The defendant’s argument that the testimony was irrelevant and prejudicial because it dealt with the prior bad act of the defendant, is properly before us, however.

“[W]e will reverse the trial court’s ruling [on evidence] only where there is abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling.” (Citation omitted.) State v. Mooney, 218 Conn. 85, 131, 588 A.2d 145, cert. denied, U.S. , 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). We find no such abuse of discretion or injustice in this case. The trial court found this testimony to be more probative than prejudicial because it tended to show that the victim was unwilling to leave an abusive relationship. It was relevant to the rehabilitative testimony concerning battered women’s syndrome. Even if we assume that this ruling was erroneous, the trial court’s decision was harmless because testimony about this incident had been admitted without objection. See State v. Payne, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       The outreach advocate described her duties as follows: “As the outreach advocate, I do individual counseling, crisis counseling, support groups, legal advocacy, advocacy for medical purposes, housing and community education.”

       The defendant was acquitted of committing sexual assault in a spousal or cohabiting relationship, General Statutes § 53a-70b, risk of injury to a child, General Statutes § 53-21, reckless endangerment in the second degree, General Statutes § 53a-64, and assault in the third degree, General Statutes § 53a-61. All of these charges related to the October 3, 1990 incident.

       A motion for judgment of acquittal may properly be made at the close of the state’s case; Practice Book §§ 883, 884; at the completion of all of the evidence; Practice Book §§ 883,885; and following a guilty verdict. Practice Book § 899.

       General Statutes § 53a-70b (b) provides: “No spouse or cohabitor shall compel the other spouse or cohabitor to engage in sexual intercourse by the use of force against such other spouse or cohabitor, or by the threat of the use of force against such other spouse or cohabitor which reasonably causes such other spouse or cohabitor to fear physical injury.”
      General Statutes § 53a-70b (a) (2) provides: “ ‘Use of force’ means: (A) Use of dangerous instrument; or (B) use of actual physical force or violence or superior physical strength against the victim.”

       The four conditions that must exist before a defendant may prevail on an unpreserved claim of constitutional error are as follows: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1990). The absence of any one of these conditions will cause the defendant’s claim to fail. Id.

       The defendant does not question the expertise of these witnesses to testify. See Knock v. Knock, 224 Conn. 776, 783, 621 A.2d 267 (1993).

       Each also testified that the victim said she had been sexually assaulted by her husband. This testimony was admitted under the constancy of accusation exception to the hearsay rule and has not been challenged by the defendant.

       Both witnesses also testified as to the victim’s behavior at the time that each spoke to her about the sexual assault.

       Counsel for the defendant objected as follows: “[T]he probative value of anything that [the psychiatric social worker] could offer in this particular case would be highly prejudicial to the defendant. I think the whole atmosphere created by his testimony and his using the words of a battered individual is going to create a very prejudicial position in the minds of the jury. ... I don’t feel that the jury would be in the position to really appreciate [the testimony], and I think they are going to make certain assumptions that are going to be highly prejudicial to this defendant, and I would object to his testifying on this subject.”

       The outreach advocate testified: “A woman suffering from battered women’s syndrome has a very difficult time in decision-making, especially around the decision whether or not to leave. She’s very confused, and torn between wanting things to work out, to get better, believing what she’s being told by her partner, and her constant fear for her safety and that of her children. . . . Because of those things that I was just describing, it makes it very difficult for a woman in that position to call the police knowing that also if she’s had any experience in the past or any knowledge of it, that probably her partner will be released in a few hours time. That the fact that when a woman attempts to leave is the most dangerous time for her and the children.”

       Bngelhardt testified to the following: “A woman who is described as suffering from battered women’s syndrome would be feeling trapped in a relationship with a spouse or significant other in her relationship [with a person] who is physically or sexually abusive to her. In spite of that abuse, the woman would feel emotionally dependent on that person, financially dependent on that person, and for those reasons, would not move towards getting out of the relationship in spite of the fact that she was being abused.”

       The trial court explained: “In this particular case, I find that there is probative value because as this case has been tried, counsel for both sides have permitted, I think, to a great degree, the issue of whether there is a battering relationship here to enter into the case. It has been contested by the defense largely that there was such a relationship. It has been contested at every turn through the children and through the complainant herself. The state has been allowed to introduce testimony about prior incidents including the Easter incident and other incidents in which there áre claims that there were battering, there was a pattern of battering that had gone on for some time, a pattern which had been made through cross-examination that the failure to report early and often raises serious doubt as to the integrity of the witness and as to the truth of her allegations. These are matters that I think have been fairly brought forward by the defense not inappropriately, but they’ve set this case in a context and in that context I think the truthfulness of the witness as to her claim why she didn’t come forward in the report is put in question. I think there is enough testimony on the record, suffice it to say, then, with respect to battering over a period of time with respect to an adverse, hostile, physical relationship between Mr. Battista and the complainant and enough of a claim raised with respect to a failure to report in a timely fashion both the Easter incident to follow up on that and these later two incidents to permit in generic testimony as to the manner in which the battered women’s syndrome operates on the psyche of a person who is actually victimized by it. What the witness will not be allowed to testify to is his conclusion that she was a battered woman. He will not be able to testify as to his conclusion that she was suffering from the battered women’s syndrome, not to be able to testify that he would not be surprised if the reasons she didn’t report this was because she was a battered woman.” The court concluded that the testimony of the witness would be limited in this manner to avoid invading the province of the jury.

       The trial court instructed the jury as follows: “Finally, a third type of evidence which was introduced solely on the question of credibility was evidence concerning the battered women’s syndrome. You recall there were two witnesses who described in general terms the operation of the battered women’s syndrome. This testimony that was offered by the witnesses was limited to that description. These individuals offered no opinion in this court and are not to be understood by you as having offered any opinion as to whether, in fact, [the victim] was suffering from the battered women’s syndrome at any time relevant to this case. Why was that testimony introduced? In the testimony, as I recall it — and again it’s your recollection that controls in this matter entirely — a description of this syndrome was that if an individual is in a marital relationship or a relationship with a significant other and is suffering abuse on a prolonged basis in a relationship, and dependent personally, emotionally upon the individual who is her abuser, that if in fact she is in that relationship, she may, as a person who suffers from the syndrome frequently does, not disclose to authorities in a timely fashion that she has been abused for fear of terminating the relationship. Now, again, this was offered, this description of the operation of the battered women’s syndrome in general terms, was offered for the following purposes: (1) so that you might, if you choose to accept it as true that there is such a syndrome and it has these effects upon people; (2) so that you might apply it to this case if you find that the facts, or the facts put forward, show, in fact, that [the victim] was a person in such a dependent relationship suffering from such prolonged abuse and therefore, in fact, acting consistently with the battered women’s syndrome. If you find she did not, she did not timely report acts of abuse perpetrated against her, that, however, is the only purpose for which the evidence was introduced and it’s entirely up to you whether to accept the testimony of the witnesses, whether to find that [the victim] might have been a person suffering from that syndrome and whether to find whether or not if she was indeed suffering from it, if in any way it caused her not to report these incidents in a timely fashion. If you find that she was, you may use that inference only for the purpose of showing that she’s not less credible for failing to come forward and make her report in a timely fashion. The judgment is entirely yours.”
      Although the defendant objected following the charge, this charge has not been challenged on appeal. The objection was directed more toward the introduction of the evidence and no suggestion for a curative charge was put forward.


text:
    Clair F. Collins v. John Wetherbee
    (11411)
    Dupont, C. J., Daly and Foti, Js.
    Argued March 26
    decision released June 1, 1993

      Michele C. Lukban, for the appellant (defendant).

      Matthew J. Collins, for the appellee (plaintiff).
   Daly, J.

This is an action involving podiatric malpractice arising out of the defendant’s care of the plaintiff’s foot. The defendant appeals from a judgment in favor of the plaintiff, after a trial to the court, awarding $90,000 for injuries resulting from the defendant’s malpractice. The defendant claims that the damages awarded were excessive. We disagree with the defendant and affirm the judgment of the trial court.

The trial court found the following facts. In the fall of 1988, the plaintiff sought treatment from the defendant, a doctor of podiatric medicine, after dislocating the fifth toe of her right foot. On November 3, 1988, the defendant attempted to perform a slant osteotomy-on the injured toe, but was unable to numb the plaintiffs foot due to defective novocaine. The plaintiff was not adequately notified of the complexity of the procedure or of the likelihood of its success.

On November 17,1988, the defendant began to perform the procedure, but failed to use a sufficient amount of novocaine. When the defendant started drilling in the area of the plaintiffs fifth toe, the plaintiff complained of pain, and the defendant injected more novocaine. Later, the plaintiff experienced excruciating pain, and the defendant stopped operating. After the defendant dressed the foot and placed it back into the plaintiffs shoe, he advised the plaintiff to walk on the right foot so that she might break her injured toe on her own. The operation was never completed.

On November 21,1988, the plaintiff telephoned the defendant and complained that she was in pain. The defendant referred her to the emergency room at Hartford Hospital for the purpose of alleviating her pain. The defendant did not tell the plaintiff to have the operation completed by another physician. While at Hartford Hospital, her foot was placed in a cast. She returned the next day, the cast was removed and a new cast was placed on her foot. The plaintiff was subsequently referred by a physician at Hartford Hospital to W. Jay Krompinger, an orthopedic surgeon, who did not complete the slant osteotomy. Instead, on November 29,1988, he performed a wedge osteotomy, believing that it was necessary to correct the dislocated toe. This had the effect of worsening the plaintiffs condition. The plaintiff was in great pain following this operation and a cast was placed on her foot. When the cast was removed, the plaintiff’s toe was raised at a forty-five degree angle and remained in that position. The trial court determined that this was a deformity. The plaintiff’s medical expenses totaled $1944.46.

The trial court found that the defendant had failed to satisfy the requisite standard of care in the following areas: (1) the November 3,1988 failure to anesthetize properly; (2) the November 17, 1988 failure to anesthetize properly; (3) the failure to provide adequate warning to the plaintiff of the procedure and potential complications; (4) the failed operation of November 17,1988; (5) the advice to the plaintiff to break her own bone; (6) the failure to act in a prompt manner to complete the operation. After determining that the permanency of the deformity would not be considered in assessing damages, the court asked each party to state its opinion of the reasonable value of the case. The defendant assessed the damages to be $6000 to $8000 while the plaintiff stated that $30,000 was an appropriate award. The trial court awarded damages of $90,000. The court specifically stated that it did not consider the permanency of the disability, namely the distortion of the foot, in its evaluation of damages, but that it would include compensation for the pain the plaintiff felt on the bottom of her foot that she will continue to suffer for the rest of her life.

The defendant filed a motion to set aside the judgment arguing that it was excessive, contrary to the evidence and contrary to the findings of fact. The trial court denied this motion stating that its award was appropriate. This appeal followed.

The defendant argues that the $90,000 award is excessive given (1) that it is forty-five times greater than the special damages in this case, and (2) that the trial court did not consider the plaintiffs permanent disability in its award. The defendant also contends that the statement of the plaintiffs attorney that he assessed the damages in this case to be $30,000 is an admission that precluded the trial court from awarding damages greater than $30,000.

The trial court refused to set aside its award and its “refusal to do so is entitled to great weight and every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Bruneau v. Quick, 187 Conn. 617, 634, 447 A.2d 742 (1982). “The assessment of damages in personal injury cases is peculiarly within the province of the trier and will only be disturbed when plainly excessive. . . .This is particularly so when the amount is determined in a trial without a jury.” (Citations omitted.) Funk v. Bannon, 148 Conn. 557, 562, 172 A.2d 894 (1961). The test for a determination of whether there was an abuse of discretion by the trial court in denying a motion to set aside the verdict is if the judgment “shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury.” (Internal quotation marks omitted.) Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 557, 562 A.2d 1100 (1989) (where the excessiveness of a jury verdict is reviewed).

Turning to the defendant’s first argument, the relation between the amount of special damages and the amount of damages awarded does not control the question of the excessiveness of the award. “The amount of damages in any given case is dependent on the facts and circumstances of that case. Although other cases are not determinative of the proper amount of damages in this case, they do offer some guidance in determining the range of those necessarily flexible limits of fair and reasonable compensation by which the amount of the verdict must be tested.” (Internal quotation marks omitted.) Wochek v. Foley, 193 Conn. 582, 587, 477 A.2d 1015 (1984); see Dunstan v. Round Hill Dairy, Inc., 128 Conn. 300, 302-303, 22 A.2d 631 (1941).

In Bruneau v. Quick, supra, a jury determined that the defendant podiatrist was guilty of malpractice and awarded $61,000 to the plaintiff, $1694 of which constituted special damages. Our Supreme Court determined that the verdict was not excessive given that the plaintiff, who was expected to live another 18.1 years, claimed damages that included physical and mental pain and suffering and an impairment in her ability to enjoy life. Id., 635. The court explained that “[t]he fact that the special damages are only $1694 is not critical in assessing the claim of excessiveness. The jury saw and heard expert witnesses produced by both parties. They saw and heard the defendant.” Id., 636. Our Supreme Court determined that the trial court had not abused its discretion in refusing to set aside the verdict as excessive.

The fact, therefore, that the damage award is forty-five times the amount of the special damages is not dis-positive of this case. We defer more to a trial court’s award than to a jury’s verdict. Funk v. Bannon, supra. The trial court heard expert opinions on the propriety of the defendant’s actions and the effect of Krom-pinger’s care on the plaintiff. It also heard the testimony of the plaintiff and the defendant. The trial court determined, based on the malpractice of the defendant and the extent of the plaintiff’s pain and suffering, that a $90,000 award was appropriate.

Furthermore, the fact that the trial court did not consider the permanent disability of the plaintiffs foot does not render this award excessive because the trial court considered the permanency of the pain the plaintiff, who was sixty-one years old at the time of trial, would endure for the rest of her life. In reaching the issue of the permanency of the disability as it affects damages, the trial court stated: “I see [this case] as two distinct malpractice procedures. Dr. Krompinger is not before me. So, I am prepared at this time to assign damages to this particular case. ... I think that, in my opinion, the damages go up to and include the second admission to the hospital, everything right up until the fact that there is a disability. A disability being the toe that turns laterally or, as I have seen it and viewed it here. That, I think, is a permanent condition that does not flow from the negligence of Dr. Wetherbee.

“Now, that’s not to say that this court doesn’t feel that some of the permanent disability suffered by the plaintiff, Mrs. Collins — the pain in her foot, the discomfort she feels across the bottom of her foot — I think the better evidence, the more believable evidence, the more credible evidence, does say that some of that is attributable to the actions of Dr. Wetherbee.”

Thus, the permanent disfigurement of the toe was distinguished from the pain the plaintiff suffers that prevents her from enjoying activities such as tennis and walking not only presently but also in the future. The trial court explicitly stated that $55,000 of the award compensated the victim for the defendant’s malpractice, and the pain and anguish she suffered when she was forced to wear a cast for a total of nine weeks. The remainder was not expressly linked to specific injuries. Given the trial court’s finding, however, that this sixty-one year old plaintiff will suffer from sharp pain on the bottom of her foot for the rest of her life, this award is not excessive.

Relying on our Supreme Court’s opinion in Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut, 218 Conn. 474, 590 A.2d 431 (1991), the defendant finally argues that the statement by plaintiff’s counsel that “$30,000 in this case is not unreasonable” was an admission that precludes the trial court from awarding damages greater than $30,000. Expressway Associates II involved an action seeking injunctive relief and damages for the defendant’s interference with a designated right-of-way. The trial court determined that because the claimed right-of-way was contingent on the plaintiffs giving the defendant notice that it was prepared to construct a building on the dominant estate served by the right-of-way, irreparable harm had not been shown. Id., 475. This court reversed the trial court’s decision and held that the plaintiff had a present right-of-way over the area and directed the trial court to grant injunctive relief and to hold a hearing on damages. Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut, 22 Conn. App. 124, 576 A.2d 575 (1990), rev’d in part, 218 Conn. 474, 590 A.2d 431 (1991). Our Supreme Court reversed this court’s decision after finding that the case could not properly be remanded for a hearing on damages because not only was no evidence of damages presented, but in closing arguments the plaintiff’s counsel “in emphasizing its need for an injunction, stated that ‘[tjhere’s no civil suit that can be brought at the moment, that I can think of anyway, to claim damages because there aren’t any damages, they’re speculative.’ ” (Emphasis in original.) Expressway Associates II v. Friendly Ice Cream Corporation of Connecticut, supra, 218 Conn. 478. Our Supreme Court concluded that “[t]he plaintiff was in effect seeking as its sole remedy an injunction. There is no basis in its claims or in the facts proven which would justify a remand of the case for a retrial of issues involved in a claim for damages.” (Internal quotation marks omitted.) Id., quoting E. M. Loew’s Enterprises, Inc. v. International Alliance, 127 Conn. 415, 421-22, 17 A.2d 525 (1941).

The plaintiff here is seeking damages, not injunctive relief, and she presented evidence of those damages, including her own testimony concerning the agony she experienced during and following the operations. Expressway Associates II involved an admission by the plaintiff that there were no damages at all. Here, the plaintiff’s attorney merely gave the trial court his opinion of a reasonable award for this case. Counsel did not state that the damages were speculative, or that there were no damages at all. He stated only that $30,000 was not unreasonable, which does not necessarily suggest that a larger amount would be unreasonable. Counsel’s statement does not bind the trial court because “ ‘[t]he amount of the award is a matter within the province of the trier of the facts.’ Gorczyca v. New York, N.H. & H. R. Co., 141 Conn. 701, 703, 109 A.2d 589 (1954). See Vandersluis v. Weil, 176 Conn. 353, 357, 407 A.2d 982 (1978); Gondek v. Pliska, 135 Conn. 610, 617, 67 A.2d 552 (1949).” Seals v. Hickey, 186 Conn. 337, 352, 441 A.2d 604 (1982).

We also note that General Statutes § 52-216b (a) specifically provides that counsel for either party in a personal injury suit may state to the trial court its opinion of the value of the case. In subsection (b), the statute states that in cases tried to a jury the court must instruct the jury that these sums are not evidence and that it is the jury’s function to compute the proper amount of damages a case warrants. In nonjury personal injury actions such as this, counsel’s assessment of the reasonable damages constitutes an argument or opinion, and does not restrict the trial court’s discretion to assess damages.

Under these facts, the trial court did not abuse its discretion in denying the motion to set aside the judgment because the damage award does not shock the sense of justice and we are not convinced that the award is entirely disproportionate to the injury.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court orally rendered its findings of fact and its judgment in open court, but failed to sign the transcript of the decision as required by Practice Book § 4059. The defendant did not remedy this defect. See Practice Book § 4183. Nevertheless, because the trial court made adequate findings on the record, we shall review the defendant’s claim. See State v. Rivera, 30 Conn. App. 224, 225 n.1, 619 A.2d 1146 (1993).

       The defendant has claimed on appeal that the judgment of $90,000 is excessive.

       We have never before reviewed a trial court’s decision on a motion to set aside its own damage award.

       After announcing the damage award, the trial court stated: “And I have not considered the permanency. What I mean by the permanency, I have not considered the distortion of the foot.”

       The trial court reiterated its position when it denied the motion to set aside the award. At that hearing, the court stated: “I realize that my figure on that case was substantially more than was asked for. I heard the case. I evaluated the case. I don’t believe that cases are evaluated on five times, ten times, twenty times, forty-five times the specials. Never been my feeling that pain and suffering is measured by how much the doctor bills are or the medical bills. I took the case and evaluated it based upon . . . the factual situation that did occur. I will acknowledge again that I don’t find Dr. Wetherbee responsible for the permanent disability that has resulted from the second operation, which I think was . . . not a continuing, but a second malpractice procedure. My opinion of value was based upon the procedure that was done, the incomplete procedure, the pain and suffering that this woman went through over a period of time, the operation itself, the failure of the novocaine, the drilling of the drill through the foot in the doctor’s office, her perceiving the same, the doctor letting this woman walk out of his office, bandaging it up, telling her it wasn’t a complete fracture, to break the fracture herself, her pain and suffering over the holiday, so much so that she took the cast off that had been put on even though the doctor told her to go to the hospital and not let anyone cast it. I think the case has the value that I put on it and I don’t have any questions about it. If the Appellate Court feels differently, fine.”

       The court stated in announcing its judgment: “I think that the following damages are awarded. I was awarding for the operation itself, the drilling of her foot without having proper anesthesia, $25,000. For the swollen foot that went down, the casting, took the cast off Thanksgiving Day, $15,000. And then for the — she had nine weeks in the cast, $15,000. And for the — I awarded a total of $90,000.”

       General Statutes § 52-216b provides: “(a) In any civil action to recover damages resulting from personal injury or wrongful death, counsel for any party to the action shall be entitled to specifically articulate to the trier of fact during closing arguments, in lump sums or by mathematical formulae, the amount of past and future economic and noneconomic damages claimed to be recoverable.
      “(b) Whenever, in a jury trial, specific monetary sums or mathematical formulae are articulated during closing arguments as provided for in subsection (a) of this section, the trial court shall instruct the jury that the sums or mathematical formulae articulated are not evidence but only arguments and that the determination of the amount of damages to be awarded, if any, is solely the jury’s function.”