author: ESPINOSA, J.

text:
    MARICULTURE PRODUCTS LTD. v. THOSE CERTAIN UNDERWRITERS AT LLOYD’S OF LONDON INDIVIDUALLY SUBSCRIBING TO CERTIFICATE NO. 1395/91 ET AL.
    (AC 33214)
    Alvord, Espinosa and Pellegrino, Js.

      Argued December 13, 2012
    officially released May 14, 2013

      James T. Hargrove, pro hac vice, with whom were Christopher Bristol and, on the brief, Frederic Rickies, for the named defendants (appellants).

      Ran Markus, with whom were Michael J. Domey and, on the brief, Robert M. Barrack, for the appellee (plaintiff).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ESPINOSA, J.

The present appeal represents the third appeal in an extensive history of litigation concerning an insurance claim dispute that arose after Hurricane Bob, in 1991, had destroyed much of the Maine fish hatchery business of the plaintiff, Mariculture Products Ltd. In Mariculture Products Ltd. v. Certain Underwriters at Lloyd’s of London, 84 Conn. App. 688, 864 A.2d 1100, cert. denied, 272 Conn. 906, 863 A.2d 698 (2004) (Mariculture I), this court reversed in part the judgment of the trial court, holding that the statute under which the plaintiff brought its claim for interest, Me. Rev. Stat. Ann. tit. 24-A, § 2436, was inapplicable to the policy at issue, and remanded the case to the trial court with direction to render judgment on that count in favor of the defendants, Those Certain Underwriters at Lloyd’s of London Individually Subscribing to Certificate No. 1395/91. Id., 708-10, 718. In Mariculture Products Ltd. v. Certain Underwriters at Lloyd's of London, 110 Conn. App. 668, 955 A.2d 1206 (2008) (Mariculture II), this court reversed the supplemental judgment of the trial court granting the plaintiff post-judgment interest under General Statutes § 37-3a, holding that the parties’ stipulation had limited the issue of postjudgment interest to Maine law, and remanded the case to the trial court with direction to vacate its order granting postjudgment interest. Id., 676-77, 679. The defendants now appeal from the trial court’s judgment applying the law of Maine and granting the plaintiff postjudgment interest on its jury award pursuant to Me. Rev. Stat. Ann. tit. 14, § 1602-C. The defendants claim that the trial court erred in holding that the plaintiff was entitled to postjudgment interest because it improperly (1) considered the plaintiffs motion for postjudgment interest under the procedural law of Maine and (2) determined that the plaintiff had not waived its right to postjudgment interest under § 1602-C. We affirm the judgment of the trial court.

The following relevant facts and procedural history were set forth in Mariculture II. “ ‘The plaintiff owned and operated fish hatcheries at three separate locations in Maine. Gershon G. Navon served both as the president and sole shareholder of the plaintiff and its parent corporation, Mariculture Products Corporation. The plaintiffs inventory of fish at each of its hatcheries was insured by the subject insurance policy that was issued by the defendants. The policy covered fish that were lost due to death, destruction or escape.

“ ‘The property insurance policy also included a clause naming Key Bank [of Maine (Key Bank)] as a loss payee. Key Bank had loaned to the plaintiff a total of $9 million to finance the establishment of the plaintiffs business. Key Bank initially loaned to the plaintiff $5 million for construction of the hatcheries and sites. This loan was disbursed in three installments from 1988 through 1991. Key Bank loaned an additional $4 million to the plaintiff in 1992. That loan was equally divided between a working capital loan and a term loan. The working capital funds operated as a revolving line of credit.

“ ‘The plaintiff entered into a series of security agreements with Key Bank to secure the loans. The plaintiffs machinery, cages and other assets related to the construction of the hatchery facilities served as collateral for the $5 million construction loan. The revolving line of credit associated with the $2 million of working capital was secured by the plaintiffs inventory of fish.

“ ‘The plaintiff sustained a significant loss of fish at its Frenchboro farm on August, 19, 1991, as a result of Hurricane Bob. On March 3, 1992, the plaintiff submitted a formal claim to the defendants specifying losses of $744,070. The plaintiff later reduced this claim to $729,672. On April 2, 1992, the defendants denied the claim by letter, stating that the claim was “excessive” and providing no further explanation.

“ ‘Meanwhile, between January and March, 1992, the plaintiff was engaged in negotiations with Key Bank regarding its inability to make its loan payments. Key Bank had sent a written notice of default and acceleration to the plaintiff on February 27,1992, outlining various defaults allegedly committed by the plaintiff. During the course of these negotiations, on March 17, 1992, Key Bank physically seized the plaintiffs assets.

“ ‘On May 26,1993, allegedly on behalf of the plaintiff, Key Bank submitted a proof of loss form to the defendants, claiming $160,000 in losses. This proof of loss form purported to release the defendants from all further claims by the plaintiff. Subsequently, the defendants paid $160,000 to Key Bank pursuant to a settlement between the defendants and Key Bank.

“ ‘On February 9,1998, the plaintiff filed the underlying action against the defendants, seeking to recover damages for an alleged breach of the insurance contract. The complaint sounded in breach of contract and violations of the late payment and unfair claims settlement practices provisions of the Maine Insurance Code. Following trial, the jury returned a verdict in favor of the plaintiff on its breach of contract and late payment claims, awarding damages of $445,000. The jury returned a verdict in favor of the defendants on the unfair claims settlement practices claim. The court awarded the plaintiff attorney’s fees of $487,194 and interest of $768,616.’ ” Mariculture II, supra, 110 Conn. App. 671-73.

“On appeal [to this court in Mariculture 7], the defendants claim[ed] [inter alia] that the trial court . . . failed to render judgment as a matter of law against the plaintiff on its claim under § 2436 of title 24-A of the Maine Revised Statutes and improperly instructed the jury to consider that claim. The plaintiff cross appealed], claiming [inter alia] that the court improperly . . . denied the plaintiff’s motion for a directed verdict on its claims under Maine’s Unfair Settlement Practices Act, Me. Rev. Stat. Ann. tit. 24-A, § 2436-A (West 2000). . . .

“We reversed the judgment only as to the trial court’s denial of the defendants’ motion for judgment notwithstanding the verdict as to the plaintiff’s claim in count two of the amended complaint, which alleged a violation of § 2436 of the Maine Revised Statutes. We remanded the case with direction to render judgment in favor of the defendants on that count. We affirmed the judgment in all other respects. The Supreme Court denied the plaintiff certification to appeal from our decision in Mariculture I on December 8, 2004.” (Citation omitted; internal quotation marks omitted.) Mariculture II, supra, 110 Conn. App. 673-74.

“ ‘Following our remand [from Mariculture I], the plaintiff moved, in January, 2005, for an award of prejudgment interest under [General Statutes] § 37-3a on the damages found by the jury on the first count of the complaint and postjudgment interest. In a memorandum of decision filed August 1, 2006, the court determined that “[t]here is nothing in the transcripts submitted by counsel to suggest that either party could have reasonably believed that the issue of interest reserved to the court was limited to interest under Maine law.” The court also concluded that “the answers to the special jury interrogatories dated November 2, 2001, make it clear that the defendants wrongfully withheld payment for the losses incurred by the plaintiff from April 2,1992.” The court ordered that a supplemental judgment for the award of interest under § 37-3a be entered.’ ” Id., 674.

The defendants appealed from that supplemental judgment, claiming, in Mariculture II, that the trial court incorrectly interpreted the stipulation by the parties as permitting a claim for interest under Connecticut law. The defendants argued that “the parties could not have contemplated or arrived at any agreement concerning interest under Connecticut law because the plaintiffs claim to interest before, during and after the trial had been under Maine law.” Id., 675. We agreed with the defendants and concluded that the jury’s answers to interrogatories, which were specifically addressed at making factual findings on the plaintiffs claims under Maine law, did not support the court’s determination on remand that the plaintiff was entitled to interest pursuant to § 37-3a. Id., 679. Because the trial court’s factual determination on remand, that the jury’s responses set forth the requisite factual basis for an award of interest under Connecticut law, was clearly erroneous, we reversed the court’s grant of prejudgment and postjudgment interest and remanded the case with direction to vacate that order. Id.

On June 8, 2010, the plaintiff filed a motion for order on remand seeking an order from the trial court that the defendants pay the underlying jury award, pay prejudgment interest pursuant to Me. Rev. Stat. Ann. tit. 14, § 1602-B, and pay postjudgment interest pursuant to Me. Rev. Stat. Ann. tit. 14, § 1602-C, or alternatively, an order requiring the defendants to pay the postjudgment interest previously ordered by the trial court pursuant to General Statutes § 37-3a.

In a memorandum of decision filed on February 14, 2011, the trial court denied the plaintiffs motion in part, reasoning that the plaintiff was the holder of a final judgment against the defendants, and, as such, had other remedies before it to enforce the judgment. The memorandum of decision also (1) denied the plaintiffs alternative request for posljudgment interest, holding that the final judgment in Mariculture II precluded the court from considering the plaintiffs request under General Statutes § 37-3a; (2) denied the plaintiffs request for prejudgment interest, holding that it had waived the right to claim such interest under Me. Rev. Stat. Ann. tit. 14, § 1602-B; and (3) granted the plaintiffs primary request as to postjudgment interest, finding that the plaintiff was entitled to postjudgment interest under Me. Rev. Stat. Ann. tit. 14, § 1602-C. On March 3, 2011, the defendants filed the present appeal, claiming that the trial court erred when it granted postjudgment interest pursuant to § 1602-C.

I

The defendants first claim that the court improperly granted postjudgment interest pursuant to Me. Rev. Stat. Ann. tit. 14, § 1602-C, which they argue is a procedural statute. The defendants maintain that because § 1602-C concerns the enforcement of a judgment, it is procedural, and, therefore, the trial court erred when it did not apply the law of the forum state, Connecticut. We disagree.

We first set forth the standard of review. Although a trial court’s decision to award postjudgment interest is subject to review for an abuse of discretion; see Bower v. D’Onfro, 45 Conn. App. 543, 551, 696 A.2d 1285 (1997); the defendants’ claim on appeal, that § 1602-C of the Maine Revised Statutes is inapplicable, is a question of law. See Cadle Co. v. D’Addario, 131 Conn. App. 223, 243-44, 26 A.3d 682 (2011) (applicability of General Statutes § 37-3a is question of law reviewed under plenary standard). The resolution of this appeal requires us to interpret § 1602-C of the Maine Revised Statutes, and, therefore, “[w]ell settled principles of statutory interpretation govern our review. . . . Because statutory interpretation is a question of law, our review is de novo.” (Internal quotation marks omitted.) Woodrow Wilson of Middletown, LLC v. Connecticut Housing Finance Authority, 294 Conn. 639, 644, 986 A.2d 271 (2010).

In the present case, however, our review is also governed by this court’s previous rulings in Mariculture I and Mariculture II. “[T]his court follows the well-recognized principle of law that the opinion of an appellate court, so far as it is applicable, establishes the law of the case upon a retrial, and is equally obligatory [on] the parties to the action and [on] the trial court. . . . The rule is that a determination once made will be treated as correct throughout all subsequent stages of the proceeding . . . .” (Internal quotation marks omitted.) American Diamond Exchange, Inc. v. Alpert, 302 Conn. 494, 509, 28 A.3d 976 (2011).

In Mariculture II, we determined that there was ample evidence from the record to suggest that the parties intended to limit the issue of interest to Maine law. Mariculture II, supra, 110 Conn. App. 676. This court reversed the judgment of the trial court granting interest pursuant to General Statutes § 37-3a, holding clearly erroneous the court’s finding that there was “nothing in the transcripts to suggest that either party reasonably could have believed that the issue of interest reserved to the court was limited to interest under Maine law.” Id., 677. Our holding in that case, that Maine law governs the issue of interest in this dispute, represents the law under which we must decide the present appeal.

The defendants first argue that § 1602-C should not be applied to the issue of postjudgment interest in this case because the statute was determined to be “procedural [for retroactivity purposes in] Batchelder v. Tweedie, 294 A.2d 443 (Me. 1972).” It is true that the traditional approach to choice of law issues applies the law of the forum state in all procedural matters while applying applicable foreign law as to substantive matters. See, e.g., Chasse v. Albert, 147 Conn. 680, 683-84, 166 A.2d 148 (1960); People’s United Bank v. Kudej, 134 Conn. App. 432, 438, 39 A.3d 1139 (2012). The present case, however, does not present a straightforward, traditional approach to choice of law issues.

As we held in Mariculture II, the parties clearly agreed by stipulation that Maine law would govern the issue of interest. Mariculture II, supra, 110 Conn. App. 676. “[A] stipulation of the parties is to be regarded and construed as a contract. ... In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties.” (Internal quotation marks omitted.) Sullivan v. Delisa, 101 Conn. App. 605, 621, 923 A.2d 760, cert. denied, 283 Conn. 908, 928 A.2d 540 (2007). Further, this court “has emphasized the vitality of the doctrine of the freedom to contract, and the courts have held unequivocally that parties may contract for . . . post-judgment interest.” Cadle Co. v. D’Addario, supra, 131 Conn. App. 247.

As the trial court explained in its memorandum of decision, “[a] statute like § 1602-C was clearly within the contemplation of the parties’ stipulation, whether or not it has been held to be procedural for purposes of retroactive application.” In Mariculture II, the defendants maintained that Maine law should govern this controversy, and in doing so, did not distinguish between substantive and procedural laws. In contrast to the characterization of § 1602-C as procedural for retroactivity purposes in Batchelder v. Tweedie, supra, 294 A.2d 444-45, we need not reach the issue of whether the grant of interest under § 1602-C is a matter of substance or procedure in the present case, as the parties plainly indicated through their stipulation that the issue of interest was to be governed by the law of Maine, and this court has consistently recognized the parties’ ability to contract for postjudgment interest. See Cadle Co. v. D’Addario, supra, 131 Conn. App. 247.

Furthermore, there is no evidence in the record to suggest that the parties intended to distinguish between the procedural and substantive law of Maine. By first arguing, in Mariculture II, that Maine law should govern the issue of interest in the disposition of this controversy, and now claiming that Maine statutory law relating to the right to postjudgment interest should not apply because it is strictly procedural, the defendants attempt to avoid the consequences of not paying a judgment that has been owed to the plaintiff since 2001. Our Supreme Court has repeatedly “eschewed applying the law in such hyper-technical manner so as to elevate form over substance.” (Internal quotation marks omitted.) Malloy v. Colchester, 85 Conn. App. 627, 635, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004); see also Stepney Pond Estates, Ltd. v. Monroe, 260 Conn. 406, 422, 797 A.2d 494 (2002) (“[t]o conclude . . . that the fact that the plaintiff invoked [a statute] instead of bringing a common-law action in equity deprived the trial court of jurisdiction would be to exalt form over substance”). Moreover, this court observed in Cadle Co. v. D’Addario, supra, 131 Conn. App. 245-47, that the parties should not be permitted to circumvent their intention to determine interest pursuant to a contractual agreement simply because the language of a statutory provision “would seem to justify a construction rendering it applicable to the facts of the present case . . . .” (Internal quotation marks omitted.) Id., 245 (pertaining to General Statutes § 37-3a). Similarly, the defendants in the present case should not be permitted to ignore their stipulation to determine the issue of interest pursuant to the law of Maine.

Section 1602-C of the Maine Revised Statutes serves to encourage a judgment debtor to satisfy a judgment in a timely fashion, a purpose that the court reasonably concluded was within the intent of the parties’ stipulation. Accordingly, we will not permit the defendants in the present case to avoid the consequences of their decision to delay paying the plaintiff s judgment. As this court had previously stated that the issue of interest would be decided pursuant to Maine law in this case, and because we are bound by this court’s precedent, we conclude that the trial court was correct in applying § 1602-C to the issue of postjudgment interest.

II

The defendants next claim that the court erred in granting postjudgment interest on the plaintiffs jury award because (a) the plaintiff waived any right to claim interest by failing to specifically plead relief under § 1602-C of the Maine Revised Statutes in its complaint or to claim interest under that statute at any prior point in this protracted litigation, and (b) the defendants were prejudiced by the plaintiffs delay in bringing its claim for interest under § 1602-C. We are not persuaded.

We first set forth the standard of review that governs our analysis of these claims. “[The] decision to deny or grant postjudgment interest is primarily an equitable determination and a matter lying within the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . The court’s determination regarding the award of interest should be made in view of the demands of justice rather than through the application of any arbitrary rule. . . . Whether interest may be awarded depends on whether the money involved is payable . . . and whether the detention of the money is or is not wrongful under the circumstances.” (Citations omitted; internal quotation marks omitted.) Bower v. D’Onfro, supra, 45 Conn. App. 550-51.

“Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 112 Conn. App. 767, 772, 963 A.2d 1117 (2009).

A

The defendants, citing Practice Book § 10-3, first contend that the plaintiffs claim for postjudgment interest is precluded by Connecticut procedure because the plaintiff failed to plead an award of interest under § 1602-C of the Maine Revised Statutes in its initial complaint. There is, however, no requirement that a party seek postjudgment interest in its complaint, as the very nature of this interest requires that a judgment be reached before it may be granted. “Although Practice Book § 10-3 (a) provides that when any claim in a complaint is grounded on a statute, the statute shall be specifically identified by its number, this rule has been construed as directory rather than mandatory. ... As long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3 (a) will not bar recovery.” (Citations omitted; internal quotation marks omitted.) Spears v. Garcia, 66 Conn. App. 669, 675-76, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003); see Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn. App. 663, 671, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005).

Since the initial filing of the complaint that began this action in 1998, the plaintiff has consistently requested interest on any monetary award. The plaintiff and the defendants also stipulated that interest would be governed by Maine law, demonstrating that the defendants clearly were advised of the plaintiffs intention to seek interest on any judgment that they failed to satisfy. Indeed, because the defendants emphatically argued in Mariculture II that the law of Maine should apply to the issue of interest, they cannot now claim surprise that the plaintiff continued to seek interest on the unpaid judgment pursuant to the applicable statutory law of Maine. The plaintiffs motion for order on remand, dated June 8,2010, also specifically advised the defendants, through written notice, that it was seeking interest under § 1602-C. Accordingly, we reject the defendants’ argument with respect to Practice Book § 10-3.

The defendants next claim that the plaintiff waived any right to postjudgment interest under § 1602-C by failing to bring its claim earlier in this protracted litigation. They argue that by asking initially for postjudgment interest under Me. Rev. Stat. Ann. tit. 24-A, § 2436, and then General Statutes § 37-3a, but not Me. Rev. Stat. Ann. tit. 14, § 1602-C, the plaintiff waived any right to bring its claim under § 1602-C after the case was remanded following our decision in Mariculture II. We disagree.

In Connecticut, a prevailing party may move for post-judgment interest following a remand after a case has been appealed. See Behrns v. Behrns, 124 Conn. App. 794, 816-17, 6 A.3d 184 (2010) (affirming trial court’s award of postjudgment interest under § 37-3a that was requested for first time on remand); TDS Painting & Restoration, Inc. v. Copper Beech Farm, Inc., 73 Conn. App. 492, 517-18, 808 A.2d 726 (holding that trial court was not precluded from considering issue of postjudgment attorney’s fees on limited remand because those damages were not part of prior appeal), cert. denied, 262 Conn. 925, 814 A.2d 379 (1997); Bower v. D’Onfro, supra, 45 Conn. App. 549 (“[cjommon sense also dictates that a party seeking an award of postjudgment interest must file a posttrial motion because the award can be determined only after judgment has been rendered”).

Despite the fact that the plaintiff had the ability to move for interest following a remand, the defendants contend that our decision in Mariculture II was a final and binding judgment as to the issue of interest. “The defendants’ argument, essentially, is that the trial court was precluded from acting on a question that had already been addressed and decided. Postjudgment interest, however, is an issue that, by its nature, can be addressed only after judgment has been rendered following the remand. Neither the trial court in the first instance nor the Appellate Court . . . had occasion to consider the question of [postjudgment] interest . . . .” (Internal quotation marks omitted.) Bower v. D’Onfro, supra, 45 Conn. App. 552-53.

In the present case, the issue of interest in general had been addressed multiple times by both the trial court and this court. The issue before the trial court pursuant to the plaintiffs motion for order on remand, however, was whether postjudgment interest was available to the plaintiff pursuant to § 1602-C of the Maine Revised Statutes. This issue had not previously been addressed by either court.

In its decision, the trial court explained that the plaintiff, “[h]aving lost the first appeal in 2004 on a jurisdictional issue, and the second appeal in 2008 on a stipulation construction issue . . . was entitled to continue its pursuit of postjudgment interest by [its] motion filed in 2010 by which the plaintiff [sought] to reconcile the law of the case established by the two appeals and proceed under a statute which may not be inconsistent with either appellate holding. The fact that this claim was not made immediately after the 2008 decision in Mariculture II should not relegate the plaintiff forever to the result that it has no claim at all for the loss of the use of $445,000 to which it is entitled by a final judgment of this court.” See also Stafford Higgins Industries, Inc. v. Norwalk, 15 Conn. App. 752, 759, 54 A.2d 340 (1988) (interest on judgment should not be denied solely because judgment was rendered five years earlier). We agree with the trial court.

The plaintiff has been consistent in its claim for post-judgment interest on a judgment that the defendants were ordered to pay more than ten years ago, and this court’s decisions in Mariculture I and Mariculture II relating to jurisdictional and construction issues should not bar the award of interest under a properly applicable statute. The defendants cite no law, and we are aware of none, that conditions the granting of postjudgment interest on a request for that interest during trial or during a previous appeal. See, e.g., Behrns v. Behrns, supra, 124 Conn. App. 815-17. Accordingly, we reject the defendants’ argument that the plaintiff waived its ability to claim postjudgment interest under § 1602-C of the Maine Revised Statutes by not requesting it earlier. The plaintiff properly pursued its claim by filing a motion for order on remand, and the court, therefore, was within its discretion to grant such motion and award postjudgment interest.

B

The defendants also maintain that because the motion for order on remand was filed years after the underlying judgment was rendered, it did not give them sufficient notice of the nature of the plaintiffs claim and was, therefore, prejudicial to them. As we previously have discussed, the plaintiff was not required to request postjudgment interest under § 1602-C of the Maine Revised Statutes in its complaint, during trial or during the prior appeals in this case. Further, we are not persuaded by the defendants’ claim that they were prejudiced by the plaintiffs delay in claiming interest under § 1602-C.

Unlike Me. Rev. Stat. Ann. tit. 24-A, § 2436, under which the plaintiff initially brought its claim for interest, the granting of interest under § 1602-C of the Maine Revised Statutes does not depend on whether the jury made specific factual findings of wrongdoing. Interest granted under § 2436 requires “detailed factual findings as to the practices and timing of the processing of insurance claims,” as noted by the trial court in its memorandum of decision, while interest granted pursuant to § 1602-C is mandatory, absent the court’s express waiver upon a showing of good cause by the nonprevail-ing party. Walsh v. Cusack, 2008 ME 74, ¶ 5, 946 A.2d 414, 416 (2008). Because a grant of postjudgment interest under § 1602-C does not require specific factual findings, but rather is granted absent a showing of good cause by the party failing to pay the judgment, the plaintiffs claim for interest would not have affected the defendants’ trial strategy, even if such a claim had been made at an earlier date. As there exists no factual issue underpinning the defendants’ claim that might have been submitted to the jury regarding interest under § 1602-C, the defendants were not prejudiced by the plaintiffs motion for an order of interest on remand.

This court issued its decision in Mariculture II on October 7, 2008. Mariculture II, supra, 110 Conn. App. 668. Although we do not approve of the plaintiffs delay in waiting until June 8, 2010, to file its motion for order on remand, there is no evidence in the record demonstrating that the defendants actually were prejudiced by such delay. The defendants had ample opportunity to argue that good cause existed for their failure to pay the judgment rendered against them in 2001. A hearing on the plaintiffs motion for order on remand was held, after a continuance, at which both the plaintiff and defendants offered oral argument. At that hearing, the defendants declined to present evidence demonstrating that they had good cause sufficient to waive paying interest under § 1602-C. Moreover, at the time the plaintiffs motion was filed, it is undisputed that the defendants still had not satisfied their outstanding judgment.

Furthermore, even if the defendants’ failure to address the issue of good cause in their objection to the plaintiffs motion for order on remand had been due in part to the plaintiffs delay in filing its motion, the defendants had the opportunity to demonstrate good cause for their failure to pay the judgment at the hearing on the plaintiffs motion. On appeal to this court, the defendants argue that they consistently have attempted to satisfy the $445,000 judgment, beginning in 2006, but were prevented from doing so due to ongoing settlement negotiations. They also maintain that they could not satisfy the judgment, because it was unclear who should receive payment due to a pending involuntary bankruptcy action, which led to the eventual filing of an interpleader action on May 21, 2010, nine years after the original judgment was rendered.

In reference to these arguments, the trial court found that “[i]f there has been delay, the blame does not lie solely on the shoulders of the plaintiff. The defendants, underwriters of a world-renowned insurance company, have continued steadfastly to withhold payment of a final judgment of this court for all this time. The court rejects the waiver argument insofar as i[t] applies to postjudgment interest.”

After reviewing the record in the fight most favorable to upholding the trial court’s ruling, as we must, we are not persuaded that the court improperly determined that the defendants failed to demonstrate the good cause necessary to waive payment of interest. This is especially true considering that this court has noted that large commercial insurance carriers engaged in business do not act in a vacuum, but rather are aware of the risks entailed by failing to pay policy awards or judgments in a timely manner. See Hartford Steam Boiler Inspection & Ins. Co. v. Underwriters at Lloyd’s & Cos. Collective, 121 Conn. App. 31, 43, 994 A.2d 262, cert. denied, 297 Conn. 918, 996 A.2d 277 (2010). The trial court’s finding, that the plaintiff was not solely to blame for the defendants’ failure to satisfy the underlying judgment, was reasonable under the circumstances. We conclude, therefore, that the court properly exercised its discretion to grant postjudgment interest under § 1602-C of the Maine Revised Statutes.

The judgment is affirmed.

In this opinion the other judges concurred.

       “The action was filed by the plaintiff in Connecticut, where its corporate headquarters is located and its sole stockholder resides. The parties stipulated that Maine law would apply to issues involving interpretation of the subject insurance contract, including notice of claim, proof of loss and terms and conditions of the contract.” Mariculture I, supra, 84 Conn. App. 691 n.2.
      “The original complaint also named as a defendant Aquacultural Insurance Service Ltd., a broker for Those Certain Underwriters at Lloyd’s of London Individually Subscribing to Certificate No. 1396/91. The plaintiff later withdrew its action against Aquacultural Insurance Service Ltd. We therefore refer in this opinion to Those Certain Underwriters at Lloyd’s of London Individually Subscribing to Certificate No. 1396/91 as the defendants.” Mariculture II, supra, 110 Conn. App. 670 n.1.

       The plaintiff also filed a motion to reargue that part of the court’s decision concerning prejudgment interest. The plaintiffs motion was denied. The plaintiff initially filed an appeal of the trial court’s denial of its motion to reargue, but withdrew that appeal in January, 2012.

       Section 1602-C of title 14 of the Maine Revised Statutes Annotated provides in relevant part: “1. Rate. In all civil and small claims actions, post-judgment interest is allowed at a rate equal to:
      “A. In actions involving a contract or note that contains a provision relating to interest, the rate set forth in the contract or note or the rate in paragraph B, whichever is greater; and
      “B. In all other actions, the one-year United States Treasury bill rate plus 6%. . . .
      “The applicable post-judgment interest rate must be stated in the judgment, except for judgments in small claims actions.
      “2. Accrual; suspension; waiver. Post-judgment interest accrues from and after the date of entry of judgment and includes the period of any appeal. In actions involving a contract or note that contains a provision relating to interest, the rate of interest is fixed as of the date of judgment. If the prevailing party at any time requests and obtains a continuance for a period in excess of 30 days, interest is suspended for the duration of the continuance. On petition of the nonprevailing party and on a showing of good cause, the trial court may order that interest awarded by this section be fully or partially waived.”

       General Statutes § 37-3a provides: “(a) Except as provided in sections 37-3b, 37-3c and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable. Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. Whenever the maker of any contract is a resident of another state or the mortgage security is located in another state, any obligee or holder of such contract, residing in this state, may lawfully recover any agreed rate of interest or damages on such contract until it is fully performed, not exceeding the legal rate of interest in the state where such contract purports to have been made or such mortgage security is located.
      “(b) In the case of a debt arising out of services provided at a hospital, prejudgment and postjudgment interest shall be no more than five per cent per year. The awarding of interest in such cases is discretionary.”

       The application of Me. Rev. Stat. Ann. tit. 14, § 1602-C, in the present case is distinguishable from the Maine Supreme Court’s characterization of § 1602-C in Batchelder v. Tweedie, supra, 294 A.2d 444-45. In that case, the court interpreted the statute for the purpose of applying it retroactively, whereas the trial court in this case was not required to consider such an application of § 1602-C. Determining whether the statute is a matter of procedure or substance for the purpose of applying it retroactively is, therefore, unnecessary for resolution of this appeal.

       Practice Book § 10-3 provides: “(a) When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number.
      “(b) A party to an action who intends to raise an issue concerning the law of any jurisdiction or governmental unit thereof outside this state shall give notice in his or her pleadings or other reasonable written notice.”

       In its motion, the plaintiff actually cited Me. Rev. Stat. Ann. tit. 14, §1601-C, which appeared to be a scrivener’s error, as the plaintiff clearly relied on § 1602-C in its memorandum of law in support of its motion. The defendants likewise refer to the plaintiffs claim for interest pursuant to § 1602-C. The trial court, therefore, properly considered the plaintiffs claim under § 1602-C.

       The defendants contend that a 2007 amendment to § 1602-C that requires the applicable rate of postjudgment interest to be stated in a judgment precludes the plaintiffs postjudgment motion for interest on remand under this statute. There is no indication, however, from the language of the 2007 amendment, “nor from its legislative history, that this revision alters the long-standing practice that a party is entitled to postjudgment interest absent an express full or partial waiver of interest, for good cause, by the court.” Walsh v. Cusack, 2008 ME 74, ¶ 6, 946 A.2d 416-17 (2008).


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    CYNTHIA SARGIS v. TERRENCE DONAHUE ET AL.
    (AC 32992)
    Robinson, Bear and Sullivan, Js.
    Argued December 4, 2012
    officially released May 14, 2013

      Keith Yagaloff, for the appellant (substitute plaintiff).

      S. Peter Sachner, for the appellees (defendants).
   Opinion

ROBINSON, J.

In this medical malpractice action, the substitute plaintiff, Robert S. Sargis, Sr., executor for the estate of Cynthia Sargis (decedent), appeals from the judgment of the trial court granting the motion for judgment notwithstanding the verdict filed by the defendants, Terrence Donahue, a physician, and New Britain Surgical Group, Inc. On appeal, the plaintiff claims that the court erred when it (1) applied an improper standard of proof for causation and (2) granted the defendants’ motion. We reverse the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. On September 23, 2002, Donahue performed laparoscopic repair of the decedent’s umbilical and incisional hernia. The procedure involved the surgical implantation of a mesh on the decedent’s abdominal wall. Following the surgery, the decedent developed complications. Five days after the surgery, on Saturday, September 28, 2002, she went to the New Britain General Hospital emergency room complaining of redness and bruising around the incision site, and potential bronchitis. At the emergency room, the decedent received an intravenous dose of an antibiotic and an oral antibiotic, Zithromax, in a five tablet dosing package called a Z-pak. The decedent was administered two tablets at the hospital during her emergency room visit, and thereafter she took one each day thereafter until the pack was finished, on the following Tuesday. The consultation report provided to Donahue’s medical partner from the emergency room noted that there were signs of bruising but no inflammation around the incision site.

Two days after the emergency room visit, on Monday, September 30, 2002, Donahue examined the decedent at his office. He noted symptoms that indicated possible cellulitis on the skin over the area where the mesh had been implanted, but did not perform any microbiological testing, prescribe any additional antibiotics or treat the decedent’s abdominal redness. Rather, he directed the decedent to finish the Z-pak that she had received at the emergency room.

Three weeks later, on October 21, 2002, Donahue again examined the decedent, diagnosed her with cellu-litis and, for the first time, prescribed two antibiotics for her. Approximately five weeks after her surgery, however, on November 1,2002, the decedent was admitted to the hospital for an exploratory laparotomy and surgical removal of the mesh located on the abdominal wall, which was infected. Additionally, she was diagnosed with edema and cellulitis of the skin around the mesh, and treated with intravenous and oral antibiotics. The decedent was discharged from the hospital on November 3, 2002. At various times from November 3 to November 29, 2002, the decedent consulted with Donahue for treatment of her abdomen. Following the mesh removal surgery, she had a disfigurement of her abdomen, experienced great pain and required additional surgery. The decedent then brought this medical malpractice action against the defendants, alleging that they failed to observe, evaluate and treat her postoperative infection timely and adequately.

During the trial, the defendants moved for a directed verdict at the conclusion of the plaintiffs case-in-chief and again after the defendants rested their case, but prior to closing argument. The court reserved decision each time. At the conclusion of the five day trial, the jury rendered a general verdict in favor of the plaintiff in the amount of $149,334, which the court accepted. The defendants subsequently filed a motion for judgment notwithstanding the verdict. Consistent with their position when they had moved for a directed verdict after the plaintiffs case-in-chief and after they had rested their case, the defendants maintained that the plaintiff had failed to offer, by way of requisite expert testimony, sufficient evidence regarding proximate cause for the decedent’s injuries. They asserted that the plaintiffs relevant expert witness, Gabor Kovacs, a doctor board certified in general surgery, never testified with a reasonable degree of medical probability that Donahue’s breach of the standard of care was a substantial factor in causing the decedent’s injuries. The plaintiff filed an objection and the matter was heard on November 17, 2009. After oral argument, the court ordered the parties to submit supplemental briefing on the issue of what evidence is required for causation in a medical malpractice action where the negligence of the physician is based on omissions rather than commissions of acts. Both parties submitted supplemental memoranda of law.

The court issued its memorandum of decision, granting the defendants’ motion, and rendered judgment in favor of the defendants. The court’s memorandum of decision began by setting forth the standard of proof for ordinary medical malpractice and the standard of proof for causation of an ordinary medical malpractice action. It then went on to note: “Connecticut recognizes a cause of action for lost chance, and the cases provide a helpful analytic framework for the claims in this case— that, as a result of the defendants’ failure to diagnose and treat a postoperative infection, the infection was not eradicated and it spread, thereby causing injury to the plaintiffs decedent. The plaintiff and the defendants have employed such cases in presenting their arguments.” The court continued, quoting the standard of proof for lost chance actions as well as the legal standard for causation for a lost chance cause of action. After citing case law for the proposition that the opinions expressed by an expert must be more than speculation or conjecture, the court made its factual findings and legal conclusions. It found in relevant part that, “[h]aving reviewed the entire record . . . the plaintiff has failed to sustain his burden to prove by way of expert testimony that the defendants’ actions, or in this case inactions, were a proximate cause of the decedent’s injuries as a result of a loss of opportunity for successful treatment. Rather . . . Kovacs’ testimony, while informative as to what should have been done by . . . Donahue and why, failed to show that if what should have been done had been done it probably would have affected the outcome for [the decedent] in this case. Based on the record before the court, the evidence presented is insufficient to remove from the realm of speculation the issues of whether the breach of the standard of care was the proximate cause of her injuries.” After the court denied the plaintiffs motion to reconsider/reargue, this appeal followed.

The plaintiff filed a motion for articulation, which was denied by the court, but after this court granted the plaintiffs motion for review, we ordered the court to “articulate whether in ruling on the [defendants’] motion for judgment [notwithstanding] the verdict it applied a lost chance standard or a traditional malpractice standard when deciding whether the plaintiff met his burden of proof of establishing proximate cause, and, if the court applied a lost chance standard, then the court is further ordered to address the five requests for articulation . . . contained in the plaintiffs December 27, 2010 motion for articulation.” The court articulated its decision, stating: “The court applied a traditional malpractice standard when deciding whether the plaintiff had met his burden of proof of establishing probable cause.”

On appeal, the plaintiff claims that court improperly granted the defendants’ motion for judgment notwithstanding the verdict. We agree.

We begin with our standard of review. “The standard of review governing a motion for judgment notwithstanding the verdict is the same [as that for a directed verdict] because a motion for judgment notwithstanding the verdict is not a new motion, but the renewal of a motion for a directed verdict.” (Internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 400, 766 A.2d 416 (2001). “[0]ur review of a trial court’s [decision] to direct a verdict or to render a judgment notwithstanding the verdict takes place within carefully defined parameters. [In determining whether the trial court has correctly set aside the verdict, we] must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial .... [We will uphold a trial court’s decision to set aside the verdict and direct judgment] only if we find that the jury could not reasonably and legally have reached [its] conclusion.” (Internal quotation marks omitted.) Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 336-37, 994 A.2d 153 (2010). “While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation.” (Citation omitted.) Gagne v. Vaccaro, supra, 400. “Thus, a trial court may set aside a verdict on a finding that the verdict is manifestly unjust because the jury, on the basis of the evidence presented, mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case can be applied.” Suarez v. Sordo, 43 Conn. App. 756, 759, 685 A.2d 1144 (1996), cert. denied, 240 Conn. 906, 688 A.2d 334 (1997).

The plaintiff claims that in reaching its decision to set aside the jury’s verdict, the court used an improper standard of proof and that its articulation is inapposite to the original basis that the court set forth in its memorandum of decision granting the defendants’ motion. He argues that given the fact that the complaint is devoid of lost chance allegations, that the jury was charged on the ordinary standard of causation for medical malpractice actions and that there was no discussion or consideration of lost chance before the verdict, the court incorrectly reviewed, analyzed and applied the lost chance doctrine in this case. Additionally, the plaintiff maintains that there was evidence to support the jury’s implicit finding of proximate cause, and, accordingly, the court improperly granted the defendants’ motion. The defendants argue that the court used the traditional medical malpractice standard and that it correctly concluded that the plaintiff had failed to satisfy his burden of proof with regard to proximate cause. Even assuming, without deciding, that the court used the appropriate standard of proof, we nevertheless conclude that there was sufficient evidence of causation and, accordingly, that the court improperly granted the defendants’ motion.

“[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. . . . Generally, the plaintiff must present expert testimony in support of a medical malpractice claim because the requirements for proper medical diagnosis and treatment are not within the common knowledge of laypersons.” (Internal quotation marks omitted.) Macchietto v. Keggi, 103 Conn. App. 769, 774-75, 930 A.2d 817, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007).

“All medical malpractice claims, whether involving acts or inactions of a defendant physician, require that a defendant physician’s conduct proximately cause the plaintiffs injuries. The question is whether the conduct of the defendant was a substantial factor in causing the plaintiffs injury. . . . This causal connection must rest upon more than surmise or conjecture. ... A trier is not concerned with possibilities but with reasonable probabilities. . . . The causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question.” (Citations omitted; internal quotation marks omitted.) Weaver v. McKnight, 134 Conn. App. 652, 658, 40 A.3d 786, cert. granted on other grounds, 305 Conn. 907, 44 A.3d 183 (2012).

“To be reasonably probable, a conclusion must be more likely than not. . . . Whether an expert’s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.” (Internal quotation marks omitted.) Macchietto v. Keggi, supra, 103 Conn. App. 776. “An expert . . . need not use talismanic words to show reasonable probability.” (Internal quotation marks omitted.) Milliun v. New Milford Hospital, 129 Conn. App. 81, 100, 20 A.3d 36, cert. granted on other grounds, 302 Conn. 920, 28 A.3d 338 (2011).

The plaintiffs expert witness, Kovacs, first testified about the antibiotics that the decedent had received in the emergency room. He noted that the antibiotics given to the decedent in the emergency room were more appropriate to treat a potential upper respiratory infection. Kovacs further stated that the standard of care when treating a patient when the surgeon recognizes signs of cellulitis is “to initiate aggressive antibiotic treatment in the face of cellulitis especially when there’s a mesh involved and that standard would cover either starting . . . with aggressive oral antibiotics or . . . putting the patient in the hospital for intravenous antibiotics.” Moreover, Kovacs testified, the standard of care in the decedent’s situation would be to “make sure that the patient [at] least continues with a regimen of oral antibiotics or possibly admit the patient to the hospital for intravenous antibiotics to prevent any further spread of that infection and to closely follow that patient up to make sure that there’s improvement or [no] worsening of the situation.”

With regard to causation of the decedent’s injuries, Kovacs testified that the goal of treating a patient with antibiotics upon the presentation of cellulitis is to eradicate the infection and that the failure to treat the celluli-tis would result in a worse infection and an invasion of the infection to the deeper tissues of the abdominal wall with the possibility of infecting the mesh. Kovacs testified that once a surgical mesh becomes infected, in most cases it would have to be removed due to the presence of the infection. He further testified that Donahue had noted that the decedent had an infected mesh and that “most likely the infection started superficially over at the skin level and then with time it got deeper and invaded the deeper layers of the abdominal wall.” Kovacs disagreed with Donahue’s contention that if the infection had began as cellulitis, by the time the mesh had become infected, the skin would have become necrotic and would have been sloughing. Rather, Kovacs testified, there were some instances “where you could possibly develop a necrosis of the skin secondary to the infection, but that’s not usually the case.”

Kovacs further testified that the decedent’s cellulitis “most likely started about five to seven days after the operation and then it gradually got worse by invading the deeper tissues and the next evidence that we have that [it] really got down to the level of the fascia and the mesh is when the [decedent] had the [computerized axial tomography] scan on October 23 at which point the infection has spread to the deeper layers.” After noting that the first surgery was performed to correct an umbilical and incisional hernia, Kovacs opined that the recurrence rate is higher than 50 percent. He farther opined that with the combination of an additional incision as a result of the surgery to remove the mesh, the repair of the incision from the first surgery that placed the mesh and the fact that the decedent’s tissues were infected during the mesh removal surgery, “most likely the [recurrence] rate would be somewhat higher than even the 50 percent rate because you’re dealing with inflamed infective tissues which are usually weaker than a standard healthy tissue.” Kovacs concluded his testimony by agreeing that all of his opinions were stated with a reasonable degree of medical certainty.

It is undisputed that Donahue did not prescribe any antibiotics to treat the decedent’s cellulitis until three weeks after he had identified the possibility of cellulitis; instead he directed her to continue with an antibiotic that was more properly suited to treat an upper respiratory infection and that would be completed by the day after his initial postoperative examination. Kovacs testified that “[b]ased upon a reasonable degree of medical certainty . . . the standard of medical care was breached because there was a failure to fully appreciate the patient’s condition in the sense that she was developing an infection and [to] take the appropriate steps to eradicate the infection.” Moreover, Kovacs testified that the purpose of the antibiotics is to eradicate the cellulitis infection, that the failure to treat the cellulitis infection can cause the mesh to become infected, that an infected mesh would need to be removed, that Donahue did not treat the decedent’s cellulitis for approximately three weeks and that the decedent’s untreated cellulitis caused the infected mesh. “[I]t [is] the jury’s task to determine the credibility of the witnesses, including experts, and to weigh the evidence.” Medes v. Geico Corp., 97 Conn. App. 630, 639, 905 A.2d 1249, cert. denied, 280 Conn. 940, 912 A.2d 476 (2006). We conclude, on the basis of Kovacs’ testimony, that the jury reasonably could have found that the plaintiff had met his burden of proof that the defendants had proximately caused the decedent’s injuries by failing to diagnose and to treat her postoperative infection in a timely and adequate manner.

The judgment is reversed and the case is remanded with direction to reinstate the jury’s verdict and to render judgment in favor of the plaintiff.

In this opinion the other judges concurred.

       Robert S. Sargis, Sr., was substituted as the plaintiff for the decedent, who had initiated this action, following her death during the pendency of the action. Her death is not alleged to be relevant to this case. We therefore refer in this opinion to Robert S. Sargis, Sr., as the plaintiff.

       In his statement of issues, the plaintiff set forth the following claims: (1) “[t]he trial court erred in setting aside the jury verdict in favor of the plaintiff,” (2) “[t]he trial court erred in applying, postverdict, a causation standard of proof for a lost chance action instead of for traditional medical malpractice,” (3) “[t]he court erred in disregarding the negligence standard of proof on which the jury was charged, and applying a different standard of proof on [the] defendant’s motion [for judgment notwithstanding a verdict],” (4) “[t]he court deprived the plaintiff of a fair and impartial trial, by setting aside the jury’s verdict and requiring evidence of causation that was not required by the standard on which the jury was charged,” (5) “[t]he court deprived the plaintiff of a just and fair verdict,” and (6) “[t]he trial court deprived the plaintiff of due process by requiring a new standard of proof of negligence after the jury verdict in favor of the plaintiff.” Because issues two through six are subsumed in the broader question of whether the court applied an improper standard of proof for causation, we do not address them separately. See Giannamore v. Shevchuk, 108 Conn. App. 303, 305 n.1, 947 A.2d 1012 (2008).

       Although, for the purposes of this appeal, we need not decide whether the court used the proper standard of proof in this case, we note that the use of the lost chance doctrine for deciding an ordinary medical malpractice action would not be appropriate. The general standard of causation in ordinary medical malpractice claims contemplates omissions as well as commissions of negligent acts. “All medical malpractice claims, whether involving acts or inactions of a defendant physician, require that a defendant physician’s conduct proximately cause the plaintiffs injuries.” (Emphasis added; internal quotation marks omitted.) Weaver v. McKnight, 134 Conn. App. 652, 658, 40 A.3d 786, cert. granted on other grounds, 305 Conn. 907, 44 A.3d 183 (2012). To prove proximate cause under the lost chance doctrine, a specialized subset of ordinary medical malpractice dealing with aparticular kind of omission that both parties agree does not apply in this case, the plaintiff must prove, in essence, that “what was done . . . probably would have affected the outcome.” (Internal quotation marks omitted.) Borkowski v. Sacheti, 43 Conn. App. 294, 310, 682 A.2d 1095, cert. denied, 239 Conn. 945, 686 A.2d 120 (1996); see also LaBieniec v. Baker, 11 Conn. App. 199, 207, 526 A.2d 1341 (1987) (“[t]o prevail on [a lost chance] claim, a plaintiff must show (1) that he has in fact been deprived of a chance for successful treatment and (2) that the decreased chance for successful treatment more likely than not resulted from the defendant’s negligence” [emphasis omitted; internal quotation marks omitted]). Proximate cause determinations under ordinary medical malpractice actions, however, do not focus on the outcome. Rather, a plaintiff need only prove that “the conduct of the defendant was a substantial factor in causing the plaintiffs injury.” (Internal quotation marks omitted.) Weaver v. McKnight, supra, 658.


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. JACOB CARATTINI
    (AC 33909)
    Bear, Espinosa and Flynn, Js

      Argued January 7
    officially released May 14, 2013

      Robert E. Byron, assigned counsel, for the appellant (defendant).

      C. Robert Satti, Jr., supervisory assistant state’s attorney, with whom, on the brief, was John C. Smriga, state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

FLYNN, J.

The defendant, Jacob Carattini, appeals from the judgment of conviction, rendered after a jury trial, of one count of conspiracy to commit murder in violation of General Statutes §§ 53U-48 and 53a-54a (a). On appeal the defendant claims that the trial court erred in (1) not giving a cautionary jury instruction with respect to the testimony of a witness whom the defendant characterizes as a jailhouse informant and (2) admitting the alleged hearsay testimony of another witness under the hearsay coconspirator exception. We disagree and, accordingly, affirm the judgment.

The jury reasonably could have found the following facts, which are relevant to this appeal. The victim, Jose Suarez, also known as Green Eyes, and the defendant were acquaintances, who were often seen together. The victim sold drugs for the defendant. The defendant believed that the victim was responsible for stealing $10,000 worth of heroin and a firearm from him and was heard saying “he was gonna make an example out of [the victim].”

The body of the victim was discovered in Lakeview Cemetery in Bridgeport, on the morning of October 18, 2008. The victim suffered blunt force trauma to his person and died of a gunshot wound to the head. Thereafter, the defendant was arrested and charged with murder in violation of § 53a-54a (a) and conspiracy to commit murder in violation of §§ 53a-48 and 53a-54a (a) in connection with the victim’s death. The jury found him guilty of the count of conspiracy to commit murder, but the court declared a mistrial on the count of murder after the jury was unable to reach a unanimous verdict. The trial court rendered judgment accordingly. This appeal followed.

I

We first address the defendant’s claim that the court erred in not giving a special cautionary jury instruction with respect to the testimony of a witness whom the defendant characterizes as a jailhouse informant. On appeal, the defendant claims that witness Anthony Lopez was a “jailhouse informant” and, thus, under State v. Patterson, 276 Conn. 452, 886 A.2d 777 (2005), and State v. Arroyo, 292 Conn. 558, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010), the jury should have been instructed that Lopez’ testimony should have been considered with particular scrutiny. We are not persuaded.

The following additional facts reasonably could have been found by the jury and the following procedural history is relevant to this claim. In 2008, Lopez was living with the defendant and selling drugs for him. Lopez was arrested in October, 2008, for the sale of narcotics and .in April, 2009, for selling narcotics to an undercover police officer. Approximately one week before the victim was murdered, there was a baby shower that the defendant, the victim and Lopez attended. After the shower, the defendant told Lopez that “someone went to the basement [of the defendant’s residence] and stole a .40 caliber pistol and . . . [forty] bricks of dope . . . .” Lopez further testified about a later conversation with the defendant in which the defendant relayed a conversation that he had had with the victim. The defendant told Lopez that when the defendant confronted the victim “[the victim] asked, oh, did they take the gun? And then that’s when [the defendant] started thinking [the victim] had something to do with it.”

Lopez was at the apartment that he shared with the defendant on the night of the murder, October 17, 2008. He testified that around 10 or 10:00 p.m., the defendant and an associate, known as Pukee, entered through the rear entrance to the apartment wearing jeans and black hooded sweatshirts. Lopez observed that the defendant and Pukee were acting nervously and pacing around. He further testified that the defendant and Pukee removed the clothes that they were wearing and placed them in a garbage bag. Furthermore, Lopez testified that he saw a drop of blood on one pair of the jeans. Lopez, at the direction of the defendant, went with two other people who were present in the apartment at that time to dispose of the garbage bag of clothes.

Later that night when Lopez returned to the apartment, the defendant was not there, but subsequently returned about one-half hour afterward. The defendant was “pacing back and forth” and said, “[0]h, this nigga dead. Oh, this nigga dead.” Lopez testified that the defendant clarified that “[the victim] is dead right now.” He further stated that a couple days later the defendant described details of the murder. Lopez stated that the defendant told him that “when [the defendant, Pukee, Lulu, Bebo and Mike Cruz] was in the—the cemetery and they was questioning [the victim] once he started they—one of them swung on him and they all continued to beat on him.” Then Lopez testified that the defendant described to him the actual shooting and last breath of the victim. The defendant also told Lopez how he and Cruz were able to get the victim into their vehicle at gunpoint.

Lopez did not divulge this information to the police when he saw them at the victim’s house the day that the victim’s body was discovered because he feared retaliation from the defendant. When Lopez was arrested on February 19, 2009, he did not make bond and was transported to Bridgeport correctional center (jail). While in jail, Lopez requested to speak to police officers from the Bridgeport police department regarding the victim’s murder. Lopez spoke to two police officers while in jail and then was released on a promise to appear. The second time Lopez spoke to the police officers, at the Bridgeport courthouse, he made a written statement. While Lopez was out on release based on his promise to appear, he testified that he did “favors” for the drug enforcement administration and the homicide division of the Bridgeport police department. In April, 2009, Lopez, the defendant and three other associates were arrested. First, Lopez was interviewed at the Bridgeport police department tactical narcotics team station, and, then, he was transferred and interviewed at Bridgeport police headquarters later in the day. Lopez was then in jail from the April, 2009 arrest until August 13, 2009, when he was released on another promise to appear. After this release, Lopez went with his lawyer’s investigator on a trip to New York in an unsuccessful attempt to identify where he dumped the garbage bag of clothes.

Our Supreme Court has placed great emphasis on the need for a cautionary instruction regarding the testimony of jailhouse informants. See State v. Patterson, supra, 276 Conn. 470; see also State v. Arroyo, supra, 292 Conn. 569. The record does not show any preservation of any request by the defendant for a jailhouse informant instruction either by a request to charge or an exception to the charge as given, omitting any such cautionary instruction. The defendant concedes this. The defendant now seeks review of this unpreserved issue under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Golding review, however, requires that the issue be of constitutional magnitude. Id., 239. Eviden-tiary issues are not of constitutional magnitude. “[B]ecause an instructional error relating to general principles of witness credibility is not constitutional in nature . . . the defendant would not be entitled to review of any such claim under . . . Golding . . . .” (Citation omitted; internal quotation marks omitted.) State v. Diaz, 302 Conn. 93, 114, 25 A.3d 594 (2011). The defendant also does not request plain error review.

“In certain instances, dictated by the interests of justice, we may, sua sponte, exercise our inherent supervisory power to review an unpreserved claim that has not been raised appropriately under the Golding or plain error doctrines.” State v. Ramos, 261 Conn. 156, 172 n.16, 801 A.2d 788 (2002). In light oí Patterson and Arroyo, we exercise our inherent supervisory power to review the defendant’s claim.

In reviewing a claim concerning the court’s failure to give a cautionary instruction, our Supreme Court set forth the following principles to guide our review: “[A] charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a corut’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it 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. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Arroyo, supra, 292 Conn. 566.

In Patterson, our Supreme Court concluded that the trial court should give a special credibility instruction to the jury when a jailhouse informant “has been promised a benefit by the state in return for his or her testimony . . . State v. Patterson, supra, 276 Conn. 469. In Arroyo, our Supreme Court expanded upon Patterson and held that “[i]n light of . . . the inherent unreliability of jailhouse informant testimony . . . the trial court should give a special credibility instruction to the jury whenever such testimony is given . . . .” State v. Arroyo, supra, 292 Conn. 569. The record, however, is clear that, despite the defendant’s characterization of Lopez as a jailhouse informant, he did not meet our Supreme Court’s definition of a jailhouse informant. In State v. Diaz, supra, 302 Conn. 102, our Supreme Court defined a jailhouse informant subject to the special credibility instruction as “a prison inmate who has testified about confessions or inculpatory statements made to him by a fellow inmate. . . . Patterson has not been applied to require a special credibility instruction when an incarcerated witness has testified concerning events surrounding the crime that he or she witnessed outside of prison, as distinct from confidences that the defendant made to the witness while they were incarcerated together.” (Citation omitted.)

Diaz is applicable here. First, Lopez was not an inmate when he gave his testimony. Lopez had been released from jail on multiple promises to appear prior to testifying in the trial. Lopez, therefore, was not an incarcerated witness when he testified. Second, and more important, Lopez’ testimony did not include confessions or inculpatory statements made by a fellow inmate. Lopez’ testimony encompassed statements that the defendant had made to him prior to the victim’s murder, statements that the defendant made to him after the victim’s murder when both were living together in the same apartment prior to the defendant’s arrest and Lopez’ observations and recollections of the events surrounding the murder. None of the defendant’s statements to which Lopez testified were made while the defendant and Lopez were incarcerated together. In fact, none of the defendant’s statements to which Lopez testified were made while either of them were inmates in jail. Third, the general content of Lopez’ testimony concerned events surrounding the crime that he witnessed outside of jail, not “confidences that the defendant made to [him] while . . . incarcerated . . . .” Id.

“Testimony by a jailhouse informant about a jailhouse confession is inherently suspect because of the ease with which such testimony can be fabricated, the difficulty in subjecting witnesses who give such testimony to meaningful cross-examination and the great weight that juries tend to give to confession evidence. ... In contrast, when a witness testifies about events surrounding the crime that the witness observed, the testimony can be compared with the testimony of other witnesses about those events, and the ability of the ■witness to observe and remember the events can be tested. . . . [W]hen a witness is not incarcerated, but is merely on parole or subject to pending charges, the special concerns relating to incarcerated witnesses do not come into play.” (Citations omitted.) Id., 109-10. Therefore, in accordance with Patterson and Diaz, Lopez was not a jailhouse informant, such that his testimony would require the court to provide a special credibility instruction.

What the defendant really seeks is an extension of Patterson and Arroyo that would require that the jury be advised with a special cautionary jailhouse informant instruction even when a state’s witness has testified about events he observed and the defendant’s statements were made before the defendant’s arrest, even if the state’s witness is not in jail, but already has allegedly received favorable bond treatment and a promise of favorable treatment for his own sentencing. This we decline to do. Unlike an incarcerated prisoner who may conform testimony regarding comments or confidences that the defendant made to him while they were incarcerated together in the hope of winning some future leniency, the record here was clear that the statements were made while both Lopez and the defendant were not incarcerated, and that Lopez already had expected and received lenient pretrial release treatment for his testimony. See State v. Ebron, 292 Conn. 656, 675 n.17, 975 A.2d 17 (2009), overruled on other grounds by State v. Kitchens, 299 Conn. 447, 472-73, 10 A.3d 942 (2011).

Furthermore, our Supreme Court in Diaz held that a general credibility instruction coupled with the jury’s awareness of the witness’ involvement in the criminal justice system and expectations as to what he or she would receive in exchange for his or her testimony were sufficient for nonjailhouse informant witnesses. State v. Diaz, supra, 302 Conn. 103-104. The defense counsel was free to argue before the jury that Lopez’ testimony should be viewed by the jury in light of his self-interest, and the defense counsel did so effectively. The defense counsel’s cross-examination of Lopez brought to the jury’s attention his possible motives for falsifying his testimony. The cross-examination of Lopez brought out that he was released from jail, he had asked the police for help in getting released, he had asked the police to falsify documents so that the public would not know that he had not posted bond, he hoped that the defendant would be incarcerated for life and the police wanted favors from him. The defense counsel also developed Lopez’ testimony during cross-examination to show that although he was facing a maximum of forty years in jail, including two five year minimum mandatory terms, he hoped to avoid jail entirely through his cooperation in the prosecution of the defendant and assistance to the federal Drug Enforcement Administration. In his closing argument, the defense counsel argued that, despite the fact that several individuals, including Lopez, had been arrested together, Lopez had been released from jail on his promise to appear because he gave the police “more information.” The defense counsel strongly emphasized to the jury that, while others were in pretrial detention, the defendant was free and had a motivation to lie.

The court also gave a general instruction on credibility of witnesses as part of its final charge to the jury, in which, inter alia, they were told to consider any interest, bias, prejudice or sympathy that a witness may apparently have for the state. The jury was also instructed to consider any interest, bias or motive that might impel the witnesses to speak or act. When the defense counsel was asked by the court if he had any comments on the charge prior to the court instructing the jury, he stated that he did not. The defense counsel only raised one objection after the court instructed the jury, but that objection related to the consciousness of guilt instruction, not the general credibility instruction or absence of a special credibility instruction. Although the court’s instructions on witness credibility were general and did not call the jury’s attention to any special caution to be employed in viewing Lopez’ testimony, the court did not err. See State v. Ebron, supra, 292 Conn. 675 (not giving jailhouse informant instruction not error particularly when court instructed jury on credibility of witnesses, counsel made jury aware of witness’ criminal history and counsel commented on inconsistencies between various witnesses’ testimony). We therefore reject this claim.

II

We next address the defendant’s claim that the court erred when it allowed the testimony of Jose Feliciano under the coconspirator exception to the hearsay rule embodied in § 8-3 (1) (D) of the Connecticut Code of Evidence. We are not persuaded.

The following additional facts and procedural history are relevant to this claim. Feliciano was a drug dealer who sold drugs for the defendant. He testified that the defendant told him that the defendant needed the victim “taken out” because he had stolen drugs and a gun from the defendant. Feliciano further testified that the defendant offered him $10,000 to kill the victim.

Prior to Feliciano’s testimony, the defense counsel filed and argued before the court a motion in limine, which sought to prevent Feliciano from testifying as to statements made to him by Cruz related to the murder. The court denied the motion in limine, and Feliciano testified as to this conversation. Specifically, Feliciano testified that in July, 2009, after the murder of the victim, “I said [to Cruz], you know [the police are] looking for you for that body, right .... He said, yeah, but we got rid of the gun and the car.” Feliciano’s statement was admitted by the court under two hearsay exceptions, namely, as a statement against penal interest, codified under § 8-6 (4) of the Connecticut Code of Evidence, and a statement by a coconspirator, codified under § 8-3 (1) (D) of the Connecticut Code of Evidence.

Our standard of review for evidentiary claims is well settled. “To the extent a trial court’s admission of evidence is based on an interpretation of the [Connecticut] Code of Evidence, our standard of review is plenary. . . . We review the trial court’s decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion. ... In other words, only after a trial court has made the legal determination that a particular statement is or is not hearsay, or is subject to a hearsay exception, is it vested with the discretion to admit or to bar the evidence based upon relevancy, prejudice, or other legally appropriate grounds related to the rule of evidence under which admission is being sought.” (Citations omitted.) State v. Saucier, 283 Conn. 207, 218-19, 926 A.2d 633 (2007).

On appeal, the defendant does not claim that the court erred by admitting the statement as a statement against Cruz’ penal interest under § 8-6 (4) of the Connecticut Code of Evidence. Section 8-6 (4) of the Connecticut Code of Evidence provides for the admission of a trustworthy statement against penal interest that, “at the time of its making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. . . .” Our review is limited to those issues raised on appeal. See State v. Saucier, supra, 283 Conn. 222-23; see also Thomas v. Arafeh, 174 Conn. 464, 470, 391 A.2d 133 (1978) (“[i]n the traditional appeal, the scope of review is limited by the issues raised and the supportive evidence submitted in the lower court”). On appeal, the defendant has briefed and challenged only the admission of the statement under the statement by a cocon-spirator exception to the hearsay rule. The defendant has not briefed any claim of error of the admission of the same statement under the statement against penal interest exception to the hearsay rule. Hearsay evidence need only qualify under one exception to be properly admitted. See State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992) (“[a]s a general rule, hearsay evidence is not admissible unless it falls under one of several well established exceptions”).

The defendant, by not briefing any claim of error regarding the statement being admitted as a statement against penal interest, abandons any claim of error for the court to admit the statement under that exception. See State v. Saucier, supra, 283 Conn. 223 (“[a]n unmentioned claim is, by definition, inadequately briefed, and one that is ‘generally . . . considered abandoned’ ”). Even if the challenged statement was inadmissible as a statement by a coconspirator, the defendant’s failure to challenge the statement under the statement against penal interest exception to the hearsay rule still would leave uncontested that the statement was admitted properly under the unchallenged exception. We, therefore, decline to reach the defendant’s challenge to admission under the coconspirator exception to the hearsay rule.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-48 provides in relevant part: “(a) 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 § 53a-54a provides in relevant part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . .

       Pukee’s full name is unclear from the record, but there was evidence that his first name is Raymond and he is the nephew of Mike Cruz.

       Lulu’s full name is not clear from the record.

       Bebo’s full name is Pedro Deleon.

       During his closing argument, the defense counsel stated in relevant part: “Don’t believe a word [Lopez] said. You can’t believe a word this guy said. What did he tell—he had cases pending, right. And of those guys who all got arrested together, remember they got arrested together and said, Mr. Bou, Mr. Wertenburg—there was one other guy, Picart. They all got arrested together. What did those three guys have in common when they came in. They all kind of had the same outfit on; didn’t they. Government issue, right. Not Mr. Swayze, not Mr. Lopez; he wasn’t in jail. He came in street clothes, why; because he gave them more information. But what was his motivation to lie; you saw it, he’s out. . . . You cannot—the judge is gonna tell you, you could choose to believe some, little, all, none of what any witness tell you if you think he lied. He lied, he’s dishonest, he’s got a motive to lie.”

       The court’s general credibility instruction to the jury included in relevant part: “Concerning the subject of credibility, by which I mean the believability of witnesses—of testimony. You have observed the witnesses. The credibility, the believability, of the witnesses and the weight to be given to their testimony are matters entirely within your hands. It is for you alone to determine their credibility’ Whether or not you find a fact proven is not to be determined by the number of witnesses testifying for or against it. Again, it’s the quality, not the quantity of testimony which has to be controlling. Nor is it necessarily so that you have to accept the fact as true because a witness has testified to it and no one contradicts it. The credibility of the witness and the truth of the fact are for you to determine.
      “In weighing testimony of the witnesses, you should consider the probability or improbability of their testimony. You should consider their appearance, conduct and demeanor while testifying and in [c]ourt, and any interest bias, prejudice or sympathy which a witness may apparently have for or against the [s]tate, or the accused or in the outcome of the trial. You should measure the testimony of witnesses by the nature of human conduct, and if you find [there exists] any interest, bias or motive which impels or influences people to speak orto act, you can consider the circumstances under which witnesses may have provided any information. The credibility of the witnesses is for you to decide based on all the evidence presented to you. . . .
      “You should use all your experience, your knowledge of human nature, and of the motives that influence and control human conduct, and test the evidence against that knowledge.”

       Section 8-3 of the Connecticut Code of Evidence provides in relevant part: “The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Statement by a party opponent. A statement that is being offered against a party and is . . . (D) a statement by a coconspirator of a party while the conspiracy is ongoing and in furtherance of the conspiracy . . . .”

       Section 8-6 of the Connecticut Code of Evidence provides in relevant part: “The following are not¡ excluded by the hearsay rule if the declarant is unavailable as a witness ... (4) Statement against penal interest. A trustworthy statement against penal interest that, at the time of its making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. In determining the trustworthiness of a statement against penal interest, the court shall consider (A) the time the statement was made and the person to whom the statement was made, (B) the existence of corroborating evidence in the case, and (C) the extent to which the statement was against the declarant’s penal interest. . . .”