author: FOTI, J.

text:
    AMERICAN HERITAGE AGENCY, INC., ET AL. v. RITA GELINAS ET AL.
    (AC 19854)
    Foti, Spear and Dranginis, Js.
    Argued January 8
    officially released April 10, 2001

      Louis I. Parley, for the appellant (named defendant).

      Andrea A. Hewitt, with whom was John M. Wolfson, for the appellees (plaintiffs).
   Opinion

FOTI, J.

The defendant Rita Gelinas appeals from the judgment rendered in favor of the plaintiffs, American Heritage Agency, Inc., and William Gelinas, after a trial to the court. On appeal, the defendant claims that the trial court improperly (1) found that the plaintiff was the sole owner of American Heritage Agency, Inc., (2) concluded that the plaintiffs exhibit 6A, which consisted of certain minutes of a shareholders’ and directors’ meeting, was an authentic document, (3) rendered judgment in favor of the plaintiff despite the plaintiffs unclean hands, (4) concluded that the defendant was not the sole owner of American Heritage Agency, Inc., and (5) disqualified attorney Mark Rosenblit from representing the defendant. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. Prior to his marriage and while still in high school, the plaintiff worked with his father in Putnam for his family’s catering business, American Heritage Agency. The plaintiff served in the Korean War and, upon his return, discovered that his mother had sold the family’s catering business.

In 1954, the plaintiff married the defendant. Between 1954 and 1963, both parties worked. The plaintiff taught school during the day and worked nights for a railroad. The defendant worked as a secretary for a local manufacturer. Prior to 1963, the parties engaged in several business endeavors together that involved buying property from which they derived rental income.

In 1963, the parties decided to focus their careers on a wedding catering venture, which encompassed everything from the invitations to planning vacations. The parties also continued to manage their rental properties. That same year, the parties formed a corporation called Bee Gee’s, Inc., as an umbrella for their activities. The plaintiff had his attorney, F. Owen Egan, prepare the corporate papers that were filed with the secretary of state on September 3, 1963. The corporate papers listed the plaintiff as president and treasurer, the defendant as vice president and secretary, and Egan as assistant treasurer.

The defendant operated the office while the plaintiff brought in business and made property acquisitions. Between 1963 and 1970, the parties started to refer to the corporation as American Heritage Agency and later changed the name of the corporation from Bee Gee’s, Inc., to American Heritage Agency, Inc., in 1970. The parties expanded the corporation to include a travel agency and other businesses such as a school lunch program caterer in East Hartford and a Sealtest distributorship.

In 1970, when the parties amended the certificate of incorporation changing the corporate name from Bee Gee’s, Inc., to American Heritage Agency, Inc., they failed to file a certificate of dissolution for Bee Gee’s, Inc., with the secretary of the state’s office. In 1979, the publishers of American Heritage books threatened to sue American Heritage Agency, Inc., over the use of its name. In response to that threat, the plaintiff asked attorney Eddie Zyko to set up a new corporation called Heritage Windjammer, Inc. Additionally, the plaintiff took back the name Bee Gee’s, Inc., in place of the name American Heritage Agency, Inc. Nevertheless, once the plaintiffs attorney advised him that he could resume using the name American Heritage Agency, he filed the dissolution papers for Bee Gee’s, Inc., on December 20,1979. Between 1979 and 1989, the corporate names Heritage Windjammer, Inc., and American Heritage Agency, without the “Inc.,” were used together. The names were listed together on letterhead and income tax returns. In 1980, by corporate resolution, Heritage Windjammer, Inc., changed its name back to American Heritage Agency, Inc. In 1989, the name of the corporation was changed from Heritage Windjammer, Inc., to American Heritage Agency, Inc.

Over the years, the parties amassed a total of twenty-seven pieces of real property located in Connecticut and New Jersey. The properties were valued in excess of $7 million and generated annual income of up to $500,000. Sometime between 1978 and 1979, the parties experienced marital difficulties when the defendant became aware that the plaintiff was involved in an extramarital relationship. The parties remained married, however, and continued their business relationship. In 1992, the plaintiff discovered that he had colon cancer. He was quite ill and thought that he was going to die. As a result, in 1992, he transferred all of his property interests to the defendant. He would not have divested himself of his property interests if he did not believe that he was dying.

In December, 1992, the parties mutually agreed on a divorce. After the divorce, however, the parties continued to live together under the same arrangement that they had prior to the divorce and after suffering marital difficulties in the late 1970s. On August 18, 1993, the defendant executed her last will and testament, which left everything to the plaintiff.

The parties continued to live together until 1995, when the defendant locked the plaintiff out of the family home and the business office of American Heritage Agency, Inc. The defendant told the plaintiff that he did not die as expected and that she could not stand him any longer.

After she locked the plaintiff out of their home and office, the defendant received notice that one of the New Jersey properties was experiencing financial difficulties and that a bankruptcy proceeding was looming. The defendant contacted attorney Ronald Glick, who had handled a previous bankruptcy proceeding for the parties in New Jersey. In August or September, 1995, Glick took on representation of American Heritage Agency, Inc., at the defendant’s request. The defendant told Glick that she owned American Heritage Agency, Inc. Prior to 1995, Glick had dealt with either the plaintiff or Brenda McLean, a part-time worker whose job was to find tenants for the property.

Because the defendant had locked the plaintiff out of the home and the business office, the plaintiff no longer had access to documents concerning the various corporate entities that he had arranged. The plaintiff brought the present action on behalf of himself and American Heritage Agency, Inc., when the defendant began holding herself out as the sole owner of American Heritage Agency, Inc. From its inception, the parties used American Heritage Agency, Inc., as a vehicle for receiving and disbursing income from their property management activities. The parties placed money into American Heritage Agency, Inc., to pay salaries associated with their business activities.

Documents evidencing ownership of American Heritage Agency, Inc., include minutes of a shareholders’ and directors’ meeting dated March 1, 1989, minutes of a special meeting of the shareholders dated October 5, 1995, and resolutions of the board of directors dated October 6, 1995.

Over the years, the defendant had not objected to the corporations that the plaintiff formed or to the fact that he was the sole owner of those corporations. She did not object because their money was not in the corporations, but, rather, it was in the properties that they owned jointly and individually.

The defendant submitted only one document in support of her alleged ownership of American Heritage Agency, Inc. That document was in the form of minutes of a special meeting of the shareholders of American Heritage Agency, Inc., electing herself as a director and making herself the sole shareholder. Only the defendant had signed the minutes of the October 6,1995 meeting. No other documentation supported the defendant’s representation as to her sole ownership of American Heritage Agency, Inc.

On the basis of those facts, the court concluded that the plaintiff was the sole owner of American Heritage Agency, Inc. Thereafter, the court enjoined the defendant from holding herself out to be either an officer or director of American Heritage Agency, Inc., and from exercising or purporting to exercise any control over American Heritage Agency, Inc., its proceeds, funds or assets. The court further ordered that the defendant render a full and accurate accounting of American Heritage Agency, Inc., for the period of time in which she exercised or purported to exercise control over it. Additional facts will be provided as needed.

I

The defendant claims that the record does not support the court’s conclusion that the plaintiff was the sole owner of American Heritage Agency, Inc. We disagree.

“Our analysis begins with the appropriate standard of review. We have long held that a finding of fact is reversed only when it is clearly erroneous. See, e.g., Poulos v. Pfizer, Inc., 244 Conn. 598, 616, 711 A.2d 688 (1998). A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. Id. Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 345-46, 736 A.2d 824 (1999).

The defendant claims that her proof that the parties jointly owned American Heritage Agency, Inc., controverts the court’s conclusion that the plaintiff was the sole owner of the corporation. The defendant argues that her testimony and documentary evidence established that the parties were joint owners. Specifically, the defendant relies on two stock certificates dated May 1, 1970, that indicate that the plaintiff and the defendant each owned fifty shares of American Heritage Agency, Inc. We are not persuaded.

The defendant essentially asks this court to retry the case and to evaluate the credibility of witnesses and the weight of the evidence. We do not engage in this type of review. See Hoye v. DeWolfe Co., 61 Conn. App. 558, 562, 764 A.2d 1269 (2001). “[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go.” (Internal quotation marks omitted.) Id. The defendant urges us to look at previous stock certificates from American Heritage Agency, Inc., but ignores the fact that that corporation was dissolved on December 31, 1979.

The court relied on the minutes of the shareholders’ and directors’ meeting of American Heritage Agency, Inc., dated March 1, 1989, that stated that the plaintiff was the sole owner of the corporation. The court found that the defendant’s signature on the 1989 minutes was genuine. Moreover, Zyko, who set up American Heritage Agency, Inc., in 1979 at the plaintiffs direction, testified that he understood that the plaintiff was the sole owner of the corporation. The court found the defendant’s evidence unpersuasive, specifically, the minutes of a special meeting of the shareholders dated October 6, 1995, which stated that she was the sole shareholder of American Heritage Agency, Inc. After our review of the record, we conclude that it contains evidence that supports the court’s conclusion that the plaintiff was the sole owner of American Heritage Agency, Inc.

II

The defendant next claims that the court improperly determined that the plaintiffs exhibit 6A, which consists of an original copy of the March 1, 1989 minutes of the shareholders’ and directors’ meeting of American Heritage Agency, Inc., was an authentic document. Specifically, the defendant claims that the signatures on that document, with the exception of the plaintiff’s, were not genuine. The defendant argues that the court could not make its determination of the authenticity of the signature on the basis of the credibility of the parties’ handwriting experts.

The following additional facts are required for our resolution of this claim. At trial, the parties presented testimony from handwriting experts on the question of the authenticity of the defendant’s signature on the March 1, 1989 minutes of American Heritage Agency, Inc. The defendant’s expert, Ana Kyle, testified that the signature of the defendant on that document was not authentic. The plaintiffs expert, Clarissa DeAngellis, testified that the signature was authentic.

The defendant disagrees with the court’s factual findings and requests that we consider the evidence and reach a different conclusion. “It is fundamental appellate jurisprudence that an appellate court does not retry the case and substitute its judgment for that of the trial court. Malmberg v. Lopez, 208 Conn. 675, 679, 546 A.2d 264 (1988). Rather, it is the function of the Appellate Court to determine whether the decision of the trial court is clearly erroneous.” Century Mortgage Co. v. George, 35 Conn. App. 326, 329-30, 646 A.2d 226, cert, denied, 231 Conn. 915, 648 A.2d 150 (1994).

“ ‘It is undisputed that where an issue is raised regarding the authenticity of a writing, proof of authenticity may be made by a comparison of the disputed writing with another writing, an exemplar, the authenticity of which has been established. Shakro v. Haddad, 149 Conn. 160, 163, 177 A.2d 221 (1961); Tyler v. Todd, 36 Conn. 218, 222 (1869). The authenticity of the exemplar may be proved by circumstantial evidence. McCormick, Evidence (3d Ed.) § 222; annot., 41 A.L.R.2d 575, 589 § 8.’ State v. Jones, 8 Conn. App. 177, 184, 512 A.2d 932 (1986). ‘In general, a writing may be authenticated by a number of methods, including direct testimony, circumstantial evidence or proof of custody. [2 C. McCormick, Evidence (4th Ed. 1992)] §§ 219 through 228, pp. 38-58.’ New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 604, 717 A.2d 713 (1998).” Churchill v. Allessio, 51 Conn. App. 24, 34, 719 A.2d 913, cert, denied, 247 Conn. 951, 723 A.2d 324 (1998).

Here, the court found that the signature on the March 1, 1989 minutes was that of the defendant. The court found that the plaintiff had no reason to forge his signature or to have the defendant’s signature forged on the 1989 minutes. The court found the testimony of the plaintiffs certified document examiner to be more credible than the testimony of the defendant’s examiner. The court also found that, with regard to business decisions, the defendant acquiesced to whatever the plaintiff suggested. The defendant’s sole business input involved what property they should purchase. On the basis of our review of the record, we conclude that the evidence supports the court’s finding that the defendant’s signature on the March 1, 1989 minutes was authentic and that that finding was not clearly erroneous.

Ill

The defendant next claims that the court improperly rendered judgment in favor of the plaintiff despite the defendant’s defense of unclean hands. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. The defendant filed a counterclaim, alleging, inter alia, that the plaintiff had interfered with the operation of American Heritage Agency, Inc., by filing false corporate reports and fraudulently claiming to be an officer, director or shareholder of the corporation. In response, the plaintiff denied that he had engaged in any fraudulent activity in relation to the present case and raised nine special defenses to the defendant’s counterclaim.

“Our jurisprudence has recognized that those seeking equitable redress in our courts must come with clean hands. The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue. Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 525, 686 A.2d 481 (1996). For a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands. . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court. ... It is applied . . . for the advancement of right and justice. . . . McCarthy v. McCarthy, 55 Conn. App. 326, 335, 752 A.2d 1093 (1999), cert, denied, 252 Conn. 923, 752 A.2d 1081 (2000). One who seeks to prove that he is entitled to the benefit of equity must first come before the court with clean hands. . . . The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in wilful misconduct with regard to the matter in litigation. . . . The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts’ integrity dictate that the clean hands doctrine be invoked. . . . Polverari v. Peatt, 29 Conn. App. 191, 202, 614 A.2d 484, cert, denied, 224 Conn. 913, 617 A.2d 166 (1992). . . .

“This view is consistent with the decision of our Supreme Court in Orsi v. Orsi, 125 Conn. 66, 69-70, 3 A.2d 306 (1938). In that case, the court stated: The maxim [that he who comes into equity must do so with clean hands] only applies to the particular transaction under consideration, for the court will not go outside the case for the purpose of examining the conduct of the complainant in other matters or question his general character for fair dealing. The wrong must be done to the defendant himself and must be in regard to the matter in litigation.” (Citations omitted; internal quotation marks omitted.) Thompson v. Orcutt, 59 Conn. App. 201, 205-206, 756 A.2d 332, cert, granted on other grounds, 254 Conn. 934, 761 A.2d 758 (2000).

Here, the court expressly found that the plaintiff did not forge the documents that the defendant claims were fraudulent. Indeed, the court found that the defendant’s signature on the March 1, 1989 minutes was authentic. The court found that the defendant had failed to meet her burden of proof. After our review of the record, we conclude that the court properly refused to apply the doctrine of unclean hands based on the facts that it found, which are supported by the record.

IV

The defendant next claims that the court improperly concluded that she was not the sole owner of American Heritage Agency, Inc. We disagree.

We already have held in part I of this opinion that the court did not improperly conclude that the plaintiff was the sole owner of American Heritage Agency, Inc. As previously stated in part I, the record supports the court’s conclusion that the plaintiff was the sole owner of American Heritage Agency, Inc. Therefore, the court did not improperly conclude that the defendant was not the sole owner of the corporation.

V

Finally, the defendant claims that the court acted improperly when it disqualified attorney Rosenblit from representing the defendant. We disagree.

The following additional facts are necessary for our review of the defendant’s claim. The plaintiff originally named Rosenblit as a defendant in the present case, and Rosenblit represented himself pro se while he was a party to the proceeding. During the trial, however, the plaintiff withdrew the complaint against Rosenblit. Thereafter, Rosenblit filed an appearance on behalf of the defendant. At that time, attorney Louis Parley, who continued to represent the defendant, already represented her. On July 21, 1999, the plaintiff filed a motion to disqualify Rosenblit from representing the defendant on the ground that Rosenblit previously had represented the plaintiff in other matters. The plaintiff claimed that Rosenblit’s representation of the defendant violated mies 1.7 and 1.9 of the Rules of Professional Conduct. On August 30, 1999, the court granted the plaintiffs motion to disqualify Rosenblit. The court found that Rosenblit had developed a close relationship with both the plaintiff and the defendant over a substantial period of time. The court found that Rosenblit had represented the plaintiff on numerous occasions during which time the plaintiff considered Rosenblit to be his attorney. Moreover, during the divorce proceeding, Rosenblit refused to represent the defendant because of a conflict of interest.

The court also found that the defendant had other counsel present during the entire proceeding and that, therefore, Rosenblit’s disqualification would not prejudice her. The court found that Rosenblit’s past relationship with the plaintiff, coupled with the fact that the defendant already had representation in the present case, provided a sufficient basis for disqualification.

“The Superior Court has inherent and statutory authority to regulate the conduct of attorneys who are officers of the court. . . . We accord wide discretion to a trial court’s ruling on a motion for disqualification of counsel for conflict of interest. ... In determining whether the trial court abused its discretion, we indulge every reasonable presumption in favor of the correctness of the court’s decision.” (Citations omitted; internal quotation marks omitted.) Fiddelman v. Redmon, 31 Conn. App. 201, 210, 623 A.2d 1064, cert, denied, 226 Conn. 915, 628 A.2d 986 (1993).

“Disqualification of counsel is a remedy that serves to ‘ “enforce the lawyer’s duty of absolute fidelity and to guard against the danger of inadvertent use of confidential information.” ’ Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 518 F.2d 751, 754 (2d Cir. 1975). In disqualification matters, however, we must be ‘solicitous of a client’s right freely to choose his counsel’; Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d Cir. 1978); mindful of the fact that a client whose attorney is disqualified may suffer the loss of time and money in finding new counsel and ‘may lose the benefit of its longtime counsel’s specialized knowledge of its operations.’ Id. The competing interests at stake in the motion to disqualify, therefore, are: (1) the [plaintiffs] interest in protecting confidential information; (2) the [defendant’s] interest in freely selecting counsel of [her] choice; and (3) the public’s interest in the scrupulous administration of justice. Goldenberg v. Corporate Air, Inc., 189 Conn. 504, 507, 457 A.2d 296 (1983), overruled in part, Burger & Burger, Inc. v. Murren, 202 Conn. 660, 522 A.2d 812 (1987).

“Rule 1.9 of the Rules of Professional Conduct governs disqualification of counsel for a conflict of interest relating to a former client. The rule states that: ‘A lawyer who has formerly represented a client in a matter shall not thereafter: (a) Represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or (b) Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.’

“Rule 1.9 (a) expresses the same standard that we had applied under the Code of Professional Responsibility when a claim of disqualification based on prior representation arose. Thus, an attorney should be disqualified if he has accepted employment adverse to the interests of a former client on a matter substantially related to the prior representation. State v. Jones, [180 Conn. 443, 449, 429 A.2d 936 (1980), overruled in part, State v. Powell, 186 Conn. 547, 442 A.2d 939 (1982), cert, denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982)]. This test ‘has been honed in its practical application to grant disqualification only upon a showing that the relationship between the issues in the prior and present cases is “patently clear” or when the issues are “identical” or “essentially the same.” Government of India v. Cook Industries, Inc., [supra, 569 F.2d 739-40].’ [State v. Jones, supra, 449]; see also State v. Bunkley, 202 Conn. 629, 652, 522 A.2d 795 (1987). Once a substantial relationship between the prior and the present representation is demonstrated, the receipt of confidential information that would potentially disadvantage a former client is presumed. Goldenberg v. Corporate Air, Inc., supra, [189 Conn. 512]; State v. Jones, supra, 450.

“Unlike Canon 9 under the Code of Professional Responsibility, however, the Rules of Professional Conduct do not expressly state that a lawyer should avoid the appearance of impropriety. Even when Canon 9 was applicable, we rejected the notion that an ‘appearance of impropriety’ was alone a sufficient ground for disqualifying an attorney. In State v. Jones, supra, [180 Conn. 452-53], we stated that ‘the appearance of impropriety alone is “simply too slender a reed on which to rest a disqualification order except in the rarest of cases.” Board of Education of the City of New York v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979).’ See also State v. Bunkley, supra, [202 Conn. 653-54]. Although considering the appearance of impropriety may be part of the inherent power of the court to regulate the conduct of attorneys, it will not stand alone to disqualify an attorney in the absence of any indication that the attorney’s representation risks violating the Rules of Professional Conduct.” Bergeron v. Madder, 225 Conn. 391, 397-400, 623 A.2d 489'(1993).

On the basis of our review of the record, we conclude that the court did not abuse its discretion when it disqualified Rosenblit. The court properly relied on its finding that the plaintiff had an interest in protecting confidential information that Rosenblit had acquired during the course of his past representation of the plaintiff. The court found that the relationship was “close” and “substantial.” The court’s finding of a substantial and close relationship entitled it to presume that Rosenblit’s representation would disadvantage the plaintiff. Moreover, the court also found that disqualifying Rosenblit did not harm the defendant’s interest in selecting counsel of her own choice because she already had an attorney whom she had freely chosen, and who had represented her in the proceedings. Therefore, the court did not abuse its discretion when it disqualified Rosenblit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendants in this action are Mark Rosenblit and Gertrude Irwin. On March 2, 1999, however, the plaintiff withdrew the action as to Rosenblit and Irwin. Accordingly, we refer in this opinion to Rita Gelinas as the defendant.

       Because William Gelinas brought this action on behalf of himself and American Heritage Agency, Inc., we refer to him as the plaintiff.

       The corporation also was known as B.G.’s, Inc., because the plaintiff decided to shorten the name from Bee Gee’s. The initials B and G stood for Bill Gelinas.

       The plaintiff did so because counsel advised him that it would minimize exposure to a potential lawsuit in which the American Heritage Publishing Company threatened to sue American Heritage Agency over the use of the name American Heritage.

       It should be noted that the name change was complete in 1980; however, the name change was not filed with the secretary of the state’s office until 1989.

       “Pursuant to General Statutes § 33-291 (c), a corporation, once formed, exists until it is dissolved in accordance with the provisions of the Stock Corporation Act; General Statutes § 33-282 et seq.; until it is extinguished through a valid merger pursuant to General Statutes § 33-369, or, if it is of limited duration, until a date set forth in its articles of incorporation.” Fink v. Golenbock, 238 Conn. 183, 203-204, 680 A.2d 1243 (1996).

       The defendant also argues in support of her claim that (1) the July 5, 1979 calligraphic stock certificate is a falsified document, (2) the printed “Heritage Win<(jammer, Inc.” stock certificate is a spurious document, (3) the testimony of attorney Eddie Zyko that he thought the plaintiff was the owner of Heritage Windjammer does not establish that the plaintiff was the owner, (4) the plaintiffs exhibit of a shareholders’ and directors’ meeting dated March 1,1989, was a falsified document and (5) the plaintiff admitted in his 1992 deposition, in an unrelated matter, that he did not own or have anything to do with the operation of American Heritage Agency, Inc., and the plaintiff should be held to that admission. As stated in the text of this opinion, the defendant’s arguments implicate the trial court’s role as fact finder. The defendant essentially argues that the court should have adopted her version of the facts. As stated previously, our review of the record reveals evidence that supports the court’s decision. We cannot retry the facts or pass upon the credibility of the witnesses. See Aetna Casualty & Surety Co. v. Pizza Connection, Inc., 55 Conn. App. 488, 491, 740 A.2d 408 (1999).

       Rule 1.7 of the Rules of Professional Conduct provides: “Conflict of Interest: General Rule
      “(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
      “(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and “(2) Each client consents after consultation.
      “(1>) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
      “(1) The lawyer reasonably believes the representation will not be adversely affected; and

        “(2) The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.”

       Rule 1.9 of the Rules of Professional Conduct provides: “Conflict of Interest: Former Client
      “A lawyer who has formerly represented a client in a matter shall not thereafter:
      “(1) Represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
      “(2) Use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.”


source: Caselaw Access Project

author: FREEDMAN, J.

license: Public Domain

text:
    MARGARITA MELO ET AL. v. CHARLES SPENCER, JR.
    (AC 20227)
    Lavery, C. J., and Landau and Freedman, Js.

      Argued January 16
    officially released April 10, 2001

      Michael T. Bologna, with whom, on the brief, were Dominick J. Rutigliano and Gwen E. Murray, for the appellant (defendant).

      Eugene A. Skowronski, for the appellees (plaintiffs).
   Opinion

FREEDMAN, J.

The defendant, Charles Spencer, Jr., appeals from the judgment of the trial court rendered after it granted the motion filed by the plaintiffs to set aside the jury verdict for the defendant and ordered a new trial in this negligence action. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The plaintiffs brought this action for damages sustained in an automobile accident that occurred on January 14, 1995, when the plaintiffs’ vehicle struck the defendant’s vehicle. The plaintiffs maintained at trial that the defendant caused the accident by making a darting left turn in front of them from a northbound, nontuming lane against a traffic signal that required him to stop. The defendant asserted that he had turned left on a green arrow from the proper lane when the plaintiffs’ vehicle in a far right southbound lane struck him after he had gone through the intersection and was entering the cross street.

Following a trial, the jury returned a verdict in favor of the defendant. The plaintiffs then filed a motion to set aside the verdict, claiming, inter alia, that they were improperly precluded from presenting expert testimony from Officer Vincent Vizzo of the Derby police department due to the court’s mistaken belief that Vizzo had not been disclosed as an expert witness pursuant to Practice Book § 13-4. The court granted the motion, stating in its memorandum of decision: “Because the jury was deprived of expert opinion evidence concerning inferences to be drawn by the investigating officer as to the cause of the collision due to a mistaken ruling by the court, the motion is granted.” The defendant then filed the present appeal.

“Our standard of review, where the trial court’s action on a motion to set aside a verdict is challenged, is whether the trial court clearly abused its discretion. . . . The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion.” (Internal quotation marks omitted.) Chieffalo v. Norden Systems, Inc., 49 Conn. App. 474, 477, 714 A.2d 1261 (1998). A trial court has the “inherent power to set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict.” Munson v. Atwood, 108 Conn. 285, 288, 142 A. 737 (1928). “It is proper for a trial court, using due caution, and in the exercise of its discretion, to set aside a verdict when satisfied that ... its rulings on evidence were erroneous and that those erroneous . . . rulings were consequential enough to have had a substantial effect on the verdict.” Ardoline v. Keegan, 140 Conn. 552, 555-56, 102 A.2d 352 (1954).

In granting the plaintiffs’ motion, the court reviewed the circumstances under which it precluded Vizzo from providing expert opinion testimony. Defense counsel had initially objected to Vizzo being allowed to provide expert opinion testimony on the ground that there was no disclosure pursuant to Practice Book § 13-4. Plaintiffs’ counsel countered by stating that he thought he had disclosed Vizzo, but when told that the court could find no evidence of it in the file, the plaintiffs’ counsel indicated that he would stand corrected. The court sustained the objection, thus precluding Vizzo from providing expert opinion testimony. A postverdict review of the court file revealed that the disclosure of Vizzo was made two and one-half years before trial and thus, the basis for the court’s decision was erroneous.

In its memorandum of decision granting the motion to set aside the verdict, the court stated: “There was a mutual mistake on the part of defense counsel and the court in concluding that no disclosure had been made and by the plaintiffs’ counsel, who after first differing, acceded to the finding that no filing had been made. None of that changes the reality of the situation however. The court’s ruling arose out of mistake. The [Practice Book] § 13-4 identification had in fact been made. In fact, the plaintiff had disclosed that Vizzo would opine that the accident was caused by the negligence of the defendant, and on all matters set forth in the police report and the reasonable inferences to be drawn therefrom. The sole ground upon which the objection was made and sustained objectively did not exist.” After discussing Vizzo’s experience and training, as well as his role in investigating the accident in the present case, the court stated that Vizzo “probably would have been permitted to testify about inferences he drew from the location of the debris as to the point of impact, the relative location of vehicles and other factual circumstances concerning the accident. These factual circumstances were the principal issues litigated, and it was apparent to the court as to where the plaintiffs’ counsel was attempting to go with his questions seeking opinion evidence.” The court concluded, stating that “after careful review of the transcripts . . . and all of the other evidence in the case,” it would create an injustice for judgment to enter on the verdict.

On the basis of our review of the record, and considering the briefs and argument of counsel, we cannot say that the court’s decision to set aside the verdict constituted an abuse of discretion. In so holding, we note the defendant’s argument that the court sustained his nondisclosure objection with respect to a line of questioning about the sequence of traffic lights and that the plaintiffs never asked Vizzo any questions about the point of impact. Our review of the trial transcript, however, reveals that the court precluded Vizzo from offering opinion testimony and that this was not limited to questions about traffic lights. Furthermore, contrary to the defendant’s claim, once the court sustained the objection on the mistaken ground of nondisclosure, the plaintiff was not required to continue asking questions to elicit Vizzo’s opinion. With regard to the defendant’s claim that the plaintiffs had a duty to correct the mistake immediately, we again refer to the memorandum of decision in which the court refers to the mutual mistake on the part of the plaintiffs’ counsel, the defendant’s counsel and the court. Neither the plaintiffs’ counsel nor the defendant’s counsel corrected the mistake prior to the end of trial, although both had the opportunity to do so. In fact, it was the defendant’s counsel, who had equal access to the pleadings, who induced the mistake by his objection based on an erroneous premise. Under such circumstances, we decline to hold that the plaintiffs waived their right to argue that Vizzo had been disclosed as an expert.

Finally, the defendant argues that Vizzo’s testimony would have been merely cumulative. In that regard, we note that the court, which had firsthand knowledge of the trial and the evidence presented, concluded, rather, that the preclusion of Vizzo’s testimony was so significant as to be harmful, thus resulting in the court’s granting the motion to set aside the verdict. Specifically, the court stated: “Vizzo was ready to opine about the principal issue in the case, namely where the impact occurred, and that it occurred near or where the plaintiffs said it did rather than where the defendant asserted it happened. This evidence as to what import the location of crash debris on the roadway might have had in determining the point of impact was important to liability issues in the case. If the jury found that the impact occurred where the debris was located in the middle of the intersection in the center southbound lane under the traffic signal, as the plaintiffs claimed, rather than in the cross street where the defendant said it happened, the plaintiffs’ contention that the defendant’s darting left turn was the negligence which caused the collision would be buttressed.” We, therefore, cannot agree with the defendant’s claim that Vizzo’s testimony would have been cumulative.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Margarita Meló and Sara Epifano.

       Practice Book § 13-4 (4) provides in relevant part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. ... If disclosure of the name of any expert expected to testily at trial is not made in accordance with this subsection, or if an expert witness who is expected to testily is retained or specially employed after a reasonable time prior to trial, such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. . . .”

       The court stated to the plaintiffs’ counsel at trial: “Really what you are asking [Vizzo] to do — this is a close question. [Defense counsel’s] objection is that you are asking [Vizzo] really to offer an opinion about something; and it may be an opinion based on facts, but it is an opinion. ... He wasn’t disclosed as a person who was going to offer expert opinions, even though he may well be qualified to do so. ... I sustain the objection.”


author: CALLAHAN, J.

text:
    BENITA BRYAN v. SHERATON-HARTFORD HOTEL ET AL.
    (AC 19615)
    Landau, Schaller and Callahan, Js.,

      Argued September 25, 2000
    officially released April 17, 2001

      Diane D. Duhamel, for the appellants (defendants).

      James P. Connolly, for the appellee (plaintiff).
   Opinion

CALLAHAN, J.

The defendants, the Sheraton-Hartford Hotel and the Insurance Company of North America, appeal from the decision of the compensation review board (board) affirming an award by the workers’ compensation commissioner for the first district (commissioner) to the plaintiff, Benita Bryan, which attributed a 10 percent permanent impairment of her left shoulder to an injury incurred while she was working for the defendant Sheraton-Hartford Hotel. On appeal, the defendants claim that (1) the board improperly affirmed the commissioner’s decision because the record lacks evidence supporting the award and (2) the commissioner and, in turn, the board, violated the defendants’ due process rights to be heard and to present evidence. We agree with the defendants and reverse the decision of the board.

The following undisputed facts are relevant to this appeal. On or about December 23, 1989, while employed by the defendant Sheraton-Hartford Hotel, the plaintiff fell at work and suffered compensable lower back injuries. As a result, from 1989 through 1991, she received various temporary total and partial disability benefits. Subsequently, the parties entered into a voluntary agreement regarding the plaintiffs work-related injury, which the commissioner approved on February 18, 1992. The voluntary agreement stipulated that the plaintiff’s December 23,1989 fall resulted in a 7.25 percent permanent partial disability to her lower back. There was no reference to any disability of her left shoulder in the stipulation.

After the parties entered into the voluntary agreement, the plaintiff allegedly began to suffer from additional medical problems, including pain in her left shoulder. Claiming that those additional infirmities resulted from her December 23, 1989 fall at work, and thus should be accounted for in the amount of her disability benefits, the plaintiff sought a formal hearing before the commissioner.

A hearing addressing the plaintiffs claims was held on June 21, 1995. At the hearing, one of her treating physicians testified that certain gynecological and gastrointestinal disorders alleged by the plaintiff were unrelated to her fall at work. Further, the defendants submitted several medical reports from the plaintiffs treating orthopedist, Steven E. Selden. Selden’s several reports, which were dated as late as April, 1994, stated that the plaintiffs left shoulder injury was not a result of her fall at work on December 23, 1989. Rather, it was his opinion that her left shoulder injury was attributable to a fall that had occurred in December, 1993, or to two separate automobile accidents in which she was involved, those having occurred in March, 1989, and September, 1991.

The commissioner dismissed the plaintiffs case on March 28,1996, finding that her gynecological, gastrointestinal problems and her left shoulder injury were unrelated to her December 23, 1989 work-related fall. The commissioner specifically concluded that the plaintiff had failed to “sustain her burden of proof that her shoulder complaints are related to the December 23, 1989 work-related injury . . . .”

On December 16, 1996, the plaintiff appealed to the board from the commissioner’s decision and filed a motion to submit additional evidence. Specifically, the plaintiff sought to submit a medical report from Selden, dated April 12, 1996, and a report dated November 25, 1996, from another physician, Susan Levine, who had treated the plaintiff for chronic fatigue syndrome. Selden’s medical report of April 12, 1996 stated: “Patient had previously been assigned a 12% permanency to her left shoulder. Patient’s records are currently in storage. Ten percent of the patient’s permanency should be considered attributable to her Workmans’ Compensation injury of December, 1989.”

On March 12, 1997, the board denied the plaintiffs motion as to Levine’s report, but permitted her to submit Selden’s report because it contradicted the commissioner’s previous finding concerning the plaintiffs left shoulder. In granting, in part, the plaintiffs motion, the board stated: “We, therefore, grant the [plaintiffs] motion to submit additional evidence limited to the report from Dr. Selden dated April 12,1996, and remand this matter to the trial commissioner.”

At the hearing on the remand, the defendants introduced an additional report from Selden, dated April 11, 1997, to rebut his report of April 12, 1996. In his 1997 report, Selden rescinded the opinion expressed in his 1996 report. His April 11,1997 report stated: “I am sorry for any confusion my reports may have caused. . . . A careful review of my records indicates that there was an injury when [the plaintiff] fell in December, 1993.1 am attributing her left shoulder impairment to that fall. ... I had not previously assigned any permanency of her shoulder to the December 23, 1989 injury. My records of April 12, 1996, are in error when I assigned a portion of that permanency to the December, 1989 accident. Her records had been in storage, and I had not been able to fully review the situation when I prepared that report and I apologize.”

On November 13, 1997, the commissioner nevertheless entered a finding and award in favor of the plaintiff and concluded that “the [plaintiff] . . . injured her left shoulder in a December, 1989, accident which . . . arose out of and in the course of her employment at the [defendant] Sheraton-Hartford Hotel . . . [and consequently] sustained ... a 10 percent permanent partial disability to the left shoulder.” The commissioner ordered the defendants to pay to the plaintiff 29.1 weeks of compensation at her basic compensation rate representing 10 percent permanency to the left nonmaster shoulder. Declining to consider Selden’s April 11, 1997 report, the commissioner stated that “[although the parties seek to have the undersigned consider other evidence which may have some bearing on Dr. Selden’s report of April 12, 1996, the remand of the [board] is clear and unequivocal. The remand specifically restricts the consideration of evidence to that [April 12, 1996] report of Dr. Selden .... The undersigned will not permit this trial to be expanded beyond the limits as set forth by the [board’s] remand.”

The defendants appealed to the board from the commissioner’s finding and award pursuant to General Statutes (Rev. to 1989) § 31-301 (a). On May 7, 1999, the board affirmed the commissioner’s finding and award, and concluded that the commissioner properly considered the 1996 report from Selden in light of all of the prior evidence in the record. The board further concluded that the commissioner appropriately had refused to consider Selden’s 1997 report because the report was only cumulative of evidence already on the record. This appeal followed.

On appeal, the defendants claim that the board improperly affirmed the commissioner’s findings because the commissioner’s decision lacks sufficient evidence to support its conclusion. Further, the defendants claim that the board improperly affirmed the commissioner’s decision because the commissioner’s refusal to consider Selden’s 1997 report, which was offered to rebut the plaintiffs evidence, violated the defendants’ due process rights to be heard and to present evidence. We agree.

Our standard of review for workers’ compensation decisions is well established. The commissioner is the sole trier of fact and “[t]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Hebert v. RWA, Inc., 48 Conn. App. 449, 452, 709 A.2d 1149, cert, denied, 246 Conn. 901, 717 A.2d 239 (1998), quoting Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). “The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts.” (Internal quotation marks omitted.) Mulroy v. Becton Dickinson Co., 48 Conn. App. 774, 776, 712 A.2d 436 (1998), quoting Fair v. People’s Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s findings and award. Mulroy v. Becton Dickinson Co., supra, 777. “ ‘Our scope of review of [the] actions of the [board] is . . . limited. . . . [However,] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.’ ” Knapp v. New London, 44 Conn. App. 465, 468, 691 A.2d 11 (1997), quoting Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994).

After reviewing the record, we conclude that the board’s affirmation of the commissioner’s decision is incorrect in law and improperly includes facts found without evidence. Our conclusion that the board improperly upheld the commissioner’s decision is based primarily on our disposition of the defendants’ due process claim. We therefore address that claim first.

Administrative hearings, including those held before workers’ compensation commissioners, are informal and governed without necessarily adhering to the rules of evidence or procedure. LaPia v. Stratford, 47 Conn. App. 391,400, 706 A.2d 11 (1997). Nonetheless, administrative hearings must be conducted in a fundamentally fair manner so as not to violate the rules of due process. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 542, 525 A.2d 940 (1987). A fundamental principle of due process is that each party has the right to receive notice of a hearing, and the opportunity to be heard at a meaningful time and in a meaningful manner. Harkless v. Rowe, 232 Conn. 599, 627, 657 A.2d 562 (1995). “Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence.” Huck v. Inland Wetlands & Watercourses Agency, supra, 536; see Simmons v. Bonhotel, 40 Conn. App. 278, 287, 670 A.2d 874 (1996). Further, procedural due process mandates that the commissioner “cannot consider additional evidence submitted by a party without granting the opponents . . . the opportunity to examine that evidence and to offer evidence in explanation or rebuttal.” Palmisano v. Conservation Commission, 27 Conn. App. 543, 547, 608 A.2d 100 (1992).

In the present case, the commissioner explicitly declined to consider Selden’s report of April 11, 1997, which the defendants had offered to rebut Selden’s apparently mistaken April 12, 1996 report. Integrating the board’s remand as restricting the evidence that could be considered, the commissioner wholly disregarded Selden’s April 11,1997 report. By so interpreting the remand, the commissioner effectively deprived the defendants of their due process rights to offer evidence in rebuttal and be heard in a meaningful manner. See id., 547.

Under fundamental due process principles, the defendants possessed the right to present evidence in response to Selden’s mistaken 1996 report. See Carlson v. Fisher, 18 Conn. App. 488, 503, 558 A.2d 1029 (1989). Although the commissioner permitted Selden’s April 11,1997 report to be marked as a full exhibit, its admission was meaningless because the commissioner refused to consider it. See id. By considering only Selden’s April 12, 1996 report and refusing to consider Selden’s April 11, 1997 report, which the defendants had proffered in rebuttal, the commissioner rendered the admission of the April 11, 1997 report a nullity and prevented the defendants from being heard on the pivotal issue in the case. See Palmisano v. Conservation Commission, supra, 27 Conn. App. 548.

An integral premise of due process is that a matter cannot be properly adjudicated “unless the parties have been given a reasonable opportunity to be heard on the issues involved . . . .” (Citations omitted.) Bloom v. Zoning Board of Appeals, 233 Conn. 198, 205, 658 A.2d 559 (1995). The defendants were not heard at all on the defining question. We conclude, therefore, that the commissioner violated the defendants’ due process rights.

In affirming the commissioner’s decision, the board determined that the commissioner’s refusal to consider Selden’s April 11, 1997 report was harmless and was within his discretion because, the board determined, Selden’s 1997 report was simply cumulative of evidence already on the record. On appeal, the plaintiff also contends that Selden’s April 11,1997 report was cumulative. We disagree.

Selden’s April 11,1997 report does not merely restate the information already on the record from the original hearing, namely that the plaintiffs shoulder injury did not result from her work-related fall in 1989. The defendants, rather, submitted Selden’s April 11, 1997 report to demonstrate that Selden erroneously had drafted his earlier report of April 12, 1996 that mistakenly had attributed the plaintiffs shoulder injury to her work-related fall.

Evidence that could affect or change the outcome of a decision, and does not simply restate information already before the commissioner, is not deemed cumulative and should be admitted. Cf. Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 545, 612 A.2d 1222 (1992). Had the commissioner considered Selden’s 1997 report, it is highly probable that he would not have ruled for the plaintiff or relied on Selden’s report of April 12, 1996.

We conclude, therefore, that the commissioner’s refusal to consider Selden’s April 11, 1997 report and the board’s subsequent affirmation of that refusal violated the defendants’ due process rights. Ordinarily, we would send this matter back to the board with instruction to remand it to the commissioner for consideration of Selden’s April 11, 1997 report. In this instance, however, the record before us is the same as the record the commissioner would consider, and the evidence allows only one conclusion. Because of that, for reasons of judicial economy, we have decided to determine the effect of Selden’s April 11, 1997 report ourselves. See Almeida v. Liberty Mutual Ins. Co., 234 Conn. 817, 826, 663 A.2d 382 (1995).

To start, we note that the commissioner’s ruling, which is the subject of this appeal, was made on remand from the board directing the commissioner to consider Selden’s April 12, 1996 report as new evidence that might change the commissioner’s March 28, 1996 finding that the plaintiffs shoulder injury was unrelated to the December 23, 1989 work-related injury. As the evidence that we earlier held should have been considered by the commissioner (i.e., the April 11,1997 report) was a recantation of the allegedly new evidence (i.e., the April 12, 1996 report), we determine that if the commissioner, on remand had considered Selden’s April 11,1997 report, the commissioner would have had no choice but to reaffirm his March 28,1996 finding that the shoulder injury was unrelated to the work injury. We therefore conclude that the March 28, 1996 finding and award should be reinstated.

The decision of the compensation review board is reversed and the case is remanded to the board with direction (1) to vacate the commissioner’s November 13,1997 finding and award, thereby reinstating the commissioner’s March 28, 1996 finding and award, and (2) to resume proceedings on Case No. 3320 CRB-1-96-4, the plaintiffs appeal from the March 28, 1996 finding and award.

In this opinion the other judges concurred.

       General Statutes § 31-301bprovidesinrelevantpart: “Any party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in the proceedings may appeal the decision of the Compensation Review Board to the Appellate Court.”

       The plaintiff concurs with defendants’ recitation of the facts.

       The plaintiff received disability benefits pursuant to General Statutes (Rev. to 1989) § 31-308 (a), which provides in relevant part that “[i]f any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, there shall be paid to the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the amount he is able to earn after such injury .... [Compensation] shall continue during the period of partial incapacity but no longer than seven hundred and eighty weeks. . . .”

       The plaintiff did not appeal from the board’s denial of her motion to submit Levine’s report.

       General Statutes (Rev. to 1989) § 31-301 (a) provides in relevant part: “At any time within ten days after entry of such award by the commissioner . . . either party may appeal therefrom to the compensation review [board] . . . .”


author: LANDAU, J.

text:
    STATE OF CONNECTICUT v. EDWARD WRIGHT
    (AC 19636)
    Landau, Mihalakos and Daly, Js.

      Argued January 25
    officially released April 17, 2001

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, assistant state’s attorney, for the appellee (state). .
   Opinion

LANDAU, J.

The defendant, Edward Wright, appeals from the judgment of conviction, following a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a, and assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The jury also determined that the defendant had been on pretrial release at the time he committed the crimes of which he was convicted, which subjected him to the provisions of General Statutes § 53a-40b. On appeal, the defendant claims that the court improperly (1) denied his motion for a judgment of acquittal at the end of the state’s case-in-chief, (2) failed to instruct the jury on the issue of self-defense in accord with his request to charge and (3) admitted certain rebuttal testimony into evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. For approximately one year prior to the incident that gave rise to his conviction, the defendant had been romantically involved with Jane Cadorette. About one week before the incident, Cadorette terminated the relationship. Although the defendant and Cadorette had jointly leased an apartment at 6 Park Street (apartment) in Bristol, the defendant had not resided in the apartment for one week prior to the incident. Most of the defendant’s personal possessions had been removed from the apartment, and Cadorette had taken all of his clothing to the home of his new girlfriend, Jennifer Long.

Cadorette spent the evening of September 6, 1997, with Verrand Little, the victim, a man with whom she had had a romantic relationship for approximately eight years prior to her relationship with the defendant. The victim spent the night with Cadorette in the apartment. At about 8 a.m. on the morning of September 7, 1997, while Cadorette and the victim were still asleep in the bedroom, the defendant entered the kitchen of the apartment by dislodging a chair that had been wedged under the doorknob. Cadorette awoke and called the police.

The defendant entered the bedroom by breaking down the door, which was locked and also secured with a chair. Upon entering the bedroom, the defendant shouted to Cadorette, “You got what you wanted, bitch.” The defendant began to fight with the victim. During the altercation, the victim’s head hit and broke through a wall, and the doors to a closet were knocked down. The defendant went to the kitchen, where he got a knife and the glass container of a blender. The defendant returned to the bedroom and hurled the glass container at the victim, but did not strike him. The defendant then stabbed the victim several times.

As the defendant was leaving the apartment, two police officers arrived and ordered him to return to the apartment, where they handcuffed him and placed him on the kitchen floor. The defendant became belligerent, kicking, fighting and screaming invectives and threats at the victim and Cadorette. The defendant said things such as, “I’ll get you,” “I’ll kill you,” “I should’ve killed you” and “I’m going to kill you when I get out.”

Emergency medical personnel who attended the victim found that he had sustained wounds to his hands, shoulder and back. When he stabbed the victim in the back, the defendant also punctured the victim’s lung, causing it to collapse. The victim sustained a total of five stab wounds, lost a significant amount of blood and had difficulty breathing. He was removed from the scene by Life Star helicopter.

Following his arrest, the defendant was charged with attempt to commit murder, assault in the first degree and burglary in the first degree. After he was convicted, the defendant appealed.

I

The defendant’s first claim is that the court improperly denied his motion for a judgment of acquittal at the end of the state’s case-in-chief because there was insufficient evidence to convict him. The defendant argues specifically that the state failed to prove that he intended to commit the crimes of attempt to commit murder and assault in the first degree because there was evidence that he had acted in self-defense. We disagree.

The following procedural facts are relevant to our disposition of the defendant’s claim. At the end of the state’s case-in-chief, the defendant moved for a judgment of acquittal on all three counts against him. The court granted the defendant’s motion with respect to the charge of burglary in the first degree, but denied it as to the charges of attempt to commit murder and assault in the first degree. The defendant then presented his case and took the witness stand to testify on his own behalf. In light of that procedural background, the defendant’s claim as stated is not reviewable. See State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984).

“Because the defendant’s testimony came after the denial of his motion for judgment of acquittal, the waiver rule precludes him from raising this claim on appeal. ‘Under the waiver rule, when a motion for acquittal at the close of the state’s case is denied, a defendant may not secure appellate review of the trial court’s ruling without foregoing the right to put on evidence in his or her own behalf. The defendant’s sole remedy is to remain silent and, if convicted, to seek reversal of the conviction because of insufficiency of the state’s evidence. If the defendant elects to introduce evidence, the appellate review encompasses the evidence in toto.’ State v. Rutan, [supra, 194 Conn. 440] . . . .” State v. Kari, 26 Conn. App. 286, 291, 600 A.2d 1374 (1991), appeal dismissed, 222 Conn. 539, 608 A.2d 92 (1992). We therefore must look at all of the evidence that was before the jury, not just the state’s case-in-chief.

“The standards by which we review claims of insufficient evidence are well established. When reviewing a sufficiency of the evidence claim, our courts apply a two-prong [ed] 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. . . . State v. Perry, 48 Conn. App. 193, 196, 709 A.2d 564, cert, denied, 244 Conn. 931, 711 A.2d 729 (1998).

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ... In doing so, we keep in mind that [w]e have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility. . . . State v. Radzvilowicz, 47 Conn. App. 1,17-18, 703 A.2d 767, cert, denied, 243 Conn. 955, 704 A.2d 806 (1997).” (Emphasis in original; internal quotation marks omitted.) State v. Sanchez, 50 Conn. App. 145, 149-50, 718 A.2d 52, cert, denied, 247 Conn. 922, 722 A.2d 811 (1998).

The defendant testified in the following manner to support his claim of self-defense. According to the defendant, when he first entered the bedroom, the victim picked up a baseball bat and swung it at the defendant, striking him in the nose and breaking it. The defendant claimed that he then went into the kitchen and heard Cadorette tell the victim not to hit him with the baseball bat again. Because he feared for his life, the defendant grabbed the knife to defend himself. The defendant and the victim continued their straggle. At some point, the defendant claimed, the victim dropped the baseball bat and lunged at the defendant with a chair. The defendant used the knife to defend himself and cut the victim. During their straggle, the victim and the defendant fell to the floor, where the victim rolled onto the knife, which caused the injury to his back.

Although he told the police on the morning of the incident that he lived at 31 Landry Street in Bristol with his friend Warren Brown, on direct examination in his own case, the defendant denied that he lived at the Landry Street address. He also testified that he spent the night of September 6, 1997, at Brown’s home.

The juiy also heard Cadorette testify that the defendant had removed most of his personal possessions from the apartment and that she had taken his clothes to the home of Long, his new girlfriend. On cross-examination, the defendant denied that he was romantically involved with Long or that he spent the night before the incident with her. He also testified that his clothing was still at the apartment at the time of the incident. During its cross-examination of the defendant, the state introduced evidence of his prior felony convictions.

The state called Long to testify as a rebuttal witness. Long testified that the defendant was her former boyfriend and that the two of them had spent the night of September 6,1997, together at her home. The defendant had been staying with Long for the few days prior to September 7,1997, and Cadorette had brought his clothing to Long’s home.

The defendant argues on appeal that the state failed to prove that he had the requisite intent to commit the crimes of attempt to commit murder or assault in the first degree. The defendant’s entire argument is based on his claim of self-defense. The question for the jury was which version of the incident to believe. We conclude that, on the basis of the evidence before it and the reasonable inferences to be drawn from the evidence, the jury reasonably could have found that the defendant intended to murder the victim and that he intended to cause the victim serious physical injury by use of a dangerous instrument, the knife. See State v. Crespo, 246 Conn. 665, 674-75 n.7, 718 A.2d 925 (1998), cert, denied, 525 U.S. 1125, 119 S. Ct. 911, 142 L. Ed. 2d 909 (1999). The jury reasonably could have found, as well, that the state proved beyond a reasonable doubt that the defendant did not act in self-defense.

The defendant’s version of the incident, as well as the testimony of the victim, indicated that there was a time when the defendant exited the bedroom and went into the kitchen, where he obtained a glass blender container, which he threw at the victim, and a knife. Furthermore, the jury was entitled to consider the defendant’s statements about killing the victim and Cadorette that were made while he was handcuffed after the incident. See State v. Ash, 33 Conn. App. 782, 793, 638 A.2d 633, rev’d on other grounds, 231 Conn. 484,651 A.2d 247 (1994). The jury was free to believe the victim’s version that the defendant was the aggressor or the defendant’s testimony that he acted in self-defense. Clearly, the jury believed the victim’s version.

On appeal, we do not sit as triers of fact or judge the credibility of the witnesses. The evidence demonstrates that the defendant’s credibility was seriously impeached by Long’s testimony. The jury was also free to consider evidence of the defendant’s prior felony convictions when determining his credibility. General Statutes § 52-145 (b); State v. Braswell, 194 Conn. 297, 307, 481 A.2d 413 (1984), cert, denied, 469 U.S. 1112, 105 S. Ct. 793,83 L. Ed. 2d 786 (1985). For those reasons, the court did not improperly deny the defendant’s motion for a judgment of acquittal as to the charges of attempt to commit murder and assault in the first degree.

II

The defendant’s second claim is that the court improperly instructed the jury by failing to use the defendant’s request to charge with respect to self-defense and instructed the jury in accord with the state’s request to charge. Specifically, the defendant claims that although the court instructed the jury on the issue of self-defense, the instruction was one-sided and not properly adapted to the issues, failed to encompass the duty to retreat and the exceptions thereto, and did not provide the jury with sufficient guidance. We disagree.

The following additional facts are necessary for our resolution of the defendant’s claim. During trial, the defendant acknowledged that he stabbed the victim, but claimed that he did so in self-defense. Following its instructions to the jury, the court inquired whether counsel had any exceptions to the charge. Only defense counsel took an exception. Defense counsel stated:

“First of all, it was my request that the court read to the jury verbatim, my request to charge. And also, I take exception to the court’s charge, instruction to the jury, with regard to the count of attempt to commit murder, where the court indicated that the jury could consider statements allegedly made by [the defendant], in the kitchen, directed to Ms. Cadorette and [the victim] in the bedroom, when considering the defendant’s intent at the time of his encounter with [the victim]. I believe that would mislead the jury.”

The defendant did not preserve his claim that the court failed to instruct the jury on the exception to his duty to retreat when he is in his dwelling. See General Statutes § 53a-19 (b) (1). The instruction was not included in the defendant’s request to charge or noted in his exception to the charge that was given. “The requirement that the claim made by the exception be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked. . . . The purpose of the rule requiring that an exception be taken that distinctly states the objection and the grounds therefor is to alert the court to any claims of error while there is still an opportunity for correction.” (Internal quotation marks omitted.) Stale v. Deptula, 31 Conn. App. 140, 146, 623 A.2d 525 (1993), appeal dismissed, 228 Conn. 852, 635 A.2d 812 (1994).

In taking exception to the charge, defense counsel noted that the court did not read his request to charge verbatim, but did not inform the court as to how the jury was misled or how the defendant was deprived of a fair and impartial jury by the charge that was given. “It is not error for a trial court to refuse to charge a jury in the exact words of a requested instruction, as long as the requested charge is given in substance.” (Internal quotation marks omitted.) State v. Collins, 38 Conn. App. 247, 254, 661 A.2d 612 (1995).

In his reply brief to this court, the defendant requests that we review his claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). A defendant, however, may not seek Golding review in a reply brief because the state has no opportunity to respond to the defendant’s argument. See State v. Salvatore, 57 Conn. App. 396, 401, 749 A.2d 71, cert, denied, 253 Conn. 921, 755 A.2d 216 (2000); State v. Fisher, 57 Conn. App. 371, 379 n.9, 748 A.2d 377, cert, denied, 253 Conn. 914, 754 A.2d 163 (2000). We therefore decline to review the defendant’s claim.

Ill

The defendant’s third claim is that the court improperly admitted certain rebuttal testimony into evidence. We disagree.

The following facts are necessary for our resolution of the defendant’s claim. As previously discussed, the defendant claimed that he acted in self-defense and did not have to retreat from the apartment because he lived there. Cadorette testified that she and the defendant leased and lived in the apartment together until one week before the incident, when Cadorette terminated the relationship. The defendant had removed most of his personal possessions from the apartment, and Cadorette had taken his clothing to the home of his new girlfriend, Long.

On cross-examination, the defendant denied that he was romantically involved with Long or that he spent the night with her the night before the incident. He also testified that his clothing was still in the apartment.

The state called Long as a rebuttal witness. The defendant objected to Long’s testifying about their relationship because it was a collateral matter. The court overruled the objection. Long testified that the defendant was her former boyfriend and that the two of them spent the night of September 6, 1997, together at her home. The defendant had stayed with her a few days prior to September 7, 1997, and Cadorette had brought his clothing to Long’s home.

“ ‘The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. ... We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.’ . . . State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998). ‘Evidence is considered relevant when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case.’ . . . State v. Garcia, 37 Conn. App. 619, 634, 657 A.2d 691, cert, denied, 234 Conn. 917, 661 A.2d 97 (1995). Furthermore, relevant evidence ‘has a logical tendency to aid the trier in the determination of an issue.’ State v. Jeffrey, 220 Conn. 698, 704, 601 A.2d 993 (1991), cert, denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992).” State v. Martinez, 51 Conn. App. 59, 74-75, 719 A.2d 1213, cert, denied, 247 Conn. 952, 723 A.2d 324 (1998). “ ‘A witness may not be impeached by contradicting his or her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case.’ State v. Negron, [221 Conn. 315, 327, 603 A.2d 1138 (1992)].” State v. Smith, 46 Conn. App. 285, 294, 699 A.2d 250, cert, denied, 243 Conn. 930, 701 A.2d 662 (1997).

Long’s testimony was not collateral because it went to the defendant’s claim of self-defense in that he claimed to have had the right to be in the apartment because it was his home. Long’s testimony also helped the jury determine the credibility of the defendant. Long’s testimony tended to support Cadorette’s version of her relationship with the defendant. “When a witness voluntarily testifies, as did the defendant here, he asks the jury to believe him. The jury should be informed about the sort of person asking them to take his word.” (Internal quotation marks omitted.) State v. Hernandez, 224 Conn. 196, 207, 618 A.2d 494 (1992). The court, therefore, properly admitted Long’s rebuttal testimony into evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 provides: “(a) A person is guilty of an attempt to commit a crime if, acting with the land of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law: (1) Lying in wait, searching for or following the contemplated victim of the crime; (2) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (3) reconnoitering the place contemplated for the commission of the crime; (4) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (7) soliciting an innocent agent to engage in conduct constituting an element of the crime.
      “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a) of this section, it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       The court granted the defendant’s motion for a judgment of acquittal on the charge of burglary in the first degree in violation of General Statutes § 53a-101.

       We are mindful that the application of the waiver rule in criminal cases has been criticized; see, e.g., State v. Roy, 34 Conn. App. 751, 766 n.13, 643 A.2d 289 (1994), rev’d on other grounds, 233 Conn. 211, 658 A.2d 566 (1995); and that the issue presently is pending before our Supreme Court. See State v. Spillane, 54 Conn. App. 201, 737 A.2d 479, cert, granted, 251 Conn. 914, 740 A.2d 866 (1999) (defendant raised issue as alternate ground).

       A physician testified at trial that the defendant had suffered a broken nose.

       The court instructed the jury with respect to self-defense as follows:
      “Self-defense is a means by which the law justifies the use of force which would otherwise be illegal. Once self-defense is raised in a case, the state must disprove the defense beyond a reasonable doubt.
      “A person is justified in the use of reasonable force, reasonable physical force upon another person, when he reasonably believes that such force is necessary to protect himself from the imminent use of force by another person. Self-defense is a legal defense to the use of force that would otherwise be illegal or criminal.
      “On the issue of self-defense, the law of our state provides that a person is jus! ified in using reasonable physical force upon another person to defend himself from what he, the user, from what he reasonably believes to be the use or the imminent use of physical force. And he may use, the user, may use such degree of force which he reasonably believes to be necessary for that purpose.
      “The statute focuses on the person claiming self-defense. It focuses on what he reasonably believed under the circumstances and presents a question of fact, for you people.
      “The test for the degree of force in self-defense is a subjective-objective one, meaning that it has some subjective aspects and some objective aspects. Self-defense requires the jury to measure the justifiability of the defendant’s actions from a subjective perspective. That is, what the defendant reasonably believed under the circumstances of this case and on the basis of what the defendant perceived the circumstances to be.
      “The law requires, however, that the defendant’s belief be a reasonable one and not irrational or unreasonable under the circumstances. That is, would a reasonable person in the defendant’s circumstances have reached the belief that he reached? So, it’s both a question of what his belief was and then whether that belief was a reasonable one.
      “It’s the burden of the state to disprove the defendant’s claim of self-defense beyond a reasonable doubt. Now, the state may do this, that is, disprove the claim, by proving any one of the following elements beyond a reasonable doubt, and I’ll give you those elements now.
      “First, that the defendant did not believe that he was in imminent danger of injury and that the use of force was not necessary to protect himself. You consider the circumstance of what went on in that bedroom and determine whether he believed he was in imminent danger, and, if not, if he didn’t believe that he was in imminent danger, then that, the use of force, was not necessary to protect himself. That would be a means by the state to disprove the validity of the self-defense claim.
      “Secondly, that the defendant did not have reasonable grounds to believe that he was in imminent danger of injury. If the state proves that, the defense may be rendered invalid — that the force used by the defendant was unreasonable. Again, examining all of the circumstances.
      “Fourth, that the defendant himself was the initial aggressor and that he did not attempt to withdraw and effectively communicate to the other person his intent to withdraw. It’s generally held that the initial aggressor is the one who first does acts of such a nature as would ordinarily lead to deadly combat or as would put the other person involved in fear of death or serious bodily injury, the other person being [the victim].
      “With respect to this element, it’s important to consider that — it is important to consider that the law of self-defense does not imply the right of attack. By definition, self-defense means the use of defensive force. Therefore, a person claiming this right, that is, [the defendant] himself, must act honestly and conscientiously, and not from anger, malice or revenge. He must not provoke or intentionally bring the attack upon himself in order to provide himself an excuse to use force against the other person, that is, against — in this case, against [the victim].
      “And the last [element] that the state may raise — I’ve already given you four — the last one' is that to invalidate the claim of self-defense, the last one is that the defendant himself was engaged in a mutual type combat, that is combat with [the victim], that was not specifically authorized by law.
      “Now, should the state prove any one of these elements to you beyond a reasonable doubt, the defendant cannot prevail on his claim of self-defense.”

       The defendant requested the following charge with respect to self-defense:
      “In this case, [the defendant] has testified that he used the knife to defend himself from what he believed to be the imminent use of force on his person by [the victim]. [The defendant] testified that [the victim] struck him with a baseball bat, which fractured his nose. [The defendant] became dazed, disoriented, and attempted to get away from [the victim], [The defendant] staggered into the kitchen, where he grabbed a knife from the kitchen counter, after he heard Jane Cadorette tell [the victim] not to strike [the defendant] with the baseball bat. [The victim] swung the knife in self-defense.
      “If you credit [the defendant’s] testimony that he believed he was under imminent attack by [the victim] with a deadly weapon, he was justified in using that amount of force in which be believed to be necessary to defend himself. Therefore, [the defendant] was justified in using that amount of force, which, under the circumstances as [the defendant] believed them to be, was necessary to defend himself and therefore his conduct was that of a reasonable person, had he been in [the defendant’s] shoes. You must remember, it is the state’s burden to disprove self-defense beyond a reasonable doubt.”