author: MIHALAKOS, J.

text:
    MADOLYN PARKER v. PAUL SLOSBERG, EXECUTOR (ESTATE OF MILTON O. SLOSBERG), ET AL.
    (AC 21936)
    Schaller, Mihalakos and Dupont, Js.
    Argued June 12 —
    officially released October 29, 2002

      Renee Marie Houle, for the appellants (defendants).

      Peter J. Bartinik, Jr., for the appellee (substitute plaintiff).
   Opinion

MIHALAKOS, J.

In this breach of contract action, the defendant, Paul Slosberg, appeals from the judgment of the trial court, rendered after a jury trial, which awarded a sum of $97,459.51 to the plaintiff. The defendant claims that the court improperly (1) denied three separate motions in limine, (2) permitted the jury to decide the issue of whether the corpus of a cash management account, which is at the center of this appeal, was a gift, (3) denied his motion for judgment notwithstanding the verdict and (4) denied his motion to reduce the verdict. We affirm the judgment of the trial court.

The jury reasonably could have found from clear and satisfactory evidence the following facts. In 1959, Milton Slosberg hired Madolyn Parker to be his personal secretary and the office manager for the Griswold Hotel in Groton. Parker worked for Slosberg at the hotel until it was sold in 1968. Parker then worked for Slosberg at his lumber business. When Slosberg started a real estate business in 1980, which was comprised of three companies, Parker worked for him as an office manager and became responsible for the operation of an apartment complex in Danielson. Although Slosberg died in July, 1997, Parker continued to work for his real estate companies. In January, 1998, however, Parker was terminated from that position by the defendant.

Beginning in 1980, and continuing until his death, Slosberg promised Parker that he would provide for her retirement. Specifically, he promised Parker that she would receive monthly payments from an account and that on his death, she would receive the balance of that account. In 1994, Slosberg opened a Merrill Lynch cash management account through financial consultant Dennis L. Witkowski. About $100,000 in bonds comprised the corpus of the account. Slosberg informed Witkowski that the account was for Parker’s benefit in her retirement years because of her many years of faithful service in his business. Slosberg also directed Witkowski to make monthly payments from the account to Parker and to remit the balance of the account to her when he died. Nevertheless, when Slosberg died, his will directed that all of his assets were to be placed in a revocable trust, which named members of his family as current and future beneficiaries.

Between 1994 and 1997, per Slosberg’s oral instructions and a letter of instruction, Parker received $1300 per month from the account. In 1996, Parker added to the account certain stock certificates that she owned. In July, 1997, shortly after Slosberg’s death, the defendant and Dudley G. Andersen contacted Merrill Lynch in an effort to transfer the corpus of the account into Slosberg’s revocable trust for the benefit of his surviving family. As a result of those efforts, the account was frozen and payments from the account to Parker ceased immediately. Nevertheless, until the termination of Parker’s employment, the defendant compensated Parker monthly from Slosberg’s estate for her continued employment with the family real estate companies.

On September 16, 1998, Parker filed a complaint against the defendant in his capacity as executor of Slosberg’s estate and as trustee of a trust established by Slosberg. See footnote 1. Parker claimed, inter alia, that Slosberg breached his promise to provide her a retirement pension, to be paid out of his estate, “in exchange for her loyal work performance.” Further, Parker claimed that she relied on the promise and had fulfilled her end of the bargain by “diligently and loyally performing her duties for almost [forty] years.” She also claimed that Slosberg’s estate would be unjustly enriched if it were permitted to keep the moneys Slosberg had promised to her. On May 3, 2001, in an amended complaint filed after Parker’s death; see footnote 2; the plaintiff specified that Slosberg’s promise included a $1300 monthly payment from the Merrill Lynch account while he was alive and that the balance of that account would be paid to Parker on his death.

Following a jury trial, the plaintiff was awarded $97,459.51, which was the value of the Merrill Lynch account. As indicated by jury interrogatories, the jury found that the plaintiff had proved by “clear and satisfactory” evidence that Parker and Slosberg had an implied contract, and that the defendant had breached that contractual obligation. The jury further found that this breach required that the plaintiff receive Parker’s retirement benefit from the balance of the Merrill Lynch account, as it was valued at the time of Slosberg’s death. Following the verdict, the defendant filed motions for a judgment notwithstanding the verdict and to reduce the verdict. Both motions were denied. This appeal followed. Additional facts and procedural history will be provided as relevant.

I

The defendant first claims that the court improperly denied three of his motions in limine. We will briefly address our disagreement with the defendant’s first two evidentiary challenges. We decline, however, to review his third claim because it is inadequately briefed.

On appeal, a court’s evidentiary rulings will be overturned “only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the court abused its discretion, every reasonable presumption should be made in favor of upholding the court’s ruling.” (Citation omitted; internal quotation marks omitted.) Kalas v. Cook, 70 Conn. App. 477, 486, 800 A.2d 553 (2002). As we repeatedly have stated, “[r]elevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 54, 770 A.2d 908 (2001). “Additionally, it is well settled that even if the evidence was improperly admitted, the [defendant] must also establish that the ruling was harmful and likely to affect the result of the trial.” (Internal quotation marks omitted.) In re Latifa K., 67 Conn. App. 742, 752, 789 A.2d 1024 (2002). Bearing those precepts in mind, we now address the defendant’s evidentiary claims.

A

The following additional procedural history is relevant to our disposition of the defendant’s first two claims. In his first motion in limine, the defendant sought to preclude the admission of evidence concerning the assets in Slosberg’s estate and trust. The defendant argued that permitting such evidence would confuse the jury and prevent it from deciding the case on its merits instead of on the basis of sympathy and fueled by the deep pockets of the estate and trust. The court granted in part and denied in part the defendant’s motion. Specifically, the court ruled that no reference could be made to the estate’s or to the trust’s “ability to pay.” The court noted, however, that it would allow “the amount [of Slosberg’s assets] into evidence because it has to do with . . . the work that [Parker] performed for what she is claiming.” The court expounded on its ruling later in the trial: “[T]he claim basically is that [Parker] performed services in assisting Mr. Slosberg in managing his affairs. And so, I suppose [the value of Slosberg’s assets] goes to the value of her services .... And so, I suppose showing . . . what he had that she assisted him with is relevant to that claim.”

The defendant’s second motion in limine unsuccessfully sought to bar the introduction of an unsigned letter that Parker typed at the direction of Slosberg, indicating his desire that she receive $100,000 in bonds as her pension on his death. The defendant claimed at trial that the letter was not authenticated properly and that it did not fall under any exception to the hearsay rule. The court overruled the defendant’s objection to the letter’s authentication and ruled that the evidence was admissible because it complied with the requirements of General Statutes § 52-172.

Having reviewed the record pertinent to the defendant’s first two claims, we conclude that in each instance, the challenged evidence had a logical tendency to aid the trier of fact in the determination of an issue, even if only to a slight degree. Thus, making every reasonable presumption in favor of the court’s rulings, we conclude that the court did not abuse its discretion. Even if the challenged evidence in those instances was admitted improperly, however, the defendant has not demonstrated that the admissions, separately or together, substantially prejudiced the jury or were likely to affect the result of the trial.

B

The defendant’s third motion in limine challenged the admissibility of evidence relating to the “meretricious” relationship between Parker and Slosberg. The defendant’s brief on the claim, however, fails to set forth adequately which specific evidence the court admitted, the objections, the grounds for the objections, the claimed grounds for admissibility or the evidentiary rulings by the court that allow for review of the claim. “When raising evidentiary issues on appeal, all briefs should identify clearly what evidence was excluded or admitted, where the trial counsel objected and preserved his rights and why there was error. . . . The mere assertion in a brief that evidence was improperly excluded, coupled with transcript page references, will not be sufficient. . . . For evidentiary rulings claimed to be improper to be reviewed by this court, they must be set forth in the briefs as required and outlined by the rules of practice.” (Citations omitted; internal quotation marks omitted.) Kelley v. Tomas, 66 Conn. App. 146, 171-72, 783 A.2d 1226 (2001); see Practice Book § 67-4 (d) (3). We decline, therefore, to review the defendant’s third evidentiary claim.

II

The defendant next claims that the court improperly permitted the jury to decide whether the corpus of the Merrill Lynch account was a gift or consideration for an implied contract. In other words, the defendant claims that the court should not have submitted that issue to the jury as a factual matter, but should have ruled on it as a matter of law. We do not agree.

Our Supreme Court has ruled that the question of whether a gift has been made is within the exclusive province of the trier of fact. See Dalia v. Lawrence, 226 Conn. 51, 70, 627 A.2d 392 (1993); Kriedel v. Krampitz, 137 Conn. 532, 534, 79 A.2d 181 (1951). Similarly, we have previously ruled that “[t]he existence of a contract is a question of fact to be determined by the trier on the basis of all the evidence.” (Internal quotation marks omitted.) Lussier v. Spinnato, 69 Conn. App. 136, 140, 794 A.2d 1008, cert. denied, 261 Conn. 910, 806 A.2d 49 (2002). At trial, evidence was presented concerning the business and personal relationship between Parker and Slosberg, the nature and terms of an arrangement between the two, and acts taken in furtherance of that arrangement. That evidence raised a quintessential and central issue of fact in this case, namely, whether Slosberg intended to make a gift to Parker or, instead, whether the parties had entered into a contract. Our case law recognizes that such an issue is to be determined by the trier of fact. We conclude, therefore, that the court properly submitted the issue to the jury.

Ill

The defendant also claims that the court improperly denied his motion for judgment notwithstanding the verdict. In support of that claim, the defendant contends that the plaintiff failed to demonstrate the existence of an implied contract by clear and satisfactory proof because she never established consideration for the contract. We disagree.

“Appellate review of a trial court’s refusal to render judgment notwithstanding the verdict occurs within carefully defined parameters. We must consider the evidence, and all inferences that may be drawn from the evidence, in a light most favorable to the party that was successful at trial. . . . This standard of review extends deference to the judgment of the judge and the jury who were present to evaluate witnesses and testimony. . . . Judgment notwithstanding the verdict should be granted only if we find that the jurors could not reasonably and legally have reached the conclusion that they did reach.” (Citations omitted.) Craine v. Trinity College, 259 Conn. 625, 635-36, 791 A.2d 518 (2002).

We note that in determining whether to grant a motion for judgment notwithstanding the verdict, “the trial court must look at the relevant law that it gave the jury to apply to the facts, and at the facts that the jury could have found based on the evidence. The law and evidence necessarily define the scope of the trial court’s legal discretion.” Foley v. Huntington Co., 42 Conn. App. 712, 725, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996). Here, the parties do not dispute that the plaintiff had to prove that there was consideration for an implied contract through clear and satisfactoiy proof. See footnote 3. The standard of “clear and satisfactory” proof is equivalent to that of “clear and convincing” proof. See C. Tait, Connecticut Evidence (3d Ed. 2001) § 3.5.2, p. 141. That burden of persuasion is sustained if the evidence “induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 534, 441 A.2d 151 (1981). Although we recognize that this standard of proof is higher than that in the ordinary preponderance of the evidence standard in a civil case, we are mindful that “it is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony.” (Internal quotation marks omitted.) Levy, Miller, Maretz, LLC v. Vuoso, 70 Conn. App. 124, 131, 797 A.2d 574 (2002).

As we have stated, the jury reasonably could have found from clear and satisfactory evidence that Parker and Slosberg entered into a binding contract, which called for the balance of the Merrill Lynch account to be turned over to Parker at the time of Slosberg’s death. As early as 1980, Slosberg promised Parker that in exchange for her faithful service as an employee, he would provide for her retirement. In 1994, Slosberg established a cash management account with Merrill Lynch. At that time, Slosberg expressed to his Merrill Lynch agent that the account was created for the benefit of Parker’s retirement because of her many years of faithful service in his business. Slosberg then ordered the agent to issue a monthly payment to Parker and to remit the balance of that account to Parker on Slosberg’s death. From that time, Parker received $1300 per month from Slosberg’s account until his death in 1997. Parker, in consideration of and in reliance on Slosberg’s promise, worked at several of Slosberg’s business ventures and remained in Slosberg’s employ until his death. Finally, in breach of the implied contract, the defendant failed to transfer the balance of the Merrill Lynch account to Parker when Slosberg died.

Although the defendant raises certain conflicts within the testimony of Parker and Witkowski, as well as the potential for a meretricious relationship between the parties being the basis for the contract, the jury was free to credit one version of events over the other, even from the same witnesses. We conclude, therefore, that the jurors reasonably and legally could have reached their conclusion, in accordance with the higher standard of proof utilized in this case, that an implied contract existed between Parker and Slosberg. Thus, considering the evidence and all inferences that may be drawn therefrom in the light most favorable to sustaining the verdict, we conclude that the court properly denied the defendant’s motion for judgment notwithstanding the verdict.

IV

The defendant’s final claim is that the court improperly denied his motion to reduce the verdict. More specifically, the defendant argues that the jury’s award should be reduced by $10,400, which is the amount of compensation Parker received from the estate for her continued employment with the family’s real estate companies. The defendant contends that the jury failed to consider that compensation when determining its award and, therefore, that the court should have reduced the jury’s verdict accordingly. We are not persuaded.

Our standard of review is based on principles of contract law. “It is axiomatic that the sum of damages awarded as compensation in a breach of contract action should place the injured party in the same position as he would have been in had the contract been performed. . . . The injured party, however, is entitled to retain nothing in excess of that sum which compensates him for the loss of his bargain. . . . Guarding against excessive compensation, the law of contract damages limits the injured party to damages based on his actual loss caused by the breach.” (Internal quotation marks omitted.) Original Grasso Construction Co. v. Shepherd, 70 Conn. App. 404, 413 n.3, 799 A.2d 1083, cert. denied, 261 Conn. 932, 806 A.2d 1065 (2002). As we concluded in part III, the plaintiff proved that Parker had an implied contract with Slosberg and that the balance of the Merrill Lynch account should have been credited to Parker when Slosberg died. The jury’s award merely enforced that contract and thereby placed the plaintiff in the position that she would have been in had the contract been performed. In accordance with the contract, therefore, the jury’s award reflects the value of the account at the time of Slosberg’s death. Moreover, the compensation Parker received in exchange for her continued employment has no bearing on the contract at issue or its value. Accordingly, we conclude that the jury properly awarded damages on the basis of the actual loss caused by the breach of contract and that the court properly denied the defendant’s motion to reduce the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       Paul Slosberg, the named defendant, is a party to this action in his capacity as both the executor of the estate of his deceased father, Milton O. Slosberg, and as the trustee for the Milton O. Slosberg Revocable Trust. In this opinion, we refer to Paul Slosberg as a singular defendant and to his father as Slosberg.

       Madolyn Parker, the named plaintiff in this action, died on September 6, 2000. The executrix of Parker’s estate, Robyn L. Monroe, has been substituted in the place of Parker as the acting plaintiff. For our convenience, we will refer to Parker by name and to Monroe as the plaintiff.

       “In Connecticut, in order to recover on a claim arising out of alleged services rendered to a decedent, the plaintiff must prove his case by ‘clear and satisfactory’ proof.” Ubysz v. DiPietro, 185 Conn. 47, 58, 440 A.2d 830 (1981). In this case, the parties do not dispute that this standard was applicable.

       In addition to their business relationship, Parker and Slosberg had a close, personal relationship. Parker loved and trusted Slosberg and they maintained a romantic relationship from as early as 1961. Slosberg also paid Parker’s bills from approximately 1961 through 1997. Further, he bought her flowers, cars, perfume, jewelry and property in Florida and Connecticut, and he took her on vacations. Virtually every Sunday evening for fifteen years, regardless of either person’s location, Slosberg called Parker on the telephone. In 1967, Parker divorced her husband.

       Although Parker also alleged in her complaint that Slosberg promised her one-third of the proceeds from the sale of the apartment complex at which she had worked, the jury found against her on that claim. That portion of the verdict is not at issue here.

       Andersen is Slosberg’s son-in-law and the other executor of Slosberg’s estate.

       That action was possible because Andersen had obtained a general power of attorney signed by Slosberg about one week before Slosberg’s death.

       The defendant set the amount of compensation Parker received at this time on the basis of a conversation he had with Parker following Slosberg’s death.

       The parties agreed at oral argument that the “clear and satisfactory” standard of proof is the same as the “clear and convincing” standard.

       General Statutes § 52-172 provides in relevant part: “In actions by or against the representatives of deceased persons, and by or against the beneficiaries of any life or accident insurance policy insuring a person who is deceased at the time of the trial, the entries, memoranda and declarations of the deceased, relevant to the matter in issue, may be received as evidence. . . .”

       The defendant presented the issue in his brief as follows: “As a matter of law, the cash management account was an uneffectuated gift and, as such, was an issue for the court and not the jury; the trial court erred when it failed to find [that] the cash management account was an uneffectuated gift.” The defendant then cites, however, an abuse of discretion standard of review related to the admissibility of evidence. Nevertheless, the defendant goes on to claim that the court improperly declined to decide the issue of whether the account constituted a gift. In light of that inconsistency, we will address the issue only as the defendant has presented it on appeal.

       It almost goes without saying that consideration is “[t]hat which is bargained-for by the promisor and given in exchange for the promise by the promisee . . . .” (Internal quotation marks omitted.) Osborne v. Locke Steel Chain Co., 153 Conn. 527, 532, 218 A.2d 526 (1966). We also note that “[t]he doctrine of consideration does not require or imply an equal exchange between the contracting parties.” Id. Further, “a contract, express or implied, or some other tacit understanding between persons who are not married to one another which does not rely upon their sexual behavior is enforceable in the courts of this state.” Burns v. Koellmer, 11 Conn. App. 375, 381, 527 A.2d 1210 (1987).

       In other contexts, such as personal injury cases, a court’s decision on whether to reduce the amount of damages awarded by a jury’s verdict rests solely within the court’s discretion. See Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 512-13, 735 A.2d 813 (1999). In reviewing such decisions in personal injury cases and the like, we recognize that “[a] jury’s determination of damages should be set aside only when the verdict is clearly exorbitant and excessive ... or the size of the verdict is so shocking to a sense of justice that it leads us to the conclusion that the jury was influenced by prejudice, partiality, mistake or corruption.” (Internal quotation marks omitted.) Giliiard v. Van-Court Property Management Services, Ltd., 63 Conn. App. 637, 644, 777 A.2d 745 (2001). Moreover, “[ejvidence offered at trial relevant to damages must be reviewed in the light most favorable to sustaining the verdict. . . . Every reasonable presumption in favor of the correctness of the court’s refusal to set aside the verdict as excessive should be indulged . . . and its ruling will not be disturbed unless there is a clear abuse of discretion.” (Internal quotation marks omitted.) Id.
      This, however, is not such a case. The defendant did not base his motion to reduce the verdict on a claim of excessive damages. Rather, he argued his motion from the stance of a contract claim. Similarly, although the defendant refers to the excessiveness standard on appeal briefly, he did not refer to the standard in framing the issue, and he bases his argument solely on contract principles. Thus, as the present case turns on a breach of contract claim, we will review it accordingly.


source: Caselaw Access Project

author: FLYNN, J. SCHALLER, J.

license: Public Domain

text:
    GAIL A. CAHALY v. BENISTAR PROPERTY EXCHANGE TRUST COMPANY, INC., ET AL.
    (AC 21980)
    Schaller, Flynn and Peters, Js.

      Argued April 1 —
    officially released October 29, 2002

      Richard S. Order, with whom was Thomas W. Edgington, for the appellants (named defendant et al.).

      Seth Jacoby, for the appellee (plaintiff).
   Opinion

FLYNN, J.

The defendants Benistar Property Exchange Trust Company (Benistar Property), Benistar, Ltd., and Daniel E. Carpenter appeal from the judgment of the trial court granting the application filed by the plaintiff, Gail A. Cahaly, for a prejudgment remedy. On appeal, the defendants claim that the trial court improperly (1) granted the application because the prejudgment remedy statutes, General Statutes § 52-278a et seq., do not contemplate a plaintiff, in an out-of-state action, attaching a defendant’s Connecticut assets prior to the entry of judgment in the out-of-state case, (2) denied the defendants’ motion for a stay prior to the granting of the application for a prejudgment remedy, (3) granted a prejudgment remedy against Carpenter that is inconsistent with the prior orders of a Massachusetts court, and (4) granted a prejudgment remedy against Benistar, Ltd., and Carpenter without a demonstration by the plaintiff that she will have the ability to pierce the corporate veil. We affirm the judgment of the trial court.

Our review of the record, including the affidavits of the parties, discloses the following. Benistar Property is a wholly owned subsidiary of Benistar, Ltd. Benistar, Ltd., maintains Connecticut offices in Stamford and Simsbury. Carpenter is the chairman and secretary of Benistar Property and the chairman and secretary of Benistar, Ltd. Carpenter is a Connecticut resident. Benistar Property was in the sole business of serving as an intermediary for like-kind exchanges of property pursuant to 26 U.S.C. § 1031 of the Internal Revenue Code. Carpenter’s role in Benistar Property was to manage clients’ proceeds from the sales of properties until further directed by the clients to return the proceeds or to apply the proceeds to the purchase of new property.

In October, 2000, Carpenter opened two accounts, a money market account and a trading account, with PaineWebber, Inc. (PaineWebber), under the name of Benistar Property Exchange. Carpenter instructed PaineWebber that Benistar Property would wire funds into the money market account, some of which would later be transferred to the trading account. In December, 2000, the balance in the trading account fell into a negative balance, and PaineWebber seized the money market funds to pay for the positions it covered in the trading account.

The plaintiff, in an exchange fee agreement dated November 8, 2000, had entered into a written contract with Benistar Property that provided that the plaintiffs funds would be held and invested in either a 3 percent per annum or a 6 percent per annum PaineWebber account. The 3 percent account allowed for liquidation by seventy-two hours written notice, and the 6 percent account allowed for liquidation by thirty days written notice. The plaintiff signed over a check in the amount of $2,412,230 to Benistar Property for investment. Since November 8, 2000, $1,420,000 of the plaintiffs money has been returned to her, leaving a balance of $992,230, plus interest. Benistar Property failed to return these funds to the plaintiff.

In a complaint dated January 21, 2001, the plaintiff filed suit against Benistar Property, Benistar, Ltd., Carpenter, Martin L. Paley and PaineWebber in Massachusetts Superior Court. In addition to the plaintiff, there are several other plaintiffs in the Massachusetts action who claim losses totaling nearly $9 million. One of the Massachusetts defendants, PaineWebber, was not named in the Connecticut prejudgment remedy application. On February 2, 2001, the Massachusetts Superior Court granted the plaintiffs’ motion for prejudgment security. As of the July 18, 2001 hearing date on the Connecticut application for prejudgment remedy, the assets secured by the Massachusetts attachment totaled only about $500,000 in value for the $9 million in claims of all plaintiffs. Additionally, they had attached a Travelers Insurance Company bond in the amount of $5 million. However, Travelers disputes its liability claiming mismanagement on the part of the insured defendants.

On January 30, 2001, the plaintiff filed an application for prejudgment remedy in the Hartford Superior Court, seeking an attachment of $1.1 million against the defendants. The defendants filed a motion to dismiss or to stay the plaintiffs application, arguing that a prejudgment attachment was improper because of the prior pending action doctrine and because there was no suit pending or contemplated in Connecticut. Following the denial of the defendants’ motion to dismiss or stay the proceedings, the court held a probable cause hearing and granted the application for attachment in the amount of $500,000, with a maximum attachment against Carpenter in the amount of $250,000. This appeal followed.

I

The defendants first claim that a plaintiff in an out-of-state action is not allowed to attach a defendant’s Connecticut assets by way of § 52-278a et seq. to secure a judgment that the plaintiff might receive in a sister state. That statute provides in relevant part that if, after a hearing, the court finds that there is probable cause that a judgment, in the amount of the prejudgment remedy sought, “will be rendered in the matter in the plaintiffs favor” which is not adequately secured by insurance, then the remedy sought, or some court ordered modification thereof, “shall be granted . . . .” (Emphasis added.) General Statutes § 52-278d (a).

Specifically, the defendants place much emphasis on the phrase “in the matter” contained in § 52-278d (a). They argue that the use of this phrase mandates that a lawsuit must be pending, or at least contemplated, before a Connecticut court. The defendants first made this argument to the trial court in their motion to dismiss or stay the application for prejudgment remedy as well as at the prejudgment remedy hearing. The plain language of the statute, its legislative history and its construction in relationship to existing legislation, however, do not lend support to the defendants’ contention that “a matter” must refer only to a lawsuit pending or contemplated in a Connecticut court.

When presented with an issue of statutory construction, our review is plenary. “The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) Schiano v. Bliss Exterminating Co., 260 Conn. 21, 34, 792 A.2d 835 (2002). “In applying [the] principles [of statutory construction], we keep in mind that the legislature is presumed to have intended a reasonable, just and constitutional result.” Gelinas v. West Hartford, 65 Conn. App. 265, 276, 782 A.2d 679, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001).

We first set forth the relevant portions of the prejudgment remedy statutes. General Statutes § 52-278b provides in relevant part that “no prejudgment remedy shall be available to a person in any action at law or equity (1) unless he has complied with the provisions of [this statute] or (2) for the garnishment of earnings . . . .” The statutory definition of a prejudgment remedy is contained in § 52-278a (d), which provides that a prejudgment remedy is “any remedy or combination of remedies that enables a person by way of attachment, foreign attachment, garnishment or replevin to deprive the defendant in a civil action of, or affect the use, possession or enjoyment by such defendant of, his property prior to final judgment . . . .”

General Statutes § 52-278d (a) provides in relevant part that a hearing on a prejudgment remedy “shall be limited to a determination of (1) whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought . . . will be rendered in the matter in favor of the plaintiff [and] (2) whether payment of any judgment that may be rendered against the defendant is adequately secured by insurance .... If the court, upon consideration of the facts before it and taking into account any defenses, counterclaims or set-offs, claims of exemption and claims of adequate insurance, finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiffs favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court . . . .”

These prejudgment remedy proceedings “are not involved with the adjudication of the merits of the action brought by the plaintiff or with the progress or result of that adjudication. They are only concerned with whether and to what extent the plaintiff is entitled to have property of the defendant held in the custody of the law pending adjudication of the merits of that action.” E.J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 629-30, 356 A.2d 893 (1975).

Such prejudgment security can be sought either before or after the underlying action is commenced. If such security is sought prior to commencing the underlying action, a claimant must attach the unsigned summons and proposed complaint to the legal process seeking the attachment and then serve it on the party against whom the attachment is sought. See General Statutes § 52-278c (a) (“any person desiring to secure a prejudgment remedy shall attach his proposed unsigned writ, summons and complaint”). While amending General Statutes § 52-278a et seq. in 1993, the legislature recognized that the typical prejudgment remedy application often is made at a preliminary stage of litigation, before a complaint is even filed. See 36 H.R. Proc., Pt. 31,1993 Sess., pp. 11,219-31, remarks of Representative Richard D. Tulisano; see also Rafferty v. Noto Bros. Construction, LLC, 68 Conn. App. 685, 693, 795 A.2d 1274 (2002). Our point in mentioning this is that the defendants assert that a lawsuit must be pending before a Connecticut court for a prejudgment remedy to issue. This assertion, however, is not borne out by our statutory scheme. Our law contemplates that in a typical case, one can seek a prejudgment remedy even before commencing a lawsuit.

Additionally, the defendants also argue that the statutory reference to “the matter” means that an actual lawsuit must, at the very least, be anticipated in Connecticut. By that, they mean that the actual trial on the merits must be anticipated to occur in Connecticut. This very narrow reading, however, overlooks the very purpose behind our prejudgment remedy statute. “The purpose of the prejudgment remedy of attachment is security for the satisfaction of the plaintiffs judgment, should he obtain one.” (Emphasis added; internal quotation marks omitted.) Lewis Truck & Trailer, Inc. v. Jandreau, 11 Conn. App. 168, 170, 526 A.2d 532 (1987). It is “primarily designed to forestall any dissipation of assets by the defendant and to bring [those assets] into the custody of the law to be held as security for the satisfaction of such judgment as the plaintiff may recover . . . .” (Emphasis added.) E.J. Hansen Elevator, Inc. v. Stoll, supra, 167 Conn. 629. “The adjudication made by the court on [an] application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiffs cause of action. It is independent of and collateral thereto . . . .” Id., 628-29.

In the present case, the plaintiff has a matter pending against the defendants in Massachusetts, which can be said to be the underlying claim in which she first hopes to prevail and then to file as a foreign judgment. Both the Massachusetts court and our trial court have found probable cause that she will be successful on the merits of her claim. The plaintiffs in the Massachusetts action have already been able to attach approximately $500,000 in assets, despite nearly $9 million in alleged losses. Because of this, the plaintiff has sought to attach the Connecticut assets of the defendants to protect them from dissipation before the final adjudication of her claim.

Further, if the plaintiff is successful in the Massachusetts action, she will register that judgment in Connecticut pursuant to the Uniform Enforcement of Foreign Judgments Act, General Statutes § 52-605, which contains, in part, the procedure for filing a foreign judgment in Connecticut. Subsection (b) provides in relevant part that a “foreign judgment shall be treated in the same manner as a judgment of a court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating or staying as a judgment of a court of this state and may be enforced or satisfied in like manner.” In effect, the plaintiffs Massachusetts judgment will become a Connecticut judgment, although an actual lawsuit may not be filed and litigated in Connecticut. See General Statutes § 52-605 (b).

In construing a statute, we must examine its provisions in relationship with other existing legislation, keeping in mind that the legislature, presumably, did not intend a bizarre result. See Rafferty v. Noto Bros. Construction, LLC, supra, 68 Conn. App. 690. In this instance, if we examine the provisions of our prejudgment remedy statutes, § 52-278a et seq., in relationship to the Uniform Enforcement of Foreign Judgments Act, General Statutes § 52-604 et seq., we would reach a bizarre result by applying the defendants’ narrow reading of our prejudgment remedy statute. If the legislature had intended to exempt a plaintiff in an out-of-state action from seeking to secure a Connecticut defendant’s assets in anticipation of registering her foreign judgment, once obtained, what would be the point of registering the judgment if, before the levy on that judgment, the defendant was given the opportunity to dissipate all of its Connecticut assets that might otherwise have satisfied it? If a prejudgment attachment were not allowed, where probable cause was found and a judgment was anticipated, what would be the point of giving full faith and credit to an out-of-state judgment under the Uniform Enforcement of Foreign Judgments Act? If assets that might have satisfied that judgment are dissipated, it would be too late to make any effective use of that judgment.

To read into the prejudgment remedy statute, as the defendants would have us do, a prerequisite that the plaintiff must file a lawsuit to be tried on its merits in Connecticut, rather than in anticipation of registering a foreign judgment and enforcing its hen in Connecticut, appears to us to narrow the statute in a manner inconsistent with existing legislation and the intent of the legislature. “We are bound to interpret legislative intent by referring to what the legislative text contains, not by what it might have contained. . . . We will not read into clearly expressed legislation provisions which do not find expression in its words.” (Internal quotation marks omitted.) Tower v. Miller Johnson, Inc., 67 Conn. App. 71, 78, 787 A.2d 26 (2001). The purpose of the prejudgment remedy statute is to secure the defendants’ assets, forestalling the dissipation thereof, while awaiting a final judgment. We will not require the plaintiff to meet prerequisites that go beyond those specified by the statute.

Accordingly, we are not persuaded by the defendants’ argument that § 52-278a et seq. prohibit a plaintiff in an out-of-state matter from securing the Connecticut assets of the defendants when that plaintiff anticipates filing her out-of-state judgment in Connecticut. If, as the defendants claim, the statute were to be interpreted to require the plaintiff to wait until judgment is rendered in Massachusetts before seeking a prejudgment remedy in Connecticut, the defendants would have the ability to dispose of their Connecticut assets in anticipation of an out-of-state judgment being filed in Connecticut. Such a reading of the statute completely contravenes its clear purpose of bringing the defendants’ assets into the custody of the law as security for the satisfaction of a potential judgment.

We conclude that the court correctly held that our prejudgment remedy statute does not contain a blanket prohibition that bars an out-of-state plaintiff from pursuing a prejudgment remedy of attachment for the purpose of securing assets held in Connecticut while awaiting a final judgment in a sister state.

II

The defendants next claim that the court abused its discretion by not granting the defendants’ motion for a stay prior to the granting of the application for a prejudgment remedy, invoking, inter alia, the prior pending action doctrine.

“A hearing on an application for prejudgment remedy is not a full-scale trial on the merits of the [plaintiffs] claims . . . but rather concerns only whether and to what extent the plaintiff is entitled to have property of a defendant held in custody of the law pending final adjudication of the merits of the action.” (Internal quotation marks omitted.) Soltesz v. Miller, 56 Conn. App. 114, 116, 741 A.2d 335 (1999). “Appellate review of atrial court’s broad discretion to deny or grant a prejudgment remedy is limited to a determination of whether the trial court’s rulings constituted clear error.” State v. Ham, 253 Conn. 566, 568, 755 A.2d 176 (2000). “It is the trial court that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim. We decide only whether the determination of the trial court constituted clear error.” Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., 218 Conn. 162, 166, 588 A.2d 185 (1991).

“The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false.” (Emphasis in original; citation omitted; internal quotation marks omitted.) Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984).

We note, however, that insofar as the defendants invoke the prior pending action doctrine as grounds for a stay, application of that legal doctrine to a given set of facts set out in a pleading involves our plenary review. O’Halloran v. Charlotte Hungerford Hospital, 63 Conn. App. 460, 463, 776 A.2d 514 (2001).

The defendants claim that the trial court improperly denied their motion to dismiss or stay the proceedings prior to the hearing on the application for prejudgment remedy. They first argue that the application was duplicative under the prior pending action doctrine.

“The prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious. This is a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction. . . . We must examine the pleadings to ascertain whether the actions are virtually alike . . . and whether they are brought to adjudicate the same underlying rights.” (Emphasis in original; internal quotation marks omitted.) Sandvig v. A. Dubreuil & Sons, Inc., 68 Conn. App. 79, 87, 789 A.2d 1012, cert. granted on other grounds, 260 Conn. 931, 799 A.2d 296 (2002).

In this case, the plaintiffs application for prejudgment remedy and the plaintiffs Massachusetts action, obviously, are not brought in the same jurisdiction. The actions are not virtually alike. The Massachusetts complaint brought by the plaintiff was brought against five defendants: Benistar Property, Benistar, Ltd., Paley, Carpenter and PaineWebber. It was brought in eight counts: breach of an exchange agreement against Benistar Property and Benistar, Ltd.; breach of fiduciary duty against Benistar Property, Benistar, Ltd., Paley and Carpenter; fraud against Benistar Property, Benistar, Ltd., Paley and Carpenter; accounting against Benistar Property, Benistar, Ltd., Paley, Carpenter and PaineWebber; unfair trade practices, pursuant to Mass. General Laws c. 93A, § 11, against Benistar Property, Benistar, Ltd., Paley and Carpenter; conversion against Benistar Property, Benistar, Ltd., Paley and Carpenter; conversion against PaineWebber; and trustee process and reach against PaineWebber pursuant to Mass. General Laws c. 246, § 1, and Mass. General Laws c. 214, § 3 (6). The Massachusetts complaint seeks several ex parte orders and attachments as well as a judgment for approximately $1 million plus consequential damages, interest, fees and expenses.

The unsigned Connecticut complaint, attached to the prejudgment remedy application, contained only one count: collection, enforcement and securing of a debt. The plaintiff requested damages that are consistent with the orders of the Massachusetts court, costs, interest, fees and “such other and farther relief as to equity may pertain.” In her unsigned complaint, the plaintiff explained that she hoped to secure a judgment in her Massachusetts action and that the defendants’ debt was unsecured and potentially uninsured. In her prejudgment remedy application, the plaintiff stated that there was probable cause that she would succeed in her Massachusetts suit and that she was seeking to secure $1.1 million of the defendants’ assets to secure their debt.

The plaintiff filed her prejudgment remedy application with the goal of attaching the Connecticut assets of the defendants to protect those assets from dissipation before the final adjudication of her Massachusetts action; her ultimate goal is to succeed in the Massachusetts litigation and to register that judgment here. She admits that she has no intention of actually litigating her claim in Connecticut. She seeks to bring Connecticut assets not reached by the Massachusetts prejudgment procedures into the custody of the law to be held as security for the satisfaction of her potential Massachusetts judgment, which will, in effect, become a Connecticut judgment once registered here.

For all of these reasons, we conclude that the Massachusetts action and the Connecticut action, although based on the same underlying facts, are not virtually alike; the one is in aid of the other. The plaintiff seeks actually to litigate her claims in the Massachusetts action, where she merely seeks to secure the defendants’ Connecticut assets by way of her Connecticut prejudgment remedy application. Accordingly, the prior pending action doctrine is inapplicable to this case.

Ill

The defendants next claim that the court abused its discretion by granting a prejudgment remedy against Carpenter that is inconsistent with the prior orders of the Massachusetts court. They argue that the court committed clear error by granting a prejudgment remedy of attachment against Carpenter when the Massachusetts court did not do so. We do not agree.

In assessing the appropriateness and scope of a prejudgment remedy, it is the role of the court to evaluate the arguments and evidence produced by both parties in order to determine whether sufficient probable cause exists to sustain the plaintiffs claim. See Greenberg, Rhein & Margolis, Inc. v. Norris-Faye Horton Enterprises, Inc., supra, 218 Conn. 166; East Lyme v. Wood, 54 Conn. App. 394, 396, 735 A.2d 843 (1999).

In this case, after a hearing, the court specifically found that there was probable cause to believe that the plaintiffs action would be successful against all three defendants. The court clearly weighed the evidence and evaluated the arguments, and we presume no error in its performance of that function. See Solomon v. Aberman, 196 Conn. 359, 376-77, 493 A.2d 193 (1985). The trial court was not bound by the ruling of the Massachusetts court, as this was only one piece of evidence for the court’s consideration. At the prejudgment remedy hearing, the court explained that there could be many reasons why the Massachusetts court may not have issued an attachment against Carpenter, and the court stated that it would not merely assume that the reason was based on the merits of the plaintiffs’ claim. The court also noted that one reason for denying a prejudgment remedy simply could have been the lack of attachable assets.

A trial court does not abuse its discretion simply by weighing one piece of evidence less heavily than one of the parties would like. We conclude that the court did not abuse its discretion by granting a prejudgment remedy against Carpenter that was inconsistent with the prior orders of the Massachusetts court, those orders being only one piece of evidence on which the court relied in making its finding of probable cause.

rv

The final claim of the defendants is that the trial court abused its discretion by granting a prejudgment remedy against Benistar, Ltd., and Carpenter without a demonstration by the plaintiff that she will have the ability to pierce the corporate veil. Specifically, the defendants argue that the plaintiff produced no evidence that Benistar Property and Benistar, Ltd., intermingled funds or confused their corporate identities to the point where third parties did not know with which entity they were dealing; the plaintiffs complaint simply treats Benistar Property and Benistar, Ltd., as a single entity when, in fact, they are not a single entity.

Keeping in mind our limited standard of review, we look to the defendants’ claim that the court committed clear error in finding probable cause to pierce the corporate veil.

The Supreme Judicial Court of Massachusetts has stated that the corporate veil should be pierced only “(a) when there is active and direct participation by the representatives of one corporation, apparently exercising some form of pervasive control in the activities of another, and there is some fraudulent or injurious consequence of the intercorporate relationship, or (b) when there is a confused intermingling of activity of two or more corporations engaged in a common enterprise with substantial disregard of the separate nature of the corporate entities, or serious ambiguity about the manner and capacity in which the various corporations and their respective representatives are acting.” My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 619, 233 N.E.2d 748 (1968). The court also addressed the personal liability of a shareholder or other person in control of a corporation, stating that a “person controlling a corporation and directing, or participating actively in . . . its operations may become subject to civil or criminal liability on principles of agency or of causation.” (Citation omitted.) Id., 618.

Our Supreme Court has held that we may “disregard the fiction of a separate legal entity to pierce the shield of immunity afforded by the corporate structure in a situation in which the corporate entity has been so controlled and dominated that justice requires liability to be imposed on the real actor.” (Internal quotation marks omitted.) Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 552, 447 A.2d 406 (1982). Additionally, the court has “affirmed judgments disregarding the corporate entity and imposing individual stockholder liability when a corporation is a mere instrumentality or agent of another corporation or individual owning all or most of its stock.” Id., 553.

Two theories for piercing the corporate veil are employed in Connecticut, the identity rule and the instrumentality rule. Id., 553-54. “The identity rule primarily applies to prevent injustice in the situation where two corporate entities are, in reality, controlled as one enterprise because of the existence of common owners, officers, directors or shareholders and because of the lack of observance of corporate formalities between the two entities.” Id., 560. The court in Angelo Tomasso, Inc., explained that this “identity rule” is what was employed by the Massachusetts court in My Bread Baking Co. v. Cumberland Farms, Inc., supra, 353 Mass. 614, the seminal case in Massachusetts. See Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., supra, 187 Conn. 560 n.10.

“The identity rule has been stated as follows: If [a] plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise.” (Internal quotation marks omitted.) Id., 554.

The evidence presented to the trial court at the hearing on the prejudgment remedy application included the following. Benistar Property is a wholly owned subsidiary of Benistar, Ltd. The plaintiff was directed to the Benistar.com web site, which portrays Benistar, Ltd., as part of Benistar Property, the largest 419 trust plan administrator in the country. The web site continually uses the representation that “we,” to wit, Benistar Property and Benistar, Ltd., do various things. Benistar, Ltd.’s bond, issued by Travelers Property Casualty, also covered Benistar Property. Moreover, various facsimiles were submitted as evidence. These facsimiles were sent from Benistar Property to Benistar, Ltd., directing that checks be cut or money be wired related to the plaintiffs account. Additionally, evidence of Carpenter’s involvement included the following. Carpenter is the chairman and secretary of both Benistar Property and Benistar, Ltd. Carpenter’s role in Benistar Property was to manage clients’ money. Carpenter, himself, opened the two PaineWebber accounts and instructed PaineWebber that he would be making transfers between these accounts. Carpenter, himself, did make various transfers between these accounts.

It is the function of the trial court to weigh the evidence. In this case, after reviewing the evidence before it, the court found that the plaintiff had met her burden of proof that there was probable cause to pierce the corporate veil. Having considered the arguments and briefs of counsel, together with the transcript and the record, we find that the conclusions of the court were reasonable, well within its discretion and not clearly erroneous.

The judgment is affirmed.

In this opinion PETERS, J., concurred.

SCHALLER, J.

concurring. Although I agree with the majority that the order of the trial court granting the prejudgment remedy should be affirmed, I write separately to clarify what I believe is the principal issue on which our analysis should focus in resolving this appeal.

The defendants assert, as their principal claim, that the trial court improperly determined that the plaintiff was entitled to a prejudgment remedy in Connecticut when the only relief she seeks in Connecticut is the prospective future enforcement of an out-of-state judgment not yet obtained. That claim is restated by the majority as a claim that “a plaintiff in an out-of-state action is not allowed to attach a defendant’s Connecticut assets by way of General Statutes § 52-278a et seq. to secure a judgment that the plaintiff might receive in a sister state.” My concern is that the restatement of the claim and the analysis that follows may not reflect clearly what we decide here today.

In that regard, it is important to note that the issue is not whether Connecticut will allow a prejudgment remedy to secure an out-of-state judgment. The broad issue, rather, is whether a prejudgment remedy can be granted to secure a Connecticut judgment that is based on a foreign judgment and that will come into existence only after the out-of-state judgment is obtained. The more precise issue is whether the prejudgment remedy statutes are satisfied by attaching to the application an unsigned writ of summons and complaint that constitute a prospective action in Connecticut that will be brought to enforce a foreign judgment, prior to the foreign judgment’s having been obtained.

The majority concludes, and I agree, that attaching the unsigned writ of summons and complaint to the prejudgment remedy application in Connecticut does satisfy the prejudgment remedy statutes. The prejudgment remedy statutes do not contain any provision that prohibits the bringing of the Connecticut prejudgment remedy application on the basis of a prospective action to enforce the judgment prior to the obtaining of the foreign judgment. It is unquestionable that the Connecticut action ultimately will serve to enforce the foreign judgment and need not be pending at the time the prejudgment remedy is sought. General Statutes § 52-278c (a). Accordingly, the prejudgment remedy statutes are properly invoked in connection with, not an out-of-state judgment, but a prospective Connecticut judgment.

Although the majority appears to assume that a filing of the Massachusetts judgment pursuant to the Uniform Enforcement of Foreign Judgments Act, General Statutes § 52-604 et seq., ultimately will be used to obtain the Connecticut judgment, the plaintiff in this case has attached to her prejudgment remedy application a complaint that constitutes not a filing of a foreign judgment, but a separate Connecticut action based on the foreign judgment. The remedy of an action on the judgment, of course, survives the Uniform Enforcement of Foreign Judgments Act; see General Statutes § 52-607; and so it is a proper cause of action, despite the more expeditious filing procedure provided by General Statutes § 52-605. Because the plaintiff has provided the unsigned writ of summons and complaint for a separate Connecticut action, some of the problems addressed by the majority do not exist.

Although the trial court did virtually no fact-finding in this case, it did find probable cause that the plaintiff will prevail in Massachusetts, and it appears to be undisputed that the plaintiff eventually will seek to obtain a Connecticut judgment, by one means or another, after obtaining the Massachusetts judgment. Although the plaintiff now represents that she will pursue her unsigned complaint in an action on the foreign judgment, she eventually may determine that filing pursuant to the Uniform Enforcement of Foreign Judgments Act is the most suitable course to follow. All the requirements, therefore, are met for the issuance of the prejudgment remedy. I believe that many of the arguments raised to support the result by the majority are unnecessary and need not be addressed here. I agree with the majority’s resolution of the remaining claims on appeal.

For those and other reasons, I respectfully concur.

       The plaintiff withdrew her prejudgment remedy application as to defendants Martin L. Paley and Molly Carpenter. We therefore refer to Benistar Property, Benistar, Ltd., and Daniel E. Carpenter as the defendants.

       The court’s memorandum of decision does not specify its findings.

         “Section 1031 is an exception to the general rule requiring recognition of gain or loss upon the sale or exchange of property. Under 26 U.S.C. § 1031 (a), if property held for productive use is exchanged for like-kind property, the taxable gain is not realized until the acquired property is disposed of.” American International Enterprises, Inc. v. Federal Deposit Ins. Corp., 3 F.3d 1263, 1265 n.3 (9th Cir. 1993).

       The plaintiff had also agreed to pay Benistar Property a fee of $15,000. This fee has not been considered when computing the plaintiffs balance.

       In their brief, the defendants claim that “[t]he present case is a perfect example of a situation in which the court should have exercised its discretion and granted a stay of its proceedings in favor of a prior action in a foreign jurisdiction.”

       The defendants also argue that the application for prejudgment remedy was premature under the Uniform Enforcement of Foreign Judgments Act, General Statutes § 52-604 et seq. The defendants, however, make nothing more than a statement to that effect. “Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citations omitted; internal quotation marks omitted.) Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351, 735 A.2d 357, cert. denied, 251 Conn. 916, 740 A.2d 864 (1999). Accordingly, we deem the issue abandoned and decline the opportunity to review it.

       The plaintiff refers to Benistar Property and Benistar, Ltd., jointly as Benistar.


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. ROBERTO ARCENIEGA
    (AC 21144)
    Schaller, Mihalakos and Peters, Js.

      Argued May 28 —
    officially released October 29, 2002

      Matthew Costello, for the appellant (defendant).

      Sarah E. Hanna, certified legal intern, with whom were James E. Thomas, state’s attorney, Rita M. Shair, senior assistant state’s attorney, and, on the brief, Victor Carlucci, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Roberto Arceniega, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to possess narcotics in violation of General Statutes §§ 53U-48 and 2 la-279 (a), conspiracy to sell narcotics in violation of General Statues §§ 53a-48 and 21a-278 (b)* and conspiracy to sell a controlled substance within 1500 feet of a public school in violation of General Statutes §§ 53a-48 and 21a-278a (b). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal, which motion was based on a claim of insufficiency of the evidence, (2) denied his request to instruct the jury on reasonable doubt (3) instructed the jury and (4) granted the state’s motion to consolidate four cases against him for trial. We affirm the judgment of conviction as to the merits of the defendant’s claims, but reverse the judgment as to the sentence that was imposed and remand the case for resentencing.

The jury reasonably could have found the following facts. In early 1998, detectives with the statewide narcotics task force received from an anonymous informant the beeper number of an individual who the informant said was selling heroin in Hartford. The individual later was identified as Francisco Javier. By calling Javier’s beeper number, undercover detectives from the task force and the Hartford police department arranged to meet Javier and to purchase heroin from him on four occasions. One of the undercover operations occurred on March 12, 1998. On that date, state police Detective David Diaz met Javier in the Hartford Symphony parking lot on Farmington Avenue. Javier agreed to sell Diaz 100 bags of heroin for $400. Javier informed Diaz that they would have to take a ride to meet the defendant, Javier’s boss. Javier and Diaz then traveled to the La Caribeña grocery store at 122 Hillside Avenue. The grocery store is within 1500 feet of the Cornelius A. Moylan school.

After arriving at the grocery store, Diaz and Javier waited for Javier’s boss to arrive. Eventually, the defendant arrived driving a U-Haul truck. While Diaz watched from the sidewalk, Javier and the defendant entered the grocery store together. Through the window of the store, Diaz watched the defendant hand Javier a clear plastic bag. After exiting the store, Javier gave Diaz the plastic bag obtained from the defendant, and Diaz gave Javier $400. Diaz then saw Javier hand the defendant the $400, after which Javier and the defendant entered the U-Haul truck together and drove away. After Diaz left the area, he met an undercover detective at a prearranged location where the detective performed a drug test on the contents of the plastic bag. The contents of the plastic bag tested positive as heroin. On April 21, 1998, the police arranged another drug purchase from Javier. Javier was arrested and gave a statement that led to the defendant’s arrest.

On March 20, 2000, the state charged the defendant, by substitute information, as follows: Count one, conspiracy to possess heroin in violation of §§ 53a-48 and 21a-279 (a); count two, conspiracy to sell heroin in violation of §§ 53a-48 and 21a-278 (b); and count three, conspiracy to sell heroin within 1500 feet of a public school in violation of §§ 53a-48 and 21a-278a (b).

In addition to the charges arising from the March 12, 1998 sale, the defendant was charged in three other informations with additional counts of conspiracy to possess narcotics, conspiracy to sell narcotics and conspiracy to sell a controlled substance within 1500 feet of a school. The additional informations related to three other occasions when the defendant allegedly was involved in selling heroin to an undercover officer. Prior to trial, the state filed a motion to consolidate the four informations pursuant to General Statutes § 54-57 and Practice Book § 41-19. The court granted the motion to consolidate, and the charges contained in the four informations were tried together.

The jury convicted the defendant on the three charges arising from the March 12, 1998 incident and acquitted him on all charges contained in the other three informations. The defendant filed a motion for a judgment of acquittal, which the court denied. The court sentenced the defendant to a term of five years imprisonment on count one; six years on count two, five years of which are mandatory; and three years, mandatory, on count three. The court also ordered that the sentences on counts two and three run consecutively to one another, but concurrently with the sentence on count one, for a total effective sentence of nine years. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal, which motion was based on a claim of insufficiency of the evidence. We disagree.

The following additional facts are relevant to the defendant’s claim. At trial, Diaz testified that during the transaction at the La Caribeña grocery store, he saw the defendant hand Javier the plastic bag containing the heroin. Javier, however, testified that he retrieved the heroin himself after the defendant told him that the heroin was in the U-Haul truck. The defendant argues that this inconsistency should have cast doubt on the credibility of Javier’s entire testimony.

“The standard of appellate review of a denial of a motion for a judgment of acquittal [challenging the sufficiency of the evidence] has been settled by judicial decision. . . . The issue to be determined is whether the jury could have reasonably concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt. . . . The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury’s verdict.” (Citations omitted; internal quotation marks omitted.) State v. Williams, 59 Conn. App. 771, 776-77, 758 A.2d 400 (2000), rev’d on other grounds, 258 Conn. 1, 778 A.2d 186 (2001).

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” (Internal quotation marks omitted.) State v. Davis, 68 Conn. App. 794, 798, 793 A.2d 1151, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002). “It is uniquely the province of the trier of fact, in this case the jury, to determine the import of the evidence by gauging the credibility of the witnesses. . . . The fact that certain testimony is uncorroborated, or even contradicted, does not make it insufficient to support a verdict if the testimony is believed by the trier.” (Citations omitted; internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 332-33, 662 A.2d 1199 (1995).

The defendant would have us conclude that there was insufficient evidence to support a finding of guilt beyond a reasonable doubt because the conflicting testimony adduced at trial as to how he came to possess the heroin showed that Javier’s testimony lacked credibility. The credibility of Javier and the other witnesses, however, was a question solely for the jury. Therefore, the defendant’s specific challenge to the sufficiency of the evidence must fail as long as the jury reasonably could have concluded as it did. Construing the evidence in the light most favorable to sustaining the verdict, as we must, we conclude that the jury reasonably could have concluded that the cumulative force of the evidence established guilt of the crimes with which the defendant was charged beyond a reasonable doubt. Accordingly, we cannot conclude that the court improperly denied the defendant’s motion for a judgment of acquittal.

II

The defendant next claims that the court improperly denied his request to instruct the jury on reasonable doubt, thereby denying him his right to due process. Specifically, the defendant argues that by substituting its own instruction for the requested instruction, the court denied the jury the opportunity to consider a more expansive explanation of reasonable doubt, which resulted in prejudice. We are not persuaded.

The following facts are necessary for the resolution of the defendant’s claim. Prior to trial, the defendant by written motion requested that the court charge the jury on reasonable doubt according to his proposed instructions. The court instructed the jury on reasonable doubt, but did not instruct the jury exactly as the defendant requested and instead issued a different instruction on reasonable doubt. Following the court’s instructions to the jury, the defendant objected to the court’s refusal to instruct as requested.

We first set out the standard of review pertinent to the defendant’s claim. “[A] request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given. ... A refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Internal quotation marks omitted.) State v. Whipper, 258 Conn. 229, 283, 780 A.2d 53 (2001). A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the state’s burden to prove the elements of the crimes charged beyond a reasonable doubt and affords them proper guidance for their determination of whether the state met its burden. Id. “The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the juxy so that no injustice will result.” (Internal quotation marks omitted.) Id.

Upon careful review of the court’s charge, we conclude that the court gave the requested charge in substance. Moreover, we conclude that the charge given was correct in law and sufficient to guide the jury in its consideration of the issues raised in this case. Indeed, this court and our Supreme Court have rejected challenges to essentially the same language as that challenged by the defendant. See State v. Rodriguez, 63 Conn. App. 529, 532, 777 A.2d 704, cert. denied, 256 Conn. 936, 776 A.2d 1151 (2001), citing State v. Montgomery, 254 Conn. 694, 729-31, 759 A.2d 995 (2000). In sum, we conclude that the court’s instruction provided the jury with a clear understanding of reasonable doubt and afforded it proper guidance in deciding whether the state had proved the elements of the crimes charged beyond a reasonable doubt. See State v. Whipper, supra, 258 Conn. 285-86.

III

The defendant next claims that the court improperly instructed the jury. Specifically, the defendant argues that the court diluted the state’s burden by reiterating the elements of the conspiracy charges for each of the three separate underlying offenses without restating the law as to the presumption of innocence, the burden of proof and reasonable doubt, thereby prejudicing the defendant. We disagree.

The following additional facts are relevant to our disposition of the defendant’s claim. The defendant was charged with eleven counts of conspiracy under three separate underlying offenses. The court charged the jury on conspiracy three times, once for each underlying offense. The defendant objected, arguing that “in terms of totality and the balance of the charge, we have got a tremendous amount of weight on conspiracy.” On appeal, the defendant argues that those instructions diluted the state’s burden of proof and denied him his right to due process of law.

“To determine whether the court’s instructions were improper, we review the entire charge to determine if, taken as a whole, the charge adequately guided the jury to a correct verdict. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Citations omitted; internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 170-71, 665 A.2d 63 (1995).

As stated in part II, the court instructed the jury on the presumption of innocence and the state’s burden to prove the elements of the crimes charged beyond a reasonable doubt. The defendant cites no law in support of the argument that a court must restate its charge on the presumption of innocence and the state’s burden of proof with the instructions on the elements of each separate crime. Furthermore, as the state notes correctly, the court, during the charge on the various crimes of conspiracy, made numerous references to the state’s burden to prove the elements of the crimes charged beyond a reasonable doubt. We cannot conclude that the court’s instructions to the jury diluted the state’s burden.

Viewing the charge in its entirety, we conclude that the charge was not improper; it is not reasonably possible that the jury was misled by the instructions. Accordingly, the court’s instruction did not deprive the defendant of his right to due process.

IV

The defendant claims that the court improperly granted the state’s motion to consolidate the four separate cases against him for trial. Specifically, the defendant argues that the consolidation prejudiced him because the four cases were factually too similar to be easily distinguished by the jury. We are not persuaded.

We recently addressed this issue in State v. David P., 70 Conn. App. 462, 800 A.2d 541 (2002). “In Connecticut, there is a presumption in favor of consolidation of appropriate cases. . . . The grant or denial of a motion for severance rests in the sound discretion of the trial judge. . . . The trial court has discretion to determine whether separate cases involving the same defendant should be consolidated . . . and the exercise of that discretion may not be disturbed on appeal unless it has been manifestly abused. ... To demonstrate that the trial court abused its discretion, the defendant bears the heavy burden of convincing this court that the joinder resulted in substantial injustice. . . . Whether a joint trial will be substantially prejudicial to the defendant’s rights means something more than that it will be less advantageous to [him]. . . .

“Our Supreme Court has set forth a multifaceted approach for our courts to apply when considering whether to consolidate multiple cases against the same defendant. [Severance may be necessary to prevent undue prejudice resulting from the consolidation of two or more charges for trial when: (1) the cases do not involve discrete, easily distinguishable factual scenarios; (2) one or more of the counts alleges brutal or shocking conduct by the accused; or (3) the trial is one of long duration or very complex. State v. Chance, [236 Conn. 31, 42, 671 A.2d 323 (1996)]; see also State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987) .... If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred from improper joinder.” (Citations omitted; internal quotation marks omitted.) State v. David P., supra, 70 Conn. App. 467-68.

Applying those factors, we conclude that the court did not prejudice the defendant by consolidating the cases against him. First, we conclude that the facts were discrete and easily distinguishable. See State v. Banks, 59 Conn. App. 112, 123, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000). Although each of the four transactions giving rise to the conspiracy charges involved similar factual scenarios, including the same participants, the transactions took place in different places at different times. Moreover, the evidence on each of the charges was presented in an orderly fashion.

A brief review of the remaining factors further supports the court’s proper exercise of its discretion in consolidating the cases. With respect to the length and complexity of the trial, we note that the entire trial lasted eight days with only thirteen witnesses. Cf. State v. Boscarino, supra, 204 Conn. 723-24 (duration, complexity of trial enhanced likelihood jury would weigh evidence against defendant cumulatively where trial lasted ten weeks, with fifty-five witnesses, sixty-six exhibits). Further, none of the various crimes of conspiracy with which the defendant was charged were of a brutal or shocking nature, nor did the defendant argue that they should be so characterized. See, e.g., State v. Rivera, 52 Conn. App. 503, 512, 728 A.2d 518 (no allegation of brutal, shocking conduct on part of defendant in alleged involvement in four armed robberies), cert. denied, 249 Conn. 906, 733 A.2d 226 (1999).

In sum, having considered all of the factors set forth in State v. Chance, supra, 236 Conn. 42, we conclude that the defendant was not prejudiced by the consolidation of the four cases for trial. Accordingly, we conclude that the court properly exercised its discretion in consolidating the four cases.

V

Finally, the parties agreed at oral argument before this court that the imposition of three sentences for the three conspiracy convictions violates the prohibition against double jeopardy. That issue was not raised at trial, nor was it included in the parties’ briefs submitted to this court. We nevertheless address the matter because of the parties’ agreement and because “double jeopardy claims arising in the context of a single trial . . . raised for the first time on appeal . . . are reviewable . . . .” State v. Chicano, 216 Conn. 699, 705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); see also State v. Liebowitz, 65 Conn. App. 788, 791 n.1, 783 A.2d 1108, cert. denied, 259 Conn. 901, 789 A.2d 992 (2001).

“The double jeopardy clause of the fifth amendment to the United States constitution provides: ‘[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. . . . Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of article first, § 9, include protection against double jeopardy. . . . We have recognized that the Double Jeopardy Clause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. . . . These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense.” (Citations omitted; internal quotation marks omitted.) State v. Miranda, 260 Conn. 93, 118-19, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002).

“Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute .... For such a violation, only the single penalty prescribed by the statute can be imposed.” (Internal quotation marks omitted.) State v. Ortiz, 252 Conn. 533, 559, 747 A.2d 487 (2000). The appropriate remedy under the circumstances is to remand the case to the trial court with direction to merge the conviction on the three conspiracy offenses and to vacate the sentences for two of them. See State v. Howard, 221 Conn. 447, 463, 604 A.2d 1294 (1992); State v. Vasquez, 66 Conn. App. 118, 127, 783 A.2d 1183, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001).

The judgment is reversed only as to the sentence and the case is remanded with direction to merge the convictions on each of the three offenses of which the defendant was convicted and to resentence the defendant on one count of conspiracy. In all other respects the judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       General Statutes § 21a-279 (a) provides in relevant part: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned . . . or . . . fined ... or be both fined and imprisoned

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who . . . possesses with the intent to sell or dispense ... to another person any narcotic substance . . . shall be imprisoned not less than five years nor more than twenty years . . . .”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section . . . 21a-278 by . . . possessing with the intent to sell or dispense . . . any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278 .. . .”

       Javier also is known by a number of aliases, including Morenito, Brito and Aníbal Escobar.

       General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”

       Practice Book § 41-19 provides: “The judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.”

       The defendant’s requested charge states: “The state has the burden of proving guilt beyond a reasonable doubt. The law presumes a defendant to be innocent of a crime. Thus, a defendant, although accused, begins the trial with a ‘clean slate’ — with no evidence against him. So, the presumption of innocence alone is sufficient to acquit a defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of the evidence in this case.
      “This means that the state must prove every element of each crime charged. It is not enough for the state to prove only certain of those elements because if proof of even one element is lacking, you must find the accused not guilty. What the law does require is that after hearing all the evidence, if there is something in that evidence or lack of evidence which leaves in the minds of the jury, as reasonable men and women, reasonable doubt about the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Reasonable doubt is that, land of doubt which malees a reasonable person hesitant to act. Proof beyond a reasonable doubt is proof which precludes every reasonable hypothesis except guilt, is consistent with guilt and is inconsistent with any other reasonable conclusion. If you can, in reason, reconcile all of the facts proved with any reasonable theory consistent with the innocence of the accused, then you cannot find him guilty. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt.
      “There are few things in this world that we know with absolute certainty, and, in criminal cases, the law does not require proof that overcomes every possible doubt. I wish to impress upon each of you, however, that before you may reach any verdict of guilty, each of you must reach a subjective state of near certainty of the defendant’s guilt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you are not firmly convinced that he is guilty, you must give him the benefit of the doubt and find him not guilty.”

       The court instructed the jury on reasonable doubt in relevant part as follows: “In this case, as in all criminal prosecutions, the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt. This presumption of innocence was with this defendant when he was first presented for trial in this case.

        “And it continues with him throughout this trial, unless and until such time as all of the evidence produced here in the orderly conduct of the trial, considered in light of these instructions of law and deliberated upon by you in the jury room satisfies you beyond a reasonable doubt that he is guilty.
      “The burden to prove the defendant guilty of a crime for which he is charged is upon the state. The defendant does not have to prove his innocence. This means that the state must prove beyond a reasonable doubt each and every element necessary to constitute the crimes charged. Whether the burden of proof resting upon the state is sustained depends not on the number of witnesses nor the quantity of the testimony, but on the nature and the quality of the testimony. . . .
      “The meaning of reasonable doubt can be arrived at by emphasizing the word ‘reasonable.’ It is not a surmise, a guess or mere conjecture. It is not a doubt suggested by counsel which is not warranted by the evidence. It is such a doubt as in the serious affairs that concern you, you would heed; that is, such a doubt that would cause reasonable men and women to hesitate to act upon it in matters of importance. It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It’s a doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence. Proof beyond a reasonable doubt does not mean proof beyond all doubt.
      “The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that after hearing all of the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors, as reasonable men and women, reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of the doubt and be acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.”

       The defendant also argues that the court improperly criticized his instruction when it stated that reasonable doubt “is not a doubt suggested by counsel which is not warranted by the evidence.” The defendant asserts that this criticism was directed toward his argument that the evidence did not support a finding of guilt. That argument is without merit. First, to the extent that the defendant argues that the language in question was directed specifically at either counsel, we disagree. Further, we note that our Supreme Court unequivocally has held the same or similar language is not defective. See State v. Montgomery, supra, 254 Conn. 731 n.41.

       For example, with respect to the court’s summary of its instructions to the jury on the crimes of conspiracy to possess a narcotic substance, conspiracy to sell a narcotic substance and conspiracy to sell a controlled substance within 1500 feet of a school, the court stated: “[F]or you to convict the defendant on this count . . . you must be satisfied beyond a reasonable doubt that the following [elements] have been proven . . .