author: Peters, C. J.

text:
    Gorra Realty, Inc. v. Melvin Jetmore, Jr., et al.
    (12433)
    Peters, C. J., Healey, Callahan and Tamborea, Js.

    Argued February 14
    decision released June 10, 1986

      Joseph E. Moukawsher, with whom, on the brief, was Elissa T. Wright, for the appellant (plaintiff).

      Hyman Wilensky, with whom, on the brief, was Myron Bell, for the appellees (defendants).

       The parties have agreed to have this case decided by four justices.

   Peters, C. J.

This case concerns the validity of municipal action, pursuant to the emergency provisions of the state building code, declaring parts of a building to be unsafe and prohibiting its further residential occupancy. The plaintiff, Gorra Realty, Inc., the owner of the Lena Building located at 153-165 State Street, New London, brought an action against the defendants Melvin Jetmore, the building official of the city of New London, and the city of New London, to enjoin the posting of the building and to recover compensatory damages, punitive damages and attorney’s fees. The trial court, after a hearing, rendered judgment for the defendants, and the plaintiff has appealed.

The trial court’s memorandum of decision contains the following finding of facts. The Lena Building is an historic building. It is listed in the National Register of Historic Places and located in the historic district of New London, adjacent to the New London municipal building on Captain’s Walk. It contains four commercial establishments as well—as twenty-three residential apartments.

Acting on the basis of official inspections and complaints from tenants, the defendant Jetmore, as building official of the defendant city, first posted the Lena Building as unsafe on May 19,1980. That posting was removed after a conference at which the plaintiff promised repairs. The plaintiff had sought renovation funds under the HUD 312 program but such funds proved to be unavailable. Thereafter, on July 7, 1981, at a meeting held in the city manager’s office, the plaintiff was notified that the Lena Building would be posted again. After a dispute about further inspections by the building official’s office, the residential part of the building was posted as unsafe on July 27, 1981.

In posting the Lena Building on July 27, 1981, the building official purported to act pursuant to § 125.0 of the Connecticut state building code, which permits emergency orders for the vacating of unsafe buildings. On that date, the Lena Building, as a whole, was structurally sound. It was not in actual and immediate danger of collapse or failure and no lives were in danger therefrom. The building official had previously issued abatement orders concerning violations of the city housing, electrical and fire safety codes, but he did not claim that these violations rendered the building as a whole structurally unsafe. Despite the absence of present structural danger to the building as a whole, the building official maintained that emergency posting was appropriate because the condition of stairs and ceilings in the Lena Building indicated that parts of the structure were in danger of collapse.

Two days after the posting, the plaintiff sought and obtained a temporary injunction for the removal of the placards prohibiting occupancy of the Lena Building. The injunction remained in effect until the conclusion of the proceedings in the trial court. During that time, the city of New London through its welfare department housed thirty-two persons in the building. No tenants were shown to have vacated the premises because of the posting, and the plaintiff suffered no loss of rental thereby. The plaintiffs building was treated no differently than any other building situated in the historic district of the city of New London.

In its pleadings, the plaintiff sought injunctive and monetary relief, alleging violations of the federal and the state constitutions and of 42 U.S.C. § 1983. The trial court found all the issues for the defendants.

With respect to the plaintiffs claimed right to an injunction, the trial court found that the plaintiff had an adequate remedy at law either under § 126 of the state building code or under § 122 of the New London housing code. In addition, the court determined that injunctive relief was unwarranted because the plaintiff had no due process right to notice or hearing preceding an emergency posting. Finally, the court concluded that the building official’s decision to post the building was warranted because there were indications that portions of the structure were in danger of collapse.

With respect to the plaintiff’s claimed right to common law compensatory damages, the trial court found that the plaintiff had failed to prove that the posting had caused any financial loss to the plaintiff. Since the building was never vacated, its short-lived posting did not cause the plaintiff to lose rental income.

With respect to the plaintiff’s claim for damages under 42 U.S.C. § 1983, the trial court found that the plaintiffs constitutional rights had not been violated. The court reiterated that there was no due process right to a hearing prior to an emergency posting and concluded that emergency posting did not constitute a taking without just compensation. Finally, the court found that the plaintiff had failed to prove intentional, arbitrary, discriminatory or harassing conduct on the part of the defendant Jetmore. The court specifically found that the building official’s insistence on reasonable inspections of the Lena Building was justified by virtue of his statutory responsibility for the enforcement of the standards promulgated by the building and housing codes.

On appeal, the plaintiff claims that the trial court erred: (1) in finding that the plaintiff had an adequate remedy at law; (2) in concluding that there was credible evidence to support the defendant Jetmore’s decision to post the building; (8) in finding that it was proper to post the plaintiff’s building without prior notice and hearing when the building as a whole was structurally sound; (4) in declining to find an exemption from compliance with the building code for the plaintiff’s building, either as a prior lav/ful existing use or because of its status as an historic building; and (5) in various evidentiary rulings. We find no reversible error.

I

The first issue on appeal relates to the propriety of the trial court’s ruling that the availability of administrative remedies precluded the plaintiff’s access to injunctive relief. The plaintiff maintains that neither the state building code nor the New London municipal housing code affords him an adequate remedy at law. We agree.

The trial court was of the opinion that § 126 of the state building code (Rev. to 1971) gave the plaintiff an administrative remedy through its provision for the appointment of a “board of survey.” In this conclusion, the trial court was in error, for two reasons. First, it is doubtful that this section was applicable because it relates only to a building owner “who has been served with an unsafe order and notice,” a procedure not followed in this case. Second, the section expressly excludes “cases of emergency,” impliedly cases governed by § 125, from the ambit of the “board of survey.” It is entirely plausible that emergency orders should be immediately effective absent judicial intervention in the form of an injunction.

In the alternative, the trial court found that the plaintiff might have invoked § 122 of the New London housing code, which provides for a hearing before the city’s code enforcement committee. This finding cannot be sustained because the appeal procedure in § 122 is limited to notices “issued in connection with the enforcement of any provision of this ordinance.” “[TJhis ordinance” is the housing code, which does not purport to encompass enforcement of the state building code. See New London Housing Code (Rev. to 1971) §§ 101, 102. Although legislative bodies may authorize overlapping and consistent enforcement of building code and housing code violations; see Dukes v. Durante, 192 Conn. 207, 215, 471 A.2d 1368 (1984); Bencivenga v. Milford, 183 Conn. 168, 172-73, 438 A.2d 1174 (1981); there is nothing in the present record to indicate that New London has chosen to do so.

II

The trial court's denial of the plaintiff's claim for injunctive relief was not premised solely on the availability of administrative remedies. The trial court found that the action taken by the defendants was permissible because it comported both with statutory authorization for emergency measures and constitutional entitlements to due process and equal protection. These are the matters addressed in the plaintiffs second and third claims of error, neither of which we find persuasive.

A

The plaintiff maintains that the defendant’s posting of its property was not warranted by § 125 of the state building code, entitled “Emergency Measures.” Section 125.1 authorizes such posting when “in the opinion of the building official, there is actual and immediate danger of failure or collapse of a building or structure or any part thereof which would endanger life . . . .” (Emphasis added.) The trial court acknowledged that the evidence at trial “was in substantial conflict, especially as to the existence and extent of the claimed defective conditions of the Lena Building.” The court found that, although the building as a whole was structurally sound, “the credible evidence supports Jetmore’s decision to post the building because there were indications that portions of the structure were in danger of collapse.” The plaintiff argues that this finding of fact was clearly erroneous. We disagree.

In reviewing a trial court’s finding of fact to determine whether it is supported by the evidence; Practice Book § 3060D; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); we operate under established constraints. “It is the province of the trier of fact to weigh the evidence presented and determine the credibility and effect to be given the evidence. See Hally v. Hospital of St. Raphael, 162 Conn. 352, 359, 294 A.2d 305 (1972). On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled. State v. Avcollie, 178 Conn. 450, 461, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980); Hally v. Hospital of St. Raphael, supra; Busker v. United Illuminating Co., [156 Conn. 456, 458, 242 A.2d 708 (1968)].” Swift & Co. v. Rexton, 187 Conn. 540, 543, 447 A.2d 9 (1982); Bieluch v. Bieluch, 199 Conn. 550, 556, 509 A.2d 8 (1986).

The evidence upon which the court relied consisted of testimony reporting substantial defects in stairways, ceilings and paint. Of these the most serious was evidence that the front stairway was being supported by a temporary metal lally column, that the front and rear staircases were not level, and that the staircases were pulling away from the wall. In addition, there was evidence that some of the ceilings were in danger of falling.* The plaintiff did not deny that these conditions existed, but adduced expert testimony that none of these conditions made the building unsafe. Further, the plaintiff complains that the trial court did not elaborate its finding that portions of the Lena Building were in danger of collapse and did not expressly reconcile this finding with its earlier finding that the building as a whole was structurally sound. That complaint is, however, addressed to the wrong forum. The plaintiff could have asked the trial court for further articulation of the basis for its decision. Practice Book § 3082. Viewing the evidence in the light most favorable to supporting the finding of the trial court, and mindful that it was the plaintiff who bore the burden of proof to establish that its rights had been violated, we cannot find that the trial court clearly erred in determining that the building official could reasonably have believed that parts of the Lena building were in danger of collapse. The trial court was not bound by the opinion expressed by the plaintiffs experts. Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983); Ferri v. Pyramid Construction Co., 186 Conn. 682, 690, 443 A.2d 478 (1982); Colonial Finance Co. v. Brodsky, 140 Conn. 391, 394-95,100 A.2d 568 (1953). The plaintiff has nowhere argued that the building code requires the building official to have more than a reasonable opinion that emergency measures are required because existing conditions “in any part [of a building] . . . would endanger life.” Connecticut State Building Code (Rev. to 1971) § 125.0.

B

In addition to challenging the substantive basis of the defendants’ action, the plaintiff also maintains that the trial court erroneously concluded that the plaintiff had not been deprived of its constitutional rights under the federal and the state constitutions. The plaintiff’s constitutional claim has two components. The plaintiff alleges that, even under the emergency provisions of § 125 of the state building code, it had a due process right to prior notice, hearing and an opportunity to respond to claimed violations, in advance of the posting of its property. Furthermore, the plaintiff alleges that it had a right to equal protection of the laws that was violated because the posting of its property was arbitrary, capricious and in retaliation for the refusal of the plaintiff to permit the defendants to inspect its premises. We agree with the trial court that the plaintiff failed to establish any constitutional violation.

The plaintiff’s due process claim founders on the well established constitutional principle permitting summary administrative action in situations of emergency. Hodel v. Virginia Surface Mining & Reclamation Assn., 452 U.S. 264, 299-301, 101 S. Ct. 2352, 69 L. Ed. 2d 1 (1981); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 677-80, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974). Our conclusion, supra, upholding the trial court’s finding that the defendants justifiably invoked § 125 of the building code, places this case within the ambit of these precedents. In these circumstances, the plaintiff’s due process rights are adequately protected by its access to judicial relief. See Connecticut Light & Power Co. v. Norwalk, 179 Conn. 111, 119-20, 425 A.2d 576 (1979). In addition, it is noteworthy that the plaintiff in fact had ample warning that its building would be posted, both because of the posting that occurred in 1980 and because of the conference held on July 7, 1981.

The plaintiffs equal protection claim stands on a somewhat different footing because it rests on the factual proposition that the defendants acted arbitrarily, discriminatorily and vindictively in posting the plaintiffs property. The trial court found that these claims were not supported by the evidence: “While the relationship between the parties has been strained and adversarial, the plaintiff has not proven that defendant Jetmore acted improperly or outside his scope of authority. As building official, defendant Jetmore has reasonable rights of inspection and is required to uphold the standards promulgated by the codes. See New London Housing Code §§ 111, 114; Connecticut State Building Code (Rev. to 1971) § 108. Jetmore’s actions were within the scope of these appointed duties.” The plaintiff has not appealed the trial court’s dismissal of its claim that the defendants’ inspections constituted an unreasonable search and seizure. Nonetheless, it maintains that the trial court clearly erred in its finding that the plaintiffs property had not been singled out for adverse treatment.

Since we have determined that the defendants had the authority, in the light of the conditions prevailing at the Lena Building, to invoke emergency posting measures, the plaintiffs claim comes down to an assertion that the trial court erred in concluding that the plaintiffs had failed to prove that this authority was exercised in bad faith. Questions going to intent and motive, which require the drawing of inferences from proven facts, depend for their resolution upon an assessment of demeanor and credibility that is peculiarly within the province of the trier of fact. Solomon v. Aberman, 196 Conn. 359, 378-79, 493 A.2d 193 (1985); Dadio v. Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937). Our review of the evidence persuades us that the trial court did not clearly err in finding as it did. The plaintiff was afforded repeated opportunities to make the repairs that would have avoided the posting of its building. The plaintiff does not claim to have presented evidence indicating that other buildings, in like condition, were not posted.

The issuance of an injunction is always discretionary with the trial court, even when irreparable harm has been shown. See, e.g., Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 440-41, 440 A.2d 935 (1981); Hartford v. American Arbitration Assn., 174 Conn. 472, 477-78, 391 A.2d 137 (1978). At the trial, it was the plaintiffs burden to prove its entitlement to equitable relief. On appeal, it was the plaintiffs burden to establish so manifest an infringement of its statutory or constitutional rights as to demonstrate an abuse of the trial court’s discretion in its denial of the plaintiff’s request for a permanent injunction. The plaintiff has failed to do so.

C

The resolution of the plaintiff’s claims with regard to constitutional rights to injunctive relief is largely dis-positive of its claimed rights to damages under 42 U.S.C. § 1983. A § 1983 action requires a finding that a person has suffered a “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” because of the conduct of a person acting “under color of any statute, ordinance, regulation, custom, or usage of any State or Territory.” We are unpersuaded that the plaintiff’s claims rise to this level. See Briscoe v. LaHue, 460 U.S. 325, 329, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983); Powers v. Coe, 728 F.2d 97, 104-107 (2d Cir. 1984), after remand, Powers v. McGuigan, 769 F.2d 72 (2d Cir. 1985); Morrison v. Washington County, Alabama, 700 F.2d 678, 682 (11th Cir. 1983); Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204, 1206 (7th Cir. 1980).

The specific conduct to which the plaintiff points our attention does not establish a constitutional deprivation. Although the plaintiff now complains that the defendants failed to file a certified inspection report, which it alleges to have been a statutory prerequisite to an emergency posting, the plaintiff failed to obtain any ruling from the trial court on the significance of this procedural default. The plaintiff would have us draw adverse inferences from delays in the proceedings below, but we lack any factual findings concerning the reasons for delay in bringing this case to trial or for the defendants’ extended acquiescence in the temporary injunction obtained by the plaintiff. We note, parenthetically, that such acquiescence can only have been protective of the plaintiff’s interests and thus hardly demonstrates improper animus on the part of the defendants. Finally, the continued use of the Lena Building for welfare clients has not been linked in any factual fashion to the challenged conduct of posting the building and is in itself probative of no more than the regrettable substandard living accommodations in which people on welfare are only too often housed. See Dukes v. Durante, supra. What remains is a question of discriminatory intent, which the trial court found had not been proven.

Ill

The plaintiff’s fourth claim of error urges us to hold that its property was improperly posted because conditions at the Lena Building are not governed by the provisions of the state building code. The plaintiff relies on two alternate grounds: the exemption of buildings that were lawfully existing on October 1, 1945, under § 120.3 (Rev. to 1971) of the state building code, and the exemption of historic structures, under General Statutes § 29-259. We agree with the trial court’s rejection of these claims of exemption.

With respect to the claim of lawful pre-existing use, the trial court agreed factually with the plaintiff that the Lena Building pre-dated the adoption of the state building code. The court also agreed that there had been no change of use or alteration to the Lena Building within the provisions of § 106.0 of the state building code.17 The plaintiff was therefore eligible to invoke the grandfather clause contained in § 120.3.

The provisions of § 120.3 protect a lawfully existing building from building code orders that might otherwise “require . . . the alteration ... or prevent the continuance of the use and occupancy of a building lawfully existing on October 1, 1945, except as may be necessary for the safety of life or property.” (Emphasis added.) We have, earlier in this opinion, upheld the trial court’s finding that the condition of the Lena Building’s stairways, ceilings, plumbing, and painting gave indication “that portions of the structure were in danger of collapse.” This finding is sufficient to invoke the proviso in § 120.3 concerning “safety of life or property.” In the circumstances of this case, there is no exemption under § 120.3.

With respect to the claim arising out of the Lena Building’s classification as an historic structure, the trial court acknowledged that the building had been placed on appropriate registers of historic places. The court ruled, however, that such listings did not exempt its owner “from complying with the required building codes, except as the same may be modified by requirements to retain its historic significance.”

The legislature, in General Statutes § 29-259, has ordered that the state building code be revised to allow exemptions from the state building code for historic structures, classified as such in the state register of historic places. Nothing in the record indicates that such exemptions have as yet been incorporated into the building code. That lacuna is, however, irrelevant in this case. The statute itself excludes from the exemption anything that would “affect the safe design, use or construction of such property.” The trial court’s factual findings sufficiently implicate the safe use of the Lena Building to make the exemption inapplicable in the circumstances of this case.

IV

The plaintiff’s final claims of error relate to a number of evidentiary rulings by the trial court. These claims fall into two categories: rulings concerning proof of damages, and rulings concerning the application of the building code to existing buildings.

We need not discuss those evidentiary rulings that relate to proof of damages. Since we have concluded that the plaintiff has failed to prove any violation of its statutory or constitutional rights, the question of damages has become academic.

The remaining claim of error concerns the proffered expert testimony of Leo Belval, who became state building inspector at some time after the disputed posting in this case. He had previously been a local building official in Essex. His testimony was offered with regard to the applicability of the building code to existing buildings. The plaintiffs brief has made review of this claim difficult. In contravention of the requirements of Practice Book § 3060F (d) (3), the brief fails to recite the specific questions that are at issue, the grounds of the objection, the grounds on which the questions were claimed to have been admissible, or the basis for the trial court’s ruling. In the absence of plain error or of a manifest showing of injustice, we have repeatedly refused to review evidentiary rulings that are so inadequately briefed. Fogg v. Wakelee, 196 Conn. 287, 288 n.1, 492 A.2d 511 (1985); Acheson v. White, 195 Conn. 211, 217 n.7, 487 A.2d 197 (1985); State v. Fullwood, 194 Conn. 573, 582 n.6, 484 A.2d 435 (1984); State v. Vass, 191 Conn. 604, 621, 469 A.2d 767 (1983). Because the plaintiff’s allegations of error challenge only the trial court’s exercise of discretion with regard to the admissibility of expert testimony; McKiernan v. Caldor, Inc., 183 Conn. 164, 167-68, 438 A.2d 865 (1981); State v. Cosgrove, 181 Conn. 562, 588, 436 A.2d 33 (1980); enforcement of the Practice Book will cause no injustice and we therefore decline to consider these claims.

There is no error.

In this opinion the other justices concurred.

       The Connecticut State Basic Building Code was revised in 1981, effective September 1, 1981, shortly after the incidents at issue in this case occurred. In the revision, § 125.0 became § 124.0. Throughout this opinion, we will refer to the Connecticut State Building Code (Rev. to 1971) which was in effect at the times in question.

       Section 125.0 of the Connecticut State Building Code (Rev. to 1971) provides: “Section 125.0 Emergency Measures
      “125.1 Vacating Buildings: When, in the opinion of the building official, there is actual and immediate danger of failure or collapse of a building or structure or any part thereof which would endanger life, or when any structure or part of a structure has fallen and life is endangered by the occupation of the building, the building official is hereby authorized and empowered to order and require the inmates and occupants to vacate the same forthwith. He shall cause to be posted at each entrance to such building a notice reading as follows:
      ‘THIS BUILDING IS UNSAFE AND ITS USE OR OCCUPANCY HAS BEEN PROHIBITED BY THE BUILDING OFFICIAL’ and it shall be unlawful for any person to enter such building or structure except for the purpose of making the required repairs or of demolishing the same.
      “125.2 Temporary Safeguards: When, in the opinion of the building official, there is actual and immediate danger of collapse or failure of a building or structure or any part thereof which would endanger life, he shall cause the necessary work to be done to render such building or structure or part thereof temporarily safe, whether or not the legal procedure herein described has been instituted.
      “125.3 Closing Streets: When necessary for the public safety, the building official may temporarily close sidewalks, streets, buildings and structures and places adjacent to such unsafe buildings, and prohibit the same from being used.
      “125.4 Emergency Repairs: For the purposes of this section the building official shall employ the necessary labor and materials to perform the required work as expeditiously as possible.
      “125.5 Costs of Emergency Repairs: Costs incurred in the performance of emergency work shall be paid from the municipal treasury on certificate of the building official; and the legal authority of the municipality shall institute appropriate action against the owner of the premises where the unsafe building or structure was located for the recovery of such costs.”
      Under § 108 of the building code, the local building official is charged with enforcing the state building code. See footnote 13, infra.

       Inspections by employees of the building department revealed the following conditions in the building:
      “(a) The front stairway was being supported by a temporary metal Pally] column. It was not known how long the column had been there, why it was placed there or exactly the extent of support it provided;
      “(b) Both the front and rear staircases were not level and were listing to a substantial degree;
      “(c) The staircases were pulling away from the wall and were not securely fastened;
      “(d) Some ceilings and plaster in the hallways and apartments had fallen; some were cracked and sagging and in danger of falling;
      “(e) General deterioration and vandalism to some plumbing facilities caused water damage to ceilings causing them to fall in some apartments.
      “(f) Paint from walls and ceilings containing lead was peeling and falling.”

       Title 42 of the United States Code, § 1983 provides in pertinent part: “CIVIL ACTION for deprivation of RIGHTS. Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.’’

       Section 126 of the Connecticut State Building Code (Rev. to 1971) provides: “Section 126.0 Board of Survey
      “126.1 Application for Survey: The owner of a building or structure or his duly authorized representative who has been served with an unsafe order and notice to make such structure safe, secure or habitable or to take down and remove such structure shall have the right, except in cases of emergency, to demand the appointment of a board of survey if he deems such order to be unnecessary, improper or unreasonable. Such demand shall be in writing with a statement of the reasons therefor.
      “126.2 Constitution of Board of Survey: The board of survey shall consist of three persons, one of whom shall be the building official or an assistant designated by him; another shall be the owner or his legal representative, or a licensed professional engineer or architect, or a qualified builder designated by the owner; and the third shall be a licensed professional engineer or architect chosen jointly by the other two members or designated by a justice of the court of record in case of failure of agreement.”

       Section 122 of the New London Housing Code (Rev. to 1971) provides in pertinent part: “122.0 Appeals
      “Any person affected by any notice which has been issued in connection with the enforcement of any provision of this ordinance may request, and upon the payment of a ten dollar fee payable to the Treasurer of the City of New London, shall be granted a hearing on the matter before the Code Enforcement Committee created in section 115.0 of this ordinance; provided that such person shall file in the office of the Building Official a written petition requesting such hearing and setting forth a brief statement of the grounds thereof within 20 days after the day the notice was served. Upon receipt of such petition the Building Official shall notify said committee to set a time and place for such hearing and shall give the petitioner five days written notice thereof. At such hearing the petitioner shall be given the opportunity to be heard and to show why such notice should be modified, extended or withdrawn or a variance granted. The hearing shall be commenced not later than 60 days after the day on which the petition was filed. Provided that upon application of the petitioner the said committee may postpone the date of the hearing for a reasonable time beyond such 60 day period, if in its judgment the petitioner has submitted a good and sufficient reason for such postponement, but in no event shall said hearing be postponed longer than 60 days.”

       Sections 101.0 and 102.0 of the New London Housing Code (Rev. to 1971) provide: “101.0 Application of Building Code
      “Any alterations to buildings, or changes of use therein, which may be caused directly or indirectly by the enforcement of this code shall be done in accordance with applicable sections of the Building Code of New London.
      “102.0 Conflicts With Other Ordinances
      “Where a provision of this code is found to be in conflict with a provision of any zoning, building, fire, safety or health ordinance or code of New London existing on the effective date of this code, the provision which establishes the higher standard for the promotion and protection of the safety and health of the people shall prevail. In any case where a provision of this code is found to be in conflict with a provision of any other ordinance .or code of New London existing on the effective date of this code which establishes a lower standard for the promotion, and protection of the safety and health of the people, the provisions of this code shall prevail, and such other ordinances or codes are hereby declared to be repealed to the extent that they may be found in conflict with this code.”

       The plaintiff has not renewed on appeal his claim, raised at trial, that the posting of the Lena Building constituted an unconstitutional taking without compensation.

       “[Practice Book] Sec. 3060D. review by the supreme court “The supreme court may reverse or modify the decision of the trial court if it determines that the decision is clearly erroneous in view of the evidence and pleadings in the whole record.
      “If the supreme court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s decision.
      “It is the responsibility of the appellant to provide an adequate record for review.”

       There was also evidence that lead-based paint was peeling and falling from walls and ceilings, and that general deterioration of and vandalism to plumbing facilities had resulted in water damage to ceilings.

       “[Practice Book] Sec. 3082. rectification of appeal; articulation
      “Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be made in the first instance to the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may, either on its own motion or on a motion filed by any party, make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues or for the proper presentation of questions reserved; or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the appeal is ready to be assigned for hearing and only by leave of the supreme court thereafter. The action of the trial judge as regards such a correction or addition may be reviewed by the supreme court under Sec. 3108. Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based.
      “Corrections made before the record is printed shall be included in it. If the record has been printed, the chief justice may direct the chief clerk of the supreme court to make a supplemental printed record, to be printed and distributed in the same way as the original printed record, but in the absence of such a direction the chief clerk of the supreme court shall furnish the justices of the supreme court typewritten copies.”

       Section 111.0 of the New London Housing Code (Rev. to 1971) provides: “111.0 Enforcement Officer.
      “It shall be the duty and responsibility of the Building Official of New London to enforce the provisions of the Housing Code as herein provided.”
      Section 114.0 of the New London Housing Code (Rev. to 1971) provides: “114.0 Inspections
      “The Building Official is hereby authorized and directed to make inspections to determine the condition of dwellings, dwelling units, rooming units, and premises located within the City of New London, in order that he may perform his duty of safeguarding the health and safety of the occupants of dwellings and of the general public. For the purpose of making such inspections the Building Official is hereby authorized to enter, examine, and survey at all reasonable times all dwellings, dwelling units, rooming units, and premises. The owner or occupant of every dwelling, dwelling unit, and rooming unit, or the person in charge thereof, shall give the Building Official free access to such dwelling, dwelling unit, or rooming unit and its premises, at all times for the purpose of such inspection, examination, and survey. Each occupant of a dwelling or dwelling unit shall give the owner thereof, or his agent or employee, access to any part of such dwelling or dwelling unit, or its premises, at all reasonable times for the purpose of making such repairs and/or alterations as are necessary to effect compliance with the provisions of this ordinance or any lawful order issued pursuant to the provisions of this ordinance.”
      Section 108.0 of the Connecticut State Building Code (Rev. to 1971) provides: “Section 108.0 Duties and Powers of Building Official
      “The building official shall enforce all the provisions of the Basic Code and all further rules and regulations adopted and promulgated thereunder relative to the mode or manner of construction and the materials to be used in the erection, addition to, alteration, repair, removal, demolition, installation of service equipment, and the location, use, occupancy and maintenance of all buildings and structures, except as may otherwise be specifically provided for by statutory requirements or as herein provided.”

       The only allusion to search and seizure in the plaintiff’s brief raises the matter only as part of the plaintiffs overall claim of discriminatory action by the defendants.
      The plaintiff's amended statement of issues contains no reference to the legality of the defendants’ inspections.

       Section 120.3 of the Connecticut State Building Code (Rev. to 1971) provides:
      “120.3 Existing Buildings or Structures: Upon written request from the owner of an existing building or structure, the building official shall issue a certificate of use and occupancy, provided there are no violations of law or orders of the building official pending, and it is established after inspection and investigation that the alleged use of the building or structure has heretofore existed. Nothing contained herein shall require the removal, alteration or abandonment of, or prevent the continuance of the use and occupancy of, a building lawfully existing on October 1, 1945, except as may be necessary for the safety of life or property.”

       General Statutes (Rev. to 1985) § 29-259 was transferred from § 19-395t in 1983. At the time in question, this statute provided: “Sec. 19-395t. exemption FROM CODE FOR URBAN HOMESTEADING PROPERTY AND HISTORIC structures, (a) The state building inspector and the state building code standards committee shall revise the state building code to allow exemptions from the state building code for property acquired by an urban homesteading agency, pursuant to section 8-169r, and transferred to a qualified applicant pursuant to section 8-169s, and for historic structures, as defined in section 10-321a, which have been classified as such in the state register of historic places, to encourage participation in urban homesteading programs and the restoration and preservation of historic places; provided such exemptions shall not affect the safe design, use or construction of such property.
      “(b) Any person, agent of the state, municipality or any other political subdivision of the state may apply to the state building inspector and the state building code standards committee to modify or set aside standards for historic buildings incorporated in the state building code. The state building inspector shall, within seven days of receipt of any such application, forward a copy of such application to the director of advocacy for the handicapped and developmentally disabled and to the director of the Connecticut historical commission. Each of said directors shall, within thirty days of receipt, review such application and make such written recommendations as he deems appropriate to the state building inspector and the state building code standards committee concerning the disposition of such application. The recommendations of such directors shall be part of the records and documents of the state building inspector concerning such application. The state building inspector and the state building code standards committee shall consider such written recommendations when acting upon such application and may set aside or modify an individual standard or specification when they jointly determine that it would not be feasible or would unreasonably complicate the construction, alteration or repair in question and where alternative methods and materials have been proposed to maintain certain features. Such determination shall be in writing, shall state the reasons therefor and if it sets aside any such standard of specification, a copy of such determination shall be sent to each of said directors.
      “(c) Regulations or codes made or amended by authority of this section shall, after a public hearing called for that purpose by the state building inspector not less than thirty days before the date of such hearing, be filed by the state building inspector with the secretary of the state in accordanee with the provisions of chapter 54 and he shall thereafter make copies available to persons having an interest therein.
      “(d) If any regulation made or amended by authority of this section is set aside by a court, such ruling shall affect only the regulation, standard or specification included in the ruling and all other regulations, standards or specifications shall remain in effect.”
      17 Section 106.0 of the Connecticut State Building Code (Rev. to 1971) provides: “Section 106.0 Existing Buildings “Except as provided in this section, existing buildings when altered or repaired as herein specified shall be made to conform to the full requirements of the Basic Code for new buildings:
      “106.1 Alterations Exceeding Fifty Percent: If alterations or repairs are made within any period of twelve (12) months, costing in excess of fifty (50) per cent of the physical value of the building; or “106.2 Damages Exceeding Fifty Per Cent: If the building is damaged by fire or any other cause to an extent in excess of fifty (50) per cent of the physical value of the building before the damage was incurred.
      “106.3 Alterations Under Fifty Per Cent: If the cost of alterations or repairs described herein is between twenty-five (25) and fifty (50) per cent of the physical value of the building, the building official shall determine to what degree the portions so altered or repaired shall be made to conform to the requirements for the new buildings:
      “106.4 Alterations Under Twenty-five Per Cent: If the cost of alterations or repairs described herein is twenty-five (25) per cent or less of the physical value of the building, the building official shall permit the restoration of the building to its condition previous to damage or deterioration with the same kind of materials as those of which the building was constructed; provided that such construction does not endanger the general safety and public welfare and complies with the provisions of section 928.1 in respect to existing roofs.
      “106.5 Increase in Size: If the building is increased in floor area or number of stories, the entire building shall be made to conform with the requirements of the Basic Code in respect to means of egress, fire safety, light and ventilation.
      “106.6 Part Change in Use: If a portion of the building is changed in occupancy or to a new use group and that portion is separated from the remainder of the building with the required vertical and horizontal fire divisions complying with the fire grading table 16, then the construction involved in the change shall be made to conform to the requirements for the new use and occupancy and the existing portion shall be made to comply with the exitway requirements of the Basic Code.
      “106.7 Physical Value: In applying the provisions of this section, the physical value of the building shall be determined by the building official and be based on current replacement costs.”

       Practice Book § 3060F (d) (3) provides: “Sec. 3060F. appellant’s BRIEF; FORM
      “The appellant’s brief shall contain the following . . .
      “(d) The argument, divided under appropriate headings into as many parts as there are points to be presented, with appropriate references to the statement of facts or to the page or pages of the record or transcript. . . .
      “(3) When error is claimed in any other ruling in a court or jury case, the brief or appendix shall include, where appropriate: the pertinent motion or pleading, if it does not appear in the printed record; the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling; and any exception. When the basis of the ruling cannot be understood without a knowledge of the evidence or proceeding which preceded or followed the ruling, a brief narrative or verbatim statement of the evidence or proceeding should be made. A verbatim excerpt from the transcript should not be used if a narrative statement will suffice. When the same ruling is repeated, the brief should contain only a single ruling unless the other rulings are further illustrative of the rule which determined the action of the trial court or establish the materiality or harmfulness of the error claimed. The statement of rulings in the brief shall include appropriate references to the page or pages of the transcript.”


source: Caselaw Access Project

license: Public Domain

text:
    William A. Russell v. Dean Witter Reynolds, Inc., et al.
    (12557)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.

      Argued April 1
    decision released June 10, 1986

      SharonS. Tisher, with whom was Kim M. Cooke, for the appellants (defendants).

      David R. Schaefer, with whom were Mary-Michelle U. Hirschoff and, on the brief, Robert J. Lofgren and Marc R. Cohen, for the appellee (plaintiff).

      Joseph I. Lieberman, attorney general, and Robert M. Langer and Neil G. Fishman, assistant attorneys general, filed a brief as amici curiae.
   Peters, C. J.

The principal issue on appeal in this case is whether the Connecticut Unfair Trade Practices Act applies to the purchase and sale of securities. The plaintiff, William A. Russell, brought suit against the defendants, James J. Reid and Dean Witter Reynolds, Inc. (Dean Witter), to recover for losses he sustained as a result of a securities transaction that the defendants had arranged. The plaintiff alleged that the defendants had broken their contract with the plaintiff, made fraudulent misrepresentations, handled the plaintiffs account negligently, and violated both the Connecticut Uniform Securities Act (CUSA); General Statutes §§ 36-470 through 36-502; and the Connecticut Unfair Trade Practices Act (CUTPA). General Statutes §§ 42-110a through 42-110q. A jury found for the plaintiff on all but the fraud count and the court held the defendants liable to the plaintiff for $18,120.09 in compensatory damages, $42,294.75 in attorney’s fees, and $34,240.18 in punitive damages. The defendants appeal from this judgment.

The jury could reasonably have found the following facts. On April 8, 1981, the plaintiff authorized his stockbroker Reid, an employee of Dean Witter, to purchase for his cash account 1000 shares of stock in Basic Earth Science Systems, Inc. (BESS). Reid proceeded to buy 2000, rather than 1000, shares of BESS stock in a margin account on the plaintiffs behalf. When the plaintiff learned of the size of the transaction, he immediately called Reid and objected. Reid told him that Dean Witter had made a clerical error in recording the transaction and that he would take care of the problem. Several days later, after receiving written confirmation from Dean Witter of a purchase of 2000 shares, the plaintiff again complained to Reid. Reid reassured the plaintiff that a “computer foul up” had caused the discrepancy and that he had purchased only the authorized number of shares. In early May, 1981, Dean Witter sent the plaintiff a statement of his account that indicated that he had purchased 2000 shares of stock in BESS and that he owed Dean Witter interest on the money Dean Witter had used to buy the stock. When the plaintiff confronted Reid with this document, Reid acknowledged that he had indeed purchased 2000 shares for the plaintiff and advised the plaintiff to keep the shares because they would be profitable. The plaintiff called Reid several more times during the next few days to complain further about the transaction. Finally, on May 14, 1981, the plaintiff directed Reid to sell enough of the BESS stock by May 29 to pay for the unauthorized shares. Reid agreed to follow this instruction, but did not carry it out. In early June of 1981, the price of BESS stock dropped sharply. The plaintiff was forced to sell at a substantial loss over half of the shares in BESS that Reid had purchased for him in the disputed transaction.

On appeal, the defendants claim that the trial court erred in: (1) holding that CUTPA applies to the purchase and sale of securities; (2) instructing the jury improperly on several points of law; (8) admitting the testimony of other investors who had dealt with Reid; and (4) awarding the plaintiff full attorney’s fees. We find error in part.

I

The defendants initially claim that the trial court erred in holding them liable to the plaintiff under CUTPA because CUTPA does not apply to the purchase and sale of securities. We agree.

The Connecticut statute that expressly governs the purchase and sale of securities is CUSA, which in General Statutes § 36-498 provides a private remedy for a buyer who has suffered injury because of allegedly deceptive sales practices by someone who offers or sells a security. That statute affords the defrauded buyer the right to recover restitutionary damages, interest and attorney’s fees. We have not previously had occasion to consider whether an aggrieved buyer of securities may also invoke the provisions of CUTPA to afford him additional remedies, principally in the form of punitive damages. General Statutes § 42-110g.

The trial court concluded that the plaintiff had stated a cause of action under CUTPA because of the broad sweep of CUTPA’s coverage of unfair or deceptive acts or practices “in the conduct of any trade or commerce.” General Statutes § 42-110b (a). The court noted that none of CUTPA’s express exemptions referred to security transactions; see General Statutes § 42-110c; and observed that CUTPA, as a remedial statute, should be generously construed to protect the victims of unfair or deceptive trade practices. General Statutes § 42-110b (d); Hinchliffe v. American Motors Corporation, 184 Conn. 607, 615, 440 A.2d 810 (1981). In further support of the trial court’s position, the plaintiff reminds us that CUSA itself does not purport to preempt “other rights [and remedies] that may exist at law or in equity.” General Statutes § 36-498. Although these contentions are certainly plausible, and the question of statutory construction is a close one, we have reached the opposite conclusion.

The crucial question is not whether CUSA transactions are exempt from CUTPA but whether CUTPA itself can fairly be interpreted to encompass such transactions in the first instance. We recognize the sweeping nature of the reference in § 42-110b (a) to “deceptive acts or practices in the conduct of any trade or commerce” (emphasis added) and the breadth of the definition of “trade” and “commerce” in § 42-110a (4). This statutory language must, however, be reconciled with the equally unconditional statutory language that, in construing § 42-110b (a), “the commissioner and the courts of this state shall be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5 (a) (1) of the Federal Trade Commission Act (15 U.S.C. 45 (a) (1)), as from time to time amended.” General Statutes § 42-110b (b).

This court has repeatedly held, in accordance with this statutory instruction, that Federal Trade Commission (FTC) rulings and cases under the Federal Trade Commission Act (FTC Act) serve as a lodestar for interpretation of the open-ended language of CUTPA. McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, 567-68, 473 A.2d 1185 (1984); Conaway v. Prestia, 191 Conn. 484, 492-93, 464 A.2d 847 (1983); Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 533-34, 461 A.2d 1369 (1983); Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, 190 Conn. 510, 517-18, 461 A.2d 938 (1983); Hinchliffe v. American Motors Corporation, supra. In Heslin v. Connecticut Law Clinic of Trantolo & Trantolo, supra, 518-19, in determining the applicability of CUTPA to the provision of legal services, we undertook a searching inquiry of the federal cases and of the statements of the FTC before concluding that CUTPA applied to attorneys. In Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., supra, 534-36, 539-40, we looked to the standards developed by the FTC for our determination of what constitutes a cognizable unfair or deceptive practice under CUTPA.

Our recent decision in Mead v. Burns, 199 Conn. 651, 509 A.2d 11 (1986), does not signal a departure from this interpretative principle. We there concluded that CUTPA covered deceptive practices in the insurance industry although the FTC does not presently regulate such conduct. In reaching that conclusion, we relied upon federal legislation, the McCarran-Ferguson Act, 15 U.S.C. § 1012 (b), which recognizes that federal regulation of insurance by the FTC would be appropriate “to the extent that such business is not regulated by State Law.” See also United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440 (1944). Since federal law has thus authoritatively informed us that insurance is presumptively within the ambit of the FTC, we were led to a similar conclusion about the coverage of CUTPA.

Application of the FTC lodestar to this case leads us to conclude that CUTPA does not apply to deceptive practices in the purchase and sale of securities. The FTC has never undertaken to adjudicate deceptive conduct in the sale and purchase of securities, presumably because such transactions fall under the comprehensive regulatory umbrella of the Securities and Exchange Commission. See Securities Act of 1933, 15 U.S.C. § 77a et seq.; Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq. Despite the breadth of the language of § 5 (a) (l) of the FTC Act, which, read literally, would include security transactions, the plaintiff has cited no case in which the FTC or a federal court has applied the FTC Act to a securities transaction and we have found none. Indeed, in an agency statement listing the types of transactions and conduct to which the FTC Act applies, the FTC makes no mention of securities. 3 Trade Reg. Rptr. (CCH) f 9551, pp. 17,021-22. Consequently, in this case, taking our guidance from the FTC, we must construe CUTPA as not purporting to cover transactions for the purchase and sale of securities.

This conclusion finds support in the totality of the legislative and administrative patterns regulating deceptive practices in this state. In contradistinction to the statutes governing unfair insurance practices; see Mead v. Burns, supra, 656-57; CUSA unequivocally provides a private cause of action for injuries caused by deceptive purchases and sales of securities. General Statutes § 36-498. Although this uniform statute was not enacted in Connecticut until 1977, four years after the passage of CUTPA in 1973, its predecessors in Connecticut law had established the existence of a private cause of action in Connecticut; General Statutes (Sup. 1969) §§ 36-338 and 36-346; well before the enactment of CUTPA. Consistently, the commissioner of consumer protection, who bears administrative responsibility for the enforcement of CUTPA, has never sought to enforce CUTPA in the context of a security transaction. The commissioner has promulgated no regulation pertaining to the deceptive sale of securities; Regs., Conn. State Agencies §§ 42-110b-l through 42-110b-28; and, to the best of our knowledge, has obtained not one order or injunction relating thereto. This history demonstrates that, following the lead of the FTC, Connecticut has long separated regulation of the purchase and sale of securities from the regulation of unfair trade practices in other industries.

Furthermore, our conclusion is reenforced by the holdings of courts in other jurisdictions. A similar decision by the Massachusetts Supreme Judicial Court in Cabot Corporation v. Baddour, 394 Mass. 720, 721-22, 477 N.E.2d 399 (1985), is particularly persuasive because the governing statutes in Massachusetts are virtually identical to our own and because that court had previously determined, in Dodd v. Commercial Union Ins. Co., 373 Mass. 72, 79, 365 N.E.2d 802 (1977), as have we, in Mead v. Burns, supra, that the state unfair trade practices act covered unfair insurance practices. The Massachusetts court noted that when Massachusetts had applied its unfair trade practices act to transactions not expressly subject to the FTC, it had done so in areas that had historically been subject to state rather than to federal regulation. It observed that federal law has largely superseded state regulation of securities transactions for the last fifty years or more. Like this court, it observed that state legislative history gave evidence that the private cause of action under the state unfair trade practices act was not intended to supersede the private cause of action provided in the state securities act. Baddour and its reasoning is on all fours with this case.

The decisions interpreting unfair trade practices in six other states likewise exclude securities transactions from the ambit of their unfair trade practices acts. See Swenson v. Engelstad, 626 F.2d 421, 428 (5th Cir. 1980) (applying Texas law); In re Cantanella v. E.F. Hutton & Co. Securities Litigation, 583 F. Sup. 1388, 1443 (E.D. Pa. 1984); Taylor v. Bear Stearns & Co., 572 F. Sup. 667, 675 (N.D. Ga. 1983); Skinner v. E.F. Hutton & Co., 314 N.C. 267, 274-75, 333 S.E.2d 236 (1985); State v. Piedmont Funding Corporation, 119 R.I. 695, 700, 382 A.2d 819 (1978); State ex rel. McLeod v. Rhoades, 275 S.C. 104, 106-107, 267 S.E.2d 539 (1980); contra State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 667 P.2d 1304 (1983); Kittilson v. Ford, 23 Wash. App. 402, 595 P.2d 944 (1979), aff'd, 93 Wash. 2d 223, 608 P.2d 264 (1980). Although the underlying statutes in these cases contain provisions that concededly distinguish them from CUTPA, the ultimate holdings of the majority of the cases are consistent with the conclusion we reach today.

Consequently, the trial court’s award of damages to the plaintiff was in error insofar as it allowed the plaintiff to recover compensatory damages, attorney’s fees, and punitive damages under CUTPA. In point of fact, however, many of these items of damages were equally recoverable pursuant to the plaintiff’s cause of action under CUSA. This duplication serves to validate the plaintiff’s recovery of compensatory damages and of attorney’s fees, and leaves reversible error only in his recovery of punitive damages, which must be set aside.

II

The defendants’ second claim of error involves a three-fold attack on the trial court’s instructions to the jury. The defendants contend that the court: (1) inaccurately charged the jury on the issue of ratification; (2) erroneously refused to instruct the jury on the statute of frauds defense; and (3) improperly instructed the jury that it might draw an adverse inference from the defendants’ failure to produce a particular witness.

A

At trial, as a defense to the plaintiff’s contract claim, the defendants argued that, even if the plaintiff had not originally authorized Reid’s acquisition of 2000 shares of BESS stock, the plaintiff had ratified the purchase through his acquiescence. After receiving the trial court’s instructions on the definition of ratification, the jury rejected this defense and found that the defendants had broken their contract with the plaintiff. On appeal, the defendants claim that the trial court erred in instructing the jurors that they could find that the plaintiff had ratified the transaction only if they first found that the plaintiff had had the opportunity to repudiate the purchase.

We find no error because the trial court’s instructions comported with the meaning of ratification. We have frequently held that: “Ratification is defined as ‘the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account.’ Restatement (Second), 1 Agency § 82 (1958). Ratification requires ‘acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances.’ (Emphasis added.) Ansonia v. Cooper, 64 Conn. 536, 544, 30 A. 760 (1894); see Cohen v. Holloways’, Inc., 158 Conn. 395, 411, 260 A.2d 573 (1969); Bond Rubber Corporation v. Oates Bros., Inc., 136 Conn. 248, 251, 70 A.2d 115 (1949).” Botticello v. Stefanovicz, 177 Conn. 22, 28, 411 A.2d 16 (1979).

The defendants do not challenge the adequacy of the trial court’s instruction on any of the three elements of ratification. Instead, they contend that the trial court, in effect, added a fourth prong to the definition of ratification by including in the charge the following two sentences: “Before the plaintiff can be held to have ratified acts of the defendants which you find to have initially been unauthorized [by] the plaintiff, it is essential that [the plaintiff] had the privilege and opportunity of repudiating the unauthorized transaction if he did not choose to ratify it. Thus, you must find that [the plaintiff] was given an opportunity to repudiate any transaction you find was unauthorized without any cost to [the plaintiff] or damage to [the plaintiff] as a result of the unauthorized transaction if he chose to repudiate it.”

Review of this instruction in context compels the conclusion that it served not to create a fourth component of the definition of ratification, but rather to clarify the requirement that the jury may find that a party ratified a transaction only if the jury finds an intent to ratify it. The trial court gave the instruction in the course of explaining that the jury could infer an intent to ratify from the plaintiffs actions. The challenged instructions cautioned the jurors that they could not permissibly infer such an intent from the plaintiff’s inaction if he lacked the ability by his action to undo the disputed transaction. We have emphasized in the past that the finding of a free and informed decision to ratify is a prerequisite to a finding of ratification. See Botticello v. Stefanovicz, supra, 29. The trial court’s instruction in this case helped to ensure that the jury rendered a verdict that was consistent with this principle. Accordingly, we find that it was not defective.

B

The defendants next contend that the trial court erred in refusing to instruct the jury that the statute of frauds afforded a defense to the plaintiff’s claim that he had never agreed to the purchase of 2000 shares of stock in BESS. They argue that, because they sent the plaintiff a written confirmation of the 2000 share purchase, and because the plaintiff did not object in writing within ten days, the confirmation satisfied the statute of frauds for the sale of securities; General Statutes § 42a-8-319; and bound the plaintiff to accept the defendants’ acquisition of 2000 shares of stock in BESS. We disagree.

The defendants’ argument reflects a misunderstanding of the consequences of compliance with the statute of frauds. Under § 42a-8-319, a party may not enforce a contract that is subject to the statute of frauds without presenting specified written evidence of the existence of a contract. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 531-33, 457 A.2d 656 (1983). Satisfaction of the statute of frauds does not operate to bind the parties to the terms of the writing nor does it estop either party to challenge the existence of a valid contract. The existence of a written confirmation serves merely to preclude the parties from invoking the statute of frauds as a bar to the enforcement of the alleged agreement. See Conn. Gen. Stat. Ann. § 42a-2-201, comment 3 (West); White & Summers, Uniform Commercial Code (2d Ed. 1980) p. 55; see, e.g., McCubbin Seed Farm, Inc. v. Tri-Mor Sales, 257 N.W.2d 55, 58-59 (Iowa 1977).

The jury could have considered the contents of the written confirmation, and the plaintiffs failure to object in writing, as evidentiary of the terms of an agreement between the plaintiff and defendants. Nevertheless, the court properly refused to instruct the jury that the plaintiffs failure to object in writing prevented him from challenging the enforceability of the provisions of the written confirmation.

C

The defendants further claim that the trial court erred in instructing the jurors that they might draw an adverse inference from the defendants’ failure to call Richard Blumencranz as a witness. Blumencranz was a branch manager for Dean Witter and, at the time of the transaction in question in this case, he served as Reid’s supervisor. The plaintiff sought to call Blumencranz as a witness during his case-in-chief, but Blumencranz, who was out of the state at the time, did not appear. The plaintiff instead read several pages of Blumencranz’s deposition testimony to the jury. Later in the trial, Blumencranz came to Connecticut and testified on behalf of the defendants. The defendants did not permit him to testify before the jury, instead limiting his testimony to an explanation of complex securities regulations to the trial judge. When Blumencranz completed his statement, the court offered to allow the plaintiff to examine Blumencranz before the jury as his own -witness. The plaintiff declined.

In its instructions, the court charged that if the jury found that Blumencranz had been available during trial and that he had been a witness whom the defendants would naturally have produced, then the jury could permissibly have inferred from the defendants’ failure to produce Blumencranz in their presence that Blumencranz’s testimony would have been unfavorable to the defendants. The court then defined the term “witness whom the defendants would naturally have produced.” It instructed the jury that Blumencranz had been available to the defendants and that the question of whether Blumencranz was a witness whom the defendant would naturally have produced was for them to resolve as finders of fact.

On appeal, the defendants claim that the trial court erred in so instructing the jury because: (1) Blumencranz did testify before the court; (2) Blumencranz, in effect, testified before the jury through his deposition; and (3) the plaintiff had an oppportunity to question Blumencranz before the jury when Blumencranz did appear in court.

We need not review these claims because the defendants did not properly raise them below. It is well established that parties who seek appellate review of claimed defects in jury instructions must distinctly bring these flaws to the attention of the trial court. State v. Barrett, 197 Conn. 50, 53 n.2, 495 A.2d 1044 (1985); McKiernan v. Caldor, Inc., 183 Conn. 164,166, 438 A.2d 865 (1981). In this case, the defendants’ attorney, in the course of listing his exceptions to the court’s charge, briefly mentioned his objection to the missing witness instruction in a single sentence. This reference was insufficient to be of useful assistance to the court in determining whether the charge was inappropriate and in deciding whether to give a supplemental instruction to the jury. Consequently, the defendants, who were represented by experienced counsel at trial, failed adequately to preserve their claim of error on this issue. State v. Barrett, supra; see State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984).

Even if we were to reach the merits on this question, we are not persuaded by the defendants’ claim that the trial court committed plain error in giving the missing witness instruction. We have held on numerous occasions that the trial court may appropriately instruct the jury that it may draw an adverse inference from a party’s failure to call a witness who was available and who was a witness whom the party would naturally have produced. Shelnitz v. Greenberg, 200 Conn. 58, 73, 509 A.2d 1023 (1986); State v. Hart, 198 Conn. 424, 428, 503 A.2d 588 (1986); State v. Alfonso, 195 Conn. 624, 631, 490 A.2d 75 (1985); Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). “A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Secondino v. New Haven Gas Co., supra.

The trial court in this case did not instruct the jury to draw an adverse inference nor did it tell the jurors that the circumstances of the case permitted such an inference. The court merely instructed the jurors that they could permissibly draw an adverse inference if they first found that the prerequisite conditions existed. The defendants do not question Blumencranz’s availability nor do they contend that a jury could not reasonably have found him to be a witness whom they naturally would have produced. Instead, they argue that the instruction was inappropriate because Blumencranz did appear at trial and because Blumencranz was also available to the plaintiff. These arguments, however, ignore the focus of the inquiry into the propriety of the missing witness charge. It is the party’s decision to withhold the testimony of an available witness whom it would naturally have produced that permits the jury to draw an adverse inference. Secondino v. New Haven Gas Co., supra, 674-75. Thus, it is irrelevant that another party introduced the missing witness’s deposition testimony; see Halpine v. Halpine, 138 Conn. 578, 580-82, 87 A.2d 146 (1952); cf. Sileo v. Curran, 161 Conn. 572, 573, 290 A.2d 325 (1971); or that the witness testified to the court on issues that were immaterial to the jury’s inquiry, or that the witness was also available to other parties. See Kelsey v. Connecticut State Employees Assn., 179 Conn. 606, 616, 427 A.2d 420 (1980); Zack v. Guzauskas, 171 Conn. 98, 102, 368 A.2d 193 (1976); Secondino v. New Haven Gas Co., supra, 676. In this case, the defendants did not present Blumencranz to the jury. If the jury concluded that he was a witness whom the defendants would naturally have produced, it could permissibly have drawn an adverse inference from the defendants’ failure. The trial court, therefore, properly instructed the jury.

Ill

In their third claim, the defendants argue that the trial court erroneously admitted evidence of Reid’s prior misconduct when it permitted two of Reid’s former clients, Frank McDonnell and James Kleinkauf, to testify that Reid had made several unauthorized purchases of stock on their behalves. We find no error.

We may usefully begin our inquiry on this issue by restating the two-step analysis that a trial court must conduct in deciding whether to admit evidence of a party’s collateral misconduct. The court first must determine whether the evidence is relevant and material to an issue properly before the court. State v. Shindell, 195 Conn. 128, 134, 486 A.2d 637 (1985). “ ‘Evidence of other misconduct, although not ordinarily admissible to prove the bad character or criminal tendencies of the accused, may be allowed for the purpose of proving many different things, such as intent, identity, malice, motive or a system of criminal activity’; State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382(1982) . . . .” State v. Shindell, supra, 133. Second, after a finding that the evidence is relevant, the trial court must then decide whether its admission is warranted because its probative value outweighs its prejudicial effect. Id., 134; State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983).

In this case, the defendants concede that the trial court conducted an appropriate inquiry. They acknowledge that the court below found that the testimony of McDonnell and Kleinkauf was relevant to the issue of Reid’s fraudulent intent and that the probative value of the witnesses’ testimony exceeded its prejudicial effect. On appeal, the defendants limit their claim to an attack on these findings.

Because of the latitude we accord trial courts on questions of relevance; State v. McIntosh, 199 Conn. 155, 163, 506 A.2d 104 (1986); State v. Sharpe, 195 Conn. 651, 657, 491 A.2d 345 (1985); and “ ‘[bjecause of the difficulties inherent in [the process of balancing probative value and prejudicial effect], the trial court’s decision [to admit evidence of other misconduct] will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . On review by this court, therefore, “every reasonable presumption should be given in favor of the trial court’s ruling.” State v. Ryan, [182 Conn. 335, 337, 438 A.2d 107 (1980)]. ’ State v. Howard, [187 Conn. 681, 685, 447 A.2d 1167 (1982)].” State v. Shindell, supra, 136, quoting State v. Braman, supra, 676-77; State v. Howard, supra.

Applying this standard to the facts of this case, we conclude that the trial court properly admitted the testimony of Kleinkauf and McDonnell. In light of the close correspondence in time and character between Reid’s conduct toward the plaintiff and his conduct toward these witnesses, and in light of Reid’s disavowal of any intent to deceive the plaintiff, the trial court could reasonably have found the testimony of Kleinkauf and McDonnell material to the issue of Reid’s motive and fraudulent intent. See State v. Esposito, 192 Conn 166, 171-72, 471 A.2d 949 (1984); see also McLaughlin v. Thomas, 86 Conn. 252, 259-60, 85 A. 370 (1912); Hoxie v. Home Ins. Co., 32 Conn. 21, 37 (1864). Similarly, the court did not abuse its discretion in finding that the probative value of the testimony outweighed its prejudicial effect. Indeed, the defendants have established no basis for a determination by this court that the admission of the testimony resulted in undue prejudice. The court sought to minimize any possible prejudice by instructing the jury that it could consider the testimony only as evidence of Reid’s fraudulent intent and that it could not infer from the testimony that Reid possessed a propensity for dishonesty. The defendants’ claim of prejudice is further undercut by the fact that the jury, after hearing the testimony, returned a verdict in favor of the defendants on the claim of fraud. See State v. Nardini, 187 Conn. 513, 529, 447 A.2d 396 (1982). In the absence of a demonstrated likelihood of undue prejudice, we cannot say that the trial court erred in admitting the testimony of Kleinkauf and McDonnell.

IV

The defendants’ final claim is that the trial court awarded the plaintiff excessive attorney’s fees. At the conclusion of trial, the court held the defendants liable for the plaintiff’s attorney’s fees under the relevant provision of CUSA. General Statutes § 36-498. After reviewing billing records submitted by the plaintiff’s attorney, the court determined the appropriate amount of this award to be $42,294.75. On appeal, the defendants contend that this sum should be reduced because: (1) the plaintiff did not prevail on all of his claims; (2) the award was unreasonable in light of the compensatory damages the plaintiff obtained; and (3) the trial court assigned unrealistically high values to certain services provided by the plaintiff’s counsel. We disagree.

The defendants first argue that the award was excessive as a matter of law because the fees that the trial court allowed improperly included amounts allocable to the plaintiff’s unsuccessful claims of fraud and violation of CUTPA. This argument is unpersuasive because it erroneously assumes that, under § 36-498, an award of attorney’s fees must automatically be reduced if its recipient fails to prevail on all of his claims at trial. We have no such rule. A plaintiff may recover “reasonable attorney’s fees” under § 36-498 only if he prevails on his § 36-498 claim. The magnitude of the amount awarded to a victorious party rests within the sound discretion of the trial court. See Kenny v. Civil Service Commission, 197 Conn. 270, 277-78, 496 A.2d 956 (1985); Moffitt v. Horrigan, 37 Conn. Sup. 873, 876, 441 A.2d 207 (1982). Where a party succeeds on his § 36-498 claim, but fails on other claims brought in the same suit, the size of his award should reflect his success, as determined by the trial court, in securing redress for the injuries that prompted his § 36-498 claim and reasonable legal cost incurred in pursuing this success. See Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). In this case, the plaintiff sought relief, on five separate legal theories, for losses he had sustained as a result of a transaction that the defendants had arranged. He succeeded in this endeavor by prevailing on three of the five related counts. Because the amounts he expended on litigation, including the dollars spent on his unsuccessful claims, were devoted to the pursuit of a goal that he achieved, the trial court permissibly rejected the defendants’ demand that it reduce the award by two-fifths.

The defendants also urge us to hold that the award was unreasonable because it exceeded the amount of compensatory damages that the plaintiff recovered. The trial court ordered the defendants to pay $42,294.75 in attorney’s fees, while holding the defendants liable for only $18,120.09 in compensatory damages. This difference by itself, however, does not compel us to disturb the trial court’s judgment. Section 36-498 provides for the recovery of attorney’s fees in order to encourage the enforcement of CUSA by victims of improper securities transactions who might not otherwise be able to afford to do so. See Rodriguez, “Recovery of Attorneys’ Fees in Consumer Contract Actions in Connecticut,” 1 Bridgeport L. Rev. 55, 62-63 (1980). It reflects a legislative recognition that suits under CUSA are often long, complex, and prohibitively expensive for individual investors. The defendants in this case have offered this court no reason to conclude that attorney’s fees that exceed compensatory damages are presumptively unreasonable. Indeed, the relative size of the award in this case tends to support the proposition that the recovery of attorney’s fees is necessary to make the enforcement of CUSA economically feasible.

Finally, the defendants attack the method the trial court used to calculate the attorney’s fees that it awarded. They claim that the court should have assigned a lower hourly billing rate to time spent by the plaintiff’s attorney working on administrative and nonlegal tasks. Because the defendants in their brief do not specifically describe the allegedly overvalued tasks or even mention the size of the hourly rate employed by the trial court, they have failed to provide sufficient information to allow us to evaluate the reasonableness of the trial court’s calculation. See Taylor v. American Thread Co., 200 Conn. 108, 509 A.2d 512 (1986); Bieluch v. Bieluch, 199 Conn. 550, 552, 509 A.2d 8 (1986); In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 715, 501 A.2d 377 (1985); State v. One 1977 Buick Automobile, 196 Conn. 471, 480, 493 A.2d 874 (1985). In the absence of any such presentation in support of the defendants’ argument, we cannot say that the trial court’s methods were clearly erroneous.

There is error in part, the judgment is set aside and the case is remanded with direction to modify judgment in accordance with this opinion.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 36-498. buyer’s remedies, (a) Any person who: (1) Offers or sells a security in violation of subsection (a) of section 36-474, 36-485 or subsection (b) of section 36-493 or of any regulation or order under section 36-491 which requires the affirmative approval of sales literature before it is used, or of any condition imposed under subsection (d) of section 36-487 or subsection (g) or (h) of section 36-488; or (2) offers or sells a security by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, the buyer not knowing of the untruth or omission, and who does not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the untruth or omission, is liable to the person buying the security from him, who may sue either at law or in equity to recover the consideration paid for the security, together with interest at eight per cent per year from the date of payment, costs and reasonable attorneys’ fees, less the amount of any income received on the security, upon the tender of the security, or for damages if he no longer owns the security.
      “(b) Eveiy person who directly or indirectly controls a seller liable under subsection (a) of this section, every partner, officer, or director of such a seller, every person occupying a similar status or performing similar functions, every employee of such a seller who materially aids in the sale and every broker-dealer or agent who materially aids in the sale are also liable jointly and severally with and to the same extent as the seller, unless the nonseller who is so liable sustains the burden of proof that he did not know, and in exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. There shall be contribution as in cases of contract among the several persons so liable.
      “(c) Any tender specified in this section may be made at any time before entry of judgment.
      “(d) Every cause of action under this chapter survives the death of any person who might have been a plaintiff or defendant.
      “(e) No person may sue under this section more than two years after the contract of sale. No person may bring an action under this section: (1) If the buyer received a written offer, before suit and at a time when he owned the security, to refund the consideration paid together with interest at six per cent per year from the date of payment, less the amount of any income received on the security, and he failed to accept the offer within thirty days of its receipt, or (2) if the buyer received such an offer before bringing a cause of action and at a time when he did not own the security, unless he rejected the offer in writing within thirty days of its receipt.
      “(f) No person who has made or engaged in the performance of any contract in violation of any provision of this chapter or any regulation or order hereunder, or who has acquired any purported right under any such contract with knowledge of the facts by reason of which its making or performance was in violation, may base any cause of action on the contract.
      “(g) Any condition, stipulation or provision binding any person acquiring any security to waive compliance with any provision of this chapter or any regulation or order hereunder is void.
      “(h) The rights and remedies provided by this chapter are in addition to any other rights or remedies that may exist at law or in equity.”

       “[General Statutes (Rev. to 1981)] Sec. 42-110g. action foe damages. CLASS ACTIONS. COSTS AND FEES. EQUITABLE BELIEF, (a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.
      “(b) Persons entitled to bring an action under subsection (a) of this section may, pursuant to section 42-110h bring a class action on behalf of themselves and other persons similarly situated who are residents of this state or injured in this state to recover damages.
      “(c) Upon commencement of any action brought under subsection (a) of this section, the plaintiff shall mail a copy of the complaint to the attorney general and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the attorney general.
      “(d) In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. In a class action in which there is no monetary recovery, but other relief is granted on behalf of a class, the court may award, to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorneys’ fees. In any action brought under this section, the court may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief.
      “(e) Any final order issued by the department of consumer protection and any permanent injunction, final judgment or final order of the court made under section 42-110d, 42-110m, 42-110o or 42-110p shall be prima facie evidence in an action brought under this section that the respondent or defendant used or employed a method, act or practice prohibited by section 42-110b, provided this section shall not apply to consent orders or judgments entered before any testimony has been taken.
      “(f) An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.”

       General Statutes § 42-110b (a) provides: “No person shall engage in unfair methods of competition under unfair or deceptive acts or practices in the conduct of any trade or commerce.”

       “[General Statutes] Sec. 42-110c. exceptions, (a) Nothing in this chapter shall apply to: (1) Transactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state or of the United States; or (2) acts done by the publisher, owner, agent or employee of a newspaper, periodical or radio or television station in the publication or dissemination of an advertisement, where the publisher, owner, agent or employee did not have knowledge of the false, misleading, unfair or deceptive character of the advertisement, and did not have direct financial interest in the sale or distribution of the advertised product or service.
      “(b) The burden of proving exemption, as provided in this section, from the provisions of this chapter shall be upon the person claiming the exemption.”

       General Statutes § 42-110b (d) provides: “It is the intention of the legislature that this chapter be remedial and be so construed.”

       General Statutes § 42-110a (4) provides: “ ‘Trade’ and ‘commerce’ means the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state.”

       “[15 U.S.C.] § 45. UNFAIR METHODS OF COMPETITION UNLAWFUL; PREVENTION BY COMMISSION, (a) DECLARATION OF UNLAWFULNESS; POWER to prohibit unfair practices ... (1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.”

       “[General Statutes (Sup. 1969)] Sec. 36-338. prohibited acts, (a) No person, in connection with the sale, offer to sell, purchase or offer to purchase of any security, directly or indirectly, shall (1) employ any device, scheme or artifice to defraud, (2) make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or (3) engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.
      “(b) No person who receives any consideration from another person primarily for advising the other person as to the value of securities or their purchase or sale, whether through the issuance of analyses or reports or otherwise, shall (1) employ any device, scheme or artifice to defraud the other person or (2) engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon the other person.
      “(c) Any person who violates any provision of this section shall be fined not more than ten thousand dollars or imprisoned not more than ten years or both.”

       “[General Statutes (Sup. 1969)] Sec. 36-346. civil liability for sales in violation of law. (a) Any person who offers or sells a security in violation of section 36-322 or 36-338 is liable to the person buying the security from him, who may sue either at law or in equity to recover the consideration paid for the security, together with interest at six per cent per annum from the date of payment, costs and reasonable attorneys’ fees, less the amount of any income received on the security, upon the tender of the security, or for damages if he no longer owns the security. Damages shall be the amount that would be recoverable upon a tender, less the value of the security when the buyer disposed of it, and interest at six per cent per annum from the date of disposition.
      “(b) Every person who directly or indirectly controls a seller liable under subsection (a) of this section, every partner, officer or director of such a seller, every person occupying a similar status or performing similar functions, every employee of such a seller who materially aids in the sale and every broker or dealer or salesman who materially aids in the sale shall be liable jointly and severally with and to the same extent as the seller, unless the nonseller who is so liable sustains the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. There shall be contribution as in cases of contract among the several persons so liable.
      “(c) Any tender specified in this section may be made at any time before entry of judgment.
      “(d) Every cause of action under this chapter survives the death of any person who might have been a plaintiff or defendant.
      “(e) No person may sue under this section more than two years after the contract of sale. No person may sue under this section (1) if the buyer received a written offer, before suit and at a time when he owned the security, to refund the consideration paid, together with interest at six per cent per annum from the date of payment, less the amount of any income received on the security, and he failed to accept the offer within thirty days of its receipt, or (2) if the buyer received such an offer before suit and at a time when he did not own the security, unless he rejected the offer in writing within thirty days of its receipt.
      “(f) No person who has made or engaged in the performance of any contract in violation of any provision of this chapter or any regulation hereunder, or who has acquired any purported right under any such contract with knowledge of the facts by reason of which its making or performance was in violation, may base any suit on the contract.
      “(g) Any condition, stipulation or provision binding any person acquiring any security to waive compliance with any provision of this chapter is void.
      “(h) The rights and remedies provided by this section are in addition to any rights and remedies that may exist at law or in equity, but this chapter shall not create any cause of action not specified in this section.”

       The defendants, in their brief, contend that no record exists of any attempt by the commmissioner of consumer protection to apply CUTPA to the securities industry. In failing to respond to this claim, the plaintiff apparently acknowledges the absence of any such precedent.

       The court submitted to the jurors the following interrogatory to which they responded in the negative: “Did plaintiff Russell in his dealings with defendants Reid and Dean Witter Reynolds, Inc. during the period from April through July 1981, ratify the purchase of 2,000 shares of Basic Earth Science Systems, Inc. common stock on a margin basis?”

       “[General Statutes] Sec. 42a-8-319. statute of frauds. A contract for the sale of securities is not enforceable by way of action or defense unless:

        (a) There is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price; (b) delivery of a certificated security or transfer instruction has been accepted, or transfer of an uncertificated security has been registered and the transferee has failed to send written objection to the issuer within ten days after receipt of the initial transaction statement confirming the registration, or payment has been made, but the contract is enforceable under this provision only to the extent of the delivery, registration or payment; (c) within a reasonable time a writing in confirmation of the sale or purchase and sufficient against the sender under paragraph (a) has been received by the party against whom enforcement is sought and he has failed to send written objection to its contents within ten days after its receipt; or (d) the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract was made for sale of a stated quantity of described securities at a defined or stated price.”

       These authorities discuss the statute of frauds that appears in Article II of the Uniform Commercial Code and governs contracts for the sale of goods. General Statutes § 42a-2-210. We may look to these resources for guidance in applying General Statutes § 42a-8-319 because the drafters of the code indicated that the purpose of § 42a-8-319 was “[t]o conform the statute of frauds provisions with regard to securities to the policy of the provisions in the Article on Sales (Article 2) on sale of goods.” Conn. Gen. Stat. Ann. § 42a-8-319, comment: “Purposes of Changes” (West).

       The plaintiff claims that the deposition covered only a portion of the relevant subject matter that was within Blumencranz’s competence as a witness.

       The defendants’ objection to the trial court’s rendition of the missing witness instruction consisted of the following sentence: “The applicable rule is the Federal rule for margin violations and we object to the Secondino charge inasmuch as Mr. Blumencranz testified, whether by deposition or not.”

       The plaintiff argues that the trial court erred in permitting the jury to consider the testimony of Kleinkauf and McDonnell only with respect to his claim of fraud. Because the plaintiff prevailed on each of his other claims at trial and because the plaintiff has presented no evidence that the trial court abused its discretion in limiting the jury’s use of this testimony, we find no error in the court’s ruling.

       The defendants also claim that the trial court erred in considering the testimony of Kleinkauf and McDonnell when it determined the amount of punitive damages to award the plaintiff under CUTPA. Since we have already held that CUTPA does not apply in this case, we need not consider this claim.

       The trial court also held the defendants liable for an identical amount in attorney’s fees under CUTPA. In light of our ruling in part I, supra, the defendants are not liable to the plaintiff for attorney’s fees under CUTPA.

       The trial court awarded the plaintiff full compensatory damages on his contract, CUSA, and CUTPA claims and compensatory damages discounted by 10 percent for comparative negligence on his negligence claim. Because each amount reflected damages awarded to compensate for the same injury, the parties stipulated “that the plaintiff [would] have recovery on one count only, at his election as to which count . . . .”

       The plaintiff remains free on remand to petition the trial court to order the defendants to pay the litigation costs he has incurred in defending this appeal.