author: Heiman, J.

text:
    Karen L. Gemme v. Morton H. Goldberg et al.
    (11334) (11335)
    Dupont, C. J., Daly and Heiman, Js.

      Argued March 29
    decision released June 1, 1993

      Philip Vernon Chabot, for the appellant (named defendant).

      Karen P. Blado, with whom were Medina K. Jett and, on the brief, Jan C. Trendowski and Frank J. Mastran-drea, for the appellant (defendant Herbert G. Schreiber).

      R. Bartley Halloran, for the appellee (plaintiff).
   Heiman, J.

The defendants each appeal from a judgment rendered on a verdict against the defendant Herbert G. Schreiber awarding the plaintiff $50,000 and against the defendant Morton H. Goldberg awarding the plaintiff $200,000, reduced by 25 percent on account of the plaintiffs own negligence, for a net verdict against Goldberg of $150,000. The action is claimed to have had its genesis in the failure of both defendants to obtain the plaintiffs informed consent to treatments rendered to her by each of them individually.

The defendant Schreiber claims that the trial court improperly (1) permitted the plaintiff to amend her complaint to add a new claim against him during trial, (2) denied his request to amend his answer and special defense based on the new claim raised by the plaintiff in her amended complaint, (3) found that there was sufficient evidence produced demonstrating that (a) feasible alternative forms of treatment existed, (b) Schreiber had a duty to advise the plaintiff of their existence, (c) he breached that duty, and (d) his breach of that duty was the proximate cause of the plaintiff’s injuries, (4) permitted the plaintiff to ask questions implicating the standard of care as to Schreiber, (5) instructed the jury in its supplemental charge regarding the necessity of expert testimony for a verdict against Schreiber, and (6) denied his motions for summary judgment, for a directed verdict, to set aside the verdict or for judgment notwithstanding the verdict. We need discuss only claims (3) and (4).

The defendant Goldberg claims that the trial court incorrectly (1) denied his request to mark the original and amended complaints as full exhibits, (2) denied his motion for directed verdict when there was a failure by the plaintiff to produce evidence of the standard of practice of obtaining informed consent or that he had breached the standard, (3) denied his motion for a directed verdict when the plaintiff failed to establish by expert testimony the existence of a causal relationship between the aspect of surgery about which no alternative was allegedly discussed and the subsequent outcome of treatment, and (4) responded to a question from the jury concerning the need for expert testimony.

We reverse the judgment of the trial court insofar as it relates to Schreiber and affirm the judgment against Goldberg.

The jury could reasonably have found the following facts. In November, 1983, the plaintiff consulted the defendant, Schreiber, an orthodontist, because of the protrusion of her front teeth. She hoped to correct her overbite. Schreiber had previously treated the plaintiffs sister’s teeth orthodontically. Prior to her consultation with Schreiber, the plaintiff had experienced no dental problems that required treatment other than treatment by her family dentist for cavities. She had not undergone any periodontal care, root canal therapy or teeth extractions.

On her first visit with Schreiber, the plaintiff had X rays taken and a mold of her mouth made. On the basis of her consultation with Schreiber, the plaintiff understood that her problem could be corrected orthodontically with the application of braces and that the treatment would require that she wear braces for approximately two years. Schreiber did not discuss oral surgery with the plaintiff on her first visit. The plaintiff knew that her sister had not required any oral surgery while she was treated by Schreiber.

In January, 1984, at the advice of Schreiber, the plaintiff had her first upper two bicuspids extracted. After a healing period, Schreiber applied braces to her teeth. After the teeth were extracted, Schreiber for the first time indicated to the plaintiff that surgery might be required. He advised her that because her jaw was out of alignment, he might not be able to correct her overbite by the application of braces alone. He explained that, if such surgery were needed, it would require that her jaws be broken and then wired shut for a period of six to eight weeks.

In November, 1984, Schreiber concluded that surgery was necessary in order to close the space created by the extractions and to correct the overbite. He discussed no alternative treatment plan with the plaintiff, but told her merely that she required surgery. He also explained in general terms that there is always a risk that surgery would not go well and that you would not get the result wanted. Schreiber did not, however, explain with specificity other problems that might arise. He normally leaves that explanation to the surgeon since it is not in Schreiber’s field of expertise to be specific as to those problems. He referred her for a surgical consultation with the defendant Goldberg.

The plaintiff consulted with Goldberg on November 28, 1984. Goldberg noted that her deformity was obvious to him and that two teeth had been extracted. He advised her that he could not give her a definitive treatment plan until he had studied her plaster models and X rays. On that same day, he called Schreiber and his office note indicated that he discussed with Schreiber that he was thinking in terms of treatment options that included maxillary surgery, closing off the spaces surgically, and the need to push the mandible. His notes did not reflect that he discussed with the plaintiff nonsurgical options at the time of the first consultation although his practice would have been to talk with the patient as he examined her and tell her that the fact that the two teeth had been extracted opened up some options as to how to proceed.

Goldberg next saw the plaintiff on January 23,1985. At that time, he showed the plaintiff the molds of her teeth. He displayed the molds and used them to demonstrate where her jaw would be moved back, that the upper and lower jaws would be broken, that the two spaces where the teeth had been extracted would be cut and brought together and pulled in. He also explained that her jaws would be wired shut for six to eight weeks. When discussing the risks attendant upon the surgery, he stated that he had done hundreds of these operations and that the worst things that had happened were that one person required a postoperative root canal and that another had lost a tooth. Goldberg did not discuss with the plaintiff any alternate methods of closing the spaces. On the basis of her discussion with Goldberg, Gemme consented to undergo the surgical treatment outlined by Goldberg.

The plaintiff was admitted to Hartford Hospital on January 31,1985. On the following day, Goldberg performed surgery, a LeFort I three part maxillae with impaction and closure of the bicuspid spaces and a bilateral sagittal split of the mandible, on the plaintiff.

The plaintiff was discharged from the hospital on February 4,1985, to be seen in follow-up care in Goldberg’s office on February 6. The discharge summary from the hospital indicated that she had no fever, the swelling of her face had decreased, she was still experiencing moderate discomfort and the operative areas were clean and dry.

On February 6,1985, the plaintiff was seen in Goldberg’s office. On that date, she still had very ecchymotic cheeks and gingiva with moderate discomfort. There was also a question concerning the condition of the upper right second bicuspid root. She was given a prescription for demerol liquid and instructed to return in a week. The ecchymosis (black and blue) noted was in both the upper and lower gums, cheeks, chin and upper neck.

The plaintiff returned to see Goldberg on February 13,1985. On that visit, he noted that the gum that would ordinarily cover the anterior segment was gone. The bone was also exposed indicative of a postoperative complication of a compromise of the blood supply to that portion of the bone.

Goldberg continued to treat the plaintiff until April 23,1987, when she terminated the relationship. The last time that Goldberg examined the plaintiff was on December 11,1986. At that time, he noted horizontal bone loss in the front portion of the jaw.

Subsequently, the plaintiff was required to have a number of her upper teeth subjected to root canal process and ultimately extracted. She also required additional treatment of her gums and surgery.

I

The Defendant Schreiber’s Claims (11335)

Schreiber asserts that the plaintiff was precluded from offering expert testimony against him by reason of the trial court’s granting of his motion in limine invoking the provisions of Practice Book § 220 (D). We agree. Without such testimony, there was insufficient evidence to hold the defendant Schreiber liable for any harm to the plaintiff. We hold that the plaintiff was precluded from offering any expert testimony as to the standard of care, causation, and the duty owed as to the treatment by Schreiber. The testimony of Schreiber and Goldberg on these subjects was expert testimony that was precluded by the motion in limine. Consequently, the plaintiff did not sustain her burden of proof against the defendant Schreiber and he was entitled to a directed verdict.

An understanding of the following additional facts is necessary for a resolution of this claim. On February 14,1992, counsel for Schreiber presented a motion in limine seeking to preclude the plaintiff from presenting the testimony of any expert witnesses as to issues relating to the standard of care, causation, or duty as to the treatment rendered by Schreiber to the plaintiff, pursuant to Practice Book § 220 (D). While the trial court did not expressly grant the motion, the parties have argued the cause as if it had been properly granted and we shall treat it in the same manner. The plaintiff then called Schreiber and Goldberg to testify.

In her brief, the plaintiff effectively concedes that she was precluded from offering expert testimony as against Schreiber. She responds, however, that Schreiber forgets that he himself was an expert as was Goldberg and that they supplied the necessary expert testimony. In this instance, however, we are persuaded that the order precluded the defendant from offering any expert testimony against Schreiber, including his own and that of his codefendant Goldberg.

Practice Book § 220 (A) provides in pertinent part that “[a] party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial . . . .” The trial court has discretion to impose sanctions on parties who fail to answer interrogatories requesting disclosure of any expert witness the parties intend to call. Practice Book § 231. The sanctions imposed may include exclusion of any expert testimony at trial. Practice Book § 231 (d); Separack v. Solaz, 17 Conn. App. 684, 693, 556 A.2d 175, cert. denied, 211 Conn. 804, 559 A.2d 1138 (1989); Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 518, 509 A.2d 552 (1986).

In claiming that the expert testimony relied on was properly admitted in the face of the order precluding expert testimony, the plaintiff attempts to distinguish between an independently retained expert and treating physicians. She thus claims that the order excluding expert testimony would not apply to Schreiber’s testimony. We are unpersuaded.

“The term expert may be extended to all persons acquainted with the science or practice in question. . . . Practice Book § 220 (A) (1) employs the term expert witness and does not draw a distinction between treating and independent experts. . . . Thus, pursuant to Practice Book § 220, a trial court may exclude expert testimony proffered by a party regardless of any agency relationship that may exist between the expert witness and the opposing party.” (Citations omitted; internal quotation marks omitted.) Yale University School of Medicine v. McCarthy, 26 Conn. App. 497, 500, 602 A.2d 1040 (1992). We have previously held and continue to hold that the disclosure requirements of Practice Book § 220 (D) apply with equal force to treating physicians as well as to independent experts. Bank of Boston Connecticut v. Ciarleglio, 26 Conn. App. 503, 509, 604 A.2d 359, cert. denied, 221 Conn. 922, 608 A.2d 685 (1992).

Thus, the trial court, having precluded the introduction of any expert testimony against Schreiber, should not have permitted Schreiber’s or Golberg’s testimony to be used as expert testimony. Informed consent actions require that the plaintiff prove both the duty and the breach of that duty through expert testimony. Mason v. Walsh, 26 Conn. App. 225, 229-30, 600 A.2d 326 (1991), cert. denied, 221 Conn. 909, 602 A.2d 9 (1992). On the basis of the lack of expert testimony to prove both the duty and the breach of that duty, the trial court should have granted Schreiber’s motion for directed verdict. See id., 230.

Since our resolution of this issue is dispositive of Schreiber’s appeal, we need not consider his other claims.

II

The Defendant Goldberg’s Claims (11334)

A

The defendant Goldberg first asserts that the trial court improperly rejected his request that it take judicial notice of the original and amended complaints or that he be permitted to mark them as full exhibits. We do not agree.

Certain additional facts must be-set forth for a clear understanding of this issue and its resolution. When Goldberg’s counsel concluded the examination of his last witness, he indicated to the judge that there was a “housekeeping matter before I rest.” The jury was excused and counsel for Goldberg asked the trial court to take judicial notice of the original complaint and the amended complaint. After a discussion with the parties, the trial court declined to take judicial notice as requested. Goldberg’s counsel duly excepted.

Counsel next asked that the original complaint and the amended complaint be marked as full exhibits. The trial court denied the motion observing that the documents should properly have been presented to the plaintiff and that she could have been questioned about them. In that way, the jury could assess her credibility if it found that the pleadings were inconsistent or injected new matters. The court further observed that introducing the documents into evidence without a proper foundation would deprive the plaintiff of an opportunity to explain any alleged inconsistencies. Goldberg excepted to the ruling. Goldberg then rested his case out of the presence of the jury with the understanding that if the trial court permitted the documents to be admitted as full exhibits that they would be appropriately marked. The defendant made no attempt to call the plaintiff as a witness and to introduce the original complaint into evidence through her testimony.

Whether to take judicial notice of a fact is a function of the exercise of judicial discretion. West Hartford v. Freedom of Information Commission, 218 Conn. 256, 264, 588 A.2d 1368 (1991); De Luca v. Park Commissioners, 94 Conn. 7, 10, 107 A. 611 (1919); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 6.1.3, p. 119; 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 22. Where a ruling involves the exercise of the trial court’s discretion, its action will not be disturbed unless it has abused that broad discretion. Pool v. Bell, 209 Conn. 536, 541, 551 A.2d 1254 (1989). In determining whether the trial court has abused its broad discretion, we will afford every reasonable presumption in favor of the correctness of its ruling. State v. Leonard, 31 Conn. App. 178, 190, 623 A.2d 1052 (1993); Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 108, 476 A.2d 1074 (1984). The ultimate issue to be determined in a claim involving an alleged abuse of the trial court’s discretion is whether the trial court could reasonably conclude as it did. Walton v. New Hartford, 223 Conn. 155, 171, 612 A.2d 1153 (1992); DiPalma v. Wiesen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972); State v. Leonard, supra.

Our review of the record convinces us that the trial court did not abuse its considerable discretion in declining to take judicial notice of the original complaint. The trial judge correctly pointed out to counsel that the same result that counsel sought could have been achieved in a way that would not have been a potential source of prejudice to the plaintiff and her cause. The trial court could reasonably have concluded as it did. See Walton v. New Hartford, supra; DiPalma v. Wiesen, supra. The claim that the trial court improperly declined to take judicial notice is thus without merit.

The trial court also properly declined to mark either the original complaint or the amended complaint as full exhibits. The court noted that the proper evidentiary foundation for admission of these documents had not been established. The trial court suggested to counsel that if the plaintiff were on the witness stand he could question her as to her knowledge of the pleadings and use the pleadings, if appropriate, as a vehicle to mount an attack on her credibility. If that procedure were followed, the plaintiff then would have an opportunity to respond to them. If the documents were merely marked as exhibits and the contents argued to the jury, she would have been denied the opportunity to respond to their use. Although he had not rested his case before the jury, Goldberg made no attempt to call the plaintiff to question her about inconsistencies in her pleadings or challenge her credibility. We conclude that the trial court was correct in its ruling.

Our standard of review of issues involving evidentiary rulings is that we will set aside on appeal rulings on evidentiary matters only upon a showing of a clear abuse of discretion. Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990); Munson v. United Technologies Corporation, 28 Conn. App. 184, 189, 609 A.2d 1066 (1992).

Statements in superseded pleadings may be admissible as evidentiary admissions. Dreier v. Upjohn Co., 196 Conn. 242, 248-49, 492 A.2d 164 (1985); Chomko v. Patmon, 19 Conn. App. 483, 486-87, 563 A.2d 311, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989); see also Rosa v. Colonial Bank, 207 Conn. 483, 492, 542 A.2d 1112 (1988). The opposing party, however, is entitled to an opportunity to explain the circumstances under which the statements were made and the party’s knowledge as to the contents of the pleading so that the trier of fact may properly determine the weight to be given the statements in issue. Dreier v. Upjohn Co., supra, 247 n.1; Kucza v. Stone, 155 Conn. 194, 197-98, 230 A.2d 559 (1967). The trial court correctly pointed out that fact to Goldberg’s counsel who apparently decided not to attempt to introduce the exhibits through an appropriate witness. While our Supreme Court concluded in Dreier v. Upjohn Co., supra, that the fact that the defendant was permitted to introduce the superseded complaint at the close of his case, rather than in the context of the plaintiff’s testimony, represented a procedure less common than direct impeachment, it nonetheless did not constitute error to have so done. The court then stated: “Even in such instances, however, the impeached party must be given an opportunity to explain the admissions in the superseded pleading.” Id., 247 n.1.

We conclude that the defendant was not deprived of his right to make use of the claimed evidential admissions. He could have sought to introduce the exhibits through an appropriate witness. The trial court did not abuse its discretion in its evidentiary rulings by not permitting Goldberg to employ the “procedure less common than direct impeachment” utilized by the defendant in Dreier v. Upjohn Co., supra.

B

Goldberg next asserts that the trial court improperly denied his motion for directed verdict where the plaintiff had failed to produce expert testimony as to the standard of obtaining informed consent or his breach of that standard. We do not agree.

Goldberg posits that the plaintiff alleged two claims as to the issues on which he failed to obtain her informed consent: (1) that he failed to warn her adequately of the danger of loss of teeth caused by interruption of blood flow to the teeth as a result of the surgery; and (2) that he failed to advise her of feasible alternative treatments. Goldberg asserts that the burden was clearly on the plaintiff to establish by expert testimony the standard of medical practice regarding informed consent and the fact that the defendant breached that standard. See Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 710-11, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). We agree that this standard represents the plaintiff’s burden.

Unlike the situation in the Schreiber case, the plaintiff was not precluded by a motion in limine from presenting expert testimony against Goldberg on the issues of standard of care and its breach. “The plaintiff may rely on the defendant’s testimony to meet [her] burden of producing positive evidence of an expert nature from which the jury could reasonably and logically conclude that the defendant was negligent.” Williams v. Chameides, 26 Conn. App. 818, 823, 603 A.2d 1211, cert. denied, 221 Conn. 923, 608 A.2d 689 (1992) . Here, the plaintiff asserts that she properly relied on the testimony of the defendant Goldberg to provide the requisite expert testimony relating to the standard of care and its breach, and that from this testimony, the jury could have reasonably and logically concluded that Goldberg was negligent. Snyder v. Pantaleo, 143 Conn. 290, 294, 122 A.2d 21 (1956); Williams v. Chameides, supra. We agree.

Our courts have often held that “[t]he decision to set aside the verdict [or to direct a verdict] entails the exercise of a broad discretion that, in the absence of clear abuse, we shall not disturb. . . . In our review of the exercise of this discretion, we accord great weight to the trial court’s decision . . . .” (Citations omitted; internal quotation marks omitted.) Ginsberg v. Fusaro, 225 Conn. 420, 425, 623 A.2d 1014 (1993); Caciopoli v. Acampora, 30 Conn. App. 327, 330, 620 A.2d 191 (1993) . “Our review of the trial court’s refusal to direct a verdict requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.” (Citations omitted; internal quotation marks omitted.) Hammer v. Mount Sinai Hospital, supra, 717; Caciopoli v. Acampora, supra. Our review of the evidence leads us to conclude that the trial court acted properly in denying the motion that was based on a lack of expert testimony.

The plaintiff testified that at no time did Goldberg discuss with her any alternative treatment to the segmental surgery. Goldberg testified that he discussed with her a number of options and permutations of proposed treatment as he does with each patient he sees. He also testified, however, that, while he was aware of a viable alternative to the segmental surgery that he performed, it would have required that the plaintiff be satisfied with a less than perfect result, and he did not discuss this alternative with the patient.

Our law does not require that the plaintiff wring out of the defendant or other expert witness a “specific expression of opinion that the conduct of the defendant was negligent or unskillful.” (Internal quotation marks omitted.) Snyder v. Pantaleo, supra; Williams v. Chameides, supra. To demand “a positive condemnation of the operator’s course as a prerequisite to recovery would, in such cases, be prohibitory of any recovery therein.” Slimak v. Foster, 106 Conn. 366, 370, 138 A. 153 (1927).

The jury could have reasonably and logically concluded on the basis of Goldberg’s own expert testimony that the standard of care required that he discuss with the patient in detail all viable alternative methods of treatment, including all options and permutations of treatment available. The jury could also have reasonably and logically concluded that Goldberg breached that duty by failing to disclose a viable alternative that might have produced a less perfect result but may have represented a safer or less invasive procedure.

The trial court properly denied the defendant Goldberg’s motion for directed verdict.

C

Goldberg next asserts that the trial court improperly denied his motion for directed verdict grounded on the claim that the plaintiff had failed to produce expert testimony concerning a causal relationship between that portion of the surgery about which no alternative was discussed and the subsequent outcome of the treatment provided. We are unpersuaded.

Again, we review a claim involving a denial of a motion for directed verdict by viewing the evidence in the light most favorable to sustaining the verdict. Caciopoli v. Acampora, supra; Hammer v. Mount Sinai Hospital, supra. We will set aside the verdict and direct judgment only where the jury could not reasonably and legally have reached the conclusion that it did. Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988); Hammer v. Mount Sinai Hospital, supra. Applying this standard, we conclude that the trial court acted properly in denying the motion for a directed verdict.

Once the existence of a duty to inform has been established, the plaintiff must then prove the extent or degree of disclosure in accordance with the lay standard. Lambert v. Stovell, 205 Conn. 1, 5, 529 A.2d 710 (1987); Logan v. Greenwich Hospital Assn., 191 Conn. 282, 292-93, 465 A.2d 294 (1983); Mason v. Walsh, supra. The physician is thus charged with the duty to disclose to the patient that information that “a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy.” Logan v. Greenwich Hospital Assn., supra. In Logan v. Greenwich Hospital Assn., supra, 294-95, our Supreme Court found error in an instruction by the trial court informing the jury in its charge that a surgical procedure more hazardous than that performed need not be disclosed to the patient because it was not a viable alternative. The court held that such a charge would effectively limit a physician’s duty to inform his or her patients of alternatives. The court rejected the charge requiring that physicians advise their patients of only the least hazardous procedure even though there was evidence that viable alternatives existed. Pedersen v. Vahidy, 209 Conn. 510, 521-23, 552 A.2d 419 (1989); Logan v. Greenwich Hospital Assn., supra.

Here, Goldberg was aware of a viable alternative, the drawback of which was an imperfect cosmetic result. On the basis of that drawback, he failed to disclose this alternative to the plaintiff. “The incongruity of making the medical profession the sole arbiter of what information was necessary for an informed decision to be made by a patient concerning [her] own physical well-being has led to various judicial and legislative attempts within the last [twenty years] to define a standard tailored to the needs of the patient but not unreasonably burdensome upon the physician or wholly dispensing with the notion that ‘doctor knows best’ in some situations.” Logan v. Greenwich Hospital Assn., supra, 290. On the basis of the evidence, the jury could reasonably have found that Goldberg resorted to the pre-Logan standard of “doctor knows best,” thereby depriving the plaintiff of her right to make an informed judgment about her treatment. We cannot say as a matter of law that a doctor is any more justified in withholding information from a patient on the ground that the result would have been less perfect than our Supreme Court could conclude as a matter of law that a more hazardous procedure need not be disclosed. Id.

Goldberg testified that the plaintiff suffered harm in the area of the segmental surgery. He also testified that if the closure were performed with bridgework that the segmental surgery would have been unnecessary.

On the basis of all of these considerations, we are satisfied that the jury could properly have found the existence of a causal relationship between the information that was withheld by the defendant Goldberg and the harm suffered by the plaintiff.

Our review of the entire record causes us to conclude that the trial court properly refused to direct a verdict on the basis of Goldberg’s claim of lack of a causal relationship.

D

Finally, Goldberg asserts that the trial court’s supplemental instruction given in response to a jury question was fatally defective. We do not agree.

On the second day of deliberations, the jury sent to the trial court a question regarding expert testimony and the standard of care. The trial court responded to the question.

Goldberg posits that the trial court’s answer to the question required only a simple affirmative answer. He also asserts that the answer went beyond the original charge and that the trial judge should have simply reread the applicable portion of its original charge. He further asserts that the supplemental instruction was misleading, confusing and answered questions not asked by the jury. We are unpersuaded.

The trial court was not limited to a single word response to the jury’s question. Goldberg has not cited to us any case that stands for the proposition that the answer to a jury question must be limited to a single word even when the question admits of such a response, nor has our research led us to any such case. To adopt such a rule would fly in the face of the often repeated language concerning the office of the court’s charge to the jury: “The primary purpose of the charge is to assist the jury in applying the law correctly to the facts which they might find established.” (Internal quotation marks omitted.) State v. Havican, 213 Conn. 593, 603, 569 A.2d 1089 (1990); State v. Wolff, 29 Conn. App. 524, 531, 616 A.2d 1143 (1992). The purpose of a supplemental charge is the same as that of the initial charge and we have recognized that “additional instructions given in immediate response to a request are more informal and expressed with less exactness than are studiously prepared formal charges.” (Internal quotation marks omitted.) State v. Cannon, 185 Conn. 260, 274, 440 A.2d 927 (1981). Thus the claim that the trial court was limited to a one word response in its supplemental charge is without merit.

When examining the substance of the charge and supplemental instruction, “[w]e begin by noting that a jury charge is to be considered from the standpoint of its effect on the jury in guiding them to a correct verdict. ... A jury charge must be correct in law, adapted to the issues and sufficient for the guidance of the jury. ... A charge is not to be critically dissected for purposes of discovering possible inaccuracies . . . but rather, the initial charge and any supplemental charge are to be read as a whole. . . . The ultimate test of a court’s instructions is whether, taken as a whole, they fairly and adequately present the case to a jury in such a way that injustice is not done to either party under the established rules of law.” (Citations omitted; internal quotation marks omitted.) Ellice v. INA Ins. Co. of New York, 208 Conn. 218, 226, 544 A.2d 623 (1988); see also State v. Wolff, supra; Sullivan v. Norwalk, 28 Conn. App. 449, 456, 612 A.2d 114 (1992). Individual instructions are not to be judged in isolation from the overall charge. Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 123, 544 A.2d 170 (1988); Sullivan v. Norwalk, supra; see also State v. Wolff, supra.

Our review of the charge, including the supplemental charge here at issue, convinces us that the charge as a whole properly set forth instructions that adequately and fairly presented the case to the jury under the applicable rules of law. See Norrie v. Heil Co., 203 Conn. 594, 602, 525 A.2d 1332 (1987). We further conclude that the charge, including the supplemental charge, when taken as a whole, could not have misled the jury regarding the issues in the case and that the supplemental charge under these circumstances was proper.

The claim of the defendant Goldberg is without merit.

The judgment is reversed as against the defendant Herbert G. Schreiber and the case is remanded with direction to grant Schreiber’s motion to set aside the verdict and to render judgment in his favor. The judgment is affirmed as against the defendant Morton H. Goldberg.

In this opinion the other judges concurred.

       Additional facts will be set forth where they are relevant to the issue raised.

       Practice Book § 220 (D) provides in pertinent part that “any 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 60 days from the date the case is claimed to a trial list. ... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert shall not testify except in the discretion of the court for good cause shown.”

       The transcript of the proceedings reflects the following concerning the motion in limine. After counsel for Schreiber discussed the parameters of his motion, counsel for Gemme stated:
      “[Plaintiffs Counsel]: Your Honor, I have represented to counsel that I will not bring in an expert to testify on any of those specific fields [standard of care, causation, or duty as far as the treatment rendered by Schreiber],
      “The Court: Let the record so show.”
      After a representation that the actual motion was broader in scope than the statement of counsel the following occurred:
      “The Court: We will go on the basis of the articulation on the record as noting the limits of it.”
      The trial court file discloses no notation on the motion indicating that it had been granted.

       The request by the defendant Goldberg was as follows: “[Defendant Goldberg’s Counsel]: Your Honor, the housekeeping matter to which I made reference was my request that the court take judicial notice of the pleadings. Specifically, the original complaint in this case. And then the amended complaint, which was filed during the course of this trial. My request has been, simply, that the court advise the jury in neutral terms, simply, that the claim of the alleged failure of the defendant, Morton Goldberg, to advise the plaintiff of viable alternatives, was not a claim being made in this case until the trial of this case commenced. And I would renew that request at this time.”

       While Goldberg did file a motion to preclude certain expert’s testimony, his motion, unlike Schreiber’s motion in limine, did not seek to preclude any or all expert testimony from being introduced.

       Goldberg testified that although his records do not include a written note of what he told the plaintiff in his consultation with her on January 23, 1985, he fully discussed with the plaintiff, as he does with all patients, the various options available to her for treatment. He testified that he discussed with her as options whether she wanted to undergo surgery, whether she should have surgery on one jaw or two, whether the spaces created by prior extractions would be closed at the time of the upper jaw surgery or be left to be done six months later. He also stated that he had not discussed with the plaintiff the option of using bridgework to close the gap in the maxillary jaw rather than segmental surgery. He stated that this was a viable alternative for the plaintiff “if she was willing to accept a final situation where her maxilla was not completely corrected from its deformity.” He also testified that the problems from which the plaintiff suffered were in the areas where the segmental surgery had been performed.

       The question addressed to the trial court by the jury was: “Does the law require that the plaintiff must establish by expert testimony a standard of care if a finding of negligence is sought? And please reread the charges against Dr. Sehreiber.”

       The trial court responded in pertinent part: “All right, now the law requires the plaintiff to establish, through expert testimony, that doctors in the line of practice as those of the two defendants at the time treatment was rendered to the plaintiff, each had a duty to inform their patient of all material risks attendant his treatment and all viable alternatives to such treatment and what these material risks and alternatives are.
      “Now in this regard, you will remember that the defendant doctors are themselves experts. And whatever they may have said on these points can be taken by you as expert testimony. Once the existence of a duty to so inform has been established, the degree or extent of disclosure necessary to satisfy this duty must be proven with the lay standard.
      “You will remember that I told you that under Connecticut law the standard as to how much information is to be given by the doctor to adequately fulfill that duty is viewed from the patient’s point of view and how much information the patient will find necessary in order to give informed consent. Here the standard is how an objective reasonable person, facing the situation for the first time, would consider these risks and alternatives. You, members of jury, using the standard of the objective reasonable person in the plaintiffs position are to determine what she was told about material risk and viable alternatives. And whether what she was told was enough for a reasonable person in the plaintiffs position to have given an informed consent to the treatment proposed ....
      “As to Dr. Goldberg, the information would be as to all material risks and all viable alternatives. Now, should you conclude that the plaintiff was not fully informed by one or both of these defendants in those respects, and thus conclude one or both were negligent in the discharge of their duty to inform, you would have to go on to the additional consideration of causation.
      “The plaintiff must show that there is a causal connection between the defendant doctors’ failure to adequately inform and her injuries. Now, this element causation, that is, the causal connection, must be established by expert testimony. And the causal connection testified to by the expert must be established to a reasonable medical or dental probability. . . .”


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    State of Connecticut v. John Conley
    (11259)
    Foti, Heiman and Schaller, Js.

      Argued March 30
    decision released June 8, 1993

      Stephen F. Cashman, special public defender, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Carl E. Taylor, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress evidence seized in violation of his state and federal constitutional rights, (2) denied his motion to dismiss the information, and (3) denied his motion for acquittal and his posttrial motion to set aside the verdict. We affirm the judgment of the trial court.

The defendant was charged with one count of possession of a narcotic substance with intent to sell by a person who is not drug-dependent. The defendant filed a motion to suppress pursuant to General Statutes § 54-33f. After a hearing, the trial court denied the motion. The defendant also filed a motion to dismiss the information, which the trial court denied. The case thereafter proceeded to trial.

The jury reasonably could have found the following facts. On September 5, 1991, Officer Jack Wenz, a member of the special service division of the New Britain police department, conducted a surveillance of the area surrounding the Mount Pleasant housing project. In the course of the surveillance, Wenz observed four men gathered around a parked car. The group consisted of three Hispanic men and one African-American man, later identified as the defendant. As Wenz moved closer to the group, he recognized one of the Hispanic men, who ran when he saw Wenz.

Wenz continued walking toward the parked car and noticed that the defendant held a cellophane packet in his left hand. Wenz grabbed the defendant’s shoulder and told him to put his hands on the car. The defendant complied and in doing so dropped the packet. Wenz thought that the contents of the cellophane packet looked like heroin. When he patted down the defendant in a search for weapons, a brief struggle ensued. Wenz regained control of the defendant and handcuffed him.

Wenz retrieved the cellophane packet, which contained six glassine packets, each containing white powder and stamped with the word “happy.” Wenz knew that the word “happy” commonly appeared on packages containing heroin. He field-tested one of the packets, which tested positive for the presence of heroin. Wenz then arrested the defendant and searched him. The search revealed that the defendant did not possess any drug paraphernalia.

A toxicologist subsequently tested the six confiscated glassine packets and determined that each contained heroin. Each packet had a street value of $20 and would yield a profit of $8. The amount of heroin found in the defendant’s possession was three times that usually carried by those in New Britain who possess the drug solely for personal use.

At the conclusion of the state’s case, the defendant filed a motion for acquittal. The court denied the defendant’s motion and submitted the case to the jury. The jury returned a verdict of guilty as charged. The defendant filed a motion to set aside the verdict. After a hearing on the matter, the court ruled that the defendant was drug-dependent. The court accordingly rendered judgment against the defendant on the lesser included offense of possession with intent to sell in violation of General Statutes § 21a-277 (a). This appeal followed.

I

The defendant first claims that the trial court improperly denied his motion to suppress. This argument is predicated on the assertion that the seizure of heroin was the result of an illegal seizure of the defendant’s person in violation of article first, §§ 7 and 9, of the Connecticut constitution and the fourth amendment to the United States constitution. We disagree.

The following facts were adduced during the hearing on the defendant’s motion to suppress. On September 5, 1991, Detective Michael Sullivan of the special service division of the New Britain police department received information from a confidential informant regarding illegal narcotics activity on Armistice Street in New Britain, in the vicinity of the Mount Pleasant housing project. In the past, Sullivan had received reliable information from the same informant that resulted in at least four arrests and four convictions.

The informant told Sullivan that he had observed an African-American male selling heroin in a parking lot behind Armistice Street. According to the informant, the male was wearing “green-yellow” clothes and appeared to be working on a car. Sullivan immediately orchestrated an investigation of the complaint that involved several police officers including Wenz. Sullivan explained to Wenz that he had received information from an informant, but did not tell Wenz that the informant had previously provided reliable information.

The unit proceeded to Armistice Street where Wenz alone approached the area in question. The remaining officers were positioned in nearby areas to assist Wenz if necessary. Wenz observed a group assembled around a brown car that was missing one wheel. One member of the group was an African-American male wearing green-yellow clothes and holding a cellophane packet in his hand. Wenz also observed a known drug user walking away from the group. According to Wenz, this person dropped what appeared to be a packet of narcotics.

Wenz continued in the direction of the car when another person, aware of Wenz’ presence, abruptly broke away from the group. At this point, Wenz perceived that the defendant realized police were in the area. Wenz grabbed the defendant’s shoulder and told him to put his hands on the car. As the defendant reached for the car, he dropped a cellophane packet that Wenz believed contained heroin. Wenz handcuffed the defendant, retrieved the packet and confirmed his suspicion regarding its contents.

The defendant filed a motion to suppress the evidence obtained in the course of the investigation. He claimed, as he claims now, that the heroin seized by the police was the fruit of an illegal arrest. After a hearing, the trial court denied the defendant’s motion and issued a memorandum of decision. In its memorandum, the court stated: “Officer Wenz had probable cause, based upon his knowledge and that of his fellow officer, to effect the seizure of the defendant. The articulable suspicion required for a stop to search for a weapon was also present to justify the pat down for a weapon.” The defendant now challenges the court’s decision to deny his motion to suppress.

We review a trial court’s denial of a motion to suppress in accordance with well settled standards. We will not disturb a trial court’s conclusions unless they are legally and logically inconsistent with the facts. State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991); State v. MacNeil, 28 Conn. App. 508, 512-13, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). Our analysis involves a two-pronged inquiry. “First, where the court’s legal conclusions are challenged, we must decide if they are legally and logically correct, and if they are supported by the facts set forth in the memorandum of decision. State v. Zindros, [189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984)]. Second, if the factual basis of the court’s decision is challenged, we must determine whether the facts in the memorandum are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Id.” State v. MacNeil, supra, 513.

As a threshold matter, we assume that when Wenz initially grabbed the defendant he effected an arrest for purposes of article first, §§ 7 and 9, of the Connecticut constitution and the fourth amendment to the United States constitution. See State v. Cofield, supra, 46. The issue, therefore, is whether the arrest of the defendant was constitutionally permissible. In analyzing this question, we consider whether the trial court properly determined that probable cause existed to justify the warrantless arrest of the defendant.

The fourth amendment to the constitution of the United States provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . .” A similar provision is found in article first, § 7, of the Connecticut constitution. State v. Scott, 27 Conn. App. 403, 406-407, 606 A.2d 720, cert. denied, 222 Conn. 911, 608 A.2d 1184 (1992).

General Statutes § 54-If (b) permits a police officer to make a warrantless arrest of “any person who such officer has reasonable grounds to believe has committed or is committing a felony.” Our Supreme Court has made clear that “ ‘ “[reasonable grounds” is to be equated with probable cause. State v. Cobuzzi, [161 Conn. 371, 376, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664 (1972)]; State v. Wilson, 153 Conn. 39, 41, 212 A.2d 75 (1965). Probable cause means more than mere suspicion. There must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed.’ ” State v. Velez, 215 Conn. 667, 672, 577 A.2d 1043 (1990); State v. Hunter, 27 Conn. App. 128, 133-34, 604 A.2d 832 (1992).

When an informant’s tip underlies an arrest, the trial court’s task is to review the “totality of the circumstances” to determine the existence of probable cause. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991). This inquiry involves an assessment of “the relative weights of all the various indicia of reliability (and unreliability) attending an informant’s tip . . . .” Illinois v. Gates, supra, 284; State v. Barton, supra. The informant’s “veracity,” “reliability,” and “basis of knowledge” are highly relevant. State v. Barton, supra, 537; State v. Hunter, supra, 135. Moreover, “[c]orroboration of an informant’s tip by independent police information has long been considered critical in determining probable cause. McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967); Draper v. United States, 357 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959).” State v. Hunter, supra, 134.

Here, in view of the totality of the circumstances, the trial court properly concluded that Wenz had probable cause to believe that the defendant was engaged in the sale of illegal narcotics. A time-tested and reliable confidential informant alleged in detail an incident of drug trafficking that he had observed in a known drug trafficking area. He described the defendant’s appearance and the area of the alleged crime scene. Moments after receiving this information, Sullivan initiated an investigation of the matter. In the course of the investigation, the police witnessed a scenario nearly identical to the allegations of the informant. It follows, therefore, that upon the corroboration of the informant’s tip, Wenz had probable cause to arrest the defendant. We hold that, from the totality of the circumstances, the trial court’s finding of probable cause was legally and logically consistent with the facts.

Our holding necessarily forecloses the second prong of the defendant’s claim, namely, that the evidence of heroin was the fruit of an illegal seizure. Because the arrest was lawful, Wenz was constitutionally entitled to search the defendant’s person as an incident to the lawful arrest. State v. Copeland, 205 Conn. 201, 209, 530 A.2d 603 (1987). It follows, therefore, that evidence obtained in the course of the proper warrantless search is not subject to suppression.

II

The defendant next claims that the trial court improperly denied his motion to dismiss the substitute information. Specifically, he asserts that the substitute information failed to apprise him properly of the charges pending against him.

On January 17,1992, the state, by substitute information, charged the defendant with one count of possession of a narcotic substance with intent to sell by a person who is not drug-dependent. The information specifically alleged that the defendant violated § 21a-278 (b) “when with intent to sell, distribute and/or dispense a narcotic substance, specifically heroin, he possessed said narcotic . . . .’’The defendant moved to dismiss the substitute information. After oral argument on the matter, the trial court denied the motion, but, in doing so, suggested that the state remove the term “distribute” from the information.

Immediately after oral argument, the state filed an amended substitute information deleting the word “distribute,” which appeared in the earlier information. The state therefore charged the defendant with possession of heroin with intent to sell or dispense. The defendant now appeals the trial court’s denial of his motion to dismiss. He argues that, phrased in the disjunctive, the substitute information charged two separate offenses in a single count, namely (1) possession with intent to sell or dispense and (2) distribution. Emphatically, the defendant does not challenge or even mention the amended substitute information.

It is axiomatic that alternative allegations phrased in the disjunctive and embodied in a single count do not sufficiently apprise a defendant of the nature of the crime charged. State v. Eason, 192 Conn. 37, 40, 470 A.2d 688 (1984); State v. Cofone, 164 Conn. 162, 167, 319 A.2d 381 (1972). An information that is defective in this regard deprives the defendant of his constitutional right to fair notice of the specific offense for which he has been charged. State v. Eason, supra. When charges are duplicitous, however, the trial court is not required to dismiss them. Practice Book § 817; State v. Markham, 12 Conn. App. 306, 311, 530 A.2d 660 (1987).

Duplicity is a term of art used to describe a situation in which the state charges separate offenses in a single count. State v. Markham, supra, citing 2 W. LaFave & J. Israel, Criminal Procedure (1984) § 19.2 (e). Practice Book § 817 provides that a trial court shall not dismiss an information for duplicity. Rather, the defendant’s recourse is to file a motion for a bill of particulars. State v. Markham, supra. In addition, Practice Book § 818 empowers the trial court to order such relief as is required to remedy a duplicitous information.

In the present case, the substitute information is duplicitous because in a single count it charges the defendant with (1) possession with intent to sell or dispense and (2) distribution. The defendant did not, however, request the state to clarify the nature of the charges as set forth in the substitute information. Instead, he sought to dismiss the charges altogether. As reflected in the trial court’s denial of the defendant’s motion, dismissal on the basis of duplicity is not sanctioned by our rules of practice. Further, the court encouraged the state to rectify any defects in the substitute information, and the state heeded the court’s suggestion. We conclude that in denying the defendant’s motion to dismiss and encouraging the state to redraft the substitute information, the trial court properly responded to the defendant’s claim that the substitute information was defective.

The only remaining question, therefore, is whether the duplicitous substitute information prejudiced the defendant. Practice Book § 818 provides that “[n]o appeal . . . based on [duplicity] shall be sustained unless it is affirmatively shown that the defendant was, in fact, prejudiced in his defense on the merits and that substantial injustice was done to him because of such defect.” In the present case, the defendant’s claim that he was prejudiced by the substitute information is moot because the amended substitute information superseded any earlier version of the charges. On appeal, moreover, the defendant has not challenged or even mentioned the propriety of the amended substitute information — the document that ultimately set forth the charge on which the defendant was tried. In the absence of a showing of prejudice, we cannot sustain the defendant’s appeal as it pertains to the duplicitous substitute information.

Ill

The defendant’s final claim is that the state failed to introduce evidence sufficient to prove possession of narcotics with intent to sell. The defendant primarily asserts that, aside from his possession of six packets of heroin, there was no additional evidence establishing that he intended to sell narcotics. We disagree.

Our standard of review for challenges to the sufficiency of evidence is well settled. “We first construe the evidence presented at trial in a light most favorable to sustaining the verdict, and then determine whether the jury could reasonably have found upon the facts established and the inferences reasonably drawn therefrom, that a cumulative effect of the evidence established guilt beyond a reasonable doubt. . . .” (Citations omitted; internal quotation marks omitted.) State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513 (1993); State v. Hamilton, 30 Conn. App. 68, 71-72, 618 A.2d 1372 (1993). “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.” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985). “The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available.” (Internal quotation marks omitted.) State v. Baldwin, supra.

Possession of narcotics in quantities ordinarily not associated with personal use is a factor on which a jury reasonably may rely to infer intent to sell. State v. DeWitt, 28 Conn. App. 638, 640-42, 611 A.2d 926, cert. denied, 224 Conn. 903, 615 A.2d 1045 (1992); State v. Napoleon, 12 Conn. App. 274, 283-85, 530 A.2d 634, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987). Our courts, however, have stopped short of declaring that this factor alone warrants an inference of intent. In this case, expert testimony established that the defendant possessed an amount of heroin that was unusually large for personal use only. According to this testimony, the typical user of heroin in New Britain tends to possess one or two packets, and a street dealer ordinarily carries up to ten packets. The jury was entitled to credit this testimony as a factor in the analysis of whether the state had inferentially established intent to sell beyond a reasonable doubt.

Evidence further established that the defendant, while possessing large amounts of heroin, did not carry any drug paraphernalia. It would be reasonable to infer that had the defendant intended to use the six packets of heroin he would have carried paraphernalia. Thus the jury reasonably could have factored this evidence into its determination of whether the defendant intended to sell heroin.

Additionally, expert testimony indicated that the packaging of the drug in small packets bearing the word “happy” indicated the work of a drug trafficker. The state further introduced evidence establishing that the defendant was interacting with other persons at the time the police found the heroin in his possession.

In light of the foregoing, therefore, we reject the defendant’s assertion that the jury improperly inferred intent solely on the basis of the quantity of heroin that he possessed. Rather, we conclude that, from the cumulative evidence presented, including evidence that the defendant possessed an unusually large amount of heroin for a user, and the reasonable inferences drawn therefrom, the jury reasonably could have determined that the defendant possessed heroin with the intent to sell.

The judgment is affirmed.

In this opinion the other judges concurred.

       Additional facts will be provided where necessary.

       We note that the defendant asserts that Wenz’ lack of firsthand knowledge regarding the reliability of the informant undercuts the validity of the seizure. This claim is without merit. State v. Dennis, 189 Conn. 429, 432, 456 A.2d 333 (1983). “[W]hen we test the quantum of evidence supporting probable cause, it is not the personal knowledge of the arresting officer but the collective knowledge of the law enforcement organization at the time of the arrest which must be considered.” Id.

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       General Statutes § 21a-278 (b) provides in pertinent part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense . . . any . . . hallucinogenic substance other than marijuana . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”

       The substitute information actually charges the defendant with possession with intent to “distribute.” The statute, by contrast, does not proscribe the intent to “distribute” when a defendant is in possession of narcotics. For purposes of this appeal, therefore, we refer to the substitute information as charging the defendant with “distribution” and not possession with intent to distribute.

       We note that, because the state filed the amended substitute information in the course of jury selection, Practice Book § 624, as opposed to § 623, governs. In State v. Cole, 8 Conn. App. 545, 551-52, 513 A.2d 752 (1986), this court held that “for purposes of Practice Book §§ 623 and 624, a criminal trial begins with the voir dire of the prospective jurors.” Pursuant to § 624, after the commencement of trial, the state may amend the information for good cause shown “if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced.” As previously stated, the defendant has not challenged, in any way, the validity of the amended, substitute information. Accordingly, we have no basis on which to conclude that the state improperly filed the amended substitute information.


author: Foti, J.

text:
    Sophia Vandal v. Paul J. Vandal
    (11474)
    Foti, Schaller and Cretella, Js.

      Argued March 30
    decision released June 8, 1993

      Judith C. Benedict, for the appellant-appellee (plaintiff).

      Timothy Sheehan, for the appellee-appellant (defendant).
   Foti, J.

The defendant appeals challenging the financial awards made by the trial court in a marital dissolution action. The defendant claims that the trial court improperly (1) awarded periodic alimony that could not be modified even upon the plaintiffs cohabitation or remarriage, (2) found the defendant’s earning capacity, and (3) awarded attorney’s fees. We affirm the judgment of the trial court.

The following facts are pertinent to this appeal. The parties were married on August 15,1971, in Norwich. There are two minor children issue of the marriage, Kathryn, born December 30, 1976, and Paul, Jr., born April 10,1980. The parties separated in 1989, and the plaintiff commenced an action for dissolution in September, 1990. The plaintiff had not been employed outside of the house for fifteen years before returning to full-time employment as a substitute teacher. The trial court found that she has an annual earning capacity of $40,000 to $45,000. At the the time of judgment, the defendant, a certified public accountant, had realized aggregate gross earnings of $277,000 during the four preceding years and had an annual earning capacity of $85,000. The defendant was ordered to pay alimony and child support.

I

The defendant first claims that the court improperly awarded nonmodifiable alimony by incorrectly applying the law and abused its discretion by making the alimony nonmodifiable even upon the plaintiffs cohabitation or remarriage. The defendant argues that (1) remarriage should, as a matter of law, terminate alimony, (2) the court made no findings to support the award, (3) the award precludes modification based on cohabitation, which is in conflict with General Statutes § 46b-86 (b), (4) the order is inconsistent with General Statutes §§ 46b-82 and 46b-86, and (5) the order is vague and ambiguous and therefore modifiable.

“General Statutes § 46b-86 (a) clearly permits the trial court to make periodic awards of alimony non-modifiable. Provisions for nonmodification are generally not favored, but to be upheld they must be clear and unambiguous. Calorossi v. Calorossi, 4 Conn. App. 165, 168, 493 A.2d 259 (1985); Bronson v. Bronson, 1 Conn. App. 337, 339, 471 A.2d 977 (1984). If the decree is meant to be nonmodifiable, it must contain language to that effect. Cummock v. Cummock, 180 Conn. 218, 222-23, 429 A.2d 474 (1980); Lilley v. Lilley, 6 Conn. App. 253, 256, 504 A.2d 563 (1986).’ Neal v. Neal, 7 Conn. App. 624, 625, 510 A.2d 210 (1986).” Lawler v. Lawler, 16 Conn. App. 193, 203, 547 A.2d 89 (1988), appeal dismissed, 212 Conn. 117, 561 A.2d 128 (1989).

The judgment file discloses the following regarding alimony: “The court finds the defendant should pay alimony of approximately $300 to $325 per week for about ten to twelve years. The court finds, however, that the defendant is unable to do that while he pays off some of the debt he has incurred throughout the marriage.

“Therefore, the defendant shall pay to the plaintiff alimony in the sum of $100 per week for five (5) years commencing June 12,1992, payable weekly in advance. On the Friday following June 12, 1997, or Friday, June 13, 1997, the alimony shall increase to $200 per week and shall continue for another fifteen (15) years. At the end of the twenty (20) years, the alimony shall reduce to $1 per year. The $1 per year shall be opened and modified to the extent that payments to compensate the plaintiff for any expenses she might incur to defend or pay any sums which the defendant has not paid for which he was obligated to pay under the terms of the judgment. The alimony may also be opened and modified upward within the first twenty (20) years to compensate the plaintiff for any payments made by her regarding those indemnified items by the defendant. If the defendant has met all his obligations when the alimony ceases, the $1 per year shall terminate.”

In making this order, the court specifically addressed the nonmodification of the alimony, stating that “[i]n all other respects, the alimony shall be nonmodifiable as to duration and amount, and it shall not terminate upon plaintiffs remarriage or cohabitation, but it shall terminate upon the death of either party.”

The court explained the provision as to nonmodifia-bility as follows: “I earlier indicated that what I thought the alimony in this case should be, based upon all the factors in the statute — three hundred to three twenty-five a week, for a period of ten to twelve years. That was not doable within the income stream. If you run out the figures, you’ll see that the figures are relatively close, the way I’ve set it up. That’s the reason that I’ve set it up. That’s the reason that I’ve set up nonmodifiable alimony and the reason that I have eliminated the contingency of remarriage or cohabitation by the plaintiff as a modification factor is because she’s waiting five to ten plus years to get even a moderate level of alimony that she should be entitled to today, and there is no reason that she should not go on with her life, have new relationships, and possibly get married again, because she might lose her alimony. So that’s my reasoning for that whole unusual, and I admit it is an unusual, scenario.”

“ ‘In family matters, the court exercises its equitable powers. The balancing of equities is a matter which falls within the discretion of the trial court. Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981). For that reason, equitable remedies are not bound by formula but are molded to the needs of justice. Hebrew University Assn. v. Nye, 26 Conn. Sup. 342, 348-49, 223 A.2d 397 (1966).’ Oneglia v. Oneglia, 14 Conn. App. 267, 271-72, 540 A.2d 713 (1988).” Lawler v. Lawler, supra, 204. Since the court has the statutory right to award nonmodifiable alimony and the equitable power to meet the ends of justice — in this case, by ordering that alimony not be modifiable even if the plaintiff remarries or cohabits — we cannot hold this order to be improper as a matter of law. We are likewise unpersuaded by the public policy argument made by the defendant, even disregarding the trial court’s finding that the defendant, himself, was cohabiting. The court’s findings as to the defendant’s financial inability at this time, because of his significant personal debt, to pay alimony in the amount to which the plaintiff is rightfully entitled are clear and sufficient to support the award, which is neither vague nor ambiguous. We are unpersuaded that the order in any way conflicts with or is inconsistent with our statutes.

II

The defendant next claims that the court improperly found his annual earning capacity to be $80,000 to $85,000 and based its financial awards on this finding.

“With respect to the financial awards in a dissolution action, great weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence. Gallo v. Gallo, 184 Conn. 36, 50, 440 A.2d 782 (1981). . . .” Venuti v. Venuti, 185 Conn. 156, 161, 440 A.2d 878 (1981). “In marital dissolution proceedings, under appropriate circumstances the trial court may base financial awards on the earning capacity rather than the actual earned income of the parties. . . .” Id.

The trial court in its oral decision gave particular attention to the financial circumstances of the parties. The court also noted: “After hearing all the evidence and witnesses, expert witnesses included, in this case, it is my opinion that the defendant has not been forthright with his financial disclosures. He is a certified public accountant. He is a sole proprietor of his own business; he completely controls his personal and business finances. He has created a series of companies for business and personal use, which makes it difficult, at best, to determine his accurate income and net worth.

“For instance, he had a corporation or partnership with some other people in which they owned and held out for lease a boat. He produced the tax returns for that operation for every year except the year the boat was sold. He testified that he actually had a loss because the loans were greater than his equity in the boat. But by not producing that one tax return, he leaves us with the distinct belief that he is trying to hide something. When most litigants tell us that they are bad record keepers, we may believe them, but in Mr. Vandal’s case, first of all, the fact that he is a CPA and, secondly, the fact the evidence in this case shows he is a good record keeper and should have had those records.”

The court later articulated the bases for its finding that the defendant’s earning capacity is $85,000, as follows: “Tax Returns, testimony and adding in perks and depreciation allowances. The court emphasizes that this finding is ‘earning capacity,’ not actual earnings. The defendant’s ‘actual’ earnings are lower than $85,000. The court, however, feels the defendant could earn more by better business practices. The court found that the speculation by the plaintiff’s expert as to the defendant’s earning capacity was not based on the facts in this case. The court also had to take into consideration the defendant’s unusually high debt service.”

Because the trial court reasonably could have concluded as it did, having ample evidence on which to base its finding as to the defendant’s earning capacity, it did not abuse its discretion in making the award of alimony and child support.

Ill

Finally, the defendant challenges the court’s order awarding attorney’s fees of $2500. He claims that the court abused its discretion, in that the plaintiff presented no evidence as tc the reasonableness of the fees, and he had no ability to pay such fees.

General Statutes § 46b-62 permits the trial court to award attorney’s fees “in accordance with [the parties’] respective financial abilities” and the statutory criteria for an alimony award. The court’s oral decision adequately addressed the parties’ finances and the requisite statutory criteria. The trial court had before it the plaintiff’s testimony as to attorney’s fees incurred. The court also had the plaintiff’s sworn financial affidavit showing a balance due for legal fees of $7500 as evidence of costs incurred. See Febbroriello v. Febbroriello, 21 Conn. App. 200, 205, 572 A.2d 1032 (1990). Further, “[cjourts have a general knowledge of what would be a reasonable attorney’s fee for services which are fairly stated and described.” Pearl v. Nelson, 13 Conn. App. 170, 172, 534 A.2d 1257 (1988). “The allowance and amount of counsel fees is left to the exercise of judicial discretion, and the availability of cash with which to pay the attorney’s fees of the spouse claiming the allowance is not an absolute standard for denying an award. Anderson v. Anderson, 191 Conn. 46, 59, 463 A.2d 578 (1983).” Howat v. Howat, 1 Conn. App. 400, 408, 472 A.2d 799 (1984).

“The trial court exercises broad discretion in determining whether to allow counsel fees, and, if so, in what amount.” Passamano v. Passamano, 28 Conn. App. 854, 860, 612 A.2d 141 (1992), cert. granted, 224 Conn. 904, 615 A.2d 1047 (1993). The court must exercise that discretion so that its decision as to counsel fees does not undermine its purpose in making awards with respect to alimony, support and division of assets. Graham v. Graham, 25 Conn. App. 41, 50, 592 A.2d 424, cert. denied, 220 Conn. 903, 593 A.2d 969 (1991). In this case, the record indicates that the trial court properly exercised its discretion in awarding counsel fees.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff filed an appeal following the rendition of judgment, and the defendant filed a cross appeal. Subsequently, the plaintiff withdrew her appeal, and the defendant is proceeding on his cross appeal.


author: Landau, J.

text:
    Marilyn Cortes et al. v. John P. Cotton, Jr.
    (11618)
    Foti, Laveey and Landau, Js.
    Argued March 29
    decision released June 8, 1993

      Leonard C. Reizfeld, for the appellants (plaintiffs).

      Kevin R. Murphy, with whom, on the brief, was Dennis M. Laccavole, for the appellee (defendant).
   Landau, J.

In this action in negligence, the plaintiffs appeal from the judgment of the trial court (1) granting the defendant’s motion for summary judgment, and (2) denying the plaintiffs’ application for waiver of fees. The principal issue on appeal is whether the plaintiffs produced sufficient evidence of the defendant’s absence from the state so as to survive his motion for summary judgment under General Statutes § 52-584.

The following facts are relevant to this appeal. The named plaintiff, Marilyn Cortes, sustained personal injuries on December 5, 1989. At that time she was fourteen years old. She claims that the injuries occurred on property owned by the defendant, John P. Cotton, Jr. In January, 1990, the defendant’s property was severely damaged by fire, and the defendant moved to the state of New York. The defendant asserted, in a sworn statement dated January 4,1992, and attached to the plaintiffs’ objection to the motion for summary judgment, that “I believe I continued to live [in Albany, New York] for approximately six (6) months or possibly longer. After that I moved back to my mother’s house at . . . New Haven, Conn, and that is where I still at present make my legal residence.” On February 14, 1990, ownership of the defendant’s property vested in another pursuant to a judgment of foreclosure of December 18, 1989.

On or about December 30,1991, the plaintiffs learned for the first time that the defendant had returned to Connecticut. They retained counsel and caused a writ, summons and complaint to be served on the defendant on January 13, 1992.

The defendant filed this motion for summary judgment claiming that the action was time barred under General Statutes § 52-584. The plaintiffs objected, asserting that the defendant was “without” the state of Connecticut for approximately six months and that that period should be excluded from the computation of the two year statute of limitations applicable to a cause of action in negligence. The defendant argues that General Statutes § 52-590 is not applicable and that during the period of his absence the plaintiffs could have had him served under the provisions of General Statutes §§ 52-59b and 52-57a.

The trial court found that “[i]t was not impossible to commence a suit against this defendant; he was here in Connecticut since . . . 1990. ... In addition the defendant’s absence of approximately six months was nothing more than ‘temporary’ and therefore should not be excluded from the period of the statute of limitations.” The trial court held that the plaintiffs had failed to raise any genuine issue as to any material fact; thus, the defendant was entitled to judgment as a matter of law. We disagree and reverse the judgment of the trial court.

The standards governing our review of a trial court’s decision on a motion for summary judgment are clear. Practice Book § 384 provides that summary judgment “shall be rendered forthwith if 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.” See Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991); Trotta v. Branford, 26 Conn. App. 407, 409, 601 A.2d 1036 (1992). While the burden of showing the nonexistence of any material fact is on the party seeking summary judgment; see D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); “the 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.” (Internal quotation marks omitted.) Bassin v. Stamford, 26 Conn. App. 534, 537, 602 A.2d 1044 (1992). “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). “The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Trotta v. Branford, supra, 410.

The defendant asserts that § 52-590 is not applicable because during the period of the defendant’s absence the plaintiffs could have served him under the provisions of General Statutes §§ 52-59b and 52-57a. Citing Sage v. Hawley, 16 Conn. 106, 115 (1844), the defendant appropriately posits that the purpose of § 52-590 (and its predecessor General Statutes [1838 Rev.] tit. LX, § 8) is to preserve a right of action during the absence of the defendant when it is impossible to serve him with process. The defendant incorrectly contends that § 52-59b (a) (3) provides for jurisdiction over nonresidents in situations where a tort is allegedly committed in Connecticut. That section provides for jurisdiction over nonresidents in situations where the nonresident “commits a tortious act outside the state causing injury to person . . . within the state. . . .” (Emphasis added.) General Statutes § 52-59b (a) (3). Even were we to contemplate § 52-59b (a) (4), which provides for jurisdiction over nonresidents who own, use or possess any real property within the state, the reliance would be misplaced and unsound. “[General Statutes § 52-59b (a) (4)] expressly applies only to nonresidents . . . .” White-Bowman Plumbing & Heating, Inc. v. Biafore, 182 Conn. 14, 16, 437 A.2d 833 (1980). We do not know the residential status of the defendant, that being among the facts in dispute. The defendant’s reliance on General Statutes § 52-57a is equally flawed. That statute concerns the manner of service outside of the state on a party domiciled in the state. See Anderson v. Schibi, 33 Conn. Sup. 562, 364 A.2d 853 (1976). The uncontroverted evidence before the trial court in this case is that at no time prior to instituting the action did the plaintiffs know where outside of the state the defendant had moved. Therefore, that argument is without merit.

Finally, the defendant contends that General Statutes § 52-68 could have been used by the plaintiffs to provide notice after service under § 52-59b. In view of the inapplicability of § 52-59b, we need not address this contention.

We now consider the plaintiffs’ claim that they produced sufficient evidence to present ]the necessary factual predicate to raise a genuine issue as to the absence of the defendant from the state. Although designating the period of time “temporary,” the trial court found that the defendant absented himself from the state for a period of six months. In ruling on a motion for summary judgment, the trial court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982). Our review of the entire record shows that no factual evidence was presented by which the trial court could determine, as a matter of law, that the defendant was either a resident of or domiciled in this state or that his absence from the state was only temporary. The plaintiffs, on the other hand, have produced sufficient evidence to raise genuine issues of material fact. Therefore, the trial court improperly granted the motion for summary judgment.

The judgment is reversed and the case remanded with direction to deny the motion for summary judgment.

In this opinion the other judges concurred.

       This action was brought on behalf of the named plaintiff by her mother, the plaintiff Evelyn Cortes, who sought also to recover for expenditures made on behalf of her daughter.

       Denial of a motion for waiver of fees is not an appealable final judgment. Review of such a denial is properly sought in a motion for review pursuant to Practice Book § 4053. The plaintiff failed to follow that procedural course. Therefore, we will not review this claim.

       General Statutes § 52-584 provides: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       General Statutes § 52-590 provides: “In computing the time limited in the period of limitation prescribed under any provision of chapter 925 or this chapter, the time during which the party, against whom there may be any such cause of action, is without this state shall be excluded from the computation, except that the time so excluded shall not exceed seven years.”

       General Statutes § 52-59b provides in pertinent part: “(a) . . . a court may exercise personal jurisdiction over any nonresident individual . . . or his . . . executor or administrator, who in person or through an agent ... (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act ....
      “(b) Where personal jurisdiction is based solely upon this section, an appearance does not confer personal jurisdiction with respect to causes of action not arising from an act enumerated in this section.
      “(c) Any nonresident individual . . . or his . . . executor or administrator, over whom a court may exercise personal jurisdiction, as provided in subsection (a), shall be deemed to have appointed the secretary of the state as its attorney and to have agreed that any process in any civil action brought against the nonresident individual . . . or his . . . executor or administrator, may be served upon the secretary of the state and shall have the same validity as if served upon the nonresident individual . . . personally. ...”
      General Statutes § 52-57a provides: “A person domiciled in or subject to the jurisdiction of the courts of this state or his executor or administrator, may be served with process without the state, in the same manner as service is made within the state, by any person authorized to make service by the laws of the state, territory, possession or country in which service is to be made or by any duly qualified attorney, solicitor, barrister or equivalent in such jurisdiction.”

       General Statutes § 52-68 provides: “(a) The superior court, and the judges, clerks and assistant clerks thereof, may, except where it is otherwise specially provided by law, make such order as is deemed reasonable, in regard to the notice which shall be given of the institution or pendency of all complaints, writs of error and appeals from probate, which may be brought to or pending in the superior court, when the adverse party, or any persons so interested therein that they ought to be made parties thereto, reside out of the state, or when the names or residences of any such persons in interest are unknown to the party instituting the proceeding.
      “(b) Such notice, having been given and proved by the affidavit of the officer who served the notice or by other competent evidence, shall be deemed sufficient service and notice, and the court may proceed to a hearing, unless otherwise provided by law, or may order further notice as it deems reasonable.”

       We further note that this claim was not raised at trial. Therefore, we need not address it. “If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim.” (Internal quotation marks omitted.) Solomon v. Hall-Brooke Foundation, Inc., 30 Conn. App. 129, 134, 619 A.2d 863 (1993); see also Practice Book § 285A.


text:
    Thomas E. Golden Realty Company v. Society for Savings
    (11405)
    Landau, Heiman and Freedman, Js.

      Argued February 10
    decision released June 8, 1993

      Daniel Shepro, with whom, on the brief, was Ann Marie Kent, for the appellant (plaintiff).

      Karen P. Blado, with whom, on the brief, were Janet Hubon Stratton and Frank J. Mastrandrea, for the appellee (defendant).
   Landau, J.

The plaintiff appeals from the trial court’s dismissal of a summary process action following the court’s granting of the defendant’s motion to strike the complaint. On appeal, the plaintiff claims that the trial court improperly (1) concluded that the notice to quit lacked the requisite specificity to comply with General Statutes § 47a-23, (2) concluded that the plaintiff failed to give adequate notice of default under the lease, (3) concluded that the notice to quit and the complaint were different and thereby failed to comply with the requirements of General Statutes § 47a-23, and (4) dismissed the action, sua sponte, for lack of subject matter jurisdiction. The trial court’s dismissal of the action was based on its conclusion that the defective notice to quit deprived it of subject matter jurisdiction to hear the action. We agree with the plaintiff’s first two claims and reverse the judgment of the trial court. Therefore, we do not address the plaintiff’s remaining claims.

The facts fairly provable under the relevant counts of the complaint are as follows. In 1964, the plaintiff, Thomas E. Golden Realty Company (Golden), entered into a ground lease with The Noro Company (Noro). The lease provided for a term of fifty years with two renewal options of twenty years each. In 1976, the lessee’s interest in the lease was assigned from a previous assignee to Echo Six (Echo), which built a 30,000 square foot office building on the land. In 1977, the defendant, Society for Savings (Society), became the mortgagee of the leasehold interest. On April 5,1991, Society became the owner of the leasehold interest as a result of a judgment of strict foreclosure entered against Echo.

Beginning in November, 1990, and continuing through August 14,1991, Echo and Society were each notified of defaults pursuant to the terms of the lease between Echo and Golden. The defaults included, inter alia, the failure to remove fuel tanks buried on the property, the lapse of insurance coverage, the failure to provide evidence of insurance coverage naming Golden as the insured, the failure to pay real estate taxes, the failure to keep the property in good and reasonable condition, as well as the failure to pay attorney’s fees pursuant to the lease. On November 27,1990, the plaintiff notified Society that Echo had defaulted in several ways under the terms of the lease, including the failure to pay rent, the failure to maintain the property in good condition, the failure to remove fuel tanks, and the failure to comply with local zoning ordinances. Society, in return for an extension of time to cure the default regarding the fuel tanks, agreed to discharge all tax liens, repair leaks in the building, pay reasonable counsel fees, and bring eviction proceedings against the current tenant. Society agreed to perform these acts upon taking title on April 5, 1991. Society did not perform pursuant to this agreement.

On September 17,1991, Golden served Society with a notice to quit pursuant to General Statutes § 47a-23 (b). Society was directed to quit the premises “for the reason that you are in violation of the lease and nonpayment of additional rent.” The summary process action was initiated on October 10,1991, and Society filed a motion to dismiss on October 21, 1991, claiming that the notice to quit was defective, premature, and improperly served. Society argued that Golden’s grounds for the termination, the violation of the lease and the nonpayment of additional rent, failed to demonstrate conduct that constituted a violation. In denying the motion to dismiss, the trial court held that the nonpayment of additional rent was a sufficiently clear statutory reason and, therefore, the notice to quit complied with § 47a-23. The trial court stated that the “[fjact that the notice to quit did not include the specific categories of additional rent or the words ‘when due’ do[es] not render the notice defective.”

In compliance with Society’s requests, Golden filed two revised complaints. The first revised complaint indicated with greater specificity the precise violations of the lease and the additional rents due; the second contained copies of correspondence and other documents that were cited in the first revised complaint. Society then filed a motion to strike. The trial court granted this motion on the basis, inter alia, that the second revised complaint, with the numerous documents attached, “enlarged the complaint so that the notice to quit lacks the requisite specificity.”

I

The plaintiff’s first claim is that the trial court improperly concluded that the notice to quit lacked the requisite specificity to comply with General Statutes § 47a-23. We agree.

Section 47a-23 dictates the form of a notice to quit, as well as the reasons for a notice to quit. The statute provides that the reasons supporting a notice to quit include (1) the lapse of time pursuant to the lease, (2) the failure to comply with any expressed stipulation in the lease, (3) a violation of the rental agreement or lease, (4) the nonpayment of rent for residential property within the grace period provided pursuant to General Statutes §§ 47a-15a or 21-83, (5) the nonpayment of rent when due for commercial property, (6) a violation of General Statutes §§ 47a-ll or 21-82 (b), (7) when the premises are occupied by one who never had a right or privilege to occupy such premises, or (8) when one who had a right or privilege to occupy such premises but that right or privilege has terminated. The form for a notice to quit requires that the party state the “reason or reasons for the notice to quit possession or occupancy using the statutory language or words of similar import.” General Statutes § 47a-23 (b).

This court encountered a similar claim in Southland Corporation v. Vernon, 1 Conn. App. 439, 452, 473 A.2d 318 (1984). There, the defendant claimed that the plaintiffs notice to quit, which stated: “[Y]our right or privilege to occupy such premises has terminated,” was fatally defective. While recognizing “the principle that, because of the summary nature of its remedy, the summary process statute has been narrowly construed and strictly followed”; id.; this court held that the language in the plaintiffs notice to quit “substantially tracks that of General Statutes § 47a-23 (a)”; id.; and upheld the validity of the notice to quit. Id. Here, the plaintiffs notice to quit provided that the reasons were “that you are in violation of the lease and nonpayment for additional rent.” The phrase “nonpayment for additional rent” substantially tracks the language in the statute and conveys a sufficient ground for the notice to quit. The trial court improperly held that the notice to quit lacked the requisite specificity to comply with the statute.

II

The plaintiffs second claim is that the trial court improperly concluded that the plaintiff failed to give adequate notice of a default under the lease. We agree.

The record indicates that between November 26, 1990 and August 14, 1991, the plaintiff sent at least fifteen letters to the defendant regarding specific violations of the lease. The trial court, in its memorandum of decision, held that because the defendant was not the owner of the property before April 5,1991, any correspondence before that date is irrelevant because the defendant was under no duty to assume any obligations before that time. The trial court then reviewed the correspondence sent after April 5, 1991, and concluded that the correspondence merely invited response from the defendant and suggested negotiations or spoke of other obligations. Therefore, it concluded that the correspondence was insufficient to convey notice of the violations.

In Southland, the defendant made similar claims. There, the plaintiff informed the defendant that it was terminating its franchise agreement. The defendant then filed an application for an injunction preventing such termination, which the trial court denied. The plaintiff, in a separate action, served the defendant with a notice to quit. The defendant claimed that it did not have notice of the reasons for the notice to quit. We held that it was “inconceivable that the defendant did not know that the basis for the claim of termination of his right to occupy the premises was the claimed termination of the franchise. Even under the strict construction rule of Jo-Mark Sand & Gravel Co. v. Pantenella, [139 Conn. 598, 600-601, 96 A.2d 217 (1953)], it would be the height of hypertechnicality to hold this notice to quit defective.” Southland Corporation v. Vernon, supra, 452-53.

The same reasoning applies in this case. The defendant was notified of the reasons for the default on November 27,1990. For several months thereafter, the parties were involved in negotiations regarding the cure of the defaults. In fact, the plaintiff extended the time to cure these defaults at the request of the defendant. It is disingenuous for the defendant to argue now that it did not have notice of the reasons for the notice to quit. Here, too, “it would be the height of hypertech-nicality to hold this notice to quit defective.” Id.

The judgment dismissing the action for lack of subject matter jurisdiction is reversed and the case is remanded with direction to deny the defendant’s motion to strike and for further proceedings.

In this opinion the other judges concurred.

       The plaintiff also claims that it is against public policy to dismiss a summary process action because of a variance between the notice to quit and the revised complaint when the complaint was revised solely at the request of the defendant. Finally, the plaintiff claims that, because the trial court denied the defendant’s earlier motion to dismiss the complaint, in the absence of countervailing evidence, the trial court should have been bound by that decision when addressing the motion to strike.

       We note that the notice to quit statute was revised two weeks after the plaintiff’s notice to quit was served. The defendant argues that the revised statute should not apply here. We disagree. The revision added the phrase “or words of similar import.” The legislative history of this revision indicates that it was a technical amendment designed to clarify the statute and make it consistent with existing housing court interpretations of the act. “[W]here it is clear that an amendment was intended to construe and clarify, rather than alter, a preexisting law, it will be treated as retroactive.” Aetna Casualty & Surety Co. v. Lighty, 3 Conn. App. 697, 703, 491 A.2d 1118 (1985).