author: FOTI, J.

text:
    NICOLAS G. MELFI ET AL. v. CITY OF DANBURY ET AL.
    (AC 21134)
    Foti, Bishop and Shea, Js.
    Argued April 1
    officially released July 2, 2002

      Nancy Burton, for the appellants (plaintiffs).

      Peter N. Buzaid, assistant corporation counsel, for the appellee (named defendant).

      Dominick J. Rutigliano, with whom, on the brief, was Gwen E. Adamson, for the appellees (defendant Robert Lupi et al.).
   Opinion

FOTI, J.

The plaintiffs, Nicolas G. Melfi, Donna Melfi, Joseph Kozak and Dian Kozak, appeal from the judgment of the trial court rendered in favor of the defendant city of Danbury (city). On appeal, the plaintiffs claim that the court improperly (1) ordered the first four counts of their complaint stricken, (2) dismissed count five and (3) failed to award damages after a hearing in damages. We affirm the judgment of the trial court.

The following facts are relevant to our disposition of this appeal. “In July, 1991, the defendants, Robert Lupi and Phyllis Lupi, purchased two adjoining parcels of land; one parcel was located on Old Ball Pond Road in New Fairfield, the second on Old Ball Pond Road in Danbury. The Lupis built a house and began living there in early 1992.

“Soon after moving into their new home, the Lupis were concerned about traffic on the road. The city of Danbury, in response to these concerns, authorized the closing of the road to through traffic. A gate was erected across Old Ball Pond Road by Robert Lupi. The gate had posts at either end that were cemented into the ground and was secured by a padlock that required a key. It was effective in blocking all vehicular traffic. The Lupis refused to furnish the plaintiffs with a key to the padlock. The gate was removed after seventeen days.

“On October 26, 1992, the plaintiffs brought this action against the Lupis and the city of Danbury seeking an injunction against future obstruction of Old Ball Pond Road by the Lupis or others, as well as damages and other relief.” Melfi v. Danbury, 38 Conn. App. 466, 467-68, 661 A.2d 1046 (1995). Thereafter, the plaintiffs filed a revised complaint on January 20, 1993. The city filed a motion to strike, which the court granted, resulting in the striking of all three counts of the complaint. On May 4, 1993, the plaintiffs filed a “substitute revised complaint” (original complaint) and, again, the court granted a motion to strike all three counts of the complaint. Finally, on September 21,1993, the plaintiffs filed a five count “second substitute revised complaint” (amended complaint). In response, the city filed a request to revise that complaint on the ground that the first four counts were substantially similar to those stricken twice before. The plaintiffs objected to the city’s request to revise, which the court overruled, finding that the “additions to [the September 21, 1993, amended] complaint [did] not raise any allegations materially different from those described in the previous complaint,” and ordered the first four counts of the amended complaint deleted. As a result, count five was the only remaining count in the amended complaint.

I

The plaintiffs first claim that the court improperly struck the first four counts of their amended complaint. The plaintiffs cannot prevail on such a claim because it is wholly foreclosed under our Supreme Court’s holdings in Royce v. Westport, 183 Conn. 177, 439 A.2d 298 (1981), and Good Humor Corp. v. Ricciuti, 160 Conn. 133, 273 A.2d 886 (1970).

In Royce, our Supreme Court held that “[u]pon the sustaining of a demurrer the losing party may take one of two courses of action. He may amend his pleading, or he may stand on his original pleading, allow judgment to be rendered against him, and appeal the sustaining of the demurrer. . . . The choices are mutually exclusive. The filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the demurrer to the original pleading. . . . When a demurrer is sustained and the pleading to which it was directed is amended, that amendment acts to remove the original pleading and the demurrer thereto from the case. The filing of the amended pleading is a withdrawal of the original pleading. . . . [By] withdrawing one complaint and replacing it by another, [the plaintiffs] escaped an adverse judgment, and also abandoned any claim to a favorable judgment on the complaint so withdrawn. ... It is thus clear that a plaintiff cannot file an amendment after the sustaining of a demurrer and, at the same time, appeal from a decision sustaining that demurrer. . . . The rule is a sound one, as it serves to prevent the prolongation of litigation.” (Citations omitted; internal quotation marks omitted.) Royce v. Westport, supra, 183 Conn. 178-79; Good Humor Corp. v. Ricciuti, supra, 160 Conn. 135-36.

In the present case, the court struck all three counts of the plaintiffs’ original complaint. Thereafter, the plaintiffs filed an amended complaint, which operated to waive their right to claim that the court improperly struck the three counts of the original complaint. In response to the amended complaint, however, the city filed a request to revise, formerly known as a motion to expunge. See Practice Book 10-35. The court granted the city’s request to revise and deleted the first four counts of the plaintiffs’ amended complaint because they were not materially different from the three counts stricken from the original complaint.

We note that “[w]hen the allegations of an amended complaint appear to be the same in substance as those of an earlier complaint that was stricken, the defendant may challenge the amended complaint by filing a request to revise ... or a second motion to strike. . . . The request to revise is a [request] for an order directing the opposing party to revise his pleading in the manner specified. . . . Although the request to revise may not ordinarily be used to substantively challenge a pleading, it may be used to delete otherwise improper allegations from a complaint. . . . The motion to strike, on the other hand, challenges the legal sufficiency of the pleading by testing whether the complaint states a cause of action on which relief can be granted. . . .

“Although [a motion to strike and a request to revise] generally serve different functions, either may be used when the amended complaint merely restates the original cause of action that was previously stricken. ... If the plaintiff here has in fact merely restated the original cause of action, the defendant would prevail on either pleading.” (Citations omitted; internal quotation marks omitted.) Doe v. Marselle, 38 Conn. App. 360, 362-63, 660 A.2d 871 (1995), rev’d on other grounds, 236 Conn. 845, 675 A.2d 835 (1996).

We consider, therefore, only whether the court properly granted the city’s request to revise the plaintiffs’ amended complaint by interpreting the pleadings in the underlying action and comparing the original complaint with the amended complaint; see Davenport v. Quinn, 53 Conn. App. 282, 286, 730 A.2d 1184 (1999); “which presents a question of law and is subject to de novo review on appeal.” Id. In addition, “[w]hen reviewing the facts alleged in a complaint, we consider them in the light most favorable to the plaintiff.” Id., 288. “If the amended complaint stated a new cause of action, the [request to revise] should have been denied. If, however, the amended complaint merely restated the original cause of action, without curing the defect, the [request to revise] was properly granted.” Good Humor Corp. v. Ricciuti, supra, 160 Conn. 137.

Of the thirty-two paragraphs in the first count of the amended complaint, twenty-eight are precisely the same as in the original complaint. Paragraphs nine, ten, eleven and thirty-two, which are new, do not state a new cause of action or cure the defect. Paragraphs nine and ten allege that the city “induced” the Lupis, as its “authorized agent,” to erect a gate. Paragraph eleven alleges that “but for” such inducement, the gate would not have been erected. Paragraph thirty-two alleges that the plaintiffs were “harmed” by such conduct. Paragraphs nine, ten, eleven and thirty-two fail to allege facts sufficient to cure the defect as found by the court when it granted the city’s motion to strike count one of the original complaint. The court aptly noted, and we agree, that the additional paragraphs in the amended complaint add nothing more than mere conclusory statements to count one and do “not differ in substance from the prior complaint.”

Count two is virtually the same in the amended complaint as it was in the original complaint. The only addition is an allegation added to paragraph thirty-eight that the city “erected the gate through its agent the Lupis . . . .” Count two, therefore, amounts to nothing more than a conclusory statement devoid of the factual allegations necessary to cure the defect of the original pleading.

Count three of the amended complaint alleges statutory nuisance. This pleading, although technically asserting a different cause of action, is different from the original complaint in title only. Count three incorporates all of the allegations of count two of the original complaint. In so doing, it fails to allege any new facts that would differentiate it from count two of the original complaint. Count three of the amended complaint is merely a restatement of the allegations set forth in count two of the original complaint, which were stricken.

Count four of the amended complaint is virtually identical to count three of the original complaint with the exception of one additional allegation in paragraph forty-seven, which provides that “[t]he City of Danbury flagrantly exposed the Plaintiffs to peril of life and limb with no proper reason for doing so.” Absent new factual allegations, count four of the amended complaint simply restates the allegations previously stricken in count three of the original complaint.

We conclude, on the basis of our de novo review of the pleadings in the underlying action, that counts one through four of the amended complaint are substantially the same and merely restate the causes of action in each of the counts previously stricken from the original complaint. The plaintiffs’ amended allegations, even when viewed in a light most favorable to them, amount to nothing more than conclusory statements unsubstantiated by supportive facts. See Bennett v. Connecticut Hospice, Inc., 56 Conn. App. 134, 136-37, 741 A.2d 349 (1999) (conclusory statements absent supportive facts insufficient to survive motion to strike), cert. denied, 252 Conn. 938, 747 A.2d 2 (2000). Because we conclude that the plaintiffs’ amended complaint fails to cure the defects of their original pleadings, which the court struck, the court properly granted the city’s request to revise and deleted counts one through four of the amended complaint.

II

The plaintiffs next claim that the court improperly dismissed the fifth count of their amended complaint, thereby denying them due process of law. Specifically, the plaintiffs claim that the court improperly concluded that because count five incorporated all of the allegations stated in the four counts previously stricken, it must also fail due to its absence of any factual allegations. We note at the outset that the plaintiffs preserved their right to challenge the court’s dismissal of the fifth count by objecting to the court’s order in a timely manner and by choosing not to file an amended complaint.

The following additional facts are relevant to our resolution of this claim. Following the court’s striking of the first four counts of the plaintiffs’ amended complaint, the court inquired of the plaintiffs’ counsel as to why the action should proceed. Finding that there were no factual allegations in the fifth count, the court granted the city’s oral motion to dismiss count five, resulting in a dismissal of the complaint.

The plaintiffs essentially ask this court to reverse the court’s dismissal of the amended complaint by concluding that the only remaining count contained sufficient factual allegations to allow that cause of action to proceed to trial. The plaintiffs pray for such relief in light of the fact that all the referenced factual allegations of count five were previously stricken from the complaint.

Our standard of review of a motion to dismiss is well established. “In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . PYirthermore, it is the law in our courts . . . that [a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” (Citations omitted; internal quotation marks omitted.) Villager Pond, Inc. v. Darien, 54 Conn. App. 178, 183, 734 A.2d 1031 (1999).

After the court granted the city’s request to revise, four counts of the amended complaint were deleted. The remaining count stated as follows: “1. Paragraphs 1 through 47 of the Fourth Count are incorporated by reference herein as paragraphs 1 through 47 of the Fifth Count as though set forth herein. 48. In so acting, the Defendants negligently inflicted emotional distress upon the Plaintiffs, and such distress was severe. Wherefore, the Plaintiffs seek damages.”

Count five is completely devoid of any factual allegations. Even if we were to apply our standard of review liberally, there are simply no facts to construe in a manner most favorable to the plaintiffs. Count five of the amended complaint specifically references allegations that no longer exist. The plaintiffs’ argument that count five was not altered by any motion to strike or revise, therefore leaving intact its referenced factual allegations, is unpersuasive because those allegations are nonexistent. Because count five fails to allege any facts in support of its claim of emotional distress, it is clear that “no relief could be granted under any set of facts that could be proved consistent with the allegations.” (Internal quotation marks omitted.) Id. As a result, count five could not withstand the city’s motion to dismiss, which the court properly granted.

The plaintiffs also claim that they were denied due process when the court dismissed count five of the amended complaint because “they had no notice as to any perceived insufficiency” regarding it. This claim is disingenuous and wholly without merit. The court heard argument from both parties before it granted the city’s oral motion to dismiss and was under no obligation whatsoever to inform the plaintiffs of any insufficiency in their complaint, or otherwise. Furthermore, the court deleted the first four counts of the amended complaint nearly seven years before granting the city’s oral motion to dismiss the fifth count of that complaint. Common sense would have suggested to the plaintiffs that they carefully parse their remaining count for its sufficiency during that time. The plaintiffs cannot now attempt to pass the onus of pleading sufficiently onto the court by way of a due process claim based on lack of notice, because such an onus rests squarely on the party pleading, not the trial court. See Davenport v. Quinn, supra, 53 Conn. App. 290 n.7 (plaintiff has burden of adequately pleading his case); see also Practice Book § 10-1.

Ill

The plaintiffs’ final claim is that the court improperly failed to award them damages following the hearing in damages as to the Lupis. Specifically, the plaintiffs argue that because a default judgment conclusively determines liability, they were, at the very least, entitled to nominal damages. We agree.

The court rendered a default judgment against the Lupis on January 19, 1993, and ordered the case to proceed to a hearing in damages. “The significance of an entry of default against a defendant in a legal action is that it entitles the plaintiff to at least nominal damages. . . . The entry of default, when appropriately made, conclusively determines the liability of a defendant.” (Citations omitted.) Ratner v. Willametz, 9 Conn. App. 565, 579, 520 A.2d 621 (1987).

It was improper for the court to fail to award damages to the plaintiffs. Because liability already had been conclusively established as to the Lupis, the plaintiffs, at the very least, were entitled to nominal damages. Although technically incorrect, the failure to award damages does not require a remand. “ [N] o purpose would be furthered by a remand because the damages to be awarded to the plaintiff against the defendants could only be nominal based upon the substantive findings of the trial court at the hearing in damages.” Id., 580. We will not ordinarily remand a case for “the mere failure to award nominal damages.” Clay v. Teach, 37 Conn. App. 556, 560, 656 A.2d 1065, cert. denied, 234 Conn. 902, 659 A.2d 1205 (1995).

The judgment is affirmed.

In this opinion the other judges concurred.

         “On December 15,1992, the plaintiffs made a motion to default the Lupis for failure to appear. The motion was granted on December 23, 1992. The trial court, Fuller, J., granted the plaintiffs’ motion for judgment on January 19, 1993, and ordered the case to proceed to a hearing in damages as to the Lupis. The case was still pending as to the defendant city of Danbury. On April 22,1994, the trial court, McGrath, J., by memorandum of decision, denied the plaintiffs any recovery of damages, finding the plaintiffs’ evidence not credible.” Melfi v. Danbury, 38 Conn. App. 466, 468, 661 A.2d 1046 (1995). The plaintiffs appealed, and this court dismissed their appeal sua sponte for lack of a final judgment because the case was still pending as against the city. Id., 470. The court’s failure to award the plaintiffs damages as to the Lupis is the basis of the plaintiffs’ third claim on appeal, which is addressed in part III of this opinion.

       See Hendel’s Investors Co. v. Zoning Board, of Appeals, 62 Conn. App. 263, 274, 771 A.2d 182 (2001) (conclusory statements purporting to allege aggrievement insufficient without adequate factual allegations accompanying them).
      Additionally, Practice Book § 10-1, entitled “Fact Pleading,” sets forth the requirements of an adequate pleading. It provides in relevant part: “Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . . .” (Emphasis added.)

       The plaintiffs claim that the court dismissed count five of the amended complaint sua sponte. The plaintiffs are incorrect in their assertion, however, because a review of the transcripts reveals that the city’s attorney made an oral motion to dismiss count five based on the absence of any factual allegations in the complaint, and the court granted that motion. See footnote 2.

       The following colloquy occurred between the court, the attorney for the plaintiffs and the attorney for the city:
      “The Court: I was looking at the last complaint that was filed. . . . And I note that it’s a five count complaint. And the first four counts were ordered stricken just leaving one count, the fifth one, negligent infliction of emotional distress. And the last count, the fifth count, incorporates the other four counts by reference and only adds an allegation of negligent infliction of emotional distress. There was no subsequent complaint filed. So, I’m going to ask for your input in regard to how you wish to proceed since virtually every paragraph of the fifth count is a stricken paragraph. . . .
      “[Plaintiffs’ Counsel]: . . . [G]iven the fact that we have a count remaining in the negligent infliction of emotional distress, we are here and we have selected a jury. We are here to proceed, Your Honor, on that count.
      “The Court: Attorney Burton [plaintiffs’ counsel], I have one simple question for you. Am I correct, or am I incorrect, in stating that every allegation except one in that fifth count has been stricken? Is that correct, or is it incorrect? Yes or no?
      * ** *
      “[Plaintiffs’ Counsel]: The first four counts of the complaint—
      “The Court: Is that correct or not?
      “[Plaintiffs’ Counsel]: — have been ordered stricken by Judge Stodolink.
      “The Court: And the fifth count references the first four counts in paragraph one. Is that right?
      “[Plaintiffs’ Counsel]: That is correct.

        “The Court: Well, let me just move back to my original question of both counsel. And that is, since there is only one paragraph in count five, that paragraph . . . and all other counts have been stricken, how do we proceed on this lawsuit? . . .
      “[Plaintiffs’ Counsel]: Your Honor will note from the file that this action was instituted on October 26, 1992. We have now just passed the eighth anniversary of the moment when the obstruction that’s referenced in the complaint was removed. Many times in this case, the plaintiffs have come to this court—
      “The Court: Attorney Burton, please address yourself to the question I ask. Please don’t give me a history of the case. How do you intend to proceed on the lawsuit since there’s only one count, and that count has one paragraph? All the other paragraphs have been stricken. And obviously, you cannot recover what you don’tplead. You’ve only pled one paragraph. Please tell me how you propose to proceed, or upon what authority you propose to proceed. I want to hear you, but please don’t give me a history of the case. Please address my question directly.
      “[Plaintiffs’ Counsel]: . . . The fifth count of the complaint, from the second substitute revised complaint, does remain. . . .
      * * *
      “The Court: Based on what alleged facts? . . . There are no factual allegations in the fifth count.
      “[Plaintiffs’ Counsel]: Your Honor, we would be happy, at this point, to revise the complaint. But we weren’t requested by any proper pleading by the city ....
      “The Court: You say that you weren’t requested to. Once the prior counts were stricken, and you were told you were left with the fifth count, did you do anything to affirmatively revise this complaint so that you had some factual allegations in it? The date of the second substitute revised complaint is September 21, 1993. It is August 8, 2000. You had the time between those two dates to submit another revised complaint. You haven’t done that. It is your obligation to make factual pleadings and prove your allegations. You haven’t made any factual allegations regarding negligent infliction of emotional distress. . . . You’ve incorporated stricken counts by reference into the fifth count of the complaint. You can’t proceed on stricken counts. You have one paragraph remaining in the fifth count. . . .
      H* H H»
      “The Court: Attorney Buzaid [the city’s attorney], do you have any response?
      “[City’s Counsel]: Yes, Your Honor, without factual allegations no evidence can be offered at this trial.
      “[City’s Counsel]: Your Honor, I ask that the court dismiss this action.
      * * *
      “The Court: What factual allegations are in the fifth count other than reference to stricken counts?
      “[Plaintiffs’ Counsel]: Well, this fifth count was not stricken. It was not addressed, and the request revives—
      “The Court: So, you’re not answering my question. The answer is none.
      * ** *
      “The Court: The motion to dismiss is granted.
      “[Plaintiffs’ Counsel]: May an exception be noted?
      “The Court: Exception [is] noted.”

       Following the court’s dismissal of count five of the amended complaint, the court offered to open its judgment to allow the plaintiffs to amend it by adding sufficient factual allegations. The plaintiffs declined that offer, and, as a result, the court left the judgment intact.

       See footnote 1.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    111 WHITNEY AVENUE, INC., ET AL. v. COMMISSIONER OF MENTAL RETARDATION
    (AC 21803)
    Mihalakos, Flynn and Peters, Js.

      Argued April 23
    officially released July 2, 2002

      David S. Doyle, for the appellant (plaintiffs).

      Sean C. Connors, with whom, on the brief, was Mark A. Milano, for the appellee (defendant).
   Opinion

PETERS, J.

Pursuant to a consent decree, the department of mental retardation undertook to find community group homes to replace institutional housing for adults with mental retardation. To this end, various state officials communicated with potential private investors to encourage them to underwrite the development of suitable group homes. The dispositive issue in this case is whether the plaintiff investors have proved that these communications matured into an enforceable oral agreement containing a guarantee of an uninterrupted income flow for at least ten years. The investors appeal from the trial court’s judgment in favor of the defendant, which was based on the court’s finding that the investors had failed to prove the essential terms of their alleged oral contract. We affirm the judgment of the trial court.

The plaintiffs, 111 Whitney Avenue, Inc., and Gaynor/ 111 Whitney Avenue Partnership, filed a complaint against the defendant commissioner of mental retardation. They alleged that the defendant, in an oral agreement, had induced them to invest in premises suitable for group homes by guaranteeing that the homes would be properly staffed and occupied for a ten year period. The plaintiffs sought to recover damages to compensate them for losses resulting from the default by a state licensed service provider and the consequent removal of the group home residents from the premises in which the plaintiffs had invested.

The defendant agreed that personnel from the department of mental retardation (department) had met with representatives of the plaintiffs to discuss group homes for the mentally retarded. He denied that these conversations had led to a binding oral agreement. He further denied that department personnel had in any way implied or promised the plaintiffs that group homes would house clients for any specific number of years. In addition, he pleaded the statute of frauds as an affirmative defense.

The trial court found that the plaintiffs had failed to satisfy their burden of proving the essential terms of their alleged oral contract with the defendant. The court identified three essential terms that had not been proven: the identity of the parties; the terms of their mutual understanding; and the authority of the state agents with whom the plaintiffs allegedly dealt to enter into engagements that were binding on the defendant. In the absence of proof of these essential terms, the court also sustained the state’s affirmative defense under the statute of frauds. For these reasons, it rendered judgment in favor of the defendant.

The court’s memorandum of decision and the record provide the factual background for this litigation. In the late 1980s and the early 1990s, the plaintiffs and other related partnerships entered into written leases for the development of group homes for mentally retarded adults in New Haven and in Litchfield. Various state agents encouraged such investments in order for the state to comply with a 1984 decree of the United States District Court for the District of Connecticut concerning the housing needs of mentally retarded persons.

The state was heavily engaged in implementing its plan for group homes. State agencies strictly reviewed all phases of licensing, development and construction. The state designated and monitored the service providers for the group homes. The state required that leases between an investor and a service provider run for a ten year’ term in order to provide a stable environment for those living in the group homes. By contrast, its contracts with service providers had a duration of only one year.

When the plaintiffs learned of this investment opportunity, they decided to invest in the development of three group homes. For all three properties, the service provider was an entity known as NCDC of Connecticut (NCDC), which obtained proper licenses from the defendant. In mid-August, 1991, the plaintiffs entered into written real estate leases with NCDC for the group homes that they owned. The plaintiffs had no written agreements with the defendant. The court noted that “[b]y design there was no direct contract between the plaintiffs and the defendant.”

The plaintiffs’ investments soured when NCDC defaulted on its obligations, including the rental payments it owed to the plaintiffs. The defendant did not replace NCDC by licensing another service provider to run the group homes in which the plaintiffs had invested and moved the group home residents to other facilities. The plaintiffs base their claim for relief from this adverse event on the defendant’s failure to honor his alleged contractual duty to replace NCDC with another service provider for ten years.

The plaintiffs alleged that they had reached an oral agreement with the defendant about their development of group homes in two ways. One way was a verbal agreement with the defendant’s agent. The other way was by acceptance of a general offer made by state agents, in telephone calls, meetings and correspondence, that described the group homes plan that the state was promoting.

First, the plaintiffs argue that the defendant was bound by a verbal agreement that they allegedly had reached with Antoinette Richardson some time in the first quarter of 1989. Richardson was the defendant’s director for Region One (the northwestern part of the state). The principal term of this alleged contract was a promise by the defendant, upon the.default of a service provider or the removal of a group home resident, to find substitute providers or residents for a ten year period. No written memorandum of this meeting was ever prepared. Richardson did not recall any meeting of that sort. To the contrary, she stated that, in all her discussions with individuals, she had emphasized that there were no guarantees.

Second, the plaintiffs argue that an enforceable contract arose out of their acceptance of the defendant’s general offer to any potential group home investor that the department would guarantee the operation of such a home for a period of ten years. At trial, they introduced written statements and telephone logs to substantiate their claim that the defendant had made an offer that they had accepted by making their investments. The existence of these communications and their availability to the plaintiffs are undisputed.

The trial court rejected the plaintiffs’ contention that they were entitled to recover. Its principal finding was that the plaintiffs had failed to prove the existence of any contractual relationship between the parties. In this appeal, the plaintiffs argue that, to the contrary, the evidence at trial sufficiently demonstrated each of the building blocks for an enforceable agreement.

Our review of the plaintiffs’ claims starts from the established proposition that a question about the existence of a contract is a question that must be decided by the finder of facts. Pagano v. Ippoliti, 245 Conn. 640, 654, 716 A.2d 848 (1998); L & R Realty v. Connecticut National Bank, 53 Conn. App. 524, 534, 732 A.2d 181, cert. denied, 250 Conn. 901, 734 A.2d 984 (1999); Fortier v. Newington Group, Inc., 30 Conn. App. 505, 509, 620 A.2d 1321, cert. denied, 225 Conn. 922, 625 A.2d 823 (1993). It follows that the plaintiffs’ appeal can succeed only if the court’s findings were clearly erroneous. “A finding is clear ly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence.” (Internal quotation marks omitted.) Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985); Place v. Waterbury, 66 Conn. App. 219, 222, 783 A.2d 1260 (2001); see also Practice Book § 60-5.

I

We review separately each of the reasons adduced by the trial court for its finding that a contractual relationship had not been proven. The court found that the plaintiffs had failed to prove three essential terms of their alleged contract. This finding was not clearly erroneous.

A

Identities of the Parties

The trial court found that the plaintiffs had failed to identify the parties to such an undertaking. “[T]o form a contract . . . the identities of the contracting parties must be reasonably certain.” (Citations omitted.) Ubysz v. DiPietro, 185 Conn. 47, 51, 440 A.2d 830 (1981).

The court focused on the alleged conference with Richardson in early 1989. At that time, only one of the three investment partnerships had been formed. The plaintiffs’ principal witness, Edward Marcus, did not testify when, if ever, in his conversations with Richardson, or with any other state agent, he differentiated between his role as potential investor and his role as attorney for other potential investors. As the court noted, in his correspondence with an assistant attorney general, written on his law firm’s stationery, he identified himself as representing “a group” not otherwise identified.

The plaintiffs respond that they were sufficiently represented at the alleged conference with Richardson by the presence of two of their partners, Marcus and Mark Gaynor. They do not claim that Marcus or Gaynor informed Richardson of the identity of their fellow investors. Instead, they argue that Marcus and Gaynor properly were acting as agents for the other partners as undisclosed principals to reach an agreement for the benefit of all of the plaintiffs. The court’s memorandum of decision contains no finding with respect to the rights of undisclosed principals. If the court should have addressed this argument, the plaintiffs could have sought an articulation pursuant to Practice Book § 66-5. Because they did not do so, we do not have a record sufficient to permit appellate review of this issue. See Practice Book §§ 60-5 and 61-10.

The plaintiffs likewise have failed to provide a record to sustain their other arguments that their identity was established at trial. We do not have the benefit of the court’s response to the plaintiffs’ allegations that their identity was established by the fact that they were named as lessors in the contract between NCDC and the defendant. Similarly, the court did not address the plaintiffs’ appellate argument that their identity was of no moment because the defendant sought investors without regard to their identity.

The facts recited in the court’s memorandum of decision support the court’s concerns about the identity of the parties who had participated in the alleged oral agreement. The plaintiffs’ arguments to the contrary do not add up to a showing that the court’s findings were clearly erroneous.

B

Terms of the Agreement

The court also found that the plaintiffs had failed to prove the terms of their alleged oral agreement. Our case law requires “definite agreement on the essential terms of an enforceable agreement.” Willow Funding Co., L.P. v. Grencom Associates, 63 Conn. App. 832, 845, 779 A.2d 174 (2001); see also Suffield Development Associates Ltd. Partnership v. Society for Savings, 243 Conn. 832, 843, 708 A.2d 1361 (1998); Coady v. Martin, 65 Conn. App. 758, 766, 784 A.2d 897 (2001), cert. denied, 259 Conn. 905, 789 A.2d 993 (2002).

A central term of the oral agreement was the defendant’s alleged promise to guarantee the plaintiffs’ investments for ten years. The evidence at trial, however, included a letter from Marcus to assistant attorney general Arnold I. Menchel, in which Marcus acknowledged that the state was not a guarantor of leases between landlords and service providers. In light of that letter, the court properly found that the plaintiffs’ awareness of the defendant’s interest in long-term leases of group homes did not establish that any of the essential terms of any such arrangement had been agreed upon.

As they did at trial, the plaintiffs point to the various manifestations of the state’s interest in group home investments as the source for the terms of their contract with the defendant. They note that, when asked, the defendant wrote letters to other potential investors and to financial institutions. Those letters referred to the guarantees that the plaintiffs seek to enforce. The plaintiffs do not allege that they, or Marcus on their behalf, ever discussed their own investment proposal with the defendant at any time other than at the disputed Richardson conference. The defendant is not answerable to the plaintiffs for letters of which the plaintiffs had no knowledge.

Alternatively, the plaintiffs argue that the communications that they received from the state with respect to group homes for persons with mental retardation were in the nature of a general offer by the defendant that contained the basic terms of their agreement. They maintain that they accepted this offer by making the investments in group homes that the defendant had encouraged.

The linchpin of this argument is the assumption that our contract law recognizes the concept of a general offer. The plaintiffs maintain that there is a functional equivalence between offers made to identifiable entities and offers made to the general public. The plaintiffs cite no authority for this proposition and we know of none. Statements that urge members of the general public to take some action in response thereto usually are characterized as advertisements. Advertisements invite offers rather than acceptances. See 1 Restatement (Second), Contracts § 26, p. 75 (1981); Mesaros v. United States, 845 F.2d 1576, 1580-81 (Fed. Cir. 1988); Hoon v. Pate Construction Co., 607 So. 2d 423, 425-26 (Fla. App. 1992), cert. denied, 618 So. 2d 210 (Fla. 1993); Kane v. League of Oregon Cities, 66 Or. App. 836, 840-41, 676 P.2d 901, review denied, 296 Or. 829, 679 P.2d 1366 (1984).

It follows that, at best, the defendant was soliciting offers from investors. It is reasonable to construe the communications upon which the plaintiffs rely as an invitation for further discussions along the lines indicated by the state’s communications. It is illuminating, furthermore, to compare the defendant’s alleged contract practices with respect to investors with the defendant’s undisputed practice of contracting with service providers for group homes on the basis of formal requests for proposals. That comparison provides further support for the defendant’s argument that the essential terms of the department’s contracts were not finalized because they were never in a written agreement.

We acknowledge that there is no bright line rule describing the essential elements of any and all enforceable contracts. Whether a term is essential turns “on the particular circumstances of each case.” Willow Funding Co., L.P. v. Grencom Associates, supra, 63 Conn. App. 845. The circumstances of this case include the fact that the plaintiffs did not prove the amount of funds that they would commit to investments in group homes, the expected duration of their investments, the applicability of the alleged agreement to properties or investors not as yet identified, or the effective date of their agreement.

In light of those unproven allegations of fact, it was not clearly erroneous for the court to find that the plaintiffs had failed to prove the essential terms of their alleged contract with the defendant. The plaintiffs consistently have argued that the most important term of their alleged agreement was the defendant’s guarantee of their investments. In his testimony at trial, Marcus admitted that the investors had not reached an agreement with the defendant on this central issue. The rest is conjecture.

C

Authority

Under General Statutes § 17a-218 (b), the defendant had the authority to enter into contracts for the development of group homes. The plaintiffs argue that the defendant’s authority to contract conferred similar authority on Richardson because she was the defendant’s director for Region One. We are not persuaded that Richardson had either actual or apparent authority to make the statements that the plaintiffs attribute to her.

The trial court found that Richardson lacked actual authority to speak for the defendant. Richardson denied that she had any such authority. No evidence was adduced at trial to rebut her testimony.

The plaintiffs argue on appeal that Richardson could commit the defendant to an oral contract because she spoke to the plaintiffs in her official capacity. The inference that the plaintiffs would have us draw from Richardson’s status depends on their assumption that authority is indivisible. That is not so. Our case law holds that authority to perform services on behalf of a principal does not automatically confer actual or apparent authority to bind the principal in other respects. A principal is bound to contracts executed by an agent only “if it is within the agent’s authority to contract on behalf of that principal . . . .” (Citations omitted.) E. Paul Kovacs & Co. v. Alpert, 180 Conn. 120, 125, 429 A.2d 829 (1980); Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 396, 324 A.2d 247 (1973); 1 Restatement (Second), Agency §§ 140, 186 (1958).

Even if Richardson lacked actual authority to enter into an oral contract on behalf of the defendant, the plaintiffs claim that she had apparent authority to do so. They argue that their communications with other state agents demonstrate her apparent authority to bind the defendant. The flaw in this argument is that the law of apparent authority is more limited.

“Apparent authority is derived not from the acts of the agent but from the deliberate or inadvertent acts of the principal. . . . Apparent authority has two elements. First, it must appear from the acts of the principal that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority .... Second, the party seeking to bind the principal must have acted in good faith reliance on that appearance of authority.” (Citations omitted; internal quotation marks omitted.) Edart Truck Rental Corp. v. B. Swirsky & Co., 23 Conn. App. 137, 139-10, 579 A.2d 133 (1990); see Tomlinson v. Board of Education, 226 Conn. 704, 734-35, 629 A.2d 333 (1993).

In this case, the court observed that “there was no testimony that [the defendant] either directly or indirectly did anything that could be construed as allowing his employees to enter into contracts on his behalf.” The plaintiffs have cited no evidence to the contrary. The court also found that the plaintiffs had not proven their reliance on an appearance of authority because Marcus could not reasonably have believed “that the state employees [with whom he spoke] could, under such an informal arrangement, bind their [principal] in an oral contract.”

“The issue of apparent authority is one of fact, requiring the trier of fact to evaluate the conduct of the parties in light of all the surrounding circumstances. . . . Only in the clearest of circumstances, where no other conclusion could reasonably be reached, is the trier’s determination of fact to be disturbed.” (Citations omitted.) Lettieri v. American Savings Bank, 182 Conn. 1, 9, 437 A.2d 822 (1980). The plaintiffs have not provided any basis for disturbing the finding of the trial court.

We conclude that the court’s finding concerning the existence of the alleged oral contract was not clearly erroneous. Specifically, the plaintiffs have not demonstrated clear error in the court’s findings with respect to the identity of the parties, the terms of their alleged agreement and the authority of those with whom the plaintiffs dealt to impose contract liability upon the defendant. The plaintiffs’ failure to surmount any one of these obstacles would have sufficed to defeat their claim for relief. Together, these deficiencies of proof conclusively demonstrate that the court did not abuse its discretion in ruling against the plaintiffs on their contract claim.

II

In addition to finding that the existence of an oral agreement had not been proven, the trial court also held that the plaintiffs could not prevail because their alleged oral agreement did not satisfy the requirements of the statute of frauds, General Statutes § 52-550. The court observed that the case before it was “one in which the purpose of the statute of frauds is best exemplified — the need for reliable evidence concerning the existence and actual terms of a contract at issue.” We agree.

Compliance with the statute of frauds requires, as a minimum, proof of the essential terms of the agreement that is at issue. Fruin v. Colonnade One at Old Greenwich Ltd. Partnership, 38 Conn. App. 420, 426, 662 A.2d 129 (1995), aff'd, 237 Conn. 123, 676 A.2d 369 (1996); Scinto v. Clericuzio, 1 Conn. App. 566, 568, 474 A.2d 102 (1984); see also Montanaro v. Pandolfini, 148 Conn. 153, 157, 168 A.2d 550 (1961).

Having decided that the plaintiffs had failed to prove agreement on these essential terms, the court held that the alleged oral agreement violated the statute of frauds. On this basis, the court rejected the plaintiffs’ argument that, by developing their group homes, they had fully performed their obligations so that § 52-550 (a) (4) was inapplicable. We agree.

The court also alluded to the requirement of the statute of frauds that there must be written proof of an agreement “not to be performed within one year . . . .” General Statutes § 52-550 (a) (5). On its face, an alleged oral agreement for a ten year guarantee appears to violate this provision. See C. R. Klewin, Inc. v. Flagship Properties, Inc., 220 Conn. 569, 582-83, 600 A.2d 772 (1991). In light of the lack of proof of the existence of the alleged oral contract, we need not explore the applicability of the one year provision in this case.

Ill

This case exemplifies the losses that investors incur when, in good faith, they participate in ventures that unexpectedly turn out to be more risky than anticipated. We acknowledge that the plaintiffs’ investments in group home leases were made in service of the public policy of improving residential housing for adults with mental retardation. The fundamental issue, at trial and in this court, is, nonetheless, whether the plaintiffs and the defendant entered into an oral agreement guaranteeing the economic viability of these investments over a ten year period. The trial court found that the plaintiffs did not prove the existence of such a contract. Our examination of the record and the arguments before us persuades us that this finding of fact was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also raised two additional special defenses that are not a part of this appeal. One special defense alleged that the plaintiffs had unclean hands. Another alleged that the plaintiffs had failed to state a claim upon which relief could be granted. This special defense involved a claim of sovereign immunity, which the trial court rejected.

       The plaintiffs invested in two group homes in New Haven and one group home in Litchfield. All these homes were operated by the same service provider.

       None of the plaintiffs’ properties was located in Region One.

       General Statutes § I7a-218 (b) provides in relevant part: “The commissioner shall plan, develop and administer a comprehensive program of community-based residential facilities including, but not limited to, transitional facilities, group homes, community training homes and supervised apartments. On or after January 1, 1997, every contract by the commissioner for the construction, renovation or rehabilitation of a community-based residential facility shall be awarded to the lowest responsible and qualified bidder on the basis of competitive bids . . . .”

       The plaintiffs also argue that the agreement allegedly made with Richardson was not ultra vires. They do not allege that the court made any finding with respect to ultra vires. We need not address this argument.

       They malee similar assertions with respect to conversations with other state agents. Because they do not allege that they entered into a contract with any of these state agents, these conversations do not implicate the authority to contract.

       General Statutes § 52-550 (a) provides in relevant part: “No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged ... (4) upon any agreement . . . concerning real property; (5) upon any agreement that is not to be performed within one year from the making thereof . . . .”


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. NELSON COLON
    (AC 22339)
    Lavery, C. J., and Mihalakos and Flynn, Js.

      Argued March 27
    officially released July 2, 2002

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

      Melissa L. Streeto, special deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Kevin J. Murphy, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Nelson Colon, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a pistol or revolver in violation of General Statutes (Rev. to 1995) § 53a-217c and murder in violation of General Statutes § 53a-54a. On appeal, the defendant claims that the trial court improperly (1) denied his motion for a mistrial following improper comments made by the prosecutor during closing argument, (2) instructed the jury regarding the element of intent, (3) admitted into evidence a videotape of the crime scene and (4) denied his motion to suppress out-of-court identifications of him made by several witnesses on the basis of a single photograph. In addition, the defendant argues that there was insufficient evidence to prove intent, an essential element of the crime of murder. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 2, 1996, Paul Tirado resided at 1 Malikowski Circle, New Britain. Noel Soto was temporarily living with Tirado during the previous months, and Amy Finn also occasionally stayed at the apartment. In addition, Marcos Jimenez lived at 23 Malikowski Circle and the defendant, Nelson Colon, resided with Luz Gonzalez at 65 Malikowski Circle. All of these people knew one another and were present at Tirado’s home on August 2, 1996. Over the course of the day, Tirado, Soto, Finn, Jimenez and the defendant smoked “ready rock” and drank alcohol in the apartment.

At approximately 4 p.m., the defendant drove Soto to his mother’s home to retrieve either his keys or his wallet. At that time, the defendant was intoxicated and had trouble operating the vehicle. The two returned to Tirado’s home, but the defendant left after about one hour. At approximately 7 p.m., the defendant returned to Tirado’s house with Jimenez. Jimenez brought with him a supply of “ready rock” that he shared with the group. Shortly thereafter, the defendant and Tirado argued, and the defendant angrily left the apartment.

About fifteen minutes after the defendant departed, the victim, Ramon Rivera, arrived. Soto was the only person in the apartment who previously had known Rivera. Rivera planned to stay for the night and took a shower shortly after he arrived.

In the meantime, the defendant drove home after leaving the apartment. He walked into his home, walked upstairs and left right away. The defendant returned to Tirado’s home and entered the apartment without knocking on the door, causing a ruckus. As Rivera was walking out of the bathroom, he told the defendant to “lower your voice and respect the man’s house.” The defendant responded, “I don’t like you.” After stating, “[A]s a matter of fact, I really don’t like you,” the defendant began shooting at Rivera. Soto witnessed a struggle between the defendant and Rivera, and watched as Jimenez attempted to intervene. Soto escaped through the kitchen door.

While this was happening, Tirado and Finn were in the bedroom. They heard the gunshots and Finn looked to see what was happening. She saw the defendant shooting. Both Tirado and Finn escaped through the bedroom window and hid behind a dumpster across the street. As they waited, they saw the defendant exit the apartment with an object in his hand that resembled a handgun and Jimenez trailed behind. The defendant sped off in his vehicle and Jimenez walked toward his home at 23 Malikowski Circle.

After the defendant left, Soto reentered the apartment and called 911. When the New Britain police arrived shortly after 9 p.m., Soto, Tirado, Finn and Jimenez were all at the apartment waiting and cooperated with the police. The four friends voluntarily went to the police station and provided statements regarding the shooting. They each said that “Nelson” shot the victim, although none knew his last name, and they gave a detailed description of the defendant and his vehicle. Soto informed the police as to where the defendant was living at the time. In addition, Tirado, Finn, Soto and Jimenez each voluntarily submitted to an atomic absorption test, and each tested negative for gunpowder residue. After he left the police station, Jimenez could not be located to testify at trial.

Later that evening, the defendant’s vehicle was located in Hartford. The vehicle was impounded and searched. New Britain police found what appeared to be blood on the steering wheel and the trunk. The defendant, however, was not in the area. Later testing of the blood found on the trunk of the defendant’s vehicle revealed traces of DNA consistent with the victim’s DNA.

On January 23, 1997, the defendant was found at a bus station in Philadelphia and taken into custody. The defendant was charged with criminal possession of a pistol and murder. On April 24, 2000, the jury returned a guilty verdict on both counts, and the defendant received a total effective sentence of sixty-five year’s incarceration. This appeal followed. Additional facts will be set forth where necessary to our disposition of the issues on appeal.

I

The defendant first claims that he was deprived of his right against self-incrimination as guaranteed by the fifth amendment to the United States constitution. This claim stems from remarks made by the prosecutor during his rebuttal closing argument, which the defendant views as comments on his failure to testify. Furthermore, the defendant claims that the court’s curative instructions were insufficient to remedy the harm. We disagree.

The defendant claims that the following portion of the state’s closing argument violated his constitutional rights: “Do you remember — I don’t remember hearing a reason why Nelson Colon fled to Philadelphia. What did he say? Fled to Philadelphia — drugs, drugs, drugs. That’s what you’re supposed to do is ignore all the evidence in this case and just remember the people were using drugs, and then it’s easy, isn’t it?

=!= * *

“Nelson Colon was not on the scene. Nelson Colon was the only person who was not on the scene when the police arrived. The judge will tell you that it’s up [to] you to decide. But when someone flees the scene of a crime, that can be strong evidence that they knew they were guilty and that’s why they left.

“And you have to decide, is there any evidence at all which indicates any other reason for Nelson Colon leaving?” (Emphasis added.)

“[T]he Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” (Internal quotation marks omitted.) State v. Burton, 258 Conn. 153, 172, 778 A.2d 955 (2001), quoting Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); see also General Statutes § 54-84. “An indirect remark by the prosecuting attorney which draws the jury’s attention to the fact that the accused failed to testify may also violate the accused’s right.” State v. DeMartino, 7 Conn. App. 292, 294, 508 A.2d 809 (1986). The state, however, is not “prohibited from calling to the jury’s attention any portion of the evidence that stands uncontradicted .... Only when a prosecutor’s comment focuses the attention of the juiy on the failure of the defendant to testify does it become objectionable. . . . The ultimate test of whether a prosecution argument indirectly and impermissibly comments on the defendant’s failure to testify is whether, because of its language and context, the jury would naturally and necessarily interpret it as comment on the defendant’s failure to testify.” (Citations omitted; internal quotation marks omitted.) State v. Downing, 68 Conn. App. 388, 398, 791 A.2d 649, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002).

In the present case, the defendant did not testify. His theory of defense was one of misidentification, namely, that it was Jimenez who shot the victim and not the defendant. During his summation, defense counsel argued that Jimenez was the shooter and pointed to his absence at trial. The defendant, however, presented no evidence explaining why he immediately fled the crime scene to Hattford and later to Philadelphia. While it is true that Jimenez subsequently left Connecticut shortly after the incident, he remained at the crime scene and cooperated with the police. The prosecutor’s remarks during rebuttal closing argument were merely an attack on the defendant’s theory of defense and not improper comment regarding the defendant’s failure to testify. See State v. Johnson, 65 Conn. App. 470, 483, 783 A.2d 1057 (remarks of state’s attorney on weaknesses in defendant’s case, including defendant’s failure to contradict state’s evidence and to support theory of defense, did not constitute comments on defendant’s failure to testify), cert. denied, 258 Conn. 930, 783 A.2d 1031 (2001). Therefore, we cannot conclude that the prosecutor’s remarks were such that the jury could naturally and necessarily have taken them as comments on the defendant’s failure to testify.

In addition, the court specifically instructed the jury that it could not draw any negative inference from the defendant’s failure to testify and, further, that the defendant did not have the burden to produce any evidence or prove his innocence. “In the absence of contrary evidence, jurors are presumed to have followed the instructions given to them by the trial judge.” State v. Jones, 65 Conn. App. 649, 655, 783 A.2d 511 (2001). Therefore, even if we were to conclude that the prosecutor improperly commented regarding the defendant’s failure to testify, any harm that may have resulted was addressed by the court’s instructions. We also note that the defendant initially agreed that curative instructions would be sufficient to address the prosecutor’s comments.

On the basis of the foregoing, we cannot conclude that the jury would naturally and necessarily interpret the prosecutor’s remarks as comments on the defendant’s failure to testify. Thus, the prosecutor did not impinge on the defendant’s right against self-incrimination.

II

The defendant’s next claim is that the court improperly instructed the jury on the essential element of intent by reading the entire statutory definition contained in General Statutes § 53a-3 (ll). Specifically, the defendant argues that the court’s reading of the entire statutory definition of intent, including the portion that provides that a person acts intentionally when his conscious objective is “to engage in such conduct,” confused and misled the jury. He claims that the court’s instructions improperly permitted the jury to return a verdict of guilty to the charged crime of murder without finding that the defendant possessed the specific intent to cause the victim’s death. We disagree.

The defendant concedes that he did not properly preserve his claim for appeal by taking exception to the charge as given. He seeks review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the defendant’s claim pursuant to Golding because the record is adequate and an improper instruction on an element of an offense is of constitutional magnitude. See State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998).

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Citation omitted; internal quotation marks omitted.) State v. Rodriguez, 63 Conn. App. 529, 534, 777 A.2d 704, cert. denied, 256 Conn. 936, 776 A.2d 1151 (2001).

In the present case, the court first instructed the jury regarding the elements of murder. Thereafter, the court explained that intent “relates to the condition of mind of the person who commits the act, his purpose in doing it. As defined by our Penal Code, a person acts ‘intentionally’ with respect to a result or to conduct when his conscious objective is to cause such result or to engage in such conduct.” (Emphasis added.) In addition, the court referred the jury to this definition of intent four times. The court, however, repeatedly instructed the jury that the defendant must have possessed the “specific intent to cause death.” “Although [w]e agree with the defendant that that portion of § 53a-3 (11) dealing with intent to engage in proscribed conduct is irrelevant to a murder prosecution pursuant to § 53a-54a . . . we conclude that the charge read as a whole did not mislead the jury.” (Citation omitted; internal quotation marks omitted.) State v. Maia, 48 Conn. App. 677, 686-87, 712 A.2d 956, cert. denied, 245 Conn. 918, 717 A.2d 236 (1998).

Viewing the instruction in its entirety, we conclude that it was not reasonably possible that the jury was misled by the extraneous intent to engage in conduct language of the statute. The court repeatedly instructed the jury that to find the defendant guilty of murder, it first had to find that the defendant intended to cause the death of another person. Therefore, the defendant cannot prevail under the third prong of Golding because he has failed to establish that a constitutional violation clearly exists and that it clearly deprived him of a fair trial.

Ill

The defendant argues next that the court improperly admitted into evidence a videotape of the crime scene. Specifically, he claims that the videotape was cumulative evidence and the probative value did not outweigh its prejudicial effect. The state argues to the contrary and argues further that any error resulting from the admission of the videotape was harmless. We agree with the state that the admission of the videotape, if improper, was harmless.

“It is well established that a trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Lewis, 67 Conn. App. 643, 650, 789 A.2d 519 (2002).

We need not reach the issue of whether the videotape was admissible, however, because even if we assume without deciding that the court abused its discretion in admitting the videotape into evidence, its admission of the videotape constituted harmless error. See State v. Shabazz, 246 Conn. 746, 758-59, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999). “[T]o establish the hannfulness of a trial court ruling, the defendant must show that it is more probable than not that the improper action affected the result. . . . The question is whether the trial court’s error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court’s ruling, though erroneous, likely to affect the result?” (Citation omitted; internal quotation marks omitted.) State v. Russo, 62 Conn. App. 129, 137, 773 A.2d 965 (2001).

In addition, the defendant bears the burden to prove that an improper evidentiary ruling was harmful. See State v. Lewis, supra, 67 Conn. App. 653. “One factor to be considered in determining whether an improper ruling on evidence is a harmless error is whether the testimony was cumulative . . . .” (Internal quotation marks omitted.) State v. Rolli, 53 Conn. App. 269, 276, 729 A.2d 245, cert. denied, 249 Conn. 926, 733 A.2d 850 (1999).

In the present case, a series of still photographs depicting the crime scene was admitted into evidence. Each photograph, including those of the victim, was admitted through and explained by a New Britain police officer. In addition, a videotape of the crime scene containing substantially similar representations was admitted into evidence. A New Britain police officer narrated as the videotape was published to the jury.

The defendant argues that because the videotape shows the victim lying on the floor in pools of blood, its probative value was outweighed by the prejudicial effect. The jury, however, had before it sufficient evidence, other than the videotape, with which it could find the defendant guilty of murder beyond a reasonable doubt. There were four eyewitnesses who testified that the defendant was the shooter. Each of those witnesses submitted to atomic absorption testing and tested negative for gunpowder residue. In addition, the defendant’s stepdaughter testified that about fifteen minutes before she heard gunshots, the defendant returned home, walked upstairs to retrieve something and immediately left the home. Furthermore, DNA consistent with the victim’s DNA was found on the trunk of the defendant’s vehicle.

We conclude that the admission of the videotape, even if improper, was harmless because it was cumulative and not likely to affect the result of the trial.

IV

The defendant next argues that the court improperly denied his motion to suppress certain out-of-court identifications of him made by several witnesses to the crime. Specifically, he argues that because the witnesses were shown only a single photograph to identify him, the procedure was unnecessarily suggestive. Furthermore, he claims that under the totality of the circumstances, the identifications were also unreliable. We agree that generally an identification procedure whereby a witness is shown a single photograph is unnecessarily suggestive. We conclude, however, that the identifications in this case were nevertheless reliable.

Our review of a court’s denial of a motion to suppress a pretrial identification is well settled. “[T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless rehable based on an examination of the totality of the circumstances.” (Internal quotation marks omitted.) State v. Salmon, 66 Conn. App. 131, 135-36, 783 A.2d 1193 (2001), cert. denied, 259 Conn. 908, 789 A.2d 997 (2002).

“An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification. . . . The defendant bears the burden of proving both that the identification procedures were unnecessarily suggestive and that the resulting identification was unreliable.” (Internal quotation marks omitted.) State v. Sanchez, 69 Conn. App. 576, 580-81, 795 A.2d 597 (2002). “Absent exigent circumstances that require police officers promptly [to establish] either the defendant’s complicity or his innocence . . . the showing of a single photograph of a defendant is almost always unnecessarily and impermissibly suggestive.” (Citation omitted; internal quotation marks omitted.) State v. Findlay, 198 Conn. 328, 338, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).

Each of the witnesses was presented with a single photograph of the defendant. The state argues that although using a single photograph to identify a defendant is per se suggestive, there were exigent circumstances in this case. We are not persuaded. This is not a situation where the witnesses did not know the shooter and may readily forget the description of who had committed the crime. See State v. Watson, 50 Conn. App. 591, 603-604, 718 A.2d 497 (proper for police to provide victim with opportunity to identify assailant while memoiy still fresh and necessary to allow police to eliminate quickly innocent parties with minimum delay), cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S. Ct. 1373, 143 L. Ed. 2d 532 (1999), cert. dismissed, 255 Conn. 953, 772 A.2d 153 (2001). Therefore, the likelihood that the witnesses would forget or that the police would apprehend the wrong person was slim. Because the witnesses were presented with a single photograph to identify the defendant and no exigent circumstances existed, the procedure was unnecessarily suggestive.

Our inquiry does not, however, stop here. We must now determine whether the suggestive identification procedure was nonetheless reliable. “The reliability of an identification procedure is considered under various factors, such as the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of [the witness’] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” (Internal quotation marks omitted.) State v. Davis, 61 Conn. App. 621, 631, 767 A.2d 137, cert. denied, 255 Conn. 951, 770 A.2d 31 (2001).

“[W]e examine the legal question of reliability with exceptionally close scrutiny and defer less than we normally do to the related fact finding of the trial court. . . . Absent a very substantial likelihood of irreparable misidentification, [ w] e are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” (Internal quotation marks omitted.) State v. Cooper, 65 Conn. App. 551, 571, 783 A.2d 100, cert. denied, 258 Conn. 940, 786 A.2d 427 (2001).

In the present case, Tirado, Finn, Soto and Jimenez each knew the defendant prior to August 2,1996. When questioned by police, each witness said “Nelson” did it, although none knew his last name. They provided the police with a detailed description of the defendant and his vehicle. None of the witnesses could identify the defendant from the hundreds of mug shots with which they initially were presented. In addition, Soto informed the police that the defendant lived with Gonzalez at 65 Malikowski Circle. While investigating 65 Malikowski Circle, a New Britain police officer obtained from Gonzalez a photograph of the defendant. From this single photograph, the witnesses identified the defendant as the one who committed the murder. The defendant filed a motion to suppress the identification, claiming that the procedure of using a single photograph was unnecessarily suggestive. After reviewing the totality of the circumstances, the court denied the motion to suppress.

Taking all of the circumstances into consideration, we conclude that the identification was reliable. The witnesses testified that Tirado’s apartment was well lit and they had a clear view of the incident. In addition, all of the witnesses knew the defendant prior to the incident and gave detailed descriptions of him and his vehicle to the police. Furthermore, one of the witnesses knew exactly where the defendant lived. The identification also occurred only hours after the shooting while the events were still fresh in the minds of the witnesses. Given the totality of the circumstances, irreparable misidentification was not likely.

V

The defendant’s final claim is that his intoxication prohibited him from forming the specific intent required for a conviction of murder. To support this claim, the defendant argues that because there was substantial and undisputed evidence that he was intoxicated, the state did not prove beyond a reasonable doubt that he was capable of forming the specific intent to cause the death of the victim, an essential element of the crime. We are not persuaded.

“Our standard of review of sufficiency of evidence claims is well settled. In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have con-eluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Jackson, 257 Conn. 198, 204-205, 777 A.2d 591 (2001).

Before a defendant may be found guilty of the crime with which he is charged, the jury must find each element proven beyond a reasonable doubt. See State v. Torres, 242 Conn. 485, 489-90, 698 A.2d 898 (1997). “The specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. . . . Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . Furthermore, [ijntent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” (Internal quotation marks omitted.) State v. Young, 56 Conn. App. 831, 836, 746 A.2d 795, cert. denied, 253 Conn. 904, 753 A.2d 939 (2000).

“[W]hile intoxication is neither a defense nor an affirmative defense to a murder charge in Connecticut, evidence of a defendant’s intoxication is relevant to negate specific intent which is an essential element of the crime of murder.” (Internal quotation marks omitted.) State v. Austin, supra, 244 Conn. 239. “Intoxication, however, does not automatically negate intent. ... It is for the jury to decide, after weighing all the evidence adduced at trial, whether a criminal defendant’s intoxication rendered him incapable of forming the intent required to commit the crime with which he is charged.” (Internal quotation marks omitted.) State v. Downey, 45 Conn. App. 148, 156-57, 694 A.2d 1367, cert. denied, 242 Conn. 909, 697 A.2d 367 (1997).

The defendant argues that the evidence, which is undisputed and strongly supported by all of the state’s witnesses, shows that he was intoxicated at the time of the incident. Although there was testimony that the group was drinking and ingesting drugs, there was no testimony regarding the volume. The only evidence that the defendant was impaired at any point during the day was Soto’s testimony. Soto testified that the defendant was intoxicated and driving erratically nearly five hours before the shooting.

After construing the evidence in the light most favorable to sustaining the verdict, on the basis of the facts so construed and the inferences drawn therefrom, the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. Whether the defendant was capable of forming the specific intent to commit murder was a question for the jury to decide. Merely asserting that the defendant is intoxicated is not enough to negate the specific intent to commit murder. The defendant left the apartment to retrieve his handgun from his home. He used the handgun in the murder and shot the victim several times at close range. In addition, he fled the scene of the crime. On the basis of the foregoing, the jury reasonably could have concluded beyond a reasonable doubt that the defendant possessed the specific intent to commit murder.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1995) § 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver when he possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony . . . .”

       General Statutes § 53a-54a provides in relevant part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person ....
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person. . . .”

       “Ready rock” is a form of crack cocaine that is ingested by inhaling it through a pipe.

       The atomic absorption test is designed to detect gunpowder residue.

       General Statutes § 54-84 provides: “(a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court, shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       The court’s instruction to the jury provided in relevant part: “The defendant’s right to testify: The defendant did not testify in this case. An accused person is under no obligations to testify in his own behalf. He has a constitutional right not to testify. You must draw no unfavorable inferences from the defendant’s failure to testify.
      * ** *
      “Consciousness of guilt: In any criminal trial it is permissible for the state to show that conduct of the defendant after the time of the alleged offense may fairly have been influenced by the criminal act. That is, the conduct shows a consciousness of guilt.
      “The conduct of a person in leaving the scene of a crime, if proven that he was in fact at the scene of a crime, may be considered in determining his guilt since if unexplained, it tends to prove a consciousness of guilt. This does not mean, however, that the defendant has any burden to produce any evidence or to prove his innocence.
      “Moreover, flight, if shown, is not conclusive. Nor does it raise a legal presumption of guilt. Rather, it is to be given the weight to which you, the jury, think it is entitled under the circumstances shown.”

       The following colloquy took place:
      “[Defense Counsel]: . . . And there was a comment earlier in the rebuttal, and I do not have it verbatim. It was something to the effect that defense or Mr. Colon hasn’t explained why he fled to Hartford.
      “And my concern with that is that it implies that we had an obligation to so explain. And it could be interpreted as a potential comment on the defendant’s failure to testify. . . .
      “The Court: All right. What is your proposed correction, if any?
      “[Defense Counsel]: Well, I would ask the court in the charge to — I think it can be handled in the charge to say if there’s any concern that the defendant should’ve provided an explanation for why he fled to Hartford, he’s under no obligation, again, to provide [an] explanation.”

       We note our awareness of State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002), which only recently was decided by our Supreme Court. In Singh, the court reiterated the factors that a reviewing court must weigh in determining whether “prosecutorial misconduct was so serious as to amount to a denial of due process . . . .” (Internal quotation marks omitted.) Id., 700. Because we conclude that the prosecutor did not engage in misconduct in the first instance, we need not evaluate the Singh factors to determine if the defendant was denied due process.

       General Statutes § 53a-3 (11) provides: “Aperson acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. . . .”

       Under State v. Golding, supra, 213 Conn. 239-40, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) “In the absence of any one of these conditions, the defendant’s claim will fail.” Id., 240.

       The court instructed the jury in relevant part: “For you to find the defendant guilty of murder, the state must prove the following elements beyond a reasonable doubt: One, that the defendant intended to cause the death of another person; and two, that in accordance with that intent, the defendant caused the death of that person or of a third person.
      “In order to convict the defendant of murder, you must first find that the defendant caused the death of Ramon Rivera. You must find proven beyond a reasonable doubt that Ramon Rivera died as a result of the actions of the defendant.”

       It is unclear from the record whether the defendant was actually married to the girl’s mother or merely residing with her.