text:
    STATE OF CONNECTICUT v. WALTER JENKINS
    (AC 23826)
    Lavery, C. J., and McLachlan and Dupont, Js.

      Argued February 9 —
    officially released May 11, 2004

      Jeremiah Donovan, special public defender, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, was Matthew C. Gedansky, state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Walter Jenkins, appeals from the judgment of conviction rendered by the trial corut subsequent to his conditional plea of nolo conten-dere to the charges of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and attempt to commit robbery in the third degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-136. On appeal, the defendant claims that the court (1) improperly determined that he had initiated discussion with the police after having properly invoked his right to counsel, thus allowing questioning to recommence, (2) improperly found that his confession was given knowingly, voluntarily and intelligently, and (3) abused its discretion by refusing to open the suppression hearing in order to allow him to testify. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. Shortly after 3 p.m. on April 12, 1999, three males, including the defendant, entered the United States post office in Andover, supposedly to mail a package. As a clerk was processing the package, the men jumped over the counter. One of the men was brandishing what appeared to be a firearm. The defendant emptied the cash drawer while his companions seized a money order imprinting machine and ordered one of the clerks to open the safe. The safe was opened and depleted of its contents.

The individual with the firearm forced two female clerks into a bathroom at gunpoint. A third clerk remained in hiding. The men then left the post office to meet a fourth accomplice whose role was to drive the getaway vehicle. That individual, however, failed to meet them. The three men attempted to use keys they had stolen from one of the postal clerks to start a car in the parking lot, but chose the incorrect vehicle. They then assaulted a female postal customer outside of the post office in an attempt to steal her vehicle. She did not, however, relinquish her keys, and the men subsequently fled from the scene on foot. Another postal customer in the parking lot witnessed the assault.

At that point, the fourth individual appeared with the getaway vehicle and picked up the defendant and one of his accomplices. The car proceeded west to Wales Road in Andover. The men exited the vehicle and attempted to locate the man they had left behind. They also removed the clothing they wore during the robbery and disposed of it in a small culvert. They then fled on foot. State police captured the defendant within one hour of the robbery. State police also apprehended two of his partners within a couple of hours. The three men were taken to the state police barracks in Colchester for questioning, where they ultimately gave written statements concerning the robbery and assault.

Richard Bedard, a detective with the state police, and Edward Cahill, an inspector with the United States Postal Service met with the defendant. The defendant was advised of his Miranda rights by Bedard. He was under arrest and in police custody at that time. The defendant signed the notice of rights form, acknowledging that he had been advised of his rights but did not sign the waiver section of the form. He told Bedard that he did not want to waive his rights or speak with the detective without an attorney present and that he wanted to make a telephone call. Bedard did not question the defendant after that. He allowed the defendant to make a telephone call.

Shortly thereafter, Bedard processed the defendant by fingerprinting and photographing him and completing a uniform arrest record. He then returned the defendant to a cell. While Bedard was conducting a property inventory of the defendant’s personal effects in a room adjacent to the defendant’s cell, the defendant called out to him. The defendant informed Bedard that he wanted to be interviewed and to give a statement. Bedard told the defendant that this was unnecessary, but the defendant again expressed his desire to give a statement. Bedard summoned Cahill, and the three proceeded to an interrogation room.

Bedard again advised the defendant of his rights. The defendant read and signed the notice and waiver of rights form, and he initialed the waiver portion of the form. The defendant implicated himself and three individuals, minimizing his own involvement. The defendant never requested an attorney during the questioning, which lasted one and one-half hours. At the conclusion of the interrogation, Bedard typed the defendant’s statement, which the defendant reviewed and signed. Bedard included in the statement the circumstances surrounding the defendant’s earlier invocation of his right to counsel. Bedard also recorded in the statement that it was the defendant who had reinitiated conversation with himself and Cahill.

On September 24, 2002, the defendant filed a motion to suppress the aforementioned statement. A hearing was held on the motion on October 2, 2002. The court denied the motion, ruling that the state had met its burden of proof on all issues, most significantly that it was the defendant who initiated conversation with the police after having previously invoked his right to counsel. The court also found that the defendant had knowingly and intelligently waived his right to counsel after being advised of his rights a second time. The court also refused to grant the defendant’s subsequent request to open the hearing in order to permit him to testify.

On October 8, 2002, the defendant entered a conditional plea of nolo contendere to the charges of robbeiy in the first degree in violation of § 53a-134 (a) (4), and attempt to commit robbery in the third degree in violation of §§ 53a-49 (a) (2) and 53a-136. The plea was conditioned on his right to appeal from the court’s denial of his motion to suppress. The court sentenced the defendant to fifteen years imprisonment, execution suspended after twelve years, with five years probation. This appeal followed.

I

The defendant first claims that the court improperly determined that he had reinitiated discussion with Bedard and Cahill. Specifically, the defendant argues that the state failed to meet its burden of proof to establish that he had reinitiated questioning. He contends that contradictions between the testimony given by Bedard and Cahill cast doubt on both their credibility and the court’s conclusion that it was the defendant who had reinitiated conversation with the authorities. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. Bedard testified that he concluded his interview of the defendant when the defendant refused to sign the waiver portion of the rights form and expressed that he did not want to speak with the detective without an attorney present. Bedard also testified that later, while he was working near the defendant’s holding cell, the defendant began conversing with him and expressed his desire to make a statement. Bedard reiterated that he did not approach the defendant or initiate any type of conversation with him. Bedard even reminded the defendant at that point that he was under no obligation to make a statement.

The defendant claims that Bedard’s testimony was not credible in light of conflicting testimony offered by Cahill. “Although the issue is . . . ultimately factual, our usual deference to factfinding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” (Internal quotation marks omitted.) State v. Hafford, 252 Conn. 274, 295, 746 A.2d 150, cert. denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000).

Our inquiry into the admissibility of a confession obtained from a defendant while he or she is in custody necessarily begins with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). See State v. Acquin, 187 Conn. 647, 666, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983), overruled in part on other grounds, State v. Anonymous, 240 Conn. 708, 723 n.16, 694 A.2d 766 (1997). “In that case, the United States Supreme Court held that the fifth and fourteenth amendments’ prohibition against compelled self-incrimination requires that a suspect in police custody be informed specifically of his or her right to remain silent and to have an attorney present before being questioned. . . . The court further held that [i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease .... and [i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present. . . . Furthermore, [i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” (Citations omitted; internal quotation marks omitted.) State v. Acquin, supra, 666.

The court addressed the issue in the present appeal in Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), in which “the United States Supreme Court held that, after an accused requests counsel, further conversations between the police and the accused do not violate Miranda if the accused initiates them.” (Emphasis added.) State v. Hafford, supra, 252 Conn. 290. The Supreme Court again addressed that issue in Oregon v. Bradshaw, 462 U.S. 1039, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983). “[T]he defendant’s initiation of further conversation does not end an analysis of waiver under Miranda. . . . [E]ven if a conversation taking place after the accused has expressed his desire to deal with the police only through counsel, is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” (Internal quotation marks omitted.) State v. Hafford, supra, 291-92.

It is uncontroverted that after being advised of his Miranda rights, the defendant initially invoked his right to counsel, and refused to speak to Bedard and Cahill without his attorney present. It also is undisputed that the defendant initiated conversation with Bedard after that point. Bedard testified that the defendant repeated his desire to make a statement even after Bedard advised him that it was unnecessary for him to do so.

Despite some slight inconsistencies between the testimony given by Bedard and Cahill, the court credited the testimony of Bedard, who unequivocally stated both that he had ceased interviewing the defendant once he had invoked his right to counsel and that it was the defendant who later initiated conversation with him. It is well settled that “[i]t is the [trier of fact’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses.” State v. Robinson, 81 Conn. App. 26, 34, 838 A.2d 243 (2004). “Where testimony is conflicting the trier may choose to believe one version over the other ... as the probative force of the evidence is for the trier to determine.” (Internal quotation marks omitted.) State v. Santiago, 245 Conn. 301, 318, 715 A.2d 1 (1998).

Although Cahill did indicate that Bedard had asked the defendant two or three times whether he wanted to speak to them even after the defendant initially invoked his right to counsel, Cahill also corroborated Bedard’s testimony that the interview ceased once the defendant indicated that he wanted a lawyer. Cahill answered affirmatively when asked by the prosecutor whether the interview ceased when the defendant indicated that he wanted a lawyer.

Most importantly, Cahill did not offer any testimony contradicting Bedard’s account of the circumstances surrounding the reinterrogation of the defendant. Cahill recounted that Bedard had informed him that the defendant wanted to make a statement and that the defendant did so after he was advised of his rights again and questioned by Bedard and Cahill. Cahill also confirmed that the defendant had waived his rights by signing the notice of waiver form. Regardless, the court, in its discretion, chose to credit the testimony of Bedard, and accounted for any discrepancies by stating that the men had “remembered different things and different aspects of the interrogation.”

We conclude, therefore, after our requisite scrupulous review of the record, that there was substantial evidence on which the court could base its decision.

II

The defendant next claims that the court improperly found that his statement was given knowingly, voluntarily and intelligently. Specifically, the defendant contends that he did not have a free and unconstrained choice whether to sign the written version of his statement prepared by Bedard because the detective “instructed” him to sign the statement. We disagree.

“The purpose oí Miranda warnings is to assure that a confession is the product of an essentially free and unconstrained choice by its maker. . . . The state has the burden of proving by a preponderance of the evidence that the defendant knowingly and intelligently waived his Miranda rights .... [T]he state must demonstrate: (1) that the defendant understood his rights, and (2) that the defendant’s course of conduct indicated that he did, in fact, waive those rights.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Santiago, supra, 245 Conn. 320.

“The determination of [w]hether a defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. ... To determine whether an individual had the capacity to understand the warnings, the trial court may consider: the defendant’s experience with the police and familiarity with the warnings, his level of education, his intelligence including his IQ, his vocabulary and ability to read and write in the language in which the warnings were given, his age, intoxication, his emotional state and the existence of any mental disease, disorder or retardation.” (Citation omitted; internal quotation marks omitted.) Id., 320-21; State v. Toste, 198 Conn. 573, 580-81, 504 A.2d 1036 (1986).

In this case, the circumstances surrounding the defendant’s waiver of his rights indicate that he both understood his rights and waived them. The defendant signed the waiver portion of the notice and waiver of rights form prior to giving his statement after he initially had refused to do so and invoked his right to counsel. By his admission, he had been arrested on several previous occasions and, thus, was familiar with the criminal justice system and the process of waiving his rights.

Moreover, both the defendant and Cahill were present while Bedard prepared the defendant’s written statement from the interview. The defendant signed each page of the statement after either reading it himself or having it read to him by Bedard. Bedard testified that he made no threatening statements to the defendant. Further, the defendant did not appear to be under the influence of drugs or alcohol, nor did he, at any time during the interview, express a desire to stop or to end the interview.

We conclude, therefore, on the basis of the foregoing analysis, that the defendant both understood his rights and, subsequently, gave a knowing and intelligent waiver of his rights, and was not thereafter coerced into signing the statement.

m

In his final claim, the defendant contends that the court abused its discretion by declining to open his suppression hearing in order to allow him to testily. Specifically, the defendant argues that due to the advice of his attorney, he was under the impression that taking the witness stand would have resulted in a charge of perjury. Consequently, he claims that the court should have opened the suppression hearing in order to give him the opportunity to testily.

The following additional facts are necessary for our resolution of the defendant’s claim. The defendant did not testily at the suppression hearing at issue in this appeal. After the court indicated that it intended to deny the defendant’s motion to suppress, the defendant addressed the court regarding his decision not to testify. The defendant stated: “I wanted to testily yesterday in my hearing, but I was advised by my attorney [not to]. He . . . advised [me] that if I take the [witness] stand, I’d be charged with perjuiy. But he didn’t . . . inform me that ... I could only be charge [d] with a perjury ... if I was found guilty of, like, telling a lie . . . which I wouldn’t have told . . . .”

As a threshold issue, we must first address the state’s argument that the defendant’s claim does not fall within the ambit of General Statutes § 54-94a. Section 54-94a provides in relevant part that “[w]hen a defendant . . . enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress . . . [t]he issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress . . . .” The state claims that the defendant is not challenging the court’s decision to deny his motion to suppress but, rather, the court’s decision not to reopen the hearing on the motion.

We agree with the state that the defendant’s claim is not reviewable pursuant to § 54-94a, nor does it warrant review under the good cause exception carved out by State v. Revelo, 256 Conn. 494, 503, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001). In Revelo, our Supreme Court discussed the propriety of appellate review for those claims falling outside the scope of § 54-94a. In establishing a good cause exception for such claims, the court held that “in the absence of a showing of good cause, an appellate court should decline to review an issue that has not been raised in accordance with the provisions of § 54-94a. We . . . recognize that such good cause is likely to be established only infrequently’’’ (Emphasis added.) Id.

In this case, the defendant is not challenging the court’s denial of his motion to suppress, but, rather, the court’s decision not to reopen the hearing on this motion. “[0]ur Supreme Court has declined to consider claims that are not encompassed within [§ 54-94a].” State v. Sebastian, 41 Conn. App. 530, 534, 677 A.2d 437, cert. denied, 238 Conn. 906, 679 A.2d 365 (1996); see also, e.g., State v. Greene, 81 Conn. App. 492, 502, 839 A.2d 1284 (2004); State v. Olson, 67 Conn. App. 562, 564, 787 A.2d 664 (2002); State v. Cedric S., 51 Conn. App. 539, 540, 722 A.2d 299 (1999). In this case, the defendant himself frames the issue in his brief exclusively in terms of the court’s decision not to open the hearing, arguing that the “trial court abused its discretion by declining to reopen the hearing and allowing the defendant to testify.” (Emphasis added.) Accord State v. Greene, supra, 502 (defendant rephrased claim in appellate brief as due process claim). In connection with his claim, the defendant requests only that we remand the case to the trial court with instructions to open the hearing, thus allowing him to testify. Accordingly, we will not review his claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s statement, prepared by Bedard and signed by the defendant, provides in relevant part: “I am providing Detective Bedard of the Connecticut State Police and Postal Inspector Cahill with this statement at the State Police barracks in Troop K-Colchester. Initially, Detective Bedard advised me of my Notice of Rights at 5:50 P.M. at Troop K in an upstairs office. At this time I signed this form but on the bottom of this form, it said that I didn’t want to talk to an attorney. I believed at this time that I should have an attorney with me so I refused to sign and be interviewed. The detectives let me use the phone and I called my girlfriend, Tamara Dunham of Amityville, New York. I only got Tamara’s answering machine so I hung up. The detectives then brought me back downstairs and put me in a cell. I stayed there for a short time until they came and fingerprinted me. When we were done, I returned to the cell and a short time later, I heard someone with keys come in. I asked if I could use the phone and it was Detective Bedard. I told Bedard at this time that I also wanted to give a statement. He told me that I didn’t have to but I told him I wanted to. Detective Bedard and Inspector Cahill then brought me back to the same upstairs office that we were originally in and Detective Bedard again advised me of my Notice of Rights. I read this form, signed my name, and read the last part of the form where it talked about not having an attorney with me. I agreed to an interview and initialed this form at 7:30 P.M.”

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law provided a trial court, has determined that a ruling on such motion to suppress or motion to dismiss would be dispositive of the case. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       The defendant in Revelo entered a plea of nolo contendere to one drug charge. State v. Revelo, supra, 256 Conn. 497-98. The defendant claimed on appeal that “the trial court’s imposition of the nine year sentence violated his right to due process because the court imposed that sentence, instead of the eight year sentence that he originally had been offered, solely because he had chosen to exercise his constitutional and statutory rights to a judicial determination of his motion to suppress.” Id., 499.
      This court concluded that the defendant’s due process claim was not reviewable because General Statutes § 54-94a expressly limits the issues to be considered on appeal to those concerning the correctness of the trial court’s denial of a motion to suppress or a motion to dismiss. State v. Revelo, supra, 256 Conn. 500. Our Supreme Court reversed this court’s judgment, concluding that “although the defendant’s constitutional claim falls outside the scope of § 54-94a, the defendant has met his heavy burden of establishing that appellate review of his claim nevertheless is warranted.” Id., 504.


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    LAWRENCE WOOTEN v. ABRAM HEISLER
    (AC 23290)
    Lavery, C. J., and Schaller and Berdon, Js.

      Argued January 22 —
    officially released May 11, 2004

      Robert C. Elfont filed a brief for the appellant (plaintiff).

      Paul E. Pollock, for the appellee (defendant).
   Opinion

LAVERY, C. J.

The plaintiff, Lawrence Wooten, appeals from the summary judgment rendered by the trial court on each of his three claims in favor of the defendant, Abram Heisler, his former attorney. On appeal, the plaintiff claims that the court improperly (1) applied the common-law doctrine of champerty and maintenance, (2) found that his claim violated the public policy promoted by the doctrine of champerty and maintenance, and (3) rendered summary judgment despite the presence of genuine issues of material fact. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, as set forth in the plaintiffs complaint and the exhibits attached to the defendant’s motion for summaiy judgment, are relevant to the resolution of the appeal. The plaintiff retained the defendant, an attorney licensed to practice law in Connecticut, to represent him in a civil action to recover damages the plaintiff sustained in a motor vehicle accident. The defendant subsequently initiated a negligence action against Anthony Brainard and Cablevision of Connecticut, Inc., on behalf of the plaintiff. At some point, the plaintiff discharged the defendant, and on October 30, 1996, the plaintiff retained the Law Offices of Sheri Paige and Associates (law firm) to represent him in the negligence action. The case was settled in the amount of $70,000.

The plaintiff then filed the present action. The plaintiff claimed that the defendant never had communicated with the plaintiffs physicians regarding his medical condition. Furthermore, the plaintiff repeatedly alleged that the defendant had failed to advise him as to the medical treatment and testing he needed to diagnose properly and to document completely the full extent of his injuries. The plaintiff claimed that had the defendant properly attended to the negligence action, it would have been worth $150,000.

The plaintiff set forth three causes of action against the defendant. The first count was based on a theory of negligence, specifically, legal malpractice. Count two alleged a claim of breach of contract. The third count claimed a breach of fiduciary duty. The crucial allegation, common to all three counts, was that the defendant’s failure to advise the plaintiff properly that he should obtain the necessary medical treatment and testing and the subsequent documentation of the diagnosis and extent of his injuries, prevented him from recovering $150,000.

The defendant filed a motion for summary judgment. The defendant’s motion stated in relevant part that he was entitled to summary judgment “on the grounds that the plaintiffs allegations fail to state a cause of action against an attorney since an attorney’s duty does not extend to advising his client as to medical treatment and on the additional ground that the giving of such advice in connection with a personal injury action violates the doctrine of maintenance and champerty and is a violation of public policy.”

The court reviewed certain medical records that were attached to the defendant’s motion and concluded that summary judgment was appropriate. Specifically, the court determined, on the basis of the supporting exhibits, that the plaintiff had undergone medical examinations and various treatments while he was represented by the defendant. Additionally, the documents revealed that various diagnostic options, including magnetic resonance imaging (MRI) and arthroscopic examination of the plaintiffs left knee, were discussed. The court concluded, therefore, that summary judgment was warranted on the ground that the plaintiff in fact had obtained the necessary testing and treatment to diagnose the extent of his injuries. In a footnote, the court stated that it “need not reach the public policy argument, although it seems readily apparent to the court that an attorney should not be advising her client concerning medical treatment for the purpose of enhancing the value of a case.” This appeal followed.

“The pathway to our analysis is well trodden. Summary judgment is appropriate where the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary.” (Citation omitted; internal quotation marks omitted.) Caffery v. Stillman, 79 Conn. App. 192, 195, 829 A.2d 881 (2003).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . ar e insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]. . . . Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. See Practice Book [§ 17-46].” (Internal quotation marks omitted.) Bebry v. Zanauskas, 81 Conn. App. 586, 589, 841 A.2d 282 (2004).

“To succeed on a motion for summary judgment, [t]he movant must show that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party. ... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.” (Emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

“The appellate courts of this state have set forth the law that applies in an action alleging legal malpractice. Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services. . . . [T]he plaintiff must prove (1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages.” (Citations omitted; internal quotation marks omitted.) Dubreuil v. Witt, 80 Conn. App. 410, 420, 835 A.2d 477 (2003), cert. granted on other grounds, 268 Conn. 903, 845 A.2d 407 (2004). With the foregoing principles in mind, we turn to the specifics of the present case.

The defendant attached to his motion for summary judgment a report from Martin Ross, a physician. That report detailed Ross’ examination of the plaintiff that occurred nearly one year after the motor vehicle accident. It also indicated that the plaintiff had been treated by an internist, Tao Nan Chi, who prescribed various exercises to rehabilitate the plaintiffs knee. The plaintiff was scheduled for a return visit in two weeks. The report concluded by stating that “[t]he options of MRI of the lumbar spine and MRI of the left knee were discussed with [the plaintiff] a,s well as the option of arthroscopy of the left knee. [The plaintiff] is considering his options and we will see his response to medication.” (Emphasis added.) In a letter to Chi, Ross stated that he and the plaintiff had “discussed options of further investigation for this condition should [the plaintiff] so desire.”

On August 14, 1997, Ross sent a letter to the law firm, indicating that he had examined the plaintiff after approximately a two year gap in treatment. That letter again indicated that Ross had discussed “options for additional testing” with the plaintiff in 1995. After an MRI was performed on the plaintiffs left knee, Ross recommended that the plaintiff undergo left knee arthroscopy.

In his complaint, the plaintiff alleged that the defendant had “failed to advise the plaintiff to obtain the appropriate medical testing and treatment necessary to completely and properly diagnose and document the full extent of his injuries, such that he could be fully compensated therefore, nor did [the defendant] confer with [the plaintiffs] doctors.” The uncontroverted and undisputed evidence, however, indicates that the plaintiff did, in fact, obtain the necessary and appropriate medical testing and treatment to completely and properly diagnose and document his injuries. The medical reports clearly and unequivocally demonstrate that various diagnostic and treatment options, including an MRI and arthroscopic surgery, were discussed with the plaintiff by his physicians, but the plaintiff elected, for whatever reason, to opt for other treatment.

As noted by the court, the plaintiffs argument that the defendant should have advised the plaintiff to undergo an MRI in 1995 so that the underlying negligence case would have had a greater value is without merit. To be sure, an attorney has the obligation to act with reasonable diligence; Rules of Professional Conduct 1.3; to communicate with the client to the extent reasonably necessary to allow the client to make informed decisions; Rules of Professional Conduct 1.4; and to provide advice on such legal and nonlegal matters that are relevant to the client’s situation. Rules of Professional Conduct 2.1. Nevertheless, those obligations do not extend to offering medical advice to a client, particularly for the propose of increasing the value of a negligence claim.

The plaintiff has not provided us with any statutory authority or case law that imposes a duty on an attorney to advise a client as to the appropriate course of medical diagnosis or treatment. Indeed, an attorney may commit malpractice if he or she does absolutely nothing to protect a client’s interests. See Paul v. Gordon, 58 Conn. App. 724, 728, 754 A.2d 851 (2000). Such a scenario, however, is absent from the present case. The reports attached to the defendant’s motion clearly establish that the plaintiff was examined and diagnosed by a physician and chose to forgo certain medical tests. We conclude that under those facts and circumstances, a reasonable trier of fact could not reach any conclusion other than a defendant’s verdict. Accordingly, the court properly rendered summary judgment in the defendant’s favor.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed a brief with this court, but failed to appear at oral argument. Consequently, only the defendant presented oral argument.

       The defendant argues that the summary judgment should be affirmed on the alternate ground that the plaintiffs allegations of negligence against the defendant are contrary to public policy. Because we determine that the court properly rendered summary judgment, we do not reach that issue.

       The third issue is dispositive and, therefore, we limit our discussion to that issue.

       “Not so long ago, a considerable area of the law of legal ethics was given over to the mysteries of the Macbethian witches of the common law who stirred the cauldron of despised litigation-maintenance, champerty, and barratry. Those were both common-law crimes that any person, lawyer or nonlawyer, could commit, as well as grounds for severe discipline of lawyers. While their origins are ancient, they exist today only vestigially. ... A few years before they were defanged, Lord Denning defined maintenance as ‘improperly stirring up litigation and strife by giving aid to one party to bring or defend a claim without just cause or excuse.’ . . . Champerty is simply a specialized form of maintenance in which the person assisting another’s litigation becomes an interested investor because of a promise by the assisted person to repay the investor with a share of any recovery.” C. Wolfram, Modem Legal Ethics (1986) § 8.13, pp. 489-90.

       In all of the medical reports attached to the defendant’s motion, the discussion focused on the plaintiffs left knee. Three times in the 1997 Ross letter, however, there are references to the plaintiffs right knee. We interpret those inconsistencies as nothing more than that of a scrivener’s error.


author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. ANDRES TORRES
    (AC 23744)
    Dranginis, DiPentima and Stoughton, Js.
    Argued February 26 —
    officially released May 11, 2004

      William B. Westeott, special public defender, for the appellant (defendant).

      Margaret Gaffney Rodionovas, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva B. Lenczewski, senior assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Andres Torres, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction and (2) the court improperly instructed the jury. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of November 6, 2001, the victim, Vijaykumar Patel, the sole owner and operator of S and J Liquors in Waterbury, was selling lottery tickets to one of his regular patrons. The customer often purchased a large quantity of tickets, and it took the victim approximately fifteen to twenty minutes to process the order. During that time, the defendant, whom the victim recognized as being from the neighborhood, had entered the store and asked to purchase one lottery ticket. The victim sold the defendant the fifty cent ticket and then returned to completing his regular customer’s order. About fifteen minutes later, the victim’s regular customer left the store, and the victim started to stock the shelves.

The defendant reentered the store wearing a mask and brandishing a knife. The victim described the knife as having a blade that was approximately six inches long. The defendant told the victim to “give him the money.” The victim immediately fled from behind the counter and headed toward the exit. As he was exiting his store, the defendant asked the victim how to open the cash register. The victim instructed him to press the N/S (no sale) button and told the defendant that there was no money in the lottery drawer. After taking the money from the cash register, the defendant left the store. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to support his conviction of robbery in the first degree. Specifically, he argues that the evidence did not establish that (1) the knife was a dangerous instrument and (2) that he had used or threatened the use of a dangerous instrument. We are not persuaded.

The defendant concedes that those arguments were not preserved at trial and requests review pursuant to State v. Golding, 213 Conn. 233, 239, 567 A. 2d 823 (1989). “[A]ny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review the challenge as we do any other properly preserved claim.” (Internal quotation marks omitted.) State v. Jeffreys, 78 Conn. App. 659, 677, 828 A.2d 659, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003).

“In reviewing [a] sufficiency [of evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . .

“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . We ask . . . whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Leon-Zazueta, 80 Conn. App. 678, 681, 836 A.2d 1273 (2003), cert. denied, 268 Conn. 901, 845 A.2d 405 (2004).

Furthermore, we are mindful that “[w]e 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. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. . . . The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Nicholson, 71 Conn. App. 585, 590, 803 A.2d 391, cert. denied, 261 Conn. 941, 808 A.2d 1134 (2002).

It will be helpful to identify the parameters of the defendant’s appeal. General Statutes § 53a-134 (a) provides in relevant part that “ [a] person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he . . . (3) uses or threatens the use of a dangerous instrument . . . .” The defendant has challenged only the element of the use or threatened use of a dangerous instrument. With the foregoing principles in mind, we now address each of the defendant’s claims.

A

The defendant’s first argument is that there was insufficient evidence that the knife he possessed was a dangerous instrument. Specifically, he claims that the evidence regarding the knife was sparse, and, as a result, the juiy could not find that the knife used in the robbery was a dangerous instrument.

During the trial, the victim testified that he observed the defendant enter the store wearing a mask and carrying a knife in his right hand. The defendant held the knife away from his body and instructed the victim to “give him the money.” The victim stated that the blade of the knife was the length of his hand, approximately six inches. The victim also admitted that the defendant did not wave or point the knife at him, but the victim then demonstrated to the jury, both during his direct examination and cross-examination, the manner in which the defendant displayed the knife during the robbery.

This court, in State v. McColl, 74 Conn. App. 545, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003), recently stated that “an ordinary object may be a dangerous instrument. Therefore, [e]ach case must be individually examined to determine whether, under the circumstances in which the object is used or threatened to be used, it has the potential for causing serious physical injury. . . . The question of whether in the given circumstances a particular object was used as a dangerous instrument is a question of fact for the jury.” (Citation omitted; internal quotation marks omitted.) Id., 554.

General Statutes § 53a-3 (7) defines a “dangerous instrument” as “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . . .” Section 53a-3 (4) provides in relevant part that “ ‘[s]erious physical injury’ means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .”

The victim testified that the blade of the knife was approximately six inches long. A knife is defined as “[a] cutting instrument consisting of a sharp blade with a handle . . . .” (Emphasis added.) American Heritage Dictionary (2d College Ed. 1985) p. 704. “The jury is entitled to draw reasonable inferences from the evidence before it and, in performing its function, the jury brings to bear its common sense and experience of the affairs of life.” State v. Koslik, 80 Conn. App. 746, 756, 837 A.2d 813, cert. denied, 268 Conn. 908, 845 A.2d 413 (2004).

In State v. Dumas, 54 Conn. App. 780, 785, 739 A.2d 1251, cert. denied, 252 Conn. 903, 743 A.2d 616 (1999), we concluded that in a trial to the court, sufficient evidence existed to support a conviction for robbery in the first degree when the victim stated that the blade of the knife was five or six inches in length. Id., 785-87. Similarly, we conclude that in the present case, it was reasonable for the jury, relying on its common sense and the evidence adduced at trial, to find that a knife with a six inch blade was capable of causing death or serious physical injury.

The defendant relies on State v. Osman, 21 Conn. App. 299, 573 A.2d 743 (1990), rev’d on other grounds, 218 Conn. 432, 589 A.2d 1227 (1991). In Osman, two robbers entered a store, with one carrying a tire iron while the defendant possessed an unloaded pellet pistol. Id., 301. The defendant appealed from his conviction of robbery in the first degree, claiming that there was insufficient evidence. Id. The defendant had threatened to shoot the clerk, but had not threatened to use the pellet pistol as a bludgeon. Id., 307. The trial court denied his motion for a judgment of acquittal. Id., 305.

On appeal, this court disagreed and concluded that the defendant’s conviction could stand only if an unloaded pellet pistol was a dangerous instrument under § 53a-134 (a) (3). Under that statute, “the state had the burden of showing that, under the circumstances in which the pellet pistol was used, it was actually capable of causing death or serious physical injury.” Id., 307. We concluded that there was no evidence that the defendant had used or threatened to use the unloaded gun as a bludgeon and that although he had threatened to shoot the clerk, the gun was not capable of causing death or serious physical injury in that manner. Id., 306-307. Thus, “[u]nder these circumstances, an unloaded pellet pistol is not a dangerous instrument.” Id., 307.

Osman is distinguishable from the facts of the present case and, therefore, the defendant’s reliance is misplaced. In Osman, the unloaded pellet gun was not actually capable of causing death or serious physical injury under the circumstances in which it was used. Here, the defendant used a knife, an instrument that was capable of causing death or serious physical injury, particularly in the manner in which it was used.

Construing the evidence and the reasonable inferences drawn therefrom in the light most favorable to sustaining the verdict, we conclude that the jury reasonably was able to find that a knife with a six inch blade was capable of causing death or serious physical injury. Accordingly, the defendant’s claim must fail.

B

The defendant next argues that there was insufficient evidence that he had used or threatened to use the knife during the incident. Specifically, the defendant claims that the facts fail to demonstrate that he ever threatened the victim with physical force.

We have stated that “[although there is no definition of the word ‘threaten’ in our statutes, General Statutes § 1-1 (a) provides that the commonly approved usage of the language should control. ... To threaten is ‘to charge under pain of punishment.’ Webster’s Third New International Dictionary. Similarly, a threat is ‘[a] person or thing that might well cause harm. Black’s Law Dictionary (7th Ed. 1999).’ ” (Citation omitted.) State v. Glasper, 81 Conn. App. 367, 374, 840 A.2d 48, cert. denied, 268 Conn. 913, 845 A.2d 415 (2004).

In the present case, there was evidence that the defendant had entered the victim’s store wearing a mask and armed with a knife. The defendant demanded that the victim instruct him how to open the cash register, give him the money and tell him whether there was additional money in the lottery drawer. The victim also demonstrated to the jury the manner in which the defendant carried the knife during the commission of the robbery.

“Jurors do not live in a fishbowl. ... In considering the evidence . . . [j]uries are not required to leave common sense at the courtroom door .... A threat neednotbe explicitly uttered. ” (Citations omitted; internal quotation marks omitted.) Id., 375. In conclusion, we believe that the cumulative effect of the evidence, along with the reasonable inferences drawn therefrom, was sufficient to support the defendant’s conviction.

II

The defendant next claims that the court improperly instructed the jury. Specifically, he argues that the court improperly (1) instructed the jury on a theory of robbery that was not alleged by the state and (2) diluted the state’s burden of proof, thereby depriving him of his constitutional right to a fair trial. We disagree.

At the outset, we note that the defendant concedes that those claims were not preserved at trial and requests Golding review. The four prongs of Golding are well known, and we will review the claims because the record is adequate for review and the defendant’s claims regarding the alleged improper jury instruction are of constitutional magnitude.

Before discussing the defendant’s claims, we set forth our standard of review. “It is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998). We now discuss each of the defendant’s claims in turn.

A

The defendant first argues that the court improperly instructed the jury on a theory of robbery that was not alleged by the state. General Statutes § 53a-133 provides that “[a] person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the talking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

The substitute information and the two excerpts from the jury charge described the theory of robbery set forth in § 53a-133 (3).

Near the conclusion of its charge, the court stated: “To summarize, then, in order for you to convict the defendant under this count, the state must have proven beyond a reasonable doubt the following elements, that the defendant . . . committed a larceny .... Two, that in the course of committing the larceny, he intentionally used physical force or threatened the immediate use of physical force on another person for the purpose of preventing or overcoming resistance to the taking of the property, and, three, that in the course of committing the robbery or immediate flight therefrom, he used or threatened the use of a dangerous instrument, here, a knife.” (Emphasis added.)

Essentially, the defendant contends that it was improper for the court, during its summary of the jury charge, to mention the theory of robbery set forth in § 53a-133 (1) when it was never alleged by the state. He argues that because there was insufficient evidence that he compelled the victim to deliver up the money, it was an error of constitutional magnitude to charge the jury on the alternate robbery theory.

In part I, we concluded that sufficient evidence existed to support the defendant’s conviction and that he had compelled the victim to deliver up the money from the cash register. Our Supreme Court has stated that “[i]n [State v. Chapman, 229 Conn. 529, 539-44, 643 A.2d 1213 (1994) (en banc)], we relied on the decision of the United States Supreme Court in Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991), and concluded that a defendant’s constitutional right to due process of law is not violated when the trial court charges the jury on a factually unsupported basis of criminal liability provided that, in addition to that instruction, the trial court instructs the jury on a factually supported basis.” (Emphasis added.) State v. Dyson, 238 Conn. 784, 795, 680 A.2d 1306 (1996); see also State v. Aponte, 63 Conn. App. 82, 91, 774 A.2d 1035 (2001), aff'd, 259 Conn. 512, 790 A.2d 457 (2002); State v. Sanko, 62 Conn. App. 34, 39-40, 771 A.2d 149, cert. denied, 256 Conn. 905, 772 A.2d 599 (2001).

The defendant’s claim must fail because the court instructed the jury on a theory that was supported by the evidence, and therefore the rule set forth in Chapman and its progeny applies. Accordingly, the defendant’s claim has not satisfied the third prong of Golding that a constitutional violation clearly existed and that the defendant clearly was deprived of a fair trial.

Additionally, this court previously has rejected that argument. “Both subdivisions (1) and (2) of General Statutes § 53a-133 refer to the defendant’s purpose in using or threatening force. Subdivision (1) refers to his purpose of using or threatening force to prevent or overcome resistance to the taking of the property, or to its retention immediately after the taking. Subdivision (2) refers to his purpose of using or threatening force to compel the owner to deliver up property or otherwise to aid in the larceny. These two states of mind are hardly conceptually distinct from each other .... Both states of mind [in the case at issue] involved an intent to force or intimidate the victims to yield their property so as to permit its taking or retention by the defendant.” State v. Horne, 19 Conn. App. 111, 136-37, 562 A.2d 43, 562 A.2d 43 (1989), rev’d on other grounds, 215 Conn. 538, 577 A.2d 694 (1990); see also State v. McColl, supra, 74 Conn. App. 569-70.

B

Last, the defendant argues that the court improperly diluted the state’s burden of proof. Specifically, he claims that two aspects of the charge constituted a constitutional violation. We are not persuaded.

Near the beginning of its charge, the court discussed the state’s burden of proof: “Now, what does that mean, beyond a reasonable doubt? The phrase, beyond a reasonable doubt, has no technical or unusual meaning. 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 such a doubt as, in serious affairs that concern you, you would heed. That is, such a doubt as would cause reasonable men and women to hesitate to act upon in matters of importance. It is not hesitation springing from any feelings of pity or sympathy for the accused or any other persons 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 is 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.” (Emphasis added.)

At the conclusion of the charge, the court instructed the jury that “[t]he defendant justly relies upon you to consider carefully all of the evidence and to find him not guilty if the facts and the law require such a verdict. The state, as well, does not want the conviction of an innocent person. The state is as much concerned in having an innocent person acquitted as in having a guilty person convicted.” (Emphasis added.)

The defendant claims that the combination of the court’s instructions that “[t]he state, as well, does not want the conviction of an innocent person,” and that reasonable doubt “is 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” constituted the improper dilution of the state’s burden of proof.

Both this court and our Supreme Court have been critical of, and have cautioned the trial courts against, the use of the instruction that “[t]he state is as much concerned in having an innocent person acquitted as in having a guilty person convicted.” (Internal quotation marks omitted.) State v. Wilson, 71 Conn. App. 110, 119, 800 A.2d 653, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002); State v. Abraham, 64 Conn. App. 384, 407, 780 A.2d 223, cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001); see also State v. Watson, 251 Conn. 220, 228 n.9, 740 A.2d 832 (1999); State v. Delvalle, 250 Conn. 466, 473 n.10, 736 A.2d 125 (1999); State v. Schiappa, 248 Conn. 132, 168, 728 A.2d 466 (en banc), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999). Nevertheless, “Connecticut courts have found that wording very similar to the statement under attack in this case does not violate a defendant’s constitutional rights and, thus, does not require reversal of a judgment of conviction.” State v. Wilson, supra, 71 Conn. App. 118; see also State v. Allen, 28 Conn. App. 81, 84-85, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992).

As to the defendant’s challenge to the instruction that a reasonable doubt is one that “is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence,” we simply note that the appellate courts of this state, on several occasions, have considered and rejected his argument. See State v. Whipper, 258 Conn. 229, 297, 780 A.2d 53 (2001) (upholding instruction on “definition of reasonable doubt as a real doubt, an honest doubt ... a doubt which in the serious affairs which concern you in everyday life you would pay heed and attention to does not dilute the state’s burden of proof when such definitions are viewed in the context of an entire charge” [internal quotation marks omitted]); State v. Anderson, 65 Conn. App. 672, 686, 783 A.2d 517 (2001) (our appellate courts “consistently have upheld” “type of language” in trial “court’s instruction that [reasonable doubt] is 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 presented in the case” [internal quotation marks omitted]); see also State v. Davis, 76 Conn. App. 653, 676-78, 820 A.2d 1122 (2003); State v. Mazzeo, 74 Conn. App. 430, 441-42, 811 A.2d 775, cert. denied, 263 Conn. 910, 821 A.2d 767 (2003); State v. Arceniega, 73 Conn. App. 288, 294-97, 807 A.2d 1028 (2002); State v. Henry, 72 Conn. App. 640, 667-69, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002).

The language challenged by the defendant has been upheld consistently in Connecticut courts. Moreover, we disagree with the defendant’s contention that a combination of two challenged instructions becomes more than the sum of their individual parts and results in a dilution of the state’s burden of proof. Instead, we have reviewed the charge in its entirety and conclude that it fairly presented the case to the jury under the established rules of law. Thus, we conclude that when it is read in its entirety, the court’s jury charge presented the case to the jury in a manner such that no injustice would result. Accordingly, the defendant’s claim must fail under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant did not make a motion for a judgment of acquittal at any time. Furthermore, the defendant’s strategy at trial focused primarily on the issue of identity.

       It is undisputed that the defendant did not actually physically injure the victim during the robbery.

       See footnote 2.

       The state’s substitute information stated in relevant part that the defendant, “in the course of committing a larceny . . . used and threatened the immediate use of physical force upon [the victim] by means of a dangerous instrument, to wit: a knife, for the purpose of compelling [the victim] to deliver up a sum of U.S. currency.”

       The court read the following charge to the jury: “General Statutes § 53a-133 of the Penal Code defines robbery as follows: A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of compelling the owner of such property, in this case, [the victim], to deliver up the property. The gist of the crime of robbery is the act of committing a larceny by force or the threat of force.
      “Next, you must determine whether the larceny was accomplished by physical force. Physical force means the external — means the external physical power of the person, which can be affected by hand or foot or another part of the defendant’s body applied to the victim’s body or applied by an implement. The gist of robbery then, is the commission of larceny by the use of physical force or threat of immediate use of physical force. Physical force may take many forms. If you find that no actual physical force was inflicted upon the person by the defendant, but the victim was threatened with physical force, you must also find, to return a verdict of guilty, that the defendant threatened the victim with physical force.
      “Now, if you find that physical force was used or its use was immediately threatened against a person, in the course of committing a larceny, you must then determine whether such physical force was used or threatened for the purpose of compelling [the victim] to deliver up property.”

       We do not endorse the language used by the trial court that previously has been criticized by both this court and our Supreme Court. Nevertheless, consistent with prior decisions, such language does not deprive the defendant of his right to a fair trial.


author: DiPENTIMA, J.

text:
    OLGA J. DISTEFANO v. JOSEPH E. MILARDO, JR., ET AL.
    (AC 23368)
    Dranginis, DiPentima and Hennessy, Js.
    Argued January 16 —
    officially released May 11, 2004

      Lawrence S. Dressier, for the appellant (plaintiff).

      Michael C. Conroy, with whom, on the brief, were William J. Gallitto and Patty G. Swan, for the appellees (named defendant et al.).
   Opinion

DiPENTIMA, J.

In this legal malpractice action, the plaintiff, Olga J. DiStefano, appeals from the judgment of the trial court rendered after it directed a verdict on the malpractice and breach of contract counts for the defendants Joseph E. Milardo, Jr., an attorney, and Jozus, Milardo and Thomasson, the law firm in which Milardo is a partner, and after the jury verdict on the remaining counts in favor of the defendants. The plaintiff claims that the court improperly (1) directed a verdict in favor of the defendants on the malpractice count, (2) instructed the jury that no attorney-client relationship existed between the defendants and the plaintiffs son, Lawrence J. DiStefano, and (3) refused to allow the jury to consider evidence of the standard of care for an attorney for breach of a fiduciary duty. We disagree and, therefore, affirm the judgment of the trial court.

The following facts are necessary for the resolution of the plaintiffs appeal. The plaintiff and her husband, Sebastian DiStefano, had three children: Steven DiStefano, Lawrence DiStefano and Luann Filer. The defendants represented both Sebastian DiStefano and the plaintiff on various legal matters from 1991 through 1995.

In February, 1992, Milardo prepared a will for the plaintiff naming Sebastian DiStefano and Lawrence DiStefano as the beneficiaries. In March, 1995, Sebastian DiStefano died. Shortly thereafter, the plaintiff opened a joint checking account with Lawrence DiStefano. From May 5 through 8, 1995, she was hospitalized for alcoholism and related symptoms. On May 10,1995, Milardo drafted a power of attorney, including a provision granting Lawrence DiStefano the right to make gifts to himself from her property or accounts. On the same day, Milardo drafted a living will and a document naming Lawrence DiStefano as conservator in the event of her future incapacity. The plaintiff executed all of those documents.

The plaintiff was again hospitalized for alcoholism and related symptoms from September 22 through 28, 1995. During her hospitalization, Lawrence DiStefano warned her that his two siblings were attempting to take control of her financial affairs. While in the hospital, she requested that Milardo draft a trust agreement for her, naming Lawrence. DiStefano as the trustee. She signed the trust agreement in the hospital.

The agreement listed certain real property, located in Middletown and Rockfall, owned by the plaintiff. The plaintiff also created a trust account, not listed in the trust agreement, of which Lawrence DiStefano was named the trustee. At the time she signed the trust agreement, the plaintiff also signed two quitclaim deeds, prepared by Milardo, transferring the Middletown and Rockfall properties into Lawrence DiStefano’s name. Milardo handled the subsequent sale of these properties.

After her release from the hospital, she requested that Milardo remove Lawrence DiStefano’s authority from her financial affairs. She also spoke to Milardo about revoking the trust. Milardo reminded her that the trust was crafted to protect her assets from her other two children and to manage her real property.

The plaintiff was hospitalized twice more for alcoholism and related symptoms in October, 1995, and was admitted for inpatient treatment for alcoholism and depression on June 21, 1996. On August 6, 1996, she revoked the trust agreement and closed the joint checking account.

On July 6, 1998, the plaintiff filed the four count complaint in this action alleging (1) legal malpractice, (2) breach of contract, (3) breach of fiduciaiy duty and (4) negligent infliction of emotional distress. The case proceeded to trial before the jury. The court directed a verdict in favor of the defendants on the counts of legal malpractice and breach of contract on the ground that the plaintiff had failed to present expert testimony on the issue of proximate cause. The jury returned a verdict in favor of the defendants on the breach of fiduciary duty and negligent infliction of emotional distress counts. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff claims that the court improperly directed a verdict in favor of the defendants on the legal malpractice count because there was no expert testimony on causation. The plaintiff argues that the court improperly failed to consider the entirety of Mario Zangaii’s testimony in determining that Zangari had not opined on proximate cause. We disagree with the plaintiff.

Our standard for reviewing a challenge to a directed verdict is well settled. “Generally, litigants have a constitutional right to have factual issues resolved by the jury. . . . Directed verdicts [therefore] are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion. . . . We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff. . . . A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict. ” (Internal quotation marks omitted.) Young v. Rutkin, 79 Conn. App. 355, 363, 830 A.2d 340, cert. denied, 266 Conn. 920, 835 A.2d 60 (2003).

Generally, to prevail on a legal malpractice claim, in Connecticut, a plaintiff “must present expert testimony to establish the standard of proper professional skill or care. . . . Not only must the plaintiffs establish the standard of care, but they must also establish that the defendant’s conduct legally caused the injury of which they complain.” (Citation omitted; internal quotation marks omitted.) Dunn v. Peter L. Leepson, P.C., 79 Conn. App. 366, 369, 830 A.2d 325, cert. denied, 266 Conn. 923, 835 A.2d 472 (2003).

“The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard.” (Internal quotation marks omitted.) Dubreuil v. Wilt, 80 Conn. App. 410, 420, 835 A.2d 477 (2003), cert. granted on other grounds, 268 Conn. 903, 845 A.2d 407 (2004).

Accordingly, if a plaintiff fails to provide expert testimony on the issue of proximate cause, a directed verdict is proper. Vona v. Lerner, 72 Conn. App. 179, 189-92, 804 A.2d 1018 (2002) (holding that trial court properly granted defendants’ motion for directed verdict in absence of expert testimony as to proximate cause), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003); Solomon v. Levett, 30 Conn. App. 125, 128, 618 A.2d 1389 (1993) (affirming directed verdict in favor of defendant where plaintiff did not produce expert testimony tending to show defendant’s breach proximately caused her injuries); Somma v. Gracey, 15 Conn. App. 371, 374-75, 544 A.2d 668 (1988) (holding that plaintiff must produce expert testimony that breach of professional standard of care occurred and that breach was proximate cause of injuries suffered by plaintiff).

“[T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiffs injuries. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection.” (Internal quotation marks omitted.) Vona v. Lerner, supra, 72 Conn. App. 190. Here, the plaintiff claims that there was expert testimony to establish that Milardo was the proximate cause of the plaintiffs loss. We disagree.

The plaintiffs claimed injury was her son’s alleged theft of money from her bank account. Viewing the evidence in the light most favorable to the plaintiff and reviewing the entirety of the expert testimony, we do not see where Zangari’s testimony addressed whether the alleged breach of the standard of care by Milardo proximately caused the damages claimed by the plaintiff.

The plaintiff also argues that Paul v. Gordon, 58 Conn. App. 724, 754 A.2d 851 (2000), provides an exception to the general rule that expert testimony is required in malpractice cases. That exception applies “where there is such an obvious and gross want of care and skill that the neglect is clear even to a lay person.” (Internal quotation marks omitted.) Id., 727. The exception provided for in Paul is inapplicable in this case because Paul is factually distinguishable from the present case.

Here, we do not have a situation in which the attorney’s alleged behavior was clear to a layperson. In this case, expert testimony was required to show the applicable standard of care and how Milardo’s behavior should be evaluated in light of that standard. Consequently, the plaintiffs claim must fail.

II

The plaintiffs final two claims challenge the trial court’s charge to the jury. Our standard of review of a challenged jury instruction is well settled. “[J]ury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge. ... A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. . . . The test to determine if a jury charge is proper is 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. . . . [Instructions to the jury need not be in the precise language of a request. . . . Moreover, [j]ury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 831-32, 836 A.2d 394 (2003).

A

As to the breach of fiduciary duty count, the plaintiff claims that the court improperly instructed the jury that no attorney-client relationship existed between Milardo and Lawrence DiStefano. The plaintiff argues that there was sufficient evidence of an attorney-client relationship between Milardo and Lawrence DiStefano for the issue to have reached the jury. We disagree with the plaintiff.

As with any issue, the court had no duty to submit the issue of the existence of an attorney-client relationship to the jury unless there was evidence reasonably supporting that finding. See Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982) (holding that court has duty to submit to jury no issue on which evidence would not reasonably support finding); Gerstenzang v. Glenville News & Florist, Inc., 71 Conn. App. 531, 534, 802 A.2d 230 (2002).

In this case, a review of the record reveals that although there was evidence of interaction between Milardo and Lawrence DiStefano, it was insufficient to support the existence of an attorney-client relationship. “An attorney-client relationship is established when the advice and assistance of the attorney is sought and received in matters pertinent to his profession. ” Somma v. Gracey, supra, 15 Conn. App. 379. The burden of establishing an attorney-client relationship is on the party claiming the existence of such a relationship. See Solomon v. Aberman, 196 Conn. 359, 384, 493 A.2d 193 (1985).

In this case, the plaintiff failed to present sufficient evidence of such a relationship and, therefore, the court had a duty not to submit the issue to the jury.

The plaintiff argues that there was evidence tending to show an attorney-client relationship. Specifically, the plaintiff points out that (1) Milardo gave Lawrence DiStefano “fatherly advice,” (2) the plaintiff signed two quitclaim deeds, prepared by Milardo, and without representation by other counsel, and Lawrence DiStefano reviewed the deeds, and (3) Lawrence DiStefano faxed documents to Milardo pertaining to the sale of the Rockfall and Middletown properties.

The following additional facts are relevant to the resolution of the plaintiffs claim. As the trustee, Lawrence DiStefano was taking care of and attempting to sell the two pieces of the plaintiffs real property. In his capacity as trustee, he faxed documents to Milardo. Milardo would review them and then talk to the plaintiff about them. Faxing documents to an attorney’s office does not in and of itself establish an attorney-client relationship. The fact that Lawrence DiStefano did not hire an attorney to review the two quitclaim deeds also fails to show an attorney-client relationship. The property was transferred to him as trustee so he could tend to and possibly sell it. Finally, giving advice of a fatherly nature about a family member’s drinking problem falls well short of establishing an attorney-client relationship. That evidence taken as a whole fails to reasonably support a finding of an attorney-client relationship. Moreover, there was no evidence presented of any payment, from Lawrence DiStefano to the defendants, for services rendered. There was no evidence of either a retainer agreement or a contract between the two men. Those activities are relevant to the determination of its existence. See, e.g., Dubreuil v. Will, 65 Conn. App. 35, 43-44, 781 A.2d 503 (2001). Consequently, we conclude that the court properly charged the jury that no attorney-client relationship existed between Milardo and Lawrence DiStefano.

B

The plaintiff next argues that the court improperly precluded the jury from considering evidence of the standard of care for an attorney on the breach of a fiduciary duty claim. Specifically, the plaintiff argues that the testimony of Zangari was essential to that count and that the court’s charge removed the testimony from the jury’s consideration. Because we conclude that the jury charge was appropriate and did not remove the testimony, we disagree with the plaintiff.

The plaintiff claims that the charge to the jury struck all of Zangari’s testimony. The court instructed the jury that it could not “base a finding that the defendants breached their fiduciary duty on any claim of negligence in their rendering of legal services to the plaintiff because that claim is out of the case.” That statement removed the malpractice count from the jury’s consideration; it did not remove the testimony of Zangari. Because the court removed the malpractice claim from the case, the jury was unable to base a finding of a breach of a fiduciary duty on a finding that the defendants had committed malpractice. Although the jury was told that it could not consider the malpractice claim in determining whether there was a breach of a fiduciary duty, nowhere in the court’s charge was the jury instructed that it should disregard the testimony of Zangaii. The jury was free to consider all of his testimony. As a consequence, the plaintiffs argument must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The action was withdrawn as against certain other defendants. Only Milardo and his law firm are involved as appellees on appeal. We refer to them in this opinion as the defendants.

       The plaintiff raises no issues as to the breach of contract claim.

       Mario Zangari is a licensed attorney who testified at trial as an expert for the plaintiff regarding professional responsibility.

       The following coEoquy took place between the defendants’ attorney and Zangan:
      “ [Defendants’ Counsel]: Now, but you also said that [Lawrence DiStefano] had specific duties as trustee as defined in that trust; is that correct?”
      “[The Witness]: Correct.
      “[Defendants’ Counsel]: And generally, and you don’t have to read them all, but what are those duties as trustee?
      “[The Witness]: His primary duty was to make sure that his mother received funds sufficient to take care of her during her lifetime.
      “[Defendants’ Counsel]: Okay, Okay. And I think you said that — I think you testified that if that had been discussed with her, then you wouldn’t have a problem with [Lawrence] DiStefano being both the trustee and the remainderman or remainderperson; is that correct?
      “[The Witness]: I believe I said that if she — if he discussed it and she understood the risks that were inherent in it, then it’s her decision to do that.
      “ [Defendants’ Counsel]: Okay. And, as a matter of fact, if it had been talked about with her, then you wouldn’t have a problem with it; is that correct?
      “[The Witness]: If she fully understood what she was doing and that the conflict existed that her son could take the moneys, that she was — her moneys and use them for his benefit and not hers and she accepted that, that’s her risk.”

       Although not explicitly framed as such, the claim is an attack on the jury charge, and this court will address it as such.


text:
    STEVEN ROBICHAUD ET AL. v. HEWLETT PACKARD COMPANY
    (AC 23658)
    (AC 24302)
    Foti, Dranginis and DiPentima, Js.

      Submitted on briefs February 27 —
    officially released May 11, 2004

      R. Bartley Halloran and David M. Sheridan filed a brief for the appellants (plaintiffs in both cases).

      Steven R. Humphrey, Maria T. Ackley, Robert M. Buchanan, Jr., and John R. Baraniak, Jr., filed a brief for the appellee (defendant in both cases).
   Opinion

DiPENTIMA, J.

In these two appeals, consolidated for purposes of oral argument, the plaintiffs, Steven Robichaud and Thomas C. Nicholson, Jr., appeal from (1) the denial of their motion for class certification and (2) the granting of the motion for summary judgment filed by the defendant, Hewlett Packard Company. We affirm the judgment of the trial court.

The pleadings, affidavits and other documentary information presented to the court reveal the following facts. The defendant’s ink-jet printers typically include a replaceable ink cartridge in the box at the time of sale. In the spring of 1998, the defendant began to include with certain printers a reduced volume black ink cartridge, called an “economy cartridge,” without altering the packaging to reflect the change. The printer boxes listed, among the contents of the box, the inclusion of an “HP black inkjet print cartridge” or similar words to that effect. The sales literature included the same language. The plaintiffs each purchased certain ink-jet printers, manufactured and sold by the defendant, which included an economy cartridge in the package.

In their December 28, 2000, complaint, the plaintiffs sought declaratory and monetary relief as well as class certification, claiming that by that scheme the defendant intended to effect earlier and more frequent consumer purchases of replacement ink cartridges from the defendant. The plaintiffs alleged that the defendant’s conduct constituted an unfair or deceptive trade practice in violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

On May 30, 2002, the plaintiffs filed a motion seeking certification of a class consisting of “all persons within the state of Connecticut who, during the period from September 1998 to December 2000, purchased ink-jet printers from the Defendant . . . which included with the printer ink cartridges that were designated by the Defendant as ‘economy cartridges.’ ” On October 31, 2002, the court denied the motion for class certification. On November 19, 2002, the plaintiffs appealed.

On January 9, 2003, the defendant filed a motion for summary judgment asserting that (1) the two plaintiffs were not subjected to conduct that misrepresented the printers they purchased, (2) the two plaintiffs did not suffer an ascertainable loss as a result of the alleged violation of CUTPA and (3) the defendant did not commit any unfair or deceptive conduct. On May 29, 2003, the court granted the defendant’s motion. On June 17, 2003, the plaintiffs appealed.

I

In the first appeal, the plaintiffs challenge the court’s denial of class certification. Specifically, the plaintiffs argue that the court improperly (1) determined that their claims were not typical of the claims of the proposed class, (2) determined that there were no questions of law and fact common to the class, (3) determined that they had not demonstrated that the class was so numerous that joinder of all members was impracticable, (4) determined that they were not adequate representatives of the class and (5) considered various factual issues in the litigation.

Because a final judgment was rendered against the plaintiffs subsequent to the denial of class certification, we must determine whether this appeal is moot and whether the plaintiffs have standing to challenge the denial of the class certification. After reviewing pertinent federal case law, we conclude that a judgment on the merits against an individual who claims to be a representative of a purported class in the case does not render moot an appeal challenging the denial of certification or deprive that individual of standing to pursue the appeal. See Deposit Guaranty National Bank of Jackson, Mississippi v. Roper, 445 U.S. 326, 332-33, 338, 100 S. Ct. 1166, 63 L. Ed. 2d 427 (1980) (where judgment entered in each plaintiffs favor, appeal challenging denial of class certification not moot because plaintiffs retained sufficient personal stake in outcome of appeal); United States Parole Commission v. Geraghty, 445 U.S. 388, 403, 100 S. Ct. 1202, 63 L. Ed. 2d 479 (1980) (where case decided on merits, appeal challenging denial of class certification not moot because plaintiff had personal stake in class certification); Anderson v. Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982) (plaintiff who lost sex discrimination action on merits “has standing to appeal the individual adverse determination and in so doing may appeal interlocutory orders decided against her [at trial]”).

We next set forth our standard of review for orders granting and denying class certification. “Although a trial court must undertake a rigorous analysis to determine whether the plaintiff[s] [have] borne [the] burden successfully ... it has broad discretion in determining whether a suit should proceed as a class action. . . . Our review is confined to determining whether the trial court abused its discretion.” (Internal quotation marks omitted.) Marr v. WMX Technologies, Inc., 244 Conn. 676, 680, 711 A.2d 700 (1998); see also Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir. 2002).

In reviewing a decision of the trial court for abuse of discretion, “[e]very reasonable presumption will be given in favor of the trial court’s ruling . . . .” (Internal quotation marks omitted.) Carasso v. Carasso, 80 Conn. App. 299, 310, 834 A.2d 793 (2003), cert. denied, 267 Conn. 913, 840 A.2d 1174 (2004). “Judicial discretion [however] ... is always legal discretion, exercised according to the recognized principles of equity. . . . While its exercise will not ordinarily be interfered with on appeal to this court, reversal is required where the abuse is manifest or where injustice appears to have been done.” (Internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 742-43, 818 A.2d 731 (2003). The plaintiff bears the heavy burden of establishing that each of the requirements of Practice Book §§ 9-7 and 9-8 are met. See Arduini v. Automobile Ins. Co. of Hartford, Connecticut, 23 Conn. App. 585, 589, 583 A.2d 152 (1990).

Under Practice Book § 9-7, “four elements [must be] satisfied to certify a class: (1) numerosity — that the class is too numerous to make joinder of all members feasible; (2) commonality — that the members have similar claims of law and fact; (3) typicality — that the named plaintiffs’ claims are typical of the claims of the class; and (4) adequacy of representation — that the interests of the class are protected adequately.” Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. 738. To maintain a class action, two elements under Practice Book § 9-8 must then be satisfied: (1) commonality— that questions of law or fact common to the members predominate over any questions affecting only individual members and (2) superiority — that a class action is superior to other methods for the fair and efficient adjudication of the controversy.

Here, the action sounds in CUTPA, so we must examine those elements within the context of that claim. “A party seeking to recover damages under CUTPA must meet two threshold requirements. First, he [or she] must establish that the conduct at issue constitutes an unfair or deceptive trade practice. . . . Second, he must present evidence providing the court with a basis for a reasonable estimate of the damages suffered.” (Internal quotation marks omitted.) MacMillan v. Higgins, 76 Conn. App. 261, 279, 822 A.2d 246, cert. denied, 264 Conn. 907, 826 A.2d 177 (2003); see also General Statutes § 42-1 110g.

Here, the court held that the plaintiffs’ depositions suggested that “they are not typical of the persons whose claims of injury from unfair trade practices they seek to represent because the plaintiffs themselves do not allege that they were subjected to conduct that misrepresented the printers they bought, nor that they suffered an ascertainable loss as a result of the conduct that they claim was an unfair trade practice as to class members.” The plaintiffs argue that in so holding, the court focused on “several minor inconsequential features of the fact patterns underlying the plaintiffs’ claims . . . .” Specifically, the plaintiffs argue that because they were not made aware at the time of their purchase that the cartridge provided with the printer was not completely filled, they were indeed subjected to conduct that misrepresented the printers they bought. We agree with the court, however, that misrepresentation by the defendant, if any, did not influence the plaintiffs’ decision to purchase the printers. Rather, they each stated unrelated reasons for purchasing their respective printers.

Robichaud made his decision based primarily on the speed of the printer without seeing any information on the packaging regarding the quantity of ink in the cartridge. Nicholson testified that price was the primary factor in his decision and that he was told by the salesperson who showed him the printer that the ink cartridges ran out quickly. He therefore did not rely on any misrepresentation in making his purchase, but relied on accurate information. The plaintiffs’ claims are not typical of those they seek to represent because they do not share with the members of the proposed class a characteristic that is central to the claim asserted. The plaintiffs have therefore failed to meet the typicality element necessary for class certification.

Because the failure of a party to meet any one of the prerequisites set forth in Practice Book § 9-7 requires a denial of class certification, the plaintiffs’ failure to meet the typicality requirement is dispositive of the appeal. See Arduini v. Automobile Ins. Co. of Hartford, Connecticut, supra, 23 Conn. App. 591.

II

In the second appeal, the plaintiffs claim that the court improperly (1) determined that there was no genuine issue of any material fact as to whether the defendant made a “misrepresentation” in connection with the sale of its printers to the plaintiffs and (2) determined that the conduct of the defendant did not violate CUTPA as a matter of law.

Our examination of the record and briefs persuades us that the judgment of the court should be affirmed. The issues were resolved properly in the court’s concise and well reasoned memorandum of decision. See Robichaud v. Hewlett Packard Co., 48 Conn. Sup. 429, 847 A.2d 316 (2003). Because that memorandum of decision fully addresses all arguments raised in this appeal, we adopt it as a proper statement of the issues and the applicable law concerning those issues. It would serve no useful purpose for us to repeat the discussion contained therein. See Smith v. Trinity United Methodist Church of Springfield, Massachusetts, 263 Conn. 135, 136, 819 A.2d 225 (2003); Burton v. Statewide Grievance Committee, 79 Conn. App. 364, 366, 829 A.2d 927, cert. denied, 267 Conn. 903, 838 A.2d 209 (2003).

The judgment is affirmed.

In this opinion the other judges concurred.

       The parties ultimately waived oral argument in both appeals.

       The plaintiffs withdrew a second count sounding in fraud and misrepresentation on August 1, 2001.

       An order denying class certification for an action under CUTPA is an appealable final order under General Statutes § 42-110h, which provides: “As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this section may be conditional, and it may be amended before decision on the merits. An order issued under this section shall be immediately appealable by either party.”

       Although neither party fully briefed the issue of mootness, we address it because the issue implicates subject matter jurisdiction. Schallenkamp v. DelPonte, 29 Conn. App. 576, 579, 616 A.2d 1157 (1992), aff'd, 229 Conn. 31, 639 A.2d 1018 (1994).

       We note that “our class action jurisprudence is sparse, as most class actions are brought in federal court. Our class action requirements, however, are similar to those applied in the federal courts. Compare Practice Book §§ 9-7 and 9-8 with Fed. R. Civ. P. 23 (a) and (b). . . . Thus, we look to federal case law for guidance in construing our class certification requirements.” (Citations omitted.) Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 737-38, 818 A.2d 731 (2003).