author: McLACHLAN, J.

text:
    THOMAS CASEY v. GLORIA A. CASEY
    (AC 23934)
    Lavery, C. J., and SchaHer and McLachlan, Js.
    Argued January 20 —
    officially released April, 6, 2004

      William C. Franklin, for the appellant (defendant).

      James Ryan Mulvey, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

This case represents one of the very rare matrimonial cases in which a disappointed party successfully argues that the financial orders entered incident to a dissolution action exceed the broad discretion of the trial court. The defendant, Gloria A. Casey, claims that the financial orders are inequitably favorable to the plaintiff, Thomas Casey, because they assigned him an exceedingly high portion of the marital assets while assigning her an exceedingly high portion of the marital debt and liabilities. The defendant ar gues specifically that (1) the orders are logically inconsistent with the facts found by the court, (2) the court improperly refused to make an equitable division of the portion of the respective parties’ vested pension plans that accrued during the term of the marriage and (3) the court failed to enter orders with respect to certain personal property that was contested at trial and exceeded its authority in the orders that it did enter. We reverse the judgment of the trial court with respect to the first and third claims and remand the matter for a new trial as to the financial orders.

The court’s findings may be summarized as follows. The parties began a romantic relationship in the early 1990s and, in January, 1995, the plaintiff moved into the defendant’s Wilton home that she shared with her two children from a previous marriage. Both parties were and are currently employed with American Airlines, the plaintiff as a senior pilot and the defendant as a flight attendant. In addition to her salary, the defendant also received rental income from an apartment on her Wilton property and received unallocated alimony and support from her former husband. Shortly after the plaintiff moved into the defendant’s home, it was appraised at $535,000 and had equity of approximately $400,000. The home was encumbered by a first mortgage of approximately $75,000, requiring a monthly payment of principal and interest of $600, and a second mortgage to her former husband in the amount of $60,160, on which no monthly payments were required.

Although the plaintiff had a pension with American Airlines, he owned no real estate and had no savings or investments. The only significant assets the plaintiff brought to the relationship were two airplanes, a Beech aircraft and a Grumman Albatross aircraft, both financed and encumbered by loans.

In June, 1995, the defendant refinanced her Wilton home with a new first mortgage loan in the amount of $265,000 and paid off the existing two mortgage loans with the proceeds of the refinance. The balance of $131,000 “inured directly to the benefit” of the plaintiff, who used the money to make improvements to and to pay off loans that encumbered his airplanes.

The parties were married in June, 1996. Approximately two years into the marriage, the defendant quit-claimed a one-half interest in the Wilton home to the plaintiff. Shortly thereafter, the parties decided to sell the Wilton home and to acquire a new home in Sherman. In 1999, the Wilton home was sold for $466,020. The parties then purchased the Sherman home for $465,000, subject to a mortgage loan in the amount of $372,000. As a result of the foregoing sale and purchase transactions, approximately $114,000 in cash was generated, which was deposited into the plaintiffs solely owned bank account. With those funds, the plaintiff purchased a 1978 Rolls Royce automobile, a pontoon boat and a Jaguar automobile. The balance of $27,000 was invested in the Sherman home and in the plaintiffs airplanes.

Shortly after the parties moved into the Sherman home, the defendant discovered that the plaintiff had engaged in sexual infidelities with other women during the course of the marriage without the defendant’s knowledge or consent. In February, 2001, the plaintiff left the marital residence, believing that the marriage had irretrievably broken down. At or about that time, the plaintiff took the Rolls Royce, Jaguar and pontoon boat from the Sherman home. In May, 2001, a dissolution action was filed by the plaintiff.

In its memorandum of decision, the court made several specific factual findings that purportedly formed the predicate for its financial orders. The court found that at the time of the dissolution, the plaintiff was fifty-two year s of age and still employed as a senior pilot with American Airlines, earning approximately $200,000 a year, and that the defendant was fifty-four years of age and earning approximately $50,000 a year as a flight attendant. The court further found that the Sherman home had a fair market value of $725,000, subject to a mortgage loan with a balance of approximately $360,000, resulting in a net equity of $365,000. The court further found that the Beech aircraft had a value of $84,000 and that the Albatross aircraft had a value of $245,000, although the plaintiff had spent significantly larger sums on maintenance and improvements to the Albatross between 1995 and the date of dissolution. In that respect, the court specifically found that the “exorbitant amount of money spent on the airplanes . . . was the primary reason for the various increases in the mortgages” prior to and during the parties’ marriage. As to the breakdown of the marriage, the court concluded that although both parties’ conduct ultimately caused the breakdown, the plaintiffs sexual infidelities initiated the breakdown and were the primary cause of the failure of the marriage.

In its financial orders, the court did not award alimony or attorney’s fees but did distribute the parties’ principal assets. The court awarded the defendant all right, title and interest to the Sherman home, subject to existing encumbrances including the mortgage, taxes and insurance. The court also awarded the defendant a 1995 Jeep Cherokee, valued at $5000. The court awarded the plaintiff all right, title and interest to both aiiplanes, subject to any encumbrances. The plaintiff was also awarded the 1978 Rolls Royce and the pontoon boat, with respective values of $14,000 and $4450. With regard to the parties’ retirement accounts, the court ordered that the parties retain their own accounts. Last, the court ordered the parties to resolve any issues pertaining to the distribution of personal property through mediation with the family relations division of the Superior Court, but expressly limited its order to eleven items included in a fist of property supplied by the plaintiff in his brief. Those eleven items represented only a small portion of the total personal property identified by both the plaintiff and the defendant in their respective financial affidavits and briefs, and no order was entered with respect to the balance of the personal property at issue.

The defendant then filed a motion to reargue, pursuant to Practice Book § 11-11, contending that the financial orders issued by the court were inequitable. The court denied the motion, and this appeal followed.

Our standard of review for financial orders in a dissolution action is clear. The trial court has broad discretion in fashioning its financial orders, and “[¡Judicial review of a trial court’s exercise of [this] broad discretion ... is limited to the questions of whether the . . . court correctly applied the law and could reasonably have concluded as it did. ... In making those determinations, we allow every reasonable presumption ... in favor of the correctness of [the trial court’s] action.” (Internal quotation marks omitted.) Gilbert v. Gilbert, 73 Conn. App. 473, 484, 808 A.2d 688 (2002). That standard of review reflects the sound policy that the trial court has the unique opportunity to view the parties and their testimony, and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, including such factors as the demeanor and the attitude of the parties. See Parley v. Parley, 72 Conn. App. 742, 745, 807 A.2d 982 (2002). As pithily stated by Justice Parskey, “in matters of this sort our role of necessity is not to work the vineyard but rather to prune the occasional excrescence.” Koizim v. Koizim, 181 Conn. 492, 498, 435 A.2d 1030 (1980).

I

The defendant first claims that the court’s financial orders were logically inconsistent with its factual findings and that the court, therefore, could not reasonably have concluded as it did. In particular, the defendant claims that the court inequitably awarded her the marital residence, subject to a large mortgage loan, despite the express finding that substantial proceeds from the various mortgages had been utilized to make expenditures toward the plaintiffs two airplanes, which were awarded to him. We agree that the financial orders are logically inconsistent with the facts found by the court.

Our jurisprudence requires the trial court to consider all the statutory criteria set forth in General Statutes § 46b-81 in determining how to distribute parties’ assets in a dissolution action. Burns v. Burns, 41 Conn. App. 716, 720, 677 A.2d 971, cert. denied, 239 Conn. 906, 682 A.2d 997 (1996). We do not, however, require that courts ritualisticaily recite the criteria they considered, nor are they bound to any specific formula respecting the weight to be accorded each factor. See id., 720-21.

The court properly made specific factual findings as to the assets and liabilities each party brought to the marriage and certain other relevant factors existing at the time of the dissolution, all of which are supported by the evidence. The court found that prior to the marriage, the defendant’s Wilton home had approximately $400,000 in equity, subject to $135,160 in mortgage loans of which only $75,000 required current payments, and that the property contained an income producing rental unit. The court further found that the mortgage debt on the Wilton home, as well as on the Sherman home, had been increased during the marriage, and that $245,000 of the increased debt inured directly to the benefit of the plaintiff, which he used to make expenditures toward his airplanes and to purchase the Rolls Royce automobile, the Jaguar automobile and a boat. The court made the specific finding that the “exorbitant amount of money spent on the airplanes . . . was the primary reason for the various increases in the mortgages” and that any increased value of the airplanes during the term of the marriage did not correspond with the significantly larger sums that were spent on them. The court also determined that the plaintiff had an earning capacity four times that of the defendant and that the plaintiffs sexual infidelities during their relationship were the primary cause of the breakdown of the marriage.

Applying those factual findings to the statutory considerations set forth in General Statutes §§ 46b-81 and 46b-82, we cannot reconcile the court’s financial orders with its findings. We find no support in the statutory criteria for permitting the defendant to leave the marriage, no matter how brief in duration, saddled with a sizeable mortgage debt, when the proceeds of the increased debt inured almost exclusively to the plaintiffs benefit and when the plaintiff was awarded the property that enjoyed an appreciation in value and net equity as a result of the mortgage debt. That is particularly true when, as here, the evidence revealed that the defendant would be unable to make the monthly payments and, therefore, faced the daunting prospect of defaulting on the mortgage or selling the property in the near future. We conclude that the financial orders were logically inconsistent with the facts found and that the court could not reasonably have concluded as it did. A new hearing on the financial orders is necessary.

II

The defendant next claims that the court improperly failed to divide equally the portion of the parties’ pensions that accrued during the term of their marriage. We disagree.

Prior to the date of the marriage, both the plaintiff and the defendant possessed vested retirement accounts with American Airlines that continued to be funded during the term of the marriage. The parties stipulated at trial as to the value of that portion of each party’s vested pension that accrued during the term of the marriage. The parties stipulated that the plaintiffs pension account had increased during the marriage by $489,687 and the defendant’s by $45,310. Declining to divide equally the combined value of the pension plans that accumulated during the marriage, the court ordered that both parties retain their own accounts. The defendant asserts that the order was inequitable because it essentially awarded the plaintiff almost 92 percent of the combined sum, leaving the defendant only 8 percent.

Pension benefits often are among the most valuable assets that parties possess when a marriage ends, and our courts have accordingly classified such benefits as property pursuant to § 46b-81 and divided them incident to a dissolution. See, e.g., Krafick v. Krafick, 234 Conn. 783, 793, 663 A.2d 365 (1995). It is equally well settled, however, that there is no set formula the court is obligated to apply when dividing the parties’ assets and that the court is vested with broad discretion in fashioning financial orders. See, e.g., Lopiano v. Lopiano, 247 Conn. 356, 363-64, 752 A.2d 1000 (1998). In accordance with that discretion, the court is free to fashion its financial orders either to assign interests in the parties’ pensions or, as it did here, to order that the pensions remain with the respective parties. We conclude that the court was not obligated to divide equally, or in any manner, the portion of the parties’ pensions that accrued during the term of the marriage.

Ill

The defendant claims finally that the court failed to enter any orders with respect to many items of the personal property that were identified in both parties’ financial affidavits. The defendant further claims that the court exceeded its jurisdictional authority by ordering the parties to mediate their property claims with the family relations division. We agree that the court was required to enter orders with respect to all of the contested property but disagree that it lacked authority to refer the distribution issue to mediation.

At trial, both parties submitted financial affidavits identifying jointly owned personal property. The plaintiffs list identified a personal computer, sculpture, painting, and miscellaneous books and records, which the plaintiff estimated to have a total value of $30,900. The defendant’s financial affidavit listed certain furniture, jewelry, china and fur, to which she assigned an estimated value of $40,000.

In its orders, the court stated: “The parties are ordered to resolve the issue of any claims of personal property through mediation with the family relations division of the Superior Court. The items of personal property are limited to those items set forth in the plaintiffs list of property on page thirteen of his brief, items A through K, inclusive.”

We first address the defendant’s claim that the court lacked the authority to refer the personal property issues to the family relations division for mediation. We have consistently held that the trial court is without jurisdiction to delegate the authority to resolve divisions of personalty in dissolution actions. See Valante v. Valante, 180 Conn. 528, 532-33, 429 A.2d 964 (1980). The rendering of such judgments is exclusively a judicial function and cannot be undertaken by domestic relations officers. See id. Here, however, the court did not order family relations to resolve the property claims, but merely directed the parties to mediate the claims through the division, a procedure specifically allowed under Volante and Practice Book § 25-69 (b), and often utilized by trial courts in dissolution actions. We conclude, therefore, that it was a proper exercise of the court’s authority to refer the parties’ personal property claims to mediation with the family relations division.

We now turn to the court’s failure to enter orders dividing the personal property that was contested by the parties. It is axiomatic that when parties submit an issue to the court for resolution, they are entitled to have that issue considered, absent jurisdictional defects or other substantive impairments. Although, in the present case, the parties submitted financial affidavits and memoranda explicitly identifying the contested items of personal property, which the parties agreed were of substantial economic value, the court’s order failed to address many of those items and thereby relegated their ownership to a state of perpetual limbo. That result is untenable.

Having concluded that the court’s partial disposition of the parties’ personal property was improper, we turn to the issue of fashioning an appropriate remedy. Concerning part I of this opinion, our determination that the financial orders were logically inconsistent with the facts found necessitates a reversal of the judgment and a remand of the matter to the trial court of all the financial orders that were entered. With respect to the personal property distribution orders, which are part of those financial orders, we reverse the court’s property distribution orders and direct the court to determine any outstanding disputes with respect thereto.

The judgment is reversed only as to the financial orders and the matter is remanded for further proceedings to enable the court to enter new financial orders.

In this opinion the other judges concurred.

       That sum also included approximately $51,000 in cash that was deposited directly into the plaintiffs solely owned bank account.

       Although the net equity figure was the estimated market value of the home less the balance due on the mortgage loan, that did not include any expenses of sale, which the court could have considered because the defendant apparently did not have sufficient resources to continue to reside there.

       The plaintiff himself testified that during his relationship with the defendant, he spent in excess of $400,000 on his airplanes.

       During the pendency of the dissolution action, the plaintiff sold the Jaguar automobile and retained all proceeds, in apparent violation of Practice Book § 25-5.

         The defendant claimed specifically that the plaintiff was awarded approximately 64.7 percent of the nonpension marital assets while she was awarded 82.2 percent of the marital debt. She further argued that given the mortgage debt on the Shennan home and her income, the court’s order ensured that the only significant asset awarded to her would have to be sold at a distress sale or lost through foreclosure in the near future when the mortgage proceeds into default. The defendant claimed also that the inequity was further exacerbated by the court’s failure to divide that portion of the parties’ pensions that accrued during the term of the marriage. The total amount accruing to the parties’ pension plans during the marriage was $534,997. In ordering both parties to keep their respective accounts, the court essentially awarded the plaintiff almost 92 percent of those pension assets, leaving the defendant only 8 percent.

       General Statutes § 46b-81 provides in relevant part: “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. . . .
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       Although we concluded in part I of this opinion that further proceedings are necessary with respect to the financial orders and that the court’s order concerning the parties’ pensions was a component thereof, we nevertheless address the claim as to the pensions, as it is likely to recur at a new hearing.

       We note that the defendant makes no claim with respect to any portion of the plaintiffs pension that accrued prior to the date of the marriage and claims as a marital asset only that portion that accrued during the term of the marriage.

       We note for clarity that our remand of the financial orders is not, in any way, based on the reasoning advanced by the defendant that an impropriety in the personal property orders necessitates a retrial of all of the financial orders because such orders are part of what is often referred to as the “carefully crafted mosaic” that comprises financial orders in a dissolution action. See, e.g., Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984). Under the mosaic doctrine, financial orders should not be viewed as a collection of single disconnected occurrences, but rather as a seamless collection of interdependent elements. Consistent with that approach, our courts have utilized the mosaic doctrine as a remedial device that allows reviewing courts to remand cases for reconsideration of all financial orders even though the review process might reveal a flaw only in the alimony, property distribution or child support awards. See, e.g., Krafick v. Krafick, supra, 234 Conn. 806; Sunbury v. Sunbury, 210 Conn. 170, 173-75, 553 A.2d 612 (1989).
      Although the mosaic doctrine has found favor in our courts, it is not without its limits. “Every improper order . . . does not necessarily merit a reconsideration of all of the trial court’s financial orders. A financial order is severable when it is not in any way interdependent with other orders and is not improperly based on a factor that is linked to other factors.” Smith v. Smith, 249 Conn. 265, 277, 752 A.2d 1023 (1999). In our view, the personal property distribution orders at issue here are not so linked, but rather are severable from the other financial orders. Our remand of the financial orders, therefore, is based on the reasoning set forth in part I of this opinion and not on the notion that an impropriety in the personal property distribution orders taints the remaining financial orders. Put differently, if the claim challenging the personal property orders stood alone on appeal, our remand would not encompass all of the financial orders, but would be limited to only the personal property orders claimed to be improper.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    PREMIER CAPITAL, INC. v. DAVID S. GROSSMAN ET AL.
    (AC 24136)
    Foti, Schaller and West, Js.
    Argued January 16 —
    officially released April 6, 2004

      Neal L. Moskow, with whom, on the brief, was Deborah M. Garskof for the appellant-appellee (plaintiff).

      David S. Grossman, for the appellees-appellants (defendants).
   Opinion

SCHALLER, J.

The plaintiff, Premier Capital, Inc., appeals and the defendants, David S. Grossman and Myma S. Grossman, cross appeal from the trial court’s judgment rendered after a remand from this court. The case was “remanded for further proceedings to determine the appropriate amount of the credit to be offset against the $18,100.20 judgment on the [defendant’s] debt [owed to the plaintiff]. In all other aspects the judgment is affirmed.” Premier Capital, Inc. v. Grossman, 68 Conn. App. 51, 60, 789 A.2d 565, cert. denied, 260 Conn. 917, 797 A.2d 514 (2002). The plaintiff claims on appeal that the court (1) improperly determined the valuation date for stock used as collateral for the defendants’ debt owed to the plaintiff on a promissory note, (2) unjustly enriched the defendants because the value of the stock increased due to the delays inherent in litigation, (3) failed to consider the stock certificates offered by the plaintiff after the remand and (4) improperly failed to award attorney’s fees. The defendants claim on cross appeal that the court improperly (1) failed to reconsider the interest award and (2) determined the award of attorney’s fees. We conclude that the court properly determined the valuation date of the stock and affirm the judgment of the trial court.

The relevant facts and procedural history of this case can be found in Premier Capital, Inc. v. Grossman, supra, 68 Conn. App. 51-56. On remand, the trial court concluded that “the correct and appropriate date for a determination of the valuation of the one hundred twenty-three (123) shares of General Electric Corporation stock must be the date of an unequivocal demand for payment of the debt secured by the note and the pledged certificates.” The court found that August 1, 1996, the date when the plaintiff sent a certified letter to the defendants demanding payment of the outstanding balance due on the note, was the correct date for the determination of the appropriate amount of credit to be offset against the $18,100.20 judgment on the debt. Likewise, the plaintiff stated in a brief submitted at the original trial of this case that the cause of action for the breach of contract “accrues at the time of demand.” The plaintiff further argued then that “[w]hen defendants failed to make payment following demand on August 1, 1996, [their] cause of action accrued.”

The plaintiff claims on appeal that the court improperly determined the valuation date for stock used as collateral for the debt. Specifically, the plaintiff argues in its brief that “[b]y selecting August 1, 1996, as the date on which to ascribe value to the stock, because that was the date on which the plaintiff made written demand for payment, the trial court committed clear error, which requires reversal.” The plaintiff contends on appeal that “the only ‘appropriate credit’ is the value of the 123 shares on the date when they become alienable, that is, the date on which the [defendants were] ordered to execute stock powers so that the shares can be liquidated.”

“[P]arties contract with reference to existing law, except when the contract discloses a contrary intention. . . . Unless the agreement indicates otherwise, [the law] existing at the time an agreement is executed becomes a part of it and must be read into it just as if an express provision to that effect were inserted therein.” (Citation omitted.) Hatcho Corp. v. Della Pietra, 195 Conn. 18, 21, 485 A.2d 1285 (1985). Determining what law is actually incorporated into the contract is a question of law that we review on a de novo basis. See Practice Book § 60-5. The court’s determination that August 1, 1996, is the date of unequivocal demand was a question of fact, which we review under the clearly erroneous standard. See Giulietti v. Giulietti, 65 Conn. App. 813, 833, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96 (2001).

We first address the underlying legal theory utilized by the court that the date of unequivocal demand was the proper valuation date for the shares. The plaintiffs argument that the date of valuation should be the date that the shares became alienable is without merit. First, as a “promissory note is nothing more than a written contract for the payment of money . . . contract law must govern.” (Citation omitted; internal quotation marks omitted.) McKeever v. Fiore, 78 Conn. App. 783, 793, 829 A.2d 846 (2003). “In an action for breach of contract . . . the cause of action is complete at the time the breach of contract occurs, that is, when the injury has been inflicted.” (Internal quotation marks omitted.) Hill v. Williams, 74 Conn. App. 654, 662, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). If a plaintiff seeking to collect on a promissory note exercises his option to accelerate, the cause of action accrues at the time of the demand. Piantedosi v. Floridia, 186 Conn. 275, 276, 440 A.2d 977 (1982). Likewise, the value of the shares is to be determined from the date of the breach of the contract. See Levesque v. D & M Builders, Inc., 170 Conn. 177, 181, 365 A.2d 1216 (1976). As such, the court properly held that “the correct and appropriate date for a determination of the valuation of the one hundred twenty-three (123) shares of General Electric Corporation stock must be the date of unequivocal demand for payment of the debt secured by the note and the pledged certificates.”

Moreover, our case law is well settled that a party “may not try its case on one theory and appeal on another.” Mellon v. Century Cable Management Corp., 247 Conn. 790, 799, 725 A.2d 943 (1999). The plaintiff specifically argued at the original trial that the cause of action accrued on August 1,1996, the date of demand on the defendants. On remand after appeal, the plaintiff set forth a new legal theory that the appropriate credit for the shares must be the date when the shares became alienable. That theory directly contradicts the original argument at trial relating to the tolling of the statutes of limitation, to which the court acquiesced and we upheld. Moreover, the plaintiff failed to cite any authority for its more recent legal assertion.

We next address whether the court’s determination that August 1, 1996, is the date of unequivocal demand was proper. The court discussed numerous possible dates for determination of the credit due. Of the dates discussed, only three of the dates could possibly be considered as dates of an unequivocal demand for payment of the debt secured by the promissory note and the pledged General Electric Corporation stock. Those dates were (1) April 21,1994, when the Federal Deposit Insurance Corporation (FDIC) wrote a letter to the defendants, informing them, as of that date, of the total amount due and owing under the note, (2) June 24, 1994, when the FDIC provided the defendants with the applicable stock certificate numbers, again requesting that they sign the corresponding stock powers and forward those documents to the FDIC, and (3) August 1, 1996, when “the plaintiff sent a certified letter to the defendants, demanding payment of the outstanding balance due on the note, which as of that date amounted to $14,409.33 in principal and interest.” Premier Capital, Inc. v. Grossman, supra, 68 Conn. App. 54. The court on remand determined the demand date to be August 1, 1996, because the other “so-called demands fall short of a clear and unambiguous demand.”

On the basis of our review of the record, we conclude that it was not clearly erroneous for the court to select August 1, 1996, as the unequivocal demand date. The FDIC’s letters on April 21 and June 24, 1994, could be characterized as requests, not demands, that stock powers be signed. In Premier Capital, Inc. v. Grossman, supra, 68 Conn. 54, we construed the two letters written by the FDIC as requests and referred only to the plaintiffs August 1,1996 certified letter to the defendants as a demand. Id. As previously discussed, the plaintiff also claimed at the original trial that the date of demand was August 1, 1996. Because sufficient evidence existed to support the court’s determination that August 1, 1996, was the demand date, that finding is not clearly erroneous. Accordingly, we conclude that the court properly determined the valuation concerning the stock used as collateral for the debt.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are husband and wife.

       We will not review any of the other claims and cross claims of the parties because they were beyond the scope of the limited remand from the original appeal. Those issues were not part of the remand, and the trial court properly did not address them.
      “Well established principles govern further proceedings after a remand by this court. In carrying out a mandate of this court, the trial court is limited to the specific direction of the mandate as interpreted in light of the opinion. . . . This is the guiding principle that the trial court must observe. ... It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning. . . . The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein. ... So long as these matters are not extraneous to the issues and purposes of the remand, they may be brought into the remand hearing.” (Internal quotation marks omitted.) TDS Painting & Restoration, Inc. v. Copper Beech Farm, Inc., 73 Conn. App. 492, 506-507, 808 A.2d 726, cert. denied, 262 Conn. 925, 814 A.2d 379 (2002).
      In Premier Capital, Inc. v. Grossman, supra, 68 Conn. App. 51, 60, we reversed the judgment of the trial court on the limited issue that it “failjed] to allow the defendants a credit for the value of the stock” and remanded the case “for further proceedings to determine the appropriate amount of the credit to be offset against the $18,100.20 judgment on the debt.” Id. Because all of the other claims and cross claims are extraneous to the purpose of the remand order and properly were not ruled on by the court, we do not address them.


author: DiPENTIMA, J.

text:
    ANTONINA ROSATO v. TERESITA MASCARDO
    (AC 23423)
    Lavery, C. J., and DiPentima, and Peters, Js.

      Argued October 14, 2003 —
    officially released April 13, 2004

      Edward V. Walsh, with whom was John C. Turner, Jr., for the appellant (plaintiff).

      Frank El. Santoro, with whom, on the brief, was Joyce A. Lagnese, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The principal issue in this medical malpractice case is whether the “continuous treatment” or “continuing course of conduct” doctrine tolls the statute of limitations in General Statutes § 52-584. The plaintiff, Antonina Rosato, brought this action ultimately in two counts against the defendant, Teresita Mascardo, alleging that she suffered damages as a result of the defendant’s unauthorized insertion of silicone breast implants during a surgical procedure. The plaintiff appeals from the judgment rendered after the granting of the defendant’s motion for summary judgment as to the first count, which alleged malpractice and which the court found was barred by the statute of limitations, and after the court directed a verdict on the second count, which alleged breach of contract. We affirm the judgment of the trial court in part and reverse it in part.

The facts pertinent to this appeal follow. On February 13,1989, the defendant performed surgery on the plaintiff. The surgery included bilateral mastopexy with sub-pectoral breast augmentation, rhinoseptoplasty to repair a deviated septum and repair of diastasis recti. The plaintiffs first postoperative visit with the defendant was on February 20,1989, at which time the defendant informed her that silicone breast implants had been inserted during surgery.

The action was commenced on November 19, 1992. The plaintiff filed an amended complaint on June 1, 1993, adding to the first count of medical malpractice a second count alleging breach of contract. Both counts addressed the surgical procedures performed by the defendant on February 13, 1989. On June 14, 2002, the defendant filed a motion for summary judgment as to both counts, arguing that the claims were barred by the two year statute of limitations contained in § 52-584. The plaintiff opposed the motion. The court granted the motion as to the medical malpractice count and denied it as to the breach of contract count. The case proceeded to trial before the jury on the breach of contract claim. Prior to the close of the plaintiffs case, the court directed a verdict for the defendant. This appeal followed.

I

The plaintiff first claims that the court improperly granted the defendant’s motion for summary judgment on the first count. The plaintiff argues that the court improperly concluded that neither the continuing course of conduct doctrine nor the continuing treatment doctrine tolled the statute of limitations to save the medical malpractice count. The issue that we address here is whether either doctrine applies to toll the statutory period after the plaintiff has discovered her injury. We disagree with the plaintiff and hold that neither doctrine is applicable because she discovered her injury five days after the tortious act occurred.

As a preliminary matter, we note that the issue is before us pursuant to the granting of a motion for summary judgment. “[T]he scope of our review of the granting of a motion for summary judgment is plenary. . . . In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . .

“Practice Book § 17-49 . . . requires that 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. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. ... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Citation omitted; internal quotation marks omitted.) Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC, 69 Conn. App. 151, 156-57, 795 A.2d 572 (2002).

For purposes of summary judgment and this appeal, the court views the evidence in the light most favorable to the plaintiff. In her affidavit filed in opposition to the defendant’s motion for summary judgment, the plaintiff averred the following. At her first postoperative meeting when she was told of the insertion of the silicone breast implants, she was furious and demanded their immediate removal. The defendant told the plaintiff that she would remove the breast implants free of charge after the plaintiff healed and when the defendant’s new surgical center was completed. At her second postoperative visit, the plaintiff again informed the defendant that she wanted the implants removed immediately. The defendant told her that they would be removed as soon as the plaintiff was physically ready. In March, 1989, the defendant removed stitches to some or all of the plaintiffs surgical sites. Also in March, the plaintiff complained that she felt a lump in her right breast and that her right breast stayed up high while her left breast drooped. To correct that problem, the defendant wanted to make an incision in the plaintiffs breast. The plaintiff refused and reiterated to the defendant that she wanted the breast implants removed immediately. During monthly visits in April, May and July, 1989, the defendant examined the plaintiffs breasts and told her that as soon as her new surgical center opened, she would remove the implants. The plaintiff stopped by the defendant’s office often between July, 1989, and August, 1992, to inquire about scheduling the removal surgery. During those visits, the defendant comforted the plaintiff and told her to be patient. She also told her that she would remove the implants as soon as the surgical center was open.

In August, 1992, the defendant informed the plaintiff that the operating room at the defendant’s surgical center was complete. The defendant agreed to schedule the surgery. At the scheduling meeting, the defendant told the plaintiff that the cost of the silicone implant removal surgery was $4000. The plaintiff refused to pay, and the defendant refused to remove the implants for free. The plaintiff never returned to the defendant’s care after August, 1992.

The applicable statute of limitations, § 52-584, imposes two specific time requirements on plaintiffs. The first requirement, referred to as the discovery portion, and the only portion applicable in this case, “requires a plaintiff to bring an action 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 .... The second provides that in no event shall a plaintiff bring an action more than three years from the date of the act or omission complained of . . . .” (Emphasis added; internal quotation marks omitted.) Nardi v. AA Electronic Security Engineering, Inc., 32 Conn. App. 205, 210-11, 628 A.2d 991 (1993). The three year period specifies the time beyond which an action under § 52-584 is absolutely barred, and the three year period is, therefore, a statute of repose. See McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334, 471 A.2d 646 (1984).

The parties agree that the date of discovery was February 20, 1989, the date the plaintiff learned that the defendant had surgically inserted silicone breast implants. Therefore, under the discovery portion of § 52-584, the plaintiff was required to bring her action on or before February 20, 1991.

The plaintiff bases her claim of tolling on the parties’ relationship through August, 1992, which allegedly implicates either the continuous treatment doctrine or the continuing course of conduct doctrine. Under the continuous treatment doctrine, the statute does not begin to run until the course of treatment giving rise to the injuries is terminated. See Blanchette v. Barrett, 229 Conn. 256, 274, 640 A.2d 74 (1994). Under the continuing course of conduct doctrine, the statute of limitations is tolled when there is evidence of a breach of duty that remained in existence after the initial or original wrongful conduct. Id., 275.

The policies underlying both doctrines are similar. “The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied. . . . For example, the doctrine is generally applicable under circumstances where [i]t may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury or where the negligence consists of a series of acts or omissions and it is appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of limitations to run . . . .” (Citation omitted; emphasis added; internal quotation marks omitted.) Sanborn v. Greenwald, 39 Conn. App. 289, 295-96, 664 A.2d 803 (1995), cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995). “Similarly, [t]he policy underlying the continuous treatment doctrine seeks to maintain the physician/patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure.” (Internal quotation marks omitted.) Blanchette v. Barrett, supra, 229 Conn. 276.

In Blanchette, our Supreme Court applied the continuing course of conduct doctrine to toll the three year repose section of § 52-584 because of evidence that the defendant physician had failed to satisfy his duty of monitoring the plaintiffs questionable breast condition. Id., 265. The court considered that to be later wrongful conduct that related to the defendant’s diagnosis of the plaintiff.

Similar to Blanchette, other medical malpractice cases in which the course of conduct doctrine has been applied involved the conduct of the defendant prior to the discovery of injury by the plaintiff. Those cases all concerned injuries discovered beyond the three year repose section of § 52-584. See, e.g., Witt v. St. Vincent’s Medical Center, 252 Conn. 363, 372, 746 A.2d 753 (2000) (genuine issue of material fact as to whether defendant had continuing duty to plaintiff following defendant’s alleged initial misdiagnosis); Cross v. Huttenlocher, 185 Conn. 390, 401-402, 440 A.2d 952 (1981) (statute of limitations tolled because of negligent failure of physician to warn patient of harmful side effects of drug that physician prescribed and patient continued to ingest over period of time); but see Connell v. Colwell, 214 Conn. 242, 255, 571 A.2d 116 (1990) (statute of limitations not tolled because defendant had no duty to warn after plaintiff discovered injury); Giambozi v. Peters, 127 Conn. 380, 385-86, 16 A.2d 833 (1940) (statute of limitations not tolled where there was no subsequent treatment or neglect and injury occurred at time of operation because statute of limitations began running at date of wrongful act), overruled in part on other grounds, Foran v. Carangelo, 153 Conn. 356, 360, 216 A.2d 638 (1966); see also Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 242, 429 A.2d 486 (1980) (statute of limitations tolled because installer of pilot light gave repeated instructions as to its use in response to multiple complaints by plaintiff); Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957) (statute of limitations tolled by defendant manufacturer’s continuing failure to warn of potential danger associated with inherently dangerous cartridge of ammunition).

In Connell v. Colwell, supra, 214 Conn. 255, our Supreme Court refused to apply the tolling doctrine because the court held that the defendant’s duty ends when the cause of action accrues. The plaintiff here claims that under the reasoning of Connell, the statute of limitations should have been tolled because to provide the most efficacious medical care, a physician should remain on the case from onset to cure. The conduct that the plaintiff claims implicates either the continuing course of conduct or continuous treatment doctrine occurred after the plaintiff discovered the injury or actionable harm.

When applying § 52-584 to determine whether an action was timely commenced, this court has held that “an injury occurs when a party suffers some form of actionable harm. . . . Actionable harm occurs when the plaintiff discovers . . . that he or she has been injured and that the defendant’s conduct caused such injury. . . . The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof. . . . The focus is on the plaintiffs knowledge of facts, rather than on discovery of applicable legal theories.” (Citations omitted; internal quotation marks omitted.) Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn. App. 311, 323, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000). Most importantly, the continuing course of conduct doctrine has no application after the plaintiff has discovered the harm. Id., 327-32; Rivera v. Fairbank Management Properties, Inc., 45 Conn. Sup. 154, 160, 703 A.2d 808 (1997) (policy behind continuing course of conduct doctrine, which is to provide opportunity to remedy potential harm, no longer has any force once harm discovered).

The Rivera court’s reasoning is persuasive. Accordingly, we find that as a matter of law, both tolling doctrines apply only to the repose portion of the statute and not to the discovery portion. The discovery portion addresses the plaintiffs knowledge of the injury and not the defendant’s act or omission. Once the plaintiff has discovered her injury, the statute begins to run. Moreover, after the discovery of actionable harm, the policy behind either doctrine, that is, the preservation of a continuing physician-patient relationship to remedy the created harm, is no longer served. Id.

Furthermore, the accrual of the cause of action is a singular moment in time. Allowing that point in time to be pushed forward as long as it is claimed that the negligent conduct continued would eviscerate the policies underlying the statute of limitations. The plaintiff would be allowed to acquiesce in the defendant’s conduct as long as it was convenient to the plaintiff. That would undermine the promotion of “finality in the litigation process”; (internal quotation marks omitted) Bill-erback v. Cerminara, 72 Conn. App. 302, 309, 805 A.2d 757 (2002); and the prevention of the “unexpected enforcement of stale claims concerning which the persons interested have been thrown off their guard by want of prosecution.” Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988).

In her argument that the tolling doctrines apply to her action, the plaintiff relies on DeLeo v. Nusbaum, 263 Conn. 588, 821 A.2d 744 (2003). DeLeo was a legal malpractice action that was based on a claim that the defendant attorneys negligently had entered into a stipulated agreement in which the plaintiff was allowed only supervised visits with his children. Id., 589-90. The trial court ruled that the statute of limitations in § 52-577 could not be tolled because there was no continuing attorney-client relationship within three years of the commencement of the action. Id., 590-91. The Supreme Court determined that the plaintiffs act of sending a letter to his wife did not unequivocally indicate that he had terminated the attorney-client relationship. Id., 600. The Supreme Court reversed the judgment and remanded the case to the trial court to allow the plaintiff to offer evidence that he had had no knowledge of the defendant’s negligence.

The court in DeLeo held that “a plaintiff may invoke the [continuous representation] doctrine, and thus toll the statute of limitations, when the plaintiff can show: (1) that the defendant continued to represent him with regard to the same underlying matter; and (2) either that the plaintiff did not know of the alleged malpractice or that the attorney could still mitigate the harm allegedly caused by that malpractice during the continued representation period.” (Emphasis in original.) Id., 597. The plaintiff here relies on that language to argue that even though she knew of the harm, the physician’s offer to mitigate damages by performing the corrective surgery free of charge satisfied prong two of the DeLeo analysis, and that therefore, the statute of limitations should have been tolled.

DeLeo is distinguishable from the present case. First, the statute at issue in DeLeo, General Statutes § 52-577, is not at issue in this case. “The three-year limitation of § 52-577 is applicable to all actions founded upon a tort which do not fall within those causes of action carved out of § 52-577 and enumerated in § 52-584 or another section.” Collens v. New Canaan Water Co., 155 Conn. 477, 491, 234 A.2d 825 (1967). Because medical malpractice is specifically enumerated in § 52-584, § 52-577 is inapplicable to cases of medical malpractice.

Moreover, § 52-577 differs from § 52-584 in a significant way. Section 52-577 is solely a repose statute and contains no discovery provision. The repose portion of § 52-584 is not at issue in this case. Accordingly, the analysis and application of tolling doctrines in DeLeo as to § 52-577 do not guide us in our analysis and application of tolling doctrines as to § 52-584.

Further, the holding of DeLeo is quite limited. In a footnote, the court explicitly limited its holding to “cases in which an attorney is alleged to have committed malpractice during the course of litigation.” DeLeo v. Nusbaum, supra, 263 Conn. 597 n.4. Because the breadth of the holding was limited even within the context of legal malpractice, this court declines to read that holding expansively and to apply it to cases involving medical malpractice.

On the basis of our review of the law addressing the application of tolling doctrines to § 52-584, we agree with the trial court’s decision that because the plaintiff brought her malpractice claim more than two years after she discovered her actionable harm, her claim is barred. The plaintiff is unable to show that any material issue of fact exists as to the application of either doctrine to toll the statute of limitations. Accordingly, we affirm the decision of the trial court in granting the defendant’s motion for summary judgment with respect to count one of the plaintiffs complaint.

II

The plaintiff next claims that the court improperly directed a verdict for the defendant on count two of the complaint prior to the conclusion of the plaintiffs case. Specifically, the plaintiff claims that the court improperly determined that she was required to present expert testimony on causation. We conclude that the court improperly directed the verdict before the conclusion of the plaintiffs case-in-chief.

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

Practice Book § 16-37 permits a party to seek a directed verdict “at any time after the close of the plaintiffs case in chief . . . .” That section indicates that directed verdicts may be considered at the close of the plaintiffs case-in-chief. There is one case, however, in which the court found noncompliance with the rule of practice to be acceptable. In Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003), our Supreme Court found no abuse of discretion in the trial court’s resolution of a dispositive question of law prior to the close of the plaintiff’s case. In that case, the court allowed the early determination on the basis of a waiver by the plaintiff. There was no such waiver in the present case.

Prior to the close of the plaintiffs case-in-chief, the court, without a motion from the defendant, directed the verdict for the defendant, stating: “I think that it is my obligation here that there’s no possibility that the plaintiff can make [her] case in view of the fact that there is no medical evidence to explain the consequential nature of the damages here, the subsequent surgery, so I’m going to direct the verdict.” In directing the verdict, the court did not address the issue of compensatory damages. The court continued, stating: “So, I have determined that the plaintiff will be unable to make her case based on the testimony elicited from the defendant, Dr. Mascardo, who would probably be the only doctor who would testify in this case.” (Emphasis added.)

The defendant asserts that the court properly directed the verdict because the plaintiff had not met her legally required burden with respect to proof of damages. In Celentano v. Grudberg, 76 Conn. App. 119, 125-26, 818 A.2d 841, cert. denied, 264 Conn. 904, 823 A.2d 1220 (2003), in the context of legal malpractice, this court determined that expert testimony is required to prove damages regar dless of whether the action proceeds in contract or in tort. We find that reasoning applicable to medical malpractice claims proceeding on a contract theory as well. In light of our decision as to the procedural impropriety of the verdict on that count, we do not determine the need for expert testimony in the plaintiffs claims for damages.

The plaintiff has a right to have factual issues resolved by the jury. The plaintiff had not been given the opportunity to establish a prima facie case for damages. Therefore, we hold that the court improperly directed the verdict prior to the close of the plaintiffs case.

HI

As an alternate ground for affirmance, the defendant claims that summary judgment should have been granted as to the second count of the plaintiffs amended complaint. Specifically, the defendant claims that the plaintiffs contract claim should have been dismissed because (1) it was not a claim for the breach of a promise to achieve a specific result and (2) it sought tort damages as opposed to contract damages. Because we conclude that issues of fact exist, we disagree.

The court’s decision on a motion for summary judgment is a legal determination. Therefore, our review on appeal is plenary. Faigel v. Fairfield University, 75 Conn. App. 37, 40, 815 A.2d 140 (2003).

The defendant argues that Connecticut law does not recognize a medical malpractice claim that proceeds on a contract theory unless there has been a claim of a breach of a promise to achieve a particular result and, because that was not claimed here, summary judgment should have been granted on count two. We are not persuaded.

It is possible for a negligence claim and a contract claim to arise out of the same facts, and a breach of contract claim may be heard in the same case claiming medical malpractice. See Janusauskas v. Fichman, 68 Conn. App. 672, 676-78, 793 A.2d 1109 (2002), rev’d in part on other grounds, 264 Conn. 796, 826 A.2d 1066 (2003). “Whether the plaintiffs cause of action is one for malpractice depends upon the definition of that word and the allegations of the complaint. . . . Malpractice is commonly defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . .” (Citations omitted; internal quotation marks omitted.) Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221 (1984). The elements of a breach of contract action are “the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” Bouchard v. Sundberg, 80 Conn. App. 180, 189, 834 A.2d 744 (2003).

In count two of her complaint, the plaintiff claimed that she had not received the medical procedure for which she had bargained. She alleged that she had bargained for a breast lift and instead received a breast lift and silicone implants. A careful reading of the complaint shows that count two did not allege negligence or malpractice as part of the cause of action. Rather, count two specified alleged acts of the defendant that would constitute a deviation from the alleged agreement between the parties. Furthermore, the court considered the language of the complaint and found that “[t]here is no dispute that the second count does invoke contract language.” Accordingly, we conclude that count two was a contract claim rather than a medical malpractice claim.

The defendant argues that courts in Connecticut have generally disallowed contract claims in medical malpractice actions when they do not contain a claim for breach of a promise to achieve a particular result. We read the cases relied on by the defendant for that proposition differently. In those cases, the courts restricted the contract claims not because the plaintiffs did not plead a failure to achieve a particular result, but because their claims sounded in malpractice and failed to disclose any breach of a contractual duty owed to them by the defendants. See Barnes v. Schlein, supra, 192 Conn. 735 (complaint sounded in negligence because “gravamen of the suit was the alleged failure by the defendant to exercise the requisite standard of care”); Rumbin v. Baez, 52 Conn. App. 487, 491-92, 727 A.2d 744 (1999) (claim “essentially a medical malpractice claim clothed in the language of contract” because there was “no allegation of a breach of a contractual duty”); DiMaggio v. Makover, 13 Conn. App. 321, 323, 536 A.2d 595 (1988) (complaint sounded in malpractice and was “absolutely barren of any allegation that the defendant breached any contractual duty owed to [the plaintiff]”); Shuster v. Buckley, 5 Conn. App. 473, 478, 500 A.2d 240 (1985) (language of complaint sounded in tort, not contract). The plaintiffs claim did not suffer from the infirmities of those cases. The plaintiff alleged the breach of an agreement as to a medical procedure. Because there are issues of fact as to the alleged breach of contract, the defendant’s argument must fail.

The judgment is reversed only as to the directed verdict on the second count and the case is remanded for further proceedings on that count in accordance with law.

In this opinion the other judges concurred.

       Mastopexy is defined as follows: Plastic surgery to affix sagging breasts in a more elevated and normal position, often with some improvement in shape. Stedman’s Medical Dictionary (25th Ed. 1990) p. 926.

       The plaintiff testified in her deposition that she was completely satisfied with the nasal surgery, and that claim in the complaint was not pursued. The plaintiff makes no claim in this appeal regarding the abdominal surgery.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence ... or by malpractice of a physician . . . shall be brought but within two years from the date when the injury is first sustained or discovered . . . and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .”

       The plaintiff malees no claim of fraud or equitable estoppel.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. KEVIN D. FISHER
    (AC 23090)
    Foti, Flynn and McLachlan, Js.

      Argued January 15 —
    officially released April 13, 2004

      Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Adam B. Scott, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Kevin D. Fisher, appeals from the judgment of conviction, rendered by the trial court following a jury trial, of larceny in the sixth degree in violation of General Statutes § 53a-125b. On appeal, the defendant claims that (1) the court’s unsolicited advice to him during trial infringed on his constitutional right to testify, (2) the court’s ruling on his motion in limine had a chilling effect on his right to testify and (3) the court improperly admitted certain evidence of his use of illegal drugs. We affirm the judgment of the trial court.

The jury reasonably could have found that on August 8, 2001, the defendant was in the Filene’s department store located at the Buckland Hills Mall in Manchester. The defendant was walking throughout the store while carrying a backpack and a shopping bag from another store. He eventually went to the men’s clothing department, where he knocked several pairs of men’s pants off a counter display and concealed three pairs of these pants, each having a value of $65, in his empty shopping bag. The defendant spent a brief period of time in other departments before exiting the store via an entrance to the mall. The defendant did not pay for the pants in his bag.

A Filene’s sales associate had observed the defendant acting suspiciously. The associate alerted Brenda Cavin, an agent in Filene’s loss prevention department, who thereafter observed and videotaped the defendant’s activities via store surveillance equipment. Having observed the defendant conceal the pants and then exit the store, Cavin followed the defendant to an adjacent camera store located in the mall. Cavin stopped the defendant as he exited the camera store, identified herself, explained her suspicions and accompanied the defendant back to Filene’s. The defendant initially refused to give Cavin his shopping bag and denied having stolen anything. Two other loss prevention agents, as well as a Manchester police officer, assisted Cavin when the defendant became uncooperative with her investigation. The defendant ultimately gave Cavin the bag, which contained the pants that he had stolen from Filene’s, as well as other clothing that he had stolen from JC Penney, another of the mail’s anchor stores. The defendant’s arrest followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court’s unsolicited advice to him during trial infringed on his constitutional right to testify. We disagree.

The record reflects that during the trial, the defendant appeared pro se, assisted by standby counsel. The state presented evidence and rested its case on January 24, 2002. The defendant indicated that he rested his case, as well. The court instructed the jury to expect to hear closing arguments and that it would be entrusted with the case on the following day. When court began on the next day, January 25, 2002, the defendant’s standby counsel, Brian S. Karpe, informed the court that the defendant wanted to testify. The following colloquy ensued outside of the jury’s presence:

“The Court: I was advised by [standby counsel] that now you desire to take the [witness] stand. Is that correct, sir?
“[The Defendant]: That’s correct, Your Honor.
“The Court: Okay. What has changed between yesterday and today?
“[The Defendant]: Well, I realize that I actually, you know, didn’t intend to, you know, take the [witness] stand, but I felt as though we’re presenting all of the evidence [and] I think my testimony will be essential in this matter at this particular time under the condition of the same limine motions, arrangements. I misunderstood as to the prosecutor resting his case. I thought I was so bad, I was thinking that you had me qualified for a psychiatric evaluation this morning. I wasn’t sure where we were going with that. I had to clarify that with counsel.
“The Court: Mr. Fisher, I’m sure you perfectly well understood when [the state] rested that the ball was in your court, and it was time for you to go forward. Don’t try and bamboozle me on that one.
“[The Defendant]: Well, okay, Your Honor.
“The Court: Just tell me — put the reasons on the record why you now want to take the [witness] stand.
“[The Defendant]: Well, I feel as though that my testimony would be essential at this point, Your Honor.
“The Court: Okay. . . . [D]o you want to be heard on this?
“[The Prosecutor]: Obviously, his choice was made yesterday, Your Honor. The state relied on that choice in preparation of its case. I have not prepared a cross-examination of the defendant. I don’t have one prepared at this time. This catches the state off guard, Your Honor.
“The Court: Mr. Fisher, if you are allowed to take the [witness] stand, you have to understand, sir. Well, first of all, let me tell you, you have a constitutional right not to testily, which I am sure you are perfectly well aware.
“[The Defendant]: I’m aware of that, Your Honor.
“The Court: Okay. And by getting on the [witness] stand, you are waiving that right not to testify and not to be compelled to incriminate yourself, and you also, more seriously, are exposing yourself to cross-examination by the [prosecutor]. And that cross-examination may not only be limited to the facts of this case of August 8, [2001], but the state may want to present evidence, and I may allow evidence of your prior convictions as well as any other prior misconduct that you have committed relevant to the issues to be decided in this case. So, before you make that decision to get on the [witness] stand, you need to understand that it’s not going to be limited solely to the issues of what took place on August 8 or the facts of what took place on August 8, but it may be a more encompassing cross-examination than you anticipate. Do you understand that, sir?
“[The Defendant]: I do, Your Honor, and I was hoping that maybe I would be able to be aware, I mean aware of what specifically we are going to use during cross-examination.
“The Court: Okay. Well, I anticipate if you get on the [witness] stand, the state will want to cross-examine you with your prior criminal convictions. Is that correct . . . ?
“[The Prosecutor]: That is correct, Your Honor.
“[The Defendant]: Is that in its entirety, or maybe one or two criminal matters? And if so, which one? I think that would be important for me to know and have to be prepared and, specifically, as to what he is going to say as far as my addiction.
“The Court: Well, to some extent it depends on what you say [when] you’re up here. If you open the door either intentionally or unintentionally to areas that you don’t want him to get into, he may be allowed to get into those areas whether you want him to or not because you have opened the door. So, we can’t tell you, and I’m sure the state can’t tell you precisely what the exact cross-examination would be if you got on the [witness] stand. But I can tell you, sir, you’re running a big risk here, but that’s your decision to make, not mine. So, if you feel that you want to get back on the [witness] stand or get on the [witness] stand, that’s really your call.
“[The Defendant]: Your Honor, I believe I would under specific limiting conditions.
“The Court: Okay. What are those conditions?
“[The Defendant]: That I’m made aware of the specific charges he’s going to confront me with as to the robberies or what have you, instead of my, you know, my entire record, maybe. Which ones is he intending to target in general?
“The Court: Okay. You will not be allowed to — if he cross-examines you with evidence of a prior, for example, robbery conviction—
“[The Defendant]: Right.
“The Court: — and you admit that on the [witness] stand—
“[The Defendant]: Right.
“The Court: — or even if you don’t admit it, he can introduce a certified copy.
“[The Defendant]: Absolutely, Your Honor.
“The Court: If that comes into evidence, either through your admission or through a certified copy, you will not be allowed to go on and explain to the jury the facts surrounding that robbery.
“[The Defendant]: No. I realize that.”

The defendant then asked the court which of his prior convictions the state “may decide to use.” The court and the prosecutor engaged in a short discussion on the record, and the court informed the defendant that insofar as his Connecticut criminal record was concerned, the state would likely present evidence concerning two prior robbery convictions, a conviction for larceny in the third degree and two prior convictions as a persistent larceny offender. The prosecutor stated: “And obviously, if the defendant opens the door with regard to his entire criminal record, then I would proceed as I believe proper, Your Honor, noting that he has convictions out of this state also and in other states . . . .”

The court denied the defendant’s motion to disallow evidence concerning certain of his larceny convictions that were fewer than ten years old. The following colloquy occurred:

“The Court: As I indicated earlier, credibility is a highly relevant issue in this case, especially now because you’re taking the [witness] stand and because what I’ve heard so far of your defense. These convictions are highly significant on the issue of credibility because they involve larceny and theft. And as a result, the state will be allowed to use them in cross-examining, all five of them. I’ll just say [that] if you testify, sir, and since the state is not prepared to cross-examine you, I’m going to give the state a short continuance to allow the [prosecutor] to prepare for your cross-examination.
“[The Defendant]: What do you mean by short, Your Honor, a week?
“The Court: I don’t know. It depends on what turns up in your testimony, and it depends on how long [the prosecutor] thinks he needs to properly cross-examine you. If you had said to us yesterday, sir, that you intended to take the [witness] stand and you put us on notice yesterday, there would not be this delay. It’s your fault, and it’s on your shoulders. So, I’m going to give the state reasonable time to get ready to cross-examine you. And if that means that they dig up more dirt in the meantime, then that’s what you’re exposing yourself to by getting on the [witness] stand.
“[The Defendant]: Your Honor, I’ll just go with the jury.
“The Court: Okay. So, you want to go straight to closing argument?
“[The Defendant]: That’s correct.”

The defendant now claims that the court “engaged in a lengthy colloquy with the defendant, strongly warning him against testifying” and that the court’s statements had the effect of dissuading him from exercising his right to testify. The defendant claims that “[t]he court’s unwarranted interference with the defendant’s choice” violated his federal and state constitutional rights. The defendant argues that the court “attempted to sway” him from testifying, implied that he should not testify and improperly assumed “the role of defense counsel.” The defendant acknowledges that he did not raise the issue before the trial court, but seeks review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or under the plain error doctrine codified in Practice Book § 60-5.

We will reach the merits of the defendant’s claim under Golding because the record is adequate and a claim that the court impermissibly infringed on the defendant’s right to testily is of constitutional magnitude. Nevertheless, we conclude that the claim fails under Golding’s third prong because the defendant has failed to demonstrate that a constitutional violation clearly exists and clearly deprived him of a fair trial.

“The right to testily on one’s own behalf at a criminal trial has sources in several provisions of the [United States] Constitution. It is one of the rights that are essential to due process of law in a fair adversary process. . . . The necessary ingredients of the Fourteenth Amendment’s guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony .... The right to testily is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call witnesses in his favor .... Logically included ... is a right to testify himself. . . . The opportunity to testify is also a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony. ... A defendant’s right to testify is also protected by his rights to a fair trial, to due process, to present a defense, and to be free from compelled testimony under article XVII of the amendments to the Connecticut constitution and under article first, § 8, of the Connecticut constitution.” (Citations omitted; internal quotation marks omitted.) State v. Shinn, 47 Conn. App. 401, 410, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998).

The defendant does not claim that the court completely deprived him of his right to testify. “It is well settled [however] that a violation of constitutional magnitude may be established even though there has not been a complete abridgement or deprivation of the right. A constitutional violation may result, therefore, when a constitutional right has been impermissibly burdened or impaired by virtue of state action that unnecessarily chills or penalizes the free exercise of the right.” (Internal quotation marks omitted.) State v. Alexander, 50 Conn. App. 242, 249, 718 A.2d 66 (1998), rev’d in part on other grounds, 254 Conn. 290, 755 A.2d 868 (2000).

Having reviewed the challenged remarks, we conclude that they did not have an adverse effect on the defendant’s exercise of his right to testify. The unique procedural circumstances of this case were the impetus for the court’s discussion with the defendant concerning his decision to testify. That is, the defendant, who was appearing pro se, had represented a day earlier that he would neither testify nor present any evidence. Relying on the defendant’s representations, the court informed the parties and the jury that closing arguments would follow. The defendant’s request to testify, therefore, amounted to a request for the court to open the evidence to permit additional testimony, a request that implicated the court’s sound discretion. See State v. Carter, 228 Conn. 412, 426-27, 636 A.2d 821 (1994).

The court, exercising its inherent control of the proceedings before it and mindful that it must preside over a trial that is fair to both parties, properly inquired of the defendant why he sought to open the evidence. The defendant’s right to present a defense was “subject to appropriate supervision by the trial court in accordance with established rules of procedure and evidence;” id., 427; and there is no claim that the court deprived the defendant of that fundamental right. The court did not deny the defendant’s request to open the evidence; it informed the defendant that his unexpected change in trial strategy would cause a delay in the proceedings because, if he wanted to testify, the court would grant a reasonable continuance to permit the state to prepare for his cross-examination.

The court’s inquiry and remarks were not of such a coercive or suggestive nature so as to lead us to conclude that they likely dissuaded the defendant from testifying. The court did not, in any way, penalize the defendant for choosing to testify. The court discussed the consequences of a decision to testify partially in response to the defendant’s inquiries of what the state could delve into in its cross-examination of him. The court informed the defendant of the prior criminal matters the state likely would explore during cross-examination but did not tell him that he either should or should not testify. Instead, the court stated that it was the defendant’s “decision to make” and that it was the defendant’s “call.”

Although we conclude that the court’s remarks were neither coercive nor harmful, we nevertheless conclude that in several respects, they were inappropriate. The accused has the ultimate authority to make the fundamental decision to testify. State v. Stewart, 64 Conn. App. 340, 352, 780 A.2d 209, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001). “[W]hetherthe accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney.” (Internal quotation marks omitted.) State v. Hobson, 68 Conn. App. 40, 45, 789 A.2d 557, cert. denied, 260 Conn. 910, 796 A.2d 557 (2002). The court is not required to canvass a defendant concerning the exercise of that right. Id.

We look disfavorably on the scope and tenor of the court’s inquiry of and remarks to the defendant. Beyond responding to the defendant’s inquiry concerning the matters the state could use during its cross-examination, the court discussed generally the tactical disadvantages of testifying. The court stated that the defendant was “running a big risk” by testifying and that if it gave the state time to prepare for cross-examination, the state might “dig up more dirt [on the defendant] in the meantime . . . .”

“The trial court should never assume a position of advocacy, real or apparent, in a case before it, and should avoid any displays of hostility or skepticism toward the defendant’s case .... A fine line separates proper and improper judicial conduct and the judge must strive to appear impartial and detached.” (Citation omitted; internal quotation marks omitted.) State v. Pharr, 44 Conn. App. 561, 570, 691 A.2d 1081 (1997). Despite the fact that we do not agree with the defendant that the court “strongly warned him against testifying” and actually interfered with his decision to testify, we nonetheless note that the court should not have made certain of the remarks that it did.

II

The defendant next claims that the court’s ruling on his motion in limine had a chilling effect on his right to testify. We disagree.

The defendant claims that after he indicated that he wanted to testify, he asked the court to restrict the state’s use of his prior criminal history and requested that the court inform him of the specific convictions that it would permit the state to delve into during cross-examination. We set forth a significant part of that colloquy in part I.

The record reflects the court’s ruling with regard to the defendant’s Connecticut convictions. The prosecutor indicated to the court that depending on the defendant’s testimony, he might seek to question him concerning his out-of-state convictions, as well. The following colloquy, in relevant part, occurred:

“[The Prosecutor]: And, obviously, if the defendant opens the door with regard to his entire criminal record, then I would proceed as I believe proper, Your Honor, noting that he has convictions out of this state also and in other states, Your Honor.
“The Court: Are those felonies also?
“[The Prosecutor]: At this time, I cannot state if they are or not, Your Honor. I would have to go through [the defendant’s criminal record] more thoroughly.
“The Court: Okay. So, if those out-of-state convictions are felonies also, you may end up being cross-examined on those as well.
“[The Defendant]: Are you allowing that in as — are those going to be the specific offenses that he’s going to be cross-examining me with?
“The Court: The out-of-state ones or the in-state ones?
“[The Defendant]: The in-state and the out-of-state. Are you going to allow—
“The Court: Okay, the in-state ones, from what I’ve heard so far, it sounds like the two [convictions of] robbery [in the third degree], the two prior persistent larceny offenders and the [conviction of] larceny [in the third degree] are all relevant. They’re all felonies. They all go directly to credibility, which is a highly contested issue in this case, and I will instruct the jury on how they are to use those in determining . . . credibility. With respect to the out-of-state offenses, I don’t know yet what they are or whether they’re felonies. If the state can show me that they’re felonies, I may admit those as well.
“[The Defendant]: Well, some of that out-of-state stuff is still pending, Your Honor. So, the out-of-state doesn’t wish to extradite on those matters. So, I think that would probably—
“The Court: Well, you know more than I do.
“[The Defendant]: Right.
“The Court: If you think they’re not admissible, then that’s part of your calculation, not mine.”

The defendant now claims that the court’s ruling on his motion in limine was incomplete because it did not conclusively address the admissibility of his out-of-state convictions. The defendant argues that he alerted the court to the fact that its ruling on that issue was an important factor in his decision on whether to testify and that there was “no reason why the trial court could not have made a complete ruling [on his prior criminal convictions], including the out-of-state convictions, prior to the defendant testifying.” The defendant claims that leaving unresolved the issue of the admissibility of the out-of-state convictions “greatly deterred [him] from exercising his right to testify.” In reviewing the claim, we are guided by the same constitutional principles that we applied in part I.

The defendant’s claim is without merit. The defendant indicated that he wanted to testify after he had indicated that he would not testify. The prosecutor represented to the court that he was not prepared to cross-examine the defendant and, accordingly, that he had not reviewed thoroughly the defendant’s entire criminal record. The court indicated its ruling with regard to the defendant’s in-state convictions because the prosecutor conveyed the details of such convictions to the court. The prosecutor represented that he was unsure whether the out-of-state convictions were felonies. The court clearly informed the defendant that if they were, the court might deem them appropriate subject matter for cross-examination.

The court ruled on the defendant’s motion to the best of its ability, given the available facts. The court fully apprised the defendant of how it would rule with regard to his out-of-state convictions, thereby affording him a reasonable opportunity to incorporate that factor into his decision on whether to testify. Accordingly, we conclude that the court’s ruling on the defendant’s motion in limine did not adversely affect the defendant’s exercise of his right to testify.

Ill

The defendant finally claims that the court improperly admitted certain evidence of his illegal drug use. We disagree.

The record reflects that prior to trial, the defendant filed a motion in limine seeking an order precluding the state from introducing any evidence of his use of illegal drugs. The court deferred ruling on the admissibility of such evidence until trial.

During his cross-examination of Cavin, the defendant introduced the police report of the incident, and the court admitted the report as a full exhibit after reminding the defendant that the report would then be “going to the jury.” The defendant questioned Cavin about her statements contained in the report. Later, the prosecutor used the defense exhibit in his direct examination of Daniel Parlapiano, the Manchester police officer who issued the report. In response to a question by the prosecutor, Parlapiano read aloud an excerpt from his report that included the following statements: “[The defendant] told me that, while he was being booked, that he had a bad drug abuse problem. [The defendant] said that he had been using heroin and crack cocaine on and off for the last twenty years. [The defendant] said that his drug problem had become worse over the last couple of months.”

The defendant did not object to that testimony, but objected to the state’s questioning about his prior criminal history. In the course of his objection, the defendant nonetheless argued that further references to his use of illegal drugs would be “excessive.” The state argued that the defendant had made certain admissions concerning his drug use and that they were relevant to the issue of his motive. The court sustained the defendant’s objection with regard to his prior criminal convictions. The court, however, ruled that the defendant’s admission with regard to his drug dependency noted in the police report was admissible as being relevant to the issue of the defendant’s motive. The court noted that it would consider any other objections with regard to evidence of the defendant’s use of illegal drugs as such objections arose during the trial. Immediately thereafter, the court limited the jury’s use of such evidence, instructing that the jury was to consider it solely “on the issue of motive and [the defendant’s] intent to commit the larceny, and for no other purpose.”

The prosecutor thereafter introduced other evidence relating to the defendant’s use of illegal drugs. Absent objection, the, court admitted the following statement made by the defendant from the transcript of the defendant’s arraignment hearing: “I mean, if anything, I’ll plead guilty if I can get some type of treatment program right now.”

The prosecutor also sought to introduce certain excerpts from a letter, dated August 22, 2001, sent by the defendant to the office of the state’s attorney. The defendant immediately objected to the admission of excerpts from the letter, and the court sustained the defendant’s objection in part, disallowing certain statements in the letter. The court admitted into evidence the following excerpt over the defendant’s objection: “Having relapsed on the day of my arrest [8-8-01] . . . smoking ‘crack’ cocaine at an unbelievable rate, I must sincerely say that my eventual arrest was an honest-to-God reality check! Because as it stood, I was ‘blinded’ by an uncontrollable desire to obtain more money to buy more ‘crack,’ not thinking or caring about my exposition as a barber or my ‘current’ enrollment in the Connecticut Institute of Hair Design . . . .”

The court ruled that the evidence was more probative than prejudicial, especially in light of the fact that the defendant had attempted to impeach Parlapiano’s testimony with regard to the comments in the police report pertaining to the defendant’s use of illegal drugs. The court ruled that “this particular admission on the part of the defendant, that he in essence was stealing in an effort to obtain money to buy drugs, again goes to his motive and his intent, which are both very significant issues in this case, especially in light of the defense which has been put forth by the defendant in this case, or attempted to be put forth.” The court further explained to the defendant: “Whether or not this is evidence of your motive, it’s circumstantial evidence of your motive, and the jury’s entitled to infer what [it wants] from the comments . . . .”

On appeal, the defendant now challenges only the admission into evidence of that part of his letter to the prosecutor that previously was set forth. The defendant argues that because there was no evidence of the cost of his drug habit or of his ability to finance such habit, the court improperly concluded that the evidence was relevant to the issue of his motive to commit the crime. Further, the defendant argues that the admission of that allegedly irrelevant evidence was harmful because it was prejudicial and likely affected the verdict.

An evidentiary ruling will be overturned on appeal if it (1) reflects a clear abuse of the court’s discretion and (2) caused the appellant prejudice or injustice. When reviewing a trial court’s evidentiary ruling, we make every reasonable presumption in favor of upholding the ruling. State v. Salters, 78 Conn. App. 1, 12, 826 A.2d 202, cert. denied, 265 Conn. 912, 831 A.2d 253 (2003).

Larceny is a specific intent crime; the state bore the burden of proving beyond a reasonable doubt that the defendant intended to deprive an owner permanently of his or her property. State v. Calonico, 256 Conn. 135, 160, 770 A.2d 454 (2001). Rarely is there direct evidence of a felonious intent; such intent is proven generally by circumstantial evidence. See State v. Feliciano, 256 Conn. 429, 453, 778 A.2d 812 (2001).

If evidence makes the existence of a fact that is material to an issue in the case more or less probable, even to a slight degree, then it is relevant. See Conn. Code Evid. § 4-1, commentary. Here, the challenged evidence concerned circumstances from which the jury might reasonably infer the defendant’s motive and, thus, his intent. In the excerpt from the letter, the defendant stated that he had relapsed on the day of his arrest, that he was using crack cocaine “at an unbelievable rate,” that he was “ ‘blinded’ by an uncontrollable desire to obtain more money to buy more ‘crack’ ” and that he “was not thinking or caring” about his enrollment in a legitimate educational program. That evidence, depicting in the defendant’s words his mindset on the day of the incident, certainly made it more probable than not that the defendant intended to steal from Filene’s to obtain more money to buy drugs. In fact, that evidence was highly probative of the defendant’s motivations on the day of his arrest and, therefore, made the existence of a felonious intent highly likely. The defendant’s admissions in his letter belies his claim that the state failed to demonstrate that his drug habit motivated his criminal actions.

Further, we conclude that the court properly determined that any prejudicial impact of the evidence was outweighed by its significant probative value. “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice . . . .” Conn. Code Evid. § 4-3. Prejudice is unfair if it has a tendency to unduly arouse the jury’s feelings of prejudice, hostility or sympathy or has an adverse effect “beyond tending to prove the fact or issue that justified [the evidence’s] admission . . . .” (Internal quotation marks omitted.) Conn. Code Evid. § 4-3, commentary. Although the defendant argues that the evidence of his drug use likely caused the jury to believe that he lived “a life of crime,” the defendant, himself, either presented to the jury or consented to the state’s presenting other evidence of his drug use. Further, the court specifically instructed the jury to limit the use of the evidence for the purpose for which it was introduced by the state. The evidence was not of such a nature as to compel a belief that it would have any adverse affect on the jury beyond the purpose that justified its admission. See State v. Feliciano, supra, 256 Conn. 454.

There was no abuse of discretion. We need not consider whether the court’s ruling was harmful to the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also was convicted, under a part B information, of being a persistent larceny offender.

       The defendant maintained that he possessed the pants lawfully and that he intended either to return or to exchange them.

       The defendant also claims that the court’s actions infringed on the rights conferred on him by General Statutes § 54-84. We will not review his claim under Golding because it relates to a statutory, not a constitutional, right. The claim also is inappropriate for review under the plain error doctrine. Such review would be warranted if the court had failed “to follow or apply a statute that is clearly relevant to the case”; State v. Groppi, 81 Conn. App. 310, 317, 840 A.2d 42 (2004); or if the claimed error was “so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Green, 81 Conn. App. 152, 161, 838 A.2d 1030 (2004). Neither situation is present here.

       The defendant also claims that by advising him concerning his decision to testify, the court assumed the role of defense counsel. We disagree. The record reflects that the court did not provide purely unsolicited advice. The court inquired of the defendant because the defendant sought to open the evidence. Further, the court discussed the scope of cross-examination with the defendant, in part, because he had asked the court to advise him as to which of his prior criminal convictions might be the subject of cross-examination.

       In its charge, the court again instructed the jury how to use the evidence of the defendant’s use of illegal drugs. The court stated: “That evidence was not being admitted to prove the bad character of the defendant or his tendency to commit criminal acts. Such evidence was introduced by the state merely to show or establish the existence of Intent, which is a necessary element of the crime of larceny, or a motive on the part of the defendant for the commission of larceny or to corroborate crucial prosecution testimony. You may not consider such misconduct evidence as establishing a predisposition on the part of the defendant to commit the crime charged or to demonstrate a criminal propensity. You may consider this evidence only on the issues of intent, motive or corroboration and for no other purpose. You may consider such evidence if you believe it and, further, find it logically and rationally and conclusively supports the issues for which it is being offered by the state, but only as it may bear on the issues of intent, motive or corroboration.
      “On the other hand, if you do not believe such evidence, or even if you do, if you find that it does not logically, rationally and conclusively support the issues for which it is being offered by the state, namely, intent, motive or corroboration, then you may not consider that testimony for any purpose.”