author: Norcott, J.

text:
    Robert Skrzypiec et al. v. J. P. Augustine Noonan et al.
    (14724)
    Peters, C. J., Norcott, Katz, E. Y. O’Connell and Foti, Js.

      Argued September 22—
    decision released November 23, 1993

      Penn Rhodeen, for the appellants (plaintiffs).

      Karen P. Blado, with whom were Gordon W. Patterson and, on the brief, Grant H. Miller, for the appellee (named defendant).

      Thomas F. Kelsey, for the appellee (defendant Richard L. R. Engelhardt).
   Norcott, J.

This appeal arises out of a dispute over the release of confidential information regarding psychiatric treatment. The plaintiff, Robert W. Skrzypiec, brought an action alleging negligence and a violation of General Statutes §§ 52-146d and 52-146e against the defendants, J. P. Augustine Noonan, a psychiatrist, and Richard L. R. Engelhardt, a social worker, to recover damages resulting from the disclosure of confidential psychiatric information to the plaintiff’s employer. The case was tried before a jury and was bifurcated to try the issues of duty and breach separately from the issues of causation and damages. The jury returned a verdict in favor of the plaintiff on the issues of duty and breach, but awarded no damages in the second phase of the trial. The trial court rendered judgment for the defendants. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On March 5,1987, the plaintiff, a captain in the Southington fire department, attempted to rescue four people trapped in a burning building. In the course of his search, the plaintiff, after injuring his ribs, exhausted his portable air supply. Then, while crawling along the floor, he rolled over and found himself lying on the body of a dead child. At this point the plaintiff believed that his death was imminent. He managed, however, to make his way out of the building to safety. Despite the efforts of the plaintiff, three children and one adult perished in the fire.

The plaintiff testified that he was upset with the way the fire had been handled. He felt that errors in judgment had been made by the person in command at the scene because that person lacked the experience necessary to deal with the situation. Specifically, the plaintiff opined that the fire truck had been positioned incorrectly at the scene. He further testified that had this mistake not been made the four people who perished in the fire could have been saved. The plaintiff also testified that he felt guilty and responsible, as well as angry at his superiors and coworkers, for the deaths that resulted from the fire.

As a result of his involvement with the tragic fire of March 5, 1987, the plaintiff experienced severe emotional and psychological distress. He became withdrawn, experienced nightmares, had difficulty sleeping and increased his consumption of alcohol. The plaintiff sought counseling from Engelhardt and was diagnosed as suffering from posttraumatic stress disorder. In the course of his treatment with Engelhardt, the plaintiff was examined by Noonan for the purpose of obtaining medication to facilitate sleep. After a single examination, Noonan prescribed a sleeping pill for the plaintiff.

Because he was injured during the course of his employment, the plaintiff filed a claim for workers’ compensation benefits pursuant to General Statutes (Rev. to 1987) § 31-294 and was receiving such benefits during the entire course of his treatment. This benefits claim was premised on the plaintiff’s mental and emotional distress resulting from his role in the fire. In response to a request for medical records made by the Frank B. Hall Company, the workers’ compensation insurance carrier for the Southington fire department, Engelhardt inadvertently sent a report detailing the plaintiff’s treatment to his employer, the Southington fire chief. The report addressed to the insurance carrier consisted of a summary of Engelhardt’s treatment notes on Noonan’s letterhead, over Noonan’s signature. The report noted the plaintiff’s symptoms and their causes, including his anger and disapproval concerning the mishandling of the fire. This report was sent without the express written consent of the plaintiff. In fact, the plaintiff had specifically asked that he be allowed to review and “sanitize” any such report prior to its release.

At trial, the plaintiff and the defendants advanced substantially different theories as to the effects of the disclosure on the plaintiffs mental and emotional well-being. The plaintiff testified that as a result of the disclosure his nightmares and inability to sleep had worsened and he had experienced intense rage and uncontrollable anger toward the defendants. He further testified that as a result of the disclosure he felt betrayed and could not trust anyone enough to continue treatment. This testimony was corroborated at trial by the testimony of three psychiatrists offered as expert witnesses by the plaintiff. All three experts agreed that the plaintiff suffered from posttraumatic stress disorder due to his experience in the fire and that his treatment for that disorder was hindered by the disclosure.

Walter Borden, a psychiatrist who evaluated the plaintiff in the months immediately following the disclosure for the purpose of diagnosis only, testified that the disclosure delayed the plaintiff’s recovery by making it impossible for him to continue treatment with Engelhardt. He further testified that the disclosure undermined the progress the plaintiff had been making in treatment and that future treatment would be problematic because of the plaintiff’s inability to trust others. Borden’s opinion was that, absent the disclosure, the plaintiff would have taken between six and eighteen months to achieve substantial recovery.

Laurence Goldstein, a psychiatrist who treated the plaintiff from October 5, 1987, through August 11, 1989, testified that subsequent to the disclosure the plaintiff had suffered from disturbed sleep, anxiety and depression requiring treatment with drugs. Goldstein testified that both the fire and the disclosure had caused the problems for which he was treating the plaintiff. He also testified that the disclosure increased the difficulty of treatment by, among other complications, requiring more extensive use of medication than was previously necessary.

Sally Satel, a psychiatrist who treated the plaintiff from April 11,1990, through the time of trial, also testified that the disclosure had impaired the plaintiffs ability to trust other health care providers, damaged his self-esteem and caused him to lose confidence, thus impairing his receptiveness to psychiatric treatment. In her opinion, the plaintiff would have returned to “reasonable baseline functioning” within nine to twelve months of the fire had it not been for the disclosure.

Conversely, the defendants argued that the plaintiffs injuries had been caused by the fire and not the disclosure. They relied primarily on the expert testimony of Neil Leibowitz, a psychiatrist, who, on behalf of the defendants, examined the plaintiff in anticipation of the trial. Leibowitz agreed with the other experts that the plaintiff suffered from posttraumatic stress disorder brought on by the fire. Leibowitz, however, disagreed as to the effect of the disclosure on the plaintiffs subsequent symptomology. He testified that after the fire the plaintiff had suffered from severe internal conflict. The plaintiff did not trust his coworkers. He felt betrayed by them and angry at them for the way in which they had handled the fire, but he also had to depend on them to continue in his role as a fire fighter. Leibowitz testified that the rage and anger directed at the defendants was simply the projection of the plaintiffs feelings toward his coworkers. He testified that this displacement allowed the plaintiff to resolve his internal conflict with the least disruption to his life.

Leibowitz also testified, as further support for his theory, that the disclosure was a relatively harmless event. He pointed to the fact that the release of such a report is an everyday occurrence and that in his opinion it did not rise to the magnitude of a death, a fire or other disastrous event that might cause posttraumatic stress disorder in a person. Leibowitz also asserted that the effect of the disclosure was tempered by the fact that the plaintiff had previously confronted his boss and coworkers with his negative feelings about the handling of the fire.

The jury returned a verdict in favor of the plaintiff on the issues of duty and breach, but awarded zero damages during the second phase of the trial. The trial court thereafter rendered judgment for the defendants. The plaintiff moved to set aside the verdict, which motion was denied by the court. The plaintiff then brought this appeal claiming that the trial court abused its discretion by: (1) denying his motion to set aside the verdict on the basis that the evidence did not support a verdict that the disclosure of the confidential psychiatric information had caused no injury to the plaintiff; (2) refusing to give curative instructions after defense counsel's allegedly improper legal argument to the jury; (3) refusing to charge the jury on the defendants’ liability for harm caused by a subsequent doctor and injury to an unusually vulnerable person; (4) limiting cross-examination of the defendants’ expert witness; and (5) allowing Leibowitz to testify as to the effect of Borden’s examination on the plaintiff. For the following reasons, we affirm the judgment of the trial court.

I

We first consider the plaintiffs claim that the trial court improperly denied his motion to set aside the verdict on the ground that the jury could not reasonably have concluded that the plaintiff suffered no harm as a result of the disclosure of the psychiatric report to his employer. There is adequate evidence in the record to support the jury verdict. It was not, therefore, an abuse of discretion for the trial court to deny the plaintiffs motion.

“In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict. Campbell v. Gould, 194 Conn. 35, 41, 478 A.2d 596 (1984). The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness. Herb v. Kerr, [190 Conn. 136, 139, 459 A.2d 521 (1983)]; Katsetos v. Nolan, [170 Conn. 637, 656, 368 A.2d 172 (1976)]. This is so because [f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury. Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972) . . . . It is the function of this court to determine whether the trial court abused its discretion in denying [a party’s] motion. Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988).” (Internal quotation marks omitted.) Coelho v. Posi-Seal International, Inc., 208 Conn. 106, 112-13, 544 A.2d 170 (1988). In reviewing this issue, our sole responsibility is to decide whether, on the evidence presented, the jury could fairly have reached the conclusion it did. Wu v. Fairfield, 204 Conn. 435, 440, 528 A.2d 364 (1987).

In support of his claim that the evidence did not reasonably support the jury’s verdict on the issues of causation and damages, the plaintiff focuses on the considerable evidence presented at trial showing that he suffered mental and emotional distress. As detailed at the outset of this opinion, however, there was conflicting evidence presented by both sides as to the cause of the deterioration in the plaintiff’s condition subsequent to the disclosure. The existence of conflicting evidence limits the court’s authority to overturn a jury verdict. The jury is entrusted with the choice of which evidence is more credible and what effect it is to be given. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 58, 578 A.2d 1054 (1990).

Even if the defendants owed the plaintiff a duty to honor his request for confidentiality; see footnote 6; the jury could have found that the plaintiff suffered no harm as a result of that breach. There was substantial evidence that the plaintiff’s problems were caused by the fire and not by the disclosure. There was ample evidence indicating that the plaintiff was angry at and did not trust his coworkers and superiors as a result of his perception that the fire had been mishandled. Leibowitz testified that these feelings had created an intense conflict within the plaintiff between his need to rely on these people at work and his inability to trust them. Leibowitz further testified that the plaintiff had resolved this conflict by displacing all of his fire related feelings of anger, frustration and betrayal onto the defendants.

In addition, Leibowitz testified that the disclosure of the report was not emotionally disruptive enough to induce posttraumatic stress disorder. He pointed to the fact that the release was in itself quite innocuous. The chief of the fire department who received the report already knew that the plaintiff was receiving treatment and the reasons therefor. The chief also knew of the plaintiffs criticisms of the department and had in fact discussed them with the plaintiff prior to his receipt of the report. On the basis of this information, Leibowitz opined that the release did not cause any posttraumatic stress disorder in the plaintiff. The plaintiff continued his service in the fire department and was promoted despite this disclosure. The jury could reasonably have found, based on this evidence, that the disclosure did not proximately cause the plaintiff’s injuries, but merely caused him to refocus his unresolved feelings caused by the fire onto the defendants.

Because there was evidence in the record tending to support the verdict reached by the jury, we conclude that it was within the discretion of the trial court to refuse to set aside the verdict.

II

We next consider the plaintiff’s claim that the trial court improperly refused to give curative instructions to the jury regarding three instances of allegedly improper legal argument to the jury by defense counsel. The plaintiff claims that: (1) counsel for Engelhardt misstated the law regarding compensability of anger and rage as part of mental distress; (2) counsel for Noonan misstated the law regarding inferences to be drawn from workers’ compensation payments made to treating psychiatrists; and (3) counsel for Noonan misstated the law regarding the defendants’ responsibility for harm caused by subsequent treatment. We conclude that the plaintiff’s first claim of impropriety was not properly preserved in the trial court, and therefore do not reach its merits. We further conclude that the trial court’s rulings with respect to the plaintiff’s second and third claims were not an abuse of its discretion.

A

We first address the plaintiff’s claim as to the argument proffered by counsel for Engelhardt regarding compensability of rage and anger as part of mental distress. “This court will not consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial and was ruled upon and decided by the trial court . . . .” State v. Simms, 170 Conn. 206, 208, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976); Practice Book § 4185. Indeed, if he fails to take proper exception to arguments of counsel and fails to request a charge respecting them “the plaintiff is deemed to have waived this claim of error.” Del Prince v. Bristol, 153 Conn. 168, 170, 215 A.2d 128 (1965). The purpose of this rule is to alert the trial court to claims of error while there is still an opportunity for correction. See Berry v. Loiseau, 223 Conn. 786, 814, 614 A.2d 414 (1992).

By agreement of the parties, objections to argument and exceptions to the jury charge were deferred until after the arguments and jury charge had been completed. Review of the record reveals that the plaintiff did not distinctly raise his objections to the arguments of defense counsel regarding compensability of rage and anger as part of mental distress nor did he clearly request that a corrective charge be given to the jury. The record indicates that the plaintiff asserted that the argument was improper while also maintaining that he thought “the issue [was] probably clear to the jury.” He also did not ask for a curative instruction. A claim of impropriety coupled with a concession that the issue is clear to the jury is insufficient to alert the trial court to a claim of error. This is particularly true where, as here, the party fails clearly to request that a curative instruction be given. This claim, therefore, was not distinctly raised at trial.

In light of his failure distinctly to raise this claim at trial, the plaintiff requests review under the plain error exception to Practice Book § 4185. “Only in the most exceptional circumstancesf, however,] will this court consider a claim that was not raised [below]. Cahill v. Board of Education, 187 Conn. 94, 99, 444 A.2d 907 (1982); see Practice Book § 4185. Such exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial. State v. Williams, 182 Conn. 262, 267, 438 A.2d 80 (1980); State v. Evans, [165 Conn. 61, 69, 327 A.2d 576 (1973)]. An exception may also be made where consideration of the question is in the interest of public welfare or of justice between the parties. Cahill v. Board of Education, supra, 100.” (Internal quotation marks omitted.) Dubois v. General Dynamics Corp., 222 Conn. 62, 68-69, 607 A.2d 431 (1992). The plaintiff has pointed to no exceptional circumstances in the present case and, accordingly, we decline to review the merits of this claim.

B

We next consider the plaintiffs claims that counsel for Noonan made improper argument to the jury by misstating the law regarding inferences to be drawn from evidence related to workers’ compensation benefits and the defendants’ responsibility for harm caused by subsequent treatment. We conclude that the argument in question was neither a misstatement of the law nor unreasonable. The rulings of the trial court denying curative instructions, therefore, were clearly within its discretion.

“[T]he trial court is invested with a large discretion with regard to the arguments of counsel; Tomczuk v. Alvarez, 184 Conn. 182, 193, 439 A.2d 935 (1981); Levin v. Ritson, 179 Conn. 223, 226, 425 A.2d 1279 (1979); see also State v. Herring, 210 Conn. 78,102, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). . . .” (Internal quotation marks omitted.) Bartholomew v. Schweizer, 217 Conn. 671, 678, 587 A.2d 1014 (1991). “[WJhile its action is subject to review and control, we can interfere only where the discretion was clearly exceeded or abused to the manifest injury of some party.” (Internal quotation marks omitted.) Tomczuk v. Alvarez, supra. In fact, the court must allow “ ‘[cjounsel . . . a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel. . . .’ ” State v. Plaza, 23 Conn. App. 543, 553, 583 A.2d 925 (1990), cert. denied, 217 Conn. 811, 587 A.2d 153 (1991), quoting State v. Laudano, 74 Conn. 638, 646, 51 A. 860 (1902).

“In argument before the jury, counsel may comment upon facts properly in evidence and upon reasonable inferences drawn therefrom.” State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977). It is, thus, axiomatic that the advocate may also entreat the jury to draw reasonable inferences and conclusions from the evidence.

The plaintiff objected to the portion of Noonan’s argument in which he referred to testimony and documentary evidence related to workers’ compensation payments made to the plaintiff for his injuries after the disclosure. The plaintiff claims that the defendant’s argument was contrary to the law because injury caused by complications in the treatment of a work-related injury is compensable under workers’ compensation. The reports and testimony, however, were not offered to make a legal claim regarding the effect of the plaintiff’s receipt of workers’ compensation benefits; rather, the defendant asked the jury to infer from the evidence that the plaintiff’s'treating psychiatrists believed that his injuries were caused by the fire and not the disclosure.

Noonan was asking the jury to base its inference on the manner in which the coverage was procured, not on the existence of such coverage. The documentary evidence on which Noonan relied consisted of a letter to the workers’ compensation commission from Gold-stein and bills from Goldstein and Satel which were paid through workers’ compensation. The letter stated that the injuries for which the plaintiff was being treated were caused by the fire. In fact, the letter failed to mention the disclosure at all. The inference as to the psychiatrists’ beliefs and the conclusion that the injuries were caused by the fire and not by the disclosure, are reasonable and based upon facts in evidence. As such they are within the proper bounds of zealous argument, and the ruling was within the trial court’s discretion.

The plaintiff also objected to Noonan’s argument on the ground that it was a misstatement of the law to contend that any harm caused by a subsequent doctor was not the responsibility of the defendants. This claim must fail, however, because Noonan did not so argue and the argument made was not a misstatement of the law.

Noonan did not argue to the jury that the defendants were not responsible for any harm caused by subsequent doctors. He argued that the defendants were not liable for any of the plaintiff’s injuries caused by his failure properly to mitigate or minimize his damages through reasonable treatment choices. “[A]n injured party can recover from the original tort-feasor for damages caused by the negligence of a doctor in treating the injury which the tort-feasor caused, provided the injured party used reasonable care in selecting the doctor.” (Emphasis added.) Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 596, 356 A.2d 873 (1975).

As the trial court noted, there was evidence of gaps in the plaintiff’s treatment. Following the disclosure in May, 1987, the plaintiff terminated treatment with Engelhardt and did not begin treatment with Goldstein until four months later in October of the same year. In the interim, he elected to meet with Borden, not for treatment, but to evaluate whether he had grounds for a lawsuit based on the disclosure. Furthermore, Borden testified that the plaintiff was resistant to therapy. There was also evidence that the plaintiff continued treatment with Goldstein despite his dissatisfaction with that treatment. From this evidence, the jury could reasonably have inferred that the plaintiff did not use reasonable efforts to mitigate his damages. Noonan’s argument to that effect was thus reasonable and supported by the evidence in the case. Consequently, the trial court properly decided not to give a curative instruction to the jury.

We find no abuse of the trial court’s discretion in its rulings on either of the arguments made by counsel for Noonan.

Ill

We next address the plaintiff’s claim that the trial court improperly refused to charge the jury that the defendants were responsible for harm caused by a subsequent doctor and were responsible for harm caused regardless of any unusual vulnerability the plaintiff may have had. We conclude that the charge given by the trial court sufficiently guided the jury on the issues presented at trial.

“In assessing the adequacy of a charge to the jury, we consider the charge in its entirety, and judge it by its total effect rather than by its individual component parts. Van Steensburg v. Lawrence & Memorial Hospitals, 194 Conn. 500, 507, 481 A.2d 750 (1984). We consider whether the instructions are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury. Hall v. Burns, 213 Conn. 446, 482, 569 A.2d 10 (1990); Grecki v. New Britain, 174 Conn. 200, 203, 384 A.2d 372 (1978); Mack v. Perzanowski, 172 Conn. 310, 313, 374 A.2d 236 (1977); Natty v. Charbonneau, 169 Conn. 50, 55-56, 362 A.2d 494 (1975). The charge must give the jury a clear comprehension of the issues presented for their determination under the pleadings and upon the evidence, and must be suited to guide them in the determination of those issues. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 566, 562 A.2d 1100 (1989); Natty v. Charbonneau, supra.” Goodmaster v. Houser, 225 Conn. 637, 644-45, 625 A.2d 1366 (1993).

The plaintiff filed a written request to charge the jury that the defendants were not entitled to diminish their damages by claiming that the plaintiff was harmed by subsequent treatment or examination in connection with any injury that they had caused. The trial court refused to give this instruction on the basis that it was not an issue in the case. As discussed above, the evidence regarding the plaintiffs treatment subsequent to the disclosure was used to show that his efforts to mitigate damages were unreasonable and the jury charge appropriate to this issue was delivered. “The court’s obligation is to frame its instructions so as to be adapted to the issues which are in the case. . . . It should refrain, as it properly did here, from addressing issues which are not in the case.” (Citation omitted.) Dimeo v. Burns, Brooks & McNeil, Inc., 6 Conn. App. 241, 245, 504 A.2d 557, cert. denied, 199 Conn. 805, 508 A.2d 31 (1986).

The plaintiff also filed a written request to charge the jury that the defendants would be liable for any injury caused by the disclosure regardless of whether the plaintiff was unusually vulnerable to such harm. The trial court did not give the exact charge requested, but it did instruct the jury as follows: “A defendant takes the plaintiff as he finds him, and with all the infirmities. So that if you find that there was a pre-existing situation, which was made worse or aggravated in some way by this disclosure, and if you are satisfied that this happened within reasonable medical probability, then you may allow damages for that particular aggravation.”

“The court is under no duty at any time to charge in the exact language requested. State v. Maresca, 173 Conn. 450, 460, 377 A.2d 1330 (1977); Radwick v. Goldstein, 90 Conn. 701, 706, 98 A. 583 (1916). Failure to charge precisely as proposed by a defendant is not error where the point is fairly covered in the charge. State v. Colton, 174 Conn. 135, 141, 384 A.2d 343 (1977). Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues. State v. Bennett, 172 Conn. 324, 330, 374 A.2d 247 (1977); Duley v. Plourde, 170 Conn. 482, 489, 365 A.2d 1148 (1976); Goggins v. Reinzo Trucking Co., 166 Conn. 240, 248, 348 A.2d 569 (1974).” Tomczuk v. Alvarez, supra, 190. In the present case, the trial court sufficiently instructed the jury, using the appropriate rules of law, with respect to the issue of the plaintiff’s unusual vulnerability. Furthermore, we find no substantial difference between the requested charge and that given by the court.

Accordingly, we conclude that the trial court did not abuse its discretion when it refused to give either jury instruction requested by the plaintiff.

IV

We now turn to the plaintiffs claim that the trial court abused its discretion when it limited his cross-examination of the defendants’ expert witness, Leibowitz, by sustaining defense objections to two questions. The plaintiff claims that these questions were relevant to the witness’ experience in treating and evaluating cases similar to the present one. Leibowitz was first asked, “How many patients have you evaluated who claimed that a major component of their illness is a breach of confidence?” The objection was sustained on the ground that the question was phrased too broadly to elicit a meaningful response because it failed to specify the type of illness involved.

Next, Leibowitz was asked, “What experience, if any, Doctor, do you have in assessing impact of a disclosure such as the one claimed here, with Exhibit A going to Mr. Skrzypiec’s chief, what experience do you have in attempting to evaluate the impact of that on the individual?” The objection to this question was sustained on the ground that it was phrased too narrowly because it focused too closely on the specific facts of this unusual case to shed any light on the witness’ experience with breaches of confidentiality generally, or the ensuing effect of such a breach on a person suffering from post-traumatic stress disorder.

The plaintiff argues that cross-examination is a substantial right which should be liberally allowed; Pickman v. Pickman, 6 Conn. App. 271, 277-78, 505 A.2d 4 (1986); however, proper cross-examination must be relevant to be admissible. Ayers Co. v. Novelty Textile Mills, Inc., 168 Conn. 577, 578, 362 A.2d 969 (1975); Conley v. Board of Education, 143 Conn. 488, 495, 123 A.2d 747 (1956). “The trial court has broad discretion to determine the relevancy of evidence, and we will not disturb a trial court’s ruling on the admissibility of evidence in the absence of a clear abuse of discretion. State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990).” State v. Sauris, 227 Conn. 389, 407, 631 A.2d 238 (1993). This broad discretion extends to the admissibility of expert testimony which the trial court finds is without probative value for the jury. Going v. Pagani, 172 Conn. 29, 35, 372 A.2d 516 (1976). Here the trial court ruled that the plaintiff’s questions were phrased so that the answers elicited would not have been helpful to the jury in determining Leibowitz’ experience with the issues at hand. For the reasons stated above, we find no abuse of discretion by the trial court in its refusal to allow these questions.

V

The plaintiff finally claims that the trial court abused its discretion when it allowed Leibowitz to testify regarding the impact of Borden’s examination on the plaintiff. At trial, the plaintiff objected to this line of questioning as irrelevant.

As previously noted, whether the plaintiff acted with due diligence in seeking treatment to mitigate his damages caused by the disclosure was at issue in this case. See Anderson & McPadden, Inc. v. Tunucci, supra. The question was raised whether it was reasonable for the plaintiff to forego psychiatric treatment for four months while seeing Borden to assess the possibility of bringing a lawsuit against the defendants. Leibowitz’ opinion bears directly on this issue by showing the impact on the plaintiff of what the jury could reasonably have concluded was an unreasonable treatment choice. Leibowitz’ testimony on this issue was thus extremely relevant to a significant issue in the case. We conclude, therefore, that the trial court did not abuse its broad discretion; see State v. Sauris, supra; with regard to the relevance of this testimony.

The judgment is affirmed.

In this opinion the other justices concurred.

       Susan Skrzypiec, Robert Skrzypiec’s wife, is also a plaintiff in this case. She seeks damages for the deprivation of the services, support and consortium of her husband. Because her claim is wholly derivative of Robert Skrzypiec’s claim and will thus survive or be barred according to the disposition of the issues on appeal as applied to Robert Skrzypiec, this opinion does not refer to Susan Skrzypiec separately in her role as plaintiff.

       General Statutes § 52-146d provides: “privileged communications BETWEEN PSYCHIATRIST AND PATIENT. DEFINITIONS. As used in sections 52-146d to 52-146Í, inclusive: (1) ‘Authorized representative’ means (A) a person empowered by a patient to assert the confidentiality of communications or records which are privileged under sections 52-146c to 52-146Í, inclusive, or (B) if a patient is deceased, his personal representative or next of kin, or (C) if a patient is incompetent to assert or waive his privileges hereunder, (i) a guardian or conservator who has been or is appointed to act for the patient, or (ii) for the purpose of maintaining confidentiality until a guardian or conservator is appointed, the patient’s nearest relative;
      “(2) ‘Communications and records’ means all oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist, or between a member of the patient’s family and a psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility;
      “(3) ‘Consent’ means consent given in writing by the patient or his authorized representative;
      “(4) ‘Identifiable’ and ‘identify a patient’ refer to communications and records which contain (A) names or other descriptive data from which a person acquainted with the patient might reasonably recognize the patient as the person referred to, or (B) codes or numbers which are in general use outside of the mental health facility which prepared the communications and records;
      “(5) ‘Mental health facility’ includes any hospital, clinic, ward, psychiatrist’s office or other facility, public or private, which provides inpatient or outpatient service, in whole or in part, relating to the diagnosis or treatment of a patient’s mental condition;
      “(6) ‘Patient’ means a person who communicates with or is treated by a psychiatrist in diagnosis or treatment;
      “(7) ‘Psychiatrist’ means a person licensed to practice medicine who devotes a substantial portion of his time to the practice of psychiatry, or a person reasonably believed by the patient to be so qualified.”
      General Statutes § 52-146e provides: “disclosure of communications. (a) All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146j, inclusive. Except as provided in sections 52-146f to 52-146Í, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.
      “(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and records is necessary for the treatment.
      “(c) The patient or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the person or office in which the original consent was filed. Withdrawal of consent shall not affect communications or records disclosed prior to notice of the withdrawal.”

       Noonan regularly referred patients to Engelhardt for psychotherapy and supervised his treatment of them. Noonan also consulted with Engelhardt regarding his other patients including the plaintiff. Noonan regularly signed the medical reports of Engelhardt’s patients to facilitate the payment of workers’ compensation benefits.

       General Statutes (Rev. to 1987) § 31-294 provided in relevant part: “notice of injury and of claim for compensation. Any employee who has sustained an injury in the course of his employment shall forthwith notify his employer, or some person representing his employer, of such injury .... No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury .... The employer, as soon as he has knowledge of any such injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish such medical and surgical aid or hospital or nursing service, including medical rehabilitation services, as such physician or surgeon deems reasonable or necessary. Such physician or surgeon shall be selected by the employee from an approved list of physicians and surgeons prepared by the commissioners .... All medical reports concerning any injury of an employee sustained in the course of his employment shall be furnished the employer or employee or his attorney at the request of such employer, employee or attorney. ...”
      Section 31-294 has since been repealed and replaced by General Statutes §§ 31-294a through 31-294g.

       Goldstein treated the plaintiff with Halcion for sleep disturbance, Valium for agitation, and Norpramin, Triavil, Trilafon, Pamalore and Prozac for depression.

       The defendants argued, as an alternate ground for affirmance, that the Workers’ Compensation Act (act), General Statutes (Rev. to 1987) § 31-294, requires disclosure of medical reports and, thus, precludes a determination that the disclosure was either a violation of General Statutes §§ 52-146d and 52-146e or a breach of the medical standard of care.
      Because we affirm the rulings of the trial court with respect to the jury finding of no damages, we are not required to address this claim. We do, however, note the following. The disclosure by the defendants of a medical report to the plaintiff’s employer was required, upon request by the employer, by § 31-294. See footnote 4. Furthermore, the privilege of confidentiality provided by §§ 52-146d and 52-146e does not obviate this requirement. See footnote 2.
      The primary purpose of the act, General Statutes § 31-275 et seq., is to provide prompt and adequate medical care for employees who sustain injuries arising out of and in the course of their employment. Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 297, 627 A.2d 1288 (1993). The act requires that the employer shall furnish this medical care upon notice of the injury from the employee. Once the medical treatment has been so provided, the employer is entitled to all medical reports concerning the injury. See Delgaizo v. Veeder-Root, Inc., 133 Conn. 664, 667, 54 A.2d 262 (1947). The act requires that “[all] medical reports concerning an injury of an employee . . . shall be furnished the employer . . . at the request of such employer . . . .” General Statutes (Rev. to 1987) § 31-294. Sections 52-146d and 52-146e, on the other hand, create a privilege for written communications and records relating to psychiatric treatment which forbids their disclosure without consent. We leave the reconciliation of these statutes to another day.

       All of the experts who testified at the trial recognized the validity of the phenomenon of displacement.

       Practice Book § 4185 provides in relevant part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.”

       The plaintiff claims to have requested curative instructions by stating: “To the extent that substantial accord and curative instruction are magic words that are left out of my exceptions and so forth, I’d like them put in.” This “request” was made after the plaintiff had taken his exceptions to the jury charge and during the period when the defendants were taking their exceptions. We find such an ambiguous request inadequate because it fails to distinguish whether the request applies to the objections to argument or the exceptions to the jury charge. In addition, the plaintiff’s assertion that the issue was clear to the jury made it impossible for the trial court to ascertain that such a request applied to this claim.

       Practice Book § 4185 provides in relevant part: “The court may in the interests of justice notice plain error not brought to the attention of the trial court.”

       The plaintiff’s request to charge on the issue was: “If you find that the disclosure of records caused Mr. Skrzypiec injuries and disabilities, it makes no difference if he is in a small minority of people to whom this can be expected to occur after this type of trauma. Under those circumstances you must still award him full, adequate and compensatory damages for all injuries which you find have been caused by the disclosure, regardless of whether or not this will only happen to a small minority of people. The test is, was the disclosure of [sic] substantial factor in causing the damage, not whether it would be likely to cause such damage.”

       We note that Leibowitz had already been qualified as an expert witness by the court.

       The plaintiff argued before this court that the testimony should have been barred because it was improperly sought for the purpose of diminishing or eliminating damages and as such was “highly prejudicial” on the issue of causation. We decline to address this claim as it was not properly preserved for appellate review. The only ground for objection raised at trial was relevance. “We will not promote a Kafkaesque academic test by which [a trial judge] may be determined on appeal to have failed because of questions never asked of him or issues never clearly presented to him.” (Internal quotation marks omitted.) Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 385, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988).


source: Caselaw Access Project

author: Katz, J.

license: Public Domain

text:
    Carol Management Corporation v. Board of Tax Review of the Town of Greenwich
    (14726)
    Peters, C. J., Callahan, Berdon, Katz and Palmer, Js.

      Argued September 30—
    decision released November 23, 1993

      Eugene F. McLaughlin, Jr., assistant town attorney, for the appellant (defendant).

      John Wayne Fox, for the appellee (plaintiff).
   Katz, J.

The principal issues in this tax appeal are: (1) whether the appeal by the plaintiff, Carol Management Corporation, from the decision of the defendant, the Greenwich board of tax review, pursuant to General Statutes (Rev. to 1987) § 12-118 is collaterally estopped by an earlier action brought by the plaintiff pursuant to General Statutes § 12-119; and (2) whether the trial court incorrectly determined, contrary to the decision of the defendant, that the plaintiffs property had been overvalued by the tax assessor of the town of Greenwich. We answer both of these questions in the negative and affirm the judgment of the trial court.

The following facts are undisputed. The plaintiff’s property, located at 25 West Elm Street in Greenwich, is a six-story brick apartment building containing fifty-three units of living space and garage space for thirteen vehicles. On October 1, 1979, in connection with a decennial revaluation mandated by General Statutes (Rev. to 1979) § 12-62, the Greenwich tax assessor determined that the fair market value of the property was $3,296,300. This translated into an assessed value of $2,307,410 ($742,000 for the land and $1,565,410 for the building).

In 1983, the plaintiff filed a two count complaint in the Superior Court challenging the assessment. In the first count, the plaintiff sought relief under § 12-118 from its 1979,1980 and 1981 tax assessments. In the second count, the plaintiff claimed, pursuant to § 12-119, that the assessments were “manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property. . . .” The trial court, Hon. Raymond J. Devlin, state trial referee, rendered judgment for the defendant on both counts. As to the first count, the court found that the plaintiff had not challenged the assessment before the defendant pursuant to General Statutes § 12-111. Because a party may only appeal under § 12-118 from the action of a board of tax review, and the plaintiffs claim had never come before the defendant, the court rendered judgment for the defendant. With regard to the second count, the court found that the plaintiff had not met its burden of proof under § 12-119 and rendered judgment for the defendant on the merits.

In 1985, the plaintiff appealed the 1984 assessment of its property to the defendant pursuant to § 12-111. The defendant refused to grant relief. The plaintiff then filed a complaint in the Superior Court pursuant to § 12-118 challenging the defendant’s denial of relief. In 1986, the plaintiff-amended its complaint to include a challenge to the 1985 and 1986 assessments of its property, and to add a second count directly challenging the assessments of its property pursuant to § 12-119. The defendant answered the complaint and raised the special defense of res judicata.

In an October 12, 1988 motion for summary judgment, the defendant claimed that the 1984 decision by Judge Devlin on the § 12-119 claim precluded the plaintiff’s § 12-118 appeal under principles of collateral estoppel. On January 6, 1989, the court, Ryan, J., rejected the defendant’s collateral estoppel argument because of the “distinction in the standard of review between § 12-118 and § 12-119.” The court therefore denied the defendant’s motion for summary judgment as to the first count of the plaintiff’s complaint. The defendant subsequently amended its answer to assert collateral estoppel as a special defense to the plaintiff’s § 12-118 appeal.

After trial, the court, Lewis, J., rendered judgment for the plaintiff on its § 12-118 appeal. In its November 13, 1992 memorandum of decision, the trial court also rejected the defendant's collateral estoppel defense because of “the vast difference between § [12-118] appeals and § [12-119] law suits.” In addressing the merits of the plaintiffs claim, the court found that there was no reasonable probability that the plaintiff’s building would be converted to condominium use, and concluded, therefore, contrary to the claim of the defendant’s appraiser, that the highest and best use of the plaintiff’s property was its actual use as rental apartments. The court also found that the comparable sales method, the preferred method for valuing rental property under General Statutes § 12-63b, was the proper method of appraisal. The court accepted the opinion of the plaintiff’s appraiser that the fair market value of the property was $2,400,000, rather than $3,296,300. The plaintiff’s appraiser arrived at this figure by comparing the plaintiff’s property with three similar apartment houses that were sold in 1981. The court rejected the claim of the defendant’s appraiser that the capitalization of income approach was the most appropriate method of valuation. The court held that the plaintiff was entitled to a refund or credit for any excess payments made to the town of Greenwich for the 1984 and subsequent tax years.

The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The defendant claims that: (1) the plaintiff’s § 12-118 appeal should have been barred because Judge Devlin’s 1984 decision pursuant to § 12-119 “collaterally encompassed the criteria for determining fair market value under § 12-118”; (2) the trial court improperly rejected the cost of replacement approach used by the Greenwich tax assessor to value the plaintiffs property; (3) the trial court incorrectly determined that conversion to condominiums was not the highest and best use of the plaintiffs property; and (4) the trial court’s reliance on the report and testimony of the plaintiffs appraiser was clearly erroneous because that evidence conflicted with testimony given by the same appraiser in an earlier case. We reject all of these claims.

I

Because the defendant’s collateral estoppel claim, if valid, would dispose of this appeal, we consider it first. The defendant claims that the trial court incorrectly determined that the plaintiff’s appeal under § 12-118 was not collaterally estopped by Judge Devlin’s earlier judgment under § 12-119. We disagree.

In Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 339-40, 597 A.2d 326 (1991), we distinguished appeals brought pursuant to §§ 12-111 and 12-118 from direct actions brought pursuant to § 12-119. Sections 12-111 and 12-118 “ ‘provide a method by which an owner of property may directly call in question the valuation placed by assessors upon his property by an appeal to the board of [tax review for] relief, and from it to the courts. . . . These statutes limit to a short period the time within which the property owner can seek relief under them, and the purpose of this is undoubtedly to prevent delays in the ultimate determination of the amounts a municipality can collect as taxes.’ Cohn v. Hartford, 130 Conn. 699, 702, 37 A.2d 237 (1944).

“On the other hand, § 12-119 allows a taxpayer one year to bring a claim that the tax was imposed by a town that had no authority to tax the subject property, or that the assessment was ‘manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the real] property . . . .’ (Emphasis added.) Our case law makes clear that a claim that an assessment is ‘excessive’ is not enough to support an action under this statute. Instead, § 12-119 requires an allegation that something more than mere valuation is at issue. It is this element that distinguishes § 12-119 from its more frequently invoked companion, § 12-118.” Second Stone Ridge Cooperative Corp. v. Bridgeport, supra; see also Wilson v. Kelley, 224 Conn. 110, 118, 617 A.2d 433 (1992).

The defendant acknowledges the distinctions between the two statutes and concedes that Judge Devlin in the 1984 case dismissed the plaintiffs § 12-118 appeal without reaching its merits. The defendant nevertheless argues that in deciding the merits of the plaintiff’s § 12-119 claim, Judge Devlin did not limit his consideration to whether the assessment was manifestly excessive or arrived at in disregard of the statutory provisions governing property valuation; rather, he employed the standard of review applicable to § 12-118 appeals and considered whether the plaintiff’s property had been substantially overvalued. Specifically, the defendant asserts that Judge Devlin’s comments on the “wide variance in the appraisal figure[s] submitted,” and on his power to accept so much of the testimony of the appraisal experts as he found reasonable, indicate that he was considering issues beyond what is required for a § 12-119 claim. According to the defendant, these comments, coupled with citations to cases decided under § 12-118, demonstrate that Judge Devlin did not narrowly confine his consideration to whether there was misfeasance or nonfeasance by the taxing authority, or whether the assessment was arbitrary or so excessive or discriminatory as to demonstrate a disregard of duty by the assessors. The defendant claims that in deciding whether the assessment was manifestly excessive, Judge Devlin applied the rule of valuation from § 12-63, which applies to § 12-118 appeals as well as § 12-119 actions, and determined whether the assessment reflected the fair market value of the property. The defendant accordingly asserts that because Judge Devlin, in resolving the § 12-119 claim, incidentally decided valuation issues pertinent to a § 12-118 claim in favor of the defendant, the plaintiff should have been barred from relitigating these issues. We disagree.

Res judicata and collateral estoppel “express no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest.” State v. Ellis, 197 Conn. 436, 464-65, 497 A.2d 974 (1985), on appeal after remand sub nom. State v. Paradise, 213 Conn. 388, 567 A.2d 1221 (1990). “Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim.” (Emphasis added.) In re Juvenile Appeal (83-DE), 190 Conn. 310, 316, 460 A.2d 1277 (1983). “ ‘For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.’ ” (Emphasis added.) Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988); see also Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); State v. Hope, 215 Conn. 570, 584, 577 A.2d 1000 (1990), cert. denied, 498 U.S. 1089, 111 S. Ct. 968,112 L. Ed. 2d 1054 (1991). “An issue is ‘actually litigated’ if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. (Emphasis added.) 1 Restatement (Second), Judgments § 27, comment (d) (1982). An issue is necessarily determined if, ‘in the absence of a determination of the issue, the judgment could not have been validly rendered.’ F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.19. If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta. 1 Restatement (Second), Judgments § 27, comment (h) (1982).” (Emphasis in original.) Jackson v. R. G. Whipple, Inc., 225 Conn. 705, 714-15, 627 A.2d 374 (1993).

The defendant argues that because Judge Devlin used the criteria for determining the reasonableness of valuation under § 12-118 in his consideration of the plaintiffs direct action under § 12-119, those findings should have precluded the plaintiff from relitigating the claim. Both Judge Ryan, in ruling on the motion for summary judgment, and Judge Lewis, in trying the first count, rejected the defendant’s contention that Judge Devlin’s decision had collateral estoppel effect on this action, in light of the well recognized distinctions between the two statutes.

There is another and more compelling reason why the defendant’s argument must fail. Although it was essential to the decision of a § 12-119 claim for Judge Devlin to examine whether § 12-63 had been followed, he did not determine as part of his disposition of the § 12-119 claim what constituted the highest and best use of the property in 1979, a decision Judge Lewis was later called upon to make in connection with the § 12-118 appeal. In response to a motion to clarify his March 7,1984 decision, Judge Devlin stated that he had not specifically determined the highest and best use of the plaintiff’s property, although it “was an element an appraiser was entitled to take into consideration in his determination of the fair market value.”

Consideration of the highest and best use has been recognized by this court as a valid part of any fair market value determination. Section 12-63 indicates that the standard for valuation is the property’s “present true and actual value,” which is synonymous with “market value, actual value, fair market value, market price and fair value . . . .” Uniroyal, Inc. v. Board of Tax Review, 182 Conn. 619, 623 n.3, 438 A.2d 782 (1981). “Fair market value” is defined as “the value that would be fixed in fair negotiations between a desirous buyer and a willing seller, neither under any undue compulsion to make a deal . . . .” (Internal quotation marks omitted.) Uniroyal, Inc. v. Board of Tax Review, 174 Conn. 380, 390, 389 A.2d 734 (1978). A further definition is found in Mazzola v. Commissioner of Transportation, 175 Conn. 576, 581-82, 402 A.2d 786 (1978), to the effect that fair market value “is the price that a willing buyer would pay a willing seller based on the highest and best possible use of the land assuming, of course, that a market exists for such optimum use.” See also Whitney Center, Inc. v. Hamden, 4 Conn. App. 426, 428, 494 A.2d 624 (1985) (“[a]n assessment of land at its fair value, of necessity, regardless of the method of valuation, takes into account the highest and best value of the land”). As we said in State National Bank v. Planning & Zoning Commission, 156 Conn. 99, 101, 239 A.2d 528 (1968), “[t]he ‘highest and best use’ concept, chiefly employed as a starting point in estimating the value of real estate by appraisers, has to do with the use which will most likely produce the highest market value, greatest financial return, or the most profit from the use of a particular piece of real estate.”

We read Judge Devlin’s decision to reflect approval of the assessor’s use of § 12-63 as a means of assessment, and to hold merely that such consideration by the assessor had not been inappropriate and did not result in a manifestly illegal appraisal. Therefore, although consideration of the assessor’s reliance on § 12-63 had indeed been part of the court’s decision as to whether the assessment was manifestly excessive or whether it had been arrived at in disregard of the statutes governing property valuation, Judge Devlin specifically refused to make auxiliary findings as to what actually constituted the highest and best use of the property in 1979.

Regardless of whether Judge Devlin journeyed beyond what was essential for a determination of the § 12-119 claim, he did not make factual findings that would collaterally estop a later court from deciding the value of the property. The issue raised by the § 12-119 appeal was whether the relevant statutes had been properly applied by the assessor. On the other hand, the issue raised by the § 12-118 appeal concerned what actually constituted the fair market value of the property as ascertained by a decision about its highest and best use. The earlier decision, therefore, did not have any preclusive effect upon the later court’s ability to decide the case before it.

II

The defendant next claims that the trial court incorrectly determined, contrary to the decision of the defendant, that the plaintiff’s property had been overvalued by the Greenwich tax assessor. More specifically, the defendant claims that the trial court: (1) improperly rejected the cost of replacement approach used by the Greenwich tax assessor to value the plaintiff’s property; (2) incorrectly determined that conversion to condominiums was not the highest and best use of the plaintiff’s property; and (3) improperly relied on the report and testimony of the plaintiff’s appraiser because that evidence conflicted with testimony given by the same appraiser in an earlier case. We reject each of these claims.

A

First, the defendant claims that the trial court improperly rejected the cost of replacement approach used by the Greenwich tax assessor to value the plaintiffs property. The defendant argues that because the plaintiff did not offer any direct evidence that the assessor’s analysis was erroneous, the trial court should have given deference to the assessor’s judgment and upheld the initial assessment. We disagree.

The trial court in a § 12-118 appeal hears the case de novo; Stamford Apartments Co. v. Stamford, 203 Conn. 586, 588, 525 A.2d 1327 (1987); and has “ ‘ “the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as [it] finds applicable . . . ’ (Emphasis added.) Pandolphe’s Auto Parts, Inc. v. Manchester, [181 Conn. 217, 221, 435 A.2d 24 (1980)], quoting Greenfield Development Co. v. Wood, 172 Conn. 446, 451, 374 A.2d 1084 (1977).” Stamford Apartments Co. v. Stamford, supra, 594. “While we have recognized that proper deference should be accorded to the assessor’s valuation ... no deference to the assessor's valuation [is] warranted” when neither the assessor nor the appraiser who valued the property during the revaluation testifies at trial. Id., 589.

It appears from the record that neither the assessor nor the person who appraised the plaintiffs property in 1979 testified before the trial court. The only evidence pointed to by the defendant concerning the methodology employed in the assessment is the assessor’s card and the previously recorded testimony of Albert G. Kirk, who became the Greenwich assessor in December, 1979. Kirk testified that it appeared from the assessor’s card that a cost of replacement approach had been used to value the plaintiff’s property. He stated that he had no way of knowing, however, whether other approaches had even been considered.

In the absence of any evidence on why the assessor used the cost of replacement approach to value the plaintiff’s property and how the values in the assessment were calculated, deference to the assessor’s valuation was not required. Further, both Robert L. Levy, the plaintiff’s appraiser, and Michael Gold, the defendant’s appraiser, testified that the cost of replacement approach was the least valuable method of valuing the plaintiffs property. The Greenwich assessor at the time of trial, John P. Grecco, Jr., also testified that the cost of replacement approach was the worst method and the comparable sales approach was the best method of valuing an apartment building. It therefore was not improper for the trial court to reject the cost of replacement approach and the assessor’s valuation.

B

The defendant next claims that the trial court incorrectly determined that conversion to condominiums was not the highest and best use of the plaintiffs property. The defendant argues that this determination was incorrect because: (1) the trial court relied on testimony offered by the plaintiff that, at the time of the revaluation in October, 1979, it had no intention of converting its apartment building into condominiums; and (2) the trial court’s acceptance of Levy’s comparable sales analysis, which was based on the assumption that the building would be converted to condominiums, is inconsistent with its determination. We reject these arguments.

The parties agree that, while property should be valued according to its highest and best use, the valuation of an apartment building may be based on its potential conversion to condominiums only if conversion is reasonably probable in the near future. See Stamford Apartments Co. v. Stamford, supra, 592. The highest and best use of a property and the reasonable probability of conversion are questions of fact for the trier of fact. Id., 592-93; see Greene v. Burns, 221 Conn. 736, 748, 607 A.2d 402 (1992). We will not “substitute our evaluation of the evidence for that of the trial court . . . .” Stamford Apartments Co. v. Stamford, supra, 593.

The defendant argues that the trial court relied on the plaintiff’s subjective intent in determining whether conversion was reasonably probable. We disagree. The court cited a number of factors, in addition to the plaintiffs intent, that contributed to its determination, including high conversion costs, weak demand for converted condominiums, a shortage of rental apartments, and changes in legislative policy providing enhanced protection against eviction for the elderly. These findings are adequately supported by the record and therefore will not be disturbed.

The defendant also argues that the trial court’s finding that conversion was not reasonably probable is inconsistent with its acceptance of Levy’s comparable sales analysis, because the analysis assumed conversion to condominiums. This argument is based on the fact that the three apartment buildings that Levy used in the analysis were all converted into condominiums. The trial court was aware of this implied inconsistency, and specifically noted that Levy’s analysis favored the defendant to the extent that the comparable buildings had been converted, even though conversion was not probable at the plaintiff’s building.

We have said that the “ ‘process of estimating the value of property for taxation is, at best, one of approximation and judgment, and there is a margin for a difference of opinion.’ Burritt Mutual Savings Bank v. New Britain, 146 Conn. 669, 675, 154 A.2d 608 (1959). ‘There may be more ways than one of estimating the value of such . . . [property] for taxation.’ Bridgeport Brass Co. v. Drew, 102 Conn. 206, 212, 128 A.2d 413 (1925).” Second Stone Ridge Cooperative Corp. v. Bridgeport, supra, 342. In accepting Levy’s analysis, the court relied in part upon General Statutes § 12-63b, which indicates that the comparable sales approach is the preferred method of valuing rental property. The court rejected the recommendation of Gold, the defendant’s appraiser, whose capitalization of income analysis relied much more heavily on conversion to condominiums. In light of § 12-63b and the evidence in the record, we conclude that the determination by the trial court that there was no reasonable probability of conversion to condominiums and the decision to accept the market value in accordance with Levy’s analysis were not clearly erroneous.

C

Finally, the defendant claims that the trial court’s reliance on the report and testimony of Levy, the plaintiffs appraiser, was clearly erroneous because that evidence conflicted with testimony given by Levy in an earlier case. We disagree.

Levy was the appraiser for the taxpayer in an earlier case, Stamford Apartments Co. v. Stamford, supra. In that case, Levy adjusted the results of his comparable sales analysis to reflect differences in interest rates on the revaluation date and on the sale dates of the comparable properties. The defendant claims that a similar adjustment in this case would increase Levy’s appraisal of the plaintiff’s property using the comparable sales method to more than $4,000,000. During cross-examination, Levy conceded that the adjustment would have this effect. He testified that he did not believe that an adjustment was warranted in this case, however, because the Greenwich market differed from the Stamford market.

We have long held that “[t]he question of evaluating the credibility of the appraisers is for the trial court, not this court. Pandolphe’s Auto Parts, Inc. v. Manchester, [supra, 220-21]; see also Uniroyal, Inc. v. Board of Tax Review, [supra, 174 Conn. 387].” Stamford Apartments Co. v. Stamford, supra, 592. This court “cannot retry the facts or pass upon the credibility of the witnesses.” (Internal quotation marks omitted.) Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 220. “[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Id., 221-22.

The trial court gave the defendant ample opportunity to challenge Levy’s credibility. The defendant was permitted to cross-examine Levy extensively about the evidence he had given in the earlier case, and to introduce portions of that evidence as exhibits. In his November 13, 1992 memorandum of decision, Judge Lewis specifically stated, “I find the testimony of the plaintiff’s appraiser to be credible.” After reviewing the evidence in the record, we cannot say that that finding was clearly erroneous.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1987) § 12-118 provides in relevant part: “Any person . . . claiming to be aggrieved by the action of the board of tax review in any town or city may, within two months from the time of such action, make application, in the nature of an appeal therefrom, to the superior court for the judicial district in which such town or city is situated . . . . The court shall have power to grant such relief as to justice and equity appertains, upon such terms and in such manner and form as appear equitable .... If the assessment made by the board of tax review is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes, together with interest and costs, or, at the applicant’s option, shall be granted a tax credit for such overpayment, interest and costs. Upon motion, said court shall, in event of such overpayment, enter judgment in favor of such applicant and against such city or town for the whole amount of such overpayment, together with interest and costs. The amount to which the assessment is so reduced shall be the assessed value of such property on the grand lists for succeeding years until the tax assessor finds that the value of the applicant’s property has increased or decreased.”
      Section 12-118 now provides for appeals to the Superior Court from decisions of the Connecticut appeals board for property valuation. The provisions of § 12-118 allowing appeals from decisions of local boards of tax review have been moved to General Statutes § 12-117a.

       General Statutes § 12-119 provides in relevant part: “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner thereof . . . prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. Such application may be made within one year from the date as of which the property was last evaluated for purposes of taxation .... In all such actions, the superior court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. If such assessment is reduced by said court, the applicant shall be reimbursed by the town or city for any overpayment of taxes in accordance with the judgment of said court.”

       General Statutes (Rev. to 1979) § 12-62 provides in relevant part: “Commencing October 1, 1978, the assessors of all towns, consolidated towns and cities and consolidated towns and boroughs shall, no later than ten years following the last preceding revaluation of all real property and every ten years thereafter, view all of the real estate of their respective municipalities, and shall revalue the same for assessment . . . .”

       General Statutes § 12-62a provides in relevant part: “(b) Each . . . municipality shall, no later than the close of its next revaluation required under the provisions of section 12-62, assess all property for purposes of the local property tax at a uniform rate of seventy per cent of present true and actual value, as determined under section 12-63.”

       Prior to June, 1983, the property belonged to the estate of Alfred L. Kaskel, which was the named plaintiff in the 1983 action. The defendant claims, and the plaintiff does not dispute, that the plaintiff, Carol Management Corporation, was also a party to the 1983 action, and that the estate and the plaintiff corporation were one and the same entity. This claim is supported by the record in this case. The estate deeded the property to the plaintiff in June, 1983.

       General Statutes § 12-111 provides in relevant part: “[A]ny person . . . claiming to be aggrieved by the doings of the assessors of [a] town may appeal therefrom to [the] board of tax review . . .

       That case, Estate of Alfred Kaskel v. Greenwich, Superior Court, judicial district of Stamford-Norwalk, Docket No. 760016502 (March 7,1984), was never appealed.

       The plaintiff subsequently revised its complaint to include the 1987,1988, 1989, 1990 and 1991 tax years.

       In its motion for summary judgment, the defendant also claimed that Judge Devlin’s 1984 decision on the General Statutes § 12-119 claim precluded the § 12-119 claim in the second count of the plaintiffs complaint under principles of res judicata. The court, Ryan, J., agreed and granted summary judgment as to the second count of the plaintiffs complaint. That decision is not involved in this appeal.

       The court relied on Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 339-40, 597 A.2d 326 (1991).

       General Statutes § 12-63b provides in relevant part: “(a) The assessor or board of assessors in any town, when determining the present true and actual value of real property as provided in section 12-63, which property is used primarily for the purpose of producing rental income, exclusive of such property used solely for residential purposes, containing not more than six dwelling units and in which the owner resides, and with respect to which property there is insufficient data in such town based on current bona fide sales of comparable property which maybe considered in determining such value, shall determine such value on the basis of an appraisal which shall include to the extent applicable with respect to such property, consideration of each of the following methods of appraisal: (1) Replacement cost less depreciation, plus the market value of the land, (2) the gross income multiplier method as used for similar property and (3) capitalization of net income based on market rent for similar property.”

       General Statutes § 12-63 provides in relevant part: “The present true and actual value of . . . property shall be deemed by all assessors and boards of tax review to be the fair market value thereof and not its value at a forced or auction sale.”

       The appraiser analyzed three comparable apartment buildings in Greenwich—Virginia Court, Fairfield House, and Harborview—that were sold between February and May, 1981, about one and one-half years after the October, 1979 revaluation date. The sale price per room at these buildings was $11,307, $14,312 and $17,614, respectively. After adjusting these figures to reflect date of sale and other differences between the three buildings, the appraiser arrived at an adjusted price per room of $8904, $13,382, and $13,205, respectively. The appraiser decided to use $13,000 as the estimated value per room of the plaintiffs building. When this figure was multiplied by 187, which is the total number of rooms in the building, the overall value of the property rounded out to $2,400,000.

       See footnote 12.

       In Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 342, 597 A.2d 326 (1991), we noted that “[a]t least four methods exist for determining the fair market value of property for taxation purposes: (1) analysis of comparable sales; (2) capitalization of gross income; (3) capitalization of net income; and (4) reproduction cost less depreciation and obsolescence. Lomas & Nettleton Co. v. Waterbury, 122 Conn. 228, 230, 188 A. 433 (1936); see also General Statutes § 12-63b. Each of these is an approved method of ascertaining the actual value of real estate for purposes of taxation.” (Internal quotation marks omitted.)

       The defendant also argues that the trial court’s conclusion that the assessment “substantially overvalued” the plaintiff’s property “because it was based on an erroneous assumption that it was reasonably probable on October 1,1979, that the property would be converted to condominium units” was clearly erroneous, because the replacement cost approach “is not concerned with the form of ownership of the property.” As discussed above, neither the assessor nor the appraiser who valued the property in 1979 testified at the trial. The defendant’s appraiser at trial, Michael Gold, testified that he performed a cost of replacement analysis “reflecting the highest and best use for condominium conversion.” The trial court could reasonably have concluded that the Greenwich assessor, like Gold, had assumed condominium conversion in performing the cost of replacement analysis.

       The defendant does not argue that the owner's intent is irrelevant to the issue of reasonable probability of conversion, only that the court may not rely on it. Our decision in Stamford Apartments Co. v. Stamford, 203 Conn. 586, 525 A.2d 1327 (1987), affirmed a finding of no probability of conversion that was based, at least in part, on the owner’s intent not to convert. Id., 593 n.4; see also Laurel, Inc. v. Commissioner of Transportation, 180 Conn. 11, 44, 428 A.2d 789 (1980). Such consideration continues to remain relevant.

       The report submitted by the defendant’s appraiser, Michael Gold, estimated that the conversion costs would be $26 per square foot, for a total of more than $1.5 million.

       The plaintiff’s appraiser, Robert L. Levy, testified that by October, 1979, only one apartment building in central Greenwich had been converted to condominiums. He stated: “I don’t think one building necessarily makes it a market. Don’t forget, there is a difference between conversion and new construction. I differentiate the two. There was a market for new construction of condominiums. There appears to be a much more limited market for conversion of older buildings based upon the fact that only one had taken place.”

       The defendant’s appraiser, Michael Gold, testified that there was a shortage of rental apartments in the area in October, 1979.

       A witness for the plaintiff testified that in October, 1979, the plaintiff’s apartment building had a large population of senior citizens.

       See footnote 11.

         Had the court chosen to adopt a capitalization of income analysis (which is not the preferred method under General Statutes § 12-63b), it could have relied on the alternative analysis of the plaintiffs appraiser, Levy. Levy’s capitalization of income analysis yielded a fair market value of $1,500,000, which is $900,000 less than the value the court ultimately found.